Law’s Reality: A Philosophy of Law 1800374143, 9781800374140

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Law’s Reality

ELGAR STUDIES IN LEGAL THEORY Series Editor: Wojciech Sadurski, Sydney Law School, University of Sydney, Australia Elgar Studies in Legal Theory is a series designed to cultivate and promote high quality works of scholarship on all aspects of legal theory. The focus of the series is on the development of original thinking in legal theory, with topics ranging from law and language, logic and legal reasoning, morality and the law, critical legal studies, and transnational law. Innovative work is encouraged from both established authors and the new generation of scholars. Titles in the series include: Legal Theory and the Media of Law Thomas Vesting Gender, Alterity and Human Rights Freedom in a Fishbowl Ratna Kapur Law and Evil The Evolutionary Perspective Wojciech Załuski The Turning Point in Private Law Ecology, Technology and the Commons Ugo Mattei and Alessandra Quarta The End of Law How Law’s Claims Relate to Law’s Aims David McIlroy Domesticating Kelsen Towards the Pure Theory of English Law Alexander Orakhelashvili Law in the First Person Plural Perspectives from Rousseau Bert van Roermund Social Constructions of Law Potential and Limits Michael Giudice Law’s Reality A Philosophy of Law Allan Beever

Law’s Reality A Philosophy of Law

Allan Beever Professor of Law, School of Law, Auckland University of Technology, New Zealand

ELGAR STUDIES IN LEGAL THEORY

Cheltenham, UK • Northampton, MA, USA

© Allan Beever 2021

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical or photocopying, recording, or otherwise without the prior permission of the publisher. Published by Edward Elgar Publishing Limited The Lypiatts 15 Lansdown Road Cheltenham Glos GL50 2JA UK Edward Elgar Publishing, Inc. William Pratt House 9 Dewey Court Northampton Massachusetts 01060 USA A catalogue record for this book is available from the British Library Library of Congress Control Number: 2021936644 This book is available electronically in the Law subject collection http://dx.doi.org/10.4337/9781800374157

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ISBN 978 1 80037 414 0 (cased) ISBN 978 1 80037 415 7 (eBook)

Dedicated to the memory of Robert Whittaker

Contents List of figuresix Introductionx PART I

THE PHILOSOPHY OF LAW AND JURISPRUDENCE

1 Jurisprudence

2

2 Philosophy PART II

16

THE STRUCTURE OF THE SOCIAL WORLD AND THE ONTOLOGY OF LAW

3 Intentionality

29

4 Language

45

5 Background

76

6 Interpretation

84

7 Institutions

106

8 Law

121

PART III RECONSTRUCTING THE PHILOSOPHY OF LAW 9 Directions

133

10 Rules

150

11 Normativity

172

12 Procedure

215

13 Principles

225

14 Authority

237

15 Dualism

256 vii

viii

Law’s reality

16 Morality

274

17 Understanding

286

18 Justification

297

19 Conclusion

304

Bibliography305 Index314

Figures 6.1

‘Nonsense Figure’

87

6.2

People icon

89

6.3

Auguste Rodin, ‘St John the Baptist’

91

6.4

Caravaggio, ‘Salome with the Head of John the Baptist’

92

6.5

Giotto di Bondone, ‘Lamentation of Christ’

93

6.6

Edvard Munch, ‘The Scream’ (detail) 94

6.7

William Hogarth, ‘False Perspective’

95

6.8

Pieter Bruegel the Elder, ‘Children’s Games’

96

6.9

Giorgione, ‘The Tempest’

97

6.10 Pieter Bruegel the Elder, ‘Landscape with the Fall of Icarus’98 6.11 Gerard ter Borch, ‘The Gallant Conversation (The Paternal Admonition)’99 15.1 Donoghue v Stevenson256 15.2 Winterbottom v Wright257

ix

Introduction Before I attempt to entangle the reader in the concerns that prompted the writing of this book, it is probably best to say what the book is about. As is not uncommon, this is at once a simple and an impossible task. The simple thing to say is that it is about the nature of the law. It provides an answer to the question ‘What is law?’ The reader, then, will immediately recognise that this book belongs to a tradition of scholarship that features with great prominence the names Jeremy Bentham, John Austin, Hans Kelsen, HLA Hart, Lon Fuller, Ronald Dworkin, John Finnis and others. In one way, this book does belong to that tradition. Many of its pages are spent examining the views of the theorists just named. But there is another sense in which the book lies outside of this tradition. I have said that the book is about the question ‘What is law?’ But it is also about the tradition that purports to answer this question. Its contention is that this tradition is broken. This is not to deny that the theories of the thinkers just mentioned are important and instructive. The book claims, however, that modern jurisprudence is engaged in a debate from which it must disentangle itself. Which debate? I can put it no plainer now than to say that the philosophy of law must learn to escape the blight that goes by the name of ‘legal positivism’. Importantly, this is not to say that the legal positivists are wrong and that the natural lawyers are right. Sometimes that is the case, but not always. My claim is in fact perfectly consistent with the idea that legal positivists have been right about a great deal – as I think they have been. The problem is that it appears endemic to legal positivism to push debate in the philosophy of law into unproductive and unhelpful dead ends. The basic reason for this is that positivism is defined so that it concentrates attention on the wrong things. According to the Oxford Bibliographies, for example: Legal positivism is one of the leading philosophical theories of the nature of law, and is characterized by two theses: (1) the existence and content of law depends entirely on social facts (e.g., facts about human behavior and intentions), and (2) there is no necessary connection between law and morality – more precisely, the

x

Introduction

xi

existence and content of a law do not depend on its merits or demerits (e.g., whether or not it lives up to the ideals of justice, democracy, or morality).1

Note first that (1) and (2) are not intended to be independent of each other. Rather, they are two sides of the same coin. It is because the existence and content of law depends entirely on social facts that the existence and content of a law do not depend on its merits or demerits. Thus, questions about (2) are also indirectly questions about (1). Note also that, in relation to (2), two definitions are given: (2a) that there is no necessary connection between law and morality and (2b) that the existence and content of a law do not depend on its merits or demerits. As is fair enough, (2b) is presented as a clarification of (2a), but something very odd is happening here. Note that (2b) is not really any longer or more complex than (2a). So why, then, present (2a) at all? If (2b) is the actual thesis and if that thesis can be stated at least as clearly and almost as concisely as (2a), then what is the point of presenting (2a)?2 Well, let us think about (2b). Positivism, of course, is said to be the great antithesis of its arch-rival, natural law theory. Though the latter theory was historically dominant, the tables have turned, so that ‘Legal positivism is accepted today by most Anglophone philosophers of law, though natural law theories, its natural opponents, continue to challenge positivism’s fundamental claims.’3 Curiously, though, as we will see in Chapter 16, at least most of the natural lawyers, including great historical figures such as Augustine and Aquinas, accepted (2b). But if that is so, then what has the great debate between positivism and natural law been all about? If both positivists and natural lawyers accept (2b) and if (2b) is part of the definition of positivism, then how could it be true that natural lawyers ‘continue to challenge positivism’s fundamental claims’?4 Well, what about (2a), then? Surely natural lawyers do suggest that there must be some essential connection between law and morality. Is this not what positivists are denying? Is this where we find the clash in fundamental claims? One thing of which we can be certain is that the idea that there is no necessary connection between law and morality is incredible. Frankly, there are some necessary connections (in the sense in which that phrase must be being used here) between everything and everything else, though most of those will be so trivial that we do not pay any attention to them. But take the claim that there M Sevel and B Leiter, ‘Legal Positivism’. Part of the answer to this question is that this is how positivism was presented by Hart. The question then is why, in the light of what I am about to say, he presented it that way and why we continue to follow him. 3 M Sevel and B Leiter, ‘Legal Positivism’. 4 Ibid (emphasis added). 1 2

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is no essential connection between morality and cooking. On one level, that is of course true. Certainly, one can cook immorally. Think of cannibalism, for example, or the morally curious case that occurs at the end of the film The Cook, The Thief, His Wife & Her Lover, where, in an act of revenge and perhaps justice for having her lover murdered, the wife forces her husband to eat the body of her lover that she has had the cook roast. On the other hand, though, there are surely many essential connections between cooking and morality. Think of keeping people alive, building and strengthening crucial social networks such as families, and so on. If there were an interesting philosophical issue here, the task would not be to take a stand on whether there was or was not an essential connection between cooking and morality. It would be to examine what connections and disconnections there were. If we are to continue with the equivalent investigation, that really ought to be the focus in legal philosophy too. With both (2a) and (2b), we see legal positivism forcing on the philosophy of law a grand false dichotomy. The theory presents us with the notion that there is a great divide in jurisprudence that this theory largely invents, a grand canyon of the mind constructed by pushing away the ground upon which one’s perceived opponents stand or by taking one’s own stand on territory that one will soon oneself have to push away – after asserting (2a), positivists rather lamely concede that there must be some necessary connections between law and morality after all.5 The result is that the whole discipline becomes distorted. People whose views are compatible spend their lives in opposition. Important truths discovered along the way are rejected because they are said to conflict with ideas with which they are in reality quite consistent. If my experience serves, for instance, most of those who work in the socio-legal realm regard their views as in essential opposition to those of the natural lawyers. They aren’t. Legal positivism is a troublemaker. Not only does it pick fights with those it should leave alone, but it encourages those who should be friends, or at least friendly, to fall out. We would be much better off without it. Again, though, that is not to deny that positivists have made important discoveries or that their works reward careful consideration. Much of the content of positivism is perfectly fine; the problem is that most of it is presented as belonging to an argument that just isn’t worth having. I have said that positivism picks unnecessary fights with natural law theorists. It also does this with socio-legal theory, though it has to be said, in fairness, that few socio-legal theorists who turn their minds to these issues appear to require much provocation. The point to note now is that it is a curious fact that a theory that begins with the insistence that ‘the existence and content of

5

Eg HLA Hart, The Concept of Law, 193–200.

Introduction

xiii

law depends entirely on social facts’6 seems very reluctant to get its hands dirty and investigate these. For a theory that insists that law is based on the social, there is a remarkable absence of discussion of the social in it. In fact, curiously, it insists (and this is what riles the socio-legal thinker) that such investigation is unnecessary. On the contrary, the view advanced here agrees with socio-legal theorists such as Roger Cotterrell and Brian Tamanaha who insist that this is a lacuna in positivist analysis.7 Positivistic legal theory must become more focused on society and more empirical. But I think that I disagree with these theorists as well. For instance, Cotterrell has said that ‘an adequate understanding of legal ideas – for lawyers, no less than for other citizens – is impossible without adopting a sociological perspective, a perspective informed by social theory’.8 If I understand what Cotterrell means by an adequate understanding and by social theory, then I think that he is mistaken – but not by much. I think that he is mistaken because, as I aim to show in the second part of this book, it is possible to examine the logical structure of the law without doing social theory. That does not mean that one can do this without discussing society to some degree. The point, though, is that it is possible to provide a philosophical account of the logical structures of law and of society without doing (what I think Cotterrell means by) social theory. Having said that, however, as I discuss in many places, a theory of this kind does not tell us a great deal about the law – though it tells us much that is important – and it raises many questions that can be answered only by social theory. There is a place for positivistic analysis, but it is one that poses no essential challenge to natural law theory and it must see itself in partnership with other disciplines, such as sociology, anthropology and the like. It certainly cannot attain the level of independence to which modern legal positivism pretends. It is for these reasons, and for others examined in the following, that, though some may think that the view advanced in these pages is positivistic, I cannot regard it as a version of legal positivism. To so classify it would be implicitly to endorse a line of thought whose central claim has been a great obstacle to progress in this area. We do not need a new version of legal positivism. We need a new theory that does not merely state that law is a social construction, but that demonstrates how it is so constructed and that reveals how this anal-

M Sevel and B Leiter, ‘Legal Positivism’. See, eg, R Cotterrell, Law, Culture and Society; BZ Tamanaha, A Realistic Theory of Law. 8 R Cotterrell, Law, Culture and Society, 1. See also R Cotterrell, The Politics of Jurisprudence, 5. For a similar view, see J Stone, Legal System and Lawyers’ Reasonings, 8, 16–17. 6 7

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ysis can live with many other perspectives on law, including those taken by natural lawyers. I hope to provide such a theory in these pages. I guess it is by now obvious that I think there is something seriously wrong with jurisprudence today. But what do I mean by the term ‘jurisprudence’? Clearly, I mean to refer to the debates that take place between thinkers such as Austin, Hart, Dworkin and Raz. But there is much more to jurisprudence than this. There is, for instance, the sociologically oriented jurisprudence of thinkers, such as Cotterrell and Tamanaha, already mentioned. Moreover, one of the aims of this book is to provide a new foundation for philosophical enquiry into law; or, rather, to introduce into the philosophy of law a foundation that already exists elsewhere, a foundation that has been described as ‘certainly the most impressive theory of the ontology of social reality that we have’,9 and yet has failed to make more than a few dents in mainstream jurisprudence. But again, what do I mean by ‘mainstream jurisprudence’? The best answer is the following. This book has a target. It is the picture of jurisprudence that dominates this discipline, a picture that, as I have said, showcases the names Bentham, Austin, Kelsen, Hart, Fuller, Dworkin, Finnis and others. It is the picture found in most textbooks in this area. If it is not idiosyncratic, the view of a discipline presented in a textbook tells one about how those in that discipline understand that discipline. Textbook writers choose what they take to be, and what they think their colleagues take to be, the most important arguments, debates, theories and the like. I am focused on what they have chosen to focus on. To avoid unnecessary verbosity, it is useful to have a term to refer to this. The term that I use is ‘jurisprudence’. ‘Jurisprudence’, then, refers to the dominant view in this discipline, to the view expounded in textbooks and taught to students all over the world – or at least the English-speaking world – each year in law schools. There are, of course, important thinkers whose work does not fit into this category, Cotterrell and Tamanaha among them. I am not denying the significance of that work here. I just need a term to refer to what will be my imaginary interlocutor herein. ‘Philosophy of law’, on the other hand, I will use to refer to the entire discipline; to what it has been, to what it currently is and to what it could and should be. As the terms are used here, then, neither Cotterrell nor Tamanaha is a jurisprudent, but then neither am I. Happily, though, we are all philosophers of law. I just said that the aim of the book is to introduce into this discipline a foundation that already exists elsewhere. This foundation is found in the social philosophy of John Searle. That might seem a strange claim, as I am certainly not the first to utilise Searle’s theses in this area. Others who have been influ

9

B Smith, ‘From Speech to Social Reality’, 16.

Introduction

xv

enced by Searle, and who seem to fall into the category of jurisprudent as here defined, include Neil MacCormick, Andrei Marmor, Luka Burazin and Kenneth Ehrenberg. What, then, is to be made of my claim that this thought has failed to make more than a few dents in mainstream jurisprudence? Three things. First, take the case of MacCormick. MacCormick is rightly regarded as one of the foremost modern philosophers of law. He is also influenced by Searle. But I have yet to discover this aspect of MacCormick’s theory examined in a textbook in this discipline. In fact, to be honest, though few textbooks would fail to mention MacCormick, fewer find space to discuss his views in any detail. Rather, he is mentioned somewhat as an aside in connection with another thinker, such as Hart. This fact alone ought to give us pause: that we do not treat those we regard as our most important thinkers as such. But the crucial point to be made here is that I think MacCormick is, as it were, the exception that proves the rule. He is a mainstream jurisprudent and his theory is influenced by Searle, but that aspect of his theory is at least largely ignored in accounts of what is central in this discipline. I am arguing that this ought to change. Second, though others have clearly been influenced by Searle, to my knowledge this is the first book in the philosophy of law that is true to Searle’s philosophical vision. Other theorists rely on Searle’s ideas to strengthen or to help make their arguments. But there is something crucial to Searle’s method that is missing from at least what I have read in this area. For Searle, the most fundamental human institution is language. It is fundamental in the sense that it is the key institution we use in order to create all social reality. His entire social theory is structured around this core insight. Moreover, Searle’s understanding of language is grounded in his understanding of intentionality. This is why Searle’s analysis of social ontology has the structure that it does: beginning with intentionality, moving to language and then on to institutions.10 Thus, a theory of law that is true to Searle’s philosophy must show law’s origin in intentionality and language. Not only this, it is crucial that the developed theory of law cohere with the accounts of social institutions, language and intentionality from which it arises, and the notion of coherence operating here is a strong one. The picture must, as it were, hang together; it must make sense as a whole. In particular, the understanding of law must flow from the prior analysis. I have not before seen a theory of this kind (apart from Searle’s own, which does not deal with law specifically in any detail). Of course, however, one can legitimately borrow from Searle whatever one finds useful and there is not much to be gained by holding up one’s philosophy JR Searle, Making the Social World.

10

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Law’s reality

as the most Searlean currently on paper. But the second point leads to the third, which is much more important. On the Searlean view, once you have analysed the things that need to be analysed before turning to law – most importantly intentionality, language and social institutions – the philosophy of law is all but done. Once we have social institutions, the law just pops out, as it were. Now, there will be much left to say about law – about particular legal systems, about the shape legal systems must have given certain facts about human physiology and psychology, and so on – but the philosophy of law as it is usually understood is done. It is time for sociology, anthropology, psychology, economics, ethics, political philosophy and the like, if not to take over, at least to collaborate strongly in the ongoing research project. So, we need to distinguish between being influenced by Searle and doing what I say I am doing, viz introducing into this discipline a foundation that exists in Searle’s social philosophy. Relatedly, this helps to explain why the analysis of law finishes as it does at the end of Part II. Why do I not continue, one might ask, to explore the implications of what I have said for the understanding of law? The answer is that – I think, though I am not entirely sure of this – there is nothing more to say. I explain why I think this in Chapter 8. Another point that needs to be raised in this context concerns the way in which Searle’s theory is treated here. It is presented largely uncritically in the second part of this book. This is not because there are no important criticisms of Searle’s view. To take just one example, Searle’s theory of social ontology has recently been challenged in important ways by Tony Lawson.11 But this is passed over in this book. This must be so if this is to be a book on the philosophy of law and not on social ontology, with perhaps a chapter or two at the end on law. The point is to reveal how jurisprudence might change if it begins with modern philosophy – rather than, say, beginning with the standard jurisprudential debates and utilising some of the tools of modern philosophy as one progresses. Naturally, plenty of room is left in the future for argument over whether the precise foundations of this project were the right ones. Searle’s theory is not presented as the last word in social philosophy. The question, rather, is what jurisprudence would look like if we allowed modern philosophy to have the first word. One further matter of importance falls out of these comments. The aim of the second part of this book is to provide a foundation for the science of law. I do not mean to suggest that this theory is ‘foundationalist’ in the philosophical sense of this term. It is not. What I mean is to say that this is not a science of law but a discussion of the logical structure of law, in the light of which T Lawson, The Nature of Social Reality: Issues in Social Ontology.

11

Introduction

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a science can proceed. This is another reason why this is not a version of legal positivism, which presents itself as a science of law. The view presented here holds that philosophy can provide an analysis of the logical structure of law, but then science – which will involve other disciplines – must take over. The book is divided into three parts. The first examines the way in which Hart set an agenda for future jurisprudence that has undermined its ability to elucidate the nature of law. It attempts to reset investigation in this area by identifying the central philosophical problem about the nature of law. The second part of the book provides an account of that nature. It does so by situating law as a social institution within the wider sphere of social reality. The third part of the book examines many of the questions one would normally associate with a work of jurisprudence. It shows how a proper understanding of the nature of law can be used to cut through many of the debates usually thought to characterise the topology of this subject, often revealing the truth that lies on both sides of the supposed divides. I would like to thank David Campbell for reading and commenting on an earlier draft of this book and for being a fantastic sounding board and critic for all my ideas. I am very grateful. Thanks also to the three anonymous reviewers for Edward Elgar. Naturally, I owe my largest debt to those who make dealing with academia, especially during its long decline, psychologically possible: Tana, Piri, Ineawa and my wonderful Cathryn. Finally, I would like to acknowledge my debt to my brother-in-law and great friend, Robert Whittaker.

PART I

The philosophy of law and jurisprudence

1. Jurisprudence 1.

HART’S AGENDA

At least in the English-speaking world, few would disagree that the central work in modern jurisprudence is HLA Hart’s The Concept of Law. The argument of the work has been so influential that it is probably true that most jurisprudents regard themselves as, to a greater or lesser degree, followers of Hart. It is also significant that many of The Concept of Law’s opponents took the argument of this book as their departure point, Ronald Dworkin’s Taking Rights Seriously being the most obvious example.1 Furthermore, even those who sought to construct theories independently of Hart’s work have found – often to their chagrin – that their views have been interpreted though the categories set out by Hart, and their complaint that this distorts their accounts appears to have fallen on mostly deaf ears. John Finnis is surely the leading example here.2 Because of this, we can safely say that The Concept of Law set the agenda for modern jurisprudence. What exactly was that agenda? Perhaps surprisingly, I think that this is not well understood. Hart’s agenda is spelled out for us in the first section of The Concept of Law, but it is not the one found in most textbook summaries of his views. It is worth spending the time to examine this. Here is the opening paragraph of the work. Few questions concerning human society have been asked with such persistence and answered by serious thinkers in so many diverse, strange, and even paradoxical ways as the question ‘What is law?’ Even if we confine our attention to the legal theory of the last 150 years and neglect classical and medieval speculation about the ‘nature’ of law, we shall find a situation not paralleled in any other subject systematically studied as a separate academic discipline. No vast literature is dedicated to answering the questions ‘What is chemistry?’ or ‘What is medicine?’, as it is to the question ‘What is law?’ A few lines on the opening page of an elementary textbook is all that the student of these sciences is asked to consider; and the answers he is

1 See especially R Dworkin, Taking Rights Seriously. See also R Dworkin, Law’s Empire. 2 See eg J Finnis, ‘Natural Law Theories’. This point is examined in Chapters 15–17.

2

Jurisprudence

3

given are of a very different kind from those tendered to the student of law. No one has thought it illuminating or important to insist that medicine is ‘what doctors do about illnesses’, or ‘a prediction of what doctors will do’, or to declare that what is ordinarily recognized as a characteristic, central part of chemistry, say the study of acids, is not really part of chemistry at all. Yet, in the case of law, things which at first sight look as strange as these have often been said, and not only said but urged with eloquence and passion, as if they were revelations of truths about law, long obscured by gross misrepresentations of its essential nature.3

Let us for the moment accept what we are being told: that the question ‘What is law?’ has been answered in strange and various ways and that there is something most unusual about this. Why, according to Hart, has this happened? It is not, Hart tells us, because the theorists in question were ignorant about the law or were idle dreamers. On the contrary, these bizarre answers were ‘the outcome of prolonged reflection on law made by men who were primarily lawyers, concerned professionally either to teach or practise law, and in some cases to administer it as judges’.4 What is more, Hart reminds us, neither these theorists nor anyone else has any difficulty pointing to examples of law and there is no great disagreement about what is law and what is not, though there may be some quibbling about precisely where the boundaries should be drawn.5 So what, then, is the source of all this strange disagreement? Hart provides an answer to this question, but he does something else first. This something is extremely important. Here is Brian Bix’s account of what that something is. In the first chapter of The Concept of Law, H.L.A. Hart considered the standard question of legal theory: ‘What is Law?’ Past theorists had given various answers to this question, from the mundane but unsatisfactory to the bizarre […] What may be most remarkable about Hart’s discussion is that he never directly answered the question he was considering. Instead, Hart’s discussion achieved something far more subtle. The question is not so much answered (or avoided or circumvented) as transformed. Hart’s argument is that when we ask this question, we are actually seeking the solution to an entirely different question or set of questions, and it is because we have been asking the wrong question(s) that the answers given have been so unsatisfactory.6

I have quoted Bix because he is unusually sensitive to the issues at play here. Nevertheless, in this passage, Bix is being overly generous. The passage accurately captures what must be true for Hart’s strategy to be successful; but

5 6 3 4

HLA Hart, The Concept of Law, 1. Ibid, 2. Ibid, 2–4. B Bix, Jurisprudence: Theory and Context, 5–6 (citations omitted).

4

Law’s reality

it does not accurately capture Hart’s argument. This is what Hart actually says. After dismissing what amounts to a kind of legal intuitionism, he tells us that: Plainly the best course is to defer giving any answer to the query ‘What is law?’ until we have found out what it is about law that has in fact puzzled those who have asked or attempted to answer it, even though their familiarity with the law and their ability to recognize examples are beyond question. What more do they want to know and why do they want to know it? To this question something like a general answer can be given. For there are certain recurrent main themes which have formed a constant focus of argument and counterargument about the nature of law, and provoked exaggerated and paradoxical assertions about law such as those we have already cited. Speculation about the nature of law has a long and complicated history; yet in retrospect it is apparent that it has centred almost continuously upon a few principal issues.7

Hart labels these the ‘three recurrent issues’: the relationship between law and obligation, between law and morality and between law and rules.8 Thus, we have what we might describe as the three recurrent questions: ‘What is the relationship between law and obligation, between law and morality and between law and rules?’ What I want to point out is that Hart’s position is this: (1) Past theorists have provided strange and various answers to the question ‘What is law?’ (2) The explanation for (1) is that past theorists were really concerned with the three recurrent questions. According to Bix, however, Hart’s conclusion is: (3) If we ask the question ‘What is law?’, then we are really concerned with the three recurrent questions. It should be noted, first, that Hart provides no evidence for (3) (or for (2), for that matter). Moreover, not only is there no argument for (3) in The Concept of Law, but Hart never actually advances (3). This might lead one to conclude that Bix misinterprets Hart. This would be too quick, however. Hart presents the argument in the passage quoted above as a justification for turning from the question ‘What is law?’ to the three recurrent questions. Neither (1) nor (2) would justify that move. In this regard, Bix’s intuitions are sound. Though (3) is not found in The Concept of Law, Hart needs it to justify his strategy. In other words, Hart’s argument is enthymematic and (3) is the missing premise



7 8

HLA Hart, The Concept of Law, 5–6. Ibid, 6–9.

Jurisprudence

5

helpfully supplied by Bix. The problem, though, is that there seems no reason to believe that (3) is true. It will be useful to interrogate Bix’s paragraph further. I need to draw attention to three points. According to Bix: (i) Hart never directly answers the question ‘What is law?’ (ii) Hart ‘transforms’ the question ‘What is law?’ into the three recurrent questions. (iii) Hart answers (whether correctly or not) the three recurrent questions. What, then, happens to the question ‘What is law?’ Note what Bix does not say. He does not say that Hart treats the three recurrent questions as preliminaries: questions that need to be answered before the headline question, ‘What is law?’, can be investigated. The headline question, we are told, is not postponed but transformed, never to be directly answered. In fact, Hart later speaks of ‘the three main issues which we have identified as underlying the recurrent question “What is law?”’,9 which indicates that his position is that the question ‘What is law?’ can be replaced by or reduced to the three recurrent questions. But can it? Let us spell this out clearly. Here are four questions. (1) (2) (3) (4)

What is law? What is the relationship between law and obligation? What is the relationship between law and morality? What is the relationship between law and rules?

The suggestion is that (2)–(4) can replace (1). But where is the argument for this astonishing claim? On the face of it, (1) looks to be a quite different question to the others, though no doubt there will be overlap. In this light, consider again the claim that Hart never directly answers the question ‘What is law?’. What does that mean? The claim is ambiguous. Compare, for instance, the assertion ‘It was clear that her answer to my question was not the one I wanted, though she was polite enough not to say so directly’ with ‘Typical politician; she refused to give me a direct answer to my question.’ In the first case, the answer to the question is clear, even though it is not stated explicitly. In the second case, there is no real answer, even though answers to other questions are given. Though the analogy is not exact, this is what modern philosophy of law is like. The classical positivists had a clear answer to the question ‘What is law?’ They told us that it was the command of the sovereign attached to a sanction. Unfortunately, that



9

Ibid, 16.

6

Law’s reality

turned out to be the wrong answer. But no less unfortunately, one will search modern positivism in vain for answers of even remotely similar lucidity. Of course, answers can be found. Hart tells us, for instance, that law is a system of rules – a notion that will be examined in detail in the third part of this book. Nevertheless, as these answers to the question ‘What is law?’ are produced not as such, but as answers to one or more of the three recurrent questions, we never get a complete, properly formed answer to our headline question. In this light, consider the following passage from the Stanford Encyclopaedia of Philosophy. The topic of the passage is legal positivism and not law itself, but of course legal positivism is meant to be a theory of law. We would expect, then, that the passage would define the theory in something like the following way: ‘Legal positivism is the theory according to which law is…’ Instead, however, we get this. Legal positivism is the thesis that the existence and content of law depends on social facts and not on its merits. The English jurist John Austin […] formulated it thus: ‘The existence of law is one thing; its merit and demerit another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry.’ The positivist thesis does not say that law’s merits are unintelligible, unimportant, or peripheral to the philosophy of law. It says that they do not determine whether laws or legal systems exist. Whether a society has a legal system depends on the presence of certain structures of governance, not on the extent to which it satisfies ideals of justice, democracy, or the rule of law. What laws are in force in that system depends on what social standards its officials recognize as authoritative; for example, legislative enactments, judicial decisions, or social customs. The fact that a policy would be just, wise, efficient, or prudent is never sufficient reason for thinking that it is actually the law, and the fact that it is unjust, unwise, inefficient or imprudent is never sufficient reason for doubting it. According to positivism, law is a matter of what has been posited (ordered, decided, practiced, tolerated, etc.); as we might say in a more modern idiom, positivism is the view that law is a social construction.10

On this perfectly accurate account of legal positivism, it is a theory of one of the recurrent issues. Though it purports to provide such, it is not an answer to the question ‘What is law?’ Just try it.

L Green, ‘Legal Positivism’ (citation omitted).

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Question: ‘What is law?’ Answer: ‘The existence and content of law depends on social facts and not on its merits.’ Question: ‘What is law?’ Answer: ‘The existence of law is one thing; its merit and demerit another.’ Question: ‘What is law?’ Answer: ‘Something that depends on the presence of certain structures of governance, not on the extent to which it satisfies ideals of justice, democracy, or the rule of law.’ Bix noticed something of great importance. Unfortunately, however, he refused to allow himself fully to see it. It is that Hart presented himself as providing a theory of a kind that he never really tried to provide. In fact, Hart portrayed himself as providing a theory of a subject matter that, in reality, he sought to replace by a theory of a different subject matter. As simply as I can put it: though Hart represented himself as elucidating the subject, he changed the subject. As a result, though jurisprudence is convinced that it is concerned with the ontology of law, it is only peripherally so and it is not at all clear what it is actually concerned with, though that something is surely related to ontology in ways that are not obvious.11 It is important to say that I am not claiming any special status for ontology. I am not claiming that ontology is more important than other kinds of enquiry. Nor I am denying that Hart and others have done a great deal to illuminate the law, including its ontology. The problem is that much jurisprudence presents as if it were ontological when it only skirts around the ontology of law. We are learning when we read this material, but it is often not clear precisely what it is that we are learning about. We can summarise this by saying that jurisprudence is quasi-ontological. The quasi-ontological character of much jurisprudential enquiry into law is, I think, the core problem in this area. It generates three important symptoms.12

11 This may be changing, however. For instance, some of the essays in the collection L Burazin, KE Himma and C Roversi (eds), Law as an Artifact investigate the ontology of law. That said, it ought to be noted that, despite the fact that a focus on ontology was almost forced on the authors as a result of the book’s theme, it is still true that many of the essays ignore ontology and continue in Hart’s vein. 12 In fact, I think it generates four symptoms, the fourth being that the point of jurisprudence is obscure. This is because it presents as being about the question ‘What is law?’ when it is not. That this is true seems to me to be confirmed by generations of

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These are that jurisprudence is insular, antiquated and incestuous. I outline each of these in turn.

2.

THREE COMPLAINTS

2.1 Insular As is well known, Hart was influenced by the philosopher JL Austin. This influence was largely methodological, a fact to be expected given the nature of Austin’s theory, it being a theory of language and not of human institutions.13 This background aside, though it is seldom remarked on, we should be astonished by the fact that The Concept of Law is almost entirely void of philosophy, or any kind of theory, other than the philosophy of law. In particular, there is almost no social or moral philosophy in The Concept of Law. There are exceptions to this, but these are, as it were, exceptions that prove the rule. For instance, Hart examines issues of morality in the eighth and ninth chapters of The Concept of Law, but one could hardly describe this as a sustained engagement with the philosophical tradition. Almost no social or moral philosophy is mentioned. It is presented as if Hart were inventing this material from scratch. Consider also Hart’s rejection of the Kantian distinction between the juridical and the ethical in the eighth chapter of his book.14 Though it is clear to those who know Kant who Hart’s target is, Hart’s dismissal does not even mention this target by name and the argument is quite inadequate to defeat the position at which it is directed, not least because it ignores all the reasons Kant had for positing it. And yet, though Hart was surely aware that he was addressing the theory of what most philosophers, including this one, would regard as the greatest philosopher in history (and a man apparently much admired by his teacher15), one paragraph was felt to be sufficient. For Hart, though jurisprudence could of course learn much from outside, it was clearly a subject all to itself. Most philosophers of law have followed Hart in this. Note that the claim is not that they are ignorant of philosophy, but rather that general philosophy plays little role in their theories of law. Reflecting this, my guess is that most courses on this subject are taught in law schools by people who would ordiunsatisfied students of this subject, though it is difficult to argue this in a context such as this one. 13 Of course, though, language is a human institution. 14 HLA Hart, The Concept of Law, 172–3. I Kant, ‘The Metaphysics of Morals’, 6:218–21. 15 Witness, for instance, the numerous positive comments about Kant in JL Austin, How to Do Things with Words.

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narily regard themselves as lawyers rather than as philosophers. And in most works of legal philosophy, general philosophy makes no appearance beyond the occasional footnote. The relevant chapters of the encyclopaedic Lloyd’s Introduction to Jurisprudence, for example, contain almost no philosophy other than the philosophy of law – though natural law theory is a commendable exception to this;16 indeed, this is one of the great contributions of natural law theory to jurisprudence. Generally speaking, then, jurisprudence is its own place.17 I do not wish to suggest that jurisprudence should be the domain of philosophers only. On the contrary, one of the great strengths of this discipline is that it is informed by those who are experts in the phenomena about which they are philosophising. But what is odd about this is how little philosophy outside the writings of philosophers of law a jurisprudent is expected to master or even be familiar with. If asked to name the philosophers who have influenced them the most, I suspect that most philosophers of law would list only other philosophers of law. This is strange, because law is not sui generis in the way that this state of affairs would intimate. Law is, in fact, a pretty ordinary part of human social life. It is a social institution, different from others, but having much in common with others also. The study of the nature of law is just a part of the study of the nature of human society. It is evidence of a serious wrong turning in the history of this subject that it is not treated in this way.18 The tendency to treat law as sui generis can also be located in John Austin. Austin’s strategy is to understand law by working out how to distinguish it from other phenomena.19 This kind of enquiry has an illustrious pedigree that can be traced to Plato and is certainly valuable. We should recognise its limitations, however. If we have a list of features that we can use to distinguish one kind of object from all other kinds, that list is likely to be useful, but the list might not be especially informative about the objects in question.20 For instance, I may develop a keen interest in Mozart’s Sinfonia Concertante for 16 M Freeman, Lloyd’s Introduction to Jurisprudence. For the record, I take the relevant chapters to be chapters 1, 3–5, 7, 9–10. The other chapters deal with matters related to but not belonging to the philosophy of law as that term is usually understood. For instance, chapter 12 deals with Marxism, but few would think of Marxism as a philosophy of law rather than as a philosophy that applies to law. 17 For a completely different view of this, see R Cotterrell, The Politics of Jurisprudence, 4. I think that the evidence since the 1970s has been very much against Cotterrell on this point. 18 The social/political reasons for this are examined in ibid, chs 3–4. Those reasons are, of course, not relevant here. 19 J Austin, The Province of Jurisprudence Determined, Lecture 1. 20 See also J Raz, Between Authority and Interpretation, 56.

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Violin, Viola and Orchestra in E-flat major (K 364 (320d)) and want to understand ‘the nature of this work’. How to distinguish it from all other concertos is only one small part of what I need to know. In fact, without understanding at least something about the genus, in fact the genera, to which this work belongs, I could learn little about it. If someone who knew little about such music were to ask me about ‘the nature’ of this work, my first step would be to teach them about sonata form, for instance, something that this work shares with many others. Distinguishing, in other words, is only part of understanding, and sometimes a quite unimportant part. To understand law, we need to comprehend the genus or genera to which it belongs. This means that we have to understand human institutional reality and the law’s place within it. It is especially ironic to note that positivists such as Hart, who can be counted on to accept that law is a social institution, do not study it in this way. It is also ironic that what Barry Smith has called ‘certainly the most impressive theory of the ontology of social reality that we have’21 is the product of another student of JL Austin’s, John Searle, though this has made little impact on jurisprudence (as I am using this term). Law is not sui generis. It is a human institution. It needs to be studied as such.22 Why is jurisprudence insular in this way? Though it is impossible to be sure and though there are certain to be many reasons, one likely reason is that jurisprudence has difficulty borrowing from other disciplines because it is so unclear what its discipline actually is. Even if one is told that a hammer is a tool for banging in nails and a screwdriver is a tool for driving screws, one is in the dark as to which to use if one is not sure whether the object in one’s hand is a nail or a screw. For that reason also, in this situation one may stick with the old tools one has and has grown comfortable with, rather than reaching for the latest and most efficient equipment. That brings us to the second complaint. 2.2 Antiquated Recall Hart’s beginning. He notes that jurisprudence seems to be stuck in a rut. He suggests that we need to try something new. And then he reverts to the three recurrent questions that he insists have been asked for centuries.

B Smith, ‘From Speech to Social Reality’, 16. If this appears to be a flat-out rejection of natural law theory, I trust that Chapters 15–17 will show that this appearance is mistaken. Also, it should be said that our concern is with the phenomena that we now use the word ‘law’ to denote. It is not with the meaning of the word itself. It may be, for instance, that ‘law’ and the like was used in the Middle Ages to mean something quite different to the phenomena investigated here. It may be used to mean something quite different in the future. 21 22

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It is perhaps fair to say that modern jurisprudence began with John Austin’s The Province of Jurisprudence Determined.23 It is a shame that so few become acquainted with this book at first hand. One reason for this is because, though it is hardly the most exciting book – even law book – that one might read, it is clear that its author was very excited. Austin’s work attempts to do far more than provide the analysis of law presented in today’s textbooks as a target for Hart’s attack on it.24 Austin was clearly fired by his encounter with utilitarianism, the leading philosophical movement of his place and time. His analysis is designed to allow the penetration of this thought into the legal world. He presents his view as riding the wave of cutting-edge scientific thought, aimed at sweeping away the detritus of ancient and outdated notions about law which are certain, if not eliminated, to retard the law’s necessary reform.25 This sense of the avant-garde is all but entirely missing from modern jurisprudence. In fact, this is to put it far too kindly. Few would disagree that at least four of the major figures in contemporary jurisprudence are Hart, Kelsen, Dworkin and Finnis. The work of Kelsen and Finnis fairly revels in antiquated origins: Kelsen’s in nineteenth and early twentieth-century neo-Kantianism (though in fairness to Kelsen, this was not antiquated when Kelsen began theorising) and Finnis’ in the thought of the great thirteenth-century scholar St Thomas Aquinas. Moreover, there is no real evidence in Dworkin of any relevant modern philosophical influence. Dworkin was, of course, influenced by John Rawls’ political philosophy, but that does not appear to be closely related to the theory of law Dworkin produced. Moreover, it is important to consider that the kind of philosophy with which Hart is associated – ordinary language philosophy – has not stood the test of time. As François Recanati has said, this form of philosophy ‘has suffered a spectacular loss of influence over the last thirty years [that is, since the 1970s] and is nowadays little more than an object of scorn and caricature’.26 What is utterly remarkable about this is that this rejection of the background to Hart’s philosophical project has had so little influence on jurisprudence. My J Austin, The Province of Jurisprudence Determined. For the notion that Hart significantly misrepresents Austin, see, eg, WL Morrison, John Austin, 170–7. 25 This thought is brilliantly developed in M Stone, ‘Legal Positivism as an Idea about Morality’. 26 F Recanati, ‘The Limits of Expressibility’, 189. For the record, the notion that has lost influence is the idea that philosophical problems – such as problems about the nature of law – can be solved by observing the way in which language is ordinarily used. This must be distinguished from the idea that this method is useful for understanding the nature of language itself. Thus, the work of ordinary language philosophers in linguistic philosophy remains important, even if it is still true to say that it does not sit in the mainstream of modern philosophical thought. 23 24

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suggestion, of course, is that this is no accident. Jurisprudence is stuck with an antiquated methodology because only that methodology is serviceable to a discipline that is determined to ask the questions raised to prominence by Hart’s agenda. Or, to put this more positively, if we adopted modern philosophical methods, we could not keep having the debates that characterise today’s jurisprudence. We would move on. 2.3 Incestuous Imagine a follower of Hart’s who decided to focus her jurisprudence course on that theorist. ‘No point in bothering with Bentham and Austin’, she thinks. ‘Time is of the essence. Get straight to the point.’ She begins her first class by saying: ‘Hart had two great insights about law. The first is that law is a system of rules. The second is that laws can be immoral.’ How might her students respond to this? Would they regard these as great insights? Would these ideas be news to any of them? Now, of course, there is more to Hart’s theory than these two claims, but it will be useful to think about how this discipline introduces what are really platitudes to its students. Take the claim that law is a system of rules. Instead of simply presenting this perfectly ordinary idea, what we actually do is begin instead with Bentham’s and Austin’s theories (or, actually, as we will see, caricatures of them) and introduce the notion as part of Hart’s response to these thinkers. This is very curious. Let me take three examples of this. Let us start again with Bix. Under the heading ‘Summary of Hart’s Position’, Bix begins by saying that ‘At the time that H. L. A. Hart […] began forming his legal theory, an influential view within the legal theory literature was that law was best understood as the command of a sovereign to its subjects. Hart’s approach to legal theory can be seen as a reaction to the command theory.’27 Bix then goes on to summarise the command theory – that is, the theory of Bentham and Austin – and then presents Hart’s response to it. Nigel Simmonds begins by outlining Hart’s importance and then, when he turns to examine the content of Hart’s position, says that ‘Legal positivism emerged in its modern dress in the work of Jeremy Bentham and his disciple John Austin.’28 He then describes the views of these thinkers, before turning to Hart’s responses. Not to be outdone in this regard, James Penner and Emmanuel Melissaris spread this discussion over three chapters, the first dealing with Bentham and Austin’s theory, the second with Hart’s response to it and the third with Hart’s

B Bix, Jurisprudence: Theory and Context, 37. NE Simmonds, Central Issues in Jurisprudence, 145.

27 28

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positive theory.29 I am not in any way criticising these authors. As is fitting in a textbook, they present the historical development of this subject and do so in accordance with the way in which this discipline perceives the significance of this material. But we should also reflect on the fact that we seem to have great difficulty presenting Hart’s view for itself, rather than as a reaction to what went before it. We have to summarise Hart by talking first about Bentham. Why is this? It is sometimes necessary to approach a theorist in this way because her starting point will seem strangely counterintuitive without an understanding of what went before; and that can be the case even for deeply insightful theories. But that is not the case here. Surely, Hart’s starting point is the two platitudes given above: that law is a system of rules and that laws can be immoral. Why can’t we just start here? Although it is very uncomfortable to say this, I am forced to the conclusion that we do not do this because, if we did, then Hart’s theory and the discipline associated with it would seem much less profound than we want to believe it is. This is only reinforced by the fact that, as we will see in the third part of this book, Hart’s platitudes were in fact accepted by the theories he sought to reject. Specifically, the classical legal positivists were well aware that law was a system of rules and natural law theorists knew full well that laws could be immoral. At the very least, we can say that jurisprudence reveals an arresting refusal to learn and move on. It seems, rather, to be fascinated with the disputes that have occurred within it. Hence, it is no surprise to find that a book entitled Great Debates in Jurisprudence is intended by its authors not merely as a discussion of the history of this subject, but as an introduction to its content.30 This is certainly a worthwhile book, but the danger is that a discipline with this focus will lose its way. Think of it like this: If jurisprudence is not about answering the question ‘What is law?’, then what is it about? The unfortunate answer is that, all too often, jurisprudence is about itself. Too often, jurisprudence is not about law but about the great debates in jurisprudence. Consider, for instance, the following description of Dworkin’s progress as a theorist. As is well known, Dworkin first presented an account of law that was meant to contrast with Hart’s in (or reprinted in) Taking Rights Seriously, and modified his view somewhat in Law’s Empire. It is sometimes suggested that the attack on Hart in Taking Rights Seriously failed. It […] seems that the first round of Dworkin’s attack on positivism [in Taking Rights Seriously] partially misfired: for it is not clear that his claims are really inconsistent JE Penner and E Melissaris, McCoubrey & White’s Textbook on Jurisprudence, chs 3–5. 30 NJ McBride and S Steel, Great Debates in Jurisprudence. 29

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with legal positivism as conceived by Hart. […] Dworkin’s response to this misfire was to deepen the nature and focus of his attack. This he did [in] his book Law’s Empire.31

This, I think, is a perfectly accurate summary by a sympathetic, meticulously careful and scrupulously fair scholar, but note how it reveals the true focus of the enquiry. In the same vein, consider the same author’s observation that ‘When [Dworkin’s] Law’s Empire was first published, one came across many people who were inclined to dismiss the book’s argument by suggesting that it did not really contradict Hart’s theory at all.’32 What is the focus here? Surely, the issue ought not to be Dworkin’s position vis-à-vis Hart, but whether the theory advanced in Taking Rights Seriously and Law’s Empire provides an informative account of the law. Simmonds goes on to say: ‘Suppose that we accept Dworkin’s account of Riggs v Palmer. What does this have to do with legal positivism?’33 Why should that be the question? We are then told that it is not enough to show that Dworkin reveals the existence of something that Hart ignores, because ‘that does not show that [this thing is] in any way inconsistent with [Hart’s] theory. Why shouldn’t we treat Dworkin as simply making a useful addition to Hart’s theory?’34 Why indeed? There are two points that need to be stressed here. First, it is not questioned that Dworkin’s argument in Taking Rights Seriously and Law’s Empire reveals lacunae in Hart’s theory. Second, despite this, the attitude is that Dworkin’s contribution should be described as a failure unless it defeats Hart’s theory. There is no way a theorist as sophisticated as Simmonds would advance this view were it not embedded in the discipline. It is, after all, forcefully promoted by Dworkin himself. It is not that modern jurisprudence fails entirely to connect with the phenomenon that it is meant to be analysing; it is that its focus is in the wrong place. When a jurisprudent sits down to write on the philosophy of law, her focus is almost certainly to be on the ideas of some individual or individuals: Hart, Dworkin, Raz, Bentham, whoever. She is not likely to be thinking about the law. In short, jurisprudence is about Hart, Dworkin, Raz, Bentham and the rest. It is not about the law. Naturally, put starkly like that, the point is exaggerated, but the general claim will be made good in this book. There are big names in analytic philosophy. One might think of Gottlob Frege and Bertrand Russell in this context, for example. But analytic philosophy was never a philosophy of big names. Frege and Russell are still studied, NE Simmonds, Central Issues in Jurisprudence, 209. Ibid, 215. 33 Ibid, 202. 34 Ibid. 31 32

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but they are not the suns around which analytic philosophy revolves. This is because analytic philosophy is about its subject matter and not about its leading thinkers. But jurisprudence is a philosophy of big names. The relevant chapters in Brian Bix’s judicious and easily recommended Jurisprudence: Theory and Context are entitled ‘H.L.A. Hart and Legal Positivism’, ‘Hans Kelsen’s Pure Theory of Law’, ‘Natural Law Theory and John Finnis’, ‘Understanding Lon Fuller’ and ‘Ronald Dworkin’s Interpretive Approach’.35 Similarly, the relevant chapters in McCoubrey & White’s Textbook on Jurisprudence are labelled ‘Natural Law’ (which focuses, inter alia, on Finnis), ‘Classical Legal Positivism: Bentham, Austin, and Kelsen’, ‘Hart: The Critical Project’, ‘Hart’s Theory of Law’ and ‘Post-Hart Analytical Philosophy of Law: Dworkin and Raz’,36 and those in Simmonds’ Central Issues in Jurisprudence as ‘Finnis on Objective Goods’, ‘Hart’, ‘Dworkin’ and ‘Fuller’.37 Furthermore, the leading jurisprudential theory, positivism, is not an amalgam of ideas contributed by dozens of thinkers over many years. It is the theory of the great HLA Hart and his followers. This is not the sign of a healthy discipline. It is a sign of a discipline that has become primarily about itself.

B Bix, Jurisprudence: Theory and Context. JE Penner and E Melissaris, McCoubrey & White’s Textbook on Jurisprudence. 37 NE Simmonds, Central Issues in Jurisprudence. 35 36

2. Philosophy 1.

WHY HAVE A PHILOSOPHY OF LAW?

If we stop to think about it, we ought to see that there is no obvious reason to believe that law must be philosophically interesting. Law, of course, is interesting, but many things are interesting without being philosophically interesting. Naturally, the philosophy of law has a prestigious history, reaching back to ancient Greece. But that is not enough to justify the continued existence of this subject. Philosophical subjects can die. No philosophers today are engaged with the proto-scientific concerns that drove the Presocratics, for example. Perhaps, then, what Hart did in the opening pages of The Concept of Law was to reanimate a corpse best left underground. If this is not so, then why is it not so? To put this positively: What is the mystery about law that the philosophy of law is meant to solve? Surely, it is not the connection between law and morality. As we saw in the previous chapter, it is obvious that there are many connections and disconnections between law and morality, as there are many connections and disconnections between morality and other phenomena, such as cooking, teaching and writing books. Investigating these connections and disconnections might be philosophically interesting, but there seems to be no great philosophical mystery here. What might that be, then? I want to approach this issue by looking first at a parallel discipline: the philosophy of art. Consider these opening paragraphs of Arthur Danto’s great work in this area, The Transfiguration of the Commonplace. Let us consider a painting once described by the Danish wit, Sören Kierkegaard. It was a painting of the Israelites crossing the Red Sea. Looking at it, one would have seen something very different from what a painting with that subject would have led one to expect, were one to imagine, for example, what an artist like Poussin or Altdoerfer would have painted: troops of people, in various postures of panic, bearing the burdens of their dislocated lives, and in the distance the horsed might of the Egyptian forces bearing down. Here, instead, was a square of red paint, the artist explaining that ‘The Israelites had already crossed over, and the Egyptians were drowned.’ Kierkegaard comments that the result of his life is like that painting. All the spiritual turmoil, the father cursing God on the heath, the rupture with Regina Olsen, the inner search for Christian meaning, the sustained polemics of an agonized 16

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soul, meld in the end, as in the echoes of the Marabar Caves, into ‘a mood, a single color.’ So next to Kierkegaard’s described painting let us place another, exactly like it, this one, let us suppose, by a Danish portraitist who, with immense psychological penetration, has produced a work called ‘Kierkegaard’s Mood.’ And let us, in this vein, imagine a whole set of red rectangles, one next to the other. Beside these two, and resembling each as much as they resemble one another (exactly), we shall place ‘Red Square,’ a clever bit of Moscow landscape. Our next work is a minimalist exemplar of geometrical art which, as it happens, has the same title, ‘Red Square.’ Now comes ‘Nirvana.’ It is a metaphysical painting based on the artist’s knowledge that the Nirvanic and Samsara orders are identical, and that the Samsara world is fondly called the Red Dust by its deprecators. Now we must have a still-life executed by an embittered disciple of Matisse, called ‘Red Table Cloth’; we may allow the paint to be somewhat more thinly applied in this case. Our next object is not really an artwork, merely a canvas grounded in red lead, upon which, had he lived to execute it, Giorgione would have painted his unrealized masterwork ‘Conversazione Sacra.’ It is a red surface which, though hardly an artwork, is not without art-historical interest, since Giorgione himself laid the ground on it. Finally, I shall place a surface painted, though not grounded, in red lead: a mere artefact I exhibit as something whose philosophical interest consists solely in the fact that it is not a work of art […] it is just a thing, with paint on it.1

What is Danto doing here? The answer is that he is impressing on his readers the mystery that his book aims to solve. This mystery is the nature of art: specifically that, though we ordinarily think that the essence of an artwork lies in its perceptual properties, this must in an important way be false, as neither the distinction between artworks and non-artworks, nor the identity and content of artworks themselves, is determined entirely by their perceptual properties. He makes this point in his own inimitable way. This completes my exhibition. The catalogue for it, which is in full color, would be monotonous, since everything illustrated looks the same as everything else, even though the reproductions are of paintings that belong to such diverse genres as historical painting, psychological portraiture, landscape, geometrical abstraction, religious art, and still-life. It also contains pictures of something from the workshop of Giorgione, as well as of something that is a mere thing, with no pretense whatsoever to the exalted status of art.2

And then he rubs the point in further. It is what he terms the ‘rank injustice’ in according the classy term work of art to most of the displayed items in my exhibit, while withholding it from an object that resembles them in every visible particular, which outrages a visitor, a sullen



1 2

AC Danto, The Transfiguration of the Commonplace, 1–2. Ibid, 2.

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young artist with egalitarian attitudes, whom I shall call J. Seething with a kind of political rage, J paints up a work that resembles my mere rectangle of red paint and, insisting that his is a work of art, demands that I include it in my show, which I am happy enough to do. It is not one of J’s major efforts, but I hang it nevertheless. It is, I tell him, rather empty, as indeed it is, compared with the narrative richness of ‘The Israelites Crossing the Red Sea’ or the impressive depth of ‘Nirvana,’ not to mention ‘The Legend of the True Cross’ by Piero della Francesca or Giorgione’s ‘La Tempesta.’ […] Yet the painting is not empty in anything like the way that mere expanse of red-painted canvas is, which is not even empty as a blank page might be, for it is not plain that it awaits an inscription, any more than a wall of mine might were I to paint it red.3

Danto uses this discussion in many ways, and we will return to it frequently in the following. One way in which it is useful is that it helps Danto to answer his question: Why is art philosophically interesting? His answer turns on a piece of speculation about the nature of philosophy. For us (as, indeed, for Danto), it does not matter whether this speculation is correct. It matters only whether it sheds light on the nature of philosophical enquiry into law. This is Danto’s suggestion. My thought is that philosophy begins to arise only when the society within which it arises achieves a concept of reality. To be sure, any group of persons, any culture, acquires some set of concepts or beliefs that defines reality for it, but that is not the same as saying that they have a concept of reality: that can happen only when a contrast is available between reality and something else – appearance, illusion, representation, art – which sets reality off in a total way and puts it at a distance. For me, in many ways the paradigm of a philosophical theory is what we find in [Wittgenstein’s] Tractatus, where a contrast is drawn between the world, on the one side, and its mirror image in discourse on the other […] It is a theory full of problems and obscurities as set forth by Wittgenstein, but I am interested in enlisting it solely as the form of a philosophical theory, all the more because what is philosophical about it is the picture it presents of the relationship between language and the world, a relationship that cannot somehow be represented in the language the theory itself speaks of. That language for Wittgenstein is the ‘total natural science’ and philosophy is not in any respect part of that: it mirrors no facts, for there are in the world no philosophical facts, and its propositions accordingly do not attach to the world the way the propositions of science do; they describe no part of the world, hence no singularly arcane part of the world. The language characterized in the Tractatus has no room for the propositions of the Tractatus itself. Indeed, relative to that language, relative to the ‘total natural science,’ philosophical propositions are inscrutable; they cannot be replaced by sentences in the language. Hence, relative to that language, the propositions of philosophy are such that they cannot be spoken, and hence we must consign ourselves to silence. They are unutterable. Were we to speak the tractarian idiom solely, we should be able to represent the whole of reality without being able to represent reality as a whole. For that we would have to

Ibid.

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take a position outside the language and talk about the language and the world; and the tractarian proposition allows us only to speak about the world but never as the world. The representation of reality in cultures that had no philosophy at all would be: the tractarian language, purged to be sure of its somewhat dotty semantics. Its members could certainly represent the world, could certainly have something of a natural science. But not a philosophy, since it requires some way of putting reality at a distance in order to have that, and hence an opening up of some gap bounded on one side by reality and on the other by something else that contrasts in a global way with reality. It is a curious fact that though there has been no culture without some kind of science, philosophy has arisen only twice in the world, once in India and once in Greece, civilizations both obsessed with a contrast between appearance and reality.4

So, what does this tell us about art and the philosophy of art? With a wonderful and entirely unintended synergy with our investigation, Danto goes on to quote JL Austin in this connection. If there is to be communication at all, there must be a stock of symbols of some kind […] and these can be called the ‘words,’ though of course they need not be anything very like what we should normally call words – they might be signal flags, etc. There must also be something other than the words, which the words are used to communicate about: this may be called ‘the world.’ There is no reason why the world should not include the words, in every sense except the sense of the actual statement itself which on any particular occasion is being made about the world.5

Recall the paintings ‘The Israelites Crossing the Red Sea’ and ‘Kierkegaard’s Mood’, the grounded canvas Giorgione would have painted and the ‘just a thing, with paint on it’.6 Recall that each of these is perceptually indistinguishable. What distinguishes them, then? To use Austin’s language, the last two objects belong to ‘the world’; the first two objects, on the other hand, though they also belong to ‘the world’, are ‘words’. Moreover, each of those objects is a different ‘word’. Danto says that the last two objects are ‘mere real things’. The first two are also real, of course, but they are not merely real. They are also about ‘the world’ and they are about the world in different ways. This is ontology. What Danto is showing is that, like language, art has a curious ontological status in that it both belongs to the world and is separate from it, being about the world in a way that the world could never be about itself. Thus, as Danto says (poking fun at Sartre), ‘Being and Nothingness cannot exhaust the metaphysical plane if works of art are to have a locus on Ibid, 78–9. Note that it is one thing to say that a particular culture has a philosophy and quite another to say that it has philosophy. In the rush to political correctness, it is easy to overlook this distinction. 5 JL Austin, Philosophical Papers, 55. 6 AC Danto, The Transfiguration of the Commonplace, 1–2. 4

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it.’7 And what has this to do with law? Law also has a curious ontology. It belongs to the world, but it is also about the world. It is real and it isn’t. It is being and nothingness. It does not occupy the same ontological space as trees, mountains, rocks and water. Rather, it occupies the same ontological space as appearances, illusions, representations, artworks and signal flags. This is why the question ‘What is law?’ is philosophically interesting. Law is a ‘word’. It is a symbol. It is also a ‘word’ made up of other words. What is this symbol and how does it work? This is the deep philosophical question about the nature of law. Let us sharpen our question a little by enquiring into some specific aspects of this general question. Law is an objective phenomenon. That is how we treat it. We say things such as ‘The law of this jurisdiction is…’ But how can this be true? Law, it seems, cannot be objective. Positivists sometimes say that the law is found in the sources of law, and this can suggest that the law is found in things such as the published law reports or consolidated statutes. That, however, is clearly wrong. If human beings were wiped out tomorrow by a killer virus, the law would cease to exist despite the fact that these books would remain. In fact, things are even more fragile than this. If some pulse of electromagnetic radiation from the sun were to result in a collective loss of memory, then law would also cease to exist despite the fact that our books and ourselves would still be here. This is to say that law has a subjective ontology. To put it as simply as possible, it exists only because we think it exists. But if that is so, then how can it be studied objectively? If a student in my class were to say ‘Well, you all say that the law is such and such, but I want it to be so and so and I am going to believe that it is so and so’, we might think that she had gone mad; but if the law exists only because we think it exists, then why is her position impermissible? If the law is all just made up, then is not all of it – all the study, all the qualifications, all the gowns and wigs, gavels and courts, all the money and power and pretentiousness – a charade? We all know that the law is made up and we all know that the law is real. But how can the law, or anything, be made up and real? This is the first mystery that the philosophy of law ought to solve. Let us make this problem more concrete. Take a simple example: the passing of an Act of Parliament. Though it can be somewhat difficult to describe definitively, we know what is required to pass a law of this kind. In New Zealand, a vote is taken in the House of Commons. If the vote is in favour of a Bill becoming law then it becomes law when it receives royal assent, that is, when the Governor-General signs. End of story? Not so fast.

7

AC Danto, The Philosophical Disenfranchisement of Art, 26.

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Though we are all aware of these procedures, there are philosophical questions here that we need to confront. Here are some. Why does anyone care about what this cantankerous group of opinionated, self-important mediocrities in Wellington do? Why do we pay any attention? If I get a group of people to perform these actions at my house in Auckland, no one will care, unless it just amuses them, even if my houseguests are far more intelligent and reasonable than is the crowd in Wellington, as is not unlikely. How do those people in Wellington get away with it? There are some people who even train for a career that involves wearing an odd blue uniform and walking the streets enforcing some of the rules created by those strange people in Wellington. They dedicate their whole working life to this. Why on earth do they do that? There is another group of people who, in my country, put on dour gowns and funny wigs and sit in stuffy rooms telling people whether they have or have not violated the rules, some of which are created by the crowd in Wellington just discussed but some of which are created by themselves. By themselves, for goodness’ sake! Some of these people take themselves very seriously indeed. When they visit universities, they are often treated as celebrities and fawned over by sycophantic law professors. I have known some of them to invite themselves to major international conferences and yet publicly berate their hosts when they arrive because some aspect of the conference is not in accordance with their political preferences; and yet they are still invited back. It has become standard in our law schools to present these people to students, and increasingly to ourselves, as if they were intellectual and moral giants. Why do we behave this way when they are just ordinary human beings? What is going on?8 (At this point, one A reviewer of a draft of this work took this passage to reveal my despite of judges. Because of this, I should say for the record: most judges that I have met are intelligent, thoughtful, considerate and modest people who it has been my pleasure to get to know. There are also parts of the world in which judges, on the whole, are in fact typically of this type. These parts of the world are collectively called Canada. Were the rest of the world like Canada in this regard. That said, I think it clear that, at least in the jurisdictions with which I am familiar, academics have developed an extraordinarily deferential attitude to judges. I would argue also that this is worsening. (In this regard, note that I was not accused of despising Members of Parliament, though I called them a crowd of self-opinionated mediocrities. That, apparently, was not worth noticing.) I am convinced that this attitude is morally inappropriate, inconsistent with the academic’s role as critic and with the respect that she owes to her own discipline (which is not the law as practised, but the academic study of law). This is only made worse when the attitude is passed on as an expectation to her students. What is really significant in this context, though, is simply to notice that we do this. I have seen colleagues go from being treated as mates to being near celebrities from one week to the next as a result of judicial appointment, when nothing has changed except their status function, a status that we often fail to recognise that we are creating. Moreover, I hope it evident that the passage is to be taken light-heartedly, even 8

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will recognise that the questions I have been asking here are fragments of the larger question: How can the law be made up and real?) Philosophical insight is often the result of allowing oneself to be astonished by what an ordinary, sane person simply takes for granted. Ordinary, sane people simply take this stuff for granted. Philosophers should allow themselves to be extraordinary, even if that means being a little insane – or at least appearing so to those whose behaviour now shows up as itself of questionable rationality. One of the most amazing facts about law is that people make it. Other animals do not and they seem to get on fine without it. And we do not have to do it. It is not like breathing, drinking or eating. How and why do we do it? Another amazing fact is that people care about law. People care about it so much that they even obey it. They may obey it even when they think that it is wrong and even when they could get away with disobeying it. What would possess someone to do that? These are among the fundamental questions of jurisprudence. (Note what I am not asking here. I am not asking moral questions. I am not asking why people ought to obey the law even when it is wrong. I am asking why they actually do. The answer to this question cannot be found in traditional political or legal philosophy. Hobbes, say, may be right that it is in everybody’s self-interest to enter the social contract, but I am as sure as I can be that this is not the general motivation people have to obey the law.)

2.

ONTOLOGICAL INVESTIGATION: SOME MISCELLANEOUS POINTS

Though it is the role of the third part of this book to investigate some of the specific claims that have been made in jurisprudence, it is useful at this point to consider some matters that relate closely to the issues we have been discussing. Let us begin with this passage from Simmonds. Consider the comparison between laws and human artefacts such as spoons and chairs. We do not have one set of criteria for deciding whether something counts as a spoon and another set for deciding whether it is a good or a bad spoon. In both cases, the test is a purposive one. We understand what spoons are only by reference to their purpose. […] A spoon that serves its purpose well is a good spoon. A spoon that serves its purpose badly is a bad spoon. At some point, the ‘spoon’ may perform so badly that we would refuse to describe it as a spoon at all […] Why should legal systems be

if it makes a serious point. That is not to criticise judges but to get us to introspect on our own behaviour.

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different? Why should we have one set of standards for deciding if something is a legal system, and another for deciding if it is a good legal system? We might think that positivist accounts of the nature of a legal system resemble the ‘formal’ description of a chair. In both cases, the element of purpose seems to be studiously neglected; and in both cases, the formal regularities exist for description only by virtue of the purpose that renders those formal features intelligible.9

Simmonds accepts that this argument against positivism is a little too quick, but we need to focus on other matters now. The first thing to notice is that entities (to use the term as neutrally as possible) can have more than one ontology. In a sense, of course, ‘The Israelites Crossing the Red Sea’ is a mere real thing. It is a physical object just as Giorgione’s unused canvas is. Danto is of course not denying this. His point is that this is not what the entity is qua artwork. Qua physical object, it is as much part of ‘the world’ as Giorgione’s canvas, but qua artwork, it belongs to a different ontological realm altogether. Spoons and chairs also possess a dual ontology. At one level, they are simply physical objects with no function at all. After all, they are merely collections of atoms. But at another level, qua spoons and chairs, they are functional. This is why we cannot say that ‘We understand what spoons are only by reference to their purpose’ (emphasis added). That itself is too quick. Of course, I cannot understand the spoon qua functional object without reference to its function, but I can understand the spoon qua physical object by reference, for example, to the fact that it is constituted by Fe atoms arranged in lattice structures. This is important, because it shows that we cannot determine whether law must be interpreted functionally until we determine at least the general nature of its ontology. Second, though law is like spoons and chairs in being a human artefact, it is not the same kind of artefact ontologically speaking.10 Chairs and spoons are part of ‘the world’, they are not about ‘the world’. This is a very important point. Everybody knows that law is made. What we are less aware of is that what we make is not a set of facts that belong to ‘the world’. What we make is something else entirely. Again, we will not know what to say about function and the like until we sort this out. We return to these matters in Chapter 8. Moving on to another matter now, what we are looking for is a definition of law in the same sense in which Danto was looking for a definition of art

NE Simmonds, Central Issues in Jurisprudence, 249–50. There has been much recent interest in the idea that law is an artefact. See, eg, the collection of essays in L Burazin, KE Himma and C Roversi (eds), Law as an Artifact. However, for the reason just explained, and also because the notion that law is an artefact of some kind seems to be universally accepted (that is, even by natural lawyers), it seems unlikely that this idea in itself will take us very far. That said, there are important essays particularly in the second part of this book. 9

10

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(though I am not going to speak much about definitions in fact). This may be thought significant, because Hart famously warned us away from seeking definitions of law. However, it is important to remember what his argument was in this regard. In The Concept of Law, he first dismisses the possibility of providing a simple definition of law11 – we can just accept his position here, as surely no one ever intended to provide one – but he goes on to say: There are of course many other kinds of definition besides the very simple traditional form which we have discussed, but it seems clear, when we recall the character of the three main issues which we have identified as underlying the recurrent question ‘What is law?’, that nothing concise enough to be recognised as a definition could provide a satisfactory answer to it.12

Here we see the infection analysed in the first section of the previous chapter burst and spread to the entire organism. We are told that we should not seek a definition of law as an answer to the question ‘What is law?’, as no such definition could answer the three recurrent questions. And yet what could count as an answer to the question ‘What is law?’ except a definition of law? As we have seen, Brian Bix claims that Hart does not answer the question ‘What is law?’ directly.13 In truth, Hart legislates against providing any satisfactory answer. The Concept of Law begins by outlawing a proper analysis of the concept of law. That said, it is important to realise that a definition of a thing is not the same thing as a test that can be used to identify that thing. Again, this is one of the great lessons of The Transfiguration of the Commonplace. Imagine a room filled with the paintings and objects that Danto mentions. We explain to our philosophers’ apprentice that he is to enter the room and come back with all and only the artworks. We provide him with the correct definition of art, placing special emphasis on artworks’ ontological status. Nevertheless, our apprentice has no idea which are the paintings and which are the mere real things (let alone which painting is which, and which mere real thing is Giorgione’s

11 HLA Hart, The Concept of Law, 15–16. See also HLA Hart, Essays in Jurisprudence and Philosophy, ch 1. Unfortunately, it seems that Hart had an understanding of definition that was not really philosophical. He speaks often of defining words, for instance, but dictionary definitions of words are not philosophical definitions. Compare Hart’s understanding of definition with that found in, say, S Davies, Definitions of Art. 12 HLA Hart, The Concept of Law, 16. 13 B Bix, Jurisprudence: Theory and Context, 5–6 (citations omitted).

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canvas, and which is the ‘just a thing, with paint on it’). Definitions are about understanding and not identifying.14 Why has the ontology of law not been confronted more openly? I think that Hart probably provides the correct answer to this question: in short, we have not known where to begin.15 We need somehow to set the scene so that a path may appear to us. For the philosophy of art, Danto did this with his catalogue of artworks and objects. I want to present a different picture – though I hope it is evident that I am presenting here a larger canvas of which Danto’s picture (and pictures) is a part. What is the overall task of philosophy today? More than one answer could be given to this question, but one answer – Searle’s answer16 – strikes me as particularly relevant and important. It is this. Though scope for future progress appears to be infinite, natural science is sufficiently developed so that it presents to us a certain picture of reality. In short, and not completely accurately, the picture is that reality consists entirely of particles in fields of force. At present, we think that there are bosons, leptons and quarks, and all the stuff that these make up. A consequence of this is that the universe is indifferent to us. It does not care. It was not designed to serve our ends. It was not made for us. The universe is in this sense dead. And if it is not, if it is actually alive to us, then it is keeping very quiet about it. Given this, we are faced with an overriding, general philosophical problem. How does human reality fit into the picture painted by science? How do we reconcile the world of universities, parliaments, rugby unions and dinner parties with that of supernovae, neutron stars and the Higgs boson? Where do we fit it in? In the history of philosophy, two main strategies have been adopted in this regard. The first attempts to carve off from the world of the natural sciences a special human reality. The leading thinker in this movement was surely Descartes.17 Descartes’ solution was to divide substances into the physical and the mental, to insist that these had no properties in common, to maintain that the essence of a human being was mental and not physical and thereby

See also AC Danto, The Transfiguration of the Commonplace, 57–63. On legal definition, see also N MacCormick, Institutions of Law, 282. 15 HLA Hart, The Concept of Law, 15. 16 In relation to a point discussed in the previous chapter, I do not see this vision reflected in the work of those jurisprudents who have been influenced by Searle. On the contrary, they seem to begin with the worldview presented to them by jurisprudence, and utilise Searle’s ideas in that context. 17 One might also list Kant here, but in my view, his commitment to the empirical reality of the phenomenal world makes him a special case. 14

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preserve that essence from the scope of the natural sciences.18 This is not the place to examine this position, but suffice it to say that the attempt to show that human beings are not physical cannot be sustained. We have at least one foot in the physical realm and the problem is, once we admit that we have one foot in, progress in the natural sciences has robbed us of any evidence to suggest that we have even one toenail out. The other strategy is to insist that one side of the equation can be reduced to the other. Some, such as Hegel and other idealists, have held that the world of the natural sciences can be, and in Hegel’s view ultimately will be, reduced to human reality.19 In my view, none of the strategies mentioned so far is acceptable. In fact, none is really even plausible. They are what I like to call culturally epiphenomenal: like academic post-modernism, they may create a great deal of sound and fury in certain corners of the university, but the world in which people actually live carries on unconcerned. In particular, the explanatory power of the natural sciences is far too strong for these disciplines to be disturbed – not only within themselves but in the world at large – by the intrigues that plague the humanities.20 In a world, for instance, recently desperate for the discovery of a vaccine for COVID-19, the notion that science provides merely one perspective on the world must appear hideously irrelevant. In the end, then, these strategies are simply, shall we say, extraneous. The reverse of the idealist strategy is adopted by modern materialists, who maintain, for instance, that mental states are really just brain states. Note that the position is not merely that mental states are caused by brain states; no one could seriously deny this today. Formally, the position is that mental states can be subject ontologically to an eliminative reduction in favour of brain states. This means that a complete analysis of all that there is in the universe could be given without mentioning mental states. On this view, we can simply ignore human reality, because it is not really real (apparently, ironically, the echo of this position in legal theory is known as legal realism). I cannot give this view anything like the attention it deserves here. Suffice it for now to say that I think a more promising strategy is to accept that there R Descartes, Meditations. GWF Hegel, Phenomenology of Spirit. 20 An anonymous reviewer invited me to discuss the work of Thomas Kuhn in this context. See especially T Kuhn, The Structure of Scientific Revolutions. I have thought it wiser not to, however. This is because, as is perhaps now well known, this is one of the most misunderstood books ever written. Many have thought that Kuhn’s work supports some form of relativism with respect to science, a misunderstanding that once prompted Kuhn to declare at a conference that he was no Kuhnian. I do not mean to attribute this reading of Kuhn to the reviewer; the point is only that I think it best to avoid all of this muddle in this context. Kuhn’s work is of course important, but nothing in it challenges what I am saying here. 18 19

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is only one reality, but maintain that this reality includes human reality. There really are thoughts and emotions, as well as universities, governments and dinner parties, but these things are ultimately constituted and caused by protons, neutrons, electrons and their siblings. The deep question for the philosophy of law, then, is how law fits into the world described to us by physics, chemistry, biology and the like. It is not fundamentally about the ‘three recurring issues’, though it should have something to say about them. Note that this is to suggest a kind of study that is the antithesis of that presented in The Concept of Law. If we are to understand law, we cannot understand it as if it were an entity sui generis, forever engaged with the same recurring questions. We must understand its place in the world. We must show how we can go from muons to misrepresentations, from bosons to battery, from leptons to leases.

PART II

The structure of the social world and the ontology of law

3. Intentionality This part of the book examines the logical structure of human intentionality, language, social institutions and law. It provides a general, philosophical account of the logical structure of human institutions and ends by discussing the place of law within this schema. As will be obvious to anyone familiar with his writings, the following five chapters are heavily indebted to the work of John Searle. They are so indebted that it is impossible to cite his work adequately. Let this introduction, then, serve as a general footnote for the following five books, which are essential reading for anyone wishing to come to terms with human society and institutions. The books are Speech Acts (1969), Intentionality: An Essay in the Philosophy of Mind (1983), The Construction of Social Reality (1995), Rationality in Action (2001) and especially Making the Social World: The Structure of Human Civilization (2010). For introductory purposes, Searle’s general philosophy is usefully summarised in his Mind, Language, and Society: Philosophy in the Real World (1998). As indicated in Chapter 2, the task of this book is to contribute to our comprehension of law as a part of the ordinary world in which we live. Its job is to present a picture of law as an institution that exists alongside other social institutions, an institution that is created, maintained and used by human beings. Law might be a unique phenomenon in many ways, but it exists in the same world as, and shares many features with, other social institutions such as hospitals, schools, churches, theatres, rugby unions, football associations, cocktail parties and love affairs. Moreover, these institutions are the products of, as Nietzsche described it, the ‘most arrogant and mendacious minute of “world history”’, in which, ‘in some remote corner of the universe, diffused into countless glimmering solar systems, there was a star upon which clever animals invented knowing’.1 In other words, it was created by us, beings that consist of arms, legs, torsos, heads and, most importantly for our purposes, brains. And these brains contain utterly remarkable objects such as neurons and glial cells. The former are in turn constituted by cell bodies, axons



1

1.

F Nietzsche, Über Wahrheit und Lüge im außermoralischen Sinne, ch 1, §1, para 29

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and dendrites, and these in turn by molecules, then atoms, then composite sub-atomic particles, then elementary particles, and then… The question ‘What is the nature of law?’, therefore, is a question about how law fits into this picture. It is a question about how, in a universe constituted by, as we say, particles in fields of force, we can get the Bundesgesetzbuch, Donoghue v Stevenson and the Restatement (Second) of the Law of Contracts. In his study of social institutions, John Searle declares that his task is to take us ‘from electrons to elections and from protons to presidents’.2 The task of this project is to take us from tachyons to tort law, from quarks to Quistclose trusts. Unfortunately, however, we will not be able to travel quite so far in this book. We can go from thoughts to tort law and beliefs to bailment, and we can do this in a way that respects all that the natural sciences teach us, but we cannot yet make the journey from the brain to thoughts. This is because we are still to develop a neurobiological account of consciousness. We know that we have brains and we know a great deal about the way in which the brain functions, but we do not yet know how the brain produces consciousness. It is likely that this is in part because, under the influence of unfortunate ideas about the nature of the mind, this issue has been neglected for decades. However, it may well be that we are at last making progress.3 Nevertheless, we know that we are conscious and we know that consciousness is produced in the brain.4 What we can do, then, is examine consciousness and how it relates to the world. We will go from ideas to ius and we will do so in a way that respects what we know about physics, chemistry, biology and the subject matters of the other natural sciences.

1.

THE BASIC FORMS OF INTENTIONALITY

In the sense of the term employed here, intentionality is that property of the mind in virtue of which it is directed at, refers to or is about the world.5 A paradigm example would be my belief that the First World War ended on JR Searle, Making the Social World, 3. For discussion, see JR Searle, The Rediscovery of the Mind. ER Kandel and others, Principles of Neural Science, especially ch 17. 4 Or at least that it is produced in the body even if not solely in the brain. The claims made here are somewhat controversial. It is by no means obvious that it is widely accepted among modern philosophers of mind that consciousness is a real feature of the world, for instance. For an examination of these ideas, see JR Searle, The Rediscovery of the Mind. 5 Intentionality in this sense, then, is not identified specifically with intending. Intending is a special form of intentionality, as we will see in the following. ‘Intentionality’ is derived from the German ‘die Intentionalität’. It is clear in German that this is different from intention (die Absicht). 2 3

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11 November 1918. Though (at least typically) a product of consciousness, intentional states can be unconscious in the sense of being states that are possessed by a person though that person is not currently aware of them. So, for instance, I have the belief just mentioned even when I am not thinking of this fact or when I am asleep. Moreover, not all states of consciousness are intentional states. Some days I wake simply feeling good. If you ask me what I am feeling good about, the answer is really nothing. Similarly, I might develop an objectless anxiety that does not relate to anything in the world. These are not intentional states. Our investigation must begin with those conscious states that are intentional. These are crucial for our purposes in part because, as we will see in Chapter 7, social institutions such as law are created through a specific form of intentionality. What is essential now is that we come to terms with the ways in which intentional states relate to the world. Every intentional state can be described by its content and by the type of intentional state that it is. It is useful to take some examples to show this. Note that our focus regarding the sentences that follow is on the intentional states that the sentences report, not on the sentences themselves. Let us begin with the simplest cases, where the intentional state remains constant but the content changes. (1) I believe that it is raining. (2) I believe that Sally is coming to dinner. (3) I believe that it will dawn fine tomorrow. In the following examples, the content is held constant but the type of intentional state changes. (4) (5) (6) (7) (8)

I see that Paul is in the room. I believe that Paul is in the room. I fear that Paul is in the room. I am glad that Paul is in the room. I wish that Paul were in the room.

We can characterise intentional states as having the form S(p), where ‘S’ stands for the state and ‘p’ for the propositional content of the state. All of the cases above deal with intentional states with propositional contents. It is typical of intentional states that they have such, but this is not always so. For instance, I might love Cathryn and hate new world Pinot Gris and everything it stands for. We can capture these states with the notation ‘S(n)’, where ‘S’ stands for a state and ‘n’ for (what would typically be) a name or definite description. We will not be concerned with such cases. A key feature of intentional states is the way in which they ‘map on’ to the world. They have, we can say, various conditions of satisfaction. Compare,

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for instance, (1), (2), (3) and (5) above. The role of a belief is to represent the world. My belief that Paul is in the room successfully represents the world if and only if Paul is in the room. It unsuccessfully represents the world if Paul is not in the room. We can, therefore, say that the belief meets its conditions of satisfaction if Paul is in the room and fails to meet those conditions if Paul is not. We standardly use the terms ‘true’ and ‘false’ to express these notions. Thus, I have a true belief if Paul is in the room and a false belief if he is not. But my wish in (8) is quite unlike this. Though it too has conditions of satisfaction, those conditions are quite different from those of a belief. A desire is not an attempt to represent how the world is, but is a representation of how we would like the world to be. Thus, desires do not successfully or unsuccessfully represent the world, they are not true or false; instead they are satisfied or unsatisfied, fulfilled or unfulfilled. A desire meets its conditions of satisfaction if the world changes to fit the desire. The crucial distinction here can be captured by the notion of direction of fit. A belief is meant to fit the world. It has, we can say, the mind-to-world direction of fit. If you picture, as it were, the mind hovering over the world, we can represent this direction of fit with a downwards pointing arrow ↓. Desires, on the other hand, have the world-to-mind direction of fit. The world is meant to change to fit the content of the desire. We can represent this direction of fit with an upwards arrow ↑. Though belief and desire are the philosophers’ favourite examples of intentional states, the most fundamental intentional state from a cognitive and evolutionary perspective is surely perception. Like belief, perception has the mind-to-world ↓ direction of fit. It is the job of perception to perceive the world. Thus, if I am experiencing an hallucination, then we can say that I am having a false perception. But let us take a true, or, as philosophers are inclined to say, veridical, case. Imagine that I am looking at a glass sitting on the desk in front of me and that there really is a glass there, nothing is disturbing my perception of it, and so on. Here, we can safely say that I see the glass.6 What does that mean? Well, as we have seen, it means that my perception matches reality; the perception fits the perceived. But in order to perceive the glass, it must also be true that my perception is caused by the glass. If I have an experience that is phenomenologically identical but is caused by, say, a neurosurgeon fiddling about in my brain, then I am not perceiving the glass, and that is so even if a real glass is in fact there and if, were I perceiving it veridically, I would be having an identical experience. Thus, a condition of satisfaction for perceiving an object is that the corresponding mental state is caused by the object.

6 Again, this is not an uncontroversial claim. For discussion, see JR Searle, Seeing Things as They Are: A Theory of Perception.

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Perception, then, possesses both the mind-to-world ↓ direction of fit and the world-to-mind ↑ direction of causation. It has two kinds of conditions of satisfaction. The propositional content of the perception must fit the world (there must be a match between presentation and perceived) and the perception must be caused by the object perceived. In this way, perception is causally self-reflexive. Memory possesses the same structure. A memory is genuine if it represents the world as it was, false if it does not. It has the mind-to-world ↓ direction of fit. Moreover, a memory is genuine only if caused by the object or event it is about. It, then, has the world-to-mind ↑ direction of causation and is causally self-reflexive. Returning to belief, as we have seen, like perception and memory it has the mind-to-world ↓ direction of fit. However, it has no direction of causation as part of its conditions of satisfaction. If I have a true belief, then the belief is true regardless of how it is caused. Thus, if I believe (i) that Paris is the capital of France as a result of a deduction I have performed on my two other beliefs that (ii) France is the name of the south-eastern portion of the island mass off the north-west coast of continental Europe and (iii) the capital city of that country is Paris, then I have a belief as the result of two false beliefs. But belief (i) is itself perfectly true. Thus, there is no direction of causation for belief and belief is not causally self-reflexive. This feature of belief is extremely important. What we have seen is that belief is not tied to the world in the way that perception and memory are. That belief is able to ‘float’ in this way enables us to have beliefs that a mind so tied could never have. So, for example, not only can I believe that it is currently raining, I can believe that it will rain tomorrow or a year from now or even that in future it will rain more where I live than it has rained in the past due to changing weather patterns. Let us now return to desire. Like belief, desire has no direction of causation as its condition of satisfaction. If I desire the sun to shine, then my desire is satisfied if the sun shines and it makes no difference that my desire played no causal role in making it shine. Desire is not, then, causally self-reflexive.7

7 Apparent counterexamples to this claim are cases of the following kind. Say that I desire to make you happy, where the desire is specifically for me to bring about your happiness. Here, my desire will not be satisfied if you are made happy by the sun shining, for instance. But this is not a genuine counterexample. My desire in this case will be satisfied only if I make you happy, but the satisfaction of my desire does not require that my desire plays a causal role in your being happy. For instance, if I manage to make you happy via a causal chain that I set in progress before developing the desire to make you happy, then I make you happy and satisfy my desire without my desire playing a causal role in your becoming happy. It is, however, at least theoretically possible to have a desire that can be satisfied only if that desire plays a causal

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Again, this is a very powerful feature of desire. Not being tied to the world, I can desire not only the apple that I can see but to eat an apple a day, to visit the apple-growing orchards of the Nelson region or to start an apple-growing business. Two other forms of intentionality relate closely to action. These are intending in the ordinary sense of the term, but it is not always recognised that intentions in this sense are divided into prior intentions and intentions-in-action. A good way to illustrate the distinction between these is to examine the following famous philosophical problem about intention that we owe to Donald Davidson. A climber might want to rid himself of the weight and danger of holding another man on a rope, and he might know that by loosening his hold on the rope he could rid himself of the weight and danger. This belief and want might so unnerve him as to cause him to loosen his hold, and yet it might be the case that he never chose to loosen his hold, nor did he do it intentionally.8

The problem presented by this example is that the climber (i) intends to loose his hold on the rope, (ii) his intention causes him to loose his hold on the rope, and yet we want to say that (iii) he lets go of the rope unintentionally. On the face of it, the combination of (i) and (ii) seems in tension with (iii). The solution to this problem is to see that the climber had a prior intention but never an intention-in-action to let go of the rope. A prior intention is or is the result of a decision to do something in the future. Before losing control of the rope, the climber might have said ‘I will drop the rope’ or ‘I am going to drop the rope.’ It is this intention that causes the climber to become nervous and drop the rope. But the climber never had an intention-in-action to drop the rope. He could never have said ‘I am now dropping the rope.’ If asked, ‘What are you now trying to do?’, he could never rightly have answered ‘I am trying to drop the rope.’ Not all actions are preceded by prior intentions. I might, for instance, stand up at a rugby game to follow the play without ever forming a prior intention to do so, and yet my standing up is perfectly intentional (as I move, I am trying to stand up, I have that intention-in-action). Most speech is also of this kind: I intentionally say things that I had no prior intention of saying. On the other hand, all actions are accompanied by an intention-in-action. This is definitional. A bodily movement without an intention-in-action is, as we might say, mere behaviour. If my lower leg raises as a result of a blow from a reflex hammer to the tendon below my kneecap,

role in making you happy, but here the causal self-reflexivity is the result of the specific content of the desire and not of the nature of desire itself. 8 D Davidson, ‘Freedom to Act’, 153–4.

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then that raising is not an action of mine. I did not raise my leg. And that is so even if I had a prior intention to raise my leg. As these examples help to reveal, prior intentions and intentions-in-action both have the world-to-mind ↑ direction of fit and the mind-to-world ↓ direction of causation. They are both therefore causally self-reflexive. It is worth briefly spelling out exactly how this works. An intention-in-action is satisfied only if that intention causes the effect in question. If I am trying to push your car off a cliff and the car falls because of a small earthquake where my pushing had no causal effect (not even an overdetermined one), then my desire might be satisfied but I did not carry out my intention. The same can be said for the prior intention. If I form a prior intention to push your car off the cliff but Sally does it before me, then again my desire might be satisfied but I did not carry out my intention. However, there is an asymmetry here also. In the case of the intention-in-action, the condition of satisfaction obtains if the intention causes the event (typically a bodily movement) in question. Thus, I intentionally push your car off the cliff if the car is pushed off the cliff as a result of my pushing. But a prior intention is carried out only if it causes the action in question and the action is the combination of the (typically) bodily movement and the intention-in-action. This means that the prior intention is carried out only if it results in an intention-in-action that causes the event. My decision (prior intention) to push your car off the cliff is carried out only if I perform the action of pushing your car off the cliff and that action requires that I push your car off the cliff as a result of my intention-in-action to do so. This is revealed by Davidson’s example. The climber’s prior intention causes him to loose the rope, but it does not cause him to perform the action of loosing the rope and his prior intention is not carried out. Implicit in this discussion is another crucial feature of many forms of intentionality. This is what Searle calls the existence of the gap – or, in frequent cases, many gaps. Take the example of writing this book. I first formed a prior intention to produce the book. I had had the idea in my head for some time but I was never sure whether to pursue it. I was writing another book and there were many other tasks calling me. I was also not sure that this was an area of investigation that I wished to pursue, having never desired to be a philosopher of law. However, after much consideration, I decided to write it. But I could have chosen otherwise. At least, that is how it seemed to me. This is an experience of a gap; a break between, as it were, inputs and outputs. I had reasons for and against writing this book and none of them on their own or in conjunction with the others appeared sufficient to determine my course of action. In short, I did not appear to myself to be determined but rather to possess freedom of the will. This gap also exists between the formation of the prior intention and the intention-in-action. It is not enough to decide to write a book; one has also to

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sit down and do it. The choice to do so seems no more determined than was the formation of the prior intention. Moreover, in a project such as this one, I must constantly make underdetermined choices to continue writing the book or it will never be finished. And writing the book is replete with the experience of freedom. I just chose to use the word ‘freedom’, for instance. I could have selected ‘liberty’ or ‘autonomy’ or, indeed, any word at all. This experience of freedom is utterly central to an understanding of human rationality and institutional life. The entirety of our legal system, for instance, is based on it. To take just one obvious example, we have a law against homicide because we think that acts of homicide are things that people might choose to do and we hold people responsible for such acts because we think that they freely chose them. It is important to see that this means that the structure of the explanation of human action is different in form from the structure of the explanation of natural events such the movements of planets or billiard balls. Standard explanations in the natural sciences are deterministic in form. To explain something is to explain why, given the prior conditions, that thing had to happen. This form of explanation is applicable to human behaviour, but only in cases in which the subject has no experience of the gap. For instance, if I am suffering from an addiction to nicotine, I may experience the presence of the cigarettes on the table coupled with my cravings (the prior conditions) as determining my subsequent smoking. Here the behaviour is compulsive. Typically, however, explanation of behaviour does not take this form. If you ask why I married my wife, for instance, I can give you many good reasons, but these reasons, even taken all together, did not make it inevitable that I would marry her. What made it inevitable that I would marry her was that I decided to act on these (or any) reasons and marry her, that I formed the relevant prior intention and intention-in-action. In other words, I determined my behaviour. Explanation of human action is indeterministic in form. This does not imply that the explanation of human behaviour is indeterministic in fact. The position being advanced is that we cannot make sense of intentionality and of the rest of the phenomena explained in this book except on the basis that human agents possess freedom of the will – which I will call autonomy. Kant saw this point long ago.9 The claim is not that human beings are autonomous. It may be that autonomy is an illusion. The point, however, is that if it is an illusion then it is an illusion that we cannot escape when viewing ourselves from the perspective of practical reason. Moreover, it is an illusion that we cannot escape – not because it is, as it were, the distorting glasses that

9 Eg I Kant, ‘Religion Within the Bounds of Mere Reason’, 5:6, 31, 42, 43, 47, 55, 91, 104.

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we cannot take off that stand between our perception and reality, but rather because the illusion is built into the very mechanism of seeing itself. This is a very deep problem in philosophy and this is not the place to give it a full investigation; however, it may be useful to consider the following examples.10 Imagine that I am thinking about abandoning this book and going instead to the Bay of Islands for a holiday. Here, I might ask myself whether I am really free to make this choice. Now, I might ask myself this question in two different ways. First, I might do so in abstraction from the process of making the decision. I might stop and ask myself whether I really am free. In doing so, I might consider the free will/determinism debate and come to the conclusion that I am not free, or at least not free in the way that I originally thought. But I might also ask the question from within the decision, as it were. I might ask while making the decision whether I am making it freely. Here, I am not asking about what is really happening in some external or ‘scientific’ sense. I am not approaching my decision making as a neurobiologist might (though what I say must be consistent with what we know about neurobiology). Rather, I am asking about the nature of decision making; what it means to make a decision. And I am asking this from the inside. As Thomas Hill Jr usefully expresses the idea, calling the latter Wittgenstein to mind, the question is about how the ‘game of deliberation’ is played.11 It is played on the assumption that I am autonomous. After all, what is deliberation in the absence of free will? Moreover, the ‘game of deliberation’ must be played this way. I cannot resolve the question as to whether to continue this book or go on holiday by saying to myself that I have become a determinist and that I will just let natural forces take their course and decide the matter for me. This is because my decision to do this – that is, the decision not to make a decision as to what I will do – is intelligible to me only as one that I was free to make (I let natural forces take their course). Now, this might all be an illusion and I might be entirely determined by natural forces, but the illusion is not one that I can escape. I am tempted to say that, for practical purposes – that is, for the purposes of practical reason – autonomy is empirically real, but perhaps that would set too many cats among too many pigeons. As implied by the discussion above, the experience of autonomy is a feature of prior intentions and intentions-in-action. It is not a feature of perception or memory. There is no philosophical problem of the freedom of perception or the freedom of memory. The reason for this difference between prior intentions and intentions-in-action on the one hand and perception and memory on the

The examples are inspired by the discussion in I Kant, ‘Critique of Practical Reason’, 7:119–20. 11 TE Hill, ‘Kant’s Argument for the Rationality of Moral Conduct’, 265. 10

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Table 3.1

Basic intentional states

Type of

Direction of fit

Cognition

intentional state

Direction of

Casually

Experience of

causation

self-reflexive?

autonomy?

Perception

Mind-to-world ↓

World-to-mind ↑

Yes

No

Memory

Mind-to-world ↓

World-to-mind ↑

Yes

No

Belief

Mind-to-world ↓

N/A

No

Limited

Intention-in-

World-to-mind ↑

Mind-to-world ↓

Yes

Yes

Prior intention

World-to-mind ↑

Mind-to-world ↓

Yes

Yes

Desire

World-to-mind ↑

N/A

No

Limited

Volition

action

other is that the former two intentional states have the mind-to-world ↓ direction of causation, whereas the latter two have the world-to-mind ↑ direction. Perception and memory are determined by the world; they are forced on the agent by the world. Prior intentions and intentions-in-action are determined by the agent; they are forced on the world by the agent (at least, that is how it seems to us). Beliefs and desires are tricky cases in this regard, and this is because they have no direction of causation. It is not quite right to say that I choose my beliefs. I certainly do not choose them in the way that I choose what to cook for dinner, for instance. This fact is recognised in the way we talk about belief. We speak of evidence as compelling belief, for instance. But there is nevertheless a volitional element in belief and this too is recognised in the way we speak about it. We say, for example, that she refused to believe the evidence (even ‘compelling’ evidence). And the same is true regarding desire. As Aristotle noticed, though our basic drives are given to us, their expression in our lives is subject to our control.12 So, while I cannot prevent myself becoming thirsty, I can channel that drive into a desire for alcopops or Sauternes. Again, then, desire has a volitional element. These features of intentionality are presented in Table 3.1. It is worth noting the symmetries that exist between cognition and volition. This is evidence of the way in which the mind utilises its basic resources in a way that creates huge potentiality. Table 3.1 is not meant to provide a complete picture of intentionality. Important intentional states, such as imagination, are not represented in the table. Nevertheless, the six intentional states listed are the ones that we must have in mind for the discussion that follows.

Aristotle, Nicomachean Ethics, 1102a–1104b.

12

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In terms of our wider project, it is useful to see that every intentional state is a representation of its conditions of satisfaction. A belief that it is raining, for instance, is a representation of the conditions of satisfaction of that belief: that is, that it is raining. A desire to eat ice cream is a representation of the conditions of satisfaction of that desire: that is, that I will eat ice cream. A memory of holding my first child in my arms is a representation of the conditions of satisfaction of that memory: that is, that that this event did actually happen. And so on. This helps us to see how intentionality is possible. In becoming intentional, the mind learnt to represent the external world in these ways.13 At this juncture, it is worth stressing a point of great importance. The conditions of satisfaction of an intentional state are essential to that state; they are not implications or consequences of that state. Take the belief that John is in the room. As we saw, a condition of satisfaction of this belief is that John is in the room. Thus, if John is in the room, then the belief is true; if John is not in the room, then the belief is false. This feature of the belief is not an implication or consequence of the belief, it is part of what the belief is. An intentional state without this commitment would not be a belief. Thus, an intentional state with the same propositional content – that John is in the room – where the conditions of satisfaction are different might be a desire that John is in the room, a memory of John being in the room, a perception of John in the room, or whatever. The significance of this is brought out in the following chapter.

2.

COMPLEX INTENTIONS AND ACTIONS

Consider the following example. I am playing the violin part to Brahms’ Violin Sonata No 1 (Op 78). In that regard I do the following things. (1) (2) (3) (4)

I draw the bow across the string. I produce a D pianissimo. I play the first note of the violin part of the sonata. In conjunction with what you, the pianist, are playing, I play the fifth of a G major chord. (5) I entertain our audience. (6) I engage in a form of self-expression.

When I say this, I do not mean to imply that perception, for instance, is representational in the way that the philosophical tradition normally has it, that is, that we do not perceive objects but only representations of them. Whether this is so is a different matter. I am myself inclined to a version of direct or naïve realism, according to which perception is presentational and not representational. 13

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Notice that I do not perform six different actions. Rather, I perform one complex action that can be described on these different levels. In a very complex action, there will be a great many levels of description. The ability to describe action in this way is sometimes known as the accordion effect, because the describer can expand or contract the description in something like the way that an accordion expands and contracts.14 It is also important to note the different relationships between these levels of description. Consider first that between (1) and (2). This is a causal relationship. The drawing of the bow across the string causes a D to sound. We can say that I play a D by means of drawing the bow across the string. But that is not the relationship that exists as between (2) and (3). Playing a D in this context does not cause me to play the opening note; it constitutes playing that note. I play the opening note by way of playing a D. Likewise, my playing does not cause me to engage in self-expression; it is self-expression. I express myself by way of my playing.

3.

COLLECTIVE INTENTIONALITY

We have examined cases of individual intentionality, but we also intend things as part of a collective. So, just as we can say ‘I am going to the beach’, ‘I am playing a game of cards’ and ‘I am playing a piece of music’, we can also say ‘We are going to the beach’, ‘We are playing a game of cards’ and ‘We are playing a piece of music.’ What does it mean to make this kind of claim? Clearly, it does not mean that we share a single intention. Many examples of collective intentionality involve cooperation. That is the main subject of investigation here. But in this section, we also examine another form of collective intentionality: collective recognition. Though it is not claimed that these are the only forms of collective intentionality possible, these are the ones crucial for our purposes.15 3.1 Cooperation Consider again the example of playing Brahms’ first violin sonata. Consider especially description (4). How do we do this? You play a G major chord with the third in the treble. I play a D. But together, we play a G major chord with the fifth in the treble. How do we do that? Note what the question is not. It is J Feinberg, Doing and Deserving, 34. Searle presents a somewhat contradictory picture in this regard. First, he appears to maintain that collective intentionality and cooperation are synonymous. See eg JR Searle, Making the Social World, 47–50. But he also insists that collective recognition is a form of collective intentionality that is distinct from cooperation. Ibid, 56–8. 14 15

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not simply a question about how sounds of the relevant frequencies appear and are heard by listeners. It is a question about how we cooperate in producing a particular chord. If you bang out the same notes and I scrape the bow over the same string with the fingers of my left hand in the same place without the intention to play together, say because we are practicing our parts of the sonata on our own and just happen to begin at the same time, then we produce the same sound, but we are not playing a G major chord with the fifth in the treble (though we do produce such a chord) and nor are we performing the sonata (as opposed to our parts of the sonata). The sonata is a duet. To perform it, we have to play it together. What do we need to do, then, to perform the sonata? As noted, we need to play it together, but what does ‘together’ mean? It is not as if we can merge our minds so that we play as one person (though it may occasionally seem that way to performers). So how do we do it? How can we play a piece that is for violin and piano by me playing the violin and you playing the piano? The first thing to say is that my intention-in-action can only be to play the violin part. I cannot have an intention-in-action that you play the piano part. I cannot intend you to do anything.16 But I can intend my playing of the violin part to constitute my contribution to our playing of the sonata. Here, then, I have a complex intention-in-action: (i) I play the violin part and (ii) I intend my playing of the violin part to be my contribution to the performance of the sonata. I intend, then, to contribute to the performance of the sonata by way of performing the violin part. In other cases, I can intend to realise the collective goal by means of my contribution, such as when I make pasta with my son, one of us holding the dough and the other rolling it out. What makes this cooperative is that the aspect of the intention-in-action captured in (ii) relies on an assumption that your intentions have the same structure as mine. I can have the complex intention-in-action that contains aspect (ii) only if I believe that you have the intention-in-action to play the piano part and that you intend that that playing will contribute to the performance of the sonata. I must believe that you intend to contribute to the performance of the sonata by way of performing the piano part. Of course, your intentions must mirror mine in this respect. Your intention to perform the sonata by way of playing the piano relies on your assumption that I intend to perform the sonata by way of playing the violin. Moreover, I operate on the assumption that you are making this assumption and the same

16 We do sometimes speak this way, however. For instance, I might say ‘I certainly intend that my children will all attend my alma mater.’ What this means is not that I intend their actions, however, but that I intend to ensure that they have the relevant intentions or something of that kind.

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applies mutatis mutandis to you. What we are seeing here is that in cooperating, our intentionality locks together. As we will see in the following, this has important consequences. Note again that each of us has only one intention-in-action. (i) and (ii) do not denote different intentions that I have. Rather, they capture the single intention that I have at different levels. I do not have one intention to play the violin part and a separate intention to contribute to the performance of the sonata. I intend to play the violin part as my contribution to the performance of the sonata. Also, what makes the intention cooperative is that we share a goal, the performance of the sonata, and that we intend that goal to be realised by means of the coming together of our individual actions.17 In the cases we have been examining, I know that you will play the piano. But I need not know with any precision what it is that you will play. In other cases of cooperation, I may know very little about what you will do and I may not even know who you are. It is sufficient for cooperation that we intend our individual actions to contribute to a shared goal even if we know very little about the actions that others will perform. This form of collective intentionality is very important for our purposes because, as we will see in Chapter 7, society is created by engaging in it. 3.2

Collective Recognition

A contrasting form of collective intentionality is collective recognition. It will help to take an example. Let us take a case much loved by teachers of law: a person buying an ice cream from a store. We teachers are fond of pointing out to students that three transactions typically take place in a case such as this. First, the parties contract for the sale and purchase of the ice cream; second, the ice cream is conveyed so that property in it passes from the store to the purchaser; third, banknotes and coins are conveyed so that property in them passes from the purchaser to the store. This is an example of cooperation. The parties here act so that a legal transaction that transfers money and ice cream is performed by way of their individual actions. But note that the cooperation requires a number of assumptions: for instance, that the pieces of metal, paper or plastic used in this transaction are money. It would be wrong to say that the parties cooperate in this regard. Except in very unusual cases, this fact will not form a conscious element of their transaction. They will not think of it for

17 Those familiar with the enormous literature that the notion of collective intentionality has generated will realise that I am trying to present my position as uncontroversially as possible here. The point is that, in this context, focusing on the precise character of collective intentionality would be a distraction.

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a moment. It is simply part of the shared background against which they act. They just accept that objects of this kind are money. I say that they ‘accept’ that the objects are money, but that should not be taken to imply that they necessarily endorse this. The purchaser may believe, say, that ‘money is theft’. The important thing here is not whether she approves of money but whether she goes along with the existence of this institution in conducting the transaction. An encounter in which the parties had to establish whether these objects really were money would look quite different. So, collective recognition requires that each person recognises the existence of the institution in question and believes that others likewise recognise that institution. It is important to stress that this recognition is practical. By this I mean that the person does not merely understand that the relevant institution exists – that people use money, for instance – but that she orients her behaviour in that light. She uses money, for example. Again, this does not imply that she endorses the institution. She may believe that it is corrupt and ought to be abolished. But if she orients her behaviour in accordance with the institution then she recognises it in the sense relevant here.18

4.

THE ASSIGNMENT OF FUNCTION

A further crucial aspect of intentionality is the ability to assign functions to objects. We do this when we use objects as tools, for instance. That ability we have in common with some other animals, but we also assign functions in unique ways. We might, for instance, say that the function of a bird’s hollow bones is to reduce weight to allow the bird to fly. Now, at first glance, this might not seem like the assignment of function. After all, this is something that we discover. However, we must remember that one of the most important intellectual breakthroughs in history revealed that phenomena such as the hollowness of birds’ bones can be explained without positing purpose or teleology in nature.19 Birds’ bones became hollow because having hollow bones provided an evolutionary advantage and so this trait was selected for over millennia. As far as nature itself is concerned, there is no function here at all; there is simply the history of natural selection and the traits to which it has given rise. Nevertheless, we still

18 I take it that this is why Searle originally adopted the term ‘accept’ rather than ‘recognise’ and continues to prefer ‘accept and recognise’. JR Searle, Making the Social World, 57. Mere passive recognition is not enough. One must accept the institution in the sense of orient one’s behaviour in accordance with it, but one need not accept the institution in the sense of approve of it. 19 C Darwin, On the Origin of Species.

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speak of function because the adaptation allows birds to achieve something upon which we place a positive value: survival and flourishing. This is very important to our understanding of the world. We say, for instance, that the function of the heart is to pump, and the function of the lungs is to oxygenate, blood. We discover that the heart pumps blood and that the lungs oxygenate blood, but we regard these phenomena as functions because of our values. If we disvalued health and survival, then we would think of hearts and lungs as dysfunctional. We can loosely define a function as a cause that serves a purpose.20 The cause we discover. The purpose we impose on the world. Human beings also have a very special ability in this regard. We can assign functions to objects that those objects do not have in virtue of the things that they are. We can call these status functions. Thus, we can make bits of metal into money, turn rivers and mountains into borders and make people chefs and politicians. In a sense, the rest of this book is about how we do this, and the consequences for our understanding of law.

JR Searle, Making the Social World, 59.

20

4. Language The previous chapter explored the basic structure of human intentionality. The next step on the way to social institutions is to examine the connection between intentionality and language. This is because, as we will see in Chapter 7, human institutional reality is constructed and maintained linguistically.1

1.

FROM EXCLAMATION TO LANGUAGE

There are many forms of human utterance. Some of these could be described as prelinguistic, or at least as not fully linguistic. If you drop a brick on my toe and I yell ‘Ouch’, I express my pain, but I do not express the pain by making a representation. In fact, ‘Ouch’ is not quite what I am likely to say. ‘Ouch’ is the English name for one of the exclamations that people typically make in the relevant circumstances. In German, the term is ‘au’; in French, ‘aie’. Likewise, ‘phew’ is not normally pronounced ‘few’, as in ‘I am only going to have a few beers, honest.’ But these names can take on a life of their own. I take it, for instance, that ‘yuck’ was formerly intended to name a sound that might more accurately have been given as ‘yoocggkkkhhhhh’.2 But now ‘yuck’ is so embedded that people often just say ‘yuck’. Perhaps this is in part because ‘yuck’ is a less yucky thing to say. In any case, the important point is that, though it would be wrong to deny that these exclamations can play important roles in human social life, they are not the building blocks of human social institutions such as governments, rugby unions or city councils. The reason for this, as we have seen, is that exclamations are not representational. In this way, ‘Ouch’ is quite different to ‘That hurt.’3

1 For the record, however, it should be said that the thesis advanced in this book is not committed to the notion that the entirety of social reality is so constructed, only that those aspects relevant to this investigation are. 2 In fact, I understand that ‘yuck’ was originally used to represent laughter. 3 Note the recognition of this general point in, eg, HLA Hart, Essays on Bentham, 250–1. What is missing from Hart is any kind of systematicity in this analysis. This is partly because that systematicity was not found in the work of JL Austin and was not provided until JR Searle, Speech Acts and JR Searle, Expression and Meaning.

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One function of exclamations such as ‘ouch’, ‘yuck’, ‘yum’ and ‘ew’ is to express our feelings. They are a kind of verbal reflex to experiences in the way that we huddle in the cold or lift our hands off hot surfaces. We can see this in the fact that we often make them when we are alone and have no intention of communicating anything. Despite this, though, these expressions are often communicative. If you step on my toe, I might exclaim ‘Ouch’ partly in an attempt to get you to move your foot. This kind of communication is common in non-human animals. Puppies, for instance, learn to play without injuring each other by yelping when they get hurt. Mimicking this is, I am told, an efficient way to train puppies not to bite their human companions. One thing to notice about such exclamations is that they are tied to our feelings in something like the way that perception and memory are tied to the world. The analogy is not exact. We can mislead using exclamations. For instance, I might pretend to be in pain when I am not by exclaiming ‘Ouch.’4 Nevertheless, when I do this, I am pretending to have an occurrent pain. I cannot use the expression to mean that I was in pain a week ago, that I will be in pain tomorrow, that if you do not change the direction in which you are walking then you will cause me pain, that I would have been in pain had you not stopped to talk to Sally, or the like. Nevertheless, as we have just seen, I can say these things. How? The answer is that we have learnt to transform our intentionality into linguistic representation. The task now is to examine how we did this. This is not an historical investigation. I cannot give an account of how language evolved in human beings. Like the question ‘How does the brain cause consciousness?’, this one is as yet unanswered.5 Perhaps, due to the lack of a relevant fossil record, it will never be answered. Nor is it my task to engage in speculation in this area. We cannot show how human beings actually progressed from exclamations to representations, but we can explain what this change entailed. In other words, the question is not ‘How did human beings learn to make representations?’ Rather, our question is ‘When human beings learnt to make linguistic representations, what exactly is it that they learnt to do?’

4 This sort of thing is common among non-human animals also. Chimpanzees, for instance, who have found a tree laden with fruit will stop eating and pretend to be asleep when a rival troupe passes by in order to keep the food hidden. These chimpanzees intentionally mislead their competitors, but they do not do so by making representations. 5 For interesting speculation in this area, see M Hauser, N Chomsky and T Fitch, ‘The Faculty of Language’; M Tomasello, The Origins of Human Communication; R Dunbar, Grooming, Gossip and the Evolution of Language.

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The first thing to say is that they learnt to extend their intentionality. As we saw in the previous chapter, a belief has the mind-to-world direction of fit ↓. The job of a belief is accurately to represent the world. Human beings learnt to make utterances that possess this same structure. These are assertives. We also saw that desires have the world-to-mind ↑ direction of fit. We learnt to make utterances that possess this structure too. They are directives. Intentions also have the world-to-mind ↑ direction of fit, but they relate not to the world in general but specifically to the actions of the agent. We learnt to make utterances that possess this pattern too. They are commissives. And we learnt to express our states of mind on the basis of a presupposed fit between the mind and the world. These are called expressives. These and a fifth kind of speech act are examined in detail in the second section of this chapter. When we learnt to make these utterances, what exactly did we learn to do? The most obvious answer is that we learnt to make certain kinds of sounds with our diaphragm, larynx, vocal chords, tongue, lips, and so on. That was a very remarkable physiological achievement. But what is utterly astonishing about this is that we learnt to attach meanings to these sounds. In short, we developed the technique of linguistic meaning. What did that involve? What does it mean to mean something in this way? This question is answered by returning to a discovery made in Chapter 3. As we saw there, intentional states have conditions of satisfaction. The condition of satisfaction of a belief is that it fits the world, and that of a desire is that the world changes to fit the desire. What we learnt to do is to impose conditions of satisfaction on conditions of satisfaction. It is best to take an example to show what this means. Take the utterance ‘John is in the room.’ If I make this utterance, then I must of course pronounce these words. If I intend to say ‘John is in the room’ but what comes out of my mouth sounds like ‘Jove’s inner Hume’ then I have failed. Thus, a condition of satisfaction for making the utterance ‘John is in the room’ is that I correctly form the appropriate sounds. But, of course, I can say ‘John is in the room’ without meaning that John is actually in the room. I might just be exercising my vocal chords, for example. In an effort to improve my pronunciation of German, I used to practice saying ‘Ich’ over and over again in front of a mirror. A person hearing me might rightly have concluded that I was only partially successful, but she would have missed the point entirely had she taken my behaviour to disclose a strange self-obsession on my part. If I am saying ‘John is in the room’ for this kind of reason, then the condition of satisfaction is met if I manage to form the words correctly. But imagine now that I make this utterance meaning that John is in the room. Here, what I do is impose a ‘new’ condition of satisfaction on the condition of satisfaction just discussed. The condition of satisfaction is that John actually is in the room. And note that this condition of satisfaction is the same as the condition of

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satisfaction of the intentional state, the belief, that I wish to communicate. What I do, then, is make an utterance with the condition of satisfaction that I form the sounds correctly and the condition of satisfaction that matches the relevant intentional state, in this case the belief that John is in the room, that is, that John actually is in the room. When I make an utterance of this kind, I intentionally produce an utterance and I intend that this utterance makes a representation. We can refer to this latter intention, to the imposition of this condition of satisfaction, as the meaning intention. It is this intention that creates semantic meaning. It transforms the utterance from a mere sequence of sounds into a speech act. In this case, the speech act is an assertion. The next step is communication. When I make an utterance, typically I intend not merely to mean something but also to communicate that meaning. I do this if I get the hearer to recognise my meaning intention. You understand me when I say ‘John is in the room’ if you see that the noises that I make are intended by me as an assertion that John is in the room. More fully, communication succeeds if you see that my utterance has the conditions of satisfaction that the intentional state that I expressed has – that is, that John is in the room. In order to make this possible, human beings had to overcome a very significant hurdle. To reveal this, it is useful to imagine the following scenario, keeping in mind that this is not intended as an account of the evolution of language. Imagine that you and I are prelinguistic creatures who have the same intentional states that we currently have (we will see that this is actually impossible, but that does not matter now). I wish to communicate to you my belief that John is in the room. I cannot simply show you that belief or make you feel it in some way. Human beings lack such capacities. So, I decide to develop a system for representing my intentional states. Given the system I come up with, it is appropriate for me to utter ‘John is in the room.’ Naturally, as my aim is to represent my intentional state, I define the meaning of this utterance in such a way that it necessarily perfectly matches the intentional state that I wish to communicate. But then I encounter another problem. If the meaning of the utterance is determined by my intentional state and I am unable directly to impart that state to you, then I have failed to develop a system of communication. This is because the only way for me to communicate my intentional state to you is to use the utterance and yet, as the meaning of the utterance is determined by my intentional state, you can gain access to the meaning of my utterance only if you can gain access to my intentional state. But the fact that you cannot do this is the problem with which we began. What I must do, then, is loosen the grip that I have on my utterance. I cannot untie it completely, or there will be no connection with my intentionality at all. But I must meet you halfway, as it were. I must loosen the tie that I have to the utterance until you are able to have the same tie to it. I do this in part by establishing language conventions that are accessible to both of us (see also Chapter 6). What we

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end up with, then, is something that seems on the face of it rather paradoxical. We have an institution that is designed to allow us to express our intentional states and is therefore moulded (created, maintained, changed, and so on) by our intentional use of it, and yet it is also in an important way independent of our individual intentionality. It is a publicly defined tool for the purpose of expressing our private intentionality. This is a singularly great achievement, but it does come at a cost. As the conventions are independent of my intentions, when making an utterance I can misspeak. If I say ‘Jim is in the room’ intending to say that John is in the room, then I have made a mistake. I do not necessarily say what I mean. But this is a price that must be paid for language and, in any case, I soon discover a multitude of uses for this. Though I might regret times when I fail to say what I mean, I soon discover that it is often useful and even fun to mean what I do not say. While the conventions allow us to represent our intentionality only imperfectly, the very fact that they are uncoupled from intentionality gives them colossal power. It even gives them the power massively to extend intentionality itself. I can come to mean things I could not mean if language were lashed to my intentionality. I can mean whatever this sentence means, for example: ‘My dreams of her floated over the ocean, falling, past the distant horizon, over the edge of the earth.’ Without being able to play with words, I could never have meant that. And I can also mean what is expressed in the following utterance: ‘Homicide is the killing of a human being by another, directly or indirectly, by any means whatsoever.’6 Not only is that utterance distressingly prosaic; it is a quite remarkable thing to say. Though we normally just take it for granted, we ought to be astonished that human beings are capable of saying and meaning such things. How do we do it? Of course, this second part of this book is an answer to that question, but before we can continue, it is necessary briefly to say something more about the conventions of language and what they enable us to achieve. To do this, I can speak only of the languages that I know. Because I am genuinely fluent only in one, I will speak mostly of English; but what I say is true of the vast majority of languages spoken today. It may not be true of all, however. I take no stand on this. The task is not to define language, but to examine what language makes possible. In English (as well as, of course, many other languages), sentences are composed of words and morphemes (we can focus solely on words) and these have a distinct identity. This means that the words retain their identity in composition. We might say that words in sentences are put together as pancakes are put into a stack and not in the way that the ingredients of the pancakes are put into

6

s 158 Crimes Act 1961 (NZ).

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the pancakes. The words ‘Sally’, ‘loves’ and ‘John’ have the same meaning in the sentence ‘Sally loves John’ as in the sentence ‘John loves Sally.’ This is known as discreteness. Second, the meaning of a sentence is a product not only of the words in the sentence but also of the way that those words are arranged syntactically in the sentence. So, though the words ‘Sally’, ‘loves’ and ‘John’ have the same meaning in the sentence ‘Sally loves John’ as in the sentence ‘John loves Sally’, the sentences have completely different meanings. This is called compositionality. Not all languages function in the same way as English in this regard. Word order does not work the same way in Latin or German, for instance. ‘Der Hund beißt den Man’ and ‘Den Man beißt der Hund’ both mean that the dog bit the man. But we still have compositionality here. The subject of the English sentence is determined by word order, whereas it is determined in this German sentence by case as indicated in the definite articles. So, both these languages have compositionality, but they achieve it in different ways. Third, the syntactical rules of most modern languages allow for infinite generativity. The syntactical structure of English, for example, possesses sufficient flexibility to enable us to generate a potentially infinite number of new sentences. One way to see this is to note that we can take any sentence and, due to the relevant recursive rules, add a relative clause or conjunction to it and then we can repeat this process. In this way, language can be infinitely iterated. Consider the following sequence. (1) ‘Sally loves John.’ (2) ‘Sally loves John, but John is obsessed by his career.’ (3) ‘Sally loves John, but John is obsessed by his career, which currently is going nowhere.’ (4) ‘Sally loves John, but John is obsessed by his career, which currently is going nowhere, about which he is completely oblivious.’ As we can see, there is no necessary end to this process. These features of language are very important. The flexibility that exists in the syntax of language due to compositionality and generativity coupled with discreteness allows us not merely to shuffle words around but also to shuffle semantics. German might be the best language for demonstrating this. As we have seen, we can take the words in ‘Der Hund beißt den Man’ and rearrange them to get ‘Den Man beißt der Hund’, and both sentences have the same meaning. But we could also do a different kind of shuffle to get ‘Der Man beißt den Hund’ and that means something quite different: that the man bites the dog. I have never seen a man bite a dog, but it is perfectly simple to form such a sentence and thereby mean that the man bites the dog. This gives me an ability to say anything that I can imagine, even things that I cannot really

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imagine (for example, ‘a square circle’), and practising and playing with this ability, for example by reading novels, in turn expands what it is that I can imagine. The extraordinary power of this is impossible to overestimate and this book is a study of one of its most remarkable consequences.

2.

SPEECH ACTS

Implicit in much of what has been said above is a distinction that JL Austin made between locution, illocution and perlocution.7 Take a standard example. I say to you over dinner ‘Can you pass the salt?’ Taken literally – that is, in accordance with the conventions of the English language – this is a question about your physical capacities. It can be answered in the affirmative if, for instance, the salt is within reach and you have normal use of your upper limbs. But in usual circumstances, what I intend by the utterance is not to ask you about your abilities but to request that you pass the salt. Moreover, it is likely that you will have no difficulty whatsoever understanding this and will, as a result, pass me the salt. Here, we can distinguish between what was said, what was meant, and the effect of what was said and meant. The locution was what was said; the illocution was what was meant; and the perlocutionary effect was the impact of the utterance on the hearer. The ability to use language depends on the ability to understand locution. Because of this, most philosophy of language, from Gottlob Frege’s to the present day’s, focuses on analysing the logical structure of language as a locutionary phenomenon. But given what has been said above, the heart of language is illocution, not locution. In Searle’s words: We [need to] explain speaker meaning before we explain conventional sentence meaning, because speaker meaning is logically prior, in the sense that the conventional meaning of a sentence is, so to speak, a standard or communicable or fungible form of speaker meaning. Conventional meaning is what enables speakers to utter sentences and mean something by them in a way that will be understood. Sentences are to talk with.8

This helps us to see why an illocutionary act need not take the form of speech – a fact which causes the terminological discomfort of entailing that speech acts need not be acts of speech. We will just have to learn to live with this. Obvious cases of non-verbal speech acts include giving the thumbs up or flipping the bird. The task now is to examine the forms that illocution takes.



7 8

JL Austin, How to Do Things with Words. JR Searle, Making the Social World, 73.

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Law’s reality

A Taxonomy of Illocutionary Acts

We saw above that three types of illocutionary act map directly on to three types of intentionality. Assertives connect with beliefs, directives with desires and commissives with intentions. Moreover, another type of illocutionary act, expressives, operates on the presupposition of a direction of fit. There is also another kind of illocutionary act called a declaration. It is time to examine these in detail. I have not attempted to capture all of the conditions – particularly the preconditions – in Table 4.1. I have only listed the ones essential for our purposes. 2.1.1 Assertives Let us begin with assertives. These include statements, reports, avowals, suggestions and hints, as well as negative assertions such as denials, repudiations, disavowals and the like. The point of an assertive is to say something about the world. If I say ‘It is raining’, normally the point of doing so is to say (and thereby communicate) that it is raining. Statements of this form have the word-to-world ↓ direction of fit. Their job is to represent the world as it is. Thus, they are assessable as true or false. But what exactly does it mean to say that it is raining? The answer is given by the direction of fit and the conditions of satisfaction of the statement. As we see in Table 4.1, there are three kinds of conditions of satisfaction in play here: essential conditions, sincerity conditions and what I call preconditions.9 The best way to understand the nature of these conditions is to explore how they operate in particular cases. Take the assertion: (1) ‘It is raining.’ It is an essential condition of this assertion that the speaker commits herself to the fact that it is raining. This is an essential condition, because making an assertion simply is the making of an utterance that commits the speaker in this way. So, if a speaker intends to make an assertion but issues an utterance that does not commit her, then she fails to make an assertion. We can see this by imagining the following case. Suppose that Sally says (1) and then tells us:

9 Searle refers to these as preparatory conditions in JR Searle, Speech Acts, 66. That strikes me as a somewhat uncomfortable locution.

Future act of S

Some property that relates

Commissives

Expressives

Declarations

Future act of H

Directives

Various

to S or H

Any proposition p

Assertives

act

Propositional content

Double ↕

Presupposed ||

World-to-word ↑

World-to-word ↑

Word-to-world ↓

Direction of fit

The taxonomy of illocutionary acts

Type of illocutionary

Table 4.1

truth of p.

wants S to do a or will benefit

to some future action a.

carry out the speech act. illocutionary act.

the performance of the

S has the status required to

Various

state in relation to p.

of reality in virtue of

S has the psychological to S or H.

S intends to do a.

S desires that H do a.

S believes p.

Sincerity condition

P relates in an appropriate way

will disbenefit from S doing a.

does not wants S to do a or

For negative commissives: H

Counts as an alteration

of affairs contained in p.

condition about the state

contained in the sincerity

of the psychological state

Counts as the expression

For positive commissives: H from S doing a.

S believes that he can do a.

course of events.

to do some act a. (in various degrees) by S

H will not do a in the ordinary

various degrees) to get H Counts as a commitment

S believes that H can do a.

Counts as an attempt (in

to p being the case.

S has a reason to support the

(in various degrees) by S

Precondition(s)

Counts as a commitment

Essential condition

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Law’s reality

(2) ‘When I said “It is raining”, I did not commit myself in any way to the notion that it is raining.’10 It would not be at all clear what we would be supposed to conclude from (1) and (2). But why is this? There is no logical inconsistency between the propositions expressed in these utterances. (1) is about the world. (2) is about Sally’s commitments. On the face of it, then, they could both be true. However, as speech acts, the assertions (1) and (2) are contradictory, because (1) and (2) involve inconsistent commitments on Sally’s part. In (1), Sally makes a commitment. In (2), she makes a commitment that she made no commitment when she uttered (1). These commitments are inconsistent, and this is why we cannot, without more information, know what to do with the conjunction of (1) and (2). All assertions – that is, all utterances that succeed as assertions – involve commitment. But the kind and degree of commitment varies depending on the type of assertion. ‘I am adamant that it is raining’ is in this way quite different to ‘I think it might be raining.’ Both statements involve some commitment to it being raining, but the commitment is of a very different degree. Similarly, ‘I deny that it is raining’ commits one to the falsehood, not the truth, of the proposition that it is raining. Assertions also have preconditions. We can think of these initially as background assumptions that are usually taken for granted in the making of the statement. Consider the following examples. (3) ‘It is raining, but I have no support whatsoever for that claim.’ (4) ‘Four plus five equals eight, but I have no reason to maintain that it equals anything other than nine.’ (5) ‘Dinosaurs once walked the earth, but there is not a shred of evidence to support this contention.’ We can immediately recognise that these statements are defective, but they are not defective in the way that the combination of (1) and (2) was. One cannot make the statements ‘Four plus five equals eight’, ‘It is raining’ and ‘Dinosaurs once walked the earth’ without committing oneself to the truth of the propositions expressed, but one can make these assertions even if one holds to the second clauses in the examples above. Thus, if one says ‘It is raining’, then one succeeds in making an assertion even if one has no support whatsoever for that claim. These examples are defective, not because the first clauses commit

As intended there, this does not mean that Sally believes that it is raining but that she is not prepared to provide a guarantee to that effect. Her claims are to be taken literally. 10

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the speaker in a way inconsistent with the commitment in the second clauses, but because the first clauses have an implication that is inconsistent with the commitment in the second clauses. Again, note that, though these are very strange utterances, there are no logical inconsistencies in the propositions expressed in (3)–(5). It is certainly logically possible for p to be true in the absence of any evidence for p. Nor – though this is jumping ahead a little – is the difficulty with the sincerity conditions of the utterances. It is quite possible for a person to believe that p without any evidence for p. In fact, that seems to be quite common. Hence, someone can state that p, make that statement sincerely, and yet if they cannot provide any reason at all in favour of the claim, then there is something defective about their statement. It is important to see that ‘any reason at all’ is meant literally. If the speaker has even the flimsiest piece of evidence, or even a bad reason, then the statement will not be in this way defective. Moreover, the issue is not whether the speaker is able to articulate a reason. It can be perfectly in order to make a statement supported by a reason that one feels one cannot articulate.11 So, what is the problem here? The problem is that the complete absence of a reason to believe that a proposition is true is in tension with the commitment implied by the assertion. The utterances (3)–(5) above are defective, and sound so odd, because the speaker first makes a commitment but then undermines the commitment, not directly, but by stating that the commitment is entirely unfounded. Shifting focus for a moment to the hearer can help us to see what is going on. If a person tells me that it is raining but that she has no basis whatsoever for saying that it is raining, it cannot be clear to me what she has really said. Of course, I recognise that she uttered the sentence ‘It is raining’ but, as we have seen, the point of an assertion is to say something about the world – and as I am also told that the speaker has no evidence at all for her claim then what is it, exactly, that I am being told about the world? If this were to happen in reality, it is telling that in my perplexity I would likely shift my focus from the world to this speaker’s state of mind. A hearer is unlikely to respond to the utterances (3)–(5) by fetching an umbrella or rewriting mathematics or prehistory textbooks; they are more likely to do so by developing concern for the mental state of the speaker. Let us turn now to examine the sincerity condition for assertions. Consider the utterance: (6) ‘It is raining, but I do not believe that it is raining.’

11 That is, such an utterance is in order qua speech act. It is not defective in this way. It may, however, be defective from an epistemological viewpoint.

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Again, we can immediately see that this utterance is defective, but the defect does not lie in any inconsistency in the propositions expressed. It is quite possible for it to be raining and for the speaker to believe that it is not raining. Nevertheless, (6) does not succeed as an assertion. Why not? Because (6) involves a commitment that is inconsistent with the second clause of the utterance. In uttering the second clause of (6), the speaker does not commit herself to the fact that it is raining, as she states that she does not have this belief. That makes it impossible to understand the first clause of the utterance as making an assertion. Insincere assertions are of course possible. We call the paradigm examples of these lies. It is important to see, however, that lies work because (not in spite) of the sincerity condition. If I say that it is raining when I believe that it is not, this lie can work only because the hearer will normally take it for granted that I believe that it is raining. Lying, then, is insincere, but it necessarily trades on this sincerity condition. 2.1.2 Directives The directive is a second form of speech act. Directives include requests, orders, invitations, insistences, questions and the like. They also include what we might think of as negating directives: removals or curtailments of other directives. Permissions are of this kind. But let us put these to the side. The point of a directive is to try to get the hearer to do something. Again, directives come in various forces. An invitation carries a different force to an order, for instance. Directives have the world-to-mind ↑ direction of fit. Orders are obeyed or disobeyed, requests fulfilled or unfulfilled, invitations accepted or declined, and so on. The essential condition of a directive is that it counts as an attempt to get the hearer to do something. It is also essential that the hearer of a positive directive (that is, a directive to do something) would not do that thing in the ordinary course of events. ‘I order you to breathe’ can be a directive when it is said to a child petulantly holding his breath for example, but ordinarily it can be nothing but a joke. The reason for this is that a condition of satisfaction for a directive is that the directive plays a causal role in satisfying the direction of fit. ‘I order you to breathe’ is obeyed only if the hearer breathes because of the order. Similarly, the subject matter of a negative directive (directives not to do something) cannot be something that the hearer would not do in the ordinary course of events. ‘Do not eat decomposing rats’ is not a directive that can seriously be aimed at me. A precondition of a directive is that the speaker believes that the hearer can do the thing (or refrain from doing the subject of a negative directive). ‘Transfigure yourself into a tadpole’ cannot succeed as an order, though it is often possible to order people to try to do things that are impossible. My wife

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might order me to write the next great novel, and I can try to follow that order and to that extent the order succeeds, but as I do not have the ability actually to succeed, I can try to obey but I cannot obey. Note, however, that even an order to try has this essential condition: that the speaker believes that the hearer can try. I cannot obey the command ‘Try to turn yourself into a tadpole.’ I have no idea what trying to do that would entail. The sincerity condition for a directive is that the speaker wants the hearer to perform the relevant act. This does not necessarily mean that the speaker must have a burning desire for this; nor is it inconsistent with conflict within the speaker. Take, for instance, the father who tells his extremely upset son that he has to go to school where the father would in many ways much prefer the son to remain at home. This order succeeds because, notwithstanding the father’s desire just mentioned, he still wants his son to go to school. Another useful example might be the First World War captain passing on an order that his troops are to ‘go over the top’. We might imagine him expressing himself as follows: ‘Men, I have to tell you that when the signal comes we will have to go over the top. But frankly, men, I wish you would all just pack up and go home.’ There are two ways to read this utterance. Most likely, it is an order by the captain to his men. He is ordering them to go over the top, but he is disassociating himself from the order. The meaning of the utterance is something like ‘I order you to go over the top, but I wish that I did not have to give this order’, where he does want his men to go over the top, but he wants this only because he feels that it is necessary to obey the order given to him even though he believes it to be a stupid one. Alternatively, if he really does not want his men to go over the top, then he passes on but does not himself give the order. Insincere orders are possible, of course. I might order you to do something that I really do not want you to do.12 But an order of this kind can succeed only if you assume that I do want you to carry out the order. Insincere orders function because of the sincerity condition. 2.1.3 Commissives The point of a commissive is to commit the speaker to some future course of action. The philosopher’s favourite example of a commissive is a promise, but there are many others, including vows, oaths, undertakings, assumptions, agreements and, probably the most common in ordinary speech, offers. There are also what we might call negative commissives, which include threats and extortions. The direction of fit for a commissive is world-to-word ↑. The essential condition is that it counts as a commitment by the speaker to some future action. This commitment can come in various strengths. An oath is a particu Eg HLA Hart, Essays on Bentham, 247.

12

58

Law’s reality

larly strong form of commitment, for instance. The commitment is also often conditional, particularly in the case of negative commissives: for example, ‘If you don’t shut up, I am going to set fire to your pants.’ A precondition of a commissive is that the speaker believes that she can perform the action in question. A promise to transfigure myself into a tadpole is defective. Further, for positive commissives, the speaker must believe that the hearer wants or will benefit from the action in question. Consider the utterance: (1) ‘I promise to bring you a bottle of wine.’ In ordinary circumstances, that will succeed as a promise. But if the speaker believes that the hearer is an alcoholic who desperately wishes to avoid alcohol but is struggling with temptation, then the utterance is not a promise but a threat. In the same way, I might say: (2) ‘If you don’t stop, I promise I will rip your head off.’ This is not a promise but a threat. It seems that we use the verb ‘to promise’ in this context because it is generally employed to indicate strong commitment. In the same way, I might say to my skiing-mad son, ‘Don’t worry, I promise that there will be heaps of snow this weekend.’ This fails as a promise because it is inconsistent with the first precondition mentioned above, that is, that the speaker believes that he can perform the relevant action. I cannot make it snow. In fact, this utterance is an indirect speech act – a topic explored below. It is a strong assertion. With negative commissives, a precondition is that the speaker believes that the hearer does not want the action performed or that the action is not in the hearer’s best interests. Consider: (3) ‘I promise that, no matter how much you beg me to stop, I am going to cut off your leg with this saw.’ This would normally be a threat, but it would not be if the hearer needed an amputation to save her life, no anaesthetic was available, the hearer realised that the ‘operation’ was necessary but was afraid of the pain, and so on. The sincerity condition for a commissive is that the speaker intends to perform the action in question. Of course, this does not mean that insincere promises are impossible, but it means that insincere promises can work only because of the sincerity condition. ‘I promise that if you loan me the money I will pay you back on Friday, but in fact I intend never to pay you back’ is not going to work (that is, the utterance does not create a promise).

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2.1.4 Expressives The point of an expressive is to express a psychological state. Expressives include congratulations, thanks, greetings, apologies, condemnations and depreciations. Take the following examples. (1) ‘Congratulations on your engagement.’ (2) ‘I am sorry for calling your mother a rhinoceros.’ (3) ‘Thank you for reminding me about my meeting.’ In these cases, there is a presupposed || direction of fit. It is taken for granted in (1) that the hearer has become engaged, in (2) that the speaker called the hearer’s mother a rhinoceros and in (3) that the hearer reminded the speaker about the meeting. For expressives, it is convenient to examine their conditions in reverse order. The sincerity condition for an expressive is that the speaker has the psychological state in relation to the proposition in question. The sincerity condition for (1) is that the speaker is glad about the hearer’s engagement, in (2) that the speaker regrets calling the hearer’s mother a rhinoceros and in (3) that the speaker is grateful that the hearer reminded her about the meeting. As always, this does not mean that insincere expressives are impossible, but insincere expressives work because of the sincerity condition. The speaker of (2) may succeed in placating the hearer, for instance, because the hearer will assume that the speaker feels regret even if he does not. (Irony and the like are special cases, examined below.) A precondition for an expressive is that the propositional content in question relates appropriately to the speaker or the hearer. I can congratulate you on your engagement but not on the fact that e=mc2, unless you happen to have some particular connection with that formula. Likewise, I can thank you for reminding me about my meeting, but I cannot thank you for the fact that I am 183cm tall. The essential condition for an expressive is that it counts as an expression of the psychological state contained in the sincerity condition about the state of affairs contained in the proposition. That is a mouthful, but it can be made clear using our examples. (1) succeeds as an act of congratulation because, in uttering (1), the speaker expresses her happiness about the hearer’s engagement. (2) succeeds as an apology because, in uttering (2), the speaker expresses her regret at calling the hearer’s mother a rhinoceros. And (3) succeeds as thanks because, in uttering (3), the speaker expresses his gratitude at being reminded by the hearer of the meeting.

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2.1.5 Declarations The fifth type of speech act is very different from the others. It is also the most important for our purposes. The point of a declaration is to change the world by making the declaration. Take the following examples. (1) (2) (3) (4)

‘I now pronounce you husband and wife.’ ‘You can keep my watch. It is yours now.’ ‘War is hereby declared.’ ‘Okay, let’s start.’

If uttered by the right person in the right circumstances, these are declarations. If (1) is uttered by a person empowered to marry others during a marriage ceremony, then the utterance of (1) makes two people married. The giver in (2) makes the watch the hearer’s by saying that the watch is the hearer’s. If the appropriate person or body in a political system in the relevant circumstances utters (3), then the utterance causes a state of war to come into existence. And when uttered by John Searle at the beginning of his lectures – as he was in the habit of doing – (4) makes the lecture begin. The essential condition of these utterances is that they count as an alteration of reality in virtue of the performance of the illocutionary act itself. They change the world by representing the world as being so changed. Because of this, they have both the word-to-world and the world-to-word direction of fit. We can say that they have a double ↕ direction of fit. The precondition is that the speaker has an appropriate status within the relevant institution (if such is relevant). Not everyone is qualified to marry people and few can declare war. Moreover, while it may seem that anyone can give their watch away (but not anyone’s watch), in fact this relies on an institution of private property, the existence of which is a contingent matter. And while Searle could start his lectures by uttering (4), the same utterance by a student would have been a request or a demand (a directive) and not a declaration. Declarations have various sincerity conditions, but they are relatively unimportant. So, for instance, a chairperson of a meeting can ‘insincerely’ adjourn the meeting by saying ‘The meeting is adjourned’ when she wants the meeting to continue, but her contrary desire does not prevent the meeting being adjourned. For this reason, we can ignore this condition. The most famous declaration in the Judeo-Christian tradition is the one at the beginning of the Bible. In the King James version: ‘And God said, Let there be light: and there was light.’13 This tells us that God made light appear by saying that light will appear. This is a supernatural declaration. Human beings cannot do this kind of thing. We cannot alter the physical world by making Genesis 1.3.

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declarations. But we can alter the world that we create in this way. We can change human institutional reality and that, as we will see in Chapter 7, is itself so extraordinary a feat that it has its own kind of magic. 2.2

Indirect Speech Acts and a Little Either Side

Consider again the utterance ‘Can you pass the salt?’ As we saw, this phrase is not normally used to mean what it literally means. It is usually a request to pass the salt. This is very common. We frequently use utterances to mean what they do not literally mean (contract lawyers please take note!). For instance, we very seldom issue directives directly, as it were. If I want you to pass the salt, I am unlikely to say ‘Pass the salt, please.’ I am much more likely to say something such as: ‘Could you pass the salt?’, ‘Would you pass the salt’, ‘Is that the salt just over there?’, ‘Would you mind passing the salt?’, ‘Is there any salt on the table?’, ‘Where is that salt?’, ‘Has anybody seen the salt?’, ‘Where has the salt got to?’, ‘Who’s hiding the salt?’ or (my wife’s favourite forms) ‘Do you think that it would be a good idea to pass the salt?’, ‘Should you pass the salt?’ or even ‘Do you want to pass the salt?’ Generally speaking, the more imposing the directive, the more likely we are to use an indirect speech act. Even in the military, most orders are not issued as such. My favourite (fictional) example occurs when Captain Willard is ordered to ‘terminate’ Colonel Kurtz ‘with extreme prejudice’ in the movie Apocalypse Now. ‘I hereby order you to kill the Colonel’ just did not need saying. Likewise, when Willard is told ‘You understand, Captain, that this mission does not exist, nor will it ever exist’ we know perfectly well that this is an order, though it is presented as an assertation about Willard’s mental state, and we know precisely what it means, though we also know that the mission does exist, that Willard knows that it exists and that the rest of the movie will tell the story of this mission. Amusingly, one of the few times that we do issue what seem to be directives directly is when we make offers, which are not in fact the orders that their form suggests: they are commissives and not directives. It would be a strange person who responded to ‘Make yourself at home’, ‘Grab a seat’ or ‘Help yourself to a chocolate’ by saying ‘Stop bossing me around, I have my rights’, for example. I did once have the following conversation with a friend for whom English was a second language. Me: ‘Hope that the police let you off the fine.’ Friend: ‘I am hoping that already.’ The mistake, of course, was to interpret my utterance as a directive, though that was its literal meaning.14

14 Though, in this case, my utterance was not an indirect speech act. It was, rather, a kind of contraction, where we drop a pronoun.

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Indirect speech acts are very common generally, not only when dealing with directives. It is usually, though not always, possible to make an indirect speech act by stating one of the conditions of the illocutionary act intended. A good example of this is making an assertion by stating the sincerity condition of that assertion. I can assert that it is raining by saying ‘I believe that it is raining’, for instance. In normal contexts, we would understand this to be a statement about the world and not about my mental state. A: ‘How’s the weather today?’; B: ‘I think it’s raining’; A: ‘Stop changing the subject. I ask you about the weather and all you do is bleat on about your mental state’ would be a strange conversation. The same can be done for directives, commissives and expressives. ‘I would really like it if you cooked dinner tonight’ is normally a request that you cook dinner and not a statement about my preference schedule; ‘I certainly intend to be at the party on time’ is usually an undertaking to be on time and not a mere report of my objectives; and ‘I sincerely regret calling your mother a rhinoceros’ would normally be an apology and not a piece of autobiography. We can often do the same with preconditions. Consider ‘There is every reason in the world to believe that Paul is an honest man’, ‘You can go out and do the shopping this week’ and ‘I am sure that I will be able to make it to the meeting on time.’ These are an assertion that Paul is an honest man, a somewhat impolite directive to do the shopping and a commitment to being on time. Indirect speech acts have a curious structure. They say what they do not say by way of saying what they do say. Let me explain. In order to understand an indirect speech act, we have to realise that the speaker’s primary intention is not captured by the literal meaning of the utterance, as all the examples just examined reveal. Nevertheless, the literal meaning of the utterance is intended. Consider ‘Can you pass the salt?’ Though this is a request to pass the salt, it can be perfectly in order to answer the literal question asked. For instance, you might say ‘No, sorry, there is none on this table.’ One can also answer in the affirmative, but that answer will not be enough (except to make a joke). ‘Yes, and here it is [as I pass the salt]’ is a perfectly good response. Consider also the following reply to being asked whether you know where Queen Street is, an indirect question (directive): ‘Yes, I do know where it is. It is two blocks this way.’ In other forms of speech, however, the literal meaning is not intended. This is the case with metaphor, for instance. So, if I say ‘My mind turned the corner in darkness and fed off the mould and lichen growing on the walls of the impossible’, it will not do to ask me about precisely which species of mould were ingested nor what they tasted like. On the other hand, many utterances are used to perform more than one speech act. Consider, for instance, the utterance ‘Yes’, when given as a reply to the question ‘Do you have room for another person in your car?’ This is likely

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to be meant as an assertion (‘Yes, there is room’) and as an offer of a ride in the car. Again, this is very common. For convenience, it is useful to introduce some terminology at this point. Say that I utter the phrase ‘Has anyone seen the salt?’ As we have observed, this literally asks whether anyone has seen the salt. That, however, is not what we will call the primary meaning of the utterance. The primary meaning of the utterance is the main reason for the speaker’s utterance. It is to get someone to pass the salt. Asking whether someone has seen the salt is a secondary meaning of the utterance. In an individual case, there may be more than one primary and more than one secondary meaning of an utterance. There may also be cases in which there is a third, even less important meaning, that we could call a tertiary meaning, and so on. Of course, these are just terms of convenience and judgement is required in their application. We are not pointing here to any bright lines in the investigation of language but merely to useful tools in the analysis of speech acts.

3. DEONTOLOGY A crucial if implicit feature of the discussion above is that speech acts carry with them a deontology. This is a point of first importance. It is also, however, deeply antithetical to a fundamental assumption made by most philosophers of law, indeed by most philosophers. Because of this, the issue requires careful consideration. In order to do this, it is first useful to distinguish between two different kinds of rules. 3.1

Regulative and Constitutive Rules

Due to Hart’s work, philosophers of law are familiar with the distinction between descriptive and prescriptive rules.15 But there is another distinction that needs to be spelled out. Consider the following two rules that are in place for an imaginary game of poker. (1) No one is permitted to bring any cards to the game. (Anyone found to have brought cards to the game will have all his money confiscated and will be taken out back and shot.) (2) The order of hands, from highest to lowest, will be as follows: royal flush, straight flush, four of a kind, full house, flush, straight, three of a kind, two pair, pair, high card.

Eg HLA Hart, The Concept of Law, 8–10.

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(The utterance in parenthesis in (1) is ignored in the following, but it is included in order to clarify the nature of the rule before the parenthesis.) (1) and (2) state rules. But the rules are of different kinds. Rule (1) regulates the playing of poker in this particular tournament. Rule (2) also regulates, but it does more than this. A person who breaks rule (1) is playing this version of poker in an impermissible way. A person who breaks rule (2) is not playing this version of poker. In this way, rule (2) is constitutive. It is a rule that constitutes this version of the game of poker. Similarly, the rules of chess that a rook can travel only horizontally or vertically, that a bishop travels on a diagonal and that a pawn can move only one space forward but attacks one space forward on each diagonal but not straight ahead are constitutive rules of chess. A player who broke them (or a sufficient number of them) would not be playing chess, because these rules constitute the game. Constitutive rules typically (though not always) have the form x counts as y in c, where x is a person or an object, y is some role within an institution and c is the relevant context. So, for instance, x (moving one square straight ahead) counts as y (a move of a pawn) in c (the game of chess). Or x (having four of a kind) counts as y (a hand that beats anything but a royal flush or a straight flush) in c (this version of poker). Or x (I) counts as y (a professor) in c (the university). And so on. With this in mind, we can return to our discussion of deontology. 3.2

Commitments and Obligations

One of the major discoveries in our analysis of speech acts is that these acts involve commitment. This is most obviously the case with commissives. Clearly, it makes no sense to say that I promise to do something but I am not committed to doing it. Making a promise is making a commitment. The crucial thing is to see that this is constitutive and not because of some regulative rule. The point is not that there is a rule that insists that if I say ‘I promise to cook dinner’ I am committed to cooking dinner. There may be such a rule, but that is not the point. The point is that saying ‘I promise to cook dinner’ is undertaking a commitment to cook dinner. We use the term ‘commitment’ in two different senses. Compare: (1) He should not be penalised for making contact with the kicker, because he was committed to the tackle before the kicker kicked the ball. (2) Telling my wife that I was having an affair with 26 other women committed me to making some not insignificant changes in my life.

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(3) The moment I first held my son in my arms, I realised that I had a commitment that, no matter how much I wished to succeed, I would struggle all my life to live up to. (4) They were all relying on me. Though I had done nothing to ask for it, I had to regard their request as imposing on me a solemn commitment. The sense of commitment in (1) and (2) is that of having set a path or direction to one’s future that is difficult to alter. The tackler in (1) had put himself in a position such that it was physically impossible, or at least very difficult, to avoid making contact with the kicker. The man in (2) made changes in his life inevitable by telling his wife about his affairs. For convenience, we can refer to this as momentum. But in (3) and (4) the sense of commitment is that of obligation. The father in (3) feels an obligation to look after his son and the person in (4) feels obligated to rise to the request. It is important to see that both senses of commitment are involved in promising and that both are a consequence of the constitutive rules of promising. If I promise to cook dinner, not only does my promise carry what we are calling momentum, but it creates an obligation in me to the hearer to cook dinner. And this is not because there is some rule external to promising that requires this, though there may be such a rule. It is because undertaking an obligation is constitutive of making a promise. Because of the wider nature of the investigation undertaken in this book, it is worth pausing for a moment to reinforce this point. In his discussion of international law, Hart considers the idea that states are bound by international law only because they have imposed the norms of this law on themselves. One of his reasons for rejecting this notion is the following. The […] view that a state may impose obligations on itself by promise, agreement, or treaty is not, however, consistent with the theory that states are subject only to rules which they have thus imposed on themselves. For, in order that words, spoken or written, should in certain circumstances function as a promise, agreement, or treaty, and so give rise to obligations and confer rights which others may claim, rules must already exist providing that a state is bound to do whatever it undertakes by appropriate words to do. Such rules presupposed in the very notion of a self-imposed obligation obviously cannot derive their obligatory status from a self-imposed obligation to obey them. It is true that every specific action which a given state was bound to do might in theory derive its obligatory character from a promise; none the less this could only be the case if the if the rule that promises, &c., create obligations is applicable to the state independently of any promise.16

Ibid, 225.

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This is a clear example of the view that is here being rejected. For Hart, in the absence of the rules about which he speaks, a state may make a promise, an agreement or a treaty that created no obligations whatsoever. This cannot be right. If there are no obligations, then there is no promise, agreement or treaty. Hart’s mistake is to think that the rules to which he refers are merely regulatory. They are not. They are constitutive of promises, agreements and treaties. The real question, then, is not whether the promises, agreements and treaties of states can create obligations, but whether states can make promises, agreements and treaties. In this context, is it important not to be distracted by two related issues. The first concerns the conventional meanings of language. Naturally, uttering ‘I promise…’ counts as making a promise only because of English language conventions. Thus, there are external rules that determine that the words ‘promise’, ‘agreement’ and ‘treaty’ have the meanings that they do in English. Certainly, it is not one of the constitutive rules of promising that this activity bears the name ‘promising’, for example. Nor it is essential that one makes a promise when uttering the phonemes in ‘I promise’. Of course, in other languages, the words are different though the activity is the same. The constitutive rules for promising are the same in England, Germany and France, though the activity is called a promise in England, ein Versprechen in Germany and une promesse in France. This, however, is a different, and in this context irrelevant, point. The rules here are, as we have seen, conventions of language and not moral rules. They tell us nothing about how promises create obligations. What we see here is that conventions are arbitrary but nevertheless normative. Any phonemes could have been used to name promising. Likewise, the conventions for making kinds of promises could be different. These two utterances are good as promises. (5) ‘I promise to come to dinner.’ (6) ‘I promise not to come to dinner.’ But it could have been the case that that the only way to make the second commitment was to say: (7) ‘I antimise to come to dinner.’ The conventions are arbitrary. But given what they are, when I say (5) or (6) I commit myself and when I say (7) I utter nonsense. A second irrelevant issue concerns the institution of promising (and treaty making, and so on) itself. The rules that are used to establish the institution of promising are not themselves part of that institution. It is certainly possible to imagine cultures without an institution of promising. For promising to become possible in such a society, the members of the society would have to introduce

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such an institution. They would need to do so by creating rules constituting the institution by utilising other rules that are not themselves constitutive rules of promising. We can see that this idea is paralleled in Hart’s argument above. His view gains its plausibility from this fact. But this undoubtedly correct notion does not support Hart’s position. Hart is saying that a promise cannot create an obligation in the absence of a rule that promises are binding. That is wrong. In the absence of that rule, there would be, not non-binding promises, but no promises at all. The correct view is that saying ‘I promise’ cannot create an obligation unless there is an institution of promising to which the utterance connects, because otherwise saying ‘I promise’ could not count as the making of a promise. Other commissives also create obligations. If I invite you to dinner, my decision has momentum but it also creates obligations. If I slam the door in your face when you arrive, for instance, such action is inconsistent with the commitment I made by making the invitation. Again, the point is not that there is an external rule – say, a rule of hospitality – that says I ought to welcome you when you arrive (though there is such a rule). The point is that I assume an obligation to welcome you when I issue the invitation to you because that is partly constitutive of making an invitation. Even more obviously, if I invite you to dinner, I commit to providing dinner. As we did in the second section of this chapter, we can make this point by examining utterances where the commitment is denied. (8) ‘I invite you to dinner at my house this evening, but there will be no dinner.’ (9) ‘I invite you to dinner at my house this evening, but if you turn up, I won’t let you into my house.’ (10) ‘I invite you to dinner at my house this evening, but you are not welcome to turn up.’ These utterances do not issue an invitation to dinner. (9) and (10) are not invitations at all. (8) may not be one either. This is because issuing an invitation involves a commitment that the remainder of these utterances undermine. The point to see here is that language carries the meaning that it does only because it also carries deontology. An invitation, for instance, means what it means because it is an undertaking of an obligation. This is reasonably clear with positive commissives, but we must also see that it is just as true of negative commissives. Consider these utterances. (11) ‘If you don’t stop talking, then I will tear your vocal chords out; but I would never actually do anything like that.’ (12) ‘If you don’t stop talking, then he will tear your vocal chords out; but he would never actually do anything like that.’

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(11) fails as a threat and (12) fails as a warning, because the commitment in each – in (11) to do something and in (12) to the belief that someone else will do something – is undermined in the remainder of the utterance. If I make a purported threat but do not thereby undertake a commitment to carry out the threat, then I do not succeed in making the threat. Again, the deontology is internal to the speech act. One very important thing that this helps to reveal is that we are not here speaking of moral obligation. I cannot make a threat without taking on an obligation, but it may well not be moral to make the threat at all. I may have a moral obligation not to undertake that obligation. And even if I do undertake it, I may have a moral obligation not to act on that obligation. But this is another matter. Morality is not the subject of this investigation. We are exploring the nature of speech acts and not the consequences of this for action. Aspects of this will be explored later. It is not only commissives that involve commitment. All speech acts do. Consider assertives. If I say that it is raining, then I am committed to the fact that it is raining. And this is not commitment only in the sense of momentum. I have made a statement. This is not like picking my nose in private. It is a public performance. Because of this, as has been implied in the above, my hearers are entitled to ask for evidence, for instance. If I say ‘It is raining’ and you ask ‘Why do you say that?’, it will not do for me to reply ‘Oh, I don’t know. I just felt like saying it. I have no reason whatsoever for believing it.’ And the reason that this will not do is not because of some external rule that tells us that we ought to be able to back up our claims or the like, though there may be such a rule. It is because, if I make this reply, I cannot be regarded as genuinely having made an assertion in the first place. This shows that undertaking a commitment is constitutive of making an assertion. Directives also involve commitment in both senses. Most importantly, if I order you to do something, then I am committed to your being able to do it. This too is constitutive of ordering. We will revisit this in Chapter 12. Expressives also involve commitment in these senses. If I apologise for calling your mother a rhinoceros, this commits me to regretting calling your mother a rhinoceros, and so on. Declarations also involve a deontology, though this is such a special case that it is best left until later. We examine this in Chapter 7. We have seen that the kind of obligation under discussion is not moral obligation. This qualification is important, but it is also imperative not to pull the crucial punch. We have discovered that the supposed inability to derive an ought from an is, a fact from a value, is a myth. In reality, we do this all the time. If we did not, then many of the most basic features of language (and not only language) would be impossible.

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Fact and Value

I anticipate that to many, this will be a jarring conclusion. For many philosophers of law, the distinction between fact and value is one of the assumptions that one must internalise before the study of the subject can really begin. In fact – and this is a truly great irony – for many students of jurisprudence this notion, thought to be derived from the philosophy of David Hume, is the only philosophy other than the philosophy of law that they will ever encounter. This is also ironic because, as we will see in Chapter 11, though relying on the distinction, much mainstream jurisprudence can make sense only if the distinction is misguided – which, happily, it is. However, because of the commitment to the distinction, it is necessary to address this issue in more detail before continuing. Take the following well-worn argument. Premise 1: All men are mortal. Premise 2: Socrates is a man. Conclusion: Socrates is mortal. Consider the following statements about this argument. (1)

It would be inconsistent to accept the premises of this argument but deny the conclusion. (2) The premises of this argument are logically sufficient for the conclusion. (3) The premises of the argument entail the conclusion. (4) The argument is valid. (5) If the premises of this argument are true, then one is justified in asserting the conclusion to the argument. (4) and (5) are evaluative statements. This is obvious in the case of (5). Moreover, to say that an argument is valid is to recommend it, albeit in a limited way. Likewise, to say that an argument is invalid is to condemn it. But (4) is logically equivalent to (1), (2) and (3) and these are clearly factual statements. Let us put this bluntly: the fact that the premises of the argument are logically sufficient for the conclusion shows that the argument is valid, that is, that it is a good argument. Now, we should notice that the illocutionary force of (1) and (4), say, are different. (1) is typically said to describe a fact while (4) is normally uttered to praise an argument. Here, then, we have a distinction between fact and value. But the fact that this distinction can be made certainly does not show that (4) cannot be derived from (1). The important point here is that the propositional content of (1) and (4) is the same. You can, therefore, derive an evaluative statement from (1), and in the most straightforward way.

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Take a quite different kind of example. I look out of the window and see that it is raining. What I see is a fact. But surely, unless something exceptional is going on, I ought to conclude from this fact that it is raining. My eyes have given me good evidence for coming to that conclusion (another evaluative statement). It is possible to reply that the ought in question here arises on the basis of an external rule or principle that one should believe what the evidence suggests, but this is a strangely redundant idea. First, how could one understand the idea of evidence without relying on notions of what one ought to conclude? Surely, evidence consists of facts that one ought to take into account when coming to a conclusion. Second, it is not an external principle that requires me to align my beliefs with the facts. That principle is internal to belief itself. Correspondence to the world is the condition of satisfaction for beliefs. One cannot have a belief that one thinks to be false, for instance. We need no external principle for any of this. What we see here is again something that Kant realised long ago: practical reason is primary.17 The important point here is that theoretical reason is a species of practical reason. Theoretical reason is the part of reason that deals with what we ought to believe based on the evidence.18 Consider the statement: ‘You cannot derive an ought from an is, a value from a fact.’ Does it not follow from this statement that one ought not derive an ought from an is, a fact from a value; and does that not show that this statement is self-refuting? Imagine now that I am refereeing a game of rugby union. A player in a team leading 19–14 places the ball down over their opponents’ goal line. The player and his team start celebrating, believing that they have scored a try. I, however, find myself in a quandary. I know the relevant rule, Law 8.2: ‘A try is scored when an attacking player […] is first to ground the ball in the opponents’ in-goal’ and I know that what the player did satisfied this rule. But these are all facts.19 Because of this, I am at a loss. But then I remember John Rawls’ famous difference principle, clearly an evaluative principle; conclude that in this case the defending team are the least well-off; and so award them the try. The scores are now tied, kick to come. This example is so absurd that it is Pythonesque. I am a rugby union referee and I never have any difficulty at all deriving an ought from an is. If I did, refereeing would be impossible. And note again that this is not because there is some external rule stating that referees must follow the rules of the game. It is not as if a referee makes two decisions, one to referee and another to enforce I Kant, ‘Critique of Practical Reason’, 5:119–21. For more on this idea, see O O’Neill, Constructions of Reason: Explorations of Kant’s Practical Philosophy, ch 3. 19 That is, they are facts on the view here being rejected. Rules are, on this view, facts. The existence of a rule is not, one might say, itself a reason to enforce the rule. 17 18

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the rules. Deciding to referee a game of rugby union is (in part) deciding to enforce the rules of the game. The rules constitute the game. Enforcing the rules is constitutive of being a rugby union referee. When the referee in the example above awards the try to the defending team, he is not being a rugby union referee. He is not refereeing rugby union. In fact, he ceased to be a rugby union referee the moment he started taking the is/ought distinction seriously. What motivates belief in the is/ought distinction? The answer seems be something like this. The subject matter of the natural sciences is a world without values. There are no values in the world of trees, rocks, rivers, mountains and lakes, let alone in the world of quarks, bosons, neutrinos and muons. The universe is, simply, indifferent, not only to us but in general. Values are brought into the world by us.20 We value things, for good or bad reasons. We may value trees and rivers as sources of wood and water, mountains and lakes as objects of aesthetic pleasure, and so on. But those values are not there without us. Value comes into being because of creatures that value things. It is important to see that nothing that has been said here upsets this picture. The question is not whether values are brought into the world by us but how we bring them into the world. The standard view is that we do so only when we make explicit evaluations. That, I have argued, cannot be right. In fact, human beings bring values into the world whenever they make any kind of statement at all – and not only then. Human institutions, including the institution of language, are replete with deontology. A Higgs boson has no value in itself, but the statement ‘Higgs bosons exist’ commits the maker of the statement to the existence of Higgs bosons. The value does not reside in the boson, but in the institution used to describe and account for it and in the speaker’s use of that institution. Natural science may describe a world without value, but it is itself one of the most enormous commitments in the history of humanity. Why is this point important in a book on the philosophy of law? The answer should be fairly obvious already: Law too is a human institution. It creates its own deontology. 3.4

Desire-Independent Reasons for Action

When I make a promise, I create a desire-independent reason for action. I have a reason, that is, for fulfilling the propositional content of my promise that is independent of the desires that I might have had absent the promise. Note that we cannot say that I have a reason independent of all desire – if I do not desire to perform an action, I will not. Rather, in making a promise, I create

20 The referent of ‘us’ can be debated too. Human beings? Higher order primates? All sentient creatures? Life?

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new desires. I want to fulfil the promise. The point is that this desire is not, we might say, primary. It is no mere inclination. Its origin lies in my commitment. Imagine that I have a suspicious spot that has been growing on my skin. I realise that it would be wise to see the doctor about this, but I just hate going to the doctor. Overall, on balance, I would rather just wait and see what happens. However, my wife finds out about the spot and begins to pressure me. Still, on balance, I do not want to go to the doctor. In a weak moment, however, I promise her that I will go. I now I have a new reason to go to the doctor, a reason that generates a desire in me to go to the doctor,21 that is not grounded on my other desires. When I act on the promise, I act out of a desire, but the basis of that desire is my promise and not my primary desires.22 Surely, people can want to fulfil their obligations and keep their promises. Yes, but that is not like wanting chocolate ice cream. I want chocolate and I want to keep my promise. What’s the difference? In the case of the promise the desire is derived from the recognition of the desire-independent reason, that is, the obligation. The reason is prior to the desire and the ground of the desire.23

One potential problem with focusing on promising in this context is that it can make it seem that desire-independent reasons for action come into being only when making a promise or similar high level of commitment. That is not the case. Desire-independent reasons for action are created whenever we make any commitments and, as we have seen, we make these frequently. It is built into our intentionality. If I have a belief that it is raining, for instance, I cannot be indifferent to the truth of that proposition.24 The belief is itself normative. As usual, we can demonstrate this by imagining a relevant utterance: ‘I believe it that it is raining but I am utterly indifferent to the truth about whether or not it is raining.’ We would not know what to make of such an utterance. This is in part because the utterance is self-undermining, but there is a deeper problem. We cannot take the two halves of the utterance as correctly reporting the utterer’s state of mind, because she cannot have two such states of mind. Basically, because the belief is her belief, she cannot be indifferent to the truth of its content.25 Again, that is not because of some possible rule that says that

At least, this is typically so. There may be cases in which it would not, however. These cases are not significant now. 22 JR Searle, Rationality in Action, ch 6. 23 Ibid, 170. 24 Indifference here does not mean not caring either way; it means not having a commitment either way. 25 There is, however, another sense of ‘indifferent’. For example, ‘I believe that Sally has started dating Peter. I am totally indifferent.’ Here, the meaning is that the speaker believes that it is true that Sally is dating Peter but he does not care. That is fine. 21

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one ought to be concerned with one’s beliefs. It is because it is not in the nature of a belief that a believer could be indifferent to the truth of the propositional content of that belief. Normativity is built into belief, as into all other aspects of intentionality. 3.5 Morality A central claim made in this section of this chapter is that language and intentionality are normative by their very nature. We have seen, however, that this normativity is not moral. Nor is it prudential. It is natural, then, to ask for a name for this kind of deontology to distinguish it from these other kinds. Perhaps we could call it ‘speech act normativity’. I will avoid doing this, however. This is because, for reasons that we will only touch on in this book, I think that it is a mistake to regard normativity as coming in discrete kinds. Suffice it for the moment to say this. This book starts with the notion that, if we are to understand law, we need to see how it fits into the world of physics, chemistry, biology and the rest. This claim is also true for morality. And this almost certainly means that the foundations we are laying here are foundations of both law and morality. I do not mean to suggest that morality has all the features of the deontology that we have examined. For instance, I would not suggest that morality is ‘manufactured’ in the way that social institutions are. Nevertheless, as value is brought into the world by us, moral value is also. To understand this, we need to study how it is brought into the world by us and how this relates to the deontology here under examination. It is almost certain to relate very closely. That may appear to be an entirely radical approach to moral theory, but I might suggest in passing that it seems quite similar to the way in which Kant presents his analysis in the ‘Groundwork of the Metaphysics of Morals’, if not at all similar to how that work is sometimes interpreted. I have adopted in this work the method that is, I believe, most suitable if one wants to proceed analytically from common cognition to the determination of its supreme principle, and in turn synthetically from the examination of this principle and its sources back to the common cognition in which we find it used.26

This is a convenient point to discuss the fact that some have reacted to Searle’s dismantling of the is/ought distinction, not with the surprise that one might

What the speaker cannot do, however, is claim indifference to the truth of the assertation. That is, he cannot assert that Sally is dating Peter and also insist that he has no commitment to the truth of that proposition. 26 I Kant, ‘Groundwork of the Metaphysics of Morals’, 4:392.

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expect, but with the claim that the position he presents is, in fact, trivial.27 This is said to be because, though Searle’s argument establishes that some normativity can be derived from facts, the real issue is whether that normativity is morally relevant. The position is that it is not. Thus, it has been said that, however important Searle’s discovery may have been in certain contexts, it is ‘irrelevant to ethics’.28 It is first important to recognise that Searle does not claim that the normativity here under discussion exhausts the normative realm – a notion that appears wrongly to be imputed to him as part of this response to his view.29 This is a straw position. It is certainly to be lamented that Searle did not write more – or, indeed, much – on ethics, but the objection makes too much of his silence. Given this, then, there are two ways in which one ought to respond to the objection. The first is to deny that ethical relevance is crucial here. As we will see in Chapter 7 and elsewhere, what is actually crucial is not morality but the ability to motivate and explain human action. In this light, the objection, even if its premises were factually correct, appears to be entirely without force. The second response is to deny that Searle’s argument is irrelevant to ethics. Unfortunately, it is not possible here to examine this issue in the detail it demands, but it is possible to make the following points, which serve as important preparation for the argument of Chapter 12. Consider, for instance, this presentation of the objection. The constitutive-rules-based ‘oughts’ of games are […] defeasible to a very high degree. Certainly when playing baseball one ought to go to first base after four bad pitches are thrown, but no one ought (in any interesting sense) to play baseball in the first place: any baseball player can walk off the field, can abandon the game, any time he wishes – though of course if a professional baseball player were to do this, he would probably lose his job.30

It is certainly true that we have discovered nothing in the above that gives people a reason to play baseball. However, consider the claim that players can abandon the game any time they wish. That is surely a very odd claim. And note that we have already seen enough to see that this is wrong. Agreeing to play baseball is a speech act. It involves commitment. Having made that commitment, one cannot simply walk away at will. Anyone who has more than one child will be able to confirm the enormous resentment that is generated when 27 L Zaibert, ‘Intentions, Promises, and Obligations’; L Zaibert and B Smith, ‘The Varieties of Normativity: An Essay on Social Ontology’. 28 L Zaibert and B Smith, ‘The Varieties of Normativity: An Essay on Social Ontology’, 163. 29 See ibid, 167, 169, 172. 30 Ibid, 165.

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siblings abandon games and the like in this way. There may be no moral reason why one ought to commit oneself to playing baseball, but once the speech act is made one is committed and this commitment is assuredly relevant to ethics. This is plain even if we cannot here analyse the precise nature of this relevance.

5. Background 1.

THE NETWORK AND THE BACKGROUND

The network and the background are relevant to intentionality in general, though it is most convenient to examine these notions after exploring language. They relate to what we might call the ‘environment’ of instances of intentionality and speech acts.1 Say that, in 1990, I decided that I wanted to try to win a gold medal at the Olympic Games in solo synchronised swimming and that I intended to train for this purpose. This intention is perfectly intelligible, but it is so only in the presence of a network of other intentional states. So, for instance, I must have believed that solo synchronised swimming was an Olympic sport, that medals, including gold medals, were awarded in that sport, that the Olympics is a sporting event held every four years, that solo synchronised swimming is something that one can train for, and so on. Without these beliefs, I could not have that intention or that desire. No single element of the network need be necessary. So, for instance, I can still intend to try to win an Olympic gold if I believe that the games are held every five years. However, various sets are necessary and even some individual beliefs may be. If, for instance, my neighbour also formed an intention to win the same medal, but believed that the Olympic Games was a comedy festival, then his intention would not have been the same as mine. And this is so even though we could use the same language to denote it. You might say ‘Allan and his neighbour both intend to win a gold medal in solo synchronised swimming at the Olympic Games’ and you would assert this correctly, though our intentions are in fact quite different. Consider now another example. Say that we have been planning a day at the beach. On the morning of our trip I call you up and say: ‘I don’t think that we should go this morning. I just looked out the window and it’s raining.’ Except in extraordinary circumstances, you will know what this means – though, of course, there are clarifying questions you might ask, such as ‘How hard?’, Apart from Searle’s work, important works on the Background, though they do not utilise that terminology, include L Wittgenstein, On Certainty and P Bourdieu, Outline of a Theory of Practice. 1

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‘How long it do you think it will last?’, and so on. Again, you understand my utterance against a network of other intentional states. For instance, you believe that I live close enough to the beach to make it reasonable to conclude from the fact that it is raining outside of my windows that it is also raining at the beach. But there is a whole host of other factors also in play here. For instance, we both take it for granted that rain is constituted by water falling from the sky, that if we go to the beach in these conditions we will get wet, that we do not want to get wet in this way, that going to the beach is meant to be fun rather than a character-building exercise, and so on. The thing is that it would seem strange to describe these as yet more beliefs that we share – that is, to consider them to be part of the network. This is because to describe them as such misdescribes the role that they play in our intentionality. Let me explain. Take the notion that water falling from the sky will make me wet. If you were to say to me, ‘Do you believe that water falling from the sky will make you wet?’, I would answer in the affirmative; but I would also find the question very odd. This question is not like asking me whether I believe that the First World War ended on 11 November 1918. Your question is a bit like asking me whether I am sane. A person who thinks that the Olympic Games is a comedy festival has made a big mistake, but a person who believes that water does not make you wet does not know how to get on in the world. Thus, while ‘Water makes you wet’ is a belief that I have, it normally functions in my behaviour, not as a belief, but simply as part of my ability to cope with reality. Likewise, if you ask me ‘Do you believe that people walk by putting one foot in front of the other?’, I would say that I do. But it would be wrong to say that I act out of this belief when I walk. Putting one foot in front of the other in order to walk is normally just something that I do when I walk. Though no precise dividing line between the network and the background can be given, we can say that the elements just examined are part of the background and not of the network. That rain is constituted by water falling from the sky, that if we go to the beach when it is raining we will get wet, that we do not want to get wet and that going to the beach is meant to be fun rather than a character-building exercise are part of our shared background. They are best thought of, not as individual beliefs that we have (though we do believe them), but as elements of the way that we relate to the world. They are constituted by capacities and social practices and are in this way pre-intentional. As we will not need to distinguish between the network and the background in what follows, I will simply refer to both from here on as the Background, which I capitalise to distinguish it from the more familiar use of the term.

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2.

THE DEEP AND THE LOCAL BACKGROUND

It is also useful to make a distinction between the deep and the local Background,2 though again no precise dividing line can be drawn in this regard. The deep Background is set by features that all human beings share, including the basic facts of the natural sciences such as physics, chemistry and biology. A good example of this can be found in William Golding’s Lord of the Flies, a book that we will return to in more detail in Chapter 7. Consider, for instance, this passage from the end of the novel. The rock struck Piggy a glancing blow from chin to knee […] Piggy, saying nothing, with no time for even a grunt, travelled through the air sideways from the rock, turning over as he went. […] Piggy fell forty feet and landed on his back across the square red rock in the sea. His head opened and stuff came out and turned red. Piggy’s arms and legs twitched a bit, like a pig’s after it has been killed. Then the sea breathed again in a long, slow sigh, the water boiled white and pink over the rock; and when it went, sucking back again, the body of Piggy was gone.3

No one reading this has any difficulty recognising that Piggy has been killed. But note that the passage does not actually say this. So how, then, can we be so sure? The answer, of course, is that we take for granted that Piggy’s biology is basically the same as ours. The stuff that comes out of his head is blood and his brain, for example, and we know that human beings cannot survive without these things. Moreover, we presume Piggy’s body disappears into the sea because he is dead and not because, say, he has decided that it is now past time to accede to his father’s desire that he acknowledge his destiny to become king and unite the disparate tribes of the mermen, despite the fact that this is entirely possible in a fictional work. Similarly, we understand the passage to say that the rock knocked Piggy off the cliff, because we take for granted certain features of physics captured (near enough) by Newton’s laws of motion. Basically, we know that if a big, hard, heavy thing crashes into a human body, it will push that body. And we presume that Piggy fell onto the rocks because of gravity – though we are never told that gravity exists in the world of Lord of the Flies – and not because, say, someone (Roger?) was using telekinesis. Likewise, my intention to win a medal in solo synchronised swimming takes for granted that I am going to attempt this swimming in water and not, say, in concrete.



2 3

JR Searle, Intentionality: An Essay in the Philosophy of Mind, 143. W Golding, Lord of the Flies, 260.

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The Background can also be culturally specific, however. Consider again the notion that going to the beach is meant to be fun rather than a character-building exercise. This is something that we just take for granted, and yet it need not be so. One can imagine a culture (the English?) in which going to the beach is meant to be a character-building exercise or even a punishment, for example. Thus, shared social practices often form part of the Background. This is very important when it comes to understanding the use of language. So, to take a somewhat crass example, I was stunned as a young man when, after telling my American friends that ‘I was really pissed on New Year’s Eve’, they asked me with concern, ‘Why, what went wrong?’ Nothing. The rum and coke worked as it was meant to work – though the beer, being the standard American fermentation of that era, did not. Consider also this example from Lord of the Flies. Early in the book, one of the characters says ‘I ought to be chief […] because I’m chapter chorister and head boy. I can sing C sharp.’4 I take it that this is meant to be amusing, but we can certainly understand the character’s intentions. This is because we are close enough to the Background of the book and its author. But note that this Background is slipping away from us. In the world of my youth, being a choirboy (and even head boy) was, in the eyes of his peers, a reason for not giving a person any authority at all. In my world, this utterance would immediately exclude someone from being chief of anything except chief nerd. We will return to these points shortly.

3.

THE BACKGROUND AND CONDITIONS OF SATISFACTION

It is crucial to see that the Background plays an essential role in setting the conditions of satisfaction of our intentionality and speech acts. Suppose I go into a restaurant and order a meal. Suppose I say: Bring me a steak with fried potatoes. I take it for granted that they will not deliver the meal to my house, or to my place of work. I take it for granted that the steak will not be stuffed into my pockets or spread over my head. But none of these assumptions was made explicit in the literal utterance.5 If the restaurant in this example spreads the meal over the patron’s head, they have not complied with the patron’s request, even though the patron did not specify how he wanted the meal delivered. It is important to stress this, because lawyers are sometimes inclined to take precisely the wrong message from examples of this kind. The tendency is to say, for instance, that the



4 5

W Golding, Lord of the Flies, 28. JR Searle, The Rediscovery of the Mind, 180.

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restaurant is in breach of contract because courts impose conditions of reasonableness or the like on the performance of contracts. On this view, delivering the food to the patron’s place of work, encasing the steak in concrete or smearing the meal over the patron’s head is a performance of the contract, but an unreasonable one that a court will not accept. We must see, however, that this is really quite absurd. Forget about the law. If I order a meal at a restaurant and the waiter spreads it over my head, I do not regard that as a fulfilment of my request, albeit an unreasonable one. One might imagine the following ‘conversation’. Allan: ‘What the hell are you doing?’ Waiter: ‘Bringing you your meal, sir, as you asked.’ Allan: ‘I didn’t ask you to smear it on my head.’ But a waiter who replied as follows would be both a comedian and seriously risking personal injury. Waiter: ‘True, sir. But then you did not ask me not to do that either.’ The reply is literally correct, but that does not make it anything other than Pythonesque.6 The point is that the request for the meal is understood against a Background that makes the request intelligible and, in the kinds of contexts the example assumes, the request in conjunction with the Background determines that the request is complied with only if the meal is delivered to the patron at the restaurant, on a plate, on the table, and so on. In that light, consider also the following utterances. (1) ‘She cut the grass.’ (2) ‘She cut the cake.’ Though the occurrence of the word ‘cut’ is literal in [both] utterances, and though the word is not ambiguous, it determines different sets of truth conditions for the different sentences. The sort of thing that constitutes cutting the grass is quite different from, for example, the sort of thing that constitutes cutting a cake. One way to see this is to imagine what constitutes obeying the order to cut something. If someone tells me to cut the grass and I rush out and stab it with a knife, or if I am ordered to cut the cake and I run over it with

Incidentally, Monty Python were the masters at what we might call background humour, humour that consists of acting out what would be rational behaviour given an alternative Background. 6

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a lawnmower, in each case I will have failed to obey the order. That is not what the speaker meant by his literal and serious utterance of the sentence.7 We do not want to find ourselves in the position of having to say of someone who responded to the request ‘Would you cut the cake?’ by running it over with a lawnmower that she complied with the request, though in an unreasonable way. Rather, what we need to see is that she did not comply with the request, because the meanings of utterances are determined in part by what we are calling the Background. Another way of bringing this out is to see that changes in the Background can alter the satisfaction conditions of utterances. Imagine, for instance, that a certain kind of grass was discovered to contain a life-preserving compound and that this grass came to be sold by the blade. In these circumstances, a person who responded to the directive ‘Cut the grass’ by slicing off a single blade with a knife may well have obeyed the order. The crucial importance of this discussion can be captured by the slogan: No Background, no meaning. I mean by this to reject the following kind of claim (though it should be said that it is a vast improvement on what appears to be standard in some areas of legal analysis, with all its talk of the dictionary meanings of words and the like). ‘The formal semantic rules of language often place only very general constraints upon the meaning of a particular text or utterance: in interpreting the statements of others we place a heavy reliance upon a host of taken-for-granted assumptions that we share with them.’8 Without these ‘taken-for-granted assumptions’, there would be no meaning at all, no statements, no semantic rules, no language. To conclude this discussion, we can say that the Background has three important properties. First, for any utterance, there are an indefinite number of Background features in play. Second, if the Background features change, then the satisfaction conditions of the utterance can also change. Third, though we can make these features explicit, it is not necessary to do so and, moreover, when we do so our doing so will be dependent on yet more inexplicit features.

4.

SKILLS, INTENTIONALITY AND RULES

I learnt to play the guitar in my late teens. How did it happen? I recall that I was first taught how to play an open G major chord. I was told where to place my fingers. I was told: ‘You put your first finger on the second fret of the fifth string, your second finger on the first fret of the sixth string and your third finger on the third fret of the first string.’ Some people are told something



7 8

JR Searle, ‘The Background of Meaning’, 222–3. NE Simmonds, Central Issues in Jurisprudence, 163.

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more along the lines of ‘You do this’ and are shown what ‘this’ is. The point is that one is given some kind of formula or rule for producing a G major chord. When you first start playing, you have consciously to follow this rule. You have to think to yourself, ‘I have to put my first finger…’ After a while, however, you learn to do this automatically. In fact, when writing the above, I had to think carefully about how I play the G major chord and the first time I wrote it I got the rule wrong. I do not think about it any more. I just do it. This is a general feature of our acquisition of skills. Think about driving a car, learning how to operate a new appliance, and so on. The important point for us is to see that intentionality rises to the level of the background skill. In the beginning, I had to think about where I needed to place my fingers. Now, I just play a G major chord. Arthur Danto captured this idea with his notion of a basic action.9 A basic action is an action that a person does without doing something else by means of which or by way of which that action is performed. Originally, then, playing a G major chord was not a basic action for me, as I had intentionally to place my fingers in the relevant position and I played the chord by way of placing my fingers in that way. Today, however, I just play a G major chord. That is now a basic action for me. Likewise, when I learnt to ski, I spent half the day yelling to myself (in my head!) ‘Keep the weight on this leg’ when trying to turn, only repeatedly to fail to get around and falling over in the snow; but by the afternoon I was turning without thinking about it. Turning had become a basic action. This is important for us for the following reason. When I learnt to play a G major chord on guitar, I learnt to follow a rule. I applied the rule consciously. But I do not do that any more. When I play a G major chord, then, am I now following the rule or not? Some theorists maintain that I follow the rule (or some rule) unconsciously. That, I think, is wrong. Though we need not examine this issue here, I believe it better to think of the rule as part of my Background. I do not follow the rule (consciously or unconsciously), but the rule is nevertheless essential to understanding my behaviour as it has become part of my Background. In this way, we can say that my behaviour is rule governed. If you like, I have internalised the rule so that I need no longer follow it. Perhaps the most powerful example of this is the rule that one is to drive on the left- or right-hand side of the road. In New Zealand, I regularly drive on the left side of the road without ever thinking of the rule that I must do so. And I manage constantly to amaze myself by being able to drive on the right-hand side of the road in Europe or North America without giving the rule there any thought either. As I am not

9

AC Danto, ‘Basic Actions’.

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conscious of these rules, I am not following them, but it would be spurious to say that the rules play no role in the explanation of my behaviour. If you understand the complexity of the causation involved, you can see that often the person who behaves in a skilful way within an institution behaves as if he were following the rules, but not because he is following the rules unconsciously nor because his behaviour is caused by an undifferentiated mechanism that happens to look as if it were rule structured, but rather because the mechanism has evolved precisely so that it will be sensitive to the rules. The mechanism explains the behaviour, and the mechanism is explained by the system of rules, but the mechanism need not itself be a system of rules.10

JR Searle, The Construction of Social Reality, 146.

10

6. Interpretation This chapter says more than may be strictly necessary regarding interpretation, but I think that this discussion is nevertheless useful because much jurisprudence seems to operate on the basis of an entirely different picture from the one presented here. Let us begin with the following simple sentence: (1) ‘The cat sat on the mat.’ The first question that we need to ask is whether this is a sentence that needs to be interpreted. The first definition of ‘interpret’ found in the Oxford English Dictionary states: ‘To expound the meaning of (something abstruse or mysterious); to render (words, writings, an author, etc.) clear or explicit; to elucidate; to explain.’ Given this, one might say that (1) does not need to be interpreted. The meaning of this sentence does not need to be expounded, made clear, elucidated or explained, as it is already evident. It is certainly not abstruse or mysterious. Following this line of thought, Joseph Raz has said that ‘an interpretation of something is an explication of its meaning’1 and that ‘interpretation is possible only when the meaning of what is interpreted is not obvious.’2 This approach has been reinforced in jurisprudence because the issue of interpretation arose there in the context of matters such as discretion, the distinction between hard and easy cases, and the like. The standard context for the discussion of interpretation in jurisprudence, that is, is in the elucidation of what is not evident.3 Consider, however, the second definition of ‘interpret’ found in the Oxford English Dictionary: ‘To make out the meaning of.’ In this sense, does (1) need to be interpreted? One’s reflex might be still to answer this question in the negative. ‘You do not need to “make out” the meaning of that sentence’, one might say, ‘as the meaning is obvious.’ The position advanced in this chapter, however, is that this is at least deeply misleading. Certainly, one does not need to exert oneself in order to discover the meaning of (1). Reading (1) is not

J Raz, Between Authority and Interpretation, 47 (citation omitted). Ibid, 224. 3 I am referring, of course, to the arguments found especially in R Dworkin, Law’s Empire, which develop the position advanced in R Dworkin, Taking Rights Seriously. 1 2

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like reading Finnegans Wake. However, there is a great deal going on here that does not necessarily meet the eye. For example, we interpret (1) to mean that a domestic cat sat on the mat and not, say, a lion or a tiger. Likewise, we do not read (1) to say that a cat sat on a tangled clump of hair. (1), however, does not tell us that it refers to a domestic cat nor rule out that it indicates hair. I am not suggesting that (1) is ambiguous in this regard. The point, rather, is that we need to discover why (1) is not ambiguous. That is the philosophically interesting question here. In this regard, it is noteworthy that Raz detects that there is something odd about saying that interpretations explicate the meanings of their objects. We speak, for instance, of musical performers as offering interpretations of musical works, and yet performers do not seem to explicate the works they interpret. Murray Perahia’s interpretation of JS Bach’s Goldberg Variations (BWV 988) is not an explication, but a performance, of the work, for instance. This leads Raz to say something quite strange: ‘interpretations through performance (of music, a play, etc) display […] the meaning of what they interpret’.4 I do not wish to insist that this is wrong (though I think it is wrong). The meaning of a work of music is itself a philosophical issue that is best avoided here.5 But what must be said is that, primarily at any rate, it is the work itself that is displayed and not its meaning. Olivier’s interpretation of Hamlet certainly displays Hamlet to its audience. It is debatable, however, whether it displays the meaning of Hamlet. Gieseking’s interpretation of Debussy’s Préludes displays that work, but it is dubious whether it displays the work’s meaning, in part because it is not clear that the work has meaning. Why is this significant? What is a musical work? That, of course, is itself a philosophical question, which I will only touch on answering here. What we need to see, though, is that Ravel’s Concerto for Piano and Orchestra in G, say, is not the same as the score of that work. The concerto is a musical work. It has a sound. The score has no such thing. The score is merely the recipe or set of instructions for creating the musical work. We encounter the concerto, then, only when we hear it performed – perhaps also when we imagine hearing it performed in our heads. The crucial point is that we have no pre-interpretive access to the work. We do not stumble across the concerto lying in the dirt and then consider how to interpret it. We gain access to the work only via interpretation. The primary purpose of performance, then, is to display the work itself. Danto’s great discovery in The Transfiguration of the Commonplace is that the same is true for artworks constituted (in part) by physical objects. The red painted canvases can be encountered prior to interpretation – I can just



4 5

J Raz, Between Authority and Interpretation, 47 n 3. See, eg, S Davies, Musical Meaning and Expression.

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bump into them, for example – but I cannot just bump into ‘The Israelites Crossing the Red Sea’ or ‘Kierkegaard’s Mood’. Qua artworks, these entities can be encountered only on the basis of an interpretation of the physical objects that partly constitute them. We cannot, then, discover ‘The Israelites Crossing the Red Sea’ and then interpret it. It is constituted as an artwork by its interpretation.6 Why is this? Recall that it is because ‘The Israelites Crossing the Red Sea’ is a ‘word’, because it is no mere real thing.7 But words are ‘words’ too, of course. In this light, the claim that ‘interpretation is possible only when the meaning of what is interpreted is not obvious’8 cannot be correct. (1) must be interpreted. Moreover, thinking ahead to the third part of this book, we should remember that the law consists of words.

1.

INTERPRETATION AND THE BACKGROUND

Consider perception. According to the standard, naïve empiricist picture of perception held, it seems, by most people, we perceive objects in the world as a result of an inference that we draw from the colours and shapes that we immediately observe. So, for instance, I look down in the direction of my desk and I notice a blue cylindrical blob against the cream of the table and I infer from this that a pen is lying on the table. This all happens very quickly, of course, so that we do not generally notice it. But this process nevertheless occurs constantly. This picture of perception is completely wrong. I do not see a blob and infer the existence of the pen. Rather, I see a pen immediately. In fact, if I am not paying particular attention, I may see the pen without noticing its colour or its precise shape. This is why we are easily able to imagine the following conversation. A: B: A: B: A: B:

‘Have you seen my pen? I left it somewhere and now I can’t find it.’ ‘I did just see a pen on my desk. Perhaps you left it there?’ ‘What colour is it?’ ‘I didn’t notice, sorry.’ ‘Is it a long thin one?’ ‘Sorry, I didn’t notice that either. Just go and have a look.’

6 This is made particularly transparent in AC Danto, The Philosophical Disenfranchisement of Art, ch 2. 7 See Chapter 2. 8 J Raz, Between Authority and Interpretation, 224.

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The general issue here is well captured in the following quotation. What we get on the retina […] is a welter of dancing light points stimulating the sensitive rods and cones that fire their messages into the brain. What we see is a stable world. It takes an effort of the imagination […] to realize the tremendous gulf that exists between the two.9

Though the science of vision has progressed dramatically since the words quoted above were written, this, unfortunately, is another area where we do not know enough about the facts. The point to be made here, however, is that we must not confuse the information on the retina (note that it would be wrong to refer to this as an image, which is something that someone sees on, typically in this case, someone else’s retina) with what appears to the mind. If we had to infer the existence of objects from the stimuli that we receive, then we would find it impossible to cope with the world. One useful piece of evidence for revealing this comes from the ‘nonsense figure’ experiments of FC Bartlett. Students were briefly shown a form of the kind presented in Figure 6.1 and then asked to draw it from memory.

Figure 6.1

‘Nonsense Figure’

Some called it a pickax and consequently drew it with pointed prongs. Others accepted it as an anchor and subsequently exaggerated the size of the ring. There was only one person who reproduced the shape correctly. He was a student who had labeled the shape for himself ‘a pre-historic battle axe’. Maybe he was trained in classifying such objects and was therefore able to portray the figure that happened to correspond to a schema with which he was familiar.10



EA Gombrich, Art and Illusion, 50. Ibid, 74.

9

10

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It is worth also considering this prescient passage. And just as the lawyer or the statistician could plead that he could never get hold of the individual case without some sort of framework provided by his forms or blanks, so the artist could argue that it makes no sense to look at a motif unless one has learned how to classify and catch it within the network of a schematic form. This, at least, is the conclusion to which psychologists have come […] who set out to investigate the procedure anyone adopts when copying what is called a ‘nonsense figure,’ an inkblot let us say, or an irregular patch. By and large it appears the procedure is always the same. The draftsman tries first to classify the blot and fit it into some sort of familiar schema – he will say, for instance, that it is triangular or that it looks like a fish. Having selected such a schema to fit the form approximately, he will proceed to adjust it, noticing for instance that the triangle is rounded at the top, or that the fish ends in a pigtail. Copying, we learn from these experiments, proceeds through the rhythms of schema and correction. The schema is not the product of a process of ‘abstraction,’ of a tendency to ‘simplify’; it represents the first approximate, loose category which is gradually tightened to fit the form it is to reproduce.11

This is generally how perception functions. The schema to which Gombrich refers here is largely a matter of the Background. If you do not possess it, you literally cannot see in the way that we ordinarily use that term.12 Thus, adults who have been completely blind but who gain sight due to surgery or the like do not have the wonderful experience that popular imagination suggests. They do not come at last to see the world of objects that we perceive without effort. Instead, they see an absolute confusion – ‘a welter of dancing light points stimulating the sensitive rods and cones that fire their messages into the brain’13 – that is likely to cause them significant mental and emotional damage. It is not that they have yet to learn to make sense of the confusion from which we all derive our perception; it is rather that they experience a confusion that we do not. To put this another way, they see what we do not and normally cannot see: they see the world according to the naïve empiricist picture. What we see is something completely different. What we see is a world of well-formed objects. We see a world intelligible to us; a rational world.14

Ibid, 73–4 (emphasis added). Imagine a person who has no ability to form objects from her sense data. A car is in her field of vision. She sees colours and shapes, and some of these are of the car, but she has no ability to recognise the colours and shapes as belonging to a car. Does she see a car? In the sense that I mean the term, she does not. There is another sense, however. See, eg, F Dretske, ‘The Intentionality of Perception’. 13 EA Gombrich, Art and Illusion, 50. 14 This was surely one of Kant’s truly greatest discoveries (see especially I Kant, Critique of Pure Reason), but it should be noted that none of the work presented here is committed to a Kantian metaphysics or the like. This analysis is driven not by historical philosophical speculation, but by the science of perception. 11 12

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Consider also the following icon (Figure 6.2).

Figure 6.2

People icon

We see this as three people: a woman on the left holding hands with a man in the middle who is holding hands with a child. We do not infer this from the shapes. We can tell this, because there is insufficient material in the picture to justify this reading of it. The information is consistent with, for instance: (i) three adults, the one on the right being further away from the other two, holding up her arm waving; (ii) one adult and two children, the figure on the left being much closer to us than the other two; (iii) one alien creature with six legs and three heads; (iv) a blob of ink; (v) words in an alien language that, translated into English, mean ‘Bugger. I’ve lost the keys to my spaceship’, and so on infinitely. Our ability to see this as three people, two adults and a child, is part of our Background. My dog does not see any such thing. As far as we can tell, he and all non-human creatures see only black blobs on a white background. Let us return now to language. This book is constituted mainly by black marks on pieces of paper. Unless there is something unusual about your vision or your brain, you do not see these as marks, infer that they are words in some language, work out that the language is English, then determine the meaning of the words, and so on. You see these marks as words with meanings. There is nothing in the nature of these marks, however, that determines this. It has got nothing to do with the precise shades of the marks, the level of contrast between them and the colour of the paper, the chemical formula of the ink or the like. It is because of the role that these things play in the institution of language, a role that has largely become part of our Background. It is wrong, then, to think of language as having meaning per se, even acknowledging that the precise meanings of utterances often rely ‘upon a host

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of taken-for-granted assumptions that we share with’15 others. Rather, without those assumptions – without the Background, that is – there would be only inarticulate noises and marks. The Background is usually invisible to us – that is why it is called the Background. It can, however, be foregrounded, if only partially and fleetingly. One of the most instructive ways of doing this is via art. This is in part because artists rely on, but often challenge, the Background. It is also because the history of art is to a large degree the history of changes in the Background. As does the Background itself, this topic requires a book (or, rather, many books) in its own right, but the following comments are pertinent. When a sculptor produces a bust, we do not interpret the object as the head of a decapitated person. It need not, however, be so. Consider the example in Figure 6.3. Had Rodin not included the upper torso in this sculpture, we may well have been inclined to interpret this sculpture as of a decapitated head. Reversing this, we are not inclined to interpret Figure 6.4 as a painting of a man lifting an unusually realistic bust. Similarly, we regard the figure (John the Evangelist) in the centre of the painting in Figure 6.5 as highly expressive, even though we would be inclined to regard the whole painting as reserved and serene if it were painted by the author of the work that follows it in Figure 6.6. Consider also the engraving in Figure 6.7. This is full of surprises, but notice for instance the woman leaning out of the window lighting the man’s pipe at the top. We recognise this to be a joke. We see that it is not intended as a ‘true’ representation of the world. But if we think about it, there is in fact nothing that we can see in the picture itself that prevents it being a photorealistic, and therefore ‘serious’, depiction of a very strange reality. I need to stress the point that it is entirely wrong to think that objects such as paintings, sculptures or sentences have a meaning that we read off them in some straightforward way. I am belabouring this because I think that some lawyers do think that we read the meaning of law in this way.16 What I am trying to show is that we do not, because we cannot, read anything in that way. As noted earlier, shifts in the Background can have an effect on meaning. Good examples of this also come from the world of art. I will focus on some relevant paintings. Take, for example, the superb work in Figure 6.8. We retain enough of Bruegel’s Background to be able to interpret many of the games that are being shown here, but not all of them. Because we have lost some of Bruegel’s

NE Simmonds, Central Issues in Jurisprudence, 163. See, eg, J Raz, Between Authority and Interpretation, 224.

15 16

Interpretation

Figure 6.3

91

Auguste Rodin, ‘St John the Baptist’

Background, we are not able to interpret some of the activities depicted in this painting. Similarly, there seems clearly to be something happening in the painting in Figure 6.9, but it is not at all clear what it is. Again, this is likely

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Figure 6.4

Caravaggio, ‘Salome with the Head of John the Baptist’

because we have lost the Background. It was for this reason that this was Lord Byron’s favourite painting.17 It is also useful to see how our interpretations of paintings can shift in accordance with the Background. One of my favourite teaching experiences was showing the painting in Figure 6.10 to my students before revealing its title.18 I used to say that the painting appears to be of a calm rural and nautical scene. I noted, however, that one oddity is the presence of a person apparently swimming in the sea below the ship setting sail. Still, this appears to be a minor feature of the painting. By this point, about three students would be laughing to themselves while the other 97 were wondering what the joke was. I would then relate the story of Icarus to the class and point to the title of the painting. The painting never looks the same again. It is not a calm rural scene. Apparently,

P Johnson, Art: A New History, 285. See also AC Danto, The Transfiguration of the Commonplace, 115–19.

17 18

Interpretation

Figure 6.5

93

Giotto di Bondone, ‘Lamentation of Christ’

this is a depiction of Icarus falling to his death. As WH Auden described the painting: In Brueghel’s Icarus, for instance: how everything turns away Quite leisurely from the disaster; the ploughman may Have heard the splash, the forsaken cry, But for him it was not an important failure; the sun shone As it had to on the white legs disappearing into the green Water; and the expensive delicate ship that must have seen Something amazing, a boy falling out of the sky, Had somewhere to get to and sailed calmly on.

None of these expressive properties of the painting are accessible to those who are unfamiliar with the painting’s Background. Now we turn to another crucial matter. Consider the painting in Figure 6.11. In Victorian times especially, the painting was said to represent a father gently admonishing his daughter for some misdemeanour while his wife sits next to him, drinking a glass of wine. This is why the painting (or, strictly, an engraving of it) is sometimes called ‘The Paternal Admonition’. But there are difficulties with this interpretation. For one, the man seems far too young to be this girl’s father. For another, the woman facing us seems too old to be the man’s wife. Moreover, if the man is admonishing his daughter, then why does

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Figure 6.6

Law’s reality

Edvard Munch, ‘The Scream’ (detail) 

he have a coin in his hand? And why is she dressed so finely? Furthermore, and this really is the big question, why is there a massive bed in the background? To our eyes, something entirely different is going on. It is likely that this is a scene in a brothel. The man is negotiating with the woman, the madam, sitting next to him, on the price for the favours of the girl.

Interpretation

Figure 6.7

95

William Hogarth, ‘False Perspective’

Why is this important? It is important because we can see the way in which moral ideas can feature in the Background. The Victorians could not see the painting as we do, because of their different Background, and among the most important features of that Background in this instance were certain moral notions. In short, the Victorians’ morality structured their Background in such

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Figure 6.8

Law’s reality

Pieter Bruegel the Elder, ‘Children’s Games’

a way that they just did not see the relative ages of the figures in the painting, the coin in the man’s hand or the bed in the background, or, if they did see these things (which was not very common, in fact), they found other reasons for them. Once one sees this point, one will notice that this kind of thing is everywhere. A person who did not share a Background according to which murder was wrong would have a hard time making head or tail of Dostoyevsky’s Crime and Punishment, for example. In Götterdämmerung, immediately (in the sense that anything is immediate in Wagner’s operas) after Hagen has thrust his spear into Siegfried’s back, Gunther asks: ‘Hagen, what have you done?’ We know what Gunther is asking. A response of the kind ‘Getting the rust off my spearhead’ or ‘Preparing breakfast’ will not do. Hagen actually says, ‘My vengeance for perjury.’ We understand all this only against a Background in which murder is a heinous crime. Similarly, when Susanna reveals to her betrothed in the first Act of The Marriage of Figaro that Don Basilio, Susanna’s singing teacher, has been ‘grooming’ Susanna so that she will have sex with Count di Almaviva, Figaro responds ‘Who! Basilio! The scoundrel!’ We have no difficulty understanding what Figaro means. He is not angry at Basilio for wasting time on trivialities rather than focusing on

Interpretation

Figure 6.9

97

Giorgione, ‘The Tempest’

improving his fiancée’s singing. We would not expect a follow-up line of the kind ‘I want my money back. I am not paying him to make small talk’ (or, at least, not if it is meant seriously. A line of this kind meant ironically may well have appealed to both Mozart and Da Ponte.). Likewise, when the Atlantic Soul singer Percy Sledge sang the line ‘But I didn’t listen to my mamma’ in the song Take Time to Know Her, we know immediately that he has made a big mistake. In that culture, not listening to one’s mamma is error par excellence. Less wholesomely, few will have any difficulty understanding that the lyrics in the song Slow by Leonard Cohen refer to having sex, but when the first verse

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Figure 6.10

Pieter Bruegel the Elder, ‘Landscape with the Fall of Icarus’

ends with the lines, ‘I always liked it slow/That’s what my momma said’, few will jump to what, absent moral features of the Background, would be the obvious interpretation: that he had an incestuous relationship with his mother. Some of the implications of this for the philosophy of law are obvious, but that is not our focus now. The point for the moment is that utterances – or indeed anything – have meaning only against a Background, and that Background will contain moral aspects.

2.

THE BEST INTERPRETATION

Let us return to our old favourite, ‘Could you pass the salt?’ As we have discussed, this utterance is usually used to issue a request to pass the salt, despite literally being a question about the hearer’s physical capacities. Used in this way it is, as we have said, an indirect speech act. But how does the hearer know this? How does the hearer determine, apparently without any effort, that the utterance is not a question about her physical capacities? The answer cannot be, or cannot simply be, that the utterance has a conventional meaning. This is because, as we have also seen, indirect speech acts are extremely common and we are quite capable of understanding even novel examples of them. I recall once being asked what part of Australia I was from and replying that I was from Auckland, Australia and that my travelling

Interpretation

Figure 6.11

99

Gerard ter Borch, ‘The Gallant Conversation (The Paternal Admonition)’

companion was from Vancouver, the United States. Though it was extremely unlikely that the hearer had encountered this expression before, she knew precisely what it meant. How did she manage it? No philosopher has been more interested in these issues than Paul Grice. Grice was particularly interested in the basis upon which human beings make inferences that could not be supported logically.19 Grice’s central observation is captured in the following passage. Our talk exchanges do not normally consist of a secession of disconnected remarks, and would not be rational if they did. They are characteristically, to some degree at least, cooperative efforts; and each participant recognizes in them, to some extent, a common purpose or set of purposes, or at least a mutually accepted direction.20

P Grice, Studies in the Way of Words. Ibid, 26 (emphasis added).

19 20

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We need to stress that ‘conversations’ are cooperative in this way even when one person is issuing directives to another. This point will feature heavily in Chapter 12. On the basis of this notion, Grice posits the existence of a general principle that participants in a conversation observe: ‘Make your conversational contribution what is required, at the stage at which it occurs, by the accepted purpose or direction of the talk exchange in which you are engaged.’21 From this principle, Grice generates his famous maxims. Because the detail of these is not essential for our purposes, I merely list them here.22 (1) (2) (3) (4) (5) (6) (7) (8) (9)

Make your contribution as informative as is required. Do not make your contribution more informative than is required. Do not say what you believe to be false. Be relevant. Do not say that for which you lack adequate evidence. Avoid obscurity of expression. Avoid ambiguity. Be brief. Be orderly.23

It is also useful in this context to introduce Donald Davidson’s principle of charity. This principle insists that, when interpreting others’ utterances, we interpret them as charitably as possible.24 In order to see the significance of this, let us revisit an example. Recall my response to the question ‘What part of Australia are you from?’: ‘I am from Auckland, Australia and Hagen here is from Vancouver, the United States.’ As it was intended, this was understood to assert that I was not from Australia but from New Zealand, to impart the surely not superfluous (as he was far better looking than I) information that Hagen was Canadian, and to (hopefully gently) admonish the questioner for her presumption.25 But other interpretations were possible. The hearer could have gleaned from my utterance that Auckland actually was a place in Australia and that Vancouver was a city in the United States (in fact, there is a place named Vancouver in Ibid. Here, I ignore the categories into which Grice places these maxims. I have also made the judgement not to include his ‘supermaxims’. None of this is important to our investigation. 23 P Grice, Studies in the Way of Words, 26–7. 24 D Davidson, ‘Radical Interpretation’. 25 Here, Grice would say that I am deliberately and openly flouting his maxims and that this works because the hearer recognises that I am doing this, a recognition that I intended her to have. 21 22

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the United States) and so thought that I had answered her question seriously. She may then have responded, ‘Oh, wow, I always thought that Auckland was in New Zealand and Vancouver was in Canada’, at which point we would have concluded – unless she was ‘doubling down’ on my irony – that she was a moron. Note, then, that, as is often the case, it is moronic to interpret an utterance in accordance with its literal meaning. This is only one possibility. She might also have thought that I was the moron and that I did not realise that Auckland was in New Zealand and that Vancouver was in Canada. In fact, on this view, I didn’t even know the country in which I was born. There are many, in fact an infinite number, of other possibilities. She could, for instance, have thought that I was speaking about our mothers: on this reading ‘I am from Auckland, New Zealand’ means that I was given birth by (‘from’) a woman called Auckland New Zealand. Alternatively, she could have thought that I was replying in a foreign language with words that, to someone less tone deaf to the languages of love, sound sufficiently romantic to put Spanish truly into the shade and could well have meant ‘You have beautiful eyes; I would love to buy you a martini.’ Less inspiringly, she could have interpreted my utterance as the inarticulate sounds of a young man having a strange kind of epileptic fit. What needs to be stressed is that all of these interpretations of my utterance and an infinite number of others are equally consistent with the utterance itself, if by ‘utterance’ we mean simply the fact that I moved my body in certain ways, including of course my mouth, and sounds came out. What determines that these interpretations are mistaken is that they do not match my intentions, but my hearer had access to those intentions only via my utterance. How is it, then, that she and others so reliably identify my intentions correctly, even if they do not do so infallibly? The answer, Davidson tells us, is that we interpret utterances charitably. She begins with the assumption, for instance, that my beliefs are generally the same as hers. This is why she did not think that I thought that Auckland was in Australia, for example. She may come to learn that our beliefs differ and when she learns more about me she may utilise her knowledge of my beliefs to interpret my utterances, but when she meets me she does not know what my beliefs are and can gain access to those beliefs only on the basis of my utterances and actions. She must begin charitably, then, by assuming that my beliefs are more or less the same as hers. She must also assume that I am at least reasonably intelligent. She may come to the conclusion that I am a moron eventually, but if she begins with that assumption, she will never understand a word I say. This is why the principle of charity is not a principle that we ought to adopt when interpreting, but one that we must adopt if we are to understand at all. The principle ‘is required if linguistic

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understanding is to be possible’.26 Or, to put this the other way around, as we do understand the utterances of others, we know that we do in fact adopt the principle of charity.27 Another example: a small whiteboard labelled ‘Weekly Schedule’ is attached to the door of my refrigerator. I have just seen, under the heading ‘Friday’, the following words: ‘7:50: Magic Practice.’ I confess that it took me a few moments to work out what this meant. The literal meaning, however, never occurred to me (until my thoughts returned to this book): that one or more of my children were meant to practise their magical skills at 7:50. One might imagine circumstances in which that would have occurred to me, however: had I seen the same words in the diary of Hermione Granger, for example. It did briefly cross my mind that perhaps someone was meant to practise pretend magic of, perhaps, the Harry Houdini kind, but that seemed altogether too strange. But then I remembered that ‘Magic’ was the name of my daughter’s netball team, a team that my wife coaches, and it all fell into place. This is an example of the principle of charity in action. I automatically searched for the best interpretation of the speech act left on the whiteboard. Moreover, had I not approached that utterance through the lens of that principle, I would never have got close to where I ended up. It was an ‘act of charity’, after all, that led me to see that it was writing and not just scribble in the first place. Let us return once more to the question ‘Could you pass the salt?’ One reason we do not understand this literally is that the question would normally be inane. A response might be ‘Well, of course I can. I’ve got two arms, haven’t I?’ But note that we might interpret the question ‘Could you pass the salt?’ literally if it were addressed to someone with her arms in a sling, for instance. There, the question is not stupid, even if it might in some circumstances be indelicate. Moreover, in the right situation, we might interpret the question as a joke. Say that I ask the question while drinking a mug of Rauchbier (which is beer that tastes disturbingly like bacon). Or imagine that I address the question to a good-humoured friend who has temporarily lost the use of his arms when I am drinking a glass of Gose, a beer already altogether too salty for most tastes. Here, part of my meaning, revealed by asking this person, might be that the beer is too salty for me. The point to be made is that

J Malpas, ‘Donald Davidson’, §3.3. Of course, this does not imply that we always do this. I have argued, in effect, that in at least some areas of legal scholarship, the principle is unfortunately frequently overlooked, with the result that a great deal of useful work is seriously misunderstood and that the so-called debate that occurs in this area – though certainly not the positive contributions to it – is nothing more than an aggravating waste of time. A Beever, ‘Criticism, Engagement and the Academic Lawyer’. 26 27

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unless the hearer is willing to attribute to me a sense of humour, she will be quite unable to detect these meanings. Recall also Breughel’s ‘Icarus’ (Figure 6.10). When discussing this work earlier in this chapter, I implied that the legs that can be seen below the ship belong to the Greek hero. That is what everyone assumes. But how do we know this? For all we can tell from the appearance of the painting, Icarus may be falling, just about to enter the frame, soon to impale himself on the rocky outcrop; or he may have already fallen and be now on the bottom of the sea (in which case, the painting shows the deep unwisdom of ignoring the warnings of one’s parents, Daedalus having warned Icarus not to fly too close to the sun or the wax would melt, nor too close to the sea or the feathers would get wet. Perhaps the swimmer is diving in an attempt to pluck one of these feathers, to return it, as a symbol demanding admonition, to King Minos.). Alternatively, the painting may have nothing to do with the Greek legend. Instead, Icarus may be the name of the fisherman who seems insufficiently careful and about to lose his balance. And so on and on. Why, then, do we associate the legs with the Icarus of Greek legend? The short answer is that, unless we do this, the legs don’t make much sense. Of course, we can invent stories to explain them, as I have just done, but associating them with the mythological Icarus makes the best sense. What I want to stress here is that we apparently automatically associate the legs with Icarus because this is the best interpretation of what they are. Moreover, though ‘best’ has a certain meaning in the context of the interpretation of artworks that is not always relevant, we have seen that a ‘search’ for the best meaning occurs in every case. The woman who asked me what part of Australia I was from understood my response ‘automatically’, because she ‘automatically’ gave it the best meaning that she could. For reasons that may already be obvious, ‘best’ here does not necessarily mean morally best. Nevertheless, it must be plain that morality often plays a role. Though I am not sure how one would prove (or disprove) this, I think that morality almost always plays a role in our interpretations. One possible reading of my response to my Australian friend was that I was trying to make fun of her and thought her an idiot who did not realise that Auckland was not in Australia and Vancouver was not in the United States. But she did not understand me in this way. She assumed that I was being agreeable, or at least not being a jerk. Similarly, if I say to my wife ‘You look nice today’, thankfully she does not take this to mean either that she did not look nice on other days (as in ‘Thank goodness you have managed to make yourself look nice today.’) or that it is only apparent that she is nice (‘At least you look nice.’). It was the same, I remember, when I asked a friend who was visiting New Zealand how he had enjoyed his holiday and he responded by saying ‘You know, we have had only a single day of rain since we have been here.’ I took his comments

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to be complimentary, despite the fact they could be said to resemble Brahms’ reply, when shown a score by a hopeful amateur composer and asked for his assessment, of complimenting the unfortunate man on the high quality of the paper on which the score was written. Similarly, if, leaving for a business trip, I ask a friend to do what he can to console my wife who is sure to miss me greatly, he would have to be very strange to take this as a request to seduce her to take her mind off me – though one might imagine cultures with different moral standards where that might be precisely the right thing to do. Likewise, if I instruct someone ‘Take that gun and shoot at the target on the wall over there’, we do not understand this to be an order to shoot someone, even if a person happens to be standing between the hearer and the target. If the hearer then shoots that person, we do not think that she obeyed the order. Readers who are parents are likely to be able to think of cases in which their children have deliberately flouted this principle, much to their annoyance. Parent: ‘Stephen, stop hitting Sean. Go to timeout right now!’ Stephen stomps to timeout, trampling on Sean as he goes. ‘Well, you told me to do it!’ That, of course, is not true; but why is it not true? It is not true because of the role that morality plays in the proper interpretation of utterances. These examples may be thought to appeal only to what is sometimes called popular or social rather than critical morality: that is, to cultural attitudes about morality rather than to what morality actually is. This is not exactly wrong, but it could be misleading in important ways. What matters are beliefs about morality and beliefs about those beliefs. Take again my request to my friend to console my wife while I am away. Imagine now that, against the mores of my culture, I believe in ‘open marriage’, and that my friend knows this. Here, he may well interpret my utterance as in part a request to seduce my wife, or at least to entertain her by attempting to do so. The same may be true if he has that belief, even where I do not, where I know that he has the belief and he knows that I know. We are here still talking about belief and not about morality in fact, of course; but it is easy to draw false dichotomies in this context. In a very straightforward way, I may have beliefs about Paris that do not correspond to the reality of Paris; but morality is not like France. Morality is not a thing out there that my beliefs can straightforwardly match or fail to match. Though I cannot say more about the nature of moral truth here, it is clear that, like law, its existence is ontologically subjective. It exists only because we believe it does (which is not to say that it is arbitrary or unreal). It is surely a mistake, then, to think of it as separate from our beliefs in the way that Paris is separate from mine.

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Recall the claim that ‘interpretation is possible only when the meaning of what is interpreted is not obvious’.28 On the contrary, when meanings are obvious, it is interpretation that makes them obvious. In the cases we are speaking of, meaning is not intrinsic to the phenomenon in question: paintings are just blobs of paint on canvases, spoken words are just vibrations in the air, written words are just marks on paper, and so on. Rather, the meaning lies in the intention behind the creation of the phenomenon and that meaning is accessible to others only on the basis of their interpretations. The idea that sentences, for example, just present themselves to us so that we can passively absorb them is, frankly, Luddite.

J Raz, Between Authority and Interpretation, 224.

28

7. Institutions 1.

HOW IT WORKS

William Golding’s Lord of the Flies tells the story of a group of boys stranded on an island. At the beginning of the story, most of the boys do not know each other. An exception to this is that some of the boys belong to a choir, the leader of which is a boy called Jack. Initially, the boys are scattered on one part of the island. Two of the boys, Piggy (we never learn his real name) and Ralph, find a conch by a lagoon. Piggy explains to Ralph how to sound it in order to call the other boys. Ralph blows the conch a number of times and the boys all appear. There was a buzz. One of the small boys, Henry, said that he wanted to go home. ‘Shut up,’ said Ralph absently. He lifted the conch. ‘Seems to me we ought to have a chief to decide things.’ ‘A chief! A chief!’ ‘I ought to be chief,’ said Jack with simple arrogance, ‘because I’m chapter chorister and head boy. I can sing C sharp.’ Another buzz. ‘Well then,’ said Jack, ‘I—’ He hesitated. The dark boy, Roger, stirred at last and spoke up. ‘Let’s have a vote.’ ‘Yes!’ ‘Vote for chief!’ ‘Let’s vote—’ This toy of voting was almost as pleasing as the conch. Jack started to protest but the clamor changed from the general wish for a chief to an election by acclaim of Ralph himself. None of the boys could have found good reason for this; what intelligence had been shown was traceable to Piggy while the most obvious leader was Jack. But there was a stillness about Ralph as he sat that marked him out: there was his size, and attractive appearance; and most obscurely, yet most powerfully, there was the conch. The being that had blown that, had sat waiting for them on the platform with the delicate thing balanced on his knees, was set apart.

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‘Him with the shell.’ ‘Ralph! Ralph!’ ‘Let him be chief with the trumpet-thing.’ Ralph raised a hand for silence. ‘All right. Who wants Jack for chief?’ With dreary obedience the choir raised their hands. ‘Who wants me?’ Every hand outside the choir except Piggy’s was raised immediately. Then Piggy, too, raised his hand grudgingly into the air. Ralph counted. ‘I’m chief then.’1

And so he was. How on earth did that happen? Golding gives us the answer immediately. ‘The circle of boys broke into applause. Even the choir applauded; and the freckles on Jack’s face disappeared under a blush of mortification.’2 And then, straight away, something else happened. He [Jack] started up, then changed his mind and sat down again while the air rang. Ralph looked at him, eager to offer something. ‘The choir belongs to you, of course.’ ‘They could be the army—’ ‘Or hunters—’ ‘They could be—’ The suffusion drained away from Jack’s face. Ralph waved again for silence. ‘Jack’s in charge of the choir. They can be – what do you want them to be?’ ‘Hunters.’

And so they were hunters. How did that happen? And at their next meeting, Ralph said: ‘We can’t have everybody talking at once. We’ll have to have “Hands up” like at school.’ He held the conch before his face and glanced round the mouth.



1 2

W Golding, Lord of the Flies, 28–9. Ibid, 29–30.

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‘Then I’ll give him the conch.’ ‘Conch?’ ‘That’s what this shell’s called. I’ll give the conch to the next person to speak. He can hold it when he’s speaking.’ ‘But—’ ‘Look—’ ‘And he won’t be interrupted: Except by me.’ Jack was on his feet. ‘We’ll have rules!’ he cried excitedly. ‘Lots of rules! Then when anyone breaks ’em—’ ‘Whee—oh!’ ‘Wacco!’ ‘Bong!’ ‘Doink!’

There you go. That’s law. In truth, that is a bit too glib, but in these snippets of the story we have almost all that we need to explain human institutional reality. Let’s start with the conch. A conch is a large shell. Some conches have the remarkable property of being shaped so that they can be blown in a way similar to a trumpet to create a loud, horn-like noise. It is this physical property of the conch that the boys find that allows Ralph to call the others to the first meeting. But at the second meeting, the conch takes on a new property. Possession of the conch permits a boy (other than Ralph) to speak at meetings. For convenience, we can say that the conch becomes a ‘speech permitter’.3 This property of the conch is not possessed by it in virtue of its physical properties. The property of being a speech permitter is given to the conch by the boys. The conch, then, functions as a calling device because of its physical features, but it functions as a speech permitter because it has been given that function by the boys. We can call this kind of function a status function: the boys impose on the conch the status of being a speech permitter and the conch performs its function as a speech permitter in virtue of this status. Note that there is a kind of ‘bootstrapping’ or circularity in the explanation just given. That is entirely intentional. This circularity reflects the circularity in

As readers of Lord of the Flies will know, the conch takes on many other symbolic properties as well. Studying these, however, is not essential to our investigation here. 3

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the declaratory speech act itself, that is, making something true by representing it as being true. In the story, Ralph says: We’ll have to have ‘Hands up’ like at school […] Then I’ll give him the conch […] I’ll give the conch to the next person to speak. He can hold it when he’s speaking […] And he won’t be interrupted.4

The boys accept this. That is enough. But what exactly has happened here? There are two general answers: first, Ralph does something and then, second, the boys do something else. Let us begin with Ralph. We will examine what the boys do in the following discussion of Ralph becoming chief. In the passage quoted above, Ralph makes a very special kind of speech act called a status function declaration. This is not completely transparent, as Ralph performs this speech act indirectly – usefully pointing out that the creation of status functions is often inexplicit. What we need to ask ourselves is not what the sentences say (that is, not what the literal meaning of the utterances is, the locution), but what Ralph meant by them (that is, what the speaker’s meaning is, the illocution). Clearly, the utterance is not an expressive or a commissive. Nor is it an assertive. Ralph is not simply reporting the properties of the conch. As we saw, he is creating the relevant properties. And nor is this utterance a directive, though it has consequences that are directive. The meaning of Ralph’s utterance is not ‘Do not speak unless you are holding the conch.’ It is true that Ralph wants to stop the boys speaking unless they are holding the conch, but interpreting his utterance in this way misses the most important aspect of it. Ralph is making the conch a speech permitter by declaring it to be a speech permitter. And, indeed, he succeeds in making the conch a speech permitter. His utterance, then, has the double ↕ direction of fit. Ralph does this by establishing a constitutive rule for the conch. Recall that constitutive rules typically have the form x counts as y in c. Here, Ralph declares that the conch (x) counts as the speech permitter (y) at meetings (c). This is, as we have said, a status function declaration, because it gives the conch the status function of being a speech permitter. It is also very important to note that the point of doing this is to create deontic power. Not only does Ralph’s declaration make the conch a speech permitter and thereby create a liberty in the boy holding the conch to speak, but hidden in all of this has been the fact that the process of creating this status function has generated a general prohibition on speaking without the conch – a duty not to speak without holding the conch. And note that all of this works without the boys recognising any external moral or other evaluative principle.



4

W Golding, Lord of the Flies, 44­–5.

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When the conch becomes the speech permitter, it carries its deontology with it. It gives the boys desire-independent reasons for (in)action. And it works. For the most part, at any rate, they remain quiet unless they are holding the conch. As readers of Lord of the Flies know, this is one of the most important events in the boys’ time on the island. Let us now return to the first meeting. How does Ralph become chief? First, Ralph says that they need a chief. The boys agree. Roger suggests that they take a vote. The boys agree with that too. They vote. The result is that more people vote for Ralph than for Jack. That did not make him chief, however. What made him chief was that, in the light of the vote, he said he was chief – another status function declaration – and the boys accepted this. ‘The circle of boys broke into applause. Even the choir applauded.’5 What made Ralph chief was that the relevant status function declarations were made, by Ralph and others, and accepted by the boys. In this case, the acceptance is positive in the sense that the boys welcome Ralph becoming the chief. But it need not be so. In fact, in one case, it is not so. We are told that ‘the freckles on Jack’s face disappeared under a blush of mortification. He started up, then changed his mind and sat down again while the air rang.’6 In the relevant sense, this too is acceptance. Jack feels mortified because he recognises that he has lost, but this response relies on recognising that Ralph has won, that Ralph has become chief. Jack’s very negativity is a manifestation of his recognition that Ralph is chief. What matters here, then, is not approval but what we are calling recognition. Jack can never bring himself to endorse Ralph as chief, but he does recognise Ralph’s authority, for a time. The creation of status functions rests on collective recognition. In this way, then, a status function is impressed on Ralph. He becomes the chief. And to say this is to say something quite different from saying that Ralph becomes the alpha male. Ralph’s authority rests neither on his physical nor his intellectual ability to dominate the other boys (as Golding is at pains to point out), but on the deontology that the boys recognise as accompanying his status as chief. He has the power – deontic, not physical – to impose the status function of speech permitter on the conch, for instance. Ralph is also capable of creating status functions that are able to generate other status functions. We have seen him do this with Jack. As chief of all the boys, Ralph gives Jack a delegated authority over the boys of the choir. This authority gives Jack the ability to declare that these boys are hunters. Note, then, the way in which status functions can be iterated both horizontally and vertically. Once Ralph is chief, he can make Jack the leader of the

Ibid, 29. Ibid.

5 6

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choirboys. They can then make the choirboys hunters. And all this deontology interlocks. As chief, Ralph can impose a duty on the boys to collect fruit, but that duty may not extend to the hunters (that is, they may have an immunity) because they are under a conflicting duty to hunt. Likewise, Ralph can impose a duty on all to keep the signal fire alight, but this can come into conflict with the hunters’ duties, a conflict that needs to be resolved (but never, in the story, is resolved). To summarise the four crucial points: (1) status functions are imposed on objects or people and they allow these entities to perform functions that they could not perform, or could not perform as well, in virtue of their physical features alone. The conch becomes a speech permitter, Ralph becomes chief and the choir become hunters.7 (2) This is achieved by the use of status function declarations. The conch is declared to be a speech permitter, Ralph is declared to be chief, Ralph declares Jack to be the leader of the choir and Jack declares the choir to be hunters. (3) An entity is able to perform a status function because of the deontology that the status function carries with it. Establishing the conch as a speech permitter creates a general duty not to speak and a liberty from that duty when holding the conch; making Ralph the chief gives him authority; and making the boys of the choir hunters gives them a special social role that also carries a deontology – they are obligated to hunt, but do not have to collect fruit or (though this is also a matter of some controversy) build shelters. (4) Finally – though this is seldom acknowledged, for reasons we will see – all of this relies on collective recognition. The boys recognise the conch as a speech permitter, Ralph as chief, Jack as the leader of the choir and the choir as hunters. Without that recognition, there would be a conch, a Ralph, a Jack and a choir (strictly: boys who belonged to a choir in England); but there would be no speech permitter, chief, leader of the choir or hunters. Of course, Lord of the Flies is a work of fiction. Nevertheless, it is an extremely useful tool for analysing the construction of social reality. This is how it is done. Though cultures can differ hugely in the detailed way in which they go about it, all social facts are created in this general way; law included. Naturally, most of the institutions with which we deal are already established. But it is worth reflecting for a moment on the way in which these institutions function. For the moment, we will ignore the fourth of our considerations, collective recognition, because that requires special discussion. Let us start with an obvious case: money. As I write this, a piece of plastic – polymer, to be precise – is sitting on the table in front of me. It is a $50 banknote. On it is written ‘This note is legal

7 It is also possible to create entities that have status functions where there is no corresponding physical object. Money is perhaps the most prominent example.

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tender for fifty dollars.’ That might look like an assertion, but clearly it is not. We can see this because it would be absurd to insist on the conditions for an assertion in this case. No one who understands that the banknote is money could seriously ask what evidence the relevant people at the Reserve Bank had for making this claim or whether they really, sincerely believed that the note was legal tender. The utterance is not an assertion, it is a declaration. The success of that declaration coupled with my possession of the note gives me power. I am able to buy things with the note, for instance. None of this has anything to do with the properties of the polymer that physically constitutes the note. Consider again Law 8.2 of The Laws of the Game: Rugby Union: ‘A try is scored when an attacking player […] is first to ground the ball in the opponents’ in-goal.’ Again, this looks like an assertion, but no one is going to ask what evidence World Rugby had for coming to this conclusion. This is a declaration. It provides (part of) the constitutive rule for what counts as scoring in rugby. With this rule comes a deontology. A team that satisfies the conditions set out in this law is entitled to be awarded five points and to be given an opportunity to convert. A referee is under a duty to recognise this. I am a university professor. That is an assertion. But I became a university professor by declaration. I applied for a job as a professor and was given it. I was offered a contract and I signed it. This contract said that I was a professor and, so, when I signed it, I was one. As a result of becoming a professor, I have obligations to the university to which I am attached and, at least in theory, am entitled to a recognition of my status from others – though I must say that in New Zealand this counts for almost nothing. However, one of my duties is to give lectures. My students have a duty to turn up – though again this is a duty that seems to mean less and less as the years pass. It is still true, though, that I have both the right and the duty to give the lecture, while the students have neither. Imagine also that a few of my colleagues decide to form a reading group. Imagine the following conversation. A: B:

I’ve been reading a really interesting book on the law of crustaceans. That’s curious. A student was asking me the other day about the legal status of crustaceans. C: Yes, and I have often meant to write an article on this fascinating subject. D: Fascinating? A: I say, then, why don’t we form a reading group and go through this book? B: Good idea. Why not? C: [nods]

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Forget it. OK, when shall we meet?

And with that, a reading group is formed. My colleagues B and C and I now constitute a reading group. The last utterance contains a declaration. We can see this, as the ‘we’ in ‘when shall we meet’ refers to us as members of that group. It does not refer to D, though D was present for the conversation. And the deontology comes for free. We have at least an obligation to try to find a time to meet, to read the book, and so on. Say now that I invite my colleagues to a cocktail party that I plan to have at my house and that they all accept. I invite them by saying ‘I am having a cocktail party on Friday night. Do you want to come?’ Assuming that I have not made a similar statement previously, the first sentence in this utterance is a declaration and not an assertion. Moreover, this declaration means that when my colleagues turn up to my house, they are attending a cocktail party and not a dinner party, a political protest or a rave. This carries a deontology. At least in my culture, they are meant to bring some kind of mixer or spirit and not a bottle of wine, placards or illicit drugs. And I am supposed to provide, not a three-course meal, a loudhailer or music that functions in a manner similar to that of a snake charmer, but cocktails and finger food. And we are all meant to dress up. Also, it is frequently the case that a declaration will be ineffective unless the person making the utterance has an appropriate status within a relevant institution. I can form a reading group and host a cocktail party, but I cannot issue banknotes or make laws of rugby. As a professor, I can give lectures, but I cannot make someone else a professor. The point is not that I am prohibited from doing these things. Sometimes I am and sometimes I am not. If I make my own banknotes and write on them ‘This banknote is legal tender for fifty dollars’, I may commit a crime, but the crucial point here is not this but that I fail to make money. I make only fake money, counterfeit. When the Reserve Bank does exactly the same thing, it not only commits no crime but, much more remarkably, it succeeds in making money. This also enables us to glimpse the fact that institutions are maintained through continued use of status function declarations. With respect to our reading group, for example, we maintain it by making declarations such as ‘This week we are reading chapter five’, ‘Next week we will meet in B’s office’, and so on. But we often also use speech acts that are not declarations to reinforce our institutions. These are status function indicators. An obvious example is the use of titles. I am Professor Beever, though again, in New Zealand, hardly anyone ever uses this form of address. There are other obvious examples. Rugby referees wear uniforms, as do police officers and soldiers. Members of Parliament are called the Honourable or the Right Honourable.

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Spouses wear rings. The hunters in Lord of the Flies painted their faces and bodies. Judges, not to be outdone, wear odd costumes, sometimes even wigs!

2.

HOW DO WE PULL IT OFF?

Central to the thesis advanced here, and with obvious significance for the philosophy of law, is the view that the creation and maintenance of institutional reality necessitates nothing but the making of status function declarations coupled with collective recognition. No appeal to morality, or indeed anything else, is required. This gives rise to an obvious question. If institutions carry deontic power and if that power is neither constrained by nor even formed by reference to morality, then how is it that people let this happen? As we have seen, institutions require collective recognition. Why would people recognise institutions unless they were sufficiently moral? There are many answers to this question. Most are beyond the scope of this investigation as they must come from disciplines such as psychology, sociology and anthropology.8 But it is, I think, useful to return to Lord of the Flies in order to see what is at stake here. Lord of the Flies is a story of the establishment and destruction of a kind of civilisation. It is often described in something like the following way. First, the boys establish a system of rule and order on the island, symbolised by the conch, with Ralph as the chief and Piggy playing a prominent role. Over time, however, this system breaks down as friction develops between Ralph and Jack. Jack eventually breaks away from the society, taking many of the boys with him. With the killing of Simon, this group descends fully into savagery and in the end destroys the civilisation on the island. The conch is smashed, Piggy is killed and Ralph is hunted to what would be his death were the boys not rescued. This description is fine as far as it goes, but it is important to see that the stage of ‘savagery’ into which the boys fall is just another social state. Golding makes this very clear. Not long after breaking away from Ralph’s group, Jack and his hunters kill a pig. Jack and two of his ‘tribe’ return to Ralph’s group to invite them to a feast. ‘Tonight we’re having a feast. We’ve killed a pig and we’ve got meat. You can come and eat with us if you like.’

8 As Steven Lukes reminds us, Searle’s theory elucidates the role of collective recognition but Searle does not present a full theory of how collective recognition is achieved. (In fact, Lukes maintains that Searle has no account of this at all, but that is clearly wrong.) S Lukes, ‘Searle versus Durkheim’, 200.

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Up in the cloud canyons the thunder boomed again. Jack and the two anonymous savages with him swayed, looking up, and then recovered. The littlun went on howling. Jack was waiting for something. He whispered urgently to the others. ‘Go on – now!’ The two savages murmured. Jack spoke sharply. ‘Go on!’ The two savages looked at each other, raised their spears together and spoke in time. ‘The Chief has spoken.’

What we see here is Jack insisting on the observance of a status function indicator. He is the chief of his tribe and insists that this be recognised. He also wants to show Ralph and the boys in Ralph’s group that this is recognised. He is insistent on the explicit recognition of the relevant deontology. This helps us to see that deontology of the kind that we have been examining is inescapable.9 Once we have language, we have deontology. It is theoretically possible for human beings to use language in such a way that deontological commitments will be minimised. Perhaps this is part of what those who sided with Jack were hoping for in Lord of the Flies. But it is for practical purposes impossible. Searle expresses this point by saying that, for language-speaking creatures, there is no state of nature.10 The reasons for this are manifold and, as noted above, are appropriate subjects for psychology, sociology and the like. But it is possible to make what I think are the most important general points here. First, we are dealing with a form of collective intentionality. It is in our exercise of this kind of intentionality that we form social groups. Think, for instance, of my cocktail party, or my reading group, or of being a member of a university or a rugby union. In short, collective intentionality creates a sense of belonging. This is very important to members of our species. Often, then, collective recognition rests on a desire to conform with social institutions in order to promote belonging.

9 Perhaps this is not quite right. Perhaps we can escape this if we reject, and can reject, language. It may be that at the end of Lord of the Flies the boys fall still further into a state, not of savagery, but of bestiality, with Roger not as chief but as alpha male. As Golding tells us, Roger wielded a ‘nameless [wordless?] authority’. W Golding, Lord of the Flies, 262. 10 Eg JR Searle, Making the Social World, 62, 134.

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Second, it is very frequently the case that people do not understand the role that collective recognition plays. This is important because this lack of understanding promotes the stability of the institutions. As Searle says: I am not at all sure that a general understanding of how institutions are created and function would actually facilitate their functioning. Many of them are based on beliefs, such as beliefs in the supernatural, that I think are almost certainly false; and even those institutions that are not formed on the basis of doubtful beliefs, such as money and government, tend to work best when they are taken for granted and not critically analyzed. As Karl Marx pointed out, ‘One man is king only because other men stand in the relation of subjects to him. They, on the other hand, imagine that they are subjects because he is king.’11

In short, the system is covert. I do not mean to imply that there is anything necessarily deceitful about this – though that may sometimes be the case (see Chapter 9). The crucial point is that, though institutional reality relies on collective recognition, very often those who do the recognising do not realise that this is what they are doing. Money is perhaps the most obvious example. How many people stop to think, for example, ‘Why should I accept this flimsy piece of polymer in return for my valuable goods?’ Instead, the tendency is to treat money as if it were a thing as natural as air or water. Third, as the quotation from Marx indicates, there is a strong tendency to, as it were, psychologically reverse the direction of the deontology. The subjects make the king but believe that the king makes them subjects. A less politically loaded, but I hope revealing, example comes from my own experience of being a rugby referee. A reflective referee must be struck by the extraordinary power that comes from putting on a uniform and carrying a whistle. This can make 30 fully grown adults follow your commands like children. And yet, the same reflective referee will often be struck by the fragility of this power. In fact, this is most apparent when refereeing children. That may appear counterintuitive, but it is because with children and those watching children’s rugby, the deontology is both less ingrained in the players and spectators, and because many status function indicators are absent or weaker in this context.12 A particular problem for rugby referees at children’s games is, sadly, the behaviour of spectators. On occasion, it is even necessary to expel them from the venue. When one does this, the instructions are to tell the spectator that he or she must leave

11 Ibid, 107. Quotation from K Marx, Capital: A Critique of Political Economy, Volume I, 149 n 22. 12 For instance, in children’s rugby, one must referee on one’s own without the aid of two assistant referees who would also be in uniform, and so on; there are no security guards policing the boundaries of the field; one’s status as the referee of children’s rugby is lower, and so on.

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and that the game will not continue until the spectator has gone. I know of no case where this has failed, but when given this instruction, referees in training always want to know what would happen if the spectator refuses to move. The thing is, there is no real answer to this question. One would just have to hope that other spectators would apply social pressure so that the spectator would leave. At this point, the authority of the referee runs out. If the spectator will not go, it evaporates. In fact, one of the significant psychological challenges facing referees is that, while they feel the fragility of their authority, the spectators feel on the contrary that the referee’s authority is robust and treat the referee accordingly.13 Another example comes from language itself. As we have seen, the conventions of English are created by speakers of that language, but language is often not experienced that way. The conventions become rules that one is meant to follow even if, on occasion, the conventions are simply made up: do not split infinitives; do not end a sentence with a preposition; I even knew one somewhat severe and deluded school headmistress who insisted that one not end a sentence with a verb. She commanded. And all her staff obeyed! Fourth, institutions often carry with them an extraordinary inertia that means that, even if an institution is disliked or hated, people are often inclined to persevere with it rather than attempt to change it. This may be because people feel helpless in the face of the institution, because it all seems like too much hard work, or because of a host of other reasons. Imagine, for example, that you sincerely believe for some reason that people should not dress up at cocktail parties. When I invite you to mine, you might insist that you are going to wear jeans and a T-shirt but, unless you are a bore, you might think this not worth fighting about and just put on a suit or a dress. Perhaps the most extraordinary example of this in history was the decision of the German people, from ordinary citizens to soldiers in the Wehrmacht to leading Nazis, to continue the war effort long after it became clear that there was no hope of victory and when, at least in the West, it was clear that ending the war would prevent great destruction, suffering and loss of life. One of the most remarkable examples of this is that, in the words of Ian Kershaw, ‘Even on the morning of 21 April [1945], as Soviet rockets exploded in the government district of Berlin, civil servants continued to “work” – doing nothing useful – at their desks.’14 Another remarkable and poignant example is of citizens, many of whom had long surrendered any faith in the Nazis and

To spell this out: the spectators regard the referee as bulletproof and fire at him accordingly, while he is in fact feeling vulnerable. 14 I Kershaw, The End, 341. 13

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who had come to regard their government as corrupt and unjust, responding to encounters with concentration camp inmates on, for example, forced marches. The human wrecks before their eyes looked like the caricatures of ‘subhumans’ rammed home in incessant propaganda. But in all their evident frailty, they were still, perversely, seen by many as a threat. ‘What crimes they must have committed to be treated so cruelly,’ was one comment. Another person, justifying the shooting by Wehrmacht soldiers of thirteen escaped prisoners (recaptured with help of the local population), remarked: ‘They were political prisoners and mere criminals.’15

Once one is wrapped in the deontology, escape can take enormous psychological strength. In fact, there is evidence that the Nazi leaders were aware of this and played on this fact. In 1944, for instance, Hitler gave a speech to his military leaders in which he claimed that Hungary, a state supposedly dominated by Jews, posed a great threat to Germany. However, he reassured his audience, he had intervened and would soon remove this menace. As Kershaw reports, ‘The military commanders interrupted the speech on several occasions with rapturous applause. They were being made complicit through their knowledge of what had happened to the Jews in much of Europe and was now happening in Hungary.’16 This complicity is one of the many reasons why no serious opposition to Hitler was forthcoming from the military after von Stauffenberg and his co-conspirators’ attempt on Hitler’s life had failed, even in the face of certain defeat and pointless destruction. The military was wrapped in the Nazi deontology.17 In passing, it seems to me that these reflections firmly give the lie to the notion that the kind of deontology we are investigating is not philosophically interesting, as it is not essentially connected with morality.18 What matters, as was said in Chapter 4, is the role that the deontology plays in motivating and explaining human behaviour. It can play a large role, even when it is entirely immoral. A fifth and very different kind of reason is that institutions create enormous power, and not only for those who hold powerful or privileged positions within the institution. To see this, one has only to imagine a world without money, sports or universities. My entire working life has been given to the service of an institution that, without collective recognition, could not exist. Sometimes, moreover, an institution serves individuals other than those who wield power Ibid, 334. Ibid, 123. 17 I do not mean to imply that they were blameless in this respect. They certainly were not. 18 Contra L Zaibert, ‘Intentions, Promises, and Obligations’; L Zaibert and B Smith, ‘The Varieties of Normativity: An Essay on Social Ontology’. 15 16

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in the institution. Referees of junior rugby, for instance, are all of us clear about the point of it all: it’s for the sake of the kids. This is an extremely important point. Human life is saturated with institutional reality. A main reason for this is that this reality allows us to do things that we would not be able to do without that reality. As the institutions are constituted by their deontology, escaping the deontology that accompanies these institutions is no easier than giving up the institutions themselves. But it is also important to see that this does not amount to a justification of the deontology or of the institutions. Money, for instance, certainly has created enormous possibility, but it may nevertheless be unjust. It may, for instance, result in unacceptable social stratification. That is an open question.19 The general point here is this. We have been examining why institutions receive and retain collective recognition. This is not a moral question, though the answers may bear on the relevant moral questions. The institutions we create may be good for most, but bad for some. They may be bad for most. There may be better alternatives. And so on. But now that we have introduced this moral question, we can see that there is a sixth reason for the success of collective intentionality. As the examples from Nazi Germany help us to see, there appears to be a strong psychological tendency to accept as justified what is collectively recognised. This is only a tendency, there are certainly many counterexamples, but the tendency is nevertheless powerful. Simply, there is an inherent conservativism in human beings that inclines them to believe that the way things are done is the way that they ought to be done. In Chapter 9, we will see that this connects with a serious failing of modern legal positivism. Though many positivists have celebrated their theory for making possible a clear-headed assessment of the morality of law, we will see that in its modern versions it has in fact been obscurantist rather than clarifying in this regard. By hiding the sources of the law’s deontology, it has concealed even the most important question about the law’s authority.

The quite false idea that institutions serve only to constrain was prevalent in early sociology, particularly Durkheim’s. See eg E Durkheim, The Division of Labour in Society. This view has found its way into legal theory also. For instance, the constitutional lawyer and former judge of the Italian Constitutional Court, G Zargrebelsky, Essere delle istituzioni, 30 has said that ‘institutions were born out of a fear of freedom’s possibility’ and claims that, though they have an emancipatory function, this is merely to relieve human beings from having too many choices to make. This is exactly wrong. Nearly all the choices with which our lives are fraught are made possible by human institutions. 19

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DEONTOLOGY AND NORMATIVITY

Normativity has been a theme of modern jurisprudence. For reasons we will see in Chapter 11, much has appeared to turn on distinctions between, for example, being obliged, having an obligation, purporting to impose obligation, actually imposing obligation, and so on. In this environment, a question about all of the above may seem natural. The question might be put in this way. ‘I see how institutions create deontologies and I see how these deontologies get embedded in collective recognition, but is any of this really normative? Are these deontologies really binding?’ There are two ways to answer this question, depending on what is meant by ‘binding’. If ‘morally binding’ is meant, then the answer, as we have just seen, is ‘It depends on whether the institutions are morally justified or not.’ But to this the modern legal theorist might well reply: ‘Oh, I am not talking about morality. I don’t mean “Is it morally binding?” I just mean, “Is it binding generally?” “Do you have to obey it?”’ I hope that this and the previous two chapters have been sufficient to reveal that these are the wrong questions. ‘Is it binding?’ is not a helpful question. Am I bound to accept money in return for a good I am willing to sell? What does this question even mean? A better question would be not ‘Does the deontology of an institution bind?’, but ‘How the hell could you escape it?’ Or, more carefully, ‘Does the deontology that accompanies institutions give reasons for action?’ The answer to that is: ‘Well, of course it does.’ Don’t you, after all, act out of such reasons all your life?

8. Law We now have our definition of law. Law is a collection of status functions. These status functions are created by status function declarations. They are maintained by further status function declarations and by the use of status function indicators. These succeed only because they are met with collective recognition. This is law’s reality. It is made by us and what we make is a social institution that exists alongside many other such institutions. It is ontologically subjective: it exists only because it exists in our minds. However, due to its collective recognition, it is epistemologically objective. Once created, it exists whether any particular individual believes this or not. Moreover, like other institutions, law creates deontic power. Though made up, it gives us desire-independent reasons for action. That might appear to be a surprisingly short definition, but of course there is much contained within it. The definition is, as definitions of this kind must be, summaries of a cluster of notions. In this case, the definition is a summary of the argument of much of Chapters 3–7 of this book. We should not be too surprised, then, that the definition is short. That said, there are a number of points that are usefully raised at this juncture about the nature of definition and the adequacy of the one just provided. The first thing to say is that, though I expect that this definition will seem to most readers to be on the positivist side of the fence, it would be very misleading to conclude that the theory advanced here favours positivism over natural law theory. This has already been indicated at various stages in the previous chapters, but it will also be made clear in the ones that follow. Second, the collective recognition required in order to make something law will often be complex. The Small Charitable Donations and Childcare Payments Act 2017 (UK) is not a law because people in the UK generally know about this Act and recognise it as belonging to the law. My guess is that only a very small percentage of people in the UK have ever heard of it. The reason this is a law is that there is a collectively recognised practice for determining what is law and what is not and, according to that practice, the Act is a law. That practice can, of course, be investigated; but there is no reason to think that the appropriate method of investigation is philosophical. Third, the definition of law provided is not specifically of law. It is, rather, a definition of social institutions that has a place for law. This is not what mainstream jurisprudence has wanted. But, on this analysis, that is because 121

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mainstream jurisprudence has wanted what it cannot have: a definition of law that defines law as an entity sui generis instead of defining it in part in terms of the genera to which it belongs. Law is a social institution. The only way to understand it is as such. Fourth, and relatedly, one might doubt the adequacy of the definition given, as it does not enable us to distinguish law from other things – that is, from other human institutions – and that is what philosophers of law from Austin on have wanted. My response to this is to say that this is not something we should have wanted. The task of philosophy here is to elucidate the nature of the phenomenon in question. We cannot assume that the right way to do this is to learn how to distinguish it from other phenomena. If you want to understand who I am, you will not start by working out all the ways in which I am different from everyone else. Instead, you might try to find out what is important to me, and you will not regard your investigation as in vain if it turns out that the list of things you produce could also be used to capture other people’s values. It is useful here also to think again about art. In the Transfiguration of the Commonplace, Danto sought a definition of art. He did not, however, seek definitions of painting, sculpture, literature, music, and so on. Why not? Danto wanted to work out why ‘The Israelites Crossing the Red Sea’ and ‘Kierkegaard’s Mood’ are artworks while Giorgione’s grounded canvas is not. He did not try to work out why ‘The Israelites Crossing the Red Sea’ and ‘Kierkegaard’s Mood’ are paintings while Rodin’s ‘St John the Baptist’ is a sculpture. Again, why not? The answer may just have been that Danto had enough on his plate already, but I doubt it. It is more likely that it was because Danto thought that the distinction between art and non-art was philosophically interesting in a way that the distinction between painting and sculpture is not. We saw why this might be in Chapter 2. The former distinction has something to do with the nature of reality, but the latter does not. The latter may be of no philosophical interest, even if it may at times be of art historical or other concern. Is, for instance, Robert Rauschenberg’s ‘Monogram 1955–1959’ a painting, a sculpture, both or neither? Perhaps this is a question for art critics and not for philosophers. The point, then, is that there may be no general philosophical issue about the distinction between art’s genres, even if there may be individual cases in which philosophical issues arise (such as over whether John Cage’s 4’33” is a musical work1). Philosophers of law have tended to assume that the distinction between law and non-law must be the philosophically crucial one. Is this, though, anything

1 Eg S Davies, ‘John Cage’s 4’33”: Is it Music?’; J Dodd, ‘What 4’33” Is’; M Ravasio, ‘What 4’33” Also Is: A Response to Dodd’.

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more than a typical lawyerly prejudice in favour of the significance of her subject? Law is, of course, important in many ways, but what reason do we have for believing that it is philosophically significant per se? I cannot see any reason.2 Take Rauschenberg’s ‘Monogram’ again. We might be happy to say that this is in some ways a painting and in some ways a sculpture, but it certainly is an artwork and that is where its philosophical interest lies. Take, then, Law 8.2 of The Laws of the Game: Rugby Union. It seems perfectly reasonable here to say that this is a law for some purposes but not for others, but it is certainly part of a human institution and that is where its philosophical interest lies. The notion that we must determine via philosophical analysis whether it is a law or not seems quite wrongheaded.3 On the other hand, one might claim that, for practical reasons, we need to able to distinguish between what is and what is not law. Judges, for instance, need to know what to apply and what to leave alone. Perhaps this is so, but why is this a philosophical question? Moreover, I have provided an answer as to how we distinguish between law and non-law. That answer is collective recognition. In short, law is what is collectively recognised as law and non-law is what is collectively recognised as non-law. These matters are taken up again in Chapter 10, but we can say now that there seems no reason to think that philosophy alone must provide any more detailed answer.

Cf R Cotterrell, The Politics of Jurisprudence, chs 3–4, who maintains that the question has had practical importance. I take Cotterrell’s argument to be consistent with what I say here, however. For instance, according to Cotterrell, one of the aims of what he calls normative jurisprudence is to provide a distinction between law and politics. Nothing I say calls into question the validity of that distinction. My claim is just that it cannot be made philosophically in the way that, say, Hart attempted to. It seems to me that when we turn from abstract philosophical enquiry to investigation into our practices, that is, to sociology generally speaking, it is evident that there are important distinctions between law and politics, even if this is something that sociologists, post-Weber at any rate, have tended to deny. But that has to be worked out by looking at those practices. Further, Cotterrell argues that jurisprudents have wanted to provide a sound basis for legal science. Perhaps unlike Cotterrell, I do believe that one can be provided, but I see no reason to think that this basis must be found in philosophical enquiry into the nature of law rather than in, say, analysis of the legal doctrine itself. The basis, that is, may be found, not in the nature of law, but in the nature of the law. 3 This is different to saying that philosophy might play some role in elucidating what it is that makes something a law. Philosophy may well do this. But that is again quite different from philosophy providing a test that can be applied to cases to determine whether they are laws or not. 2

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Though Joseph Raz appears to have had a change of heart on this matter more recently,4 he earlier raised some very interesting questions in this connection. UK and USA statutes give legal effect to company regulations, to university statutes, and to many other standards without making them part of the law of the United Kingdom or the United States. Conflict-of-law doctrines give effect to foreign law without making it part of the law of the land. Such references make the application of the standards referred to legally required, and rights and duties according to law include thereafter rights and duties determined by those standards. But they do not make those standards part of the law. […] Had a statute said ‘So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the edicts of the Pope or with the writings of Kant’, we would not have been in the least tempted to think that through it either the edicts of the Pope or the writings of Kant have become parts of the law of the land, though beyond doubt they would have been given by that imagined act some legal effect.5

I think that we can agree with this, but only because of the way in which the examples are constructed. The picture painted, on the other hand, is misleading. It pretends to a level of certainty that does not exist, a point that Raz in the end seems to acknowledge when he tells us that ‘the distinction between what is part of the law and what are standards binding according to law but not themselves part of the law is particularly vague’.6 Let us begin with a conflict of laws case. Imagine that, due to conflict of laws rules, a court in the UK is required to implement a French law. Though the conflict of laws rule is part of UK law, Raz’s position was that the French law in question is not. The question, though, is why this is. Why do we treat the French law as belonging to French and not UK law if the UK court is required to enforce it? The answer, I think, is obvious and is of no philosophical moment. It is because the law was the creation of the French legal system and not of the UK legal system, because it can be amended by the former and not the latter, and so on. Because of this, it is convenient to think of it as a French and not a UK law. It would be a mistake, however, to think that this reveals anything significant about the ontology of law. In other cases, where convenience lies elsewhere, we may react differently. Consider, in this light, the claim that we would not regard Kant’s texts as part of the law in the circumstances Raz imagined. Now, it may well be that we would not do this immediately after Raz’s imagined statute had come into

6 4 5

J Raz, ‘Why the State?’ J Raz, Between Authority and Interpretation, 193–4. Ibid, 195.

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effect, but say instead that many years have gone by and that the courts have developed a long practice of consulting Kant’s texts. Would it still be clear that these texts were not part of the law? I cannot see any philosophical basis for insisting on this. In fact, one might think that this circumstance looks very much like that operating in civil law systems, where what common lawyers would regard as non-legal texts are considered to be parts of the law. In the same vein, one might think that things very much like the edicts of the Pope are laws in contemporary and historical religious legal systems. In fact, is this not true for the edicts of past Popes? I am suggesting two things. First, that the distinction between what is and what is not law is conventional and not ontological in any deeper sense. It is based on a practice. There may be good reasons for the practices that we have, but none of this is philosophically, or at least ontologically, significant in itself. Second, it is wrong to think that there must be one practice in operation here – a point that we will revisit in Chapter 10. In this regard, consider the claim that ‘UK and USA statutes give legal effect to company regulations, to university statutes, and to many other standards without making them part of the law of the United Kingdom or the United States.’ I agree, but there is a sleight of hand here. The reference to ‘the law of the United Kingdom or the United States’ situates the discussion within a certain practice. If I ask ‘Is Law 8.2 of The Laws of the Game: Rugby Union a law?’, you might well respond affirmatively even if you would respond negatively to the question ‘Is Law 8.2 of The Laws of the Game: Rugby Union a law of the UK?’ The ‘of the UK’ here indicates that we are taking about the practice of those people who wear wigs, gowns, and so on in that jurisdiction, and it is not their practice to treat the laws of rugby as part of that practice. But there may be plenty of other people who do treat, say, the statutes (note the name) of universities as part of the law at least for some purposes. One might point out that the practice of those in gowns and wigs is the practice about which Raz is theorising. That would be true, but that is also the problem. We cannot make claims about the law’s ontology from within only one of the practices that relate to law. All we get here is an ontology of law from the perspective of that practice. It may be useful to have that, but we must not lose sight of the partiality of such analysis. Let us return to the distinction between sculptures and paintings. Though we have no philosophical understanding of this distinction – and I have suggested that we probably do not need one – we are nevertheless able to distinguish between sculptures and paintings with little difficulty. Though works such as Rauschenberg’s introduce complications, no one thinks that Michelangelo’s ‘Pieta’ is a painting or that Raphael’s ‘The Madonna of the Meadow’ is a sculpture. This is because we operate on the basis of certain paradigms. A painting normally is or is close to being two-dimensional, for

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example. A sculpture, however, is usually solidly three-dimensional. But just as we cannot tell the precise moment when an acorn becomes an oak tree, there are examples of artworks that live in the grey area. The same is true of law. Also, our paradigms are often non-exclusive. At least since the end of the ancient world, paintings are normally painted while sculptures are not. This is part of the problem with the ‘Monogram’, which is three-dimensional and painted. There is no reason to deny that the same issues cannot arise with law. We have no difficulty recognising that, say, the Crimes Act 1961 (NZ) is law and that table manners are not, but we ought to resist the temptation to assert categorically that, for instance, governmental regulations, the constitutions of clubs and societies, contracts between individuals and the rules of professional sports are or are not law. For some purposes, they definitely are or are not law, but things can change for other purposes. Raz, for instance, implied that it is plain that the contents of contracts between individuals are not part of the law.7 I do not think that there can be any justification for this kind of certainty and I note that Raz did not give any. As noted above, he may well now recognise this.8 Against this wide pluralistic approach to the definition of law, Brian Tamanaha has argued that ‘To call these social institutions “legal systems,” […] is confusing and lacks theoretical justification. It amounts to a massive relabeling of rule systems as “legal” with no real conceptual gain.’9 Importantly for our purposes, he employs Searle’s theory to support his position: universities, sports leagues, and criminal gangs are not law[,] because they are not collectively recognized as exercising ‘legal’ deontic powers. On the other hand, customary law, religious law, and international law, among other legal forms, do constitute collectively recognized forms of law with legal deontic powers…10

Tamanaha later goes on to define these ‘legal deontic powers’, powers which universities, sports leagues and criminal gangs lack. Searle’s argument, however, cannot be used in this way. This is because the class of deontic powers that classify as legal is itself a matter that relies on collective recognition. In fact, Tamanaha’s separation of the collective Ibid, 193–4. J Raz, ‘Why the State?’ 9 BZ Tamanaha, A Realistic Theory of Law, 50. The criticism is directed specifically at, eg, HLA Hart, The Concept of Law, 165, 188, 208; J Gardner, Law as a Leap of Faith, 278; S Shapiro, Legality, 255; J Raz, ‘Why the State?’ See also N MacCormick, Institutions of Law, 1–2, 11. Tamanaha does support pluralism in a narrower sense, however. That view is also supported here, of course. For discussion, see R Cotterrell, Law, Culture and Society, 29, 36–40; W Twining, Globalisation and Legal Theory. 10 BZ Tamanaha, A Realistic Theory of Law, 53. 7 8

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recognition of law and of the foundation of the status of some set of deontic powers as legal or non-legal is spurious. These are all social intuitions and they all depend on collective recognition.11 We must therefore ask, ‘Is it collectively recognised that the deontic powers of universities, sports leagues, and criminal gangs are legal deontic powers?’ Unsurprisingly, this is really the same question as ‘Is it collectively recognised that the rules of universities, sports leagues, and criminal gangs are laws?’ These are open questions and I do not believe that they have definitive answers, at least in many cases. I think it is true that the rules of criminal gangs are not recognised as law, but for some purposes, though not others, the rules of universities and sports leagues are. After all, Tamanaha himself correctly insists that the fact that we call international law law is strong evidence in favour of the notion that it is in fact law12 (remember that universities have ‘statutes’ and sports organisations have ‘laws’) and that empirical work is required in order to identify relevant data sets in this area,13 empirical work that, it seems to me, will in relevant contexts show that the disputed cases are laws for at least some purposes. At least, that cannot be ruled out a priori. At this point, I want to make it clear that I am not advancing the view that the category of law rests on family resemblance, a notion that rears its empty head (normally to be rejected) in many jurisprudence textbooks. This is an idea that we owe to the later Wittgenstein. It is worth spending a little time exploring this notion. Consider for example the proceedings that we call ‘games’. I mean board-games, card-games, ball-games, Olympic games, and so on. What is common to them all? – Don’t say: ‘There must be something common, or they would not be called “games”’ – but look and see whether there is anything common to all. For if you look at them you will not see something that is common to all, but similarities, relationships, and a whole series of them at that. To repeat: don’t think, but look! – Look for example at board-games, with their multifarious relationships. Now pass to card-games; here you find many correspondences with the first group, but many common features drop out, and others appear. When we pass next to ball-games, much that is common is retained, but much is lost. [Wittgenstein then presents other examples.] And the result of this examination is: we see a complicated network of similarities overlapping and criss-crossing: sometimes overall similarities, sometimes similarities of detail. I can think of no better expression to characterize these similarities than ‘family resemblances’; for the various resemblances between members of a family: build,

11 As Frederick Schauer has pointed out, both law and the concept of law are artefacts. F Schauer, ‘Law as a Malleable Artifact’, 35. 12 BZ Tamanaha, A Realistic Theory of Law, 72. 13 Ibid, 74.

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features, colour of eyes, gait, temperament, etc. etc. overlap and criss-cross in the same way.14

There is something very odd about this position. As Danto has said: The concept of the family to designate this crisscrossing of phenotypical qualities is almost appallingly ill chosen, since the members of a family must, however much or little they resemble one another, have common genetic affiliations that explain their ‘family resemblance’ and someone is not a member of a family if he lacks this, even though he should resemble another (though a striking resemblance may be evidence for satisfaction of the genetic criterion).15

More significantly for our purposes, the idea that the solution to our philosophical perplexity is to turn from conceptual analysis to perception – to ‘don’t think, but look!’ – is a notion that cannot survive this investigation. As we saw in Chapter 2, Danto begins his philosophy with a list of examples that show straight away that looking and not thinking will get us nowhere. No amount of looking at ‘Kierkegaard’s Mood’ and Giorgione’s canvas will reveal even a glimpse of the gulf that exists between them. Though the argument must be different, the same is true in law. Perhaps I can just look and see that the Crimes Act 1961 (NZ) is law and that table manners are not, but I cannot do this with governmental regulations, the constitutions of clubs and societies, contracts between individuals and the rules of professional sports. Far too much philosophy of law is of this kind. Not only have we just seen it in a view once held by Raz, but it is, after all, the basis of Hart’s rejection of natural law theory.16 It is also useful now to say something about function. Recall from Chapter 2 that it is sometimes held that law, having a function, must be understood

L Wittgenstein, Philosophical Investigations, §§66–7. AC Danto, The Transfiguration of the Commonplace, 59. 16 ‘Yet it is plain that neither the law nor the accepted morality of societies need extend their minimal protections and benefits to all within their scope, and often they have not done so. In slave-owning societies the sense that the slaves are human beings, not mere objects to be used, may be lost by the dominant group, who may yet remain morally most sensitive to each other's claims and interests. […] Nazi Germany and South Africa offer parallels unpleasantly near to us in time.’ HLA Hart, The Concept of Law, 200. The argument is: ‘Just look at these things. You can see that they are immoral laws.’ This, as will be seen in later chapters, is to overlook the important philosophical issues. 14 15

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functionally. Recall the position (and the fact that the presenter accepts that the argument in this form does not succeed). Consider the comparison between laws and human artefacts such as spoons and chairs. We do not have one set of criteria for deciding whether something counts as a spoon and another set for deciding whether it is a good or a bad spoon. In both cases, the test is a purposive one. We understand what spoons are only by reference to their purpose. […] A spoon that serves its purpose well is a good spoon. A spoon that serves its purpose badly is a bad spoon. At some point, the ‘spoon’ may perform so badly that we would refuse to describe it as a spoon at all […] Why should legal systems be different? Why should we have one set of standards for deciding if something is a legal system, and another for deciding if it is a good legal system?17

One might begin by questioning the assumptions here. Is it really so clear that spoons, chairs, and so on are defined functionally? Andrei Marmor has insisted that an essential property of being a chair is that one can sit on it.18 That seems very doubtful. What of toy chairs; of sculptures that are chairs and yet are too fragile to be sat on; of chairs created for mythological gods, too large to be climbed on, let alone sat in; of prop chairs that are used on film sets or in theatres that are designed to look like things that can be sat on but in fact cannot be; of standing chairs, and so on. What might we say about, for instance, Allen Jones’ infamous sculpture ‘Chair’? Is this a chair? Does the answer to that question turn on the ease of sitting on it? Consider the same artist’s ‘Hatstand’. Is this a hat stand? Does the answer to this question turn on the ease with which one can hang one’s hat on it? The answers to these questions are not at all simple and, though I will not explore the issue any further here, I doubt that we define anything purely functionally.19 More importantly, I want to point out that we have answered the questions with which the passage just quoted ends. Why should legal systems be different? Because we make law, and though we generally make law to serve purposes, there need be no limit to the purposes we employ and, moreover, we can succeed in making an individual law even if the individual law is inconsistent with the purpose for which we make it or even if it is made with no purpose at all. For this reason, we cannot build function into the concept of law itself. World Rugby frequently makes laws for the purpose of simplifying the game. The fact is, however, that they have failed at perhaps every attempt at

NE Simmonds, Central Issues in Jurisprudence, 249–50. A Marmor, ‘Law, Fiction, and Reality’, 51. 19 I am aware, of course, that this orthodox view has come under attack in philosophy and that a considerable number of jurisprudents have latched on to this. I am afraid, however, that I think that this will prove to be a dead end. Some of my reasons for thinking this are outlined here. 17 18

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achieving this. But it would be spurious to conclude from this that, say, the relevant laws are not laws of rugby in the fullest sense or that they are rules binding on referees but not really laws of rugby or the like. And I cannot see how one could justify the claim that these laws do not belong to the central case of rugby laws, unless one has – from the perspective of ontology – arbitrarily chosen to adopt a particular evaluative viewpoint. And it would not do to try to justify adopting a viewpoint on the basis that it is in accordance with the purposes that World Rugby itself adopted because, as we have seen, the institution is such that World Rugby can create laws that do not serve the purpose they are designed to serve – if they are designed to serve any. To rule that out is to misunderstand the nature of the institution we are meant to be examining. We must remember that, made by human beings, the institution is sure to inherit our flaws. Of course, those familiar with jurisprudence will be familiar with the views to which I am alluding here. Given this, it is important to say that this is not the end of the matter. I am saying that theories cannot start here. That does not mean that they cannot start somewhere else and end up in a similar place. It will be time soon to see where this does all end up. Against this way of thinking, Kenneth Ehrenberg has produced a sustained case in favour of the claim that ‘one cannot completely understand the law without understanding its functions’.20 I have no desire to dispute this. Taken literally, the claim surely cannot be disputed. The point I want to make is that, beyond what I have said in this book already, no functions belong to the logical structure of law – none, that is, beyond creating deontology so that we can get things done, an important but not exactly precise idea if what we want to do is to understand law as a functional object. No doubt, however, individual laws that are introduced for specific reasons cannot be understood without having those reasons in mind, and so on. But, at the level at which we are operating, I doubt that analysis of function will get us very far. Functional definitions of art used to be very popular. They suffered from one serious defect, however. Artists – being mischievous types and also, at least in the nineteenth and twentieth centuries, strangely interested in the philosophy of art – could be counted on to make artworks that conflicted with whatever theory happened to be foolish enough to raise its head above the parapet. To cut a long story short, legions of philosophical theories were destroyed when one man was bold enough to stick, not one, but a bunch of urinals in art galleries. That still allowed traditional art theorists to moon over the gleaming whiteness of the porcelain, and so on, but when the same man did the same thing with a comb, a bottle rack and a snow shovel, it began to dawn on people KM Ehrenberg, The Functions of Law, loc 3348 (ch 6A para 9).

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that the game was over.21 The fact is that artists can make anything into artworks (though, despite being able to make mere real things into artworks, they cannot make artworks that are mere real things, as poor J has to discover) and when this became clear, it also became clear that a whole range of definitions of art were impossible. Basically, if you produce a functional theory of art, some damn artist will make an artwork that does not have the function you have said it must. For a positivist such as Ehrenberg, in principle the same problem surely exists. If positivism is right, then law can be anything (that is, anything that can be collectively recognised as being law). If you say that law has a certain function, what is to prevent, in principle, some law maker making a law that violates that stipulation? What is to prevent her making lots of such laws, even a whole legal system? Ehrenberg, for instance, claims that law cannot be created accidentally.22 I cannot see why that should be impossible. Why could a law maker not create a device for making law that entailed that law could be made accidentally? In fact, I rather suspect that this has happened at least once in the history of the world. This is not to question the value of examining the law’s functions. It is to question only the notion that function lies in law’s logical structure.

See AC Danto, The Philosophical Disenfranchisement of Art, ch 5. KM Ehrenberg, The Functions of Law, loc 3447 (ch 6B para 9).

21 22

PART III

Reconstructing the philosophy of law

9. Directions Our investigation turns now from general enquiry into the nature of law to an examination of jurisprudence. This is not because our initial investigation has finished. It is rather because it will continue as part of an enquiry into the history of this subject. We will see that philosophers of law have added significantly to our understanding of the nature of law, though not always in the way they might have thought. We will also see, however, that what are held to be the central debates in this subject are frequently distractions that divert attention from the genuine insights held by the theorists who engaged in those debates. One issue should be dealt with immediately. In the first part of this book, I argued for a significant change in the philosophy of law. In this part, however, I examine the same old arguments that have been debated for decades. Why? The answer is that I think that the issues raised in these debates are important. I think that they have not been dealt with well by jurisprudence, which is no doubt part of the reason the reader may be sick to death of them (if she is). But I think that they can be dealt with usefully, informatively and even interestingly. At the end of the day, that is of course for the reader to decide. Perhaps this book should have ended here. But if that is so, then my claim that the work of theorists such as Austin, Hart, Dworkin and Raz remains very valuable, even if problematic, is wrong. At least that would be a discovery of some moment. I hope, then, that there is material of interest in the following. There is also a general theme. It is that modern legal positivism is inherently unstable. It presents itself as a self-sufficient theory of law, but it cannot exist as such. Perhaps the easiest way to express the point is to say the following. To the extent that positivism wishes to interpret law as a social phenomenon, it can provide an adequate account of law only with the aid of what we may as well call sociology. In particular, this kind of legal analysis calls for empirical investigation into law. On the other hand, to the extent to which positivism wishes to present law as a normative phenomenon, it cannot avoid entanglement with morality, and thus with natural law theory. Most jurisprudence tries to live in an impossible space. It constantly raises issues that must be dealt with utilising resources that can only come from elsewhere. Because it denies this, however, positivism has been and continues to be a significant brake on progress in this area. This is why it must be overcome. 133

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This is also the moment for an apology. This book is thematically incomplete, because it lacks a discussion of its chief naturalist rival, from which it differs considerably: legal realism. The original drafts of this book included a long chapter on this material, but it needed to be deleted for reasons of space. I hope that it will see the light of day sometime in the future. At present, the best I can do is request forgiveness for what is clearly a lacuna. Finally, as discussed in Chapter 8, ‘law’ can refer to an array of phenomena. However, the debate examined in the following is at least mostly about what we can call state law or law that is similar. Unless indicated otherwise, then, the law examined in Part III of this book is state law. This, however, should not be understood to be in tension with the pluralism about law promoted earlier. I am merely choosing to focus on what others have chosen to focus on. Many would agree that the contemporary phase of jurisprudence began with Hart’s rejection of classical positivism. This and the following two chapters examine important aspects of this rejection. We begin by examining the way that the two approaches deal with the relationship between law, direction and coercion. Classical positivism is the theory of Jeremy Bentham and John Austin in particular. Its basic position can be seen in Bentham’s definition of a law as an assemblage of signs declarative of a volition conceived or adopted by the sovereign in a state, concerning the conduct to be observed […] by […] persons, who […] are or are supposed to be subject to his power: such volition trusting for its accomplishment to the expectation of certain events […] the prospect of which it is intended should act as a motive upon those whose conduct is in question.1

For our purposes at any rate, we can say that this means that law is the command of a sovereign backed by a sanction. One of Hart’s important criticisms of this view is that it fits at best only a certain subset of law. That argument is examined in this and in the following chapter. Suffice it for now to say that, according to Hart, law can be divided into that consisting of primary and of secondary rules, and classical positivism presents a plausible (if in the end incorrect) analysis of the former only. This chapter is concerned solely with that kind of law; with what we can call primary law. Hart and the classical positivists agree that the main purpose of this law is direction. It is to get people to do things or to refrain from doing things. As Hart says, ‘Legal control is primarily […] control by directions.’2 But how

J Bentham, Of Laws in General, I 1. Eg HLA Hart, The Concept of Law, 21. This was also the view of the criminal law presented in Searle’s lectures. 1 2

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does legal direction work? Hart maintains that law directs by creating duties. For Hart, then, primary law consists of rules issued by the relevant authority that constitute standards of conduct. On this view, then, primary law consists of directives that impose duties on people to act or to refrain from acting in certain ways. For the classical positivists, things are more complicated. Their position, recall, is that law is an order backed by a threat. Law, then, has the form ‘Do it or else.’ Note that there are two elements in this formulation: the ‘do it’ and the ‘or else’, the first being a command and the second being a threat. For these positivists, then, primary law is both directive and commissive. As we will see, particularly in Chapter 11, perhaps Hart’s most important objection to classical positivism is that the first of these elements is seriously underdeveloped in classical positivism. This means that the classical positivists present no real analysis of the law’s directive character. But the focus now is rather on the classical positivists’ claim that primary law is essentially commissive. This chapter argues that both theories are insightful but, in the end, both are mistaken. In the first section, we see that law can and does adopt either of these forms, but it could also adopt both forms at once or even alternative forms. The question here, then, is not whether the classical positivists or Hart were right, but when each is right and what else there is to say about law in this area. In the second section, we see that one advantage of classical positivism is that it recognises the fundamentally commissive – specifically coercive – nature of law, even though it misunderstands the precise character of this. In the third section, we see that both theories are mistaken in suggesting that legal direction is overt, where in truth it is a far more complicated story than these theories would have us believe.

1.

LAW, DIRECTIVES AND THREATS

Let us begin with some examples of the kind of law under investigation, one of which we have encountered already. (1) ‘Homicide is the killing of a human being by another, directly or indirectly, by any means whatsoever.’ (s 158 Crimes Act 1961 (NZ)) (2) ‘Every person commits an offence who discharges a firearm at a person with intent to wound, maim or disfigure, to endanger the life of or to prevent the arrest or detention of any person – whether or not that person is the one at whom the firearm is discharged.’ (s 244(1) Criminal Code (Can))

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(3) ‘A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it.’ (s 1(1) Theft Act (UK)) (4) ‘Every person who, without authority of law, willfully disturbs or breaks up any assembly or meeting that is not unlawful in its character […] is guilty of a misdemeanor.’ (s 403 Penal Code (Calif)) The first thing to notice about these is that, though they are paradigm examples of the kind of law in question, they do not present themselves either as commands attached to sanctions or as directions that impose duties. The Crimes Act (NZ) does not say ‘Refrain from killing a human being or else…’ and the Criminal Code (Can) does not say ‘You have a duty not to discharge a firearm…’ In fact, the laws are not expressed as commands at all. Hart also sees this. It is reflected in his claim that, though directive, this law is not addressed to citizens in the way that ordinary orders are addressed to those at whom they are directed.3 Unfortunately, however, Hart does not develop this idea. Grammatically speaking, these laws are given in the indicative and not the imperative mood. Naturally, though, the utterances are not assertives.4 It would reveal a serious misunderstanding to ask, for example, how the California legislature knew that breaking up an assembly was a misdemeanour. The utterances (1)–(4) are declarations. The legislatures make these activities offences by declaring them to be offences.5 The characteristic form of speech act in legislation of this kind, then, is the declaration and not the directive. However, as we saw in Chapter 4, utterances can be used to perform more than one speech act. It is possible, then, that utterances (1)–(4) are directives as well as declarations. We will see that this is often the case, but it is important not to skip over significant issues before arriving at this destination. First, it does not follow from the fact that a speaker makes an utterance with a particular aim that that aim is part of the speech act. If I am the chairperson of a committee, I may declare the meeting to be adjourned because I want the members to vacate the room, but that does not mean that my utterance ‘I declare the meeting closed’ is a directive to vacate the room. Similarly, I may thank you for smiling at me in an attempt to get you to smile at me again, but that does not make my utterance, which is an expressive, a request (a type

Ibid, 21–2. According to Hart at least, this is a mistake that Bentham made. HLA Hart, Essays on Bentham. This seems to be a rather uncharitable reading of Bentham’s position. 5 Though, of course, in these specific cases, legislation or other law may have already made such a declaration. 3 4

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of directive). Here, even if the aim of utterances (1)–(4) is to direct people, it would not follow that the utterances are directives. These points must also be understood in conjunction with the fact that, on reflection, it seems that it is frequently the case that those involved in the passage of legislation do not have direction in mind. A recent example of this, of which I had personal experience, concerns the Administration of Justice (Reform of Contempt of Court) Bill 2018 (NZ). Subpart 6 of this Bill sought to criminalise some criticism of judges. As an opponent of these sections, I presented a critical assessment of them to the Parliamentary Select Committee for Justice. The members of the committee who had some sympathy with these sections of the Bill responded to my criticisms by raising a concern that can best be put in the form of this question: ‘What would happen if people were allowed to make serious allegations against judges, such as that they were biased, without redress?’ I will not give my response to that question here.6 The important thing for us to see now is that the focus of those members of the Select Committee sympathetic to Subpart 6 of the Bill was not directing individuals but preventing undesirable behaviour. Now, one might suggest that these are just the opposing sides of the same coin – one prevents undesirable behaviour by directing people not to undertake that behaviour – but in this case, this seems wrong. The intention was not that passing the Bill would mean that people would be directed, but rather that passing the Bill would allow courts to police unfair criticism of the courts. In other words, the message was not intended to be ‘Citizens: don’t unfairly criticise judges.’ The message was rather ‘Judges: here is the power to protect yourselves from unfair criticism.’ And the significance of the message was that when judges utilised that power, they would send a different message to those who do or might unfairly criticise judges. That message would not have been ‘Don’t unfairly criticise judges.’ It would have been ‘If you unfairly criticise judges, we will get you.’ This is a totally different message. Note that it is not a directive but a commissive. It is a threat. The reason for this focus is that it was felt that those who would be likely to criticise courts in the relevant circumstances would not be amenable to legal direction. To put it bluntly, the proposed law was designed to capture what might be described as ‘renegade’ criticism: highly unreasonable accusations aimed at judges from people who have become prejudiced against the system. Such people, it is thought, will refrain from publishing their views only if it is made clear to them that there will be a significant cost in doing so. There is no point in directing these people; only deterrence will work.



6

In short, my answer is that nothing of any significance would happen.

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This is to say that, had Subpart 6 of the Bill become law, its primary meanings would have been declaratory and commissive. Its main functions were to make an offence, to give judges the power to punish people for committing it and to say to those inclined to commit the offence that they would be punished if they did (again, note that this is a threat and not an order). The law may also have functioned as a directive, but this would have been secondary at most, almost an afterthought. Furthermore, once we recognise this in this particular case, we will see that this situation is far from unique. Consider example (1) above. A standard view has been to interpret (1) in conjunction with other relevant sections of the Crimes Act to say, ‘Do not kill people’, to issue this directive. That, of course, is not the literal meaning of (1), which is declaratory and not directive. But it is also important to see that there is something strange about saying that ‘Do not kill people’ is a primary meaning of this or of any such law. For most people, the injunction ‘Do not kill people’ is strangely redundant. Generally, it is very odd behaviour to issue negative directives to people who have no intention of performing the prohibited action. This is because this would involve the failure to observe an essential condition of a directive. As we saw in Chapter 4, it is out of order to demand that someone not do something that it is clear that they will not do. As such, ‘Do not kill people’ misfires as a directive aimed at me and at most others.7 To adopt a different method of analysis, we might say that law is meant to give us peremptory reasons for action.8 The basic idea here is this. Imagine that I might be thinking of doing x or y. I have my reasons for favouring x and my reasons for favouring y. The law, however, requires me to do x. The idea is that the law provides a reason to do x that is independent of my reasons to do x or y and that pre-empts those reasons. As it were, the law says ‘Do x regardless of what you think about x or y.’ We need not examine this view in detail here (it will be explored in Chapter 14). All we need to see is that the law against murder, for instance, almost never functions in anyone’s practical reasoning in this way. I certainly do not regard the law against murder as peremptory. The law is just one of the reasons, and a rather unimportant one, in my refraining from murder. On the other hand, those seriously tempted to murder are not likely to be restrained by the mere fact that what they are contemplating is illegal (as opposed to the punishment that they may face). Again, it seems

7 Hart notices this point and lists it as a problem for classical positivism, but he does not reveal how his theory would address it. HLA Hart, The Concept of Law, 51. 8 This was explicitly the view adopted in HLA Hart, Essays on Bentham, 244. See also J Raz, Practical Reason and Norms.

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that this law functions, and is intended to function, more as a threat than as an order. It is a commissive aimed to deter those contemplating killing. This is not to say that the law of homicide does not direct. I do not deny that it does. The point is to show, however, that this is far from straightforward and that the law also does other things, things that are actually more significant for our understanding of law’s social role. To spell this out, we might say that the claim that primary law is essentially directive seriously misdescribes the way that law functions in practical reason. It is sometimes advanced, against certain theories not relevant here, that primary law has the form ‘Do not do x. If you do x then you will have to pay the penalty.’ It does not have the form ‘Either do x or pay the penalty.’ That is, primary law issues categorical and not hypothetical imperatives. This is entirely correct, but we need also to recognise that this law, that is, these legal utterances, consist of more than one speech act and that these speech acts have different forms. So, the same law that says ‘Do not do x. If you do x then you will have to pay the penalty’ is also saying ‘I hereby declare that x is an offence.’ It is also saying ‘If you do x, we will make you pay the penalty.’ And these things may be, and often are, far more important than the order generated by the law. The upshot of this is that, though we can agree with Hart that we cannot understand even these laws as commands attached to sanctions simpliciter, Hart is wrong to downplay the role of the sanction in the way that he does. A law of this kind is not merely a command attached to a sanction, but it is a command attached to a sanction. In fact, the law is often threatening, directive and declarative and it may well be other things besides (such as expressive), and we will not understand it properly if we reject or downplay this. This is the first time that we see what will be a theme of much of the rest of this book: that focus on the historical arguments in jurisprudence has retarded necessary investigation. The classical positivists maintain that law is a command attached to a sanction. Hart maintains that ‘Legal control is primarily […] control by directions.’9 The focus has been on who is right, with the overwhelming consensus being that Hart is right. In fact, however, though both views contain elements of the truth, neither is right. The situation is more complex than either theory suggests. Law of this kind does direct, but there is much more to what it does than this. Instead of siding with one theory or other, then, we ought to be investigating the ways in which this law achieves its goals. It is distressing to observe that jurisprudence appears to have discouraged these fruitful lines of enquiry.



9

Eg HLA Hart, The Concept of Law, 21.

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LAW AND COERCION

Let us return to an example introduced in Chapter 7. I am refereeing a game of rugby and show one of the players a yellow card. As a result of my action, his obligation is to leave the field for ten minutes. But what if he refuses to leave? What can I do then? I can speak to his captain or his coach, but if they do not cooperate, what am I to do? I might threaten to call off the game or even do so, but what if they do not care? What happens if they decide to carry on without me? For a referee aware of the fragility of his authority, there are no psychologically satisfying answers to these questions. I cannot force the player to leave the field by, for instance, pulling a gun on him and threating to shoot him if he does not obey. Nor do I have a militia standing by to enforce my commands. But with law it is different. There, law breakers can be compelled to comply. This is the deepest insight of classical positivism. It is important to recognise that it is a genuine insight and its rejection by Hart and others is a serious mistake, despite there being good reasons to think that the classical positivists’ understanding of the place of coercion in law is faulty. As noted above, classical positivists defined law as a command of the sovereign attached to a sanction. As was also noted, Hart rejected this view, inter alia, on the basis that it is not consistent with the variety of law: while it may be plausible to claim that the criminal law or the law of tort has the form of a command attached to a sanction, much law is unlike this. The laws of contract and will formation seem clear cases. These laws contain rules that determine how contracts and wills must be formed, but they do not actually tell anyone to do anything and they are not attached to sanctions. That not all law appears to be accompanied by sanction was noticed by Austin. Infamously, he responded by claiming that sanctions were present even in these cases.10 Take, for example, the law of contract formation. Austin’s position was that there is a sanction here: if you fail to observe the rules of contract formation, then the sanction is that you fail to obtain a contract. Hart and others rightly reject this view.11 Again, then, let us just accept that Hart is right about this. Coercion is not an essential feature of individual laws. Nevertheless, here again we might ask whether the rejection of classical positivism has gone too far. Though Hart’s argument is compelling, we need to see that it applies only to individual laws and not to law as a system. Hart does not show that it is wrong to think that

J Austin, The Province of Jurisprudence Determined, xxx. See, however, the partial rehabilitation in R Cotterrell, The Politics of Jurisprudence, 62–7. 10 11

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coercion is a salient feature of legal systems. It surely is such a feature.12 As being painted is one of the paradigm features we look for in paintings, coercion is paradigmatic of law. We can agree that the laws of contract and will formation are not coercive, but it is surely salient that these areas connect with closely related areas of the law that are coercive. The law of contract formation is about forming legally binding – that is, coercible – agreements, for instance. Were this not true, the law of contract formation would look quite different than it does. Take now the law of wills. We can ask whether a particular jurisdiction’s formal requirements on the creation of a will are justified. But when one asks this question, one takes for granted that the answer will reflect the fact that wills are enforceable. So, we are asking whether a particular formal requirement is justified given the enforceable consequences that will follow. It is often true to say that coercion is part of the law’s Background. It is the sometimes invisible assumption against which the law possesses the meaning it has for us. It is a mistake to think that law can be understood without taking this into account.13 At this point, it is worth pausing to consider the following. Hart’s argument shows that coercion is not a necessary feature of individual laws. This is meant to lead to the conclusion that coercion is not part of the nature or character of law. That is a bad argument. Not all law is coercive, but it hardly follows from this that coercion is not a salient feature of law.14 Standing back from the historical debates, could we really entertain the notion that an adequate theory of law might not mention coercion at all? As the answer to this question is surely ‘No’, why then do we entertain such theories? The answer to that question is found in the incestuous character of modern jurisprudence. 12 Note that this is consistent with the view that certain legal systems might lack what we would ordinarily regard as an enforcement mechanism. Roman private law was certainly law. But would we so regard it if we discovered that the decisions of Roman courts were regarded as merely suggestions for future action? See also N MacCormick, Institutions of Law, 255; BZ Tamanaha, A Realistic Theory of Law, 97. 13 The point seems to have been appreciated by Austin. See J Austin, Lectures on Jurisprudence or the Philosophy of Positive Law, 444–5; J Austin, The Province of Jurisprudence Determined, 235. This is not to say that being connected with coercion is a strictly necessary condition for something being law. Apart from being part of a human institution, I doubt that there is anything conceptually necessary in this way. As always, all of this turns on our practices. 14 Cf ‘This imperative theory, though it falls short of an adequate analysis, does undoubtedly express a very important aspect of the truth. It rightly emphasises the central fact that law is based on physical force. For law exists only as an incident of the administration of justice by the state, and this consists essentially in the imperative and coercive action of the state in imposing its will, by force if need be, upon the members of the body politic. […] This, then, may be accepted as the central truth contained in the imperative theory of law.’ J Salmond, Jurisprudence, §17.

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On reflection, one of the surely odd features of The Concept of Law is that law’s coercive character largely fails to register in its analysis. Moreover, this failure to recognise the salience, and moral importance, of coercion appears to be routine today, not only in jurisprudential circles, but among lawyers generally.15 Most contemporary legal analysis treats law as if it were a kind of resource for achieving desirable ends,16 ignoring the fact that law coerces people and must be justified in the light of that fact. On this view, compulsion through law is essentially benign. The result is that a great deal of legal analysis exhibits a quite arresting complacency about the coercive character of the law, because the analyst has become blind to the fact that it is coercive.17 Modern legal positivism is far from the only cause of this blindness, but it has played its part.

3.

LAW’S INSECURE AUTHORITY

As we have seen, though primary law directs, this is sometimes almost an afterthought. It is important to see that it need not have been like this. Primary law could have been presented as a set of directives. We could have law that says not ‘Every person who […] willfully disturbs or breaks up any assembly or meeting […] is guilty of a misdemeanor’, but ‘Do not wilfully disturb or break up assemblies or meetings.’ Moreover, even utterances presented as declarations can also clearly be directives. ‘It is hereby declared that every person who willfully disturbs or breaks up any assembly or meeting is guilty of a misdemeanor’ would be an example. But as we have seen, duty-imposing law is not characteristically expressed in this form. Why not? In order to answer this question, it is useful to consider the following list of utterances issued in a non-legal context. In each case, we assume, the point of the utterance is to get a person to refrain from performing a certain action. (1) (2) (3) (4)

‘I order you not to…’ ‘I declare that you are ordered not to…’ ‘I declare that it is against the rules to…’ ‘It is against the rules to…’

See also D Campbell, ‘Gathering the Water’; F Schauer, ‘On the Nature of the Nature of Law’; F Schauer, The Force of Law. 16 This view has been explicitly advanced in positions as diverse as, for example, R Coase, ‘The Problem of Social Cost’; RA Posner, ‘A Theory of Negligence’; P Cane and J Stapleton (eds), The Law of Obligations: Essays in Celebration of John Fleming; P Cane, ‘Distributive Justice and Tort Law’. 17 D Campbell, ‘Interpersonal Justice and Actual Choice’. 15

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(1) is a directive. (2) is a declaration that is used to issue a directive. (3) is a declaration that brings into being a state of affairs (the existence of the rule) that implies a directive. Assuming that it succeeds in creating the rule in question, (4) is a declaration in the form of an assertion that brings into being a state of affairs (the existence of the rule) that implies a directive. Given that each is said for the same purpose – that is, to get the hearer to refrain from doing something – why might a speaker prefer one of these over another? In particular, given that it is the form in which the kind of law in question is characteristically expressed, why might (4) be preferred to the other expressions? The answer is that this form of expression is used when the speaker either does not believe that, or wishes to hide the fact that, she is the giver of the order. The first cannot apply to modern law making,18 so what is to be said of the second? We have seen that this kind of ‘hiding’ is characteristic of indirect directives. I ask you to pass the salt by saying ‘Are you able to pass the salt?’ I ask you to shut the door by saying ‘Would you mind closing the door?’ This presents as a polite form of address, because the configuration of my utterance suggests that the decision to pass the salt or close the door lies with you. Literally, one could respond by passing the salt and saying ‘Yes I can. And to prove it, here you go’, or by closing the door and saying ‘I don’t mind at all. Let me do it for you.’ We are allowed to pretend, as it were, that the action originated with you. We do exactly the opposite, we ‘display’ ourselves, when we make an offer in the form of an order: ‘Have a piece of cake’, ‘Take the load off your feet’, or ‘Make yourself at home’, for example. In these cases, we want to make it clear that the action originated with the speaker. I want to make it clear that I am giving you the cake, that I am offering you the chair, that I am welcoming you to my home. We also often hide when giving orders. We might say, for instance, ‘You shouldn’t do that’, ‘That’s wrong’ or ‘That’s against the rules.’ Sometimes, of course, those utterances may be assertives and they may be true, but we often enough utter them as directives where we mean nothing more than ‘Don’t do that.’ We do this especially when we are insecure in our authority. So, for instance, my children are constantly saying to each other ‘You’re not allowed on screens’ and they use this impersonal form of address because, as they are well aware, they have no authority to stop their siblings going on screens. My children get seriously aggravated when they are told ‘You’re not allowed on screens’ by their siblings, but they would laugh if one of their siblings said to them ‘I order you to get off that screen.’

I am not entirely representing my own view here. See especially A Beever, ‘The Declaratory Theory of Law’. Nevertheless, this is sufficient for our purposes, as this is not the place to discuss these complications. 18

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One of the reasons that utterances such as ‘You’re not allowed on screens’ work is because the children are covertly appealing to the authority of their parents. And this works, even when the directed child has in fact complied with the rules – indeed, even when we have told the child that she is complying with the rules – and though we have made it clear to all our children that they are not entitled to enforce the rules. What is happening here is that the utterer furtively relies on the authority of someone other than the utterer, even if that is defective.19 But with respect to the laws examined in (1)–(4), given that they are utterances of the legislature, to whose higher authority do these laws appeal? The suggestion is that these laws are presented in the way that they are in part because of the problem with human institutions that we noted in Chapter 7: the fragility of the power created by them. In Chapter 2, I asked with respect to an Act of the New Zealand Parliament: Why does anyone care about what this cantankerous group of opinionated, self-important mediocrities in Wellington do? Why do we pay any attention? If I get a group of people to perform these actions at my house in Auckland, no one will care, unless it just amuses them, even if my houseguests are far more intelligent and reasonable than is the crowd in Wellington, as is not unlikely. How do those people in Wellington get away with it?

A point of expressing law in the form in which it is expressed is to deflect attention from these and from like questions. Recall from Chapter 7 Searle’s claim: I am not at all sure that a general understanding of how institutions are created and function would actually facilitate their functioning. Many of them are based on beliefs, such as beliefs in the supernatural, that I think are almost certainly false; and even those institutions that are not formed on the basis of doubtful beliefs, such as money and government, tend to work best when they are taken for granted and not critically analyzed. As Karl Marx pointed out, ‘One man is king only because other men stand in the relation of subjects to him. They, on the other hand, imagine that they are subjects because he is king.’20

Here the law does its bit to ensure that a general understanding does not develop. That might seem a surprising claim. Surely, one might object; however the law is phrased, we all know that the law is made up by the relevant officials. 19 That is, defective because the person relied on has no authority or because the utterer is not entitled to rely on the authority that that person has. 20 JR Searle, Making the Social World, 107. Quotation from K Marx, Capital: A Critique of Political Economy, Volume I, 149 n 22.

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Yet, if my approaching 20 years’ experience as a student of law – and a student of law students and teachers – has taught me anything, it has taught me that this is not true. On the contrary, an attitude of heathy scepticism as to the morality or legitimacy of the law or the justified authority of our law makers is, in my experience, very rare (this is especially so among lawyers when the law is judge-made and the law maker is a judge). Though it is important to accept that my experience has been coloured by teaching students who intend to have careers in the law and by being a colleague of those who already have such a career, nevertheless the point is general. My experience teaches me that there is a very strong tendency to accept the law as justified, at least outside specific areas that are recognised to be controversial, such as drug law or euthanasia.21 Where that is not so, an at least apathetic acceptance (that is, mere recognition) is normal. It is, in fact, very difficult to get students to engage with the law critically. They are inclined just to accept the words of legislatures or – or, rather, especially – courts as if they had fallen from heaven. One might respond that this is merely due to laziness or the like on the student’s part, but the point is that this laziness, or whatever it is, is merely part of the explanation for the phenomena we are investigating. We have discussed some of the origins of this in Chapter 7. Moreover, it would be wrong to focus solely on students. This tendency is also very strong among academics. What is even more significant is that, again if my experience serves, the tendency seems generally to be strongest among those of a positivist persuasion.22 This is ironic, of course, given Hart’s claim that positivism allows a more clear-headed and critical approach to the law to be taken than does its natural law rivals.23 The fact seems to be, however, that Hart’s prediction is not borne out. To take the most obvious example, theories that are or that have affinities with natural law theory have been far more critical of the positive law of tort (though they defend something else) than have many of those which have positivist affiliations.24 In fact, it is notable that many positivist thinkers have revealed a strong tendency to more or less

21 And even here, veneration for law is usually far from absent. The euthanasia debate, for instance, is often carried forward on the basis of human rights and the like, with reference often being made to relevant areas of the law. The explosion of human rights theory appears to have legalised nearly everything. 22 See also BZ Tamanaha, A Realistic Theory of Law, 96. 23 Eg HLA Hart, The Concept of Law, 210–12. 24 For a sampling, see eg EJ Weinrib, The Idea of Private Law; EJ Weinrib, ‘Correlativity, Personality, and the Emerging Consensus on Corrective Justice’; EJ Weinrib, ‘Can Law Survive Legal Education?’; A Beever, Rediscovering the Law of Negligence.

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endorse even a law as irrational from every conceivable perspective as the modern (positive) law of negligence.25 It is not what Hart intended, but it seems that positivism has at least as frequently promoted quiescence as criticism and that natural law seems more likely to stimulate critical reflection. Really, this should not surprise us. Natural law holds positive law up to the standards of the natural law. It demands, for instance, a level of rationality in law at least approaching that found in critical morality. But when the connection between law and morality is severed, the conservative, quiescent tendencies noted in Chapter 7 reassert themselves. This is no criticism of positivism per se, of course; but there is a genuine criticism contained in these points. To see this, let us return to the idea that the law is insecure about its authority. Recall the basic point: the law, it seems, does not have the courage even to say ‘Don’t kill.’ It has to express this directive by way of a declaration. It says ‘It is an offence to kill.’ When one becomes awake to this, it becomes apparent that the law is constantly covering its own tracks in this regard. Nowhere is this more important than in case law, where the law is made by the judges themselves, often enough by the judges who are deciding the instant case. These are cases, in other words, in which the judge is applying a law that she has just invented. This fact used to be hidden behind a theory known as the declaratory theory of law. However, we will not discuss this here. I have examined, and partly defended, this theory elsewhere.26 The important point to be made now is that judges who would be inclined to ridicule that theory and who accept that they make law nevertheless seldom express themselves in this way, and often express themselves quite otherwise.27 Take, for example, these openings to the judgments in Canadian National Railway Co v Norsk Pacific Steamship Co Ltd,28 a case that turned on economic policy arguments – as clear an example of made-up law as one could wish. According to La Forest J, the issue in the case was ‘whether a person (A) who contracts for the use of property belonging to another (B) can sue a person who damages that property for losses resulting from A’s inability to use the property during the period of repair’.29 According to McLaughlin J, ‘The issue […] is whether a person who contracts for the use of the property

25 To entirely unfairly pick on some examples, see, eg, A Robertson, ‘Constraints on Policy-Based Reasoning in Private Law’; J Goudkamp and J Murphy, ‘Tort Statutes and Tort Theories’. 26 A Beever, ‘The Declaratory Theory of Law’. 27 See also TA Endicott, ‘Adjudication and the Law’. 28 Canadian National Railway Co v Norsk Pacific Steamship Co Ltd [1992] 1 SCR 1021. 29 Ibid, 1037.

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of another can sue a person who damages that property for losses resulting from his or her inability to use the property during the period of repair. Can purely economic losses such as this be recovered? Or is the right to recover in tort confined to cases where the plaintiff can show that his or her property or person was injured?’30 These judges, neither of whom would have had a bar of the declaratory theory of law, not only regarded themselves as creating the law on this issue; they disagreed as to what that law should be. Nevertheless, La Forest J did not say that the issue was ‘whether this Court will determine that a person (A) who contracts for the use of property belonging to another (B) can sue a person who damages that property for losses resulting from A’s inability to use the property during the period of repair’ and McLaughlin J could not bring herself to say what she apparently thought, viz that ‘The issue […] is whether this Court is going to create a law according to which a person who contracts for the use of the property of another can sue a person who damages that property for losses resulting from his or her inability to use the property during the period of repair. Are we going to make the law such that purely economic losses such as this be recovered? Or will we prefer the view that the right to recover in tort confined to cases where the plaintiff can show that his or her property or person was injured?’ This, of course, is hardly an isolated example. It is utterly routine. Just recently, in the Supreme Court of the United Kingdom, Lord Reed said: ‘The proposition that there is a Caparo test which applies to all claims in the modern law of negligence, and that in consequence the court will only impose a duty of care where it considers it fair, just and reasonable to do so on the particular facts, is mistaken [sic].’31 Note that he did not say: ‘I declare that the proposition […] is from now on false.’ Rather, he presented his claim as already correct. That is, he presented it as a fact that he had discovered when he was in reality declaring it to be true. As JL Austin said, ‘Of all people, jurists should be best aware of the true state of affairs. Perhaps some now are. Yet they will succumb to their own timorous fiction, that a statement of “the law” is a statement of fact.’32 This ‘timorous fiction’ is endemic to judicial decision making. One reason for this is surely that, if judges were open about the fact that they were inventing the law, the

Ibid, 1135. Robinson v Chief Constable of West Yorkshire Police 2018 UKSC 4, [2018] AC 736, [21]. 32 JL Austin, How to Do Things with Words, 4 n 2. 30 31

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public would not tolerate this.33 Thus, it is in fact very rare that judges allow themselves to say what it is that they believe they are doing.34 Another point, first noticed by Kelsen, is that the law clearly does issue directives to legal officials. This is a very revealing fact about the nature of law. It is not insecure in its authority regarding the legal officials. That is unsurprising, because those officials get their social status from the law. The law can openly direct them; it need not be insecure with respect to them, then, because they have, as we say, skin in the game. This connects with a criticism that is sometimes made of positivism: that positivism sees law as a top-down projection of power from legal officials to citizens.35 At this point, at any rate, this is no criticism of positivism. This is what law is (though, as we will see, this is not all law is). Law gives legal officials power over citizens. That the law binds the officials also, as Hart was keen to point out, in no way affects this. The law is constructed in such a way – that is, it openly directs officials while covertly directing citizens – that it presents itself as respecting citizens in a way it does not officials, but that, of course, is just an illusion; an illusion that must be instantly shattered when one finds oneself facing a judge in court, for example.36 Then it is clear where the power lies, even if that power ultimately relies on collective recognition – a fact that the law keeps as quiet as possible.

33 There is a very strong tradition in recent legal scholarship of encouraging judges openly to admit that they create law, though, in the light of the examples I have just presented, we can see that it has been far less successful than is often assumed. Moreover, the proponents of this strategy today (the originators were a different story) reveal a remarkable faith in their assumption that the public – and even the parties whose interests are adversely affected – would accept judges behaving in this way. In my view, this can only be the result of the insularity of the legal community in general. The notion that the public would accept this is surely quite implausible. Most members of the public I have spoken to about this issue think – are we really surprised? – that the role of a judge is to enforce the law. When I explain the view under discussion to them, they are outraged. 34 They could, of course, try to do something else, perhaps the thing that I defend in A Beever, ‘The Declaratory Theory of Law’. That is a matter for another investigation, however. 35 LL Fuller, The Morality of Law, 39. 36 Consider also in this regard s 18(6) of the Disputes Tribunal Act 1988 (NZ), which allows Disputes Tribunal referees to depart from the law and to decide disputes in accordance with their sense of what is fair. Though this is generally overlooked in New Zealand, this gives Tribunal referees extraordinary and draconian power over those who appear before them, as disputants cannot even insist on the observation of the law. I am bound to say that this is a power that in my experience Tribunal referees freely, and inappropriately, utilise.

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According to the classical positivist, the sovereign issues commands. It is all open and honest. The big man says ‘Do it’ or ‘Do not do it’ and we habitually obey. Hart says that the law contains rules that straightforwardly direct us. But it is not like this at all. The law does command us, but it does not do so openly and frankly. Insecure about its authority, it hides itself. It presents itself as something given, not as something created. Timorously, it presents itself as a set of facts. In this way, it hides the source of its contestable authority. In that, it is again not unlike any other human institution – and, as with other institutions, it is important to remember the positives that it brings – but this is particularly problematic with respect to law. Law is our most coercive institution. It is important that these aspects of its nature be as opaque as possible. In this regard, classical positivism is in fact preferable to its modern sibling. Though it misunderstood the nature of legal coercion, at least it placed the notion of coercion at the heart of its analysis of law and did not shift it to the periphery.

4. SUMMARY This chapter examined the argument between the classical and modern positivists over the way in which law achieves compliance with its dictates. We have seen that the modern theorists are right to say that law issues directives in the form of duties, but that they are wrong to deny the link between law and sanction insisted on by the classical positivists. In reality, the law achieves its ends in all sorts of ways. Investigating this properly will take us well beyond the intellectual confines of jurisprudence as that term is used here. Conceptual analysis is insufficient. It is necessary to look to see how things actually work.

10. Rules One of Hart’s major contributions to the philosophy of law was to see that law is better interpreted as a system of rules than as a series of commands.1 This chapter examines this idea. Its position is that these discoveries are genuine advances by Hart, but that we are wrong to think of them as of notions distinctive of law. The features of law noted by Hart are, in fact, characteristic of human institutions in general. Moreover, the key rule for Hart, the rule of recognition, does not and cannot have the autonomy that Hart’s presentation seems to suggest it has. It is, in fact, merely an abstract formalisation of a social practice.

1.

RULES AND SECONDARY LAWS

In his introduction to Austin’s The Province of Jurisprudence Determined, Hart claims that Austin’s chief mistake was that he failed to see that law is not a system of commands, but a system of rules. He maintains that ‘If Austin’s doctrine were to be amended by the introduction of a rule at the appropriate points, many of its separate faults would disappear.’2 This, however, is a remarkably inaccurate criticism of the work that Hart is meant to be introducing. In fact, Austin clearly regards laws as rules: he says so explicitly on a number of occasions – ‘I shall now state the essentials of a law or rule’,3 for example, and ‘a command is a law or rule’.4 The problem with Austin is not that he fails to see that laws are rules, but that he fails to understand the nature of rules. Thankfully, it is easy enough to recast Hart’s position so that it argues relevantly: that is, so that it advances the telling point that laws, as a species of rules, are to be analysed not as commands, but as standards of conduct. This enables Hart to provide a deeper analysis of law on this point than did Austin. This discussion will not distinguish between rules and principles in the way familiar to legal philosophers and lawyers generally. Both of these are rules as that term is here utilised. 2 HLA Hart, ‘Introduction’, xii. 3 P Cane, ‘Rights in Private Law’, 13; J Austin, The Province of Jurisprudence Determined. 4 J Austin, The Province of Jurisprudence Determined, 19. Note also that elsewhere Hart appears to acknowledge that the classical positivists accepted that law consists of rules. HLA Hart, The Concept of Law, 8. 1

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One of the things that this enables Hart to do is to recognise that not all laws consist of duty-imposing rules. He makes this point against Austin by revealing that classical positivism cannot account for the variety of law, a point outlined in the previous chapter. However, the focus on Hart’s victory over Austin at this juncture has occluded a matter of significance. Certainly, Hart is right to say that Austin’s theory cannot account for, say, the law of contract formation. But noticing that Austin cannot explain this is one thing; explaining it yourself is another. I have read many accounts of Austin’s failure, but none of Hart’s success. Does Hart succeed? As we have noted, Hart maintains that the law of contract formation (and the like) consists of rules and that rules are standards of conduct. This implies that the law of contract formation consists of standards of conduct. It does not. Fundamentally, this is to repeat the same kind of mistake committed by Austin. Consider the rule of tennis that play for each point begins with a serve (note that it is this rule only under examination, not the rules concerning, for instance, how the serve must be carried out). Certainly, tennis players orient their behaviour around this rule. In this way, it functions as a standard of conduct. But understanding the rule as a standard of conduct leaves out what is truly significant about it. The primary role of the rule is not to regulate conduct but to create the possibility of a kind of conduct. In other words, to understand the nature of this rule, we have to see that it is a constitutive rule.5 It is one of the rules that goes to making the game of tennis. The primary task of the rule, then, is not to control the way that tennis is played, though the rule has this effect, but to make the playing of tennis possible. Compare this with Hart’s discussion of chess. Chess players do not merely have similar habits of moving the queen in the same way which an external observer, who knew nothing about their attitude to the moves which they make, could record. In addition, they have a reflective critical attitude to this pattern of behaviour: they regard it as a standard for all who play the game. Each not only moves the queen in a certain way himself but ‘has views’ about the propriety of all moving the queen in that way. These views are manifested in the criticism of others and demands for conformity made upon others when deviation is actual or threatened, and in the acknowledgement of the legitimacy of such criticism and demands when received from others. For the expression of such criticisms, demands and acknowledgements, a wide range of ‘normative’ language is used. ‘I (You) ought not to have moved the queen like that’, ‘I (You) must do that’, ‘That is right’, ‘That is wrong.’6

See also A Marmor, ‘The Conventional Foundations of Law’; A Marmor, Social Conventions. 6 HLA Hart, The Concept of Law, 56–7. 5

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This is a strange analysis. Imagine that you and I are playing chess and you move your queen in the way that one would normally move a knight. Hart suggests that I would respond to this by saying something such as ‘You ought not to have done that’, ‘You must not do that’ or ‘That is wrong.’ But it would be very odd to say these things. I would say, rather, something like this: ‘You can’t move like that’, ‘The queen can’t jump’ or ‘Only the knight can do that.’ The crucial thing to see here is that the ‘can’t’ and ‘can’ in these utterances is not like the ‘ought not’, ‘must not’ or ‘wrong’ in Hart’s imagined responses. What I am saying is not that you have an obligation not to move your queen in that way or anything similar; I am saying that this is not how you play chess. This is because the rule which underlies my response is a constitutive and not a regulative rule.7 The same is true of the laws of contract and will formation; in fact, the point is even clearer in this context. The doctrine of offer and acceptance, for instance, is not a standard of conduct. It is not a rule which seeks to manage the way in which people make contracts. It is a rule that makes contracting possible. We do not respond to people who try to make contracts in ways that violate the rules of contract formation by saying ‘You ought not to have done it that way’, ‘That is wrong’ or the like. We say ‘You can’t do it like that’ or ‘That won’t work.’ We are pointing here not to standards of conduct, but to constitutive rules. (Note that the distinction between regulative and constitutive rules is not that between primary and secondary rules, so even if the rule in question were a secondary rule for Hart – and it is far from clear that this would be right as, though constitutive rules must in part be secondary as they constitute the primary rules as primary rules of the relevant system, constitutive rules typically do also direct behaviour – it would not follow that Hart can account for its nature.) Hart’s advances were genuine and significant, but we should also see that they have closed our eyes both to the way in which they evolved from Austin’s achievements – the idea of a clean break with the past is quite misleading here – and, even more importantly, to the lacunae in Hart’s own theory, lacunae that very closely mirror those in Austin’s.

7 That Hart does not see this is also noticed by BZ Tamanaha, A Realistic Theory of Law, 122.

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153

PRIMARY AND SECONDARY RULES

A related distinction drawn by Hart is that between primary and secondary rules. Primary rules are said to be duty-imposing. They are the rules examined in the previous chapter. Secondary rules may all be said to be on a different level from the primary rules, for they are all about such rules in the sense that while primary rules are concerned with the actions that individuals must or must not do, these secondary rules are all concerned with the primary rules themselves. They specify the ways in which the primary rules may be conclusively ascertained, introduced, eliminated, varied, and the fact of their violation conclusively determined.8

Hart identifies three kinds of secondary rules: rules of change, rules of adjudication and the rule of recognition. The rules of change constitute how the rules – both primary and secondary – are changed. The rules of adjudication determine how judgments about the rules are to take place. For instance, the criminal law contains not merely rules of the kind examined in the previous chapter that set out a list of offences and punishments, but also rules of procedure that determine how courts of law are to decide whether offences have been committed, and so on. The rule of recognition, examined further in the following section, is the master rule that determines whether a rule is a legal rule or not. It recognises, or fails to recognise, a rule as a law. This is a significant discovery by Hart, but we must see that these kinds of rules are found in all human institutions. This remains the case, even though some secondary rules may be hidden to a degree, informal or even absent in some institutions. I am a university professor. As we saw in Chapter 7, this entails a deontology. In Hart’s language, primary, duty-imposing rules attach to this status. I have to give lectures and mark exams, for example. But all this is made possible by the existence of secondary rules. The university has rules about making someone a professor, about removing someone as a professor, about changing the duties of a professor, and so on. Moreover, it has procedures in place to adjudicate these matters. For instance, it has regulations relating to promotion that need to be followed and disciplinary committees with their own sets of adjudicative rules. And a rule of recognition applies here also that we use to determine what rules are rules of this university and what rules are rules of, say, the University of Auckland. In this regard, these rules are so like law that we might in some circumstances regard them as legal – as part of the law of the university. But this need not be so, as we have seen.



8

HLA Hart, The Concept of Law, 94.

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Consider also the rules of a game such as rugby union. These rules consist not only of primary rules such as Law 9.7(a), ‘A player must not intentionally infringe any law of the game’, but also of secondary rules such as Law 6.5(a), ‘The referee is the sole judge of fact and of law during a match.’ And, of course, there are rules of change: regularly the Board of World Rugby meet and vote on new laws, ensuring that the laws of the game continue to get ever worse. And there is a rule of recognition. The rules in the book Laws of the Game: Rugby Union are laws of rugby union, but those in the book Laws of the Game published by the International Football Association Board (that is, soccer) are not. Pictionary is a popular game. Most of its rules are primary. For instance, the rules state that a drawer has 60 seconds in which to draw an object and the drawer’s teammates must attempt to guess what the person is drawing in that time. There are secondary rules here too. So, for instance, games come with a sand timer and this is to be used to judge the drawer’s time. This is a rule of adjudication. There are also rules of change: the makers of the game can change the rules if they see fit. And there is a rule of recognition. We know that the rules of Monopoly, for instance, do not apply. Often, we do not know all of the relevant rules or we find it difficult to articulate them. For instance, while writing this it occurred to me that I did not know how the rules of chess might be changed, though Google immediately came to my rescue by informing me that the rules are set by the Fédération Internationale des Échecs. No doubt they have meetings in which the rules might be altered. I can play chess happily without knowing these rules, but that does not mean that they are not there. (In any case, chess clearly has its secondary rules. Article 12 of the FIDE Laws of Chess contains rules of adjudication, for example.) Often these rules are informal, especially when the institution is informal. Because of this, it can be impossible to state them with precision. They are there nevertheless. If we are friends, either one of us can alter that status in various ways. I cannot articulate a precise rule for this, but I can certainly tell you when the rule has been invoked. Uttering ‘I hate your guts you traitor and I never want to see your hideous face again as long as I live’ would normally end the relationship, but ‘Spending time with you just makes me go all tingly from my toes to my hair follicles’ might alter the friendship in a different way. And this may be an area where we do not need rules of adjudication. Hart, then, has noticed something true about law, and this is a very important something, but it is not something distinctive of law. It may, therefore, be true to say that law, or a legal system, exists in the union of primary and secondary rules, but it is quite wrong to think that this is a discovery of something that distinguishes law from other related phenomena. It is true of all human institutions from law to language, from courts to cocktail parties. For the record, I am

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not saying that Hart made this mistake; I have no idea whether he did or not. I do hear it made very frequently, however.9 Moreover, Hart appears not to understand the ontology of this discovery. He contrasts primitive societies that operate only on the basis of primary rules with more developed societies that have both primary and secondary rules. His thesis is that the secondary rules are needed to remedy defects that a system of primary rules alone is sure to encounter.10 Hart also maintains that secondary rules are ‘parasitic upon or secondary to’ the primary rules.11 But it is a logical truth that a system consisting only of primary rules could not exist. At the very least, a rule of recognition is needed for us to have a system of rules at all. There must be a constitutive rule. This not only shows that Hart underestimates the primitive societies he imagines but, more fundamentally, reveals that he did not understand the nature of a system of rules. This is because, as we have seen earlier, he did not see that human institutions are constituted by rules; that is, by constitutive rules.

3.

THE RULE OF RECOGNITION

At the centre of Hart’s theory lies the famous notion that the validity of individual laws rests on their being instituted as law by the rule of recognition of the relevant jurisdiction.12 As its name implies, the rule of recognition is the rule that determines, in a particular jurisdiction, which rules are laws. So, part of the rule of recognition in the English legal system is that Bills passed by the Queen in Parliament are law. In the previous section of this chapter we saw that, though law does indeed possess a rule of recognition, this is not distinctive of law. Naturally, though, the rule of recognition for law is different than the rule of recognition for, say, chess. All of this is perfectly fine. We turn, then, to more interesting issues.

9 For instance, people will say ‘Law exists in the intersection between primary and secondary rules…’, where it is clear that this is meant to be something unique about law, something that distinguishes law from other phenomenon. 10 HLA Hart, The Concept of Law, ch 5. 11 Ibid, 81. 12 See, eg, ibid, 103, 108.

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3.1

The Foundations of Law: That Bar in Paris

In one of the most famous passages in The Concept of Law, Hart rejects the idea that it is meaningful to ask whether the rule of recognition is valid. We only need the word ‘validity’, and commonly only use it, to answer questions which arise within a system of rules where the status of a rule as a member of the system depends on its satisfying certain criteria provided by the rule of recognition. No such question can arise as to the validity of the very rule of recognition which provides the criteria; it can neither be valid nor invalid but is simply accepted as appropriate for use in this way. To express this simple fact by saying darkly that its validity is ‘assumed but cannot be demonstrated’, is like saying that we assume, but can never demonstrate, that the standard metre bar in Paris which is the ultimate test of the correctness of all measurement in metres, is itself correct.13

I cannot claim to know what Hart intended by this passage. He is either making a true but trivial claim that proves nothing against the opponents to which he alludes, or he is making significant assertions that are not supported by argument. Nevertheless, it is important to examine aspects of this passage, because it has generally been held that this argument puts an end to questions about the foundations of law. The idea – whether it was Hart’s or not – is that the rule of recognition is the foundation of the legal system, and that this foundation itself has no, and does not require further, foundations. As Hart tells us, it is the rule of recognition ‘which deserves, if anything, to be called the foundations of a legal system’.14 So, for instance, it has been said that: There is no test for the validity of a rule of recognition. In Hart’s famous comparison, it would make no more sense to ask whether a rule of recognition is valid than it would to ask whether the ‘standard metre bar in Paris’ is really a metre long. The rule of recognition is a test for whether a given proposition is a valid rule of law; we cannot therefore ask whether the rule is valid itself. There is no rule of recognition for the rule of recognition.15

And then the matter of the basis or ground of the rule of recognition is put aside. Similarly, it has been said that ‘The rule of recognition is thus an “ultimate rule”. It is a criterion of validity which cannot itself be validated since validity is an internal statement made within a system, the functioning of which depends upon the supposition of the rule of recognition itself.’16

15 16 75. 13 14

Ibid, 108–9. Ibid, 100. NJ McBride and S Steel, Great Debates in Jurisprudence, 47. JE Penner and E Melissaris, McCoubrey & White’s Textbook on Jurisprudence,

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This enables Hart to present law as an institution that can be understood – at least to a high degree – independently of other phenomena. In fact, as Roger Cotterrell has said, ‘Hart’s legal theory portrays law as a self-regulating system of rules. The rule of recognition and the other secondary rules are seen as governing the entire process of production, interpretation, enforcement, amendment and repeal of rules within the legal system.’17 Let me begin with a relatively minor matter that focuses on the first sentence of Hart’s passage. To what does ‘the rule of recognition’ at the end of the passage refer? If it refers to the rule of recognition for law, which seems a reasonable assumption as this appears to be the only rule of recognition that Hart contemplates in The Concept of Law, then the proposition expressed by the sentence cannot be correct, as it implies incorrectly that we cannot or do not use the term ‘validity’ outside legal contexts. If the focus of the sentence is more general, however, then it is not clear what it is saying. In any case, the Oxford English Dictionary lists two main and contemporary uses of the term ‘validity’, only one of which refers to law. The other concerns ‘The quality of being well-founded on fact, or established on sound principles, and thoroughly applicable to the case or circumstances; soundness and strength (of argument, proof, authority, etc.).’ We speak, for instance, of valid arguments. It will help to recall our old friend from Chapter 4: (premise 1) all men are mortal, (premise 2) Socrates is a man, (conclusion) therefore Socrates is mortal. The statement that this argument is valid is not ‘an internal statement made within a system’, and even if it were, it would certainly not be right to say that ‘the functioning of [that system] depends upon the supposition of the rule of recognition itself’.18 What makes this argument valid has nothing to do with any system of rules. Certainly, there are rules of logic and the argument complies with these rules, but it is not the fact that the argument complies with these rules that makes the argument valid (that the argument follows the rules may be how we tell that it is valid, however). It is valid because the conclusion does in fact follow from the premises, a fact that has nothing to do with our rules at all.19 Thus, we use the terms ‘valid’ and ‘validity’ more widely than Hart allows. We use them as close synonyms of ‘justified’, ‘grounded’, ‘having a proper basis’ and the like. Why is this important? I will get to that immediately.

R Cotterrell, The Politics of Jurisprudence, 99. JE Penner and E Melissaris, McCoubrey & White’s Textbook on Jurisprudence,

17 18

75.

The alternative view – that validity is a matter of following the rules of logic – is beset with problems, including the notorious difficulty that it will lead us down the path to Lewis Carroll’s paradox captured in his tale of Achilles and the Tortoise. The syllogism is valid because of the meanings of the premises and the conclusion, not because of rules of logic, which merely capture patterns in this regard. 19

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Let us now consider the nature of Hart’s general argument. It may have been this. (1) The rule of recognition is the criterion of legal validity. (2) Therefore, the rule of recognition cannot itself be legally valid or invalid. This seems to be a valid argument – we examine this issue below – but the conclusion is inconsequential in this context. Hart’s opponents – particularly, of course, Kelsen – were not asking whether the rule of recognition (or its equivalent) was legally valid but rather whether it was justified, grounded or had a proper basis. In the following chapter, we see that Kelsen’s question was whether the equivalent of the rule of recognition was grounded in a way that meant that it could generate norms such as obligations. As thus interpreted, then, Hart’s criticism of this view is specious. Alternatively, Hart’s position could have been that, as the rule of recognition is simply accepted (or for whatever reason), questions about the justification, grounding or basis of the rule cannot arise. We have seen that this is the lesson that many have taken from Hart’s passage. But apart from the analogy with the metre bar, Hart provides no argument for this conclusion. What is the argument concerning the metre bar? What does Hart actually say? To express [the] simple fact [that the rule of recognition is accepted as appropriate] by saying darkly that its validity is ‘assumed but cannot be demonstrated’, is like saying that we assume, but can never demonstrate, that the standard metre bar in Paris which is the ultimate test of the correctness of all measurement in metres, is itself correct.20

On the face of it, Hart’s position is diametrically opposed to the way in which it is usually interpreted. With respect to the metre bar, Hart does not say that it makes no sense to ask whether it is really a metre long. On the contrary, he says that, as the metre bar in Paris is the accepted standard for the length of a metre, it would be silly to say that ‘we assume, but can never demonstrate’ that this bar is a metre long. In fact, on this view, we can demonstrate that it is a metre long. Operating for the moment on the basis of Hart’s factual assumptions, I will do it now: the metre bar is a metre long because it is the accepted standard for the length of a metre. This is a perfectly sensible thing to say, but the problem is that it again undermines Hart’s attack on his opponents. For one thing, Kelsen was not trying to express the simple fact that the rule of recognition (or the

HLA Hart, The Concept of Law, 108–9.

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Grundnorm) is accepted as appropriate by saying that its validity is assumed but cannot be demonstrated. He was saying that the Grundnorm is assumed but cannot be demonstrated for an entirely different reason (as we glimpse in the following chapter). Moreover, if we can demonstrate that the bar in Paris really is a metre long by showing that it is the accepted standard for the length of a metre, this shows that we can say that the bar is the valid determinant of the length of a metre. The analogy, then, would suggest that we can speak of the validity (though perhaps not legal validity) of the rule of recognition: the bar is the valid determinant of the length of a metre because it is the accepted standard for that purpose and the rule of recognition is the valid determinant for the existence of legal rules because it is the accepted standard for that purpose. The crucial point here is that, on this view, the foundation of each institution is not the rule in question but the social acceptance of that rule. The metre bar is the standard for the length of a metre, because that is generally accepted. We will not have a proper understanding of this until we understand the nature of this acceptance and the way in which it establishes the bar as the standard. Likewise, if the rule of recognition is the standard for determining whether a rule is a law or not because it is accepted, then we will not properly understand this unless we have a theory of the nature of this acceptance and the way in which it establishes the rule as the determinant of legality. In summary, then, consideration of Hart’s treatment of the example of the metre bar leads to the conclusion that it is spurious to say that the rule of recognition is the foundation of a legal system. In fact, the rule of recognition is what it is only because of its acceptance. This surely suggests that the foundation of a legal system is, in fact, this acceptance and we ought to be crying out for a theory of this. Hart, of course, provides no such theory, and this is surely partly why his comments are usually interpreted quite differently. Whatever Hart’s intentions in the passage under examination, his general position requires a justification for holding that the rule of recognition is the foundation of a legal system. He needs a justification for stopping the enquiry into law’s foundations with the investigation of that rule. This is why Hart has been interpreted as arguing that ‘it would make no more sense to ask whether a rule of recognition is valid than it would to ask whether the “standard metre bar in Paris” is really a metre long’.21 This is not what Hart says, but it is what Hart needs. If it were true, it would be a reason for calling off further enquiry into foundations. The problem, however, is that it is not true. In fact, it does make sense to ask whether the standard metre bar in Paris really is a metre long. In fact, it isn’t.

NJ McBride and S Steel, Great Debates in Jurisprudence, 47.

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On 10 December, 1799, the French National Assembly stipulated that the length of a certain platinum bar would be a metre. This bar is the standard metre bar. The idea caught on. But the bar is no longer the standard measure for a metre and it has not been since 28 September 1889.22 Today, a metre is defined as the distance travelled by light in an absolute vacuum in 1/299,792,458th of a second. We can be sure that this is not the exact length of the standard metre bar. So, it does make sense to ask whether the bar is really a metre long. And even now it makes sense to ask whether a metre really is the distance travelled by light in an absolute vacuum in 1⁄299,792,458th of a second. Who knows, perhaps I have my facts wrong. These claims are assertions like any others and, as always, they can be true or false. (Incidentally, I might note that the continued use of an example that relies on facts that changed more than a century ago, without acknowledgement of this, seems a perfect symbol for the archaic nature of modern jurisprudence.) Let us take ourselves back to the close of the eighteenth century. What did the French National Assembly do? They made a declaration. They declared the length of the standard metre bar to be a metre. Because this was a declaration and not an assertion, it would have been nonsensical to have asked of it whether it was true or false. And it would have been out of order to have asked how the Assembly knew that the bar was a metre long, and so on. But assertions about the bar are true or false and can therefore be questioned. Even in 1800, it was meaningful to ask whether the bar really was a metre long; it is just that the answer would take a different form than an answer to the question, say, ‘Is my son really a metre tall?’ The argument now under examination relies on a hidden ambiguity in the meaning of the word ‘sense’. In 1800, it would have made no ‘sense’ to have asked whether the bar was really a metre long – meaning that, to one conversant with the facts, the answer to that question was too obvious for the question to be worth asking. But there is no analogy with law here. The questions ‘Is the rule of recognition really valid?’ and (even more to the point) ‘If the rule of recognition is valid, why is it valid?’ do not have answers too obvious that they are not worth asking. What Hart needs, and what Hart’s followers have tried to use his argument to show, is that these are meaningless questions. Here, the analogy must be that, in 1800, it would have made no ‘sense’ to have asked whether the bar was really a metre long – meaning that the question was meaningless, that it was a nonsense question. But it is a perfectly valid question.

At that point, a bar was still used, but a metre was defined as the distance between two lines on the bar under certain conditions. That bar, then, was certainly longer than a metre. 22

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What is more, it should be noticed that, in 1800, the metre bar was both the standard for the length of a metre and was a metre long. In fact, that it was the standard for the length of a metre entailed that it was a metre long. Hart tells us, however, that the rule of recognition cannot be legally valid, because it is the criterion of legal validity. We can now see that this argument is fallacious. If it were valid, then it would follow from the fact that the standard metre bar was the criterion for the length of a metre that the bar could not have been a metre long – and that really would be nonsense. In fact, there is nothing to prevent a rule that is the criterion for being x applying to itself. Rules can be self-reflexive. We have reached two conclusions. The first is that the following argument is invalid. (1) The rule of recognition is the criterion of legal validity. (2) Therefore, the rule of recognition cannot itself be legally valid or invalid. The argument appears to be valid, but it is not so, because rules can be self-reflexive. The Oxford English Dictionary defines a sentence as ‘A series of words in connected speech or writing, forming the grammatically complete expression of a single thought.’ We can treat this definition as the criterion of something being a sentence. If we do this, then the definition applies to itself, entailing that this definition of a sentence is itself a sentence. The definition is the criterion of validity of a sentence and the definition is itself a valid sentence. In the same way, the standard metre bar was the criterion of validity for the length of a metre and the bar was itself a metre long. I am not saying that the rule of recognition for law is legally valid. I am saying that the argument presented above is invalid. Whether the rule of recognition for law is legally valid is determined by our practices. If we treat the rule of recognition as part of the law, then it is part of the law. If we treat it as separate from the law, then it is separate. And, as I think is likely, if we sometimes treat it as part of the law and sometimes treat it as separate, then it is sometimes part of the law and sometimes separate. This is an empirical matter. Second, and more importantly for our purposes, the claim that the rule of recognition is the foundation of a legal system – meaning that investigation into the foundations of a legal system can end with the rule of recognition – is certainly incorrect. Hart is right to claim that there is a rule of recognition for law. But there is no justification for identifying this as the foundation of the legal system, as it clearly itself has a foundation that needs investigation.

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3.2

Collective Recognition and the Existence of a Legal System

Legal officials have a very special place in Hart’s theory. These officials, Hart maintains, use the rule of recognition to identify and apply the law.23 ‘Here what is crucial is that there should be a unified or shared official acceptance of the rule of recognition containing the system’s criteria of validity.’24 If they did not do this, Hart claims, then there could not be a legal system. Others, who we may call citizens, might also use and apply the rule of recognition, but Hart insists that the existence of a legal system does not depend on this. Instead, ‘where laws impose obligations or duties these should be generally obeyed or at any rate not generally disobeyed’.25 The following picture emerges. There are therefore two minimum conditions necessary and sufficient for the existence of a legal system. On the one hand, those rules of behaviour which are valid according to the system’s ultimate criteria of validity must be generally obeyed, and, on the other hand, its rules of recognition specifying the criteria of legal validity and its rules of change and adjudication must be effectively accepted as common public standards of official behaviour by its officials. The first condition is the only one which private citizens need satisfy: they may obey each ‘for his part only’ and from any motive whatever; though in a healthy society they will in fact often accept these rules as common standards of behaviour and acknowledge an obligation to obey them, or even trace this obligation to a more general obligation to respect the constitution. The second condition must also be satisfied by the officials of the system. They must regard these as common standards of official behaviour and appraise critically their own and each other’s deviations as lapses.26

Here are some key notions. (1)

The officials must take the law as providing standards of conduct, but the citizens need not. (2) The officials must accept the law so that it guides their behaviour, but the citizens need not. (3) The officials must follow the law because it is the law; the citizens must (generally) act in accordance with the law, but it does not matter why. (4) The officials must take the internal point of view, but the citizens need not.

HLA Hart, The Concept of Law, 113. See also J Raz, Between Authority and Interpretation, 108. 24 HLA Hart, The Concept of Law, 115. 25 Ibid, 112. 26 Ibid, 116–117. 23

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Much doubt has been raised over Hart’s characterisation of the motivations of officials.27 I tend to agree with this criticism, but I focus rather on Hart’s treatment of citizens. As we have seen, Hart maintains that citizens must generally obey the law. It is not clear what he means by this, but it must mean something more than merely acting in accordance with the law. I cannot, for instance, create a second legal system in the jurisdiction in which I live by organising my friends into various ‘official’ roles and then promulgating rules that match those of New Zealand’s legal system, no matter how seriously my friends and I take ourselves. For our rules to have any significance, they have to play some causal role in citizens’ behaviour. Moreover, as Hart’s own discussion of the distinction between the internal and external point of view shows, we cannot conclude that a person is obeying a rule from the fact that she acts in accordance with it. To say that a person obeys a rule is to say that the rule plays some role – about which analysis is required – in that person’s decision making, but a person may act in accordance with a rule entirely in ignorance of it. This is to say that a person obeys a rule only if she takes the rule as a standard of conduct, allows the rule to guide her conduct, follows the rule because it is the rule, takes the internal point of view with respect to that rule, or something of the kind. Consider the following three scenarios that occur in very stable societies in which the law has not changed for decades – in, say, the kind of society that Plato imagined in his The Laws.28 In these societies, the vast majority of citizens act in accordance with the law the vast majority of the time; however, imagine also that the law plays no role in their deliberations. This idea needs to be fleshed out a little. Imagine that we take a representative person and interview her. We ask her why she performed a certain action that was in accordance with the law. She answers, ‘Well, I don’t know. I guess that is just what we do around here.’ We ask, ‘Did you do it because it was what the law required?’ She answers, ‘No. I never think of the law when I act. In fact, I am not sure what the law says about this matter. Did I act in accordance with the law?’ Imagine that everyone in each of the three societies is like this. And imagine now that in each society one law is changed, that this change calls for citizens to alter their behaviour, and that this is publicised. Citizens in the societies respond differently. In S1, the change in the law affects the deliberations of citizens and citizens generally comply with the new law. In S2, the change in the law also affects the deliberations of citizens but citizens generally do not comply with the new law (that is, citizens consider but decide not to obey

See, eg, P Goodrich, ‘The Rise of Legal Formalism’. Plato, The Laws.

27 28

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the new law). In S3, the change in the law does not affect the deliberations of citizens; they simply ignore the new law, not even rejecting it, simply treating it as an irrelevance, and so citizens generally do not comply with the new law. Finally, imagine that this response to this one law is indicative of citizens’ dispositions with respect to law – that is, we would expect these responses to other legal changes also. What are we to say about these cases? One thing is that they are distinct. In S1, for example, the citizens are inclined to pay attention to the law and to modify their behaviour accordingly in a way that citizens in S3 are not. This is why citizens in S1 respond favourably to the law change. For this reason, it seems plausible to claim that there was a legal system in this society before the law change. In S3, however, citizens are disinclined even to pay attention to the law. That appears to make it plausible to say that there was no legal system in S3 before the law change. S2 is more complicated. Note that S2 and S3 seem importantly different even though, from the perspective of effectiveness, they are identical. My intuition is that S2 is a better candidate for a legal system than is S3. My particular judgements about these issues are not important, however. The crucial thing is that the differences between these states before the law change are relevant to whether or not they contain legal systems, and yet, in these states, the behaviour and mental states of the officials and the behaviour of the citizens is identical. The distinction between S1, S2 and S3, then, lies in the mental states of the citizens regarding the law. In his analysis of the officials, Hart’s argument in effect is that it would be a mistake to follow Wittgenstein’s injunction, ‘don’t think, but look!’29 This ignores, Hart rightly insists, the fact that officials must take the internal point of view. But Hart wrongly fails to extend this analysis to citizens. A system in which ‘officials’ promulgate rules to which they take the internal point of view and where citizens act in accordance with these rules because that is how they would behave anyway is not a legal system. The rules must play a causal role in citizens’ behaviour, but that will require that they have some appropriate attitude towards the law. This, of course, is because rule following is an intentional activity. Certainly, this does not mean that the citizens must adopt the same attitude that the officials must adopt. It may well be that the attitudes of officials and citizens may differ radically. For instance, it has been suggested that the existence of a legal system would be consistent with citizens obeying the law solely out of fear.30 For the moment at least, we can accept this as a plausible

L Wittgenstein, Philosophical Investigations, §66. This view is associated especially with Matthew Kramer. See, eg, MH Kramer, In Defense of Legal Positivism. This view, however, is not consistent with the under29 30

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position, but it does not follow from the fact (if it is a fact) that this attitude will do that any attitude will do. Are the following legal systems? Citizens act in accordance with the law because: (a)

This is how they are inclined to behave. In fact, the law plays no role in their deliberations whatsoever. (b) They believe that they are playing roles in a play that require them to act these parts (here, we might think that the ‘script’ of the play constitutes a legal system, but do the laws within the play?). (c) They feel sorry for the officials, who they regard as poor, deluded souls. The citizens simply lack the heart to make it plain to the officials that they aren’t really in charge. (d) They wish to play a massive prank on the officials. They ‘obey’ only as part of a huge practical joke which secretly gives them much amusement. My own view is that none of these are legal systems (I cannot speak more definitively, as collective recognition is the decider here). The reason for this, moreover, is the one we noticed in the previous chapter. Law is about power and coercion (among other things). There is no legal system in (a)–(d) because the appropriate power relations do not exist there. There is plausibly, however, law in a system where citizens obey out of fear, because there the appropriate power relations exist. Again, Hart was wrong to deemphasise this aspect of law. Furthermore, the relevant power relations can exist only if the subjects of the power recognise this in some way. They must acknowledge the authority of the officials, fear their actions, or something of the kind. If they regard it all as a big joke, what we have is merely a pretend legal system. In the end, then, we cannot accept Hart’s claim that citizens must ‘obey […] from any motive whatever’,31 because the claim is incoherent. Obeying a rule occurs only if the agent is motivated in certain ways. Obeying is an intentional activity. A related issue concerns Hart’s claim that the officials must accept the rules of law. Perhaps here lies a clear distinction: the officials must accept the rules but the citizens need only orient their behaviour around them or be disposed to do so for the right kinds of reasons. However, Hart presents no argument to support the notion that the officials must accept, rather than merely recognise, legal rules. It may be that a system in which officials recognise but do not

standing of law advanced in this book. This is because a system of this kind would possess no deontology and so not qualify even as a social institution. These matters, however, can be overlooked at this point. 31 HLA Hart, The Concept of Law, 116–17.

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accept the rules would be unstable, but that has nothing to do with the concept of law. Another way of making this point is to say that the entire legal system relies on collective, not official, recognition and collective recognition, not acceptance.32 This is not to deny that legal officials have a special role to play,33 but it is to deny the centrality that Hart gives to the officials in his theory. To paraphrase Marx: One man is an official only because other men stand in the relation of citizens to him. Modern positivists, on the other hand, imagine that citizens are citizens because officials are officials. This has important consequences for the philosophy of law. Hart’s presentation, whatever his intentions (I think that these are unclear), has led many to hold that the legal system has an autonomy with respect to society that it could not possibly have. Witness, for example, the debate over whether the rule of recognition is a duty-imposing or power-conferring rule.34 No doubt, there are interesting questions here, but this discussion takes the rule to have an independence of social practice that it cannot have. Consider also Scott Shapiro’s claim that Hart’s position is circular. On Shapiro’s reading, Hart’s position is that the rule of recognition is based on its acceptance by the officials. But, says Shapiro, a person is a legal official only if recognised as such by the standards of the law. Thus, the rule of recognition ultimately makes the legal officials and the legal officials ultimately make the rule of recognition.35 It has been argued that this objection fails, because a legal system develops incrementally and not in a series of discrete steps. There is no moment when existing legal officials accept a rule of recognition or where a rule suddenly recognises individuals as officials. It is all more organic than this; thus, there is no ‘chicken and egg’ problem here.36 This reply, however, misses the point of the objection, which is conceptual and not historical. The issue is not how the

32 See also L Burazin, ‘Legal Systems as Abstract Institutional Artifacts’, 121. For an important historical precursor of this view, see OF von Gierke, Political Theories of the Middle Age, who maintains that the foundations of law are found in community structures and not in sovereign power. For discussion, see R Cotterrell, Law, Culture and Society, 38–9. See also R Cotterrell, The Politics of Jurisprudence, 105–6. 33 For instance, it is surely true that it is the practices of the officials that make individual laws laws. The point, though, is that this is true only because it is collectively recognised as being so. 34 Eg HLA Hart, Essays on Bentham, 258–9; J Raz, The Authority of Law, 95–6. 35 SJ Shapiro, ‘On Hart’s Way Out’, 469–76. For related difficulties, see MH Kramer, Legal Theory, Political Theory and Deconstruction, ch 3; J Raz, Ethics in the Public Domain, 280n; J Coleman, ‘Incorporationism, Conventionality and the Practical Difference Thesis’, 121. 36 NJ McBride and S Steel, Great Debates in Jurisprudence, 47–8.

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modern legal system came into being with its rule of recognition and its legal officials; the question is how a rule can have the status of a rule of recognition when its having that status relies on its acceptance by people who must themselves have a status that they could have only in virtue of the rule having the status of a rule of recognition. This is circular. The correct answer to Shapiro, which Hart cannot give, is that it is wrong to think of the officials giving to the rule of recognition its status as that rule or to think of the rule of recognition as giving to the officials their status as officials. Rather, what we have is a social practice according to which certain people are recognised as officials and those people recognise certain things as being legal or not legal. The rule and the officials come together. This is not to say that there is no circularity in this position. The position is circular, but one would be wrong to conclude that this is problematic. On the contrary, as we saw in Chapter 7, this circularly is characteristic of human institutions. If the position were not circular in this regard, that would evidence a serious problem with the theory. 3.3

Rules of Recognition

As we have seen, there must be a rule (or perhaps rules37) of recognition for all human institutions, though it may be impossible to articulate with any precision the rules of informal institutions. This point raises two significant issues. 3.3.1 Differentiating between law and other institutions The first issue concerns how we differentiate in practice38 between different institutions. Hart’s position is that the rule of recognition (for law) is the rule that recognises which other rules are rules of law and which are not. So, this rule tells us that the rule contained in s 158 of the Crimes Act 1961 (NZ) is a rule of New Zealand law but the rule contained in Law 8.2 of The Laws of the Game: Rugby Union is not. There is another rule of recognition operating here, of course. This rule of recognition (for rugby union) tells us that the rule contained in Law 8.2 of The Laws of the Game: Rugby Union is a rule of the game but the rule contained in s 158 of the Crimes Act 1961 (NZ) is not. On this model, then, do we not also need a rule to determine which rule of recognition applies to law and which to rugby union? Do we not, that is, need a meta-rule

J Raz, The Authority of Law, 95–6; N MacCormick, Institutions of Law, 56. In Chapters 2 and 8 I argued against the idea that philosophy must provide the distinction between law and non-law. I am not questioning this view here. The fact is that we do distinguish between law and non-law and the question is about how we do this. My view is that we do not do it philosophically. 37 38

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of recognition? And if we have one, will we not also need a meta-meta-rule, and so on? Say we have rules a, b, c and d. Rules a and b are legal rules and rules c and d are not. Hart tells us that we utilise the rule of recognition (for law) to determine that rules a and b are legal rules and rules c and d are not. Let us call this rule of recognition α. Say that rules c and d are laws of rugby union. We must also, then, use a rule of recognition to determine that these rules, and not a and b, belong to the laws of rugby union. Let us call this rule of recognition β. If we need a rule to determine whether to apply a or b on the one hand or c or d on the other, then it seems that we will also need a rule to determine whether to apply α or β. And whatever we label that rule, we will need another rule for it, and so on. If we treat the (legal) rule of recognition as the foundation of the legal system, we will generate this infinite regress problem.39 If the foundation is a rule and we need the foundation to determine the conceptually subordinate rules of the system, then we will also need a rule that will provide the foundation of the foundation, and so on. The problem goes away when we see that the foundation of the legal system lies in its collective recognition.40 The (legal) rule of recognition is no more than a formalisation of the social practice of recognising certain rules and not others as legal rules.41 The rule of recognition is not a rule that we use to determine how the practice of recognising legal from non-legal rules ought to operate. It is the rule that captures the practice that in fact exists. It is the constitutive rule of that practice. For this reason, it would make no sense to say, for example, ‘This rule of recognition exists, but if you look at our practices you will see that we actually follow this other rule.’ The rule of recognition is the rule that we in fact follow. Thus, we do not need a meta-rule to follow the rule, because the rule is just a formalisation of our practice. Because of this, it is a mistake to think that the rule of recognition could provide the deep answers to philosophical questions about law. Consider Shapiro’s question again: ‘What makes a legal official a legal official?’ Though the answer is not false, Shapiro would be right to maintain that ‘The rule of recognition’ cannot be a satisfying answer to this question. The rule of recognition is just a formalisation of the social practice that does many things, including recognising some people as legal officials. The genuine answer to the question ‘What makes a legal official a legal official?’ is collective

39 See also B Leiter, ‘Legal Positivism about the Artifact Law: A Retrospective Assessment’, 6. 40 See also L Burazin, ‘Legal Systems as Abstract Institutional Artifacts’, 114. 41 Contra S Shapiro, Legality, 103.

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recognition. And it is vital to understand that the recognition of other officials is not sufficient. It must be the recognition of society as a whole (though not necessarily each individual). Unless the status of legal officials is recognised in society generally, the legal officials cannot exist as legal officials. I cannot just get a group of friends together, put on some fancy clothes and insist that we are judges, for instance, no matter how convinced of this we are ourselves. We get to be judges only if we can convince others that we are. 3.3.2 Is law a single, unified institution? Hart always speaks of the rule of recognition when referring to an individual jurisdiction. The idea seems to be that each jurisdiction has one rule of recognition and not a multiplicity of rules of recognition. But Hart gives us no reason to accept this.42 Moreover, Hart merely assumes that the rule of recognition for law is what we might call a threshold rule: it determines that something either is or is not a rule or law. He gives us no reason to accept this, either. Let me give some examples to illustrate the points I am trying to make. My son owns a game of Monopoly. The rulebook that comes with the game in fact contains two sets of rules. One set is for the traditional game and another set for a fast version of the game. Though there is much overlap between the rules, there are important differences. There are, then, two rules of recognition: one for the traditional and one for the fast game.43 Following either rule of recognition results in playing (a version of) Monopoly. Relatedly, in my culture, there is a rule that people are to dress up at cocktail parties. But this does not mean that we would necessarily refuse the label ‘cocktail party’ to a gathering in which people mixed and drank cocktails while eating hors d’oeuvres wearing beachwear. We might say that this was a kind of cocktail party or something of that sort. Why cannot something similar be true for law? In particular, there is no obvious or incontestable reason why society would require only one distinction between what is and what is not law. Perhaps, for instance, law is fittingly a broader concept in academia than it is in the courts. Perhaps it is broader in some parts of academia than in others. For a sociologist, for instance, why cannot Law 8.1 of The Laws of the Game: Rugby Union be a law even if it cannot be for, say, the Supreme Court of the United States? And note that the focus here is not the meaning of the word ‘law’. It can mean whatever we want it to mean – that is, whatever it is collectively recognised

42 For discussion, see eg, J Raz, The Authority of Law, 122–45; J Raz, The Concept of a Legal System, 197–200. See also BZ Tamanaha, A Realistic Theory of Law, 105. 43 There is also a meta-rule of recognition that determines that both sets of subordinate rules – including each rule of recognition just mentioned – are rules of Monopoly.

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as meaning.44 The point is that we seem to lack a justification for picking out one central understanding of law identified by the rule of recognition. Why, for instance, privilege the practice of the courts? And even if we do, perhaps different courts have different rules of recognition. This may be jarring to some, but it may turn out to be little more than a piece of common sense. Many could accept, for instance, that it is appropriate for high-level appellate courts to utilise a wider range of materials than low-level courts of first instance. This is a social practice. There is collective recognition of this. We have no reason a priori to deny that this will show that different rules of recognition apply to different courts. Moreover, we have no a priori reasons for insisting that the same rule of recognition applies in, say, New Zealand’s Employment Court as in the same jurisdiction’s Maori Land Court. This is a matter for empirical investigation and moral argument. It cannot be settled by conceptual analysis alone. In his discussion of the rule of recognition, Hart observes: English constitutional writers since Dicey have usually repeated the statement that the constitutional arrangements of the United Kingdom consist partly of laws strictly so called […] and partly of conventions which are mere usages, understandings, or customs. The latter include important rules such as that the Queen may not refuse her consent to a bill duly passed by Peers and Commons; there is, however, no legal duty on the Queen to give her consent and such rules are called conventions because the courts do not recognize them as imposing a legal duty.45

Here we can see the privileging of the practice of the courts about which we have just spoken. The position is that a convention is not a law, because courts do not recognise the duties conventions create. This is perfectly fine, but the point is that in this area it is important, or it has historically been important, to distinguish between what the courts will recognise and what they will not, and different kinds of courts will adopt a unanimous approach to this issue – or at least it is reasonable to think that this is true. But we have little reason to think that this is universally or conceptually true. Moreover, if being recognised by the courts is a touchstone for legality, then, given the behaviour of our modern courts especially, a great deal of what we ordinarily think of as not law will be listed as law. Consider again the discussion of Canadian National Railway Co v Norsk Pacific Steamship Co Ltd from the previous chapter and its reliance on economic arguments.

Contra J Austin, The Province of Jurisprudence Determined, 12, who absurdly claims that laws of nature can be laws only metaphorically. 45 HLA Hart, The Concept of Law, 111. 44

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A potential mistake here – though I cannot pretend to know whether it is made by Hart, I think it is made by some of his followers – is to think of the rule of recognition as detached from the social practice of which it is in fact a formalisation. The rule (or rules) of recognition is the constitutive rule of legal practice or of a relevant subset of that practice. It is the rule that is used to distinguish between law and non-law for that practice. It tells us which things count as law and which do not in that practice. We cannot, therefore, settle a priori whether there is one rule or many, whether the rules alter with context, and so on. The only way to do this is through wider, normally empirical, investigation.

4. SUMMARY As in the last chapter, we have seen that the issues raised by positivists cannot be solved in the narrow way in which jurisprudence has attempted this. Whether the rule of recognition is or is not part of the law is something that requires empirical investigation. Different jurisdictions may answer this differently. The foundation of the law is not a rule but a social practice, and much enquiry that goes beyond jurisprudence, and beyond what I have done in this book, is called for in this regard. Understanding law, moreover, cannot be achieved by focusing only on officials. The motivations of citizens are at least as important. In short, what matters for our understanding of law is not just lawyers but the whole society.

11. Normativity As we know, the classical positivists held that law is the command of a sovereign attached to a sanction. In the twentieth century, this view came under sustained attack on the basis that this picture could not account for the law’s normativity. This attack has been so successful that today classical positivism is (at least officially) all but dead. This crucial argument, to be examined shortly, is frequently summarised by saying that classical positivism is unable to account for the fact that law is a normative enterprise.1 It is important to recognise, however, that if this summary means what it says, then it is quite wrong. This is because the notion that the law is normative is logically entailed by classical positivism. Law, recall, is said to be essentially connected to sanction, and the sanction guarantees law’s normativity. In fact, Bentham and Austin were well aware that the law was normative and the role of the sanction in their theories was to explain this feature of the law. As Austin said, for example, ‘Being liable to evil from you if I comply not with a wish that you signify, I am bound or obliged by your command, or I lie under a duty to obey it.’2 To put it simply, for the classical positivist, law gives reasons for action by imposing sanctions for disobedience; it issues, to use Kant’s terminology, hypothetical imperatives.3 The discovery that ‘law is a normative enterprise’, then, was not in fact that discovery. It was the discovery that law has a kind of normativity that cannot be explained by classical positivism. What kind?

1 Eg HLA Hart, Essays on Bentham; J Raz, Between Authority and Interpretation, 111; NE Simmonds, Central Issues in Jurisprudence, 149–50. It is also routine to maintain that the law’s normativity was a discovery of modern positivists, most importantly Hart and Kelsen, though, in the English-speaking world, even Kelsen is often forgotten. 2 J Austin, The Province of Jurisprudence Determined, 14 (emphases in original). 3 We might say that, for the classical positivist, law is a system of hypothetical imperatives. The ‘Do it or else’ of law becomes for the citizen, ‘I should do it unless I want this thing to happen to me (which I don’t).’ Prudence, of course, is normative.

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LAW AND DEONTIC POWER

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The Gunman Argument

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Despite the fact that, for reasons we will see, it is now somewhat downplayed by positivists, this is probably the most important argument in twentieth-century jurisprudence. To the extent that any jurisprudent deserves credit for it, it is Kelsen.4 Nevertheless, in the English-speaking world, Hart’s version of it is better known. It is also more readily accessible. Because of this, and because it suits the flow of the investigation, I examine Hart’s version here. In The Concept of Law, Hart argues that Bentham and Austin saw correctly that ‘where there is law, there human conduct is made in some sense non-optional or obligatory’.5 But, Hart insists, these thinkers misunderstood the kind of normativity found in law. A orders B to hand over his money and threatens to shoot him if he does not comply. According to [classical positivism] this situ­ation illustrates the notion of obligation or duty in general. Legal obligation is to be found in this situation writ large; A must be the sovereign habitually obeyed and the orders must be general, prescribing courses of conduct not single actions.6

This, Hart maintains, is at best only part of the story because, though law does sometimes oblige, it also operates in accordance with a different kind of normativity, a kind for which classical positivism has no explanation. The plausibility of the claim that the gunman situation dis­plays the meaning of obligation lies in the fact that it is cer­tainly one in which we would say that B, if he obeyed, was ‘obliged’ to hand over his money. It is, however, equally certain that we should misdescribe the situation if we said, on these facts, that B ‘had an obligation’ or a ‘duty’ to hand over the money.7

This is a significant failure, Hart thinks, because laws of the relevant kind do not merely oblige, they obligate. They impose duties. For this reason, ‘where rules exist, deviations from them are not merely grounds for a prediction that hostile reactions will follow or that a court will apply sanctions to those who

H Kelsen, Pure Theory of Law, 114. Why even Kelsen does not deserve credit for discovering it is examined below. 5 HLA Hart, The Concept of Law, 82. 6 Ibid. 7 Ibid. 4

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break them, but are also a reason or justification for such reaction and for applying the sanctions’.8 This argument shows that sanction is insufficient to account for the law’s normativity. A sanction can explain why a law gives prudential reasons for action – it can explain why a person may be obliged to act, for instance – but it cannot explain how the law generates obligations to act. Though Hart introduces his argument by reminding his readers that legal rules both impose obligations and create powers,9 his version of Kelsen’s argument focuses entirely on obligation. Nevertheless, of course, an argument with the same structure can be made with respect to the latter concept. Powers, Hart claims, ‘provide for operations which lead not merely to physical movement or change, but to the creation or variation of duties or obligations’.10 Crucial to this notion of power is the type of normativity it exhibits. Take, for instance, the power afforded by the law of contract that enables individuals to make contracts. This power is not the ability – that is, the ‘power’ in its physical sense – to bring about material changes in the state of the world. Rather, it is the power to create rights and duties in oneself and in one’s contract partner. Classical positivism cannot account for this because, while it can explain the power to enforce material changes, that is, through sanctions, it cannot explain the normative power to alter existing sets of rights and duties. Again, an argument with the same structure can be run with respect to other normative considerations such as permissions, liberties, rights and the like. In the language used in this book, we can say that law is not merely a normative enterprise, but a deontic one. Law carries deontic power. It creates rights, duties, obligations, liberties, licences, liabilities, powers, permissions, and so on. We can, therefore, summarise the outcome of the argument as follows. (1) Law necessarily carries deontic power. It creates duties, rights, obligations, liberties, powers and the like. Hence, the claim that the law necessarily carries deontic power means that, whatever else it does, it operates in terms of normative concepts of the kind just listed. (2) Classical positivism is unable to account for (1), because it cannot explain the source of the law’s deontic power. It can explain how law gives people reasons for action. The presence of sanction does this. But though law does often create such reasons, it also creates deontic reasons and the theory has no explanation for this.



Ibid, 84. Ibid, 81. 10 Ibid. 8 9

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Language and Concepts

Importantly, the claim that law carries deontic power does not mean merely that deontic language is used to describe the law. The objection to classical positivism is not that people use words such as ‘obligations’, ‘rights’, ‘duties’, and so on. That could not have been advanced as a serious objection to classical positivism. For one thing, as we have seen, Austin used this language himself. Moreover, he presented a theory to explain why we speak this way. He said that we say that there is a duty to obey the law, for instance, because we will be met with a sanction if we do not.11 Hart’s objection, remember, was that ‘we should misdescribe the situation if we said’12 this, but that is not a point about how we actually speak. One way to bring this out, a way that will be useful for the argument that follows, is to ponder the following issue. One rather implausible reading of the gunman argument is to interpret Hart as merely criticising Austin’s choice of terminology. Austin says, recall, ‘Being liable to evil from you if I comply not with a wish that you signify, I am bound or obliged by your command, or I lie under a duty to obey it.’13 Hart’s response might be merely to say that ‘duty’ is the wrong word. But that would hardly embarrass Austin’s theory. Here, he could simply drop the reference to duty. Let us call this ‘Reply 1’. More importantly for what follows, he could get really clever, refuse to accept Hart’s correction and reply to Hart by adopting one of two strategies. First, he could advance a kind of error theory of legal duty. He could say, that is, that technically Hart is right that his theory cannot account for legal duties, but respond that, properly understood, his theory did not maintain otherwise. He was not saying that people actually have a duty to obey. His theory was that people say that there is a duty to obey because, if they do not obey, they will be subject to sanction. The theory, then, is not about the source of legal duties but about the reasons why people utilise this kind of terminology in these contexts. ‘What I am saying’, says our imaginary Austin, ‘is that people say that there is a legal duty, because, if they do not comply, they will be faced with a sanction. It might be better if people didn’t say these things, but that is what they do say and this is the explanation why.’ We will call this ‘Reply 2’. If asked to flesh out this explanation, we might imagine Austin saying things such as that people use the language of obligation in this area because it is a useful kind of ‘propaganda’ that inclines people to comply, or something of the sort. Second, Austin could accept that ‘duty’ would normally be the wrong word, but argue

J Austin, The Province of Jurisprudence Determined, 14 (emphases in original). HLA Hart, The Concept of Law, 82. 13 J Austin, The Province of Jurisprudence Determined, 14 (emphases in original). 11 12

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that, in legal contexts, the term has a special meaning. In fact, he might say, in law, being ‘obligated’ just means being obliged because of how the term ‘obligation’ is used in the legal context. This is ‘Reply 3’. None of these strategies constitute a genuine response to Hart, however. The replies miss Hart’s point, which is that there is a difference between being obliged and being obligated – a difference that none of our Austins, real or imaginary, respect. Let us look in detail at each reply. Reply 1 fails, because Hart would insist that Austin cannot simply drop the reference to duty. The point is, Hart would say, the law does create duties, among other things, and what we need is an explanation for this. In this way, leaving out the reference to duty would make the theory worse, not better. Reply 2 fails, because the law actually creates legal duties, and so an error theory will not do. According to this imaginary Austin’s error theory, the law does not really create legal duties. According to Hart, that is wrong. Reply 3 fails because it is just a kind of cheating. To the objection that the theory cannot account for the existence of legal duties, it just gives a special definition for the term ‘legal duties’ such that the theory can account for their existence. Obviously, that does not respond to the objection. The crucial point is this: we can see that the gunman argument is conceptual and not semantic. Each of the three replies to the argument fails for this reason. The argument shows that concepts of obligation, duty, rights, liberties, and so on appropriately apply to the law, and that is what needs to be explained. 1.3

The Intuitive Position

Immediate consideration of this argument produces what I will label ‘the intuitive position’. I call it intuitive, because I believe that it is the most obvious and natural conclusion to reach after appreciating the force of the gunman argument. It is probably also the view of law which someone unfamiliar with the history of jurisprudence would take (though, of course, they would not have the jargon that I employ). On the face of it, the position is positivistic. However, I do not claim that it is the position held by modern positivists. In fact, as we will see, perhaps no positivist now holds this position. Although it will seem obvious to non-specialists in this area, one crucial element of this position is that the deontology of the law gives people reasons to act. As we have seen, these are not merely prudential. The classical positivists were right to say that sanctions can give people reasons to act, but the gunman argument shows that law is normative in another crucial way. The law (also) creates reasons to act of a different kind than avoiding the undesirable consequences of breaking the law or even gaining the desirable consequences of acting as the law incentivises. As it will be useful to have a term to denote these reasons, we will say that law gives deontic reasons for action. The

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subject of the gunman’s command has a reason to hand over his money, a prudential reason (one so strong that he is obliged); but he has no deontic reason (thus, he is not obligated). Conversely, when an offeree accepts a contractual offer, that creates in the offeror not merely a prudential reason to perform (in order to avoid being sued, and so on), but also and crucially a deontic reason to do so (he is obliged to perform). The intuitive position, then, is this. (1) Law carries deontic power. (2) This power is possessed by and operates over individuals: it gives them deontic reasons to act. For example, an offeree has a legal power to accept the offer and change the legal position of herself and the offeror. This is a power that she genuinely has. Likewise, if she accepts, the offeror comes to have a legal obligation to perform in accordance with his offer. Moreover, if the offeror breaches this obligation, a judge has the legal authority to require the offeror to make this good in some appropriate way. Thus, people really have legal rights, duties, powers, permissions and the like. (3) These deontic powers are independent of other areas of normativity.14 A legal obligation, for example, is its own thing. Individual legal obligations may be accompanied by parallel moral obligations, or they may have some other complex relationship with moral obligation, but they nevertheless remain separate therefrom. (4) Partly as a result of (3), it is possible to have a legal obligation that conflicts in various ways with one’s moral obligations. (5) When this happens, it can be right to disobey the law. When one does this, one violates an obligation that one has, but one is right to do so because the moral obligation outweighs (or something such) the legal obligation. Though this is not crucial to the argument that follows, it seems that Hart held at least something like the intuitive position, at least most of the time, when he wrote The Concept of Law. He endorses the notion that legal and moral obligation are distinct kinds of obligation for instance.15 Furthermore, he tells us that: If we narrow our point of view and think only of the person who is called upon to obey evil [legal] rules, we may regard it as a matter of indifference whether or not he thinks that he is faced with a valid rule of ‘law’ so long as he sees its moral iniquity and does what morality requires. But besides the moral question of obedience (Am I to do this evil thing?) there is Socrates’ question of submission: Am I to submit to Cf KE Himma, ‘The Ties that Bind: An Analysis of the Concept of Obligation’. Eg HLA Hart, The Concept of Law, 171.

14 15

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punishment for disobedience or make my escape? […] These questions raise very different problems of morality and justice, which we need to consider independently of each other: they cannot be solved by a refusal, made once and for all, to recognize evil laws as valid for any purpose.16

This seems to imply that even evil legal rules create legal obligations, which is at least one of the reasons why Socrates’ question of submission becomes relevant, even if, all things considered, it is an obligation that one ought to violate. In any case, if Hart once held this view, he clearly rejected it later, as we will see. Despite the fact that this intuitive picture is held by perhaps no major modern positivist, it nevertheless helps us to see the attraction of what came to be known as the middle way. The idea is basically this. The great strength of classical positivism was that it could retain the common sense view that laws could be immoral. The great strength of natural law theory was that it could retain the view that the law was normative in the right way, that is, that it carried deontic power. The great weakness of classical positivism was that it could not account for that normativity. The great weakness of natural law theory (as understood, for example, by Hart) was that it could not account for the obvious fact that law could be immoral. Hart’s theory promised a middle way: a way of retaining the separation between law and morality while holding on to the law’s normativity. 1.4

The Problem of Legal Deontology

Any assessment of the merits of The Concept of Law must deal with the issue that, though the work correctly identifies that law carries deontic power and raises this fact as a central criticism of one of its most prominent predecessors, it appears, like that predecessor, to have no explanation for how the law achieves this. In fact, things are worse than this. Austin has an explanation that does not work. Hart has no explanation at all. That is surely astonishing in such circumstances. What is really remarkable is how little this fact has actually affected the assessment of that work.17 Nevertheless, Jules Coleman has put the problem this way. How […] can a rule give reasons or impose an obligation just because people treat it as doing so? A rule cannot be said to impose an obligation simply because those

Ibid, 211. For similar comments that relate to others areas of Hart’s analysis, see R Cotterrell, The Politics of Jurisprudence, 15, 98–9. Cotterrell claims to find the lack of impact on Hart’s reputation puzzling, as well he might. 16 17

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individuals who are its intended subjects believe they are obligated by it. To hold otherwise is to engage in a form of objectionable ‘bootstrapping’, in which that which purports to explain the normativity of the rule of recognition – the internal point of view – is partly constitutive of what is to be explained. On the other hand, if Hart does not claim that the internal point of view explains the rule of recognition’s normativity, he appears to have no explanation of it.18

In order rightly to understand this issue, it is important to see what it is not. It is not necessarily about moral obligation or in any way connected with such. Hart’s position in The Concept of Law is that duty-imposing legal rules impose duties, for instance. It is not necessarily that these duties are moral duties. We can say that they are legal duties. So, if a law implies that I must pay $100 in tax, then I have a legal duty to pay $100 in tax. That seems obvious and to need no explanation. In reality, it is anything but obvious and it generates a considerable mystery. Consider the following: In one sense, of course, there is a very easy answer to the question ‘Is there a duty to obey the law?’ Imposing duties is an important part of what the law is for. Legal systems … specify the duties of those who fall within the relevant jurisdictions. […] But the duty at issue in this easy answer to our question is a legal duty, a duty internal to the system of norms that is law. […] The question to be addressed here, however, has to do not with the existence of such […] duties (which nobody questions), but rather with their moral weight. Our question is whether or not there is a moral duty to discharge our assigned legal duties, and, if so, why.19

I have chosen this passage because it is carefully expressed by an important theorist and because most would regard its content as unremarkable. Nevertheless, the passage contains a serious error. The passage maintains that the difficult question, the philosophically interesting question, is whether the legal duties generated by the law in turn generate moral duties. That certainly is a difficult and philosophically interesting question, but it is not the only question here. As is not unusual, the most philosophically interesting question concerns what at first seems most unproblematic: that the law imposes legal

18 J Coleman, The Practice of Principle, 87 (citation omitted). See also J Raz, Between Authority and Interpretation, 5. Incidentally, for Coleman and for many other positivists, Hart has become so talismanic a figure that he is only rarely the object of direct criticism. In this case, though it is clear that Coleman accepts the criticism and so attempts to respond to it, he shies away from identifying with the criticism (the passage replaced by the ellipsis is ‘these critics ask’) and pretends that his response to the problem is somehow Hart’s own, when it is quite clear that it is not. 19 AJ Simmons, ‘The Duty to Obey and Our Natural Moral Duties’, 93.

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duties. It is obvious, we are told, that the law imposes these. But how on earth does the law do it? We can call this the problem of legal deontology. Why has it seemed to many that there is no such problem? The answer, I think, is because we reason in something like the following way. (1) When we say that an obligation is a legal obligation, what we mean is that it is an obligation according to the law. (2) Thus, we can say that a person has a legal obligation if the person has that obligation according to the law. (3) Now, it seems an observable fact that, according to the law, people do have obligations. (4) So, we can happily conclude that people have legal obligations. On the face of it, however, the following two utterances are not synonymous: (i) ‘You have an obligation according to the law’ and (ii) ‘You have a legal obligation’. This can be revealed by observing that it would make good sense (even if it were false) to say ‘You really have an obligation according to the law, but I don’t think that you have any obligation at all’, but it would not make sense to say ‘You really have a legal obligation, but I don’t think that you have any obligation at all.’ The utterance (i) is an assertion about the law; (ii) is about you. In this context, it is important to keep in mind that ‘legal’ is just an ordinary English adjective (a contrary view is examined below). It characterises the type of obligation in question. Thus, to say that you have a legal obligation is to say that you have an obligation of a certain kind. It does not mean that you have an obligation only according to the law. In other contexts, it is clear that the move from (i) to (ii) is fallacious. If I insist that you have an obligation to close the door, for instance, we would be happy to conclude (a) that you have that obligation according to me. But we would not infer from this that (b) you have an Allan-obligation to close the door. (a) is a claim about me; (b) is a claim about you, the claim that you have an obligation of a certain kind. Thus, we cannot move from the premise that a person has an obligation according to the law straight to the conclusion that the person has a legal obligation. The premise is a claim about the law and not about the person; the conclusion is a claim about the person. It will help to formalise the point. Imagine that we have what Hart calls a duty-imposing legal rule. We need to distinguish between the following three notions. This rule: (a) imposes an obligation according to the law; (b) imposes a legal obligation; (c) imposes a moral obligation.

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The Concept of Law advances (b). This is a fundamental element of its attack on classical positivism. We can easily give Hart (a) and accept at least arguendo for the moment Hart’s denial that a commitment to (a) or (b) implies (c). But, as (a) does not imply (b), we have no idea where (b) has come from. And (b) is crucial because, remember, ‘where rules exist, deviations from them are not merely grounds for a prediction that hostile reactions will follow or that a court will apply sanctions to those who break them, but are also a reason or justification for such reaction and for applying the sanctions’.20 Take an example. Imagine that a group of people in southern Spain get together, call themselves El Grupo, and create a rule according to which I am required to pay them €10,000 per annum in ‘tax’. Here, I have an obligation to pay the tax according to El Grupo. Clearly, however, I have no moral obligation to pay. But it is surely also clear that I have no El Grupo-obligation to pay either. I have no obligation at all. And if El Grupo try to enforce their rule against me, I am not given to think that this rule gives a reason for or justifies anything except laughter. Let us also ask whether the rule applies to me and whether my paying is an action required by the rule. One can give different answers to these questions. The rule applies to me in the sense that, if you understand the rule, you will understand that I am, as it were, within its scope. So, one who understands the rule and its implications would give an affirmative answer to the question: ‘Does this rule say that Allan needs to pay €10,000 a year?’ But if we were to ask the different question, ‘Does this rule mean (that is, entail) that Allan needs to pay €10,000 a year?’ the answer would be ‘Of course not.’ Similarly, if we ask ‘Does this rule say that I am required to pay €10,000 a year?’, the answer would be ‘Yes’; but if we ask ‘Does this rule mean that I have to pay €10,000 a year?’, the answer would be ‘No.’ Again, we are seeing that there is a gulf between representing someone as having an obligation and that person actually having that obligation. The Concept of Law proceeds on the basis that people have legal obligations. To establish this, it is entirely insufficient to show that the law represents them as having those obligations. We can represent anything that we can conceive, but – except in special circumstances analysed in Chapter 7 and revisited at the end of this chapter – representing something as true does not make it true.

HLA Hart, The Concept of Law, 84 (emphasis added).

20

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Note also that, as Coleman recognises, the rule of recognition does not help.21 The famous passage examined in the previous chapter shows this. We only need the word ‘validity’, and commonly only use it, to answer questions which arise within a system of rules where the status of a rule as a member of the system depends on its satisfying certain criteria provided by the rule of recognition. No such question can arise as to the validity of the very rule of recognition which provides the criteria; it can neither be valid nor invalid but is simply accepted as appropriate for use in this way. To express this simple fact by saying darkly that its validity is ‘assumed but cannot be demonstrated’, is like saying that we assume, but can never demonstrate, that the standard metre bar in Paris which is the ultimate test of the correctness of all measurement in metres, is itself correct.22

The rule gets its status from its being accepted (by officials, says Hart). Given Hart’s commitments, it is not even the kind of thing that could itself impose obligations. Hart’s failure in The Concept of Law to see the significance of the point under examination – that he insisted that law carries deontic power but had no explanation for this fact – is curiously pointed up by the implicit criticism of Kelsen in the passage just quoted. In fact, as we see below, a great merit of Kelsen’s theory of law is that it squarely faces the problem of legal deontology. To my mind, the problem of legal deontology is the deepest problem facing legal positivism. It is one from which Anglo-American positivism has for the most part tried to hide. Consider, for example, the following claims: a norm is legally valid in some society when it satisfies the criteria of legal validity in that society’s Rule of Recognition, and a Rule of Recognition exists in virtue of a complex sociological and psychological fact, namely, that certain officials of the system apply those criteria and believe they ought to apply them. Notice that the positivist theory of law does not claim that they are correct to believe that they ought to apply those criteria; the theory claims only that when law exists in some society, we find a social rule that is the Rule of Recognition. (Confusion about this point, I am afraid, accounts for almost all the major criticisms of positivism, from John Finnis to Ronald Dworkin.)23

This is a relatively common view among positivists, but it fails to take into account that some of positivism’s critics – particularly Finnis – have seen the import of the problem of legal deontology. They are not making the crude mistake attributed to them in this passage. Their position is that law can have

See also J Raz, Between Authority and Interpretation, 334. HLA Hart, The Concept of Law, 108–9. 23 B Leiter, ‘Legal Positivism about the Artifact Law: A Retrospective Assessment’, 6 (citation omitted). 21 22

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the deontic power that The Concept of Law insisted it has only if it is connected to morality. Perhaps they are wrong, but at least they see what is at stake here.

2.

THE COLLAPSE OF MODERN POSITIVISM

2.1 Hart The positivists who have most clearly responded to this problem are Kelsen and Raz. Raz’s writings had the additional merit of forcing Hart to confront the matter in his later work. The key passage in this regard is the following. [Best] adapted to the legal case is a […] non-cognitive theory of duty according to which committed statements asserting that others have a duty do not refer to actions which they have a categorical reason to do but, as the etymology of ‘duty’ and indeed ‘ought’ suggests, such statements refer to actions which are due from or owed by the subjects having the duty, in the sense that they may be properly demanded or exacted from them. On this footing, to say that an individual has a legal obligation to act in a certain way is to say that such action may be properly demanded or extracted from him according to legal rules or principles regulating such demands for action.24

This is a very odd position. As Raz has said, ‘Hart himself feels uncomfortable with the conclusion he has reached, as well he might. For if he is right then it follows either that it is not wrong to fail to fulfil one’s duty or that acting wrongly is not something one has a reason not to do.’25 Let us begin with Hart’s claim that, in this context, we ought to adopt a non-cognitive theory of duty. Though Hart makes it clear that he does not intend his commitment to non-cognitivism to extend beyond law to morality, it will nevertheless be useful briefly to examine two well-known, non-cognitive, meta-ethical theories: prescriptivism and (Hart’s preferred) emotivism. According to meta-ethical prescriptivism, moral claims are directives, that is, orders, while according to meta-ethical emotivism, moral claims are expressives, that is, expressions of affective states. In short, then, a claim such as ‘stealing is wrong’ means, for the prescriptivist, ‘Don’t steal!’ and for the emotivist, ‘Stealing, yuck.’ The key thing to see here is that, on each theory, morality pretends to but in fact lacks deontic power. If moral claims are merely directives or expressions, then on their own they do not create or reflect rights, duties, permissions, powers and the like. That you order me not to steal or that you find stealing distasteful, for instance, in itself gives me no reason to refrain HLA Hart, Essays on Bentham, 159–160. J Raz, ‘Hart on Moral Rights and Legal Duties’, 131. For a detailed examination of Hart’s view, see K Toh, ‘Hart’s Expressivism and His Benthamite Project’. 24 25

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from stealing. This is a direct consequence of these theories’ non-cognitivism. Here, non-cognitivism about morality means that there is nothing to be known, that is, nothing to be cognised, about that to which moral claims apparently refer. There is, to put it another way, no moral reality. Morality might therefore appear to have deontic power, but in fact it has none. Or, it would have none if these misguided theories were correct.26 The problem for Hart is that, if he adopts a non-cognitive theory of legal duties and the like, then the law cannot have the deontic power that the gunman argument showed that it has. Subjects of legal duties, we were told, have obligations to obey those duties – they are not merely obliged to obey. But that could not be so given the non-cognitivism to which Hart now commits himself. The question is why this is not more obvious. The answer is an uncomfortable one. It is that Hart adopts a strategy that is guaranteed to occlude the issue. Now, it may be that Hart was unaware of this. Nevertheless, this has been a very harmful strategy, not only because it has hidden the crucial issue, but also because, as we will see, it has been frequently imitated. Let us begin with the claim that, in law, ‘committed statements asserting that others have a duty do not refer to actions which they have a categorical reason to do’. In the language used here, this is to say that legal duties do not give the subjects of those duties deontic reasons to act. That is to deny that the law possesses deontic power. That this is inconsistent with the gunman argument is as straightforward as it could be. Let us now skip to the end: ‘to say that an individual has a legal obligation to act in a certain way is to say that such action may be properly demanded or extracted from him according to legal rules or principles regulating such demands for action’. This seems completely consistent with the passage just examined. It claims that having a legal duty to do x just means that one can rightly be compelled to do x according to the law, for instance. It makes no claim about whether one has a deontic reason to comply with one’s legal duties, about whether legal duties are things that one properly has. Again, it must be clear that this is inconsistent with the gunman argument. But consider now the middle passage: ‘such statements refer to actions which are due from or owed by the subjects having the duty, in the sense that they may be properly demanded or exacted from them’. Note here the absence of the rider ‘… properly demanded or exacted from them according to …’. It says that the actions can be properly demanded or exacted full stop. Because of this, this passage suggests a commitment to the law’s deontic power and

There are, however, theories that are anti-realist and yet have realist-like consequences, and I do not mean to dismiss these here. See, eg, S Blackburn, Essays in Quasi-Realism. 26

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(hence) to the notion that law creates deontic reasons for action – surely, the concealed thought is, an action can properly be demanded or exacted from a person only if she has a reason to do it. Here, Hart appears to be saying that legal obligations, for example, are things that people actually have; that they give people deontic reasons for action and, hence, when people violate these obligations, they can properly be held to account. Let us begin with the position that appeared to be demonstrated by the gunman argument, the position that I am calling the intuitive one. It holds that (a) law is normative in the sense that (b) it possesses deontic power; and (c) law is independent of morality in the sense that law can be immoral. The problem is how to account for (a) and (b) given (c). Hart’s strategy is to deflate (a) until a point at which the problem appears to go away. That is, the normativity of the law is weakened to a point at which there is no difficulty explaining how the law possesses that normativity. It is said, recall, that the law is normative simply because, and to the extent to which, it presents itself as being normative. The problem now, though, is that (a) is so deflated that it is no longer consistent with (b). The normativity the law is said to have could not possibly amount to the deontic power the gunman argument showed that the law possessed. Thus, (a) is inflated again a little, and then deflated once again. According to Hart’s theory, does the law create obligations? The best answer to this is ‘Yes and no.’ Yes, Hart insists that law creates obligations (the gunman argument). But no, he also denies that law creates obligations (in the Essays on Bentham). It is, however, possible to give a different answer, to give an unqualified ‘Yes’ in response to this question. One might say: ‘For the Hart of the Essays, a legal obligation is an obligation according to the law and Hart holds that the law creates these.’ (Note that this is a version of Reply 2 or Reply 3 from section 1.2 above.) Though this is possible, I think that this is a dishonest strategy, as the position relies on a use of the term ‘obligation’ not appropriate to the gunman argument.27 These obligations, apparently, do not obligate. But whatever. What is important to realise is that the kind of ‘obliga-

It is, however, a strategy used very frequently in common law arguments where, say, instead of arguing ‘The law is x but x is wrong and so the law should be changed to y’, we often enough say, ‘The law is x and x means y.’ For just one example of this, compare on the one hand ‘Exemplary damages are punitive and have no place in the law of tort (eg A Beever, ‘The Structure of Aggravated and Exemplary Damages’) and ‘Exemplary damages are punitive and do have a place in the law of tort’ (eg J Edelman, ‘In Defence of Exemplary Damages’) with, on the other hand, ‘Exemplary damages are in fact vindicatory’ (eg R Stevens, Torts and Rights, 85–8). In this general context, there are sound strategic reasons for employing this strategy, but there are also costs. For one thing, do the second and third of these views really agree; do the first and third really disagree? 27

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tion’ that Hart shows that the law has is not the kind that the gunman argument insisted that the law has. At this point, it is necessary to pause for a moment to deal in a general way with the consequences of this strategy. It has introduced into this debate a great deal of obfuscation that makes it almost impossible to examine the issues clearly. The only feasible way around this is to introduce special terminology. Let me begin by explaining the nature of the problem. Take again Hart’s claim that ‘committed statements asserting that others have a duty do not refer to actions which they have a categorical reason to do’.28 On this view, the claim ‘P has a legal duty to do x’ does not imply that P has a deontic reason to do x. I have said, as I think is entirely reasonable, that this entails that P has no duty to do x. This is because, without a deontic reason to do x, it is nonsense to say that P has a duty so to act. I am very happy to stand by these claims, but there is a possible reply. One might assert that, on Hart’s view, a legal duty is defined as a duty according to the law. (This is a version of Reply 3.) Thus, on this view, ‘P has a legal duty to do x’ means merely that ‘according to the law, P has a duty to do x’. Thus, on this view, a person who, according to the law, has a legal duty has that duty by definition. Hence, Hart’s position is entirely consistent with the gunman argument. That argument showed that individuals have legal duties (for example) and Hart has now shown how that is possible. If you have a duty according to the law, then you have a legal duty: QED. I am afraid that this, and all the like arguments found in the literature, is an extended exercise in obscurantism. Solid objects were once thought to contain no empty space. We now know that this is wrong and that, in fact, solid objects consist mostly of empty space. Solidity is the product of the arrangement of the atoms or molecules that constitute the object. When we made this discovery, we responded by revising our conception of solidity. Thus, we still say that there are solid objects in the world, but we mean something different by this than our ancestors did, or perhaps young children do. We say, for instance, ‘That table is solid’, because its molecules are so arranged. We do not say ‘That table is not solid’, because it consists mostly of empty space. Compare this with our treatment of phlogiston. We know that oxygen is consumed during combustion. Thus, in the absence of oxygen, combustion cannot occur. This theory was confirmed in the late eighteenth century. For many years, the theory had a serious rival: phlogiston theory. Simplifying somewhat, this theory held that the imaginary substance (that is, the substance we now know to be imaginary) involved in combustion was phlogiston rather HLA Hart, Essays on Bentham, 159–60.

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than oxygen. In this case, the demise of phlogiston theory led us to say that phlogiston does not exist. We did not say that phlogiston does exist and that it is the same thing as oxygen. Why did we respond in one way in the case of solidity and in a different way in the case of phlogiston? There are many answers, but each turns on what was most practical. It is convenient to have a clear way of marking the distinction between objects that resist and those that accommodate other objects. The concept of solidity (and non-solidity) was useful for that purpose. Thus, we kept the concept, revising it somewhat. But as we already had oxygen, after discovering its role in combustion, we had no use for phlogiston anymore. Moreover, as it was oxygen theory that defeated phlogiston theory, that was more reason for eradicating our use of the term. But think now about Friedrich Nietzsche’s claim that (everyday, Christian or herd) morality is really just the repackaged self-interest of the weak.29 To put the thesis as simply as possible, moral claims are a kind of propaganda that the weak use in order to control the strong. What is the best way of representing this theory? Take a moral claim such as ‘Be kind to others.’ Should we say that, according to Nietzsche, (i) the claim ‘Be kind to others’ is true, but that this means merely that it is in the interests of the weak that the strong be kind to others? Or would it be better to say (ii) that the claim ‘Be kind to others’ is false because it means that you really ought to be kind to others when the truth is that this notion is merely a piece of propaganda? Two things are important. First, in principle, we could go either way. If we properly understand what is being said in (i) and (ii), we can see that these are logically equivalent. Second, the reason that (i) and (ii) are logically equivalent is because, in these statements, ‘Be kind to others’ is not used univocally. In (i), ‘Be kind to others’ is a claim of a kind that does not give reasons for action. This is why it is possible to say that the claim is true and yet that it merely reflects the interests of the weak. In (ii), however, ‘Be kind to others’ is a claim of a kind that gives reasons for action. The fact that this specific claim does not give reasons for action is why it is said to be false. If we make these into general strategies, following (i) we would say that morality is not the kind of thing that gives reasons for action; following (ii) we would say that morality is the kind of thing that gives reason for action (it is just that, according to Nietzsche, no moral claim actually achieves this). Speaking of morality generally: following (i) we would say that morality does exist, though you should ignore it; following (ii) we would say that morality does not exist.

29 See, eg, F Nietzsche, Beyond Good and Evil; F Nietzsche, On the Genealogy of Morals: A Polemic; F Nietzsche, Daybreak: Thoughts on the Prejudices of Morality.

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What tends to happen in fact is that people follow (ii). This is because they are so wedded to the idea that morality gives reasons for action that they find this the most convenient way to express themselves when summarising Nietzsche’s view. It is also the most natural way for someone who disagrees with Nietzsche to speak. But it need not be so. One might imagine a group of Nietzsche disciples who develop a way of speaking according to which phrases such as ‘You did the morally right thing’, ‘You are a nice person’ and ‘You are a really good guy’ are insults. Now consider this question: Do people, according to this view, have moral obligations to be kind? The same two answers are available. One could say, (a) ‘Yes, you have a moral obligation to be kind, but you should ignore that obligation (as you should ignore all your moral obligations)’, or one could say, (b) ‘No, you have no moral obligation to be kind (in fact, you have no moral obligations at all).’ Again, these utterances are logically equivalent, and they are so because ‘obligations’ is being used equivocally. In (b), an obligation gives you a reason to act (which is why there is no obligation here), whereas in (a), an obligation does not give you a reason to act. Now, the obligation in (a) is a strange kind of thing. It is an obligation that does not obligate – though perhaps one cannot even say that as, if we keep travelling down this rabbit hole, we will see that the word ‘obligate’ can be treated in these same two ways. But at least we can say that this obligation gives no reason to act – though, in principle, we could reinterpret ‘reason to act’ as well. At this point, as I hope is evident, the meanings of our utterances are in danger of being lost. This is what has happened in modern legal positivism. The only thing to do is to introduce new terminology. Let us call an obligation that gives reason to act an obligationd and an obligation that does not give reason to act an obligationnd (the ‘d’ stands for deontic and the ‘nd’ for non-deontic). Obviously, these terms can be used with respect to other norms also, so we can have rightsd and dutiesnd and all the rest. Let us return to Nietzsche’s theory. Imagine that the sentence ‘You should be kind to others’ is uttered by two people, let us call them Immey and Fred. Immey has conventional beliefs about morality. Fred, on the other hand, is one of the Nietzsche disciples envisaged above. Despite their differences, they both assert the claim ‘You should be kind to others’ sincerely. What matters, though, is that they mean different things by this claim. Immey means that you should actually act kindly. Fred does not mean this. He means only that it is in the interests of the weak for you to act kindly. Using our terminology, Immey is saying that you shouldd be kind; Fred that you shouldnd be kind. Hart’s problem is that he wants to be Immey and Fred. His gunman argument tells us that law creates obligations. It is perfectly clear that this is supposed to mean that it generates (deontic) reasons for action in its subjects; that is, that the law creates obligationsd. But then, when he discovers that he has no explanation for

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how the law creates these and that his positivism seems to rule out any possible explanation, he redefines legal obligation to mean something that gives no (deontic) reason for action. Now, law creates only obligationsnd. But the claim that law creates obligationsd is inconsistent with the claim that it creates only obligationsnd. We really have made no progress beyond the imaginary Austin of section 1.2 above; the Austin of Replies 1–3. Let us ask again the following question: According to Hart’s theory, does the law create obligations? There are two answers. The best answer to this is ‘Yes and no.’ Yes, Hart insists that law creates obligationsd (the gunman argument). But no, he also denies that law creates obligationsd (in the Essays on Bentham). As we have seen, however, it is possible to give a different answer, to give an unqualified ‘Yes’ in response to this question. The gunman argument shows that law creates obligationsd and in the Essays Hart insists that the law creates obligationsnd. But this just papers over the problem. The gunman argument shows that law creates obligationsd. It is this for which Hart needs an explanation. Deflating legal obligation to an obligationnd is to do nothing more than to obscure the issue. As noted, it would be far preferable if we stopped all this talk of obligations that do not give reasons for action. It is ironic in the extreme that modern legal positivism, which centred itself in reflection on how people ordinarily use language, could end up using key terms such as ‘obligation’, ‘right’, and so on, in such peculiar ways. We do have obligations according to the law; but all that shows is that we have obligations according to the law. Whether we actually have obligations (that is, obligationsd) is a separate matter, as having an obligation implies that the obligation creates deontic reasons for action in the subject of the obligation. It is also worth pointing out at this point that the position that Hart ends with is worse, far worse, than classical positivism. The earlier theory was faulty, because it did not explain how the law could carry deontic power. That does not preclude the possibility of finding such an explanation via an addition to the theory. Conversely, in the passage quoted above, Hart insists that the law does not have deontic power. We are left in a very curious position. Hart rejects classical positivism because it cannot explain x, but then presents a theory according to which an explanation of x is explicitly impossible. Against all of this, one might argue that my focus is in the wrong place. I am focused on citizens. I am speaking of people’s – that is, citizens’ – legal obligations. Hart, perhaps, was focused on officials, as was his wont. Perhaps, then, Hart’s position is that the law has deontic power in that it creates reasons for action among officials, even though it lacks deontic power with respect to citizens.

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One might notice, however, that this is not at all how the gunman argument is presented. It is about citizens and not officials. In any case, this refocusing could not avoid the difficulties enunciated. Sometimes, an analogy with games is made in this context.30 Officials are like participants in a game, it might be said, and, clearly, participants have reasons to obey the rules of the game they are playing. The position of citizens is different. They are like passers-by. They may observe the game being played and they may understand the rules of that game, but they do not have the same reasons to obey those rules. Frequently, they will have no reasons at all. To put the matter like this is immediately to reveal the weakness of the position. Citizens are not at all like passers-by. They are forcibly drawn into the ‘game’ whether they will it or not. As a rugby referee, I can penalise a player for wearing padded shorts. The rules give me that authority and the fact that the player is playing this game gives him a reason to obey me. But I can hardly enforce that rule on passers-by. The point is not that I am morally obliged not to, or even that the rules of rugby are such that I ought not according to those rules; it is that analogising to games in this context – where officials are analogised to the players and citizens to passers-by or the like – is totally to confuse the logic of the situation, not to mention its phenomenology, psychology and the like. One can only imagine the hilarity caused by, say, my trying to penalise or yellow-card passing pedestrians as I referee a game of rugby. Another way to put this point is to say that the analogy with games cannot help us understand the different position of officials and citizens, because it is characteristic of the kind of law under discussion that it does not accept that citizens are non-participants. The position under examination contains a truth, but it gains its plausibility by massively overextending this truth. Let us put the point this way. Imagine that we have a set of rules. These rules give only those who belong to group a reasons to act. They do not give those in group b any reasons to act. Clearly, it seems, a situation like this is possible and the suggestion is that, with respect to law, officials are in group a while citizens are in group b. It even seems plausible to think that these rules might give those in group a reasons to act in a way that affects, even negatively affects, those in group b – at least we can accept this arguendo. What we surely cannot accept, however, is that these rules could justify those in group a affecting those in group b, even according to the rules themselves (that is, even ignoring morality). It might help to imagine a case. Say that the rules of rugby were amended to allow referees to penalise passers-by wearing hats. Could a referee think that this rule justified her penalising passers-by wearing hats? A positivist might See eg S Shapiro, Legality, 184.

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say that the answer is obviously ‘Yes.’ That is, after all, what the rule says. But that is not the problem. The problem is that, to other than a bizarrely solipsistic referee, this law of rugby cannot make sense. Something, she will think, has gone seriously wrong, and she may respond with nothing but incomprehension. She is very unlikely actually to try to enforce the rule and would have to be a very odd person indeed to think that she was justified if she tried. Now, the reason for this is not that, while the rule would justify her action per se, there are countervailing considerations (perhaps that it would be an immoral violation of the liberty of the passer-by or whatever). There are, of course, countervailing considerations, but the fundamental and important point is that there is something seriously wrong with the logic of the rule. It purports to justify an action that it logically cannot justify (again, I am not using this word morally). It says to the referee, as it were, ‘You are justified in penalising the passer-by’, but the referee would probably need literally to be insane to believe this. It is not just that the rule cannot really justify such action, it is that it is so far from doing so that the converse view seems mad. Given the interpretation now under consideration, modern positivism asks us to swallow an equally bizarrely solipsistic picture. It holds that the existence of a law can provide justification for an official to, for example, punish a citizen for performing an action prohibited by the law, when that law did not give the citizen any (deontic) reason to refrain from so acting. (Note again that this point has nothing to do with morality, though obviously there are moral issues relevant here.) The justification of that would be, as it were, ‘You are being punished because, according to the law, you should not have done what you did, even though there is no (deontic) reason why you should care about what the law says about this matter, or, indeed, any other matter.’ What kind of justification for anything could this possibly provide? Remember that Hart claimed that, ‘where rules exist, deviations from them are not merely grounds for a prediction that hostile reactions will follow or that a court will apply sanctions to those who break them, but are also a reason or justification for such reaction and for applying the sanctions’.31 Moreover, he asserts that legal duties ‘may be properly demanded or exacted from’ citizens.32 But it is a complete mystery how rules and duties are meant to ground any of this given how they are here described. Furthermore, on this view, the law purports to create obligations in citizens but does not in fact do so – a notion that also features heavily in positivism after Hart. Of course, one can purport all one likes, but one cannot purport and be indifferent to the truth about which one purports. To purport x is to present

HLA Hart, The Concept of Law, 84. HLA Hart, Essays on Bentham, 159–60.

31 32

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x as being true. Purporting is assertive. Purporting, then, commits one to the truth of what one purports. We can see this because the utterance ‘I purport that x but x is false’ is out of order. If the law purports to impose obligations, then it is committed to its succeeding. That does not mean that it does in fact succeed, of course, but there is something very odd about saying that the law, or anything, necessarily and routinely commits itself to doing something that it cannot (not merely does not) in fact do. Moreover, even if we put this problem aside, it is impossible to see how the law could give officials deontic reasons to act given the picture now under discussion. If legal duties are non-cognitive, then they are non-cognitive. They cannot be non-cognitive for citizens but magically cognitive for officials. If they do not give citizens deontic reasons for action, they do not give officials such reasons either.33 What we see here is a collapse in Hart’s theory towards classical positivism. Hart insists that the classical positivists were wrong, because their theory could not account for the fact that the law carries deontic power. But he was also unable to account for this feature of the law. Moreover, in response to these difficulties, he ends up adopting a position according to which the law cannot have the deontic power he insists it has. This is why I describe this as a collapse towards classical positivism.34 (What we end up with, we see again, is something that looks a lot like Reply 3 above.) The apotheosis of this view is found in Matthew Kramer’s positivism. Kramer maintains: Legal obligations, which are the requirements established by duty-imposing legal norms, can be grounded essentially or exclusively in the interests of the officials who issue and apply the norms. In such circumstances, the addressees of the norms have no moral reasons and no prudential reasons (i.e., no punishment-unrelated prudential reasons) to behave in accordance with the norms’ requirements.35

Hence, he maintains that ‘Acting in violation of the requirements of legal norms can be something which a person has no reason – i.e., no punishment-unrelated

Contra KE Himma, ‘The Ties that Bind: An Analysis of the Concept of Obligation’, 16. Himma claims that ‘Hart’s account of legal obligation, if successful, would explain […] how the rule of recognition obligates officials; the rule of recognition is a social rule, on Hart’s view, that creates obligations in virtue of being accepted by the relevant social group (in this case, officials) as a rule governing their behavior in their capacity as officials’ (emphasis added). I deal with this view below. 34 It is only towards classical positivism, because, of course, Hart’s theory retains other advances over the older theories. 35 MH Kramer, In Defense of Legal Positivism, 87. 33

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reason – to forbear from doing.’36 In this way, Kramer avoids any entanglement with morality, but is it not clear that he is offering an updated version of classical positivism, which insists that law’s normativity can be reduced entirely to the effect of legal sanction? Against this, Kramer insists that law is normative on his account,37 but as we saw at the beginning of this chapter, it is also normative on Bentham’s and Austin’s. What Kramer needs to show is that law necessarily carries deontic power; but there is no hope of explaining how the law can do this given the account just given. On the contrary, as we have just seen, he repeatedly insists that there is no need for law to create deontic reasons. Of course, a theory of law could be given – and may well be useful and informative – that studies law solely from the perspective of power, ignoring law’s deontology.38 Kramer’s may be such a theory. But it not a theory that respects the insight that law carries deontic power. (Note that this is very similar to Reply 1 above.) Consider another kind of response to the argument advanced here. One might defend the notion that the law carries deontic power for officials because they are in some way committed to the law.39 Thus, this commitment explains why they are in a different position to citizens. They are committed to the law in a way that citizens are not necessarily committed. In this context, one might appeal again to games. One might say, for instance, that a person who has agreed to play chess has a reason to move her pieces in accordance with the rules of the game that would not be possessed by someone who had not made that agreement. Officials are like the chess player. And, one might add, there is no essential connection between morality and the rules of chess. The rules are, from the relevant perspective, quite arbitrary. As Shapiro has said, ‘If one has no reason to play a game, one has no reason to respect its rules.’40 A first problem with this view mirrors the one recently encountered: commitment by officials cannot justify affecting people who have made no parallel commitment. This response is sufficient to defeat the view under consideration, but the point is sufficiently obvious that we need not go over it again. The thing now is to ask why commitment gives reasons for action at all. Why, for instance, does someone who has committed to play chess have a reason to move her pieces in accordance with the rules of the game? Notice that this is in fact the same question we have been asking with respect to law. When the theorist appeals to games in this context, then, she is helping herself 38 39 16. 40 36 37

Ibid, 88. Ibid, 99–101, 223. See also F Schauer, ‘Positivism through Thick and Thin’. Eg KE Himma, ‘The Ties that Bind: An Analysis of the Concept of Obligation’, S Shapiro, Legality, 184.

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to an answer that she is unable to provide. To put this another way: one cannot appeal to games to solve the problem of legal deontology, because the same problem needs to be solved in both cases. It is true that those who have committed to playing a game have a reason to comply with the rules of the game, but that reason needs to be enunciated. As we will see below, the following is not my answer. However, in line with Hart’s examination of treaties explored in Chapter 4, in which he insisted that the only way to explain why a treaty is binding is by appeal to an external moral principle,41 it seems to follow that, for Hart, the reason people who have committed to play a game have a reason to abide by the rules of the game is because that is a moral consequence of that commitment. In this way we see modern positivism collapse toward natural law theory. Here, the theory retains its commitment to the law’s deontology, but only by covertly connecting law with morality. Thus, on this view, the reason that the law creates deontic reasons for officials is that, given the officials’ commitment to the law, morality generates in the officials deontic reasons to obey that law.42 Here, the law’s deontology is entirely due to morality. It is convenient at this point to examine the claim once made by Raz that ‘The legal validity of the law prohibiting theft [for example] does not rest on arguments concerning the right to property and the wrong done in infringing it. It rests on the need to have effective law and the justified authority of those who make it.’43 This, of course, as spoken by a positivist, is meant to apply to all legal regimes, including wicked ones. But how could it apply to the theft law of Nazi Germany, for instance? Recall the claim examined above that ‘Confusion about this point’, that is, that modern positivists hold that law has deontic power but not that this power is necessarily moral, ‘accounts for almost all the major criticisms of positivism, from John Finnis to Ronald Dworkin’.44 We can now see how misguided this is. Hart’s theory, at least, tried to live on the razor’s edge dividing classical positivism and natural law theory. We can debate whether it fell off or was sliced in half.

HLA Hart, The Concept of Law, 225. Conversely, one might argue that the officials’ commitment may generate only prudential reasons in them to obey the law. That leads us straight back to Kramer and the collapse of classical positivism. 43 J Raz, The Authority of Law, 152 (emphasis added). 44 B Leiter, ‘Legal Positivism about the Artifact Law: A Retrospective Assessment’, 6 (citation omitted). 41 42

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2.2 Shapiro In developing his positivistic account of legal authority, Scott Shapiro has the following to say. The key here is to recognize that, although the term ‘authority’ in claims of legal authority refers to a moral power, the word ‘legal’ often does not modify this noun-phrase; rather, its role is to qualify the statement in which it is embedded. When we ascribe legal authority to someone, in other words, we are not necessarily imputing any kind of moral authority to her. To the contrary, we are qualifying our ascription of moral legitimacy. We are saying that, from the legal point of view, the person in question has morally legitimate power. Similarly, to say that one is legally obligated to perform some action need not commit the asserter to affirming that one is really obligated to perform that action, that is, has a moral obligation to perform that action. The statement may be understood to mean only that from the legal point of view one is (morally) obligated to perform that action. Call this the ‘perspectival’ interpretation.45

And Kenneth Ehrenberg, referring to Shapiro, has said that ‘scholarship has shown that there are two ways of understanding such a notion of legal obligation: “adjectivally” (in which “legal” specifies a type of obligation) and “perspectivally” (in which “legal” specifies a point of view from which the obligation is seen)’.46 Consider the following argument. (1) When we say that an obligation is a legal obligation, what we mean is that it is an obligation according to the law. (2) Thus, we can say that a person has a legal obligation if the person has that obligation according to the law. (3) Now, it seems an observable fact that, according to the law, people do have obligations. (4) So, we can conclude that people have legal obligations. This is very fishy, but let us think about some similar cases. Here is one where things seem to fit. (1') When we say that an obligation is a moral obligation, what we mean is that it is an obligation according to morality. (2') Thus, we can say that a person has a moral obligation if the person has that obligation according to morality.

S Shapiro, Legality, 185. KM Ehrenberg, The Functions of Law, loc 127 (ch 1 n 7).

45 46

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(3') Now, it seems an observable fact that, according to morality, people do have obligations. (4') So, we can happily conclude that people have moral obligations. To really make this work, we would need to amend (3'), but this is not important for our purposes. Let us just assume that we could find a suitable substitute for (3'). The thing to see is that these arguments seem to be parallel and this appears to lend support to the notion that the first argument is sound. Consider the following, however. (1'') When we say that an obligation is a social obligation, what we mean is that it is an obligation according to society. (2'') Thus, we can say that a person has a social obligation if the person has that obligation according to society. (3'') Now, it seems an observable fact that, according to society, people do have obligations. (4'') So, we can happily conclude that people have social obligations. Again, on the face of it, this is parallel to the first argument and appears to lend support to it. There is a problem, however. The problem is that there is an ambiguity that runs through the whole argument. To bring this out, consider the following. ‘According to the norms of my [imaginary] society, blue-eyed people have an obligation to act as slaves for the brown-eyed. It follows from this that, in my society, blue-eyed people have a social obligation to act as slaves for brown-eyed people.’ How would we respond to such an argument? We might say something like this: ‘Well, it depends what you mean by a social obligation. If what you mean is that a social obligation is just an obligation according to your society, then, sure, blue-eyed people have a social obligation to act as slaves in your society. I don’t think that they actually have that social obligation, though.’ How could that make sense? The answer, as we are seeing again and again in this chapter, is that the term ‘social obligation’ can be used in two contrasting ways. It could be used to mean an obligation according to a society or it could be used to mean an obligation of a certain kind. On this second usage, compare: ‘You have a duty to study hard and a duty to king and country. The first is a private, the second a social, obligation.’ On this view, neither obligation is said to be an obligation according to society or to anything; the second obligation is said to be social because of its scope; it is a duty owed to society, for the benefit of society or whatever.

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As we have seen, Shapiro distinguishes between the ‘perspectival’ and ‘adjectival’ uses of words such as ‘legal’.47 Consider again the response of our observer to the claims about the slave-owning society. ‘Yes, (i) blue-eyed people have a social obligation to act as slaves in your society, but (ii) I don’t think that they actually have that social obligation.’ In (i), ‘social’ is being used perspectivally. The speaker means that this obligation exists according to the society (that is, it exists from that perspective). But in (ii) ‘social’ is being used adjectivally. The speaker is saying that no such obligation of that type (or, assumedly, any type) actually exists. Accordingly, if ‘social obligation’ is interpreted adjectivally, then (1'') is false. Moreover, if ‘social obligation’ in (4'') is interpreted adjectivally, then it cannot be derived from the premises of the argument, however they are interpreted. (4'') follows from its premises only if ‘social obligation’ in (4'') is interpreted perspectivally. And what is crucial about this is that, so interpreted, this ‘social obligation’ is an ‘obligation’ that does not obligate. It does not give reasons for action. It is an obligationnd. A ‘social obligation’ in this sense exists only if a sufficient number of people believe that it does. But, as Coleman points out, that could not, in itself, give anyone a reason for action. The argument (1')–(4') is, of course, quite different. It is difficult to know the best way to explain this, but it is either because, when speaking of morality, the perspectival interpretation is not available or (I think best) because no distinction can be made between the adjectival and perspectival interpretations here. Thus, (1') is necessarily true and (4') necessarily follows from (1'). So, is law like morality or like the social in this respect? Obviously, a positivist wishes to say that it is like the social, very much like it. If so, then we must interpret ‘legal’ in ‘legal obligation’ perspectivally and not adjectivally – as Shapiro has insisted.48 If we interpret it adjectivally, then (1) is false and (4) cannot be derived from its premises. The perspectival interpretation is mandated, then. But, if that is so, then it follows that ‘legal obligation’ is an ‘obligation’ that does not obligate. It does not give reasons for action. It is an obligationnd. A ‘legal obligation’ in this sense exists if and only if the law says it does. But that could not, in itself, give anyone a reason for action. And what is this problem with this? It is totally inconsistent with the gunman argument. Again, this position is the equivalent of Reply 3 considered above. Recall the sequence. Austin maintains that law is the command of the sovereign attached to a sanction and the sanction gives the law its normativity. Hart replies that something essential is missing: that law carries deontic power; that

S Shapiro, Legality, 185. See also KM Ehrenberg, The Functions of Law, loc 127 (ch 1 n 7). 48 S Shapiro, Legality, 185. 47

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it creates duties, for example. The imaginary Austin replies that all is good, as, in his schema, ‘having a legal duty’ just means being faced with a sanction if you do not comply. The appropriate response is to say that this is not the kind of legal duty that the gunman argument established. But, then, nor is a legal duty as interpreted by Shapiro. This is just a duty according to the law, a duty that gives no reason for action. Thus, this theory only pretends to a normatively richer account of law than that provided by Austin. Shapiro’s detailed position is that ‘You have a legal obligation’ in fact means that ‘You have a moral obligation from the legal point of view.’ That might appear to improve things, as I take it that, for Shapiro, moral obligations are obligationsd. But, in fact, this move cannot help. Which of these is Shapiro’s position? (1)

When we say that a person has a legal obligation to do x, all this means is that the person has a moral obligation to do x according to the legal point of view. (2) When we say that a person has a legal obligation to do x, this means that the person has an obligation to do x (that is, has deontic reasons to do x, an obligationd) and the explanation for him having this obligation is that he has a moral obligation to do x according to the legal point of view. The apparent advantage of (1) is that, given its interpretation of legal obligation, there is no difficultly explaining the source of legal obligation. It is found simply in a particular point of view that all recognise as existing. But again this is an obligationnd and not an obligationd, thus it creates no deontic reasons for action in the subject of that obligation. It is, therefore, not consistent with the law’s normativity. The apparent advantage of (2), on the other hand, is that, by insisting that legal obligation is genuine, that is, that it is an obligationd, it can seem to do justice to the law’s deontic power. The problem is that (1) must be Shapiro’s position, as not only does he have no explanation for where the obligationd in (2) could come from, but he rules out the possible sources. The advantage of not properly distinguishing between (1) and (2), then, is that one can appear to account for legal obligation in a way that also accounts for, or is at least consistent with, the law’s deontic power. But this is all an illusion. The key thing to see about (1) is that nothing after the comma refers to the person who is the subject of the clause preceding the comma. In short, (i) A’s having a ‘legal obligation’ is said to mean that (ii) B thinks that A has a moral obligation. A is, of course, the subject of B’s thought, but A is not the subject of (ii). Thus, there is no sense in which, according to (1), anyone has any legal obligationsd. These are merely obligationsnd. If ‘my legal obligation’ is merely a belief that others have, then it is not something genuinely possessed by me. If I say that you have a moral obligation to do x, we do not say that this shows

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that you have an Allan-obligation to do x. We say only that I say that you have a moral obligation to do x. In fact, neither (1) nor (2) could explain the law’s deontic power, as both place the source of that power in something from which it could not arise: a point of view. Here, we collapse again toward classical positivism. We have a theory that can show only that law pretends to possess deontic power. It also entails that legal duties, rights, permissions, and so on do not really exist. If ‘A has a legal right to x’ means that, ‘according to the law, A has a moral right to x’, then it is just pretence to say that, in the way that we use the phrase, A has a legal right to x. For Shapiro too, then, no one has ever actually had a legal duty, right, permission, power, and so on. Now, of course, Shapiro would respond that this is not the case. As a legal duty is defined as a moral duty according to the law, then people do have legal duties. But we are playing with words again. This ‘duty’ (dutynd) is an obligationnd that does not obligated, as it gives the subject of the ‘duty’ no deontic reason to act. 2.3 Raz Raz sees the issue under examination here more clearly than anyone, at least since Kelsen. His position has altered over the years, but the key thing to see is that he has always asserted that there must be some connection between law and morality for the law to have the deontic power that it has. He once claimed that it was enough for legal officials to pretend that they had good moral reasons for their pronouncements.49 But that view will clearly not do. How could someone pretending something give someone else a deontic reason for action? In the end, Raz is as captured by this difficulty as is everyone else. He is busy trying to square the circle. So, for instance, we find him denying in the most emphatic terms that the law creates an obligation to obey it.50 If so, the law has no deontic power. Alternatively, we see Raz claiming that: legal discourse is moral discourse. Legal institutions take their activities to impose and enforce real, morally binding, rights and duties, and they refer to them in the usual normative language familiar from moral discourse. It does not follow that they are right to do so, that the legal standards they establish and enforce are morally binding. But it is not surprising that even those who believe that they are not morally binding use moral terminology in discussing the law. After all, they are dealing with powerful institutions which hold the standards to be legally binding. If they are to

J Raz, The Authority of Law, 28. Ibid, ch 12.

49 50

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deal with them they have no choice (exceptional cases apart) but to address them on the supposition that their standards are really binding (ie morally binding).51

This asserts a very strong connection between law and morality. It is one that may allow Raz to account for the law’s deontic power. Perhaps. But, as we will see in Chapter 16, it is not one that allows Raz to retain his positivism. Moreover, it is hard to see how even this position could account for the law’s deontic power unless it held that the law does create those powers, including, of course, obligations. If Hart was trying to balance on the edge of a razor blade, Raz has been well and truly split. 2.4

Kelsen (and Kant)

Kelsen’s position is built around the concept of an ‘ought’, where this term is used in a technical sense to include notions such as permissibility and impermissibility, authorisation and prohibition, and positive and negative obligation.52 In other words, ‘ought’ is a synonym for deontology. Central to Kelsen’s theory is the idea that oughts can be subjective or objective. An ought is subjective if it prescribes. To say that one ought (subjective) to do something is to say that one should do it.53 This is familiar. On the other hand, an ought is objective if it prescribes only relative to a particular set of criteria. Hence, one who uses ‘ought’ objectively does not necessarily intend to prescribe and to say that one ought (objective) to do something is not to say that one should do it. An example should help to clarify this. Take the following utterance. ‘In Nazi Germany, one was supposed to inform (that is, ought to have informed) on one’s neighbours if one suspected them of harbouring Jews. The people who lived in this house harboured Jews during the war. Their neighbours were aware of this. Thankfully, they did what they ought to have done and kept quiet.’ How can this make sense? The answer, of course, is that ought and its cognates are being used in two different ways. First it is used to describe an implication of the moral beliefs of a particular group, moral beliefs not shared by the speaker. Next it is used by the speaker to prescribe. It is used first objectively and then subjectively. Kelsen maintains that both subjective and objective oughts can be categorical. With respect to the latter, Kelsen intends that objective oughts can 51 J Raz, Between Authority and Interpretation, 4–5. See also ibid, 111–13, 181, 190–1, 196, 234, 278. For a similar view, fraught with the same difficulties, see J Gardner, ‘Nearly Natural Law’. 52 H Kelsen, Pure Theory of Law, 3–23. 53 Because he is a cultural relativist regarding morality, Kelsen does not present his position in quite this way. See ibid, 20.

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be categorical relative to the relevant criteria. In the example above, relative to the social mores of the Nazi era, the neighbours categorically should have informed.54 In the following, we are interested only in categorical oughts. According to Kelsen, the claim that a command is legally valid means that it ought to be applied and obeyed.55 For instance, ‘The behavior commanded by a social order is that which an individual is obligated to adopt: An individual has the obligation (or duty) to behave in a certain way, if this behavior is commanded by the social order.’56 Hence, Kelsen too holds that law is essentially deontic. Thus, the commands of a robber band or gunman are not legally valid, inter alia, because it is not the case that they ought to be applied and obeyed. On the other hand, legislation passed in the appropriate way in, say, Australia is legally valid because it ought to be applied by judges and the police, obeyed by citizens, and so on, in that jurisdiction. In saying that a legally valid rule ought to be applied and obeyed, Kelsen does not intend that the rule necessarily ought to be acted on. A legal duty is an obligation, but that obligation may be in tension with other obligations, in particular with moral obligations. Moreover, as we will discuss in more detail below, legal obligations are objective. Therefore, they do not in themselves prescribe. It can, therefore, be appropriate to violate them. It should be noticed at this point that Kelsen’s theory accepts what I called the intuitive position enunciated above. It is, therefore, the only version of positivism that defends something worth defending. It accepts (i) that law carries deontic power, (ii) that this power is possessed by and operates over individuals, (iii) that these deontic powers are independent of other areas of normativity, (iv) that it is possible to have a legal obligation that conflicts in various ways with one’s moral obligations and (v) that when that happens, it can be right to disobey the law. Though there are many disadvantages, one advantage of Kelsen’s terminology is that it brings the problem of legal deontology to the fore. If law imposes an ought, then there must be an explanation for the existence of that ought – labelling the ought with the epithet ‘legal’ does nothing to change this. Moreover, as Kelsen also accepts the is/ought distinction,57 it follows that

54 In fact, the reality is far more complicated than this, but for the purposes of illustration I am proceeding as if the position advanced in, say, DJ Goldhagen, Hitler’s Willing Executioners were accurate, though I recognise that it is not. On this, see I Kershaw, The Nazi Dictatorship: Problems and Perspectives of Interpretation, 251–62. 55 H Kelsen, Pure Theory of Law, 10–15. 56 Ibid, 114 (emphasis added). 57 Ibid, 9, 193–4, 202–3.

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this ought cannot be derived from anything factual, including the law itself or social practices. Imagine a run of the mill statute: the Tax Act.58 This Act requires people to pay a certain level of income tax. Is that command legally valid? According to Kelsen, the answer to this question is in the affirmative only if the command ought to be applied and obeyed. Now, the command ought to be applied and obeyed only if there is a reason that it ought to be. Moreover, given the is/ ought distinction, that reason must itself be an ought rather than an is, a norm rather than a fact. Furthermore, given Kelsen’s positivism, the reason cannot be a moral ought or norm. It is perhaps natural to think that the reason could be another law: a constitution, for example.59 On this view, then, the reason the Income Tax Act must be applied and obeyed is because that is demanded by the constitution. But that will simply raise the question anew. Why ought the constitution be applied and obeyed? Hence, pointing to one law to explain the validity of another law leads to an infinite regress. Because of this, Kelsen maintains that the legal validity of any norm presupposes the existence of a fundamental or basic norm, the Grundnorm, that underlies the validity of all legally valid commands. In the absence of this norm, the commands of a system cannot be legally valid, because there would be no sufficient reason why they ought to be applied and obeyed. It is best not to think of the basic norm as anything definite. It is not a constitution or anything similar. It is perhaps best to think of it simply as the hypothetical but ultimate answer to the question ‘Why must x be applied and obeyed?’, where ‘x’ refers to any individual law or set of laws. Kelsen’s point is not that we must seek for this answer or that laws cannot be valid unless we have it. His point is rather that when we say that a command is legally valid, we necessarily presuppose that there is a sufficient reason why it ought to be applied and obeyed, and that reason, whatever it is, is the basic norm, or an aspect of the basic norm, of the relevant legal system. The existence of the basic norm is a presupposition that we must make if our talk about legal validity is to make sense.60

Cf ibid, 8. Here, I use the term ‘constitution’ in the standard legal sense, rather than in Kelsen’s particular sense. 60 For this reason, much English-speaking discussion of the basic norm is counterproductive. For instance, the suggestion that the idea of a basic norm of the legal system should be abandoned for the notion of a basic norm of society (T Honoré, Making Law Bind, 111) cannot make sense. If the (legal) basic norm is a transcendental presupposition of jurisprudence, then there is no abandoning it. Perhaps the most unfortunate error is to represent Kelsen as being in ‘pursuit’ of the basic norm (see eg R Wacks, 58 59

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Accepting this for the moment, it is tempting then to ask what it is that justifies the basic norm. That, however, is an inappropriate question. This is because the basic norm is basic in the sense that it does not require further justification. In this context, ‘basic’ just means not requiring a justification. The question, then, is: How can a norm be basic in this sense? One answer would be to argue that the basic norm must be accepted because morality requires it. And this raises a curious issue. So far, his technical distinctions aside, the entirety of Kelsen’s theory is merely the explication of a single paragraph from the beginning of a work of Kelsen’s great teacher: Kant’s Rechtslehre.61 Like the much cited query ‘what is truth?’ put to the logician, the question ‘what is legal?’ [Was is recht] might well embarrass the jurist if he does not want to lapse into tautology or, instead of giving a universal solution, refer to what the laws in some country at some time prescribe. He can indeed state what is laid down as law (quid sit iuris), that is, what the laws in a certain place and at a certain time say or have said. But whether what these laws prescribed is also legal, and what the universal criterion is by which one could recognise the legal [Recht] as well as the illegal [Unrecht] (iustum et iniustum), would remain hidden from him unless he leaves those empirical principles behind for a while and seeks the sources of such judgments in reason alone, so as to establish the basis for any possible giving of positive laws (although positive laws can serve as excellent guides to this). Like the wooden head in Phaedrus’ fable, a merely empirical doctrine of law [Eine bloß empirische Rechtslehre] is a head that may be beautiful but unfortunately has no brain.62

And as Kant further explains, he is here talking about ‘The concept of law [Recht], insofar as it is related to an obligation corresponding to it’.63 Kant’s position is that, in order properly to explain the law, you have to demonstrate how the law generates legal obligations. Kelsen’s robber band argument, that Hart (sort of) modified into his gunman argument, was meant merely as illustration of Kant’s point. Moreover, Kant did not claim to have discovered the point. On the contrary, he thought it so obvious that he took Understanding Jurispridence, 94). A transcendental presupposition is presupposed even if it is not pursued, and Kelsen’s point is that it must be presupposed, not that it should be pursued. In short, the issue is not what the basic norm is, but whether it must be, that is, whether it must exist. 61 Of course, I do not mean that Kant literally taught Kelsen. But Kant’s influence on Kelsen is widely acknowledged, not least by Kelsen himself. 62 I Kant, ‘The Metaphysics of Morals’, 6:229–30. This is my own translation. Unusually, I translate ‘Recht’ and its cognates as ‘law’ and similar. I cannot here explain my reasons for doing so. But the main reason is simply that ‘Recht’ can mean law and Kant’s writings make sense when one so translates him, while he makes no sense on the standard translations. 63 Ibid, 6:230.

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only one single paragraph to make it. For him, of course, it was a point made frequently in the tradition in which it was operating – a natural law tradition, we should note. It is distressing to observe how much we have unlearnt since Kant wrote. In any case, Kant insists that no amount of pointing to the positive law could demonstrate the source of legal obligation. Instead, he maintains – though he does not use this terminology – it is necessary to assume that there is a norm, a basic norm, underlying the legal system from which its authority derives. Unlike Kelsen, Kant searches for this norm and finds it. He calls it the Universal Principle of Law [Allgemeines Princip des Rechts].64 It is a moral principle. It is the Categorical Imperative as it applies to the realm of law. That, of course, did not appeal to the positivist Kelsen. To try to avoid having to take this route, he maintained that the basic norm is objective and not subjective. Thus, the basic norm does not prescribe. Accordingly, to say that a command is legally valid is to say that it ought to be applied and obeyed only relative to the basic norm. In this way, Kelsen aimed to preserve his positivism. But Kelsen’s solution will not do. Certainly, the position he settled on is positivistic, but it robs the basic norm of any possibility of being basic. Simply, no objective norm could be basic. The claim at the heart of Kelsen’s theory is incoherent. Recall that one of the points of the basic norm is to prevent an infinite regress of explanation/justification. This means that there must be some reason why the basic norm must be accepted. But it is in the nature of objective oughts that they cannot, in themselves, provide such reasons. Because objective oughts prescribe only relative to certain criteria that do not themselves need to be accepted, they can never be basic in the sense Kelsen needs. Recall the argument. A duty-imposing rule is legally valid if it ought to be applied and obeyed. That ought can exist only if it receives sufficient justification. That justification can be the ought found in another law, but that second ought will in turn need justification. Hence, the existence of a basic norm is a transcendental presupposition of jurisprudence. But the transcendental presupposition must be that there is a norm that must be accepted, and by definition no objective norm must be accepted. A norm that is not prescribed is optional. Another way of making this general point, though an inverted way, is to reveal the tension between Kelsen’s positivism and his postulation of the character of the basic norm. As we have seen, his strategy is to maintain that the basic norm is objective. This enables him to say that the basic norm does not prescribe. Accordingly, to say that a command is legally valid is to say that it Ibid.

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ought to be applied and obeyed only relative to the basic norm. In saying this, no stand need be taken on the moral status of the basic norm or on the moral status of the specific command in question. Hence, no stand need be taken on whether the command actually ought to be applied and obeyed. In this way, Kelsen attempts to preserve his positivism. This is ingenious and it results in a significantly more sophisticated position than that of most of his positivist rivals, but it cannot succeed. Ultimately, this is because it relies on confusing objective and subjective oughts on the one hand and what we might call overridden and conclusive oughts on the other. Recall that, for Kelsen, a command is legally valid only if it ought to be applied and obeyed. This does not mean that the command conclusively ought to be applied and obeyed. It can be appropriate to disobey the law when it conflicts with morality, for instance. The claim is merely that an order is valid only if there is an extant reason why it ought to be applied and obeyed. The law must provide the individuals addressed by it with a reason to apply and obey that law, though that reason may be overridden by other concerns. But if the basic norm is objective, then the norms that it underlies will be objective also. And objective norms do not themselves give people any reasons at all. This is, of course, precisely because they do not prescribe. (And note that we are back with the El Grupo problem.) Hence, we can see that Kelsen cannot reconcile his positivism with his recognition of the law’s deontic power. If the basic norm were objective, it could not be a norm of a kind needed to underlie the normativity of the law. The mistake Kelsen is making can be seen in the following passage. If a judgment that a behavior is ‘good’ means that the behavior conforms with an objectively valid norm […] then the values ‘good’ and ‘bad’ exist for the individuals whose behavior is being judged, that is, for all individuals whose behavior is regulated by the objectively valid norm regardless of whether these individuals themselves wish this behavior or not.65

But this does not follow. It would follow only if an objectively valid norm is a norm that must be accepted by those to whom it is addressed. But that idea has no place in Kelsen’s theory. Here we see Kelsen making what I suspect is a common mistake. Consider the following two claims: (1) Relative to conditions c, you ought to do x. (2) You ought to do x.

H Kelsen, Pure Theory of Law, 20.

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When we are speaking of conclusive oughts, it is clear that (1) does not imply (2). That, relative to the social mores of Nazi Germany, the neighbours conclusively ought to have informed does not show that they ought to have informed. However, it is much more tempting to think that, when speaking of merely extant oughts (that is, oughts that might be overridden), (1) does imply (2). So, we might say that, because the citizens had an obligation to inform on their neighbours relative to the social mores of Nazi Germany, they had a reason to inform, even though that was overridden by moral concerns. But this is not right. On its own, the fact that, relative to the social mores of Nazi Germany, the neighbours had an obligation to inform on their neighbours gave them no reason whatsoever to inform. It is only when additional concerns are added that a reason appears, such as social pressure, threats of sanctions, and so on.66 The presence of the objective ought itself gives no reason for action at all. That I have a reason to persecute Jews relative to Nazi racial theory in itself gives me no reason whatsoever to persecute Jews. In that context, few will be inclined to make this error. But things are different when we return to law. There, it is not unusual to think that one has a reason to act relative to the law if one has a reason to act from the legal point of view, and if the law insists that one has a legal obligation to act then it follows that one has an extant (though perhaps overridden) reason to act. But this does not follow. In this light, we can see that Kelsen’s argument relies on an equivocation between oughts that are objective and conclusive on the one hand and oughts that are subjective and overridden on the other. Really, all this is to say that, if the basic norm is objective, it can generate only obligationsnd and not obligationsd. An objective ought does not give reasons for action, it gives only reasons for action relative to that ought (which the subject of the ought need not accept). Now, it could well be argued that leaving the discussion at this point is unfair to Kelsen, because it has failed to take Kelsen’s general relativism into account. For Kelsen, moral norms too are true only relativistically. Relativism (at least as the terms are used here) is cognitivist (as opposed to Hart’s non-cognitivism). No doubt, Kelsen would wish to argue that the creation of deontic power is consistent with relativism, and one cannot rule out the possibility that an argument to this effect will show that the relativism of legal values can function accordingly as well. It is not possible to go into this here, however, as this would require a foray into moral (and other) philosophy for which there is now insufficient space. It must suffice for now to say that, for

Note that we are now ignoring the deontic power of human institutions, as Kelsen cannot contemplate these, given that they are inconsistent with the supposed is/ought distinction. 66

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what it is worth, not only do I reject relativism, but it is also no longer a popular position in philosophy (though it certainly has its adherents). In any case, if this argument showed only that positivism is possible only if relativism is correct, then I think it fair to say that it will still have shown much. 2.5 Summary If we abstract from the history of this subject, it ought to become clear that positivism was always going to face the problem of legal deontology. Think of it this way. We can conceptualise modern positivism as a kind of equation: (a) Law exists as a social fact + (b) law is not essentially connected to morality + (c) _______ = (d) law is a system of deontic power We are trying to fill in the blank. What needs to be added to (a) the sources thesis and (b) the separation thesis to get to the conclusion (d) that law is a system of deontic power? Presented in this way, it is plain that this is going to be a very difficult question to answer if we accept the is/ought distinction. This is because, given this assumption, (a) and (b) rule out any possible response to the lacuna (c). This is why we find positivists from Kelsen onwards playing around with (d). It is also important to see – to anticipate what is to follow – that this is itself yet more reason to reject the is/ought distinction, because it is also true that law creates deontic power regardless of its connection with morality (at least as positivists have understood that notion). If this were not the case, then legal positivism would never have got off the ground. Basically, the reason why we keep reading these theories as showing that law has deontic power, even when it must on reflection be clear that the theories do not show this, even when the theories on reflection explicitly deny this, is that the law does in fact have this power. Kelsen and Hart were absolutely right to object to classical positivism in the way examined in this chapter. Their contribution was certainly vital. But it is a contribution that we ought to have learnt from and then moved on. What was shown, in fact, was that positivism (here classical positivism) had introduced into the philosophy of law a mistake. As fate had it, it fell to two positivists to point this out. But, as we have seen, we are still trapped with the same mistake. In consequence, Hart’s argument is still considered by many to be a cornerstone in the study of the philosophy of law. But we need to realise that Hart was shot by his own gunman argument and that the genuinely philosophical question here is not now whether the law carries deontic power – it does, and the only people to put this in doubt are positivists – but how it manages to do so. I do not believe that positivism has made a useful contribution to answering this question. That is because, given positivism’s commitments, it can’t.

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I have said that this is the central problem of modern positivism. One piece of evidence for this is that it keeps arising in different contexts. One somewhat amusing example of this can be found in a recent edited collection dealing with legal normativity.67 This collection is divided into a number of parts, the first two of which are important here. The first deals with Shapiro’s theory, based on Michael Bratman’s theory of planning agency,68 that law can usefully be understood as a planning system.69 Shapiro intends his theory to show how law can be normative. His claim, unsurprisingly, is that law is normative in roughly the way that plans are. However, as Bratman himself has pointed out (to use language that Bratman does not use), law issues what are, in Kantian terms, categorical imperatives, whereas the appeal to planning agency can show only how law can issue hypothetical imperatives. In other words, Shapiro’s theory cannot explain the kind of normativity that the law has.70 Moreover, agreeing with Bratman, in separate pieces, Veronica Rodriguez-Blanco and Katrien Schaubroeck also point out that a theory based on planning agency can be normative in the necessary way only if the fundamental principles upon which the planning is based are connected to morality.71 Part II of the collection examines Andrei Marmor’s account of the rule of recognition. Marmor argues, inter alia, that seeing the rule of recognition as a set of constitutive conventions can reveal the source of the law’s normativity.72 Marco Goldoni, however, replies that no merely conventional account of the law could explain the law’s normativity.73 Agreeing with that, Dimitrios Kyritsis further argues that a conventional account of the law can explain its normativity only if legal conventions are sufficiently connected to morality.74 All of these theories are interesting and important, but it is just as important to see that, though more modern moves have been introduced, this is fundamentally the same dance as that danced by Hart and Kelsen.

S Bertea and G Pavlakos (eds), New Essays on the Normativity of Law. Eg M Bratman, Faces of Intention; M Bratman, Intention, Plans and Practical Reason; M Bratman, Structures of Agency. 69 S Shapiro, ‘Planning Agency and the Law’; S Shapiro, Legality. 70 M Bratman, ‘Reflections on Law, Normativity and Plans’. 71 V Rodriguez-Blanco, ‘The Moral Puzzle of Legal Authority’; K Schaubroeck, ‘Legal Normativity and the Instrumental Principle’. 72 A Marmor, ‘The Conventional Foundations of Law’; A Marmor, Social Conventions. 73 M Goldoni, ‘Multilayered Legal Conventionalism and the Normativity of Law’. 74 D Kyritsis, ‘The Normativity of the Practice of Officials’. 67 68

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The song that has been played since Kelsen’s robber band was released, the hit that made Hart a household name when he gave it his gangster cover, must end. Modern legal positivism has failed. The middle way is a myth.75

3. INSTITUTIONS The law carries deontic power. This was a very significant rediscovery by Kelsen and Hart, though it is important not to overstate its scope. This was not a discovery of anything unique to law. As we have seen, every human institution carries a deontology and law cannot be any different in this regard – though, of course, the character of its deontology will be different from that of other institutions. Given that I have said that the problem of legal deontology is the central problem for modern positivism, it is remarkable that it can be solved quite easily. In fact, it was already solved in the fourth and seventh chapters of this book, but it was solved in a way that ought significantly to alter jurisprudence (which, incidentally, is one of the reasons why I do not regard what follows as a defence of positivism. This will become clearer in the following chapters also.). Positivism insists that there is no essential connection between law and morality. It also maintains that law is essentially normative. Modern versions of positivism insist that law carries deontic power. Because of this, positivists owe us an explanation of the source of this power. Their commitment to the is/ought distinction, however, robs them of the ability to do this. If law is essentially normative but that normativity is not moral (natural law theory) or prudential (classical positivism) and it cannot arise from facts, then there is nowhere from which it can arise. The solution, of course, is to give up on the is/ought distinction. As we saw in Chapter 7, it is in the nature of human institutions that they carry deontic power. That is why we create them. The power is essential to the good (and the bad) that they achieve. The law has deontic power, then, because it is a human institution and because that power has been created through the collective recognition of status function declarations. Raz tells us that the rule of recognition is a fact. It is ‘the fact that enables us to separate legal from moral facts’.76 Because of this, Raz says, the rule cannot

See also D Beyleveld and R Brownsword, ‘Normative Positivism: The Mirage of the Middle Way’. 76 J Raz, Between Authority and Interpretation, 334. Hart also maintains that the rule is a fact, at least from one perspective. HLA Hart, The Concept of Law, 110­–11, 121. See also J Finnis, ‘On Hart’s Ways: Law as Reason and as Fact’, 44–5. 75

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give reasons for action.77 But the rule of recognition is not a fact in this sense. It is an institutional fact, a status function. It is in its nature that it, and all the rules of law, give deontic reasons for action.78 Particularly, those sympathetic to natural law theory are unlikely to be satisfied with this position. They might say: ‘That there is collective recognition of an institution does not show that the purported obligations that come with that institution actually exist.’ There is much truth in this response, and this truth is the subject of many of the remaining chapters in this book, but the reply is not pertinent at this point. It will help to demonstrate this by examining John Finnis’ presentation of this argument. In connection specifically with the rule of recognition, Finnis says: Like any other fact about what happens or is or has been done, practice, whether idiosyncratic, widespread or universal, provides by itself no reason for its own continuation. From such an Is no Ought (or other gerundive-optative) can be inferred without the aid of another Ought or gerundive-optative Is-to-be-pursued-or-done. The fact that it is raining is in itself no reason to carry an umbrella, no reason at all, even in conjunction with the fact that without an umbrella I’ll get wet. But facts like these can play their part in the reason, the warranted conclusion (that I should [had better] carry an umbrella) which gets its directive or normative element from some practical, evaluative premise such as: it’s bad for one’s health to get wet, or: it’s bad for one’s ability to think and function to get uncomfortably wet and cold. By virtue only of that or some similar truth (as one supposes) about good and bad, the plain fact that an umbrella can prevent these evils by keeping me dry can contribute to the normative conclusion that I have reason to, or ought to, carry an umbrella. Though David Hume himself thoroughly misunderstood and frequently ignored or violated it, the inaptly named ‘Hume’s Law’ remains valid and indispensable for an understanding of reason and normativity, ethical or otherwise.79

The first thing to be said about this passage is that the discussion of the umbrella is irrelevant. It is nevertheless revealing that theorists appeal to such considerations in this context. Of course, the fact that it is raining alone gives no reason to carry an umbrella, but we hardly needed Hume (or Aquinas, or whoever) to tell us that. When it rains particularly heavily, my children all rush outside and on to the trampoline in order to enjoy being out in it. Naturally, whether rain is a reason for carrying an umbrella depends on one’s desires. 77 J Raz, Between Authority and Interpretation, 5–6, 111–13, 181, 190–1, 196, 234, 278. 78 For views that equate law with facts or similar (in this case, natural kinds), see also eg ibid, 23 n 7; S Shapiro, Legality, 8–9. For a rejection of these views, see also B Bix, ‘Conceptual Questions and Jurisprudence’, 468; R Dworkin, ‘Hart and the Concepts of Law’, 1; BZ Tamanaha, A Realistic Theory of Law, 58; B Leiter, ‘Legal Positivism about the Artifact Law: A Retrospective Assessment’, 8. 79 J Finnis, ‘On Hart’s Ways: Law as Reason and as Fact’, 44–5.

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In Chapter 4, we saw that the is/ought distinction gains plausibility from the notion that there are no values in the natural world. This is the argument that Finnis presents. Rain is a fact about the natural world. Finnis rightly points out that we cannot derive a value from that fact alone. But the topic being discussed in the passage quoted above, the topic that the discussion of rain and umbrellas is meant to illuminate, is not concerned with natural facts but with institutions. Specifically, it is the rule of recognition, a social practice, as Finnis rightly identifies. Finnis’ claim is that the existence of a practice provides no reason for its continuation. What we need to see is that this claim is not just wrong but incoherent. The wrong way to think about this is to ask whether a practice can create a deontology. This is in effect the question Finnis asks himself and, not seeing how this could be possible, he answers in the negative. The problem with this way of thinking is that it neglects the fact that a practice is partly constituted by a deontology. Thus, a practice that provides no reason for its continuation is a contradiction in terms. We might say that a practice is a reason for its continuation. (It is important to remember here that we are not speaking of mere regularities in behaviour. A practice is constituted by rules.) To stress this point: it is wrong to think of all the deontic power associated with an institution as the product of that institution. Rather, deontic power is constitutive of the institution. One cannot accept the institution of chess, for example, without accepting the rules of the game. The rules constitute the game. Similarly, one cannot accept the game of rugby union without accepting the power that goes with it, such as that referees get to determine whether tries have been scored. One does not need to accept everything. One could be entirely hostile to the scrum laws or the en passant rule, for instance. But a person who rejects the deontology entirely thereby rejects the institution entirely. Imagine that we are playing chess and you move your queen by jumping over another piece in the way that a knight moves. I say ‘You can’t do that. Only the knight can jump.’ You reply, ‘But that is just a practice. The existence of a practice gives no reason for continuing that practice. I think that we should allow the queen to jump.’ I would ask the reader seriously to imagine being in this position and being faced with a reply of this kind. I submit that you would be quite astonished and perhaps would not know what to say. You would find the situation to be utterly bizarre. One thing I would not at all be inclined to do in these circumstances is to respond in the way that most legal philosophers would suggest. I would not, for instance, point to ‘external’, value-based arguments such as ‘But it was chess that we agreed to play and I was entitled to assume that we would be playing under the standard rules and, given that, you are being unfair.’ That would strike me as an entirely anaemic response. It would be very unnatural. I am

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much more likely to reply along the lines of – and I say this advisedly – ‘You must be totally nuts. Play by the rules or piss off.’ The natural conclusion that I would come to in this circumstance, that is, is that you are being deliberately obtuse – or, to be frank, that you are being a jerk. Alternatively, if you keep pressing this line of thought and seem to be doing so sincerely, I am likely to conclude that you have a condition which leads you to lack a basic understanding of how human beings relate to each other. Of course, I am not attributing any of this to Finnis or to others who have advanced such arguments. Nor am I trying to belittle anyone. I am stating things as plainly as I can. These would be my responses and, I am sure, the responses of the vast majority of people. In normal circumstances, we take the existence of a practice as a completely obvious reason for its continuation. This is not to deny that there are genuine moral issues here – certainly, the existence of a practice is per se no moral reason for its continuation – but the key point is that, despite the claim that the existence of a practice provides no reasons for its continuation, our actual practice regarding practices is entirely to the contrary. In this context, consider also how children learn to play games such as chess. If they want to play, then they learn the rules and learn to orient their behaviour accordingly. It would be a very strange child who said ‘Yes, these are the rules that other people play by, but that does not give us any reason to accept them.’ Moreover, if one’s child said that, that would give one grounds for concern. If she did this constantly, we might even worry that she was showing psychopathic tendencies, as her behaviour reveals her to be so unable to understand how to get along with others. That she certainly will not be able to do. One can only imagine the massive levels of frustration faced by her peers – until she no longer had any. Human society is comprehensible only on the basis that we do take the existence of a practice as a powerful reason for its continuation. The crucial points are nicely brought out by Neil MacCormick’s well-known discussion of queuing. MacCormick writes: Turn-taking or queuing is […] normative. For where there is a queue for something you want, you ought to take your turn in it, and people who do take their turn do so because in their opinion that is what one ought to do – that is, ought to do in the given context.80

This is almost right. MacCormick’s formulation suggests that the following is possible. A person (i) sees a line of people, (ii) infers that it is a queue and then (iii) concludes that she ought to join the queue at the rear (or at least that she has a reason to do so under normal circumstances, and so on). The point that needs to be made here is that (ii) and (iii) are not in this way separable. To N MacCormick, Institutions of Law, 15.

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recognise a line of people as a queue is to see the individuals as belonging to something that one ought to join at the rear. A queue is a social institution constituted by its deontology. A person from a culture that did not know queuing could not see that there was a queue; he could see only a collection of people set out in a certain pattern.81 The question ‘How does law carry a deontology?’ is of the same order (though the details are different) to the questions ‘Why do players leave the field when they are yellow carded in rugby union?’, ‘Why do chess players move their pieces in the same way all the time?’, ‘Why do the grades given to university students by their professors determine their results?’, ‘Why is it appropriate to frown at a person who turns up to a cocktail party wearing a ripped T-shirt and faded jeans?’, and so on. And notice that these questions call in part for empirical investigation. It is also important not to underestimate the significance and power of this deontology. David Enoch, for instance, accepts that law can create reasons for action that did not before exist, but argues that when it does this these reasons are very weak because they can exist only in the context of a practice.82 As Ehrenberg explains, ‘This is akin to the idea that the rules of a game are only reasons for those already committed to playing the game’83 – a view also advanced by Shapiro.84 This is correct, but the conclusion that the reasons are practically weak is massively to overestimate the ability to escape the relevant ‘game’. The game is society and, as Peter Fitzpatrick in particular has argued, society is partly legally constructed.85 Even thieves, after all, can understand themselves as thieves, and their activities as thieving, only if they recognise the social institution of private property.86 We must also clearly distinguish between the question ‘Do I have an obligation to do it?’ and the question ‘Should I do it?’ To put this another way, I can have an obligation to do something that I should not do. As usual, it is useful to demystify this by taking it out of the legal context so that we can see that the point here is entirely ordinary and not some deep revelation about the nature of law. If a referee yellow-cards a player in a game of rugby union, then the player has an obligation to leave the field. That obligation is a consequence

Cf ibid, 1, 31, where MacCormick’s position is at least closer to the one I advance here. 82 D Enoch, ‘Reason-Giving and the Law’, 18. 83 KM Ehrenberg, The Functions of Law, loc 3997 (7.A). 84 S Shapiro, Legality, 184. 85 P Fitzpatrick, ‘Being Social in Socio-Legal Studies’, 106. See also N MacCormick, Institutions of Law, 33. 86 Incidentally, this minimising of what is surely one of the most significant and powerful features of law by positivists is genuinely arresting. 81

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of the deontology that constitutes rugby union. But, of course, there may be a reason why the player should nevertheless not leave. Perhaps, for instance, his mother is being held hostage by an international syndicate of rugby union terrorists (suspected to be French) who have sworn that they will kill her if the player leaves the playing area. In this case, he should violate his obligation to leave the field. A person attending a cocktail party should dress up, but if not doing so in a particular context would indicate support for some just political cause, then perhaps this is an obligation that one would be justified in ignoring. It is to be noted again that the attempt to show that the officials are central to the legal system is mistaken. No doubt the officials have an important role, no doubt that role is relevant to the philosophy of law and no doubt Hart has done a great deal to elucidate it and its significance. But everything falls back on collective recognition. The officials in El Grupo can take the internal point of view till the cows come home, but that does not count for one damn. Nor would the antics of that strange group in Wellington spoken of in Chapter 2, were their deontic power not collectively recognised here. Finally, note that, on the view here advanced, the intuitive picture of the law enunciated earlier in this chapter is correct. This is very welcome, because that view surely is correct. In fact, one might say that the role of the philosophy of law is to show how it is correct and not argue about whether parts of it are true or false. ‘If a tree falls down in the woods and no one is there to hear it, does it make a noise?’ is a famous, or infamous, philosophical question. At least today, though, if the question continues to have real philosophical relevance, it is to make us ponder, not whether noise is made, but what it is that justifies our certainty that it is made. In the philosophy of law, however, we are unfortunately still fixated on the existence of the sound.

12. Procedure In his book The Morality of Law, Lon Fuller conducts a famous thought experiment. He imagines an absolute ruler, who he calls Rex, making law. Rex has good intentions, but he makes eight kinds of mistakes. He: (1) (2) (3) (4) (5) (6) (7) (8)

fails to issue general rules; issues contradictory rules; fails to publicise rules (at least to affected parties); enacts rules that apply retrospectively; fails to make rules understandable; issues rules requiring what cannot be done; changes the rules too frequently for action to be oriented to them; and fails to administer and enforce the rules as announced.

We need to examine the nature of these mistakes in some detail, but it is first important to make sure that we avoid heading down a frequently patronised dead end. It is common, for instance, especially for those influenced by Hart’s philosophy, to approach this matter as one about the definition of a legal system. On this view, the question is whether (1)–(8), together or apart, are inconsistent with the existence of a legal system.1 It must be admitted that Fuller encourages this reading, and this may indeed represent his view2 – Fuller himself was very influenced by Hart, of course – but this is not the most helpful way to approach the relevant issues. The best way is just to take Fuller’s thought experiment and see where it leads us. Fuller says, obviously enough, that the mistakes lead to eight rules for avoiding the mistakes. (1') (2') (3') (4') (5') (6')

Eg JE Penner and E Melissaris, McCoubrey & White’s Textbook on Jurisprudence,



LL Fuller, The Morality of Law, 122–3.

1

30.

Make general rules. Do not issue contradictory rules. Publicise rules. Do not enact rules that apply retrospectively. Make rules that are understandable. Issue rules that can be obeyed.

2

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(7') Do not change rules too frequently. (8') Enforce and administer the rules as announced. Fuller maintains that these rules constitute the ‘inner morality’ of the law. They are moral, procedural constraints on the construction and enforcement of law. Though Fuller accepts that these constraints do not guarantee that the content of law will be moral, he insists that this nevertheless demonstrates that there is an essential connection between morality and law. Positivists have responded to these claims in various ways. One way is to attack the rules themselves.3 No doubt, there are many questions one can ask about the rules. As Fuller himself accepts, for instance, sometimes retroactive legislation is acceptable.4 Though all of this is interesting and reveals matters of importance, all of it is a distraction in this context. We can surely accept the general soundness of these rules, even if there will be important exceptions, clarifications, and so on. It is important to put this aside because the fact is that Fuller has fastened on to a matter of great importance. Rex’s laws are, among other things, directives. (Recall that the argument of Chapter 9 did not deny that law can be and often is directive. It held that interpreting even duty-imposing legal rules as directive could provide only a partial analysis of them. The argument of Chapter 9, then, provides no objection to Fuller’s thesis.) The important point is that each of Rex’s mistakes is inconsistent with a precondition of a directive speech act. Because of this, Rex’s laws are defective speech acts. Furthermore, because of this, their deontology is defective also. It is worth spending the time to go through all of Rex’s mistakes in order to show this, though we will not do so in the order in which Fuller presents them.5 Let us start with mistake (2). Take the following utterance. (a)

‘I order you to do the dishes and not to do the dishes.’

That is a defective order. The fact that the hearer cannot obey shows that the utterance does not succeed as an order. Recall that a directive has the world-to-word ↑ direction of fit. The aim of a directive is to get the world to change to fit the propositional content of the directive. The problem here is



3

30.

Eg JE Penner and E Melissaris, McCoubrey & White’s Textbook on Jurisprudence,

LL Fuller, The Morality of Law, 51–62. For similar views, see R Alexy, ‘On the Concept and the Nature of Law’; R Alexy, The Argument from Injustice; R Alexy, ‘The Dual Nature of Law’; MC Murphy, Natural Law in Jurisprudence and Politics, 37–56; MC Murphy, ‘The Explanatory Role of the Weak Natural Law Thesis’, though these theses involve metaphysical commitments that are not supported here. 4 5

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that (a) has no propositional content, as it contains a contradiction. This is crucial, because a precondition for a directive is that the hearer can do the thing directed. But in this case, there is no thing directed. Hence, the utterance fails as an order. For this reason, even if we assume that the speaker has authority, the utterance carries no deontic power. Let us now imagine two utterances: (b) ‘I order you to do the dishes.’ (c) ‘I order you not to do the dishes.’ Taken on their own, each directive is of course successful (in ordinary circumstances). But together, they cannot be. Taken together, (b) and (c) are inconsistent with a precondition of a directive. And the problem, of course, is that, as laws, (b) and (c) are meant both to apply at the same time. And this makes the combination of (b) and (c) collapse in the way that (a) collapses. The speech acts (b) and (c) taken together are defective. The deontology of (b) and (c) is likewise. Let us turn now to mistakes (4), (5) and (6). Consider the utterances: (d) ‘I order you to have done the dishes yesterday.’ (e) ‘I order you to appropriate the feculence from the porringers reposing on the settle by means of the world’s tears and the bottle’s lather.’ (Of course, this example is not perfect because you may understand it in this context, but the point is that one would not normally understand it.) (f) ‘I order you to do the dishes utilising only the power, not to be underestimated, of the dark side of the force.’ Again, these fail as directives because they fail a precondition for all directives. The hearer cannot obey. The point is essentially the same for mistakes (1), (3), (7) and (8), though extra details have to be added. In each case the hearer cannot obey. Let us go back to utterance (b) and imagine the following scenarios. (1) Rex issues one directive for each person in society; (b) is directed at citizen Zed, but Zed has no practical way of telling that (b) rather than some other utterance is directed at her. Thus, she cannot obey (b) and (b) is a defective directive. (3) Rex makes utterance (b) to his rubber duck while taking a bath. Zed has no way of knowing that Rex uttered (b). Same problem. (7) Rex utters (b), but over the past six months Rex has gone around the place apparently randomly uttering (b) followed some time later by (c) (where each utterance is meant to overrule the one before), then (b) again, then (c) again, and so on and on. (b) is the last thing that Rex uttered, but Zed has no reliable way of knowing this. Same problem again. (8) Rex says (b) but actually

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enforces (c). Zed has no way of knowing that she is meant to obey (c). You guessed it: same problem. Note, then, that it does not matter that there may be circumstances in which (1)–(8) are unproblematic. That is an interesting but, in this context, irrelevant detail. The point is that Fuller has identified genuine problems with such law making. As always, though, note that there is nothing peculiar to law about any of this. The problem is not a legal one at all. It is a problem common to all similarly constructed directives. The basic point here was also seen in Chapter 6: conversations are cooperative enterprises, and this is true even when the conversation involves the issuing of an order. Recall that Fuller believes that this argument shows that law possesses an ‘inner morality’, that there is an essential connection between law and morality. In his famous debate with Fuller, Hart denied this. Hart maintained that Fuller could not establish that rules (1)–(8) were moral rules. Rather, Hart insisted, they are rules required for a successful, effective legal system. He illustrated this point by reference to poisoning. Poisoning, like law making, is an activity with a purpose. There will, therefore, be rules about effective poisoning. But nobody, Hart says, would speak of these rules as constituting an inner morality of poisoning.6 Hart reinforced this argument by maintaining that rules (1)–(8) are ‘compatible with very great iniquity’.7 It is a mark of Hart’s influence on this subject that a significant majority of jurisprudents appear to have accepted these arguments. We will examine why below. For now, it is enough to see that they influenced even Fuller himself, who replied by arguing that (1)–(8) are not compatible with great injustice.8 I am not denying that this argument is worth pursuing. The problem is that it is not the best way to reply to Hart’s attack. Similarly, Nigel Simmonds maintains that a good way to assess the merits of Fuller’s position is to ask ‘if a wicked regime would have good reason to follow the eight requirements’.9 Simmonds’ work can be recommended unreservedly to anyone interested in the philosophy of law, but these are not the best questions with which to begin. The fact is that, despite Hart’s protests, it cannot seriously be denied that mistakes (1)–(8) are moral mistakes. The way to see this is simply to imagine that you find yourself punished for violating the utterances listed above and ask what your response would be. Imagine, for instance, that you were sentenced to imprisonment for violating the directive ‘I order you to have done the dishes yesterday.’ Hart would have us believe that the problem here is only

8 9 6 7

HLA Hart, Essays in Jurisprudence and Philosophy, ch 16. HLA Hart, The Concept of Law, 207. LL Fuller, The Morality of Law, ch 4. NE Simmonds, Central Issues in Jurisprudence, 260.

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one of efficiency. His suggestion is that it is very inefficient for Rex to rule like this.10 And so it is. But who would complain in these situations of being treated inefficiently? In fact, far from constituting a reply to Fuller, Hart’s argument reveals its strength.11 Fuller shows that constraints on law making exist if the law is to be effective and that these constraints have moral content. When a person is met with sanctions as a result of violating a rule that itself violates one of rules (1)–(8) (recognising that a completed account of these rules will clarify their precise content), she is being punished for failing to obey a directive that was defective. This is inefficient, but it is most importantly unfair. It is a mark of how obsessed jurisprudence has become with the wrong questions that this obvious point has been buried. Rules (1)–(8) are plainly moral rules because immorality results from the failure to observe them (or, at least, that it characteristically does so or does so ceteris paribus. There may, of course, be circumstances in which violating (1)–(8) may be morally permissible or even necessary.). All other arguments raised against Fuller in this context are red herrings. Thus, Hart might be right to say that rules (1)–(8) are compatible with great injustice, but so what? They are still moral rules. No one thinks the fact that ‘Do not kill human beings unnecessarily’ is compatible with great injustice means that it is not a moral rule. Part of the problem here is the result of Hart’s fixation on a certain form of natural law theory, a theory according to which law with immoral content cannot exist.12 Though some have advanced such a view,13 this claim is not part of the natural law tradition.14 Nevertheless, Hart appears unwilling to accept that Fuller’s claims are genuinely relevant to the debate because his rules do not guarantee law with moral content. But law can have an essential connection with morality without having that essential connection. Likewise, Joseph Raz15 and Matthew Kramer16 have argued that Fuller’s principles are morally neutral, as even unjust rulers have reason to comply with them. Once we realise that the issue is not whether the principles guarantee moral law, we can see that this argument is specious. If morality and efficiency

HLA Hart, Essays in Jurisprudence and Philosophy, ch 16. See also J Finnis, ‘Natural Law Theories’, §1.3. 12 HLA Hart, The Concept of Law, 156. 13 Eg D Beyleveld and R Brownsword, Law as a Moral Judgment. 14 See, eg, C Orrego, ‘Classical Natural Law Theory’; J Finnis, ‘Natural Law Theories’. See also RJ Dougherty, ‘St. Augustine on Natural Law’; AJ Lisska, ‘God, Aquinas, and Natural Law Theory: The Question of Natural Kinds’, which present an accurate picture of the real concerns that motivated the thinkers who Hart targets. 15 J Raz, The Authority of Law. 16 MH Kramer, ‘On the Moral Status of the Rule of Law’. 10 11

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align in the way that Fuller’s argument suggests, then it will of course follow that an unjust ruler has a reason to follow Fuller’s principles, as that is required for the ruler to rule efficiently. But that does nothing to show that the principles lack moral content. In this case, the ruler has a reason to follow principles that have moral content, because these aspects of morality are conditions of her ruling efficiently. Further, we should notice that unjust rulers may well have good, amoral reasons for incorporating many aspects of morality into the way that they rule – as no doubt they always do in fact. It hardly follows that those aspects of morality are amoral or morally neutral. The objection to Fuller relies on the idea that if the principles are ones of efficiency then they cannot also be ones of morality. Thus, Raz analogises the principles to the sharpness of a knife, useful for performing life-saving surgery, but also useful for committing murder.17 This, of course, just begs the question. Fuller would reply that a better analogy would be between his principles and kindness. No doubt, kindness can be morally inappropriate in some circumstances, but it would be a serious confusion to conclude from this that kindness was amoral or morally neutral.18 Another part of the problem can perhaps best be presented as follows. Hart’s reply to Fuller is of the form ‘These arguments do not defeat my position.’ Most discussion of Fuller’s theory has centred on whether Hart was right about this or on closely related issues. So, questions are asked such as ‘Does Fuller show that natural law theory is right and positivism wrong?’ and ‘Is Fuller’s theory really a natural law theory?’ Likewise, it might be said that positivism is committed to certain doctrines such as the sources thesis (that the law is found in certain sources) and the separation thesis (about the separation between law and morality, which could perhaps be construed to be consistent with rules (1)–(8)).19 The problem with Fuller’s argument, it is said, is that it does not establish a position incompatible with these doctrines. Thus, it is sometimes said that Fuller is not a real natural law theorist and his attack on Hart’s positivism fails.20 But a discipline that treats as a central issue the relationship between theories is one that has lost its way. The issue is not whether Fuller’s J Raz, The Authority of Law, 224–6. Note that it would be an entirely different argument to maintain that the ability to use kindness immorally shows that kindness is not, say, the supreme principle of morality or the criterion of a good will. Cf I Kant, ‘Groundwork of the Metaphysics of Morals’, 4:393–4. To say that kindness is neither the supreme principle of morality nor the criterion of a good will is not to say that it is morally neutral. 19 For the record, my view is that the separation thesis could be reconciled with rules (1)–(8) only if it is robbed of all philosophical interest. But this matter need not be decided now. 20 Cf JE Penner and E Melissaris, McCoubrey & White’s Textbook on Jurisprudence, 32–3. 17 18

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discoveries can be accommodated within Hart’s framework or not; the issue is whether Fuller made discoveries. He did. It is quite remarkable that Fuller’s work, then, is often relegated to that of secondary importance in the history of jurisprudence because it fits poorly into the narrative the author wants to tell of that history,21 a narrative that is based around the agenda set by Hart in The Concept of Law. Fuller undoubtedly noticed a connection between law and morality and we would learn a great deal about law if this matter were to be pursued. In that light, though it is far from essential to this defence of Fuller, it is worth pausing to consider the following claim that has been made as an objection to Fuller’s position: the claim that it is not impossible ‘to express “blind hatreds” through “law” – many States seem to have achieved this feat with ease’.22 Perhaps I am merely ignorant, but I know of no examples of this. Moreover, it is curious that, if many states have achieved this, none are cited. But take the infamous Nuremberg Laws as an example. Let me choose what I take to be the worst articles of this law. Marriages between Jews and citizens of German or related blood are forbidden. Marriages nevertheless concluded are invalid, even if concluded abroad to circumvent this law. (Article 1.1 of the Law for the Protection of German Blood and German Honour) Extramarital relations between Jews and citizens of German or related blood are forbidden. (Article 2 of the Law for the Protection of German Blood and German Honour) A Reich citizen is a subject of the state who is of German or related blood, and proves by his conduct that he is willing and fit to faithfully serve the German people and Reich. (Article 2.1 of the Reich Citizenship Law)

It is more than a stretch to describe this as expressing blind hatred, though we know that it was an expression of blind hatred.23 The most remarkable thing about these laws is that, though designed by people who rabidly hated Jews, though intended to have hateful consequences and though they succeeded in producing many of those consequences, the laws themselves are expressed in Again, a good example of this is ibid. Ibid, 32. 23 It is important to pay attention to the locution here. There is a great deal of difference between the concept of expressing and that of being expressive of. The second movement of Beethoven’s Symphony No 3 in Eb Major Op 55 ‘Eroica’ is expressive of sadness but, being non-sentient, it does not express anything. In this case, the claim is that, though the Nazi laws were intended to carry into law the Nazis’ hatred of Jews, and succeeded in this regard, the laws themselves are expressed so as to be largely void of this emotion. 21 22

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language that can only be described as bland. Someone generally ignorant of the history but knowing that these laws were designed to enforce discrimination might have difficulty guessing which group was discriminating against which. This is not unusual.24 And this is an utterly remarkable feature of law. Why is it that a man so full of hate towards the Jews would sign his name to a document that aimed to make a resounding statement about the place of Jews in Nazi Germany and yet was on the face of it so insipid? Instead of trying to figure out how Fuller’s theory relates to Hart’s, we should be asking this kind of question.25 Another aspect of the problem is something that we have already glimpsed: many think that the issue is whether rules that violate rules (1)–(8) are legal rules or whether a system that violated rules (1)–(8) could be a legal system. Fuller himself was focused on this issue.26 It is a red herring. It is if our practice says that it is and it is not if our practice says that it is not. Consider again Hart’s claim that we could just as well speak of an inner morality of poisoning as of an inner morality of law. Though this is plainly false, it is interesting to investigate precisely why. Let us first imagine a simple case. Say that I desire to kill my neighbour because he plays too much loud twenty-first-century pop music. I intend to break into his house and slip poison into his cornflakes. No doubt, there are ‘rules’ that apply as to how to do this efficiently. However, this really tells us nothing about Fuller’s position. The mistake here is the same as the one we saw Raz making above. Hart picks an example in which there is no connection between efficiency and morality. That does not prove that there is no such connection in the legal context. Again, then, Hart just begs the question. In that example, my intention is merely to silence my neighbour and those same four chords repeated ad nauseum. Most of the poisonings that have hit the news in recent times are not like this, however. In so killing my neighbour, I make no speech act. But many poisonings definitely are speech acts. They are attempts both to kill their targets and to send a message to others. There will be principles about how that can be done effectively, and these principles

See D Dyzenhaus, Hard Cases in Wicked Legal Systems: South African Law in the Perspective of Legal Philosophy. See also N MacCormick, Institutions of Law, 277. 25 Part of the reason for this is that it may help to reveal deeply immoral aspects hidden in our apparently bland laws. It may, for instance, reveal the illiberalism that underlies the routine and seemingly laudable use of terms such as ‘reasonable’ and ‘fair’ in legislation and case law. I have touched on an examination of this in, eg, A Beever, ‘Particularism and Prejudice in the Law of Tort’, but I hope to deal with it more comprehensively in the future. 26 Eg LL Fuller, The Morality of Law, 39. 24

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might look a lot like principles (1)–(8). So, for instance, it might be said that the poisoners must: (1) be consistent in poisoning those who do not toe the line; (2) make it clear that those who do not toe the line will be poisoned; (3) not poison people before they have failed to toe the line or given reason to believe that they will not toe the line,27 and so on. But, Hart says, it would be ridiculous to regard this as constituting an inner morality of poisoning. I have two replies. The first begins by noticing that, in this case, the speech act is a commissive, a threat. This is important because, as we saw especially in Chapter 11, Hart insists that law does not work in this way. It is, in his own view, not like the poisoner trying to issue a threat. The poisoner, of course, is just another kind of gunman. The law, Hart tells us, issues directives that create duties, powers and the like. This is entirely different to the kind of poisoning case of which we are now thinking. This shows again that the purported analogy between poisoning and law breaks down. Even if we accept that the rules of efficiency that apply to poisonings that are speech acts are entirely amoral, it does not follow that the rules of efficiency that apply to law are amoral, as the former relate to threats while the latter apply to directives. More significantly, though he does not seem to realise this, Fuller shows that there are moral constraints on the issuing of directives in general. It is, perhaps, on reflection surprising that we should find this surprising. A directive is an utterance attempting to get someone to do something. Given that, there will naturally be constraints on the way in which directives can be uttered. They must be uttered in a way that means that the hearer can implement the propositional content of the directive. If they are not uttered in that way, sanctioning the hearer will be unjust. It is unfit for me to punish my daughter for disobeying a rule that I made in my sleep, it is unfair to punish students for handing in coursework after a deadline that they are confused about because I keep changing it, and it is unfair that rugby union players (and referees) are required to follow rules that do not in fact make sense. It is no different in law. Furthermore, and this is perhaps the most important point in this context, the extent to which law operates in terms of directives rather than commissives (threats) is morally significant. Directives function only if they obey certain moral constraints that do not hold for threats. Chapter 9 called into question

27 Incidentally, the fact that this rule is absurd reveals the absurdity of claiming that the original rule is concerned with efficiency only.

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Hart’s claim that ‘Legal control is primarily […] control by directions.’28 Nevertheless, in developing our understanding of the relationship between law and directives in his work, Hart began to dig the grave of the positivism he sought to defend. My second reply to Hart’s response to Fuller is that it is not at all clear that there are no moral considerations relevant to the issuing of threats. As all conversation must be, even threats must be cooperative in the sense that Grice intended. There is much to be said in this context and I certainly will not be able to deal adequately with this matter here, but it must be said that Hart’s position begs a number of important questions about psychology, both moral and otherwise. It may, for instance, be that political poisonings are most effective when the speech act they make draws on significant moral considerations. Perhaps it is important, for instance, for it to be said in some way that the victim has betrayed an important trust or that national security, and thus the wellbeing of many people, is at stake. Of course, if used to clothe a poisoning in merely apparent justification, it is immoral; but it cannot follow from this that loyalty and wellbeing are anything other than moral concerns. Part of what I am suggesting here is that positivists, at least when they are being positivists, tend to operate with a rather simplistic, or at least sympathetic (that is, sympathetic to positivism), view of morality and what counts as morally relevant.29 Some moral theorists maintain, for instance, that even evil cannot escape the moral law.30 If that is so, then these positivist replies to Fuller cannot get off the ground. Whether this is so, of course, requires investigation. Yet again, we see that the philosophical investigation of law must expand beyond the narrow track set by positivist jurisprudence. As noted above, Fuller’s investigation is not complete. Rules (1)–(8) are not formulated with sufficient accuracy or completeness and there are likely to be other rules yet to be discovered. But, again, it would be quite wrong to take this as a criticism of Fuller. To put it in the language of other disciplines, Fuller discovered a research project: What are the limits on the directives that the law can issue? This, if only someone would take it up,31 would be a project of great intellectual interest. Instead, though, energy is spent trying to determine exactly how the beginnings of that project relate to other theories of law.

Eg HLA Hart, The Concept of Law, 21 (emphasis added). See also M Stone, ‘Legal Positivism as an Idea About Morality’. 30 Proponents of this view include Immanuel Kant and CS Lewis. The key works in this regard are probably I Kant, ‘Critique of Practical Reason’ and CS Lewis, Mere Christianity. 31 To some extent, this has occurred, though unfortunately this occurs well outside mainstream jurisprudence. See, eg, P Selznick, Law, Society, and Industrial Justice; J Skolnick, Justice Without Trial: Law Enforcement in Democratic Society. 28 29

13. Principles 1.

HART, DWORKIN AND RAZ

Hart insisted that legal rules are open-textured.1 He presented (or adopted) a now famous example to illustrate this. He imagined a by-law prohibiting ‘vehicles’ from entering a public park. It will help if we imagine a concrete formulation: ‘Vehicles are not permitted in the park’. He then explained that, though there would be cases in which the application of the rule would be clear, there would be other cases in which it was not. So, for instance, we can be sure that a person who drove a car into the public park would have violated the rule, but it would not be obvious whether a person who brought a bicycle, an aeroplane or roller skates into the park would have.2 What happens when judges are faced with such issues? This is what Hart says. Faced with the question whether the rule prohibiting the use of vehicles in the park is applicable to some combination of circumstances in which it appears indeterminate, all that the person called upon to answer can do is to consider (as does one who makes use of a precedent) whether the present case resembles the plain case ‘sufficiently’ in ‘relevant’ respects. The discretion thus left to him by language may be very wide; so that if he applies the rule, the conclusion, even though it may not be arbitrary or irrational, is in effect a choice.3

In making this choice, as the law does not determine the result, the judge must appeal to non-legal factors to determine how to exercise her discretion. We can call these factors policies. Ronald Dworkin rejected this view, arguing that judges do not have the ‘strong discretion’ attributed to them by Hart. Judges are not permitted to utilise policy arguments, Dworkin maintained, as they do not have the democratic mandate to do so. Instead, Dworkin tells us, judges in hard cases appeal HLA Hart, The Concept of Law, 124–36. For a considered analysis of this and other issues, though one whose conclusions I cannot accept, see B Bix, Law, Language and Legal Determinacy. 2 HLA Hart, The Concept of Law, 126. 3 Ibid, 127. 1

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to legal principles to produce, or to try to produce, uniquely correct legal answers to the problems that they face. What is the difference between a rule and a principle, according to Dworkin? As I do not trust myself to explain this, I rely on Brian Bix. While rules act in an ‘all or nothing’ way (if a rule applies it is conclusive, it decides the case), principles can apply to a case without being dispositive. Principles (e.g. ‘one should not be able to profit from one’s own wrong’ and ‘one is held to intend all the foreseeable consequences of one’s actions’) have weight favouring one result; there can be – and often are – principles favouring contrary results on a single legal question.4

Dworkin tells us that principles make a difference in adjudication. As is well known, he discusses Riggs v Palmer in this regard.5 Because principles have weight, Dworkin maintains that judges have discretion, but this is weak discretion and not the strong discretion that Hart alleged judges have. Judges do not have a choice between entirely open possibilities but must determine the weight to be given to the relevant principles, which principles are relevant, and so on. Moreover, Dworkin insists that the existence of legal principles cannot be accommodated within Hart’s theory, as they have no place according to the rule of recognition. Against this view, Joseph Raz maintains that positivists have never denied that legal principles exist.6 Furthermore, he insists that the appropriate distinction between rules and principles is different to the one presented by Dworkin. We can capture Raz’s notion as follows. First, we have ordinary or what we will call first-order reasons for action. Take an example. Imagine that the Board of Studies of my Law School is considering a policy of imposing a certain penalty for late coursework. In this deliberation, people advance reasons, even a few good ones, for and against the policy. And then we vote. And let us say that the policy is passed. Now, I am marking a student’s essay that is late. What am I to do? Am I to consider all the first-order reasons again; all the ones that were given at the meeting and any others of which I can think, and just add the decision of the Board of Studies to this list? Raz’s insight is to see that, if I do this, I do not treat the decision of the Board of Studies as the kind of decision that it was. Instead, what I am to do is to take the decision of the Board as determining what I ought to do, excluding (that is, preventing or 4 B Bix, Jurisprudence: Theory and Context, 93–4. See also R Alexy, A Theory of Constitutional Rights, 47–8. For the record, I think that this is clearly wrong. Rules, eg, are not necessarily dispositive and they frequently conflict. 5 Riggs v Palmer 22 NE 188 (NY CA 1889). 6 See also HLA Hart, The Concept of Law, 263–8. For a sustained presentation of the position under examination, see J Raz, Practical Reasons and Norms.

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disallowing) my appeal to the first-order reasons. Because of this, Raz calls this an exclusionary reason. Raz builds a sophisticated theory of law out of this notion, which is examined in Chapter 14. For now, the important point is this. Raz maintains that the distinction between rules and principles is that rules are relatively specific and are exclusionary, whereas principles are general and non-exclusionary. This leads Raz to say that legal principles, far from constraining discretion as Dworkin maintained, in fact invite discretion. ‘Where the principles are ones which guide judges when they decide a case where the rules conflict, or the rules would operate unjustly, the principles reflect judges’ powers […] to make new law.’7

2.

RULES AND THE BACKGROUND

This debate is confused. It is confused because it begins with a confusion that divides these theorists unnecessarily. There are genuine disagreements here, but they are not quite what they appear to be. Hart is of course right that rules are open-textured. But why is this? Hart does not provide a definitive answer to this question, but he does say that it is ‘inherent in the nature of language’ and concerns ‘the guidance which general language can provide’.8 This is often read as saying that the problem is caused by the vagueness of language.9 Given that he was a student of JL Austin, we must be reluctant to attribute this crude view of language to Hart, but, given its influence, it is worth examining nevertheless. On this interpretation, Hart’s notion is this. We know that the rule in question bans ‘vehicles’ from the park. We know that this means that cars are banned, but we do not know for sure whether bicycles, for instance, are. This is because the scope of ‘vehicles’ is unclear. This is said to be a general defect of language. The scope of all terms is, in some circumstances, unclear. It is worth noting immediately that it is not really appropriate to label this a defect of language, though no doubt it sometimes causes problems. Language could not function if it were otherwise. That is, if language were so fine-grained that it were not open-textured, it would be impossible to learn – think of how many extra nouns we would need, for example. More importantly, we must not adopt the view that what matters here is the literal or dictionary meanings of the terms in the utterance, even taking account of context. We have seen in Chapter 4 that this is not the way in which lan JE Penner and E Melissaris, McCoubrey & White’s Textbook on Jurisprudence,

7

86.

HLA Hart, The Concept of Law, 126. Eg B Leiter, Naturalizing Jurisprudence, 154; JE Penner and E Melissaris, McCoubrey & White’s Textbook on Jurisprudence, 85. 8 9

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guage functions. The issue is not with the meaning of the word ‘vehicle’, for instance. The problem is not that we cannot determine the scope of the word ‘vehicle’. The problem is that we do not know how to interpret the directive holistically.10 Let us develop an example first examined in Chapter 5. Consider the use of the term ‘cut’ in the following directives. (1) ‘Cut the cake.’ (2) ‘Cut the grass.’ (3) ‘Cut his hair.’ There is nothing ambiguous in any of these utterances about the meaning of ‘cut’. Nevertheless, the nature of the directed cutting is different in each case. If in response to (1) I run over the cake with a lawnmower and in response to (2) I attack the lawn with a knife, then I have obeyed neither command. This is not because the meaning of the term ‘cut’ changes between the cases. It is because we interpret the directive – or any utterance – against a Background of shared assumptions, practices and the like.11 We can make these explicit, but only on the basis of other Background conditions. This deep point about the nature of language and intentionality was explored in Chapter 5. As we saw there, if the Background changes, meanings can change with them. One could imagine bizarre circumstances in which (3) did direct you to use a lawnmower, for instance. So, imagine that in response to (2) I attack the lawn with a knife. As noted, I did not obey the directive. This has nothing to do with vagueness in the scope of the term ‘cut’. If I chop off a piece of grass with the knife, then no one doubts that I have cut this piece of grass. Nevertheless, no one thinks that I have done as I was told. Why is this? It is because we understand the directive against a Background that makes it clear that using a lawnmower counts as obeying the command but using a knife does not. As always, there will be borderline cases. Would using a scythe count as obeying? It might or it might not, depending on the circumstances. If I was told to cut the grass in a farmer’s field, it probably would. But if I was told to cut the grass on the green of a golf course, it would not. This helps to reveal that some (not all) of these Background assumptions concern the purpose of the directive in ques Note that this reflects Frege’s deep discovery that the fundamental unit of meaning is not the individual word but the clause or sentence. Moreover, as JL Austin stressed, what matters in these contexts is the illocutionary act and not the locution per se. 11 Hart appears to be aware of this point, which is more evidence to suggest that we cannot attribute the position under examination here to him. See HLA Hart, The Concept of Law, 125. 10

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tion. A scythe works for the farmer, because she wants to make hay; it does not work for the golf course owner, as the use of a scythe will not allow players to putt properly. With this in mind, we can return to Hart’s example. The problem with the rule ‘Vehicles are not permitted in the park’ is wrongly characterised as being due to the open texture of the word ‘vehicles’. Water is quite literally a vehicle – it is a vehicle for the transmission of heat, for example – but we all know that water is not banned by the rule. Likewise, language is literally a vehicle of communication, but we know that it too is not banned. How do we know this? Because we operate on the Background assumption that the rule has a set of possible purposes – purposes which would make sense of banning cars, but not of banning water or language.12 We may not know exactly what the rule is for, but we assume that it has something to do with safety, the enjoyment of users of the park, preserving the park from damage, or the like. A ban on cars would make sense in this context; a ban on water or language would not. What about bicycles? This is a tricky case, because normally the Background will not determine the matter for us. Concerns such as safety, the enjoyment of users of the park, preserving the park from damage, and so on may or may not lead to the banning of bicycles. (Note, though, that given some Backgrounds, this will be clear. In a culture with a very positive attitude towards cycling, for example, it may be clear that the law does not apply to bicycles, especially if it is believed in that culture that cycling is very safe, causes no damage, and so on. But in a different culture with different beliefs, it might be just as clear that a law expressed in the same words did apply to bicycles.) If I am instructed by a farmer to cut the grass in circumstances in which it is not clear whether it would be appropriate to use a scythe, I can deal with this problem by asking her to clarify her order. ‘Would it be okay if I used a scythe?’ But one of the most important features of law is that this generally cannot be done. We want to know whether a bicycle can be brought into the park. The question is simple enough: ‘Can I bring a bicycle into the park?’, but to whom do I ask it? I cannot ask the council who made the by-law. This is for obvious practical reasons – the council does not frequently meet as such and they have too much other business to attend to, for example – but it is also because law has a curious (though not unique!) status in this regard. Logically, it need not have been this way, but in fact (and for good moral reasons) we insist on a strong independence between the law and the law maker. The farmer’s utterance is regarded in such a way that it is perfectly in

See also LL Fuller, ‘Positivism and Fidelity to Law: A Reply to Professor Hart’, 666–9. There seems to be some recognition of this later in Hart’s discussion. HLA Hart, The Concept of Law, 129, 131. 12

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order to ask her what she meant, but this is out of order with respect to legal utterances (notice that these are normally more aspects of the Background). We can see this in various ways. For instance, the farmer can clarify her order without difficulty. She might say, ‘I mean with a lawnmower and not with the scythe.’ Ordinarily, we would take this to be a clarification of her original order and not a new order. But the council cannot do this. It can say ‘Vehicles do not include bicycles’, but that would not be taken as a clarification of the original by-law but as a new by-law. (It might be a clarification of their original intention, but not of the original law.) It would be an amendment to the existing law creating a new legal state of affairs. We see this also in case law. For instance, in a high-level appellate court a particular judge might produce the sole or leading judgment in one case and in the future another case might come before the court in which the issue is the application of the ratio of the first case to this instant case. Something like this happened with Lord Reid’s judgment in Bolton v Stone13 in The Wagon Mound (No 2).14 The judges in the second case did not say to the judge in the first: ‘Just tell us what you meant and then we can go home.’ In The Wagon Mound (No 2), the judges (including Lord Reid) referred to Lord Reid’s judgment in Bolton v Stone, but none of them (not even Lord Reid) treated Lord Reid as having any special access to the meaning of Lord Reid’s judgment in Bolton v Stone. We can express this by saying that, in law, we cut the tie between law and law maker. Now, the extent to which we do and should cut this tie is problematic and controversial. Consider, for example, the historical arguments over the legitimacy of judicial appeals to Hansard in interpreting statutes. But these issues need not detain us here. The important point is just that the tie is cut to an extent unusual in discourse. (Again, however, this is not unique. This also happens with, for example, works of fiction, and to a lesser degree with works of non-fiction.) The cutting of the tie amplifies the problem with legal rules that we are examining. In Hart’s example, we cannot decide whether the rule applies to a bicycle or not and have no obvious way of determining this issue. Positivists are prepared to bite the bullet on this matter and, as we will see, they are to be congratulated for this even though, as we will also see, they tend to exaggerate the significance of their discovery. Bolton v Stone [1951] AC 850 (HL). Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (The Wagon Mound, No 1) [1961] AC 388 (PC). See also Deutsche Morgan Grenfell Group plc v Inland Revenue Commissioners 2006 UKHL 49, [2007] 1 AC 558 (HL), [14] (Lord Hoffmann): ‘Once a judgment has been published, its interpretation belongs to posterity and its author and those who agreed with him at the time have no better claim to be able to declare its meaning than anyone else.’ 13 14

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The reason that the positivists are right is that, once the tie is cut, we are guaranteed to encounter cases of the kind Hart discusses in which there is no answer to the question that we need to ask. In the example we have been examining, there is no answer to the question ‘Does “vehicle” refer to bicycles?’ It is not that the answer is difficult to find or controversial. There is no answer. When we cut the tie, the meanings of utterances can depend only on the conventions of language in conjunction with the Background. It is not that ‘vehicle’ does or does not mean bicycle. There is no answer as to whether, in the by-law in question, it means bicycle or not.15 Note that this point is independent of Dworkin’s position regarding legal principles. That is a separate matter. Imagine, for instance, that a person is being prosecuted for bringing a bicycle into the park. It might be argued that a legal principle exists according to which a person should be found to have violated a rule of this kind only if she clearly violated that rule. Thus, one might say, a court should hold that this rule did not apply to her as – as we have seen – it is not clear that she violated the rule. Given the way things work in common law courts, a judge convinced by this argument is likely to say that the word ‘vehicles’ in the by-law does not apply to bicycles. She is likely to present this as a discovery about the meaning of the word ‘vehicles’ in this law. But this is an illusion. She could not have discovered this, as there is no fact of the matter to be discovered. Instead, the court makes it the case that the word ‘vehicles’ in the rule does not refer to bicycles. It does this by declaring that ‘vehicles’ does not refer to bicycles.16 I need to stress that this conclusion does not rely on legal theory. I need to say this because it might be thought that I am here agreeing with a similar position taken by Raz (to be examined in the following chapter) that turns on the nature of law’s authority. I am not relying on any such claim, however. The position advanced here turns entirely on the nature of language. For this reason, it should also be stressed that I am speaking of the meaning of the word ‘vehicles’ in our imagined law. The meaning, or proper interpretation, of the law is another (though, of course, related) matter. Recall, however, Hart’s description of what the judge does. First, he tells us that the judge considers ‘whether the present case resembles the plain case

15 It is important not to take this argument as implying that its conclusion is universally true. It is important to remember that we are speaking of a by-law here. Things may be different in an area of law with a well-developed normative structure, where answers to such questions may be implied by that structure. It is assumed that this is not the case here, however. 16 Note that this is quite different to denying that there is a legal answer to the question ‘Should this person be found guilty of violating the by-law?’ The argument presented here does not bring this aspect of Dworkin’s theory into question.

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“sufficiently” in “relevant” respects’.17 So, she notes that it would clearly be a violation of the by-law to bring a car into the park, and then she must ask whether bringing a bicycle into the park is ‘sufficiently’ like bringing a car into the park in ‘relevant’ respects. I do not want to suggest that Hart is wrong, but I do want to stress how unhelpful this characterisation is. That, of course, is Hart’s point. He wants to suggest that things are open for the judge. But we can certainly say more than this. Hart says that the judge must ask whether the present case resembles the plain case. Naturally, as Hart realises, it will. Everything resembles everything else in some respect. So, the question is whether the present case resembles the plain case ‘sufficiently’ in ‘relevant’ respects. What does ‘relevant’ mean here? What kind of respect would be relevant? The answer, which we have already seen, is that it must be something that could plausibly relate to the purpose of the by-law. So, it is reasonable to conclude that bringing a motorcycle into the park is ‘sufficiently’ like bringing a car into the park in ‘relevant’ respects as both relate to issues such as safety, the enjoyment of users of the park, preserving the park from damage and the like. However, though cars and water resemble each other in many respects – they both have extension, are constituted by molecules, are useful, and so on – it is not reasonable to conclude that bringing water into the park is ‘sufficiently’ like bringing a car into the park in ‘relevant’ respects because bringing water does not relate to issues such as safety, the enjoyment of users of the park, preserving the park from damage, and so on. Once we recognise this, we must see that it is at best misleading to describe the situation facing the judges as one requiring ‘in effect a choice’, or even as one involving discretion in the proper sense of this term.18 It is important to say here that the issue is not with the judicial use of the term ‘discretion’. It is often used in law in ways that I confess I do not understand. We are not interested in legal jargon but in clarifying our concepts. With that in mind, consider the following case. My wife says to me, ‘Allan, the kids are getting bored. Take them out. Take them to the movies or the beach. You choose.’ Here, it seems fair to say that I have a discretion and that my decision to go to the movies or to the beach is a choice. But imagine now that my wife says, ‘Allan, you haven’t spent enough time with the kids lately. You need to make it up to them. Either take them to the movies or to the beach, whichever you think is the best way to put things right.’ In this case, it is entirely unnatural to say that I have a discretion or to describe my decision as a choice. (Of course, I do have to choose, but I have

HLA Hart, The Concept of Law, 127. Against ibid.

17 18

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to choose in every case, including plain cases.) What I must do in this case is exercise judgement, but that is another matter entirely. Imagine that I ponder my wife’s directive and decide that, as I will have more opportunity to engage with my children at the beach, taking them there is what I must do. I then decide accordingly. It does not appear to me that I had any discretion at all. It cannot so appear to me if I take the issue seriously. On the contrary, I must take the result of my deliberation – my coming to the conclusion that I ought to go to the beach – as directive. It is not up to me. And though of course I have a choice, as I always do, the choice I have is not the kind of choice referred to by Hart. We can see this because if my wife asks me ‘Why didn’t you go to the movies?’, I might well reply: ‘When I thought it over, I realised that I had no choice. I had to take them to the beach.’ It is remarkably unhelpful that we refer to this kind of decision making in law as the exercise of discretion, and a mark of how far we are from understanding these matters properly that we argue over whether the discretion is weak or strong. Language both helps and hinders here. Consider the following utterances. (1)

‘I was not compelled to go to the beach. No one was holding a gun to my head.’ (2) ‘I had compelling reasons to go to the beach.’ The sense of compulsion in these utterances is not the same. Nevertheless, it is not an accident that we can use the same word in each of these sentences. We all understand what is meant by ‘had to’ in the utterance ‘It was my clear duty. I had to do it.’ And we need to see that discretion and choice (in Hart’s sense) are contraindicated by compulsion in the sense of both (1) and (2). Hart’s claim, I take it, is that in the relevant circumstances the judge is not constrained by the rule. This, it seems, is a straightforward consequence of what I have argued. If there is no fact of the matter as to whether ‘vehicle’ in the by-law refers to bicycles or not, then it follows logically that the judge cannot be constrained by the rule in reaching her decision. That is true, but this is consistent with saying that the judge was constrained for other reasons. We begin to take up this issue now.

3. INTERPRETATION One central aspect of Dworkin’s theory is that the content of law is given via an interpretive practice that takes into account the morality of the society in which the practice operates. In this, Dworkin is certainly correct. The problem is that Dworkin presents this as a momentous discovery about the nature of law. It isn’t. In fact, Dworkin seriously weakens his argument by presenting it as based exclusively on law. In reality, the reason that legal utterances must

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be interpreted against a moral background is that all utterances must be so interpreted. The main argument for this was presented in Chapter 6, but consider again utterance (3): ‘Cut his hair.’ Naturally, it would be out of order to respond to this utterance by reaching for a lawnmower or a knife. A person who did this would not have obeyed the order. Why is this? We have seen the general answer to this. It is part of our Background that cutting hair involves scissors or the like and not lawnmowers or knives. Similarly, if I were to say to a student ‘Just cut class this afternoon and come for a drink with me’,19 I would not think that she understood my utterance if she responded by attacking her classmates with a lawnmower, knife or scissors. Why is this? Again, the answer is because of the Background assumptions against which my utterance must be interpreted. It seems clear in these cases that general understandings of morality are part of this Background. One reason why (3) does not tell me to use a lawnmower is that using lawnmowers to cut someone’s hair would expose them to an unjustified level of danger. Similarly, the utterance ‘We would like to have you for dinner’ is an invitation in modern New Zealand, but it would be an assertive, and perhaps also a threat or a warning, in a society that practised cannibalism. Likewise, it would violate by-laws relating to the collection of household waste where I live were I to put a human body in my blue wheelie bin,20 but one might imagine slave-owning societies in which rules stated in the same words allowed for this. Consider also s 6, Principle 2(1) of New Zealand’s Privacy Act 1993, which reads: ‘Where an agency collects personal information, the agency shall collect the information directly from the individual concerned.’ Philosophers of law, being mostly lawyers, tend to focus on the kinds of questions about passages such as this that would standardly occur to lawyers: questions such as ‘What is an agency?’, ‘What is personal information?’, ‘What is collection?’ and ‘What does “directly” mean?’ Dworkin’s position is that these have definitive legal answers. Hart’s position is that they do not. Raz maintains that these questions have definitive legal answers only when courts give them such and that courts create new law when they do this. These are interesting debates, but we are wrong to think that the issue now under discussion turns on them. I have quoted from New Zealand’s Privacy Act. I did this by looking up the Act on the internet and copying and pasting from the relevant webpage. What did I see when I opened the website? I saw black marks on a white back-

Though, here, the meaning of ‘cut’ is different than in (1)–(3). It would violate other laws as well, of course.

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ground.21 I saw these marks as words only because I took them to be communicative symbols. Moreover, I took them to be a certain kind of symbol: words. I did not think, for instance, that they were part of an artwork to be appreciated for, say, their extraordinary shapes, or to be mesmerised by the monotony of their colour, as if they were some pathetic attempt to do something of the kind done by Yves Klein’s monochromes. I interpreted them in the light of a whole host of Background considerations. Because of this same reason, I know, for example, that ‘agency’ does not refer to the law of agency, that ‘collect’ does not mean what it means in the sentence ‘If you run out of money, call me collect’, that ‘personal’ is not restricted to ‘affecting one’s body’ (though this is one of the meanings of the term listed in the Oxford English Dictionary), and so on. I also know that ‘the agency shall collect the information directly from the individual concerned’ does not mean that the information must be extracted surgically from the individual’s brain. One might suggest that this is because this is impossible. But imagine that we could do this. Would you think, then, that the passage was telling you that this must be done. Of course not. Why? Surely it is at least partly because of the role that morality plays in the Background. Let us return once again to the vehicle example. What is the rule here? Positivists tend to approach the matter as if the rule were the result of the meaning produced by the combination of the discrete meanings of the words ‘vehicles’, ‘are’, ‘not’, ‘permitted’, ‘in’, ‘the’ and ‘park’ in their context. This is ironic because Hart’s teacher, JL Austin, stands at the head of a tradition in the philosophy of language according to which this is entirely the wrong way in which to understand language (see especially Chapter 6). Utterances have meaning, in the end, because utterers use them to mean things. What matters is not what the words mean (they have no intrinsic meaning at all) but what people use them to mean. The rule, then, is not defined by the words used to express the rule, but by what the utterance expresses. We saw this repeatedly in Chapters 4–6. The meaning of the speech act ‘Can you pass the salt?’ is not given by the combination of the meaning of the words ‘can’, ‘you’, ‘pass’, ‘the’ and ‘salt’ in their context. It is given by what the utterer means by uttering these words. There is absolutely no reason to think that morality plays less than a very significant role in the Background, and sometimes in the foreground, in this regard. In practice, these issues have been explored in jurisprudence as part of a two-sided debate, with interpretation on the one side and authority on the

Here, I am using ‘see’ and its cognates in a non-intentional sense. Nor am I describing the phenomenology of the experience, which, as the discussion of perception in Chapter 6 made clear, is not like this. 21

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other. That debate is examined from the perspective of the latter in the following chapter. Because of this, these issues need be discussed no further here. But we have seen enough to conclude that the claim that law must be able to be identified by reference to social facts alone, without resort to any evaluative maters,22 could be true only if there is no law.

Cf J Raz, Ethics in the Public Domain, 211.

22

14. Authority This chapter examines Joseph Raz’s highly influential ‘argument from authority’. This argument is meant to establish the superiority of a particularly austere form of positivism over some of its most prominent rivals.1 As it is not easy to give an initial outline of the argument, the best way forward is to examine the argument and see where it does and does not lead. As we will see, it takes us to some rather surprising places.

1.

THE ARGUMENT FROM AUTHORITY

1.1

The Positive Argument

The first premise of the argument is that all law must coherently be able to claim authority.2 For Raz, this follows from obvious features of the law. The claims the law makes for itself are evident from the language it adopts and from the opinions expressed by its spokesmen, i.e. by the institutions of the law. The law’s claim to authority is manifested by the fact that legal institutions are officially designated as ‘authorities,’ by the fact that they regard themselves as having the right to impose obligations on their subjects, by their claims that their subjects owe them allegiance, and that their subjects ought to obey the law as it requires to be obeyed (i.e. in all cases except those in which some legal doctrine justifies breach of duty). Even a bad law, is the inevitable official doctrine, should be obeyed for as long as it is in force, while lawful action is taken to try and bring about its amendment or repeal.3

The notion that all law must coherently be able to claim authority must be distinguished from the idea that law must have authority. Thus, we could accept that, for example, the laws of Nazi Germany did not need to be obeyed and lacked authority.4 But Raz asserts that the laws of Nazi Germany nevertheless coherently claimed to have authority. Though they lacked authority, they claimed authority and that claim, though wrong, was coherent. In order to see Interestingly, however, it has no bearing on most forms of natural law theory. See J Raz, Ethics in the Public Domain, 209 n 18. 2 Ibid, 215–20. 3 Ibid, 215–16. 4 J Raz, The Authority of Law, 271–5. 1

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Raz’s point, it is useful to compare these claims concerning Nazi laws with the assertion that trees have authority.5 The claim that trees have authority is incoherent because trees are not the kind of things that could have authority. On this understanding, then, the suggestion that Nazi law had authority is coherent but wrong, while the claim that trees have authority is incoherent. For convenience, in the following I refer to the notion of having authority as such and to the concept of coherently being able to claim authority as being authoritative. Hence, Nazi law was authoritative though it lacked authority, while trees neither have authority nor are authoritative. Raz also distinguishes between pre-emptive and dependent reasons for action.6 The latter are ordinary reasons for action that must be weighed along with all other (dependent) reasons for and against the action. For instance, the fact it will please my wife is a reason for going to dinner at my in-laws, but that must be weighed against the fact that it will not please me. A pre-emptive reason, on the other hand, is a reason not to act on the basis of the dependent reasons that would normally be relevant. For instance, if I had promised my wife that we would visit her parents, then my promise is not merely one more reason that must be weighed alongside the two mentioned above; rather, my promise is a reason not to act on my desire not to go. The promise pre-empts my desire as a reason to stay home. (Clearly, this relates closely to the distinction between first-order and exclusionary reasons examined in the previous chapter.) Raz maintains that an utterance can be authoritative only if it generates pre-emptive reasons for action.7 For our purposes, the controversial and challenging claim is Raz’s assertion that law can be authoritative only ‘if its existence and content can be identified by reference to social facts alone, without resort to any evaluative argument’.8 Suppose that A believes that x should be done and B believes that it should not. Though they discuss the matter, explaining their points of view, they cannot agree and so decide to send their dispute to an arbitrator. They each present their side of the argument: A maintains that x should be done for reason r1; B insists that x should not be done for reason r2. Imagine also that the arbitrator agrees with A that r1 is weightier than r2 and hence rules that x should be done. Crucially, Raz maintains, if the reason for obeying the arbitrator’s decision is merely the strength of (dependent) reason r1 as against r2, then the arbitrator’s decision cannot be authoritative. If the arbitrator’s personal judgement about r1 and r2 was the only reason B should accept the arbitrator’s

7 8 5 6

J Raz, Ethics in the Public Domain, 217. Ibid, 211–15. Ibid, 214–15. Ibid, 211.

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ruling, then he has no more reason to accept that x should be done than he did prior to the arbitration. That is because B was already aware of r1, having been made aware of it by A. Hence, if B treats the decision of the arbitrator as authoritative, then B regards it as providing a reason to accept that x should be done regardless of r1 or r2. And that is to say that the decision is authoritative only if it pre-empts the relevant dependent reasons. In effect, if B asks why he should obey the arbitrator’s decision, the answer must be something such as: ‘Because the arbitrator made the decision, believing it was fair in the light of the evidence and arguments.’ In other words, the arbitrator’s decision is authoritative only if the parties should abide by it because the arbitrator made it. This reason pre-empts the dependent reasons the parties have, because the normative force of the reason for abiding by the arbitrator’s decision is independent of the dependent reasons upon which the arbitrator made his decision. Raz is keen to make clear that his argument does not imply that B must change his mind as to the relative strengths of r1 and r2 – the acceptance of authority does not involve a surrender of judgement in this full sense. Even if B holds the arbitrator’s decision to be authoritative, she may continue to believe that r2 is stronger than r1 and believe that the arbitrator was mistaken in her decision making. But she nevertheless holds that she has a reason to accept that x should be done that is independent of the strengths of r1 and r2. Nor is Raz arguing that the arbitrator must decide the issue for reasons different to the ones given by the disputing parties. In the example above, it is perfectly consistent with Raz’s position that the arbitrator makes her decision by accepting r1, the reason that convinced A and did not convince B. Raz’s point is that, if the arbitrator’s decision is to be authoritative, then it must give A and B a reason for doing x other than r1 and that that reason must pre-empt r1 and r2 for A and B. At least, this reason will be that A and B should do x because that was what the arbitrator decided. Hence, even though the arbitrator’s decision was based on r1 and even though it supports A’s position, the decision pre-empts both r1 and r2 and hence the dependent reasons held by both A and B. Raz concludes that ‘whoever issues […] directives has authority if and only if his directives are authoritatively binding because he makes them, that is 1. they are authoritative, and 2. part of the reason [they are authoritative] is that he made them’.9 Furthermore, Raz maintains that a directive can be authoritative only if it is ‘possible to identify the directive as being issued by the alleged authority without relying on reasons or considerations on which [the] directive purports to adjudicate’.10 Again, the point is not that the arbitrator cannot adopt the



Ibid, 218. Ibid (emphasis added).

9

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reasoning of one of the parties. Rather, it is that one must be able to determine that the arbitrator commanded, and what the arbitrator commanded, in a way that does not involve one in the dispute the arbitrator intends to settle. Raz illustrates this point by asking us to imagine that the parties are not told which specific decision the arbitrator reached, but only that the arbitrator’s decision was the right one in the light of the evidence and arguments with which she was presented. In our example, imagine that the arbitrator declares: ‘I have decided that the course of action to follow is the one recommended by taking into account the relative strengths of r1 and r2.’ That information would do nothing to inform the parties of the arbitrator’s decision. This is because they require the services of an arbitrator precisely because they disagree about what is the right decision in the light of r1 and r2.11 Turning now to law, Raz’s position can be illustrated by reference to his example of taxation.12 Imagine a taxation statute that required individual taxpayers to contribute a ‘fair’ level of their income as income tax. Obviously, this Act cannot authoritatively determine how much tax people are to pay, as they disagree as to the level of fair taxation. Instead, Raz maintains, to perform its function, the Act must set the level of tax that people must pay without reference to evaluative concerns such as fairness. Again, this does not mean that the legislators should ignore fairness in setting the tax rates. Raz’s claim is rather that the rates should be identifiable without reference to considerations of fairness. I should be told, for instance, that I have to pay x per cent of my salary (because the legislators believe that this is a fair amount), not an amount that is fair. Unsurprisingly, Raz thinks that legislation, as well as judicial decision and custom – the traditional sources of law – can be authoritative.13 With respect to taxation legislation, for instance: An income-tax statute is meant to decide what is the fair contribution of public funds to be borne out of income. To establish the content of the statute, all one need do is to establish that the enactment took place, and what it says. To do this one needs little more than knowledge of English (including technical legal English), and of the events which took place in Parliament on a few occasions. One need not come to any view on the fair contribution to public funds.14

For Raz, a strong positivistic conception of law flows from the above. This is because, in the light of the examples discussed, it can be seen that a command can be authoritative only if it is possible to identify that it commands and what

Ibid, 219. Ibid, 221. 13 Ibid. 14 Ibid. 11 12

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it commands without recourse to moral or evaluative concerns. As Raz puts it, it must be the case that the ‘existence and content [of law] can be identified by reference to social facts alone, without resort to any evaluative argument’.15 1.2

The Criticism of Integrity Theory and Inclusive Legal Positivism

In order to see the import of Raz’s argument, it is useful to examine the way in which he brings his conclusions to bear against Dworkin’s integrity theory and inclusive legal positivism. We begin with the former. According to integrity theory, the content of the law can be identified only by interpretation and that interpretation must be both factual and evaluative. In particular, Dworkin insists, judges have a duty to interpret the law in accordance with political morality.16 In consequence, it is never an easy matter to identify what the law is. In fact, Dworkin stresses this point by maintaining that only ‘Hercules’ – a judge of superhuman qualities – is able with routine accuracy to determine what the law is.17 This theory seems clearly to be vulnerable to Raz’s criticism.18 Law on Dworkin’s account seems unable to settle disputes, because the identification of law is always itself a matter of dispute.19 Raz also attaches this criticism to Dworkin’s view of the law’s integrity. In accordance with mainstream views, Dworkin accepts that the positive legal materials – statutes, judicial decisions, and so on – leave many gaps, in the sense that they are unable to provide determinate answers to all questions that have the potential to come before courts.20 But, as we glimpsed in the previous

Ibid, 211. I am here deliberately avoiding becoming entangled with complicating issues, such as whether the judge’s allegiance must be to ‘critical’ political morality or the political morality accepted in the relevant jurisdiction. These matters need not detain us. 17 See J Raz, Ethics in the Public Domain, 224. 18 Ibid, 224–6. 19 I am not saying that Dworkin’s theory is refuted by this argument. I take no stand on that. 20 I accept here arguendo Hart’s basic understanding of gaps in the law. In fact, however, I do not regard the position as coherent. Consider that it is easy to construct a legal regime with no gaps. Here is one potential regime that consists of a single rule that states: ‘If an action is not expressly prohibited, then it is permitted.’ That might not be a great legal system, but it is one with no gaps. Moreover, one could add other rules to this one and create a system with no gaps. Looking at this from another angle: one must distinguish between (a) the notion that there is no law on a subject and (b) the notion that there is a gap in the law in relation to that subject. (b) contains an evaluative judgment that (a) does not. To say that there is a gap in the law is to say that something is missing that ought to be there. Presenting things in this way allows Hart to portray judicial law making as benign – judges are simply filling in holes that ought not be there, where the source of this ought is hidden. The reality, however, is that 15 16

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chapter, Dworkin maintains that when a judge is faced with an issue that falls into one of these gaps, she must produce a decision that arises from the best possible interpretation of the positive legal materials coupled with legal principles and the community’s political morality. Moreover, Dworkin insists that when she does this, the judge does not make new law but identifies what the law already was. This is because law, for Dworkin, is constituted by the best interpretation of the positive legal materials coupled with the community’s political morality, and so on. Raz replies: We assume that [judges] follow right morality, but do they also follow the law or do they make law? My disagreement with Dworkin here is that, in saying that they follow pre-existing law, he makes the identification of a tax law, for example, depend on settling what a morally just tax law would be, i.e. on the very considerations which a tax law is supposed to have authoritatively settled.21

For this reason, Raz holds, Dworkin’s theory robs the law of the capacity to be authoritative and therefore provides an inadequate account of law. We now turn to Raz’s criticisms of inclusive legal positivism, the view that the law of particular jurisdictions may be connected to morality. In such jurisdictions, the theory alleges, the law is not exhausted by the positive legal materials, because those materials themselves refer to evaluative considerations. Hence, the law in jurisdictions of that kind is a combination of the positive materials and the consequences of the relevant evaluative principles. Raz’s criticism of this view is not that legal systems cannot incorporate moral principles. His claim is that, even when they do, the law of those systems is not identified by reference to those principles. As he summarises his view, ‘Moral argument can establish what legal institutions should have said or should have held but not what they did say or hold.’22 It will help to take an example to explain Raz’s position, as matters are perhaps even more complicated than they appear. Take, for instance, the neighbour principle as it applies to the law of negligence’s duty of care. In the well-known words of Lord Atkin: You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neigh-

judges make law that did not before exist and coerce people in accordance with this law, including in relation to actions that preceded the making of the law. Presenting this as gap filling is another way in which Hart occludes the coercive and morally questionable character of law. 21 J Raz, Ethics in the Public Domain, 225. 22 Ibid, 231.

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bour? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.23

It is tempting to say that, on Raz’s account, the neighbour principle cannot be part of the law, as it contains evaluative criteria. That, however, is mistaken. It will help briefly to set out the facts of this case. The plaintiff, May Donoghue, and her friend visited a café in Paisley, Scotland. Donoghue’s friend bought her a drink, a ginger beer float. The ginger beer was produced by the defendant, Stevenson. The plaintiff poured some of her drink from a bottle into her glass and drank it. She then poured more of the drink from the bottle, at which point the decomposing remains of a snail fell out of the bottle into the glass. Donoghue claimed that drinking the contaminated ginger beer caused her to suffer gastroenteritis, and it was for this that she sued Stevenson.24 Reversing previous authority, the House of Lords in a 3–2 decision found that, on the facts as alleged by the plaintiff, the defendant owed the plaintiff a duty of care. As we can see from the extract from Lord Atkin’s judgment given above, the notion is that a manufacturer of a beverage can reasonably foresee that carelessness in the manufacturing of the beverage may lead to injuries to consumers of the beverage. As we say, the plaintiff was within the ambit of the risk created by the defendant’s negligence. What might we say about how this principle applied in Donoghue v Stevenson in the light of Raz’s argument, then? First, we cannot say that the principle authoritatively determined that Stevenson owed Donoghue a duty of care. This is because determining that matter required evaluative judgement. Even after enunciating the neighbour principle, Lord Atkin had to decide whether Donoghue was ‘so closely and directly affected’ by Stevenson’s actions that Stevenson ‘ought reasonably to have [had her] in contemplation’, and so on. But that does not mean that the principle authoritatively determines nothing. The principle does authoritatively determine what question a judge needs to ask in deciding whether a duty of care existed. In this case, the judge must ask whether Donoghue was ‘so closely and directly affected’ by Stevenson’s actions that Stevenson ‘ought reasonably to have [had her] in contemplation’, and so on. Moreover, Donoghue v Stevenson authoritatively determines that people other than the parties to this instant case owe duties of care to those who their actions foreseeably injure, though the case does not authoritatively determine whether duties of care are owed in any particular circumstances. In this 23 M’Alister (or Donoghue) (Pauper) v Stevenson [1932] AC 562 (HL Sc), 580. For convenience, we can ignore later developments of the duty of care. 24 For legal purposes, we have to accept these facts as given by the plaintiff, though the case never went to trial.

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way, the acceptance of the neighbour principle in Donoghue v Stevenson gives people reasons for action. Because of this, Raz can accept that the neighbour principle is part of the law. The question is not over whether the neighbour principle is law but over the legal scope of the principle.25 So, one can say that the principle authoritatively determines that manufacturers will owe duties of care to consumers who they can reasonably contemplate being injured by their products, but one cannot say that it authoritatively determines whether any particular manufacturer owes a duty of care to any particular consumer. Let us take another example. Consider s 31 of the Contributory Negligence Act 1947 (NZ): Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage…

Let us imagine that a court is faced with a case of the relevant kind and, because of the plaintiff’s negligence, reduces the damages payable by the defendant by 30 per cent. On Raz’s view, we cannot say that this result – that is, the reduction by 30 per cent – was authoritatively determined by the Act. But we can say that some reduction was authoritatively determined by the Act and we can also say that the Act authoritatively determined that the judge had to reduce the damages payable in accordance with what seemed to her to be ‘just and equitable having regard to the claimant’s share in the responsibility for the damage’. So what, then, is the argument against Raz’s opponents? Raz’s position is not the crude view that law cannot contain reference to evaluative concerns. Section 31 of the Contributory Negligence Act contains such reference and is law. The point, however, is that what might be described as the consequences of the evaluative notions contained in s 31 are not part of the law, not until they have been authoritatively declared to be so. So, even if we think that the judge in the example above was right to reduce the damages by 30 per cent, the law did not determine that the damages would be reduced by 30 per cent until the judge said so. In these circumstances, before the judge’s decision, we can say that the law should be that damages are reduced by 30 per cent – that is, that this is what the judge should rule – but we cannot say that this is the law until the judge so rules.26

Thus, Raz’s position is misunderstood in, eg, R Dworkin, ‘Thirty Years On’. J Raz, Ethics in the Public Domain, 231.

25 26

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ASSESSING THE ARGUMENT

We turn now to assess Raz’s argument. There seems no doubt that it has proven something of importance. The question, however, is just what that is.27 2.1

Evaluative Considerations

We begin by focusing on matters that relate to Raz’s surely entirely plausible claim that law must be able to settle disputes. Raz makes a number of assertions in this connection that must be investigated in turn. Some of the criticism below may initially strike the reader as nit-picking, but I believe that it is worth reproducing it here, as pulling on a few frayed ends can result in a drastically altered garment. I hope that the reader will bear with me. Recall Raz’s claim that, if an utterance is authoritative, ‘it must be possible to identify the directive as being issued by the alleged authority without relying on reasons or considerations on which [the] directive purports to adjudicate’.28 This is mistaken. We can see this by returning to the example that we have been using to illustrate Raz’s argument as we have been developing that example. A and B, remember, disagree over whether x is to be done. A and B are both aware of r1 and r2 and both agree that these reasons bear on whether x should be done. They both accept that r1 argues in favour of, and r2 argues against, doing x. A, however, believes that r1 outweighs r2, while B believes the reverse. In such circumstances, it is quite possible for an arbitrator authoritatively to settle this dispute by saying ‘I rule that the act recommended by r1 should be done.’ In these circumstances, A and B will understand the utterance to mean that x must be done, even though that understanding depends on ‘reasons or considerations on which [the] directive purports to adjudicate’. Raz could reply to this objection, however, by altering the way that he formulates his position. He could say that an utterance cannot be authoritative unless the content of the utterance could be identified without reference to matters in dispute. Thus, ‘I rule that the act recommended by r1 should be done’ is authoritative as the parties agree that r1 argues in favour of x. However, ‘I rule that what should be done on the balance of r1 and r2 must be 27 For other important objections to the argument, see eg SR Perry, ‘Political Authority and Political Obligation’ and T Christiano and S Sciaraffa, ‘Legal Positivism and the Nature of Legal Obligation’. 28 J Raz, Ethics in the Public Domain, 218. Also, ‘A decision is serviceable only if it can be identified by means other than the considerations the weight and outcome of which it was meant to settle’, ‘They 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 to settle’, ibid, 219.

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done’ could not be authoritative, as what is recommended on the balance of r1 and r2 is precisely the dispute A and B are having. This defends Raz’s argument, but note how narrow this principle is. We are now saying only that an arbitrator’s ruling cannot settle a dispute if it effectively repeats that dispute. We are no longer saying that the arbitrator’s ruling must be free of the issues that arise in the dispute. Nor are we saying anything about evaluative considerations in general. This leads to the next criticism. Recall also Raz’s claim that law can be authoritative only ‘if its existence and content can be identified by reference to social facts alone, without resort to any evaluative argument’.29 It is tempting to say that we have already seen that this is wrong – the example considered immediately above shows this – but this would be a bit too quick. The law must settle disputes, but it must do so in a context unlike that of an arbitrator’s ruling. An arbitrator must settle only the case before him. The law must do not only this but must also be fitting to30 settle relevantly similar cases. Let us return to our dispute between A and B. This dispute can authoritatively be settled by an arbitrator saying ‘I rule that the act recommended by r1 should be done.’ However, disputes of the kind that A and B are having cannot be so settled if some other party who found herself in the position of A or B might have a different view about the consequences of r1. If we imagine the utterance as a law, then we might say that the law authoritatively settles the dispute as between A and B but that it cannot authoritatively settle all relevantly similar disputes. All that is well and good, but it remains the case that a hypothetical law of this kind cannot be identified by refence to social facts alone and does rely on evaluative argument, and yet is authoritative as to the dispute between A and B. Now, the point of this is not to insist that law could have such a form. The point is a conceptual one. It is that, while Raz has noticed a point of some importance, he has misdescribed the nature of that point. As we have seen, Raz focuses on ‘evaluative argument’. His position is that utterances cannot be authoritative if their meaning depends on ‘evaluative argument’. Even if this were generally true, however, it would be true only because utterances whose meanings rely on evaluative arguments have a certain character inconsistent

29 Ibid, 211. Also, ‘the truth of falsity of legal statements depends on social facts which can be established without resort to moral argument’, ‘Moral argument can establish what legal institutions should have said or should have held but not what they did say or hold’, ‘the existence and content of the law is a matter of social fact which can be established without resort to moral argument’, ibid, 231, 234. 30 I deliberately use this somewhat opaque terminology, because insisting on clarity at this point would reveal a number of problems, best left for the discussion that follows.

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with their being authoritative. It is this character that would make the utterances lack authority rather than the presence of ‘evaluative argument’ per se. The task must be to identify this character. Let us return to Raz’s example of taxation legislation. Recall Raz’s claim that a statute that required individual taxpayers to contribute a ‘fair’ level of their income as income tax could not authoritatively determine the amount of tax anyone is to pay. That is surely right, but the reason for this is not that fairness is an evaluative consideration. Consider a statute that required individual taxpayers to contribute a ‘level necessary to permit government spending to be maintained at a level of 45 per cent of Gross Domestic Product’. There are two ways that one might jump with this example. Some (not Raz) might be tempted to maintain that this law would authoritatively determine how much tax a person should pay, because it is in principle possible to provide an objective answer to the question, ‘How much tax is necessary to permit government spending to be maintained at a level of 45 per cent of Gross Domestic Product?’ But that would clearly be a desperate move (and not only because it begs important meta-ethical questions). Answers to questions of this kind are so controversial that one could hardly expect even experts to agree on them. The idea that the utterance in question could settle the level of tax to be paid authoritatively, then, is fanciful. The preferable strategy is to accept that the law could not be authoritative as to the level of tax to be paid, and this seems to be Raz’s position. The crucial point to notice here is that, though Raz constantly speaks of moral considerations, evaluative argument and the like, what actually matters here is whether the considerations are controversial – by which I mean, whether reasonable disagreement is possible with respect to them. An utterance cannot be authoritative with respect to a matter if its application to that matter is controversial.31 The focus on evaluative matters is a distraction.32 In fact, it is a little worse than this. The phrase ‘evaluative matters’ is ambiguous. What we have discovered is that utterances cannot authoritatively settle matters when their application to those matters requires what we might call judgement. Now, one might well describe a matter of judgement as an evaluative matter. After all, a great deal of evaluation – Oxford English Dictionary: ‘The action of evaluating or determining the value of (a mathematical expression, a physical quantity, etc.), or of estimating the force of (probabilities, evi31 As Raz insists, however, law can be controversial in different ways. J Raz, Ethics in the Public Domain, 230–5. 32 Alternatively, one might point out that Raz focuses on evaluative argument, a notion that perhaps imports controversy. But if that is so, then the reply is that what matters here is the ‘argument’ and not the evaluation, and yet the latter is what is prominent in Raz’s theory.

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dence, etc.)’ – is needed to answer the question ‘How much tax is necessary to permit government spending to be maintained at a level of 45 per cent of Gross Domestic Product?’ But, as we have seen, Raz’s argument in fact focuses not on evaluation in this wide sense, but specifically on moral judgement and the like. This, of course, is because the argument is aimed at integrity theory and inclusive legal positivism. It is because we are still captured by Hart’s ‘recurrent issues’. This might have caused little difficulty if all moral considerations were controversial, as that would mean that Raz is merely focusing on a subset of evaluative considerations, but Raz rightly insists that this is not the case.33 Some moral considerations are not controversial, and therefore Raz provides no reason to think that law based on such cannot be authoritative. We will return to this point below. At this stage, it may help to present some examples to illustrate the points made above. First, one might imagine a jurisdiction that taxed income and capital gains at different rates. In many cases, it will be clear whether something is income or whether it is a capital gain, and in those circumstances the law will authoritatively determine the rate of tax to be paid. But there will be cases in which it is not clear whether something is income or a capital gain, and thus the law will not authoritatively determine the rate to be paid on this item. This need not have anything to do with the presence of evaluative concerns in the law. There is simply a dispute as to the definitions of terms in the relevant statute or statutes. Exactly the same considerations (evaluative or not) apply to the easy and to the difficult cases, they authoritatively determine the former but not the latter, and this is because the implications of those considerations are controversial in the latter but not in the former cases. To end disputes that arise in the difficult cases, then, authoritative rulings of some kind must be produced, but what is needed here is a ruling the content of which is non-controversial. In standard cases of the kind we are imagining, what a court (or whatever it is) must do is resolve a dispute about a non-evaluative matter by determining the definitions of the terms. In doing so, Raz may well be right to say that the court will be making new law (more on this below), but that is a different issue. Second, consider the penultimate passage from Lord Atkin’s judgment in Donoghue v Stevenson. My Lords, if your Lordships accept the view that this pleading discloses a relevant cause of action you will be affirming the proposition that by Scots and English law alike a manufacturer of products, which he sells in such a form as to show that he intends them to reach the ultimate consumer in the form in which they left him with no reasonable possibility of intermediate examination, and with the knowledge that J Raz, Ethics in the Public Domain, 231.

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the absence of reasonable care in the preparation or putting up of the products will result in an injury to the consumer’s life or property, owes a duty to the consumer to take that reasonable care.34

Let us say that we have two parties to a dispute where the defendant and plaintiff accept that the defendant manufactured a drink, sold it on the market as a beverage, intended the drink to be drunk by consumers as it was manufactured, knew that once it left the manufacturing premises no one would be able to inspect the drink to see what it contained and was well aware that carelessly manufacturing the drink might result in injury to consumers. In passing, note that only two at most of these are evaluative criteria (the others are facts rather than values according to the traditional division) and yet all may well give rise to great dispute – this was the point made immediately above. But imagine now that there is no dispute over any of this. One question may remain, however. As the history of the law of negligence after Donoghue v Stevenson was to prove, the concept of an injury is highly disputable and this seems to turn on evaluative criteria. Thus, if the injury of which the plaintiff is complaining is economic loss, then a duty of care is unlikely to be owed, because of evaluative criteria. This suggests that the concept of an injury in law is partly evaluative in the relevant sense. But if we imagine that the plaintiff in our example has suffered serious internal injuries as the result of drinking the beverage – say, her stomach is so damaged that she can never eat again and can receive nutrition only though an intravenous drip – we can surely conclude that the law is such that she was owed a duty of care. That this relies on evaluative considerations that would in other circumstances generate controversy is neither here nor there. The emphasis on evaluative concerns is a red herring. If we are interested in settling disputes, then what really matters is that the utterances that we use to achieve this are sufficiently clear that their meaning is not going to be disputed by the parties to the original dispute. This will mean that the directive must not be expressed in such a way that its content can be identified only on the basis of controversial evaluative matters. But then again, the directive must not be expressed so that its content can be identified only on the basis of any controversial matters, evaluative or otherwise. Moreover, in law, the disputes that we normally need to settle are not only between the individuals involved in the instant dispute (if any) but also between those individuals that may have relevantly similar disputes in the future. Thus, we need to avoid not only matters controversial to these particular individuals but all controversial matters, or at least as many as possible.

M’Alister (or Donoghue) (Pauper) v Stevenson [1932] AC 562 (HL Sc), 599.

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Thus, the core truth of the argument from authority is a piece of ordinary common sense that, unfortunately, is distorted almost beyond recognition so that it could serve as a weapon against its author’s philosophical opponents. A genuine weapon it is, but it is nothing like as fearsome as it is claimed to be.35 It is a sheep dressed, not in wolf’s clothing, but in the wardrobe of the Questing Beast. This is what happens when argument is focused not on understanding the phenomenon of law for itself, but on determining the hierarchy of theories of law in the pantheon of jurisprudence. Too little attention is being paid to the law and too much to the history of the philosophy of that subject and to fights that we must learn no longer to have. In that light, it is important to see – and I really cannot stress this enough – that the argument from authority is an examination of some of the consequences of Fuller’s fifth and sixth conditions for the making of law: ‘Make rules that are understandable’ and ‘Issue rules that can be obeyed’. What Raz has shown is that rules that have controversial meanings cannot be obeyed, and thus, to adhere to Fuller’s principles, the ruler must avoid making such laws. And note that one could not seriously deny that laws controversial in this way raise moral issues. Imagine saying to B in our example above ‘You must do what is right on the balance of r1 and r2’ and then fining or imprisoning him when he does what we did not intend him to do. Like Fuller’s, Raz’s argument tells us about the limits of directives. It tells us that directives can succeed only if what they direct is not controversial. That may strike the reader as a rather prosaic discovery, but there it is. It appears to be both more significant and more complicated only in the unnecessarily rarefied air of modern jurisprudence. 2.2

Settling Disputes

We have seen that Raz maintains that the law must be able authoritatively to settle disputes. But what exactly is meant by this? Let us return to our example of A and B arguing over x where they go to an arbitrator who determines that x is to be done. What is the criterion for authoritativeness here? Is it that the dispute between A and B is actually settled so that A and B both now accept that they have to do x? That seems far too strong. Imagine that the arbitrator says: ‘My decision is that x must be done.’ That is surely clear 35 It is, for instance, relevant to argue that law cannot be controversial and that, according to Dworkin, it is necessarily so. But that sounds so much less impressive, mainly because, of course, Dworkin is entirely open about this consequence of his theory. In these circumstances, attention would naturally fall on the claim that law cannot be controversial (in the relevant sense) and this, as we are about to see, is far from obvious.

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enough, but there is no guarantee that B will accept this. B might stubbornly continue the dispute. She might, for instance, begin to argue about what x is. We cannot say that B’s ability to be pig-headed shows that the arbitrator’s utterance lacks authoritativeness. Perhaps the requirement is not that the utterance does settle the dispute, but that it must be able to settle it. This seems at least closer to Raz’s position. However, if the previous position was too strong, this is surely too weak. An utterance such as ‘Why don’t you both just have a nice cup of tea and put yourself in each other’s shoes and have a good long think about it’ might actually settle the dispute. If followed in good faith, it might settle many disputes. But it cannot do so authoritatively. What we are starting to see is that the focus of the argument from authority is again misplaced. Settling disputes too is a distraction. Yes, the law must be able to settle disputes at least most of the time, but once again we are examining the symptom and not the disease. Imagine that A and B go to court and the judge rules in A’s favour. Imagine also that it is clear to everyone except B that the judge has ruled that x must be done. B continues to dispute this. What is the motivation for saying that in these circumstances the judge’s utterance does not authoritatively determine that x is to be done? Let us take an actual case. In Miller v Jackson36 the plaintiffs attempted to obtain an injunction to prevent cricket being played on the neighbouring cricket ground because balls were being struck into their property, damaging it and causing risk of personal injury. The majority of the court declined to award an injunction. Imagine, though, that the plaintiffs did not accept this and attempted to continue the dispute. What could they do? They could perhaps attempt to occupy the pitch so that games could not be played, but if they do this they will be guilty of trespassing and can be removed. They might attempt to threaten players to deter them from playing, but if they do they will be guilty of assaults or the like and will find themselves thwarted in various ways. The point is that these people can dispute whatever they like, but if the rest of the world accepts the court’s judgment then we can surely say that it was authoritative. Imagine now the reverse. Imagine that the court had awarded the injunction and the cricket club wanted to continue the dispute. They might organise cricket games to be played. But if they do this, they will find themselves in contempt of court and their officers may end up in prison. They can dispute this all they like, but if others accept the court’s ruling then it is authoritative. Settling disputes is important but it is not what really matters here. What matters is collective recognition. The argument from authority in fact argues Miller v Jackson [1977] QB 966 (CA).

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– and argues correctly – that directives can be authoritative only if they are sufficiently clear as to be capable of obtaining collective recognition. 2.3

Controversy and the Background

Recall this passage. An income-tax statute is meant to decide what is the fair contribution of public funds to be borne out of income. To establish the content of the statute, all one need do is to establish that the enactment took place, and what it says. To do this one needs little more than knowledge of English (including technical legal English), and of the events which took place in Parliament on a few occasions.37

The linguistic claims made in this passage are quite implausible, and not only because no tax lawyer could possibly accept the claim that understanding tax statutes requires ‘little more than knowledge of English (including technical legal English), and of the events which took place in Parliament on a few occasions’. The fact is that no sentence can be understood only on this kind of basis.38 As we saw in Chapter 6, all utterances are interpreted against a Background of intentional states, shared practices and abilities. The idea that understanding language is a simple matter of learning the dictionary meanings of words and paying some attention to context is a view that still has some life in law, but it is living on borrowed time. Consider, for instance, s A1 of the Income Tax Act 2007 (NZ), which states: ‘This Act is the Income Tax Act 2007.’ In order to understand even this simple – some might say moronic – phrase, one must already know a prodigious amount. One must know that an Act is something produced by Parliament, that it is legally binding, that courts apply and enforce it, that income is wealth that one gains (but not all kinds of wealth), that tax is money paid to the government, and so on. And then there are all sorts of other ‘notions’ that we must take for granted in order to understand the passage as we do: that, for instance, Parliament consists of people and not, say, worms; that gaining money counts as income but breathing air does not; that transferring money to the Inland Revenue Department counts as paying tax but that urinating on a lamppost does not, and so on. But if this Background changes, then the meanings of the relevant utterances can change. It is possible to

J Raz, Ethics in the Public Domain, 221. Though, I suppose, one might suggest that ‘knowledge of English’ includes a great deal, including the Background. But if this strategy is employed, then the response is to say that ‘knowledge of English’ imports morality. 37 38

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imagine situations in which breathing would count as income, for example. Perhaps this is a glimpse of the future. Nothing is inherently uncontroversial. If the authoritativeness of law requires the making of utterances that can be interpreted with ‘little more than knowledge of English (including technical legal English), and of the events which took place in Parliament on a few occasions’ then there can be no authoritative law. In reality, law need not be uncontroversial in this odd sense. It is sufficient if it is uncontroversial given the Background of the participants. But once we say that, we can see again that there can be no justification for any blanket position to be taken on the presence of evaluative considerations. If certain aspects of political morality form part of the Background, then the law’s authoritativeness will not be defeated if the law incorporates or relies on these. 2.4

Must All Law be Authoritative?

Though the criticisms raised of Raz’s position have been significant ones, it is nevertheless the case that Raz’s attack on his opponents remains largely intact. I am arguing that we should care less than we do about that; nevertheless, this is a matter worth exploring. Raz’s argument in this regard remains intact because his opponents are committed to the view that law authoritatively determines matters that are (morally) controversial. I am inclined to think that this does not defeat inclusive legal positivism (though, as I keep stressing, I do not think that we should care about this sort of positivist jello wrestling) or integrity theory. The point to be made now, however, is that Raz does not show, does not even really try to show, that all law needs to be authoritative. His argument establishes that there must be ‘authoritative positivist law’,39 but it cannot establish that all law must be authoritative and positivist. It is not only in the argument from authority that this issue arises. Consider also the following passage from Raz’s discussion of the nature of law. The need for […] courts of law to be, at least partly, guided by authoritative positivist considerations, is clearly seen by contemplating its negation. There are forms of arbitration in which the arbitrator is instructed merely to judge the merits of the case and to issue a just judgment, without being bound to follow any authoritative positivist standard. […] But one does not have a court of law unless it is bound to take as author­itative some positivist standards such as custom, legislation, or precedent. So much we can learn from our intuitive understanding of the nature of courts of law as a political institution. How can we use this understanding as a base on which

J Raz, Ethics in the Public Domain, 206.

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to anchor a complete doctrine on the nature of law? The clue is in the emergence of authoritative positivist considerations as crucial to our conception of courts of law which, in accordance with BI [the idea that ‘The law has to do with those considerations which it is appropriate for courts to rely upon in justifying their decisions’40], provide the institutional key to the nature of law. We can formulate an additional constraint on an adequate doctrine of the nature of law. AP Law consists only of authoritative positivist considerations.41

Here again we see the slippage from the idea that there must be at least some authoritative positivist law to the conclusion that all law is authoritative and positivist. The explanation for the existence of this non sequitur is that, despite Raz’s initial insistence that settling disputes is only one of the roles of law,42 it is clear that he comes to regard it – at least for the purposes of the argument from authority – as law’s central role. It is because he and many of his readers are thinking of settling disputes that the conclusions he draws from his criticism of integrity theory and inclusive legal positivism seem to follow. Without this, they could not appear to be plausible.43 Moreover, if we shift our focus from settling disputes to the form that a directive must have in order to enjoy collective recognition, then it will become clear that there is no reason to hold that all law must be authoritative. Simply, something is a law if it is collectively recognised as such. This problem goes to the heart of Raz’s argument. As we have seen, it begins with the stipulation that law’s function is to settle disputes. This is just the wrong place to start. Law has whatever functions we choose to give it – or more accurately, law has whatever functions it is collectively recognised as having. Raz is surely right that settling disputes will be one of those functions, but there could be – in fact are – many others. What they are is something that needs investigation; it cannot merely be stipulated, much less done so tendentiously in order to sharpen one’s philosophical blades for use against one’s opponents. It is not, then, appropriate for me to stipulate my own list here – and, in any case, I have suggested in Chapter 8 that no definitive list can be given. In summary, then, we can say that Raz shows that, in order to work, a legal system needs to have authoritative positive law. This law must be expressed in such a way that its content can be identified in uncontroversial ways. But we have seen no reason to deny that there can also be law of a different kind. This is certainly not to say that Raz’s work is unimportant. It is the most significant

42 43 40 41

Ibid, 199. Ibid, 206. Ibid, 205. See also D Dyzenhaus, ‘Positivism’s Stagnant Research Programme’, 713.

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investigation we have into the nature of legal authority, even if its message tends to be mislaid by its unproductive use as a weapon against its perceived philosophical opponents. We should forget about the deployment of the argument against integrity theory and focus instead on what it has to tell us about the limits of legal directives. In pursuing the line of enquiry begun by Raz, we will continue to learn important facts about the nature of law. Though we have shown that the argument from authority does not establish that non-authoritative law is impossible, that of course does not mean that such law actually exists. Whether it does is the subject of the following chapter.

15. Dualism This chapter explores the idea, raised in the previous chapter, that non-authoritative law exists. It explores this matter via an examination of a well-known debate between Dworkin and Raz (among others). As usual, it suggests that both sides have a point, but that the debate is obscuring the truth from us.

1.

WRONGLY DECIDED CASES

I think it best to begin with an example. It is a complicated example. Nevertheless, it will usefully reveal to us something important about the debate between Raz, Dworkin and others who work in this area. We briefly examined the case of Donoghue v Stevenson in the previous chapter. For reasons that will become clear, it will be useful to present the facts of this case in diagrammatic form, as in Figure 15.1.

Figure 15.1

Donoghue v Stevenson

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The defendant, recall, manufactured the ginger beer. He sold it to the café (there were perhaps intermediaries here, but that need not detain us). The café sold the ginger beer to Donoghue’s friend and the friend gifted it to Donoghue. Donoghue drank the ginger beer and was injured. The question for the court was whether Stevenson owed Donoghue a duty of care. Three judges answered in the affirmative. Two did not. One of the reasons Donoghue v Stevenson was so important was that the law up to that point would have answered that question in the negative. It was this line of precedent with which the dissenters in Donoghue v Stevenson sided. In England, the law was perhaps best represented by the decision of the Court of Exchequer in Winterbottom v Wright.1 In that case, the Postmaster General contracted with the defendant to supply and maintain a mail coach. The Postmaster General contracted with Atkinson to operate the coach and Atkinson contracted with the plaintiff to drive the coach. The defendant failed to maintain the coach adequately, in breach of his contractual obligations with the Postmaster General. As a result, an accident occurred that injured the plaintiff. The plaintiff sued the defendant for those injuries. This can be represented as follows in Figure 15.2.

Figure 15.2

1

Winterbottom v Wright

Winterbottom v Wright (1842) 10 M & W 109, 152 ER 402.

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Note, then, the similarity between the structures of the fact patterns in these two cases. In Winterbottom v Wright, however, the court ruled that the defendant did not owe the plaintiff a duty of care. There is room for much argument over why this was. We will not try to settle this matter here, though we will take this up again in the following chapter. Suffice it to say for now that one possible reading of the position taken in Winterbottom v Wright is that the presence of the contract between the defendant and the Postmaster General meant that the defendant could not have owed a duty of care to the plaintiff. One could read the judgments in the case to say that if A performs an action that he is under a duty to perform because of a contact between A and B, then A can be liable only to B for the performance of that action. This is not, in fact, how I think that the case is best read. Nevertheless, it is often read in this way, we will see that this reading played an important role in the historical development of the law, and, in any event, the argument that follows requires only the possibility of the reading being accurate. We could, of course, substitute other cases, even imaginary ones, for Winterbottom v Wright and Donoghue v Stevenson. It is just nice to have real cases. With that in mind, the really important point is that, interpreted in this way, Winterbottom v Wright commits a legal error, an error that was later famously to be described as ‘the nineteenth century fallacy […] exploded by Donoghue v. Stevenson’.2 What was this fallacy? Its nature is readily apparent from the diagram presented above. As interpreted, Winterbottom v Wright held that the contract between the defendant and the Postmaster General undermined the plaintiff’s ability to sue the defendant in tort. The contract between the defendant and the Postmaster General, that is, created a kind of immunity in the defendant with respect to third parties to the contract. Transferred to Donoghue v Stevenson, this rule would mean that the contract between the defendant and the café (or intermediary) meant that the defendant could not have owed a duty of care to the plaintiff. But this is an elementary legal error, as it is axiomatic that contracts operate in personam and so affect only the legal positions of the parties to the contract. This is known as the privity doctrine.3 It is usually examined in the context of what are known as third party beneficiaries of contracts, where apparent exceptions to the privity rule have been carved out, but the doctrine is just as relevant here. Clearly, it would be an extraordinary thing to hold that I can affect your legal position, removing your rights, by forming a contract

Candler v Crane Christmas & Co [1951] 2 KB 164 (CA), 179 (Denning LJ). Ironically, the rule thought to be instituted in Winterbottom was also known as the privity rule. See, eg, JCP Goldberg and BC Zipursky, Recognizing Wrongs, 66. 2 3

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with someone else – but that is precisely what, according to this interpretation, the court held in Winterbottom v Wright. This should lead us to say that (as interpreted) Winterbottom v Wright was wrongly decided. Deferential to the past, the majority of the House of Lords in Donoghue v Stevenson did not quite say this. Nevertheless, this is effectively what they are understood to have ruled. As we have seen, we do not view Donoghue v Stevenson as gently distinguishing Winterbottom v Wright but as ‘exploding’ the fallacy contained within the latter case and, indeed, the case itself. If, then, Winterbottom v Wright was wrongly decided, then it was wrongly decided in 1842. In effect, the House of Lords determined as much in 1932. What, then, was the law between 1842 and 1932? Allow me to formalise the issue. As interpreted, Winterbottom v Wright stands for the following proposition. P

If A performs an action that is covered by a contract between A and B, then A can be liable only to B for the performance of that action.

Winterbottom v Wright was decided in 1842. It was ‘exploded’ by Donoghue v Stevenson in 1932. The question is, was P the law in, say, 1928? Raz says that it was. Though P is morally problematic, it was authoritatively announced by the court in 1842 and was not authoritatively rejected until 1932. Therefore, it was the law in 1928. Dworkin says that it was not.4 As Winterbottom v Wright was wrongly decided due to its commitment to P, P was never the law. Let us ask some questions about this. Let us imagine that – to pick a random date – it is 26 August 1928. You work as a solicitor. I am thinking of starting a new business manufacturing orangeade. I recognise, however, that there is a risk that the orangeade might become contaminated and may injure consumers. I come to you to ask advice. I ask, ‘What would happen to me legally if something goes wrong and the consumers of my orangeade are injured?’ You ask me what my business arrangements are. I explain that I have a contract to sell the orangeade to a distributor who will sell it on to consumers. You reply, ‘In that case, don’t worry. As long as you have a contract with a third party, consumers won’t be able to touch you.’ What you are saying here seems to be right, and that appears to show that P is the law. This positivistic picture seems simple enough. In 1928, P was the law. But imagine now that my name is David Stevenson and that my main line of business is to manufacture ginger beer and lemonade at premises located at 11 and 12 Glen Lane, Paisley. As coincidence would have it, 26 August 1928 Or, at least, this is the kind of thing that he may wish to say. I do not want to put words into his mouth. In any case, our focus is not really on Raz or Dworkin, but on correctly understanding the law. 4

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was the date that May Donoghue and her mysterious friend met at the Gilmour Street Railway Station and walked to the Wellmeadow Café hoping to enjoy a pleasant beverage. Three years and nine months later, on 26 May 1932, I find myself on the losing end of a judgment of the House of Lords. I hunt you down. Bursting into your office, I ask you: ‘How can I be liable? I thought that P was the law?’ You reply, ‘It was, but the House of Lords in this case has nevertheless said that (on the facts as alleged by the plaintiff) what you did was illegal.’ And what am I to make of that? My actions could have been illegal at the time only if P was not the law. What are we to say here? It may help to simplify this argument. In case 1, the Supreme Court decides that the law is x. In case 2, the same court decides that case 1 was wrongly decided. What was the law in the intervening period? Raz says that it was x, as x was authoritatively determined by the court in case 1 and not authoritatively overturned until case 2. But Dworkin notices that the decision in case 2 is that the court in case 1 was wrong as a matter of law to make the decision that it did. If that is right, then it seems to follow that there must be some sense in which x was never the law. After all, the court in case 2 has authoritatively determined and determined correctly (we can assume for the sake of argument) that x always misrepresented the law: case 1 was wrongly decided; it got the law wrong. Let us return to our narrative. Imagine now that, furious at you, I throw you down the stairs, killing you. I am arrested and put on trial for murder. The case is a difficult one because of a lack of evidence relating to my intentions, but the result is that I am convicted. On the day of my conviction, I ask my lawyer, ‘How can these clowns justify putting me in prison?’ She responds, ‘Because what you did was illegal.’ ‘But’, I reply, ‘until today it was controversial for evaluative and other reasons that what I did was illegal – or at least that it was murder – so how can you say that what I did was illegal when I did it? Of course, what you mean is that it is illegal now. The court just told us so. But what are you trying to tell me? That on 26 May 1932 what I did was not illegal but today it is? Not only is this retrospective legislating totally immoral, it is not even coherent.’ Calming down now, we might ask, just as a matter of logic, how could my actions not be illegal then and illegal now? And abstracting from this a little, do we really have to say that, because it was controversial for evaluative and other reasons whether I committed an illegal action, we cannot say that it was illegal? Is it not the case that the evidence presented at the trial, though controversial, can reveal that what I did was illegal? Raz and Dworkin bite different bullets when it comes to dealing with these issues. Raz holds that all law is authoritative. Thus, he says that P was the law until it was overruled in 1932. On the one hand, that seems eminently sensible. On the other hand, though, it seems that we cannot say what we need to say: that even before 1932 P misrepresented the law. Likewise, to take the case

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where I throw you down the stairs, Raz says that when the court finds me guilty of murder, it determines that my action was illegal in a way in which this was not determined before. Again, that seems right. The problem is that we also want to say that the court rightly determined that my action was illegal because it already was (and this is not the same as saying (accurately) that in finding me guilty the court correctly applied the law). Dworkin’s strategy is the reverse. He would accept that P was never the law and that the law can precede its authoritative utterance. Raz criticises this in effect because it would force us to say that the advice that you gave me on 26 August 1928 was incorrect, but that is not quite right. Dworkin’s position on this matter would be that Winterbottom v Wright was wrongly decided and that the court was wrong to say that P was the law. P was never the law. Nevertheless, Dworkin would accept that the court in Winterbottom v Wright had the authority to make a binding judgment in relation to the facts of that case and in relation to P. So, Dworkin would say that on 26 August 1928 it was authoritatively determined that P, but P was not the law. Again, on one level, this seems right. But surely Raz has a point here. If it was authoritatively determined – that is, determined by a body with the legal authority to make that determination – that P was the law, surely we can say that it was the law. Similarly, Dworkin would say that I do act illegally when I throw you down the stairs and that the court rules that the action was illegal because it was. But Raz is surely right to point out that something is missing. There is a sense in which it was not the law that what I did was illegal until the court determined such. That is part of the reason we need courts to determine these things. It would not, for instance, be appropriate for me to be thrown in prison on the basis that what I did was not illegal when I did it, until the court later ruled that it was illegal.

2.

LEVELS OF LEGAL UNDERSTANDING, LEVELS OF LAW

Imagine a man whose best friend has recently died. Frequently, he visits his friend’s widow, bringing her gifts, doing her favours and the like. I ask him why he does this. He tells me that his friend loved his wife very much and that, out of respect for his friend, he wants to do all that he can to make his friend’s wife happy. I have no reason to believe that he is anything other than completely sincere about this. However, as time goes on, I also cannot fail to notice that he appears greatly to enjoy being in her company and that he seems to invent rather flimsy excuses to visit her. To my eyes, he appears to be developing a deep attachment to her. Gently, I suggest that to him that something is growing between them. He is outraged, furiously denying the suggestion. Again, I am convinced that he is sincere, but the very force of his denial seems

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to indicate that I am right. He loves her, but he cannot admit this to himself in the circumstances. His respect for his friend is both what he believes to be the explanation for his behaviour and the reason he does not comprehend the real reason for his behaviour. He says that he does not love the woman. I say that he does. Imagine that in an embryonic discipline that we might as well call psychology, two schools of thought arise. One school insists that, as an emotional state, one cannot be unaware of being in love and so the man does not love the woman. The other school holds that love is best detected by behaviour, and so insists that the man is in love. However, over time, due to the efforts of people with names like Schelling and Schopenhauer, a theory, popularised most powerfully by a man we may as well call Freud, develops a circuit breaker and, along the way, gives birth to psychology as a genuine scientific discipline. According to this view, the man does and does not love the woman and there is no contradiction here whatsoever. The man does not consciously love the woman, but he loves her unconsciously. The problem was that the two schools of thought were operating with an overly simplistic view of the mind. Now that this hurdle is overcome, psychology can begin in earnest to examine the complexity that in fact exists. I want to say that essentially the same thing is true in law. Jurisprudence remains at an embryonic stage in this area, because the complexity of the phenomenon it is meant to be investigating is barely recognised and is frequently denied. Jurisprudence insists that law be put into pigeonholes too small to contain it, jurisprudents fighting over which inappropriate pigeonhole to favour. Again, the focus needs to shift from the battle between theories of law back to the phenomenon itself.5 There are at least two ways of understanding law that in some ways mirror the distinction between conscious and unconscious love. Let me present the position in its basic form. Imagine the following. (1) The courts say that a defendant will be liable if list of prerequisites a obtains. (2) However, courts frequently refuse to impose liability on defendants when a obtains. (3) Courts in fact impose liability when list of prerequisites b obtains. (4) Courts strenuously deny that they impose liability when list of prerequisites b obtains and frequently deny that the concerns on list b are relevant. This, of course, does not imply that no jurisprudent has noticed this before me. That is not the case. See, eg, J Finnis, ‘The Fairy Tale’s Moral’. The point is that this thought has not penetrated mainstream jurisprudence. 5

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Now, one might wish to argue that this is a circumstance that would never happen in reality. I return to this shortly. For now, however, it is sufficient that it could happen and there is no good reason to think that, at least in principle, it could not. So, then, we have our conceptual problem: if (1)–(4) obtain, what is the law? What we need to be able to say is that, as it were, consciously the law is a, but unconsciously it is b. Obviously, the terms ‘consciously’ and ‘unconsciously’ will not do, as we are talking about the law and not a mind. But finding better terms, and concepts, for this is a task for the philosophy of law. Unfortunately, as we have seen, jurisprudence is a major brake on the philosophy of law even beginning to do its job in this area. What about the claim that (1)–(4) could not obtain, or obtain very rarely, in real life? My response is that it happens all the time. Why should we be surprised? If people can be in love and not know it, then it is certainly possible, even easy, for judges to do things for reasons they do not properly understand or cannot properly articulate. This is particularly likely to happen where there are strong disincentives for recognising what is, in fact, going on. I now discuss what I take to be the best example of this of which I am aware. This is problematic, of course, as people understand the area of law that we will investigate differently. Many think that I am wrong. Nevertheless, it is useful to examine some real examples and none are uncontroversial. What is crucial, however, is that the reader sees that examples like this could exist, even if she disagrees with my analysis of this particular example. In New Zealand (as, indeed, in the common law world generally, though perhaps not now in England6), it is accepted that if a defendant makes a statement and a plaintiff relies on that statement to her detriment, then, speaking generally, the plaintiff will be able to sue the defendant if she can prove that the defendant made the statement negligently and the defendant owed the plaintiff a duty of care in making the statement. It is also said that, again speaking generally, a defendant will owe a plaintiff a duty of care if the plaintiff’s detrimental reliance on the statement was reasonably foreseeable. We can summarise this by saying that, in these circumstances, a plaintiff can successfully sue a defendant if the plaintiff can establish ‘a negligence action’ against the defendant. In line with this, it is also accepted that the plaintiff’s ability to recover does not require that there had been any (real) assumption of responsibility by the defendant to the plaintiff, this being unnecessary for

6 Playboy Club London Ltd v Banca Nazionale Del Lavoro SpA 2018 UKSC 43, [2018] 1 WLR 4041.

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establishing ‘a negligence action’.7 Given what I have said, the conclusion may seem obvious. It seems clear that the law in New Zealand is that a plaintiff can recover in the relevant cases if and only if she can establish ‘a negligence action’ against the defendant. It seems just as clear that the law is that assumptions of responsibility are unnecessary for liability in this area. That is what the courts have said on many occasions. But it is also true that many cases have come before the New Zealand courts in which it is clear that the defendant was negligent (or that was accepted arguendo) and it was clear that the defendant could reasonably foresee the plaintiff’s detrimental reliance, and yet courts keep inventing exceptions to their stated approach to ensure that these plaintiffs lose. In other words, there are a string of cases in which plaintiffs do establish ‘a negligence action’ against defendants and yet lose. Moreover, as it turns out, plaintiffs only ever win when the defendant has assumed responsibility to them, though this is not the basis upon which the courts ever make their judgments. What are we to say here? Let me summarise the situation as I understand it. (1)

The courts say that a defendant will be liable if the plaintiff can establish a ‘negligence action’ against the defendant. (2) However, courts frequently refuse to impose liability on defendants when the plaintiff can establish a ‘negligence action’ against the defendant. (3) Courts in fact impose liability only when the defendant has assumed responsibility to the plaintiff. (4) Courts strenuously deny that they impose liability only when the defendant has assumed responsibility to the plaintiff and deny that (real) assumptions of responsibility are relevant. Had we a more developed language in which to describe these things, we might be able to say the equivalent of: Consciously, the law imposes liability if the plaintiff can establish ‘a negligence action’, but unconsciously the law imposes liability only when the defendant has assumed responsibility to the plaintiff. Imagine, for instance, the fun Freud might have had with the following passage. Concerns have been expressed about the appropriateness of the concept of assumption of responsibility in the present context […] The potential difficulty is with the

See, eg, AG v Carter [2003] 2 NZLR 160 (CA); North Shore CC v AG (The Grange) 2012 NZSC 49, [2012] 3 NZLR 314; Carter Holt Harvey Ltd v Minister of Education 2016 NZSC 95, [2017] 1 NZLR 78. 7

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word ‘assumption’, which suggests a voluntary act. In tort obligations are imposed, not assumed, as they are in contract. But, that said, the idea of one person assuming, in the sense of coming under, a responsibility to another in tort, does have value when understood in the sense that in certain circumstances the law requires responsibility to be assumed. Responsibility is then deemed in law to have been assumed. The expression ‘deemed assumption of responsibility’ conveniently expresses this process of thought and is thus conceptually consistent with the conventional difference between tort and contract.8

One might say, rather, that the choice of expression ‘deemed assumption of responsibility’ is the outcome of a process of not fully successful repression, a classic Freudian slip. Of course, as already noted, we cannot use the terms ‘consciously’ and ‘unconsciously’ in this context. What, then, should we say? Well, what we do say is (i) that the law is that the plaintiff must establish ‘a negligence action’ and the law is that an assumption of responsibility is irrelevant, and (ii) that the law is that an assumption of responsibility is required and the law is not that the plaintiff must establish ‘a negligence action’. This is part of the reason why there is so much confusion in this area. Both (i) and (ii) are true and yet they seem contradictory. In fact, of course, they are not contradictory, because the referent of ‘the law’ is different in each case. Now, it may be tempting to insist at this point that we should use the term ‘the law’ only in the sense of (i) and not in the sense of (ii). There are, however, two powerful arguments against this. The first is that, as we saw with our previous example, it is (ii) and not (i) that provides the explanation for the phenomena in question. Just as the man’s unconscious love for the widow is the real explanation of his behaviour, not his professed respect for his friend, assumptions of responsibility are the real explanations of liability in this area and not the professed establishment of ‘a negligence action’. Second, and in light of the above, there is no room for prescription here. The word ‘law’ means what it is collectively recognised to mean, and the fact is that it is collectively recognised to mean what it means in (i) and (ii) (and whatever else). It may be that we ought to try to develop our terminology so that ‘law’ comes to have a more restricted meaning, but even if that succeeds and even if (i) comes to be the sole accepted use of the term ‘law’, that would have no relevance to the debate between Raz and Dworkin. Clearly, that debate is not about what the word might mean in the future. If one is a practising lawyer, focused on things such as advising clients and arguing in court, then one may well say that the law in New Zealand is as it was described in (i). But if one were a sociologist interested in studying the



8

AG v Carter [2003] 2 NZLR 160 (CA), [23].

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normative structure of New Zealand society – following in the footsteps of Durkheim,9 say – one might well say something quite different. One might recognise that ‘black letter’ doctrine is committed to (i) but be quite uninterested in that. Such a person might rightly say: ‘New Zealand law is such that a statement maker is liable for detrimental reliance on that statement only if the person who made the statement assumed responsibility for the consequence of that reliance.’ Now, in the spirit of the argument from authority, one might respond that this is not the law; that this is an implication of the law and not the law itself. But this just table thumping. The sociologist can quite correctly say that ‘The law in New Zealand is that a statement maker is liable for detrimental reliance on that statement only if the person who made the statement assumed responsibility for the consequence of that reliance’, even though ‘the law’ does not say this. This just reflects the ambiguity in the use of the term ‘law’ that we see, for example, in (i) and (ii). ‘The law’ in (i) refers to what the judges have said, while the same phrase in (ii) refers to what actually happens. And what is a law professor to do in this same circumstance? That depends on what she is trying to do. If she is simply trying to report the law as it is presented in the courts, then she will say what the practising lawyer says (i). But if she is trying to understand the law more holistically, if she is trying to develop a picture of the law that is intelligible and coherent, then she will approach the matter more as the sociologist would. She may well say (ii). The best, I think, that we have done with this is to say that the black letter law, or positive law, says (i) but as a matter of principle the law is (ii). Because of its history and its structure – I am thinking in particular of the centrality of judges – the common law conception of itself is very close to that of legal practice. Thus, common lawyers, even academic lawyers, are often unused to perspectives on law that differ from the perspective of those whose interest in law stems from advising clients, arguing in court and the like. But this is just an accident of the common law’s history. Civil lawyers sometimes regard the common law’s self-conception as somewhat amusingly anti-intellectual in this regard.10 Raz’s theory is the most powerful account of this perspective on law that any theorist has ever produced (though it is the opposite of anti-intellectual). But it is only one perspective. The law does not come to us as a phenomenon that is unified in this way. Because of this, it can be illuminated at different levels. Consider this example again.



Eg E Durkheim, The Division of Labour in Society. Note that I am not saying that they think the common law anti-intellectual.

9

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(1) The courts say that a defendant will be liable if list of prerequisites a obtains. (2) However, courts frequently refuse to impose liability on defendants when a obtains. (3) Courts in fact impose liability when list of prerequisites b obtains. (4) Courts strenuously deny that they impose liability when list of prerequisites b obtains and frequently deny that the concerns on list b are relevant. What is the law here? Contra Raz, you do not have to say that it is a and contra Dworkin, you do not have to say that it is b. What you should say depends on your purpose in describing the law. In some circumstances it will be perfectly in order to say that the law is a and in others that it is b. It is particularly important to resist the positivist insistence that one must say that it is a, a view widespread in and outside jurisprudential circles. It is not clear why saying that the law is in fact b would be any different to saying of a man who eats ten kilograms of sugar a day that he has a sweet tooth, even in the teeth of his aggressive insistence that he is indifferent and seldom touches the stuff. I recall a rather unpleasant moment at a Thai restaurant when I pointed out to a woman regaling us with her professed hatred of coriander that the soup she was eating and enjoying was full of the stuff. That may have been indelicate of me, but am I really forced to accept her self-understanding? Would we not say that a theory of psychology that insisted on that was, shall we say, problematic? And what should we say if that theory dominated the discipline? Unfortunately, the common law has been very slow to wake up to these points. Witness, for example, the fact that it is still routine to object to theoretical accounts of the substantive law by insisting that ‘It doesn’t work that way in courts’, or ‘It doesn’t fit with what the courts have said’, or the like. The amount of valuable research into law in the sense of (ii) that is rejected on the basis that it is not consistent with law in the sense of (i) is maddening. This is very important. The kind of situation under discussion, in which patterns of liability emerge and yet the reasons given for those patterns by courts are inadequate to various degrees, seems to me to be routine in the common law. We need to be able to discuss these cases constructively. In doing so, we must of course pay close attention to what the courts say, but the notion that analysis of the law must stop there is the equivalent of condemning the theory advanced in Capital on the basis that it cannot explain why my wallet is empty or rejecting psychoanalysis on the basis that I am not conscious of being repressed. Dworkin is much to be congratulated for expending a huge chunk of his career on the refusal to be captured by what we have called the common law’s self-conception (though it must be said that this does not sit well with how

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he understood his work). It may be that this is his greatest contribution – and I do not mean that to be in any way pejorative. The problem for Dworkin is that he insisted, not that lawyers should expand their perspective, but that they reject the self-conception. This problem exists at two levels. Tactically, it meant that Dworkin could too easily be dismissed by those captured by the self-conception and unwilling to entertain alternatives. ‘In 1928, the law just was P. End of story. Dworkin says otherwise? Bollocks. Goes to show what a waste of time philosophy is.’ But there is a philosophical mistake here too. Dworkin rejects the self-conception. He therefore says that P was never the law, though it was authoritatively determined to be the law by a court of law from 1842 until 1932. He also maintains that statutes are not law proper – as law is revealed only via interpretation – but only pre-interpretive legal data.11 There is really no need to say anything so counterintuitive. What we see here is that Dworkin too is captured by the idea that there can only be one valid perspective on law – it is just that he argues for a different one than Raz. In this regard, Raz and Dworkin are both right and wrong. They rightly identify valid perspectives, but wrongly deny the validity of their opponents’ viewpoints. P was law in 1928 in some senses of law, but not in others. No sense has conceptual priority over any other. Incidentally, Brian Leiter has claimed that Dworkin’s strategy at this point gave him a ‘dialectical advantage’.12 By this, Leiter means that it made Dworkin’s theory appear interesting in a way that it would not otherwise have been. He was the one major theorist prepared to say that immoral law was impossible. That made him the antithesis of positivism and allowed him to play a needed role in the drama of jurisprudence: either the villain to positivism’s hero or the reverse. But, as the following chapter shows, this gave positivism a huge dialectical advantage also. It made it seem as if positivism actually had an antithesis and was therefore important in a way that it is not.

3.

FINALITY AND INFALLIBILITY

One area in which the common law’s self-conception tends to break down concerns the issue of finality. This is what Hart tells us about the matter. A supreme tribunal has the last word in saying what the law is and, when it has said it, the statement that the court was wrong has no consequences within the system: no one’s rights or duties are thereby altered. The decision may, of course, be deprived of legal effect by legislation, but the very fact that resort to this is necessary demon-

R Dworkin, ‘Thirty Years On’. See also M Greenberg, ‘The Standard Picture and Its Discontents’. 12 B Leiter, Naturalizing Jurisprudence, 162. 11

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strates the empty character, so far as the law is concerned, of the statement that the court’s decision was wrong. Consideration of these facts makes it seem pedantic to distinguish, in the case of a supreme tribunal’s decisions, between their finality and infallibility.13

This view had a certain plausibility when it was first published, at least in the jurisdiction in which it was published, but the appearance of plausibility cannot survive the Practice Statement of 1966, in which it was declared that the Judicial Committee of the House of Lords would no longer be bound by its previous decisions.14 We now have cases such as the overruling of Anns v London Borough of Merton15 in Murphy v Brentwood District Council16 and of Anderton v Ryan17 in R v Shivpuri.18 It is probably best, however, not to think about these real life examples, as we may disagree over the details concerning them. Here, it is enough to imagine two cases: A v B, in which the final appellate court of a jurisdiction makes a decision that involves a mistaken application of the law, and C v D, in which the same court corrects that mistake. In C v D, counsel for one of the parties argues that A v B was wrongly decided and the court accepts this argument. How are we to understand this? One thing we cannot say is that the court is, for practical purposes, infallible. That is not coherent. We cannot say that a court infallibly determines that it made a mistake, as this would imply that it infallibly determines that it was fallible. There is, then, a paradox of infallibility that in ways mirrors the paradox of omnipotence. It would also clearly be wrong to say that the claim that A v B was wrongly decided was empty, even before C v D. Far from being legally empty, the claim is eventually accepted by the court in C v D as a good legal argument, which leads to the overturning of A v B. In a way, Hart is right to say that, before C v D, the legal rights and duties of those governed by the decision in A v B are as they are presented in A v B. But in another way, this is wrong. After all, if A v B was wrongly decided, then the judges in A v B had a duty not to make that decision and the judges in C v D had a duty to overturn it.19 Moreover, in the light of C v D, it seems odd to describe a person who, before that case was decided, disobeyed her duties as outlined in A v B on the ground that A v B was wrongly decided as being in the same position, normatively speaking, as an ordinary law breaker. This is especially so given that the effect HLA Hart, The Concept of Law, 141. Practice Statement [1966] 3 All ER 77. 15 Anns v London Borough of Merton [1978] AC 728 (HL). 16 Murphy v Brentwood District Council [1991] 1 AC 398 (HL). 17 Anderton v Ryan [1985] AC 560 (HL). 18 R v Shivpuri [1987] AC 1 (HL). 19 This is consistent with the possibility of countervailing duties. See, eg, Knuller (Publishing, Printing and Promotions) Ltd v DPP [1973] AC 435 (HL) (per Lord Reid). 13 14

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of C v D is retrospective. One might imagine, for instance, that this person is the defendant in C v D. It is important to see that these considerations reveal that we cannot say that A v B is the law simpliciter, even if C v D never occurs or even if the decision of the court in A v B can never be overturned. In this situation, it is still true that the decision in A v B was contrary to the law and to the duties of the judges who decided A v B. On the assumptions we have been making, A v B remains wrongly decided even if there is no body that could authoritatively declare this to be so. That, of course, would reduce the legal significance of A v B being wrongly decided, but that is another matter. There is a complexity here that needs to be explored. Before C v D, the law both was and was not what the court said it was in A v B. The law was as A v B said in the sense that the rules outlined in A v B were the ones that would be enforced, and so on. But the law was not as A v B said in the sense that the decision was reached contrary to the law. The task for the philosopher is to examine this complexity. It is not to attempt to legislate against it by insisting that only half of legal reality exists. Imagine a game in a football tournament in which the scores are recorded incorrectly. In fact, Team A scored three goals and Team B scored two. The scorer, however, recorded the score as Team A 2: Team B 3. Imagine also that, according to the tournament rules, there is no way to correct this error and so Team A is knocked out of the tournament. Who won the game? Football positivists insist that the answer is that Team B won. After all, they point out, the mistake cannot be corrected, and Team A goes home while Team B progresses to the next round. Some might even suggest that ‘Consideration of […] facts [such as these] makes it seem pedantic to distinguish […] between [the] finality and infallibility’ of scorers’ records. Football integrity theorists, on the other hand, point out that Team A won according to the laws of the game properly understood and so, they insist, Team A won; it is just that the scorer made a binding decision that Team B won and so Team B will progress. Why have this argument? Is it not clear that there are some senses in which Team A won and others in which Team B won? As we can see, there is nothing really unique about this. We frequently learn to deal in our ordinary lives with the kind of complexity from which jurisprudence hides. To give another example, our old friend Laws of the Game: Rugby Union contains a collection of laws that referees are to enforce, but it also contains Law 6(5)a, which states: ‘The referee is the sole judge of fact and of law during a match.’ Let us say, then, that in a close game an attacking team places the ball in their opponents’ in goal. According to rule 8(2)a, this is a try. But say that I make a mistake and rule that the player has knocked the ball on and so disallow the try. You might imagine someone after the game saying something such as ‘That was a try. It should have been given. We lost the

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game because of that decision.’ Is this person thoroughly confused? Can she not see that, if it was a try, then it is redundant to say that it should have been awarded and can she not see that, if it was a try, then in fact her team did win? Conversely, does she not realise that, as the score in the paper says that her team lost, it obviously was not a try? Does she not need a dose of rugby positivism or union integrity to lift her out of the fog in which she finds herself? Of course not. In one sense it was a try; in another sense it was not. We do not have any difficulty with this here. Why in law? It is worth exploring the general reason that these issues arise. When an adjudicator makes an adjudication, she issues (at least) two speech acts: a declaration and an assertive. When I award a try in a game of rugby, I declare that a try has been scored. This declaration establishes that a try has been scored. It cannot be appealed against and so, in this sense, the decision is infallible. But I also assert that a try has been scored. This means that I assert that the conditions required for a try have been met. In this regard, the decision is entirely fallible. It may be that I award a try when the conditions have not been met, such as when the player has not correctly forced the ball. Thus, there is both a sense in which an adjudicator is infallible and a sense in which she is fallible. She can be both wrong and unable to be wrong. Again, we cope with this perfectly well in our ordinary lives, but seemingly cannot when we turn to jurisprudence. There is no justification for this.

4.

THE LAW’S NORMATIVITY AND SYSTEM

We can summarise the above by saying that the law is dualistic (which is not meant to preclude the possibility that it is pluralistic). It can be described at different levels in a way that can seem to be contradictory. This is not so, however. The question now is: Why is the law like this? Why does it have these distinct levels? Ultimately, the answer is the one presented by Kelsen and Hart in the robber band or gunman argument. Law is a system of deontic power. For such a system to work, as Fuller saw so clearly, it has to obey certain constraints. If it does not, it might still work as a system of threats, but it cannot have the kind of deontic power that modern positivists (and others) have insisted that it has. The really crucial thing now is that these constraints rule out arbitrariness and yet the law also claims the authority to be arbitrary.20

20 Here, ‘arbitrary’ is used, as philosophers often use it, widely. It is often a close synonym of ‘irrational’. A system is arbitrary if it contains contradictions, but also if the reasons upon which it relies are not good ones. For similar views to the one advanced here, see, eg, FL Neumann, The Rule of Law; LL Fuller, ‘Reason and Fiat in Case Law’.

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Strictly speaking, what the law claims is that it has authority over people even if it is arbitrary. Its claim is that its authority is not contingent on its being non-arbitrary or rational. The problem is that it gains its deontic power over us only by engaging our rationality. But once our rationality is engaged, the law’s claim to authority even in the face of its arbitrariness is problematic, because rationality rejects arbitrariness. This is probably most clearly revealed in the common law (that is, with respect to the judge-made law of common law jurisdictions). There, every student is told (and quickly forgets) that the law is found, not in the outcomes of cases, but in rationes decidendi. These are the reasons given by courts for reaching their decisions. This immediately generates an instability. To an extent, at least, a ratio can be taken at face value. Thus, all the rationes in force can be simply accepted and acted on. Any arbitrariness as between these – for example, that one ratio appears to conflict with another or appears inadequate in the context in which it is required to be employed – can be overlooked. That is more or less what the cliché black letter lawyer does (even if no one fits this cliché perfectly). In doing so, he claims uniquely to be respecting the law and the rationes that he finds in it, and berates the theorist for not doing so. But the legal theorist responds that the ratio of a case is a reason, and respecting it requires treating it as such. She says that respecting reasons and accepting arbitrariness are incompatible. If two rationes conflict, for instance, she cannot simply accept them both, as that would be to respect neither of them qua reasons. She must see, then, if they can be reconciled or if one or even both of them is mistaken. In fact, respecting rationes as reasons requires her to see if she can find better reasons than the ones with which she is presented. Once we are in the realm of rationes, once we are in the realm of reasons, we are in the realm of rationality, and that is an infinite realm. Thus, one cannot demand, as so many even academic lawyers do, a certain level of rationality but no more. There is no rational basis for doing so. Having appealed to my rationality in getting me to recognise that I have a legal duty, for instance, there is no place at which the law can rationally insist that my rationality must stop. The search for system in law is as much a consequence of respect for law as is the demand that the law’s arbitrariness be accepted. There is this fundamental tension in the law (and not only there) between authority and rationality. The law’s authority demands that, at some point, one suspend rational enquiry and obey and accept, but the authority it has depends on rationality, and that will accept no such limits. The law is in this way a paradox.21 Please note that this is not the standard difficulty with authority investigated in the literature. The issue here is not whether it can be rational to accept authority. I agree that it can be. The issue here is different and, dare I say it, rather deeper. 21

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It has authority over us because it attaches itself to our rationality. It gives us deontic reasons for action by engaging our rationality. Moreover, explicitly with respect to the common law, the law itself is identified with the rational, with rationes. But at some point, the authority of the law insists that we suspend our rationality and simply accept or obey. Like Raz and others, I think that the law can make this claim out, but I do not think that the law can be as successful as Raz thinks. Imagine, for instance, that I am ordered by a judge to pay damages to my opponent on the basis of reasons r. The law’s claim is that I have a duty to pay. I am required to accept the existence of this duty on the basis of the law’s appeal to my reason. But I regard r as irrational. Thus, I cannot but regard the duty as ‘compromised’ in these circumstances. Yes, I will have to pay. I know that other people will see to that (here again we see the importance of coercion). I may also regard myself as under a legal obligation to pay, as that is what the court has said I must do. But I also think that the court is mistaken and that the law is, to this (not very psychologically satisfying) extent, on my side. After appealing to my reason to get me to see that I have a duty to pay, the law cannot stop me going further. This is the paradox: I have to accept the law (and thus pay), but I do not have to accept the reason/ ratio for the law, even though the reason/ratio is the law. The philosophy of law should not hide from this. It is perhaps relevant to say that I have had precisely this kind of experience in New Zealand’s Disputes Tribunal. I imagine that many readers have had similar experiences. The psychology of the experience is interesting (and maddening) and demands further study. The Referees’ report (the equivalent of a judgment) in the case with which I was involved contained a raft of legal mistakes and factual misunderstandings. The problem is that the report is not presented simply as the finding of the Referee, simply ‘laying down the law’ to the parties. On the contrary, it was presented as explaining to the parties and justifying the referee’s findings and rulings. The message, as it were, was not ‘This is how I see it and that is that.’ It was ‘This is the justified result and this is why it is justified.’ If law is not to be a system of mere power, it has to be like this. But if it is like this, then it cannot demand the level of acquiescence that it necessarily demands. In my case, the Referee was required to demand that I accept – how else could the justification she offered in her report lead to the idea that the parties in our case could rightly be coerced? – and yet the very faculty (that is, rationality) to which the report appealed in order to get me to accept could not accept.

16. Morality 1.

LAW, RATIONALITY AND MORALITY

In The Functions of Law, Kenneth Ehrenberg maintains that the ‘fundamental tenet’ of natural law theory ‘is that there is some necessary relation between rationality (or morality) and legality’.1 He further explains that ‘Earlier versions of natural law tended to focus on morality […] as the standard that positive […] law is trying to capture, reproduce, or precisify for the circumstantial demands and challenges of a particular community. Later versions have tended to broaden this to rationality more generally.’2 If this is so, then it seems that natural law theory will have to be right as, as we saw in the second part of this book and in Chapter 11, there is a very deep connection indeed between law and rationality. Law functions by connecting itself with human reason. This thought cannot be developed further here, unfortunately, as it would require an examination of the relationship between reason and morality. This book is already too long. But one thing can be said immediately: any claim of a jurisprudential theory to moral neutrality must be rejected. Unsurprisingly, this is a claim made by positivists rather than by their opponents (natural law theorists are, of course, committed to a moral view in their understanding of law). The idea is that the truth or falsity of positivism does not depend on which moral theory is correct. For modern positivism – that is, for any positivism that accepts the gunman argument and holds that law has deontic power – this is straightforwardly false. Kant, for instance, claims that the supreme principle of morality, the categorical imperative, is also the supreme principle of practical reason.3 That means, at least, that it is impossible to separate morality and practical reason. It must also follow from this that institutions that function by connecting to practical reason – institutions such as the law according to the gunman argument – cannot, on this view, be strongly separated from morality either. To put it as simply as possible, if Kant is right, then modern positivism is impossible. In fact, this will be so for any theory that holds that there is a strong connection between reason and 3 1 2

KM Ehrenberg, The Functions of Law, loc 1857 (ch 4 para 1). Ibid, loc 1857 (ch 4 para 1) n 1. I Kant, ‘Critique of Practical Reason’, 5:46. 274

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mortality. Aristotle’s moral theory seems also to fit this model.4 Of the three traditional schools of moral thought, then, it seems that only utilitarianism is really compatible with positivism. Though we cannot go into this matter in the detail it deserves, I do not think that we should regard this as at all surprising.5

2.

ANOTHER DUALITY

Recall the discussion of Lord of the Flies from Chapter 7. In particular, recall the following passage which occurs just after Ralph has defeated Jack to become chief. [Jack] started up, then changed his mind and sat down again while the air rang. Ralph looked at him, eager to offer something. ‘The choir belongs to you, of course.’ ‘They could be the army—’ ‘Or hunters—’ ‘They could be—’ The suffusion drained away from Jack’s face. Ralph waved again for silence. ‘Jack’s in charge of the choir. They can be – what do you want them to be?’ ‘Hunters.’6

I said in Chapter 7 that this made them hunters. And so it did. But there is also a sense in which it did not. It is a mark of Golding’s genius that, once again, he makes this important point plain. The hunters try to hunt pigs, but at first fail. They simply cannot bring themselves to kill.7 When he tells us this, Golding is telling us that the hunters were not yet hunters. Eventually, however, they do kill a pig, an event which they mark with the ominous chant, ‘Kill the pig. Cut her throat. Spill her blood.’8 At that point, they certainly are hunters. What does it mean to say that the hunters were not hunters until they killed the pig? We all know the answer: the boys designated as hunters did not really know how to hunt in the beginning and learnt over time. Let us put this point precisely. The boys of the choir were given the status function of being hunters in a meeting of the boys on the island. At that meeting, the status function of being a hunter was created and certain boys were allocated that status function. However, at this time, none of these boys knew how to hunt. Thus, they had

Aristotle, Nicomachean Ethics. See also M Stone, ‘Legal Positivism as an Idea about Morality’; D Beyleveld and R Brownsword, Law as a Moral Judgment. 6 W Golding, Lord of the Flies, 29–30. 7 Ibid, 40–1. 8 Ibid, 96. 4 5

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the status function of being hunters though they could not hunt. When we say ‘The hunters were not really hunters’, what we mean is that the boys who were allocated the status function of being hunters could not perform the activity of hunting. None of this is difficult or surprising. But imagine now that a philosophical discipline developed on the basis of the premise that the assertion ‘The hunters were not hunters’ was contradictory as, clearly, if they were hunters then they were hunters and if they were not hunters then they were not hunters – a simple fact of logic. And imagine that a leading figure in this discipline asserted that the only way out of this contradiction was to realise that ‘hunters’ can mean only ‘Those afforded the status function of being a hunter’ and not ‘Those who can successfully hunt.’ One might further imagine that the followers of this figure present his theory as an unromantic and hard-nosed account of the nature of being a hunter and that they congratulate themselves on maintaining a proper scientific attitude towards being a hunter in the face of their rose-tinted, romantic and hopelessly idealistic opponents who think that there is some essential connection between being a hunter and actually capturing animals. Well, welcome to modern jurisprudence, as this is exactly what it is like. Witness, for example, this self-reflexive tribute. ‘H. L. A. Hart is heir and torch-bearer of a great tradition in the philosophy of law which is realist and unromantic in outlook.’9 It is impossible not to respond to this statement without pointing out that it is self-refuting. In the Stanford Encyclopaedia of Philosophy, Leslie Green introduces legal positivism in the following way. Legal positivism is the thesis that the existence and content of law depends on social facts and not on its merits. […] The positivist thesis does not say that law’s merits are unintelligible, unimportant, or peripheral to the philosophy of law. It says that they do not determine whether laws or legal systems exist. Whether a society has a legal system depends on the presence of certain structures of governance, not on the extent to which it satisfies ideals of justice, democracy, or the rule of law. What laws are in force in that system depends on what social standards its officials recognize as authoritative; for example, legislative enactments, judicial decisions, or social customs. The fact that a policy would be just, wise, efficient, or prudent is never sufficient reason for thinking that it is actually the law, and the fact that it is unjust, unwise, inefficient or imprudent is never sufficient reason for doubting it.10

For our purposes, there are five important claims here.



9

J Raz, Ethics in the Public Domain, 210. L Green, ‘Legal Positivism’.

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(1) A rule11 does not become a legal rule simply because it is a good rule. (2) A system of rules does not become a legal system simply because it is a good system. (3) The existence of law and of a legal system depends on social facts, in particular on what the officials recognise as being law. (4) A rule is not excluded from being a legal rule simply because it is a bad rule. (5) A system of rules is not excluded from being a legal system simply because it is a bad system. This is a fair summary of legal positivism in the sense that – though some positivists may quibble about the exact formulations – it captures what positivists take to be their general outlook. The negation of these ideas is what positivists take themselves to be fighting against. This, as we have seen, is said to be a heroic fight. This reveals a deeply problematic approach to the subject, however, as, in setting itself up in this way, positivism has had largely to invent its opponents. This is most obvious with respect to the treatment of the phrase lex injusta non est lex and related ideas in the book with which this study began, HLA Hart’s The Concept of Law. Hart utilises two strategies in this context. These strategies can be understood as two ways of interpreting the phrase lex injusta non est lex.12 First, we might read lex injusta non est lex to say that an unjust rule that purports to be a law cannot actually be a law. So, for instance, a theorist of this stripe might deny that what we call Nazi law, the apartheid laws of South Africa or the Jim Crow laws in the Southern United States were laws. To this view, Hart famously responds: [I]t is plain that neither the law nor the accepted morality of societies need extend their minimal protections and benefits to all within their scope, and often they have not done so. In slave-owning societies the sense that the slaves are human beings, not mere objects to be used, may be lost by the dominant group, who may yet remain

11 I will speak here of rules, though strictly one should not be so specific at this point. The danger of being accurate here is that one can be accurate only by being obscure. As nothing turns on the use of the term rule, it is better to be clear than strictly accurate at this point. 12 I present Hart’s position in this way because it avoids the impression that, in opposing natural law theory, Hart tries to have his cake and eat it by providing inconsistent interpretations of natural law theory. He is providing inconsistent interpretations, but that is because he is trying (though failing) at this point to be charitable to his opponents. He is saying, as it were, ‘They could mean this, though that won’t work; or that could mean this, and that won’t work either.’

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morally most sensitive to each other’s claims and interests. […] Nazi Germany and South Africa offer parallels unpleasantly near to us in time.13

It is just a fact, the positivists say, that unjust laws have existed and continue to exist: in Wittgenstein’s sense, ‘don’t think, but look!’14 Second, Hart suggests that the phrase lex injusta non est lex could mean that positive law must be morally binding and thus this view encourages a quiescent, uncritical approach to law.15 The idea is this. Imagine a terribly unjust law. Given that it is a law, then it follows from the principle lex injusta non est lex that it is not unjust. So, on this view, Nazi law, the apartheid laws of South Africa or the Jim Crow laws in the Southern United States were laws, but that fact alone shows that they were not unjust. Clearly, that is a monstrous view that Hart was right to reject. Note, however, that the two interpretations of the phrase lex injusta non est lex share the same structure in that both insist that lex is being used univocally. But that is a very unnatural way to interpret such phrases. Consider the following. (a)

‘The guitar that they bought for Sam’s birthday is just toy. It’s not really a guitar at all.’ (b) ‘This beer is disgusting. It is made almost entirely with rice and has hardly any malt in it. Really, it isn’t beer at all.’ (c) ‘This music is terrible. All it is is a beat repeated over and over again with inane lyrics spewed over the top of it. It isn’t what I call music.’ (d) ‘I heard your friend talking about you behind you back. Let me tell you, she is not your friend.’ (e) ‘You call that a car? It’s tiny and it sounds like a sewing machine. Mate, your car is just an eggbeater with four wheels.’ (f) ‘What kind of sport is this? It’s just two men punching each other in a ring with rabid, foaming at the mouth savages screaming from the side-lines. This isn’t sport, it’s barbarism.’ (g) ‘The hunters in Lord of the Flies were not really hunters until they killed their first pig.’ We do not have any difficulty understanding these utterances. In fact, we say these kinds of things all the time. But imagine responding as Hart did to lex injusta non est lex. Imagine responding to (c) by saying ‘Ah, you say that this isn’t what you call music, but you began your utterance by calling it music.

HLA Hart, The Concept of Law, 200. L Wittgenstein, Philosophical Investigations, §66. 15 HLA Hart, The Concept of Law, 210–211. 13 14

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You just contradicted yourself.’16 A person who responded in that way would be either making a joke or asking for a punch on the nose. We have no difficulty interpreting these utterances because we know that the relevant terms are being used equivocally. The object bought for Sam in (a) was designated as a guitar. No doubt, it said so on the box and it looks like a guitar. In that sense, it is a guitar. But we also understand guitars to be musical instruments and this object cannot function as a musical instrument, perhaps because its strings cannot be tuned or, if it is an electric guitar, because its pickups are fake. And note that I have just done it again. How can pickups be fake? Guitar pickups are inverters that transform the vibration of the guitar strings into an electrical signal. Fake pickups do not do that. Is the phrase ‘fake pickups’, then, an oxymoron? Of course not. It is really distressing to note that so much modern jurisprudence has such foundations. Consider now the following utterances. (h) ‘I know a senior judge in New Zealand who would sometimes engage in astonishingly infantile behaviour when on the bench. For instance, he once became very upset when, after telling counsel not to continue with a certain line of argument, one of his colleagues found the courage to say that he wanted counsel to continue as he thought the argument important. The judge I am talking about then stood up, turned his chair around, and spent the rest of counsel’s submissions staring at the wall. That is not how a judge behaves.’ (i) ‘Roland Freisler was appointed President of the Volksgerichtshof in 1942. Under his presidency, the court became no more than an arm of the repressive Nazi police state. In reality, it is wrong to think of him as a judge.’ (j) ‘All of my life savings have been stolen by my lawyer. I placed my complete trust in her, believing that she would see me right. In fact, she never really was my lawyer, she was only ever thinking of herself.’ (k) ‘The entire purpose of the legal system of country x is to ensure that the ruling elite stay in power. No aspect of it is concerned with justice or the wellbeing of the citizens of x. To understand this system, it is best not to think of it as a legal system at all, because, really, it isn’t one.’

Compare A Marmor, ‘Law, Fiction, and Reality’, 54: ‘When the umpire in a soccer [cricket?] game orders a player “out,” the expression gains its game-related significance by virtue of the umpire’s saying so. (It is now true, in the game, that the player has to exit the game, and it is true by virtue of the umpire’s saying so.)’ In truth, it is not so simple, as, if the umpire has made a mistake, it is also true in a sense that the player was not out. As is not unusual, positivists focus only on the side of this reflective of positivism. 16

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We would have to train ourselves in legal positivism to have any difficulty understanding these passages. Otherwise, there is no temptation to respond to (h) by saying ‘But he was a judge and this is how he behaved, so it follows as a matter of logic that this is how judges behave.’ (h) means that, though this person had the status function of being a judge and did behave in the way described, behaving in that way is not fitting for a judge. And what does that mean? To answer this question, let us turn to (i). Why might we say that Freisler was not a judge? My answer is that, at least in a great many cases, he did not judge. He did not go to court to listen to the arguments and to make up his mind. He went there to kill people. And not only that, he would routinely subject them to rabid haranguing from the bench before having them guillotined, so far was he interested in listening and judging. In other words, I say that Freisler was not really a judge because, in the sense that I am now using the term, being a judge is fulfilling a role that has a certain function. The role of a judge is to listen to the arguments of both sides (among other things, judges can of course have an inquisitorial role), consider the evidence and make a decision. Freisler did not do any of that. He did not judge. He was a judge who was not a judge. What might it mean, then, to say lex injusta non est lex? It could mean many things, but the two things that it is least likely to mean are that nothing that is unjust could have the status function of law and that everything that has the status function of a law must ipso facto be just. As far as the tradition of natural law thinking goes, as John Finnis explains, it means: that if a rule which is legally valid in the [positivistic] sense is sufficiently unmeritorious it lacks the entitlement to be counted as personally decisive for them by judges, officials and citizens, an entitlement to directive decisiveness that is central to the reasons we have for establishing and maintaining legal systems.17

Moreover, as Finnis also points out, Aquinas in fact does not say lex injusta non est lex, but always clarifies his position by saying things such as ‘“unjust law is not straightforwardly or unqualifiedly [simpliciter] law” or “is a perversion of law”’.18 Finnis is no positivist, but note that his position appears to be fully consistent with what we are told are the fundamental commitments of positivism: (1)–(5) listed at the beginning of this chapter. Surely, this shows us that something has gone seriously wrong. What has happened is that positivists – particularly Bentham, Austin and Hart – planted their flag in the territory they intended to make their own and declared war on all those who lived outside J Finnis, ‘On Hart’s Ways: Law as Reason and as Fact’, 44. J Finnis, ‘Natural Law Theories’, §4.

17 18

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of that territory. A few of those who did live outside the territory took on the challenge. A few others who lived in the territory but close to the border decided to cross over and start to fight from the other side. But what was not noticed was that a non-positivistic people had lived in the territory that the positivists claimed for themselves for two and a half thousand years and had no intention of leaving. What do people normally do in these cases? As we have seen all too often throughout history, the victors try to expel the incumbents, often pretending that they had never lived in the victor’s territory. That is what has happened here. Some of this seems at last to be becoming recognised. Thus, for instance, James Penner and Emmanuel Melissaris note that Hart’s (though they do not name him, it could only be his theory they have in mind) attack on natural law theory fails because it is an attack on a straw position. Thus, they recognise that, according to natural law theory, ‘[i] “law” is nothing but a rational regulation for the good of the community, [ii] made by person(s) having powers of government, and promulgated’.19 But they go on to claim: ‘Notice that there are both “natural law” and “positivist” elements in this definition.’20 There are not. This is to repeat Hart’s mistake of insisting that natural law theory be identified with (i) and not with (ii) when it has always been identified with both. In reality, as Finnis rightly says, the truth in positivism was already long recognised by natural law theorists. Above, we witnessed Raz claiming that positivism was a ‘heroic tradition’ that, in contrast to its opponents, understood law in a way that did not inappropriately venerate it but instead preserved room for the clear-eyed moral criticism of law. This self-congratulation is quite unjustified. Whatever one is to say about positivism in this regard, the idea that natural law theory calls for veneration of the law is utterly false. As Martin Stone has brilliantly put the point, responding to the positivist insistence that unjust law is possible: who, realistically, could this have been news to? who failed to see that one cannot simply infer from the fact that a rule violated standards of morality that it was not a rule of law? how could that be in question? Serious assertion of the proposition in question seems almost to need the context of a different civilization than ours. Greek philosophy first becomes conscious of itself partly by becoming aware of the way that laws, like customs and mores, can be like this or like that: and they can go badly off the rails. That Socrates is punishable as a wrongdoer according to law is, after all, just the Athenian crowd’s view of things. This is where legal philosophy starts.21 And as Stone further notes,

JE Penner and E Melissaris, McCoubrey & White’s Textbook on Jurisprudence,

19

24.

Ibid. M Stone, ‘Legal Positivism as an Idea About Morality’, 322.

20 21

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‘Some terribly mistaken operations of the law also are not exactly foreign to the Judeo-Christian archive.’22 Is it really possible to believe that St Augustine and St Thomas Aquinas had forgotten all of this history, much of it, of course, being that of the church that canonised them?

One very valuable work in this context is the recent collection edited by Jonathan Crowe and Constance Youngwon Lee that explores the huge diversity and richness of the natural law tradition.23 The work contains chapters dealing with topics as varied as Stoic,24 Confucian25 and Black (that is, African American)26 natural law thought as well as the application of natural law thinking to federalism27 and the Irish Constitution.28 It is surely impossible to examine this material and not feel that this school of thought has been and continues to be quite seriously misrepresented in recent mainstream jurisprudence. As Robin West remarks on the back cover of the book, the work allows real natural law theory to emerge from its treatment as ‘a foil to legal positivism’. If my experience serves, most students begin learning jurisprudence by being told that (1)–(5) are characteristic of positivism and, it is at least implied, that those propositions are rejected by positivism’s opponents. That is a very bad way to begin. The point and its consequences have been powerfully expressed by Finnis. [The natural lawyer’s] primary focus is typically on identifying the conditions under which law is justified, both in the sense in which law can and should be preferable to anarchy or tyranny or even benevolent ‘rule of men,’ and in the sense in which this or that legal principle, institution or rule can be judged to be preferable to alternative reasons or purported reasons for action. As Green […] says: Evaluative argument is, of course, central to the philosophy of law more generally. No legal philosopher can be only a legal positivist. A complete theory of law requires also an account of what kinds of things could possibly count as merits of law (must law be efficient or elegant as well as just?); of what role law should play in adjudication (should valid law always be applied?); of what claim law has on our obedience (is there a duty to obey?); and also of the pivotal questions of what laws we should have and whether we should have law at all. Legal positivism does not aspire to answer these questions, though its claim that

Ibid, 322 n 32. J Crowe and C Youngwon Lee (eds), Research Handbook on Natural Law Theory. 24 A Taitslin, ‘Stoic Natural Law as Right Reason’. 25 NP Ho, ‘Natural Law in Confucianism’. 26 V Lloyd, ‘Black Natural Law’. 27 N Arony, ‘Natural Law and Federalism’. 28 E Carolan, ‘Natural Law and Constitutional Reasoning’. 22 23

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the existence and content of law depends only on social facts does give them shape.[29] Might it not be better to say: no legal philosopher need, or should, be a legal positivist? For law’s dependence upon social facts is fully acknowledged, and also accounted for, in natural law theories of law. And this is not a ‘concession’ by natural law theorists, for their main positions were clearly articulated by Aquinas, many centuries before legal positivism emerged with its challenge to (what it took to be) natural law theory. Positivist critiques of natural law theory, when they do not rest upon scepticism about the possibility of moral judgment, a scepticism implicitly disavowed in the above passage, rest on misunderstanding of passages from the works of natural law theorists.30

As I would put this point, the questions raised by Green are a subset of the questions that philosophers could usefully be asking about law. This would be an attempt to understand the relationship that law undoubtedly has with morality. Instead, however, much time is wasted defending positivism from largely imaginary attacks on it. Okay, law does not have the connection to morality that Hart denied that it has in the ninth chapter of The Concept of Law. Few have ever doubted this. But what connections does it have? That is a genuine philosophical investigation.31 At the risk of being picky, I think it useful to say that Green is also wrong to say that ‘No legal philosopher can be only a legal positivist.’ Surely, that is quite possible. If it turns out to be psychologically or intellectually unsatisfying to live that way, we ought to be interested in why that is. But what needs to be said is that it is not desirable for the philosophy of law to be about positivism, and that is because there are important philosophical questions about law that positivism cannot answer. Some of these questions are answered by philosophers who are positivists. Finnis has said that, as positivists spend so much time arguing against straw positions, ‘much of the history of jurisprudence over the past two hundred years or more is a tale of wasted zeal’.32 And so it has been. It is worth saying that that is not to condemn positivists, many of whom have done very important work – as I am sure Finnis would agree. But it is to condemn positivism. Though it is true that positivists have made significant discoveries – even when pursuing positivism, as we have seen in this book – positivism is nevertheless the most unfortunate distraction. It is a long and, it has seemed to many, interminable discussion that centres on something that just does not matter.

31 32 29 30

L Green, ‘Legal Positivism’, §4.3. J Finnis, ‘Natural Law Theories’, §5. See also J Raz, Between Authority and Interpretation, ch 6. J Finnis, ‘On Hart’s Ways: Law as Reason and as Fact’, 44 n 66.

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Today, a leading philosopher of law has held that it is in the nature of law to provide reasons for action and that law provides these reasons for action only if it is moral. He has said: given that legal institutions purport to impose and enforce duties on people, given that they take it upon themselves to deprive those who disregard their legally imposed standards of property and liberty (and sometimes of their life), it follows that those institutions take themselves to be legitimate, that is to have the moral right to act as they do […] Legal institutions can, and sometimes do, allow that legal rules are imperfect, or worse, and in need of revision. But, so long as they continue to exist, they necessarily claim that their own existence and powers are (morally) justified. A result of this […] is that legal discourse is moral discourse. Legal institutions take their activities to impose and enforce real, morally binding, rights and duties, and they refer to them in the usual normative language familiar from moral discourse. It does not follow that they are right to do so, that the legal standards they establish and enforce are morally binding. But it is not surprising that even those who believe that they are not morally binding use moral terminology in discussing the law. After all, they are dealing with powerful institutions which hold the standards to be legally binding. If they are to deal with them they have no choice (exceptional cases apart) but to address them on the supposition that their standards are really binding (ie morally binding).33

This is Joseph Raz, the man many take to be the leading living legal positivist. An important legal theorist he is, but in this passage he is a natural lawyer. In fact, he almost says so. He accepts that his theory is very close to natural law theory,34 but he cannot go the whole way as he cannot accept ‘that, by its very nature, the law successfully reconciles the duality of morality and power’, the view he associates with natural law theory.35 But which natural law theorists have ever thought that? Raz’s argument shows that, due to the kinds of things that they order, legal directives can function as such – that is, as authoritative orders and not merely as concealed threats – only if they present themselves as directives with moral force. That is surely right. But note that, once again, what this reveals is that Raz is following in the path set out by Fuller. His argument demonstrates one of the connections to morality that law must have if it is to function as a system of directives. But, the positivist will surely reply, the position is that legal directives must present themselves as moral directives, not that legal directives must actually J Raz, Between Authority and Interpretation, 4–5. See also ibid, 111–13, 181, 190–1, 196, 234, 278. For a similar view, fraught with the same difficulties, see J Gardner, ‘Nearly Natural Law’. 34 J Raz, Between Authority and Interpretation, 113. 35 Ibid, 1. 33

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be morally sound. This, of course, is to fall back on the error diagnosed earlier in this chapter, that is, misunderstanding positivism’s opponents as insisting that law must be moral. More significantly, however, Raz’s claim is that the law necessarily presents itself as moral. What, then, is to be said about immoral law? The positivist wants to say that this law is morally defective but not legally defective. But if Raz is right, then this is not something that she can say. This law, Raz tells us, necessarily presents itself as having a property that it does not in fact have. That surely entitles us to conclude that it is legally defective. I do not mean to say that it is legally invalid in the sense in which this term is used in jurisprudence. We should all accept, and natural lawyers have accepted, that the law is valid in that sense. The point is just that the law must present itself as something that it is not; it must purport to be something that it isn’t. This law is defective qua law. It is inconsistent with what it must present itself as being.36 How much stronger a connection between law and morality must be demonstrated before the positivist realises that the game is up?

36 For a similar view, see J Crowe, Natural Law and the Nature of Law, chs 7–9; J Crowe, ‘The Nature of Law’. Crowe, however, places emphasis on the notion that law is an artefact with certain functions. I have explained why I cannot accept this view in Chapters 2 and 8.

17. Understanding What are natural lawyers trying to do if they are not trying to show that immoral law is impossible? There is no one answer or set of answers to this question, but here are some that I think are useful. They are asking and trying to answer the following kinds of questions. (1) Is it a good idea to govern a society by law? (2) What do we gain and lose when we govern in this way? (3) What is the point of certain kinds of legal rules such as those we find constituting the criminal law or the law of contract? (4) Can the law and the coercion associated with it be reconciled with the importance of human freedom? If so, what does this say about the kind of law that we ought to have? (5) Does the fact that someone disobeyed the law justify punishing or sanctioning them? (6) Under what conditions, if any, is it appropriate to take the law as an authority for what I ought to do? (7) What is the appropriate response to law that is unjust?1 One might respond to this by saying that positivists have asked these questions too. So they have. The point, though, is that these genuinely interesting philosophical questions cannot be answered from within the theory of positivism, that theory being directed only at uninteresting questions that we must learn to stop asking. Finnis attempts to answer these questions from the perspective of a particular kind of moral thought – which is also called natural law theory. I think that Dworkin’s theory is best understood as attempting to answer such questions from the perspective of modern, Western (some would say, specifically US) political morality. It is no part of the thesis advanced here that either theorist is successful. Deciding this question – indeed, even taking a stand on how successful they are generally – would take us well beyond the scope of this investigation. The crucial point, however, is to see that these investigations are

1 For other interesting questions, see R Cotterrell, The Politics of Jurisprudence, 125.

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not only worthwhile but philosophically essential and that they do not have the consequences that positivists attribute to them. So, I will not in this chapter examine the strengths and weaknesses of non-positivist thought. I will, however, give a different kind of example of non-positivist, philosophical analysis of law. The aim is to present not a theory but rather a case study to see where it takes us and to see what we, as philosophers, can learn from it. The case study involves what is known as the law of negligent misrepresentation,2 a matter that has come up before. I choose this area of the law for two main reasons. First, it is in a woeful state. As David Campbell has said: The quality of the appellate reasoning following Hedley Byrne is abysmal. I have feared for as long as I have believed I have been able to form a judgement about this […] that teaching students legal reasoning by taking them through this stuff as if it was law is bound to lead to disrespect of the value of legality.3

And he adds in a footnote: Rather than teach this as law, it would be better to ask students to determine how many of Fuller’s ways of failing to make law are demonstrated in Hedley Byrne cases.4

Second, the academic analysis surrounding this area of the law is remarkable for many reasons, but certainly for the fact that so many academics (especially those of a positivist outlook) are prepared to defend the status quo when any detached person must conclude that it is indefensible. I have been told by judges that they do not know how to decide cases in this area. After all, how is one to understand this gobbledegook? Concerns have been expressed about the appropriateness of the concept of assumption of responsibility in the present context […] The potential difficulty is with the word ‘assumption’, which suggests a voluntary act. In tort obligations are imposed, not assumed, as they are in contract. But, that said, the idea of one person assuming, in the sense of coming under, a responsibility to another in tort, does have value when understood in the sense that in certain circumstances the law requires responsibility to be assumed. Responsibility is then deemed in law to have been assumed. The expression ‘deemed assumption of responsibility’ conveniently expresses this

2 Another fascinating example is the discussion of legal personhood in N MacCormick, Institutions of Law, 77–86. 3 D Campbell, ‘The Curious Incident of the Dog that did Bark in the Night-Time: What Mischief does Hedley Byrne v Heller Correct?’, 131. 4 Ibid, 131 n 89. See also W Swain, ‘Hedley Byrne v Heller in Australia: “Never has there been such a Judicial Jamboree”’.

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process of thought and is thus conceptually consistent with the conventional difference between tort and contract. If the defendant has, or is deemed to have, assumed responsibility to the plaintiff to be careful in what is said or written, thereby creating proximity, it will usually, subject to policy considerations, be fair, just and reasonable to hold the defendant liable for want of care. Assumption of responsibility can be viewed as the rationale for liability for negligent mis-statement and the underpinning of the tort at the highest level of generality. Indeed it can be said that whether the defendant should in any situation be required to assume responsibility to the plaintiff for negligently caused loss is simply another way of expressing the conventional inquiry whether it is fair, just and reasonable to impose a duty of care. The concept of reliance is involved in determining whether there has, in the particular case, been an assumption of responsibility, whether actual or deemed. In some, albeit relatively rare cases, the defendant’s assumption of responsibility is voluntary. In other words the defendant is found to have undertaken to exercise reasonable care. In such circumstances, which are analogous to, but short of, contract, it is both reasonable and foreseeable that the plaintiff will rely on the undertaking. […] Hence, before the law of torts will impose on the author of a statement a duty to take care the plaintiff must show that it is appropriate, on the foregoing basis, to hold that the author has or must be taken to have assumed responsibility to the plaintiff to take reasonable care in making the statement. If that is shown, the necessary proximity will have been established, leading to a prima facie duty of care.5

Despite the fact that this and similar passages are at least verging on nonsense, so much energy is spent by academics defending the pretence that everything is fine. Why? Let us start with a case: Caparo Industries v Dickman.6 In this case, the defendant auditors prepared the accounts of a third party company, at the request of that firm, for use at the company’s AGM. In reliance on these accounts, the plaintiffs, who were members of the company, decided to invest further in the company. The plaintiffs alleged that the company was not in as good a position as the accounts suggested, that their misimpression was due to the defendant’s negligence and that the plaintiffs suffered loss as a result. The House of Lords ruled that the defendant did not owe the plaintiffs a duty of care and thus the plaintiffs’ claim failed. The standard ‘textbook understanding’ of this area of the law is as follows. The plaintiffs in Caparo Industries v Dickman attempted to sue the defendant in the tort of negligent misstatement. This tort is a subset of the law of negligence. According to this area of the law, a plaintiff is able to sue if she can establish four things. First, she must show that the defendant owed her a duty



5 6

AG v Carter [2003] 2 NZLR 160 (CA), [23]–[27]. Caparo Industries v Dickman [1990] 2 AC 605 (HL).

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of care.7 To do this, she must show that she was within the class of persons put at reasonably foreseeable risk by the defendant’s action. She may have to do more than this also, as a significant number of additional restrictions on the duty of care have arisen, no small number of which are due to problems that have arisen within this area of the law. Second, she must show that the defendant was negligent, that is, that the defendant fell below the standard of care. Third, she must show that her injury was not remote, that is, that it was a reasonably foreseeable consequence of the defendant’s negligence. Finally, she must show that her injury was caused by the defendant’s negligence. There are also defences that the defendant can raise if available. On this standard textbook understanding, there ought to have been liability in Caparo. Certainly, as the plaintiff was clearly placed at risk, there ought to have been a duty of care. But that is not what the Court held. It said that it would not in the circumstances be fair, just and reasonable to impose a duty of care. This was because the plaintiffs relied on the report for a purpose other than that for which the report was prepared. It was prepared for use at the AGM and not to enable people to make investment decisions. The textbook understanding of this is that the House of Lords created an exception to the normal negligence rules to be applied in negligent misstatement cases. And it did not end with Caparo. It is only a slight exaggeration to say that new rules come into effect with each new case. The law in this regard resembles a stubborn old man who insists that he loves chocolate, but every time he is offered chocolate he refuses, each time inventing a new, less plausible than the last, reason for his refusal. Would it not be rational for this man just to admit that he does not, in fact, like chocolate? Some – I among them – have suggested that the problems that exist with this action are a result of the fact that we have wrongly categorised it. Though the textbook understanding insists that it is a part of the law of negligence, it is in fact better to view it as part of or as related to the law of contract.8 Thus, we would say that it was not fair, just or reasonable (though, personally, I think this an inane expression) to find the defendant in Caparo liable because, This is the wrong order, but it is the order in which this material is usually presented. 8 See eg P Benson, ‘Economic Loss’; A Beever, Rediscovering the Law of Negligence, ch 8; A Beever, ‘The Basis of the Hedley Byrne Action’; D Campbell, ‘The Curious Incident of the Dog that did Bark in the Night-Time: What Mischief does Hedley Byrne v Heller Correct?’; MP Gergen, ‘Negligent Misrepresentation as Contract’. See generally, P Benson, ‘Economic Loss’; R Brown, ‘Still Crazy’; R Brown, ‘Justifying the Impossibility of Recoverable Relational Economic Loss’; JW Neyers, ‘Donoghue v. Stevenson and the Rescue Doctrine: A Public Justification of Recovery in Situations Involving the Negligent Supply of Dangerous Structures’; R Stevens, Torts and Rights, 20–43. 7

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while the defendant may have undertaken responsibility to the members of the company for the use of the accounts at the AGM, it did not undertake responsibility for other uses of the accounts. Though it has the benefit of greatly simplifying our understanding of the case law, this position has met with a great deal of resistance. There are many reasons for this, but the main ones are obviously these. First, the courts say that the action belongs to the law of negligence.9 Second, the courts at least appear to apply the principles of the law of negligence to these cases, even if they do so in an odd way. Third, if one accepts the textbook definition of the law of negligence, then these cases fit that area of the law. Fourth, there is no textbook definition of the law of contract that could incorporate these cases. And fifth, these cases could be seen as contractual only by undermining the doctrine of consideration, and that is contrary to the positive law. Because of this, it can seem that the right thing to do, legally, is just to push on, pretending that all is well while Rome burns. Let us ask three key questions about Caparo. I will answer each question by giving the standard, textbook response. (1) What is the plaintiffs’ complaint? That they suffered loss. (2) Why is the plaintiffs’ complaint directed at the defendant? Because the defendant caused the plaintiffs to suffer loss. (3) But many people could be said to have causally contributed to this loss, so what singles out the defendant? The fact that the defendant was negligent. Notice that these answers follow the doctrines of the positive law. Each answer is given by the law’s categories. There are two points to be made about this. First, responding in this way threatens to beg the question in the debate outlined here, as the ultimate question is whether the answers should, as it were, come from the law of negligence or the law of contract. More importantly, however, second, though apparently adequate answers from the perspective of law, they are hopeless from the perspective of morality. Imagine the following conversation between me (A) and one of the plaintiffs (P) in Caparo. A P

‘What is your complaint?’ ‘I’ve suffered loss.’

9 At least until recently. Playboy Club London Ltd v Banca Nazionale Del Lavoro SpA 2018 UKSC 43, [2018] 1 WLR 4041 is at most ambivalent in rejecting this view. For an excellent commentary, see JAW Grower and OF Sherman, ‘Equivalent to Contract? Confronting the Nature of the Duty Arising under Hedley Byrne v Heller’.

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‘Okay, but what is your complaint specifically against the defendant?’ ‘He caused me to suffer loss.’ ‘Right, but many people could be said to have causally contributed to this loss, so what singles out the defendant?’ ‘He was negligent and the others weren’t.’

Does this not sound ridiculous? Who would respond in this way? I am trying to write the dialogue of a conversation between two legal robots. Let us, then, try to be more realistic. A P

‘What is your complaint?’ ‘Those guys produced a report and they knew that I was going to see it. The report said that investing in the company was a good idea, so I invested. But it wasn’t a good idea. It was a really bad idea and I’ve lost a lot of money.’

That’s more like it. The problem, however, is that the complaint contains a crucial falsehood. The report did not say that investing in the company was a good idea. The report did not say anything about investing in anything. The notion that it was a good idea to invest in the company was an idea that P came to as a result of reading the report. Say that I put all that to P. She might then try to refine her position. P

‘Okay. What I meant to say was that they produced a report and knew that I was going to see it. The report contained information that led me to conclude that investing in the company was a good idea, so I did invest. But it wasn’t a good idea. It was a really bad idea and I’ve lost a lot of money.’

To which the response is obvious: ‘Where has your complaint against the defendant gone?’ P

‘Oh, yes, I forgot to say that they were careless in producing the report and they should have known that I would likely use it in this way. They should have been more careful.’

That sounds promising, but then I might say this. A

‘There is a famous case in law where a woman drank a bottle of ginger beer that contained the decomposing remains of a snail and this made her sick. Her complaint was that the defendant’s failure to make sure that the bottles were clean placed her at risk of injury and that the

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defendant ought to have known that. But that doesn’t really sound like your case, as you were not placed at risk by the defendant.’ To which she might respond: ‘Well, not personally. But my money, my wealth, was placed at risk.’

P

And then I might respond: A

P A

P A

‘But the defendant did not force you to make the investment. You chose to do so, right? And the defendant is not preventing you from realising your investment either. Other things prevent that. The woman I spoke of above had no choice in the matter. You did.’ ‘I suppose so. But I wouldn’t have chosen to invest if I hadn’t seen the report.’ ‘Right, but do you think that your choosing to invest was the moment that the defendant’s wrong against you occurred? Let me explain. If I hold a gun to your head and say “Give me your money”, we would regard your handing over the money to me as wrongful in some way. In your case, there was no coercion, but do you feel that the wrong that you suffered was in some way like this?’ ‘Not really. I did hand over the money freely. Still, it was their carelessness that caused me to do it.’ ‘Yes, it caused you to do it in the sense that it was one of the reasons that you freely chose to do it. And also, you know, you must have realised that there was a chance that the report was inaccurate. Now, I am not suggesting that you were careless, but you did choose to invest knowing that the report might have been wrong.’

Now, P might continue to respond and the argument may go on. My own view is that P is slowly digging her own grave. Once we have established that the report did not invite her to invest – that is, that in making the report the defendant did not assume responsibility to the plaintiff for her investment10 – the game is up. But that might be wrong. My aim here is not to defend the contractual understanding of the so-called tort of negligent misstatement. The crucial point to be made here is that approaching the issue from the moral point One line of argument used in this area holds that there is no connection between these ideas; that, for instance, one might guarantee the accuracy of the information without undertaking responsibility for the use of that information. This view relies on a thoroughly inadequate picture of language that cannot survive the discussion in Chapter 4, or indeed any serious reflection on the nature of human communication. 10

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of view opens up new and important ways of understanding the law. It turns us from legal robots into investigators into the nature of our legal practices. It makes us focus on what we might call the point of the law.11 It causes us to ask, ‘What are we actually trying to do here?’12 This is crucial, because the positive legal categories may or may not give us good answers to that question. In negligent misstatement cases, my contention is that the positive legal categories do not give us good answers, which is why plaintiffs who apparently satisfy the categories keep losing. Asking questions such as ‘What is the point of this?’ and ‘What are we actually trying to do here?’ will deepen our understanding of the law. Simply saying, in line with the textbook legal categories, that the point of this law is to compensate for losses caused by negligence is patently inadequate. Thinking about the issue morally opens up understandings of the law that are not available to us if we are focused narrowly on the positive law. One might say that this is completely consistent with positivism, but the crucial point is that the understandings opened up by moral investigation are not only of what the law ought to be but also of what the law may well in fact be. After all, as I have indicated earlier, though there are a few exceptions, plaintiffs who meet the conditions set out by the ordinary law of negligence often lose these cases, a result for which the positive law has no adequate explanation, in part because the explanation it gives changes for each new case that comes along. There is an even simpler example that can be used to show the point I am trying to make here. Consider, for instance, Spartan Steel & Alloys Ltd v Martin & Co (Contractors) Ltd.13 Employees of the defendant contractors negligently damaged a power cable that supplied electricity to the plaintiff’s steel factory. When the electricity was cut off, the plaintiff was engaged in converting a quantity of metal into ingots in an arc furnace. In order to prevent serious damage to the furnace, the plaintiff’s employees were forced to melt the metal using oxygen and pour it from a tap out of the furnace. This exposure to oxygen caused physical damage to the metal or ‘melt’ worth £368. Moreover, the plaintiff estimated that it would have been able to sell the final product for a profit of £400 had it been able to complete the melt properly. Further, the factory was unable to operate for 14 hours and 20 minutes, a period long

11 For the record, we do not need to understand this point as a function in the way that tort lawyers usually understand that term – though it could be understood that way. 12 Witness, for instance, the title of the chapter by D Campbell, ‘The Curious Incident of the Dog that did Bark in the Night-Time: What Mischief does Hedley Byrne v Heller Correct?’ It should be noted that most of the chapters in this volume that present a view different to Campbell’s present no view whatsoever of what mischief Hedley Byrne corrects. The focus is entirely on the positive legal categories. 13 Spartan Steel & Alloys Ltd v Martin & Co (Contractors) Ltd [1973] QB 27 (CA).

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enough for the plaintiff’s employees to have been able to process four more melts. Had they done so, it was calculated that the plaintiff would have made a profit on those melts of £1,767. This case raises the hellish problem of the recovery of economic loss in the law of negligence. There is certainly no topic in this area of the law that has generated more controversy and has resulted in more spilt ink than this. Policy arguments for every conceivable position and of every imaginable type have been produced. Nevertheless, there is a textbook position here too. At least in England and Wales, the position is that the property damage and the consequential economic loss (the £368 and the £400 in Spartan Steel) can be recovered but, with some exceptions, other kinds of economic loss cannot. (For what it is worth, it seems to me that the position is almost identical in New Zealand, though academics in this country seem determined to deny this. Australia, of course, is a different case. There is no law there at all. In Canada, the Supreme Court appears to have accepted the analysis outlined below.)14 Note the retreat to legal categories. We have categories of economic loss. According to the jargon,15 consequential economic loss is recoverable, but relational and pure economic losses are (generally) not. A huge amount of effort has gone into defending, rejecting, revising and tinkering with these legal categories. Let us put all this aside for the moment and think about a simple case morally. I have three children: Tana, Piri and Ineawa. Years ago, Piri had a toy car. He played with this car on a mat that he set out in his bedroom, which represented a town in his mind. His sister, Ineawa, also played with the car in a model parking lot that she was given for her birthday. One day, Tana accidentally but very carelessly destroyed the car. My wife and I decided that Tana’s behaviour was so careless that we ought to require him to make good his actions. We could have decided that he would have to use his pocket money to replace the car. It turned out, however, that this was inconvenient for some reason and so we decided that Tana would have to give some of this pocket money to Piri to make up for the loss of the car. When we told Tana this, Ineawa’s face lit up. She said that she would spend her share of the money on a new unicorn. ‘Oh’, we said, ‘the money won’t be for you. It was Piri’s car and so Tana will have to pay the money to Piri but not to you.’ She was six. We expected her to understand that. So why, when the same problem is transferred to law, cannot lawyers? Is not the justification for the general non-recoverability of economic loss just this?16 In Spartan Steel, the loss suffered in respect of the melt under Deloitte & Touche v Livent Inc [2017] SCC 63; 2017 2 SCR 855, 1688782 Ontario Inc v Maple Leaf Foods Inc [2020] SCC 35. 15 A Beever, Rediscovering the Law of Negligence, ch 7. 16 See Deloitte & Touche v Livent Inc [2017] SCC 63; 2017 2 SCR 855, 1688782 Ontario Inc v Maple Leaf Foods Inc [2020] SCC 35. 14

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way when the power was cut off, the loss that the plaintiff was able to recover, was loss that resulted from physical damage to the plaintiff’s property. Here, the plaintiff was in Piri’s position. On the other hand, the loss suffered with respect to the final four melts, the loss that the plaintiff could not recover, was not loss that resulted from damage to anything that the plaintiff owned. What was damaged there was the electricity cable that belonged to a third party. So, in respect of the loss suffered in relation to those melts, the plaintiff received nothing. In this context, the plaintiff was in Ineawa’s position.17 I am not arguing here that everything can be settled by thinking about this one case with my children.18 The point that I do want to make is that moral reflection on this issue is deeply informative, and again it is informative about what the law is and not only what it ought to be. It tells us what the point of the law might be, what we are trying to do here. But, as I say, generally lawyers have not been able to see this. This is certainly not due to any lack of intelligence or ingenuity, but is because of the way in which the legal categories coupled with our positivistic outlook close our minds to possible and better understandings of the law. This is another area in which plaintiffs who satisfy the positively recognised principles of the law of negligence usually fail, and yet we stubbornly insist on continuing to understand the law through these categories. Against all of this, some might maintain that positivists can agree with much that I have said about the law of tort in this chapter. Positivism does not attempt to outlaw moral readings of the law. And that is true. But there are three points to be made. First, as has been noted, once we have internalised the duality of the law recognised in Chapter 15, we will see that moral enquiry can reveal what the law is and not only what it ought to be. Second, the aim of this book is to not defeat legal positivism. An aim, rather, is to argue that positivism needs to be outgrown. The goal of this chapter, then, is not to argue against positiv-

17 One of the anonymous reviewers of an earlier draft of this book objected to this argument on the basis that it was not clear that anything useful could be learnt from ‘homespun’ examples of this kind. I might note, however, that this is to beg the question that the legal problem is actually more sophisticated or complex than the domestic one. Morally speaking, at least, I think that this is precisely wrong. Morally, domestic problems are typically far more complicated than the ones that appear in the law reports. There is, unfortunately, a general prejudice against what we might call everyday problems that makes us think that they are simpler or less important than ‘political’ issues. Nothing could be further from the truth. Moreover, it is hard to see why it should be thought that trying to simplify matters should be frowned on – though it is certainly true that the law is prejudiced in favour of complexity, forgetting that complexity is not a synonym for sophistication. 18 I do, however, believe basically just this. See A Beever, Rediscovering the Law of Negligence, ch 7.

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ism, but to reveal one of the things that philosophers of law could be doing that is far more useful than arguing about that theory. Third, though positivism is consistent with moral interpretation of law in principle, in reality things are not quite so simple. The argument of this chapter has been that – at least in these two areas, though I am sure that it is generally true – approaching law merely as a system of posited, authoritative legal rules has seriously damaged our understanding of it. In fact, understanding law as a system of rules instead of trying to grasp it as a system of rules underwritten by legal principles groping towards moral principles has been a disaster. In this area of the law as in others, attempts to deepen our comprehension of the law by considering its moral foundations and structure are routinely objected to on the basis of some positivistic slogan: ‘that isn’t what actually happens in the courts’, ‘that doesn’t fit the positive law’, ‘that isn’t the reality of legal practice’, ‘that isn’t what the courts say’, and so on. Is it any wonder that, in such an environment, understanding the law is slipping further and further from our grasp?

18. Justification According to Finnis: The fulcrum and central question of natural law theories of law is: How and why can law, and its positing in legislation, judicial decisions, and customs, give its subjects sound reason for acting in accordance with it? How can a rule’s, a judgment’s, or an institution’s legal (‘formal,’ ‘systemic’) validity, or its facticity or efficacy as a social phenomenon (e.g., of official practice), make it authoritative in its subject’s deliberations?1

Clearly, Finnis intends these to be the same questions. In this chapter, I aim to show that they are not. But it is also worth saying now that this is intended as a defence of Finnis’ general understanding of law and of what I am calling natural law theories in general.

1. REASONS Let us begin with another passage from Finnis, one that is highly reminiscent of the argument of Chapter 15. After acknowledging that Hart was right to maintain that unjust laws exist when they are posited in the appropriate way, Finnis (rightly) insists that ‘That fact has nothing like the theoretical significance Hart thought it did.’2 The following argument is intended to illustrate this point. As a matter of fact, there is no necessary connexion between arguments and logic or validity as argumentation; arguments worthless as argument – as reasons for a conclusion – can be found all over the place. As a matter of reason, an invalid argument is no argument. Again: as a matter of fact, there is no necessary connexion between medicines and healing; countless medicines do not heal and many of them in fact do nothing but damage health. As a matter of reason, such deleterious medicines are not medicines and are not referred to in discussions of whether there is good reason to devise medicaments and make them available. So too: as a matter of fact, there is no necessary connexion between law and reasonableness, justice or morality; irrational and unjust laws abound, as natural law theory insists from earliest time until today. As a matter of practical reason, unreasonable (and therefore unjust and



1 2

J Finnis, ‘Natural Law Theories’, §1. J Finnis, ‘On Hart’s Ways: Law as Reason and as Fact’, 37. 297

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immoral) laws and legal systems are not what we are seeking to understand when we inquire into the reasons there are to make and maintain law and legal systems, and what features are essential if law and legal systems are to be acceptable – worthy of acceptance – and entitled to the obedience or conformity of reasonable people.3

The point at which Finnis is driving is right, but this is not quite the right way to make it. Even strategically this is important, because it is surely wrong to say that positivistic accounts of law ignore law as a rational phenomenon. The distinction between matters of reason and matters of fact seems a false dichotomy. The appropriate strategy is not to insist that positivism understands law as a factual, but fails to understand law as a rational, phenomenon. It is rather to argue that, though positivism understands (or could understand) law as a factual and rational phenomenon, it only partly captures the factual and rational phenomenon that it is. (One might notice at this point that this is again to use the form of the gunman argument against its authors.) Let us return to our example of the hunters from Lord of the Flies. Following Finnis, we might say of them after they had been anointed hunters but before they had learned to hunt that factually they were hunters but rationally they were not. Let me paraphrase Finnis here. As a matter of fact, there is no necessary connexion between being a hunter and being able to capture animals; on the island at least, there are a significant number of boys who are hunters who do not know how to hunt. As a matter of reason, these boys are not hunters and would not be referred to in discussions of whether there is good reason to have hunters in societies of the relevant kind (we would not say, for instance, ‘Look, see, in these sorts of situations, you need people like this.’).

There is clearly something right about this and that is a very important something, but the distinction that needs to be made cannot be made by distinguishing between facts and reasons. There are two main reasons for this. First, it is at best odd to say that it is a matter of reason and not a matter of fact that the boys are not yet hunters. When Finnis says this, what he means is that capturing animals for food is an end and yet the boys are insufficiently capable of providing the means to that end to justify associating them with the realisation of the end. As a matter of reason, we should call them hunters only if they are sufficiently capable of providing the means to that end. Thus, from this perspective, we should not call them hunters. In short, the boys are not hunters speaking rationally, because they do not have the capacity to fulfil the role that practical reason sets for them in this context. That is right, but the problem is that the boys’ inability to provide the means to that end is a fact about the boys. What is



3

Ibid, 37–8.

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more, that is more of a plain fact than the ‘fact’ that the boys are hunters in the sense that they are hunters as soon as Jack declares them to be so. This leads to the second point. It is a ‘fact’ the boys are hunters as soon as they are declared to be hunters, but what is the nature of this ‘fact’? It is the ‘fact’ that the boys now have a status function that confers certain rights, duties, permissions, and so on; that they possess deontic power that they did not before possess. And that, as we saw in Chapter 7, is a matter of reason as much as anything else. The same points can be made for Finnis’ other examples. What makes medicines that do not heal medicines (in the sense in which they are medicines)? The basic answer is that they are presented as such and that there is collective recognition of this, which is a factual matter. But a deontology comes with this. Though the deontology here is often very informal and so hard to identify precisely, one way in which we can see this is that these items are often regulated. Thus, being a medicine in this sense makes the item subject to regulation in a way that it would not be were it not presented as a medicine.4 And what makes bad arguments arguments? Again, the answer is that there is collective recognition of this, but here it is entirely plain that a deontology is associated with this. Without deontology, we could not understand anything as an argument, as an argument is defined as something that is meant to give good reasons for its conclusion. A bad argument, we might say, is an argument that fails to satisfy the deontology applicable to arguments. Recall Finnis’ assertion that the central focus of natural law theory is on the question ‘How and why can law, and its positing in legislation, judicial decisions, and customs, give its subjects sound reason for acting in accordance with it?’5 On the face of it at least, that is mistaken. These reasons might not have any connection with natural law theory or morality. Think again about playing chess. I know that, according to the rules of the game, the queen must move in straight lines. Does this ‘fact’ alone give me a good reason so to move the queen? Yes, it does. And the reason for this is not because there is some external value involved such as fairness to my opponent (though such values do exist); it is because chess is constituted by such rules and playing chess requires a commitment to those rules. When I say that playing chess requires this commitment, I mean that entirely literally. I do not mean that one ought to be so committed if one is playing chess. I mean that one cannot play chess without the commitment, as a person without that commitment cannot be playing the game. Similarly, after designating the boys of the choir as hunters, the other boys have sound reasons to treat them as such – to forgive them from having to collect fruit and to allow them to practise their hunting skills,



4 5

See, eg, s 94 of the Medicines Act 1981 (NZ). J Finnis, ‘Natural Law Theories’, §1.

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for instance. And this is not fundamentally because of external values such as the need for food (though there may be such values). It is because without this deontology it would make no sense to say that the boys were hunters at all. All this is to say that the positivists were originally right to insist that there can be good reasons for action that are neither moral nor prudential – though they had no explanation for how this was possible. The rational is not merely the sum of the moral and the prudential. The entirety of human institutional reality is constructed on the edifice of human reason6 and, though it keeps its eyes on both morality and prudence, cannot be reduced to either. Perhaps it is worth saying that it would not in my view be correct to see this as a defence of positivism. This is because legal positivism has in this regard consisted of nothing but the bare assertion that there can be good reasons for action that are neither moral nor prudential (and the ‘logic’ of their impossible position has forced some positivists to reject even this). To explain this feature of human rationality that the positivists just so happened to be right about, one has to abandon positivism for something else. I do not want to give that a name, but I do want to say that it is not yet another position in jurisprudence. The answers to the questions that we need to ask will come, not from the study of law specifically, but from the study of human institutional reality in general – from the kind of study conducted in the second part of this book. Having said this, ultimately the question about whether Finnis is right or wrong depends on the correct theory of morality. If there is no strong connection between rationality and morality, Finnis will be wrong to claim that reference to morality is necessary in order to determine how the law can give people sound reasons for action. But if there is a strong connection, then Finnis may well be right. And, as a follower of Aristotle and Aquinas, Finnis does hold that there is such a connection.

2. JUSTIFICATIONS Let us return to Finnis and to the passage quoted at the beginning of this chapter. I have been arguing that Finnis is wrong to maintain that the question ‘How and why can law, and its positing in legislation, judicial decisions, and customs, give its subjects sound reason for acting in accordance with it?’7 must essentially be a moral question. But I now argue that Finnis is certainly right to claim that the question ‘How can a rule’s, a judgment’s, or an institution’s



6 7

This is not to deny a place for the irrational here also. J Finnis, ‘Natural Law Theories’, §1.

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legal […] validity, or its facticity or efficacy as a social phenomenon […] make it authoritative in its subject’s deliberations?’8 is essentially a moral question. Think of chess again. I know that the rule is that the queen must move in straight lines. That does give a ‘sound reason’ so to move the queen. But this reason is defeasible.9 If, for instance, so moving the queen will cause my opponent to have a nervous breakdown, then I should move it differently even if that means that I am not really playing chess anymore. There is a notion of some significance at play here that must be clarified at this point. Though it would be convenient, it would also be misleading to say of this case that the deontology that comes from the status function is defeated by morality. This is because (as I am sure Finnis would agree, but as is clearly inconsistent with Hart’s position10) it is wrong to think of morality as a sphere of human rationality separate from the rest of practical reason. Exploring this in the detail it deserves would require the production of a treatise on moral theory, so I cannot do this here, but the following point is the most relevant in this context. Deontologies that arise from status functions are not morally neutral. This is in part because of familiar issues such as that people are likely to rely on the observance of such deontologies, the wrongfulness of freeriding, and so on. But it is also because the acceptance of status functions involves a commitment that it can be difficult to surrender consistent with one’s moral integrity, and most fundamentally because we are talking about the building blocks of civilisation. Obviously, a great deal more must be said about this (elsewhere), but the key point now is just to realise that all deontologies have, we might say, some moral significance, even if they are on occasion readily outweighed by other concerns.11 Ibid. By this I mean that the reason can fail to justify the action in some way, about which I intend here to be as non-committal as possible. 10 Consider, for instance, the arguments that Hart employs against natural law theory which turn on making distinctions between one’s legal and one’s moral obligations. Eg HLA Hart, The Concept of Law, 207­–8. These distinctions simply cannot be made in the bald way that Hart does. 11 One might doubt this. One might suggest, for instance, that some regimes are so wicked that their rules have no moral significance whatsoever. I think, however, that if one were to find oneself in such societies, it would be morally impossible to maintain such a view. Few would be more likely than I to applaud violations of Nazi law, for instance, but if I imagine myself alive in Nazi Germany, I cannot accept that it would have been right for me to ignore the law altogether, even the clearly immoral laws. The Nuremberg Laws were not morally irreverent, but were something to be morally reacted against. A moral person would find such a law morally corrupting (not merely corrupt). This too is a topic that cannot be explored now in the depth required, as in the end the important questions are about morality rather than law. But nothing important here turns on this in any case. 8 9

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Imagine that I am a judge. I have a defendant in front of me who has been found guilty of a crime by a jury in my court. I am in the process of sentencing her. I believe that the law, to the best of my ability to understand it, requires that I sentence this woman to ten years’ imprisonment. Finnis asks, ‘Yes, but does this alone give you a sound reason so to sentence the woman?’ His answer is ‘No’, but the answer must be ‘Yes’. I have a sound reason to sentence her to ten years. That reason is a product of the entire edifice that I (and she and everyone else) use and must use to make sense of what we are doing. I am a judge, we are in court, she is a defendant, she has been convicted, I am considering her sentence. Given that I have accepted all of that, I cannot (not must nor should not, and nor is the point psychological, it is logical) now believe that the fact the law requires me to sentence her to ten years in prison gives me no sound reason so to sentence her. If I have no sound reason to sentence her, then I have no sound reason to regard myself as a judge, to believe that we are in court, that she is a defendant, that she has been convicted or that I am considering her sentence. If a player playing rugby union suddenly tells himself, ‘I have no a sound reason to tackle the opposing ball carrier!’, then he is no longer playing the game. A judge in the situation described no longer sees herself as a judge. But this is quite different from a judge who says to herself: ‘I believe that the law, to the best of my ability to understand it, requires that I sentence this woman to ten years’ imprisonment. That gives me a sound reason so to sentence her. But I do not think that it would be right to regard that reason as authoritative in my deliberations.’ She might say, for instance, ‘the law requires me to sentence her to ten years and so I have a reason to deliver that sentence, but doing this would be so immoral that I am not going to do it’. And she might well, in these circumstances, believe that the law is morally and legally defective. We can summarise this by saying that the law does essentially give reasons for action, but it does not necessarily justify. It justifies only in a ceteris paribus fashion. It gives reasons, but it is not ultimately authoritative for practical reason.12 As always, this is not a special feature of law, but is true of human institutional life in general.

3. CONCLUSION It may seem as if the message of this and the previous few chapters is that, in the war between legal positivism and natural law theory, the latter has proven

12 Note that this is different from the sense of authoritativeness examined in Chapter 14.

Justification

303

to be the victor. But that would be the wrong way to present the conclusion. Rather, it would be better, and more historically accurate, to say that legal positivism started a war with ghosts that exist only in its imagination. There are no victors of such wars. The right response, then, is not to say that the natural lawyers won but to say that the whole war was a waste of time and the sooner we call it off the better. When the war is over, we will see that natural law is not the victor but rather one school of thought that is trying to identify and answer some of the right philosophical questions. Free of their hallucinatory battles, positivists are most welcome to join them, and to do so in their own ways. And the technologies that they developed in the process of fighting their phony war will surely prove very useful in this theatre. This is why, though I regard so much of the effort as misguided, I nevertheless have no hesitation in recognising the significance now and into the future of the work produced by positivists such as Hart and Raz. Jurisprudence must stop, but these jurisprudents will continue to be our teachers.

19. Conclusion What is law? There is no great mystery. It is a set of status functions. Human beings create these by making status function declarations. ‘It is an offence to…’, ‘In any action for damages…’, ‘The defendant owes the plaintiff a duty of care if…’, and so on. Human beings maintain status functions by making further status function declarations and by using status function indicators. In law, these are wigs, gowns, gavels, forms of address, and so on. We do this because it increases our power. We get away with it only because others accept what we are doing in the sense of collective recognition. The status functions that constitute the law do so because they are collectively recognised as doing so – though there is no reason to think that this collective recognition is unified or stable. Some status functions may be recognised as law in some contexts and not in others. Nothing of any philosophical significance hangs on this, though it can become a matter of dispute in our courts. The law is a social fact. It can and should be studied as such. Philosophy can certainly help with this task. Law is also essentially connected to morality. It commands in ways that require it to be related to morality in certain ways. Philosophers have probably the preeminent role in investigating this aspect of law. The philosophy of law needs rebooting. We need to begin by asking the question: ‘What are we trying to do here?’ It is telling that the most famous book in this discipline provides no clear answer to this question; or, rather, it starts with a clear question that it never really tries to answer. And this produced a discipline in which unfortunately many end up chasing this dog’s tail. In much of the common law world, the study of jurisprudence is compulsory in law schools. It would be wonderful if it were possible honestly to justify this to those disgruntled students who are so compelled on the basis that it really did help them to understand the law. It would be even better if we did not need so to justify it and the students were not so disgruntled, because, in studying jurisprudence, they could see for themselves how informative it was. Alas, this is not the world in which we live. But it could be.1



1

JR Searle, Mind, Language, and Society. 304

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Index whether all law is authoritative 253–5

Austin, J 6, 9, 12, 140 classical positivism of 134 command theory 12 definition of law 197 failure to understand nature of rules 150 laws as rules 150–51 The Province of Jurisprudence Determined 11, 150, 172 on sanction 140, 172 use of deontic language 175 Austin, JL 10, 19, 235, 280 influence on Hart 8, 227 on jurists 147–8 locution, illocution, perlocution distinction 51 authority 237 and arbitrariness 272 controversy 247, 248 and Background 252–3 criticism of inclusive legal positivism 242–5 criticism of integrity theory 241–2 evaluative considerations see below dispute settlement 250–52 evaluative considerations 245–50 controversial considerations see controversy above as distraction 247, 249 evaluative criteria 249 judgement 247–8 no repetition of dispute 245–6 social facts 246 and Fuller's conditions for making law 250 positive argument 237–41 authoritative law 238–41 coherent claim to authority 237–8 /rationality tension 272

Background 77, 78–9 and art 90, 91 shifting interpretation 90, 92–3, 94–6 and basic actions 81–2 and conditions of satisfaction 79–81 changes in background altering 81, 90 deep 78 foregrounding 90 as invisible 90 local 79 no Background, no meaning 81, 98 properties 81 rules as part of 82–3 see also intentionality; interpretation; network Bentham, J 172, 173, 280 classical positivism 134 command theory 12 Bix, B 3–4, 5, 7, 12, 226 Jurisprudence: Theory and Context 15 on HLA Hart 12, 24 rule/principal difference 226 case law Anderton v Ryan 269 Anns v London Borough of Merton 269 Bolton v Stone 230 Canadian National Railway Co v Norsk Pacific Steamship Co Ltd 146–7, 170 Caparo Industries v Dickman 288–90 Donoghue v Stevenson 30, 243, 244, 248–9, 256–7, 258, 259–60 314

315

Index

Hedley Byrne v Heller 287 Murphy v Brentwood District Council 269 R v Shivpuri 269 Spartan Steel & Alloys Ltd v Martin & Co (Contractors) Ltd 293–5 The Wagon Mound (No 2) 230 Winterbottom v Wright 257–8, 259, 261 coercion 134 law and 140–42 not essential features of laws 140–41 as paradigmatic of law 141 as part of law’s Background 141 positivist understanding of as faulty 140 collective intentionality 40–43, 115, 119 collective recognition 40, 42–3, 114, 115, 121 institutions requiring 114, 116, 118, 126-7 lack of understanding of 116 of law 123 power relying on 148 status functions relying on 110, 111, 121 cooperation 40–42 creating sense of belonging 115 command theory 12 commitment 39, 53, 54, 67, 72, 74, 75 acceptance of status functions involving 301 assertive language involving 54–5, 68 inconsistent 54, 56 minimising deontological 115 of officials 193–4 promises 64–5 strong 57–8 to rules 299 see also deontology common law finality 268–9, 270 infallibility 269–71 rationes decidendi 272 self-conception 267–8 complex actions 39–40 levels of description 39 accordion effect 40

see also intentionality Danto, A 18–20, 23–4, 25, 128 basic action 82 The Transfiguration of the Commonplace 16–18, 24, 85–6, 122 Davidson, D on intention 34, 35 principle of charity 100–101 declarations circularity of 108–9 /directives differentiation 136 law as 135–6 deontic power as contextual 213 of declaration 109–10, 111 gunman argument 173–4, 185 independence of 177 institutional 114, 116, 119, 127, 209, 211–12, 214 collective intentionality 119 collective recognition 114, 116, 119, 127, 214 declarations 112–13 queuing 212–13 status function declarations 113, 114 status function indicators 113–14, 116, 121, 304 legal 126–7, 184–5 law as carrying 174, 177, 178, 182, 192, 209 law as creating 121 law as lacking 189 law as system of 271 Lord of the Flies example 106–8, 114–15 morality as lacking 183–4 deontology 63, 115, 299 binding 120 commitments 64–7 creating obligations, 67 dual sense of 64–5 promises 64, 65, 66–7 and complicity 117–18 constitutive rules 63–4 defective 216–17 deontic power see deontic power

316

desire-independent reasons for action 71–3 and promises 72 fact/value distinction 69–70 games not solving issues of 193–4 how law carries 213 is/ought distinction 70–71 morality 73–5 and normativity 120 obligations 66, 67–8 regulative rules 63, 64 reversal of 116–17 speech act normativity 73 see also institutions; morality Descartes, R 25–6 directives 47, 61, 62, 68, 136, 216 authoritative 239–40 /declarations differentiation 136 essential condition 56 invitations 56 involving commitment 68 legal directives as moral directives 284–5 orders 56 preconditions 56–7 sincerity condition 57 moral constraints on 223–4 negative 138 see also language; speech acts dualism 256, 271 jurisprudential 262–3 in negligence actions 264–5 liability 266–7 psychological 261–2 wrongly decided cases 256–61 Donoghue v Stevenson 256–7 privity doctrine 258–9 Winterbottom v Wright 257–8 see also case law; tort law Dworkin, R 11, 267–8, 233–4 integrity theory 241–2, 248 Law’s Empire 13 legal principles 225–6 progress as a theorist 13–14 rule/principle differentiation 226 Taking Rights Seriously 2, 13, 14 attack on Hart 13, 225–6 efficiency 218–20 /morality connection 222

Law’s reality

rules of 223 Ehrenberg, K 130, 131, 195, 213 The Functions of Law 274 facts 298–9 /reasons distinction 297–8 Finnis, J 2, 11, 280, 282–3, 286 rule of recognition 210, 211 on unjust laws 297–8 free will/determinism debate 37 freedom 36, 37, 286 of will 35, 36 Frege, G 14 Fuller, L 220–221 conditions for making law 216, 218, 250 as incomplete 224 whether morally neutral 220–21 inner morality of law 215–16, 218 law/morality connection 221 The Morality of Law 215 thought experiment 215–16 function 23, 128–30, 131 assigning 43–4, 108 of exclamations 46 law and 128–30 of law 254 status see status function Grice, P 99–100 Hart, HLA 2, 11, 150, 183–94 agenda 2–3 Essays 188, 189 on finality 268–9 focus on officials 189, 190 gunman argument 173–4, 177, 185, 188 force of 176 law as lacking deontic power 189 law as system of rules 6, 12 law creating obligations 188–9 laws can be immoral 12 legal duties 184–6 non-cognitive theory of duty 183, 184, 192 poisoning/law analogy 222–3 rejection of classical positivism 134, 189

Index

collapse of 192 rejection of juridical/ethical distinction 8 The Concept of Law 2–3, 8, 24, 142, 178 three recurrent issues 4 weakening normativity 185 what is law? 3–4, 5–6 see also jurisprudence; legal positivism; rules Hegel, GWF 26 human consciousness 30 Hume, D 69 Hume’s Law 210 idealism 26 illocution 51, 52 assertives 52, 54–6 commitment in 54–5 direction of fit 52 preconditions 54 sincerity condition 55–6 commissives 57–58 direction of fit 57 negative 58 oaths 57–8 precondition 58 promises 57 sincerity condition 58 conditions of satisfaction 52, 54 declarations 60–61 importance of 60 directives 56–7 essential condition 56 invitations 56 orders 56 preconditions 56–7 sincerity condition 57 expressives 59 as heart of language 51–2 /locution/perlocution distinction 51 taxonomy of 53 institutional reality 10, 119, 300 creation and maintenance of 114 Lord of the Flies example 106–8 as relying on collective recognition 116 as ubiquitous 119 see also law; institutions institutions 209–14

317

creating power 118–19 deontic power in 114, 116, 127, 209, 211–12, 214 inertia of 117–18 institutional reality reliance on collective recognition 116 justification as foundation of 300 /law differentiation 167–9 /legal systems distinction 126 money 111–12, 116 as requiring collective recognition 114, 116, 118, 126–7 rule of recognition as fact of 210 see also deontic power; law; status function integrity theory criticism of 241–2 on interpretation 241, 242 intentionality 29–30 action 34, 35, 187 basic 82 and commitment 193, 195 complex 39–40 deontic reasons for 176–7, 184–5, 188, 189, 273 desire-independent reasons for 71–3, 110, 121 first-order reasons for 226–7 justifying 191 moral reasons for 187–8 and neighbour principle 244 peremptory reasons for 138 pre-emptive/dependent reasons differentiation 238 prudential reasons for 172, 174 and social obligations 197 assignment of function 43–4 status functions 44 autonomy 36–7 game of deliberation 37 background 76 elements of 76–7 /network divide 77 belief 31, 32, 38 nature of 33 no direction of causation 38 collective see collective intentionality complex actions 39–40

318

Law’s reality

conditions of satisfaction 31–2 as essential 39 intentional states as representations of 38–9 conscious 31 definition 30 desire 32, 33–4, 38 no direction of causation 38 as not causally self-reflexive 33 direction of causation mind-to-world 38 perception 33 world-to-mind 38 direction of fit 32 belief 33, 47 perception 33 the gap 35–6 human action as indeterministic 36 intentional states 38, 48 intentions-in-action 34, 38 autonomy in 37 as causally self-reflexive 35 complex 41 /language connection 45 linguistic representations 46–7 meaning intention 48 memory 38 freedom of 37 network see network perception 32–3, 38 as causally self-reflexive 33 freedom of 37 prior intentions 34, 35, 38 autonomy in 37 as causally self-reflexive 35 /intentions-in-action distinction 34–5 private 49 unconscious 31 see also Background; complex actions; language interpretation 84–5, 98, 105, 233–6 artistic 85–6, 90, 92–4, 96–8 and Background 90, 92–3, 94–6 /authority debate 235–6 and Background 86–7 language 89–90 perception 86–7, 88, 89 best 103–4, 242 and beliefs 104

morality in 104 conversational 98, 99–102 Grice maxims 100 principle of charity 100–102 definition of interpret 84 discretion 232–3 of indirect speech acts 98 judicial discretion 84, 225, 226, 227, 232 ‘nonsense figure’ experiments 87–8 through performance 85 see also Background is/ought distinction 71, 73–4, 201, 202, 207, 211 positivist commitment to 209 jurisprudence 7, 133 as antiquated 10–12 disputes within 13–14 focusing in wrong place 14 as incestuous 12–15 insularity of 8–10 as not about the law 14 as philosophy of big names 15 as quasi-ontological 7–8 see also Hart justification 297, 300–302 reasons for action 187 192, 297–300 commitment giving 193 desire-independent 71–3, 121 and promises 72 /facts distinction 297–8 first-order 226 as foundation of institutions 300 law giving 176, 184–5, 188, 189, 213, 284, 302 morality giving 187–8 obligation not giving 197 peremptory 138–9 pre-emptive/dependent distinction 238 sanctions as 172, 176 Kant, E 36, 73, 124, 172, 203–4 categorical imperatives 208 generation of legal obligations 203–4 juridical/ethical distinction 8

319

Index

on morality 274 practical reason as primary 70 Rechtslehre 203 Universal Principle of Law 204 Kelsen, H 11, 200–3, 204–7 basic norm as objective 204–6 general relativism 206 is/ought distinction 201 law as deontic 201 legal validity of norms 202–3 ought categorical 200–201 objective 200 subjective 200 as synonym for deontology 200 robber band argument 203 theory of law 182 Kierkegaard, S 17 Kramer, M 192–3, 219 language 45 assertives 47 involving commitment 68 commissives 47 negative 67–8 positive 67 communication 48 compositionality 50 conditions of satisfaction 47–8 conventional meanings 66 conventions 48–9, 49 as arbitrary 66 uncoupled from intentionality 49 directives 47, 136 involving commitment 68 discreteness 50 exclamations 45 function 46 misleading 46 expressives 47 as extending intentionality 47 generativity 50 illocution as heart of 51 linguistic meaning 47 meaning intention 48 philosophy of 11, 51 shuffling semantics 50–51 speech acts see speech acts

law

syntax 50 words 49–50 see also directives; intentionality ambiguity in use of 265–6 as carrying deontic power 174, 209 and coercion 140–2 backed by threat 134, 135 not a necessary feature of individual laws 141 sanctions 134, 139, 140, 172, 173–4, 175, 181, 191, 197–8 coercive character 142 as collection of status functions 121 commissive nature of 135 common see common law as declarative 135–6 declaratory theory of 146 definition 121, 134 adequacy of 122 avoiding 23–4 and collective recognition 121 as definition of social institutions 121–2 pluralistic approach 126 positivist 121, 140 as directive 136–9, 142 directing by creating duties 135 as epistemologically objective 121 and function 128–30 inner morality of 215–16, 218 insecure authority of 142–9 appeals to higher authority 144 in case law 146–8 deflection 144 hiding source of authority 143, 149 reliance on collective recognition 148 use of declarations 146 lack of critical thinking on 144–5 /lawmaker tie as cut 230–31 /morality connection 16, 199–200, 216, 218, 219, 283, 285 as not existing 193 positivism on 209 severance of 146 nature of 29–30 /non-law distinction 123–4, 125

320

Law’s reality

art/sculpture distinction example 125–6 conflict of laws 124 as conventional 125 as normative enterprise 172 as not being sui generis 9, 10 as ontologically selective 121 as paradox 272, 273 peremptory reasons for action 138–9 primary 134–5 form 139 potential to be set of directives 142 as resting on family resemblance 127–8 rules 134 as set of status functions 304 as social institution 9, 10, 121 as symbol 20 understandings of 296 see also rules; social institutions; status function legal positivism 5–6, 10, 13, 15, 20, 119, 131, 276–7 as brake on progress 133 classical 134–5, 139, 149 as all but dead 172 rejection of 134, 135, 140 collapse of 183 H Kelsen 200–207 HLA Hart 183–92 J Raz 199–200 S Shapiro 195–9 towards natural law theory 194 criticism of inclusive 242–5 neighbour principle 242–3 definition of law 121, 140 as distraction 283 endorsing irrational laws 145–6 gunman argument 173–4, 177, 185, 188 inherent instability 133 is/ought distinction 209 law as normative 209 law as top-down projection of power 148 law carrying deontic power 209 no law/morality connection 209 problem of legal deontology 207–9 as promoting quiescence 146

on reasons 300 on rule of recognition 182 sources thesis 220 understanding of law 298 see also Hart HLA; Kelsen H; Raz J; Shapiro S legal realism 134 legal understanding 262–3 lex injusta non est lex 277–8, 280 Lloyd’s Introduction to Jurisprudence 9 logical equivalence 187 MacCormick, N 212–13 materialism 26 McCoubrey & White’s Textbook on Jurisprudence 15 meta-ethical emotivism 183 meta-ethical prescriptivism 183 middle way 178 as myth 209 morality 274 categorical imperative 274 critical 104 /efficiency connection 222 and functioning of legal directives 284 as having no deontic power 184 immoral law as impossible 286 /law connection 215–16, 284, 285 legal directives as moral directives 284–5 moral claims 183 moral constraints on law 219 moral mistakes 218–19 non-cognitivism on 183–4 and obligations 188 popular 104 /power duality 284 /reason connection 274–5 social 104 utilitarianism 275 see also natural law theory natural law theory 9, 121, 145, 204, 210, 219, 286, 302–3 central question of 297, 299 as demanding rationality 146 as foil to legal positivism 282 fundamental tenet 274

321

Index

Hart’s rejection of 128, 281 immoral law as impossible 286 legal positivism collapsing towards 194 misrepresentation of 282 normativity as not moral 209 as not inappropriately venerating law 281–2 positivism collapsing towards 194 primary focus 282 recognition of positivism 281 as stimulating critical reflection 146 strength of 178 weakness of 178 nature of reality 122 negligent misstatement 263–5, 287, 288, 288–92 assumption of responsibility 292 Caparo exception 289 Caparo Industries v Dickman 288–90 as incorrectly categorised 289–90 key questions 290 liability in 289 from moral viewpoint 292–3 see also tort law network 76–7 /background divide 77 see also Background; intentionality Nietzsche, F 29, 187–8 morality as self-interest of the weak 187 non-cognitive theory of duty 183–4 no moral reality 184 normativity 172, 271 basic norm 203 morality requiring 203 as not prescriptive 204 as not requiring justification 203 as objective 204–6 presumption of 202, 204 and deontology 120, 173, 178–82 duty-imposing rules 179, 180–81 legal deontology problem 180–82 gunman argument 173–4, 177 intuitive position 176–8

language in 175–6 obligation/obligated differentiation 176 legal duties and deontic power of law 184–5 of rule of recognition 178–9, 181–2 ontology 7, 19–20, 22–7 confronting 25 dual 22–3 and function 23 of law 20 philosophy analytic 14–15 Cartesian physical/mental division 25–6 Hegelian reduction of natural science 26 history of 25 of law see philosophy of law nature of 18–19 reality 26–7 task of 25 philosophy of art 16–20, 130–31 functional definitions of art 130 nature of art 17–18, 131 ontology in 19–20 The Transfiguration of the Commonplace 16–18, 24, 85–6, 122 philosophy of law 5, 16, 27 jurisprudence as brake on 263 jurisprudence as subject unto itself 8–9, 15 law as symbol 20 need for reboot 304 questions 21–2 real/made up dichotomy 20 role of 214 subjective ontology of law 20 what is law? 3–4, 5–7 see also ontology; what is law? philosophy of society phlogiston theory 186, 187 Plato 9, 163 power relations 165 principles 225–7 and Background 227–33

322

Law’s reality

assumptions 228–9 clarification 229–30 scope of terms 227 interpretation 233–6 against moral background 223–4 Background assumptions 234–5 judicial discretion 225–6 Riggs v Palmer 226 /rules distinction 226 privity doctrine 258–9 rationality /authority tension 272–3 engaging 272 and freedom 36 in law 146 /legality relation 274 /morality connection 300, 301 natural law theory demanding 146 as rejecting arbitrariness 272 Rawls, J difference principle 70 influence on Dworkin 11 Raz, J 84, 124–5, 126, 194, 219, 239–40 all law as authoritative 239–40, 260 criticism of inclusive legal positivism 242–5 criticism of integrity theory 241–2 exclusionary reason 226–7 law/morality connection 199–200 legal principles 227 positivism as heroic tradition 281 rule of recognition as fact 209–10 rule of recognition 153, 154, 155 as circular 166–7 collective recognition 162–6 as foundation of law 168 obedience/orientation towards distinction 165 official 162, 163, 167 personal 162, 163, 164–5 duty-imposing/power-conferring question 166 foundations of law 156–61 collective recognition see above social acceptance of a rule 159 standard metre bar 158, 159–61 whether rule of recognition is 156, 159, 161

institutional differentiation 167–9 meta-rule 167–8 as institutional fact 210 law/other institutions differentiation 167–9 as ultimate rule 156 and validity 157–8, 159 whether law is a unified institution 169–71 rules 150 and Background 227 ambiguity 227–9 clarification 229–30 behaviour as governed by 82 and causal role in behaviour 163–4 constitutive 151–2 /regulative differentiation 152 conventions becoming 117 the existence of the rule 143 following as intentional 164, 165 Hartian understanding of 154–5 informal 154 law as system of 150 law existing in union of 154–5 moral 219 as open-textured 227 primary 134 duty-imposing 153 /secondary distinction 153 secondary 134 making primary rules possible 153–4 rule of recognition 153, 154 rules of adjudication 153, 154 rules of change 153 self-reflexive 161 as standards of conduct 150, 151 violating rules 222 see also rule of recognition Russell, B 14 sanction 175, 181, 191, 197–8 giving reasons to act 176 insufficient to account for law’s normativity 173–4 /law link 149, 172 law as command attached to 5, 134, 136, 139, 140, 172, 197 not all law accompanied by 140

Index

Searle, J 10, 25, 30, 51, 74, 115, 116, 126, 144 books 29 the gap 35 on is/ought distinction 73–4 Shapiro, S 195–9 legal obligations 198–9 perspectival/adjectival distinction 197 positivistic account of legal authority 195–6 Simmonds, N 12, 14, 22–3, 218 Central Issues in Jurisprudence 15 Smith, B 10 social fact 207, 236, 238 creation 111 law as 304 law depending on 6–7, 246, 276, 277, 283 social phenomenon law as 133 rules as 297, 300–301 social reality 111–12 ontology of 10 solidity 186, 187 speech acts 51 commitment in 68 declarative see declarations defective 216–218 deontology see deontology dual purpose 136–138 equivocal 188, 278–9 illocution see illocution indirect 61–63 commissives 62, 138, 139 directives 47, 61, 62, 68, 136 dual purpose 62–3 expressives 62 preconditions 62 structure 62 locution 51 /illocution/perlocution distinction 51 normativity 73 perlocution 51 primary meaning 63 secondary meaning 63 see also directives; language Stanford Encyclopaedia of Philosophy 6

323

status function 108, 275 circularity in 108–9 declarations 109, 110, 111, 113, 114, 121, 275 deontic power 109–10, 111 double direction of fit 109 law as 121 duality in 275–6 horizontal/vertical iteration 110–11 indicators 113–114, 116, 121, 304 maintaining 121 as reliant on collective recognition 110, 111 Tamanaha, B 126–7 Thomas Aquinas 11 threats 223, 224 tort law duty of care 147, 243–4, 288–9 and economic loss 249 neighbour principle 242–3 restrictions on 289 liability 267 negligence 146, 147, 243, 290 assumption of responsibility 264, 287–8 Caparo exception 289 contributory 244 Donoghue v Stevenson 243, 248–9, 249–50 economic loss 294–5 establishing action 263–5 negligent misstatement see negligent misstatement Spartan Steel & Alloys Ltd v Martin & Co (Contractors) Ltd 293–4 neighbour principle 242–3, 244 reliance 263 as in woeful state 287 see also case law validity 157, 181–2 of individual laws 155 as internal statement 156 legal 161, 162, 194 of norms 202–3 and rule of recognition 156, 157–9, 162

324

what is law? 3–4, 5–7, 24 recurrent questions 4, 5

Law’s reality

Wittgenstein, L 127–8 wrongly decided cases 256–61