by Neil MacCormick. Stanford, California: Stanford University Press, 2008. 256pp. Hardback. $70.00. ISBN: 9780804756785. Paper. $24.95. ISBN: 9780804756792.
Reviewed by Samuel T. Morison, U.S. Department of Justice. Email: samuel.morison [at] usdoj.gov.
When the first edition of Neil MacCormick’s H.L.A. HART appeared in 1981, it was notable for being the first book-length treatment of Hart’s legal philosophy, which was comprised largely of a sympathetic analysis of Hart’s most famous and enduring work, THE CONCEPT OF LAW (1961). As such, MacCormick’s book filled an important gap in the then existing literature for an accessible, introductory text on the main themes in Hart’s jurisprudence.
Nearly thirty years later, and sixteen years after Hart’s death, the scholarly production of critical literature on his thought has grown to enormous proportions, including several monographs, countless journal and law review articles and, most recently, a comprehensive biography, Nicola Lacey’s widely acclaimed A LIFE OF H.L.A. HART: THE NIGHTMARE AND THE NOBLE DREAM (2004). While the intellectual landscape has thus changed considerably, the need for a reliable introductory text on Hart’s contributions to jurisprudence is no less necessary. In this regard, the second edition of MacCormick’s book, updated to account for the major developments since its original publication, such as the posthumously published Postscript to THE CONCEPT OF LAW, continues to fill an important niche in Hartian scholarship.
MacCormick, who attended Hart’s lectures at Oxford as a graduate student in the early 1960s, does not undertake a complete survey of Hart’s scholarship, but instead aims more modestly at a “friendly” introductory account that provides a “sympathetic reconstruction of Hart’s main ideas” (p.13). At the same time, the analysis is not without critical bite, since MacCormick repeatedly claims throughout the book that “Hartian doctrine . . . points in the right direction but does not take us far enough” (p.159). He thus purports at various points (about which more below) to extend Hartian insights in a more rigorous and thoroughgoing manner than Hart himself did. The end result, as MacCormick admits, is a substantially amended conception of law. Indeed, Hart’s reaction to the first edition was to insist that “he considered himself a more hardened positivist than MacCormick had depicted,” which “made him out to be more of a natural lawyer than he wanted to be” (p.15). The present edition would no doubt elicit the same reaction.
As in the first edition, the heart of the book remains MacCormick’s reconstruction of Hart’s general theory of the structure of modern municipal legal systems as “a union of primary and secondary rules,” which is set forth primarily in Chapters 9 through 11. In an “inversion of Hart’s order of [*42] proceeding” in THE CONCEPT OF LAW, this discussion is preceded by a series of chapters examining “the building blocks of Hart’s theory of legal order” (pp.61, 117), namely his conception of social rules, his views on positive and critical moral theory, and the notions of obligation, duty and wrongdoing, power-conferring rules, and rights. It is followed by chapters devoted to an exposition of Hart’s theory of crime and punishment, the relation of law and morality, and an epilogue addressing the methodological concerns discussed in the Postscript.
Before turning to these issues, MacCormick begins, usefully I think, with a brief biographical sketch that sets the stage by reviewing Hart’s early career as a practicing lawyer, his credentials as a proponent of egalitarian social democracy, which crucially informed his reformist impulses, and the philosophical milieu in postwar Oxford, which was “the intellectual context to which his analytical jurisprudence belongs” (p.23). Perhaps surprisingly, in discussing the distinction between “law” and “politics” that figures so prominently in American constitutional discourse, MacCormick candidly observes that Hart’s views on the relation of law and political morality did not escape the parochial concerns of his time and place. “Though he claimed it applied to legal systems quite generally,” MacCormick writes, “Hart’s theory of law bears some of the marks of the . . . unspoken assumptions of the English lawyer” and is therefore “clearly recognizable as the work of an English lawyer of the twentieth century” (pp.8, 10).
While this might have been nothing more than a modest acknowledgment that no scholar can really lay claim to an Archimedean vantage point from which to evaluate social phenomena, it raises some thorny issues for Hartian jurisprudence. Stephen Perry (1996) has usefully distinguished between methodological and substantive versions of positivism, which are logically distinct. On the methodological side, as MacCormick suggests, Hart’s theory makes a claim to universality, in the sense that all genuine legal phenomena are assumed to possess a certain set of shared features or characteristics, regardless of time and place. In this view, the task of the legal theorist is to provide a morally neutral “descriptive account of what societies living under law all have in common” (p.210).
To be sure, such a description should take into account the participant’s perspective, the so-called “internal point of view,” which may or may not include normative considerations, but any such connections between law and morality are a strictly contingent matter. Hart is not much concerned with the reasons why officials accept properly pedigreed social rules. In particular, while moral considerations might be a criterion of validity in some legal systems (e.g., the Bill of Rights to the U.S. Constitution), this is by no means a conceptual necessity. Hartian reportage thus aspires to be a scientific, explanatory-descriptive enterprise that may be conducted independently of any context-dependent features of a particular legal system, such as the moral and political values which it subserves.
But serious reservations have been raised about the plausibility of this entire [*43] approach to jurisprudence. In the first place, as Perry points out, existing legal systems are artifacts of human cultural construction, rather than a “natural kind,” such as the elements of the periodic table, each instantiation of which may be said to share some common essence or function. For this reason, a general theory of law as such may not be a scientifically fruitful explanatory category, perhaps no more enlightening, as Brian Bix (1999) puts it, than “a theory of all objects that begin with the letter ‘N’.” Whatever jurisprudes are up to, it does not seem to be science in any ordinary sense of the term. (But see Brian Leiter (2003) for a vigorous dissenting view).
Moreover, whatever might plausibly be said about all legal systems, past and present and across cultures, is likely to be so abstract as to be without much practical significance. As noted above, Hart readily concedes that legal phenomena must be understood and described from a hermeneutic point of view, with the important proviso that the theorist need not personally embrace this perspective. Be that as it may, this is always the perspective of those persons who are actual participants in a particular legal culture. In understanding legal phenomena, we always start from what Perry calls a “local methodological stance,” since “it is by no means evident how we would go about formulating pre-theoretical propositions about ‘all’ legal systems.” With such an understanding firmly in hand, we might well be in a position to formulate a more general concept of law in a comparative fashion, but since legal institutions and practices are intelligible only in view of some inherently contestable function, value, or purpose, such as the promotion of justice and the common good, such an inquiry seems to be an unavoidably normative enterprise.
It is not clear to me precisely where MacCormick stands on this issue. On the one hand, he seems to insist, with Hart, that the validity and content of law are strictly matters of social fact. This, in turn, leaves open the possibility that “faithful reports can be given about the character and content of some body of law even by somebody who has no commitment to the particular values in which these laws are grounded” (p.204). From this it also follows that “the bare existence of a legal system as a system of rules carries no guarantee concerning the substantive justice or moral satisfactoriness of the content of these rules” (p.208).
On the other hand, Hart defended the separability thesis, at least in part, in frankly normative terms, namely as a warning against “the risk of moral complacency about the uses of the concept of law.” Hart’s positivism thus remains “grounded in practical, indeed moral, concerns, not purely epistemic ones,” and MacCormick concedes that it is not clearly “tenable to base one’s methodology on a claim about the moral basis for insisting on detached juristic inquiry” (p.209).
MacCormick then takes this line of argument a step further. Following John Finnis, he says that “it can be argued most persuasively that law must in principle be oriented toward the common good of the community whose law it is and seek to realize justice among its members” (pp.208-209) (emphasis added). Understood in this way, the law as it is actually [*44] implemented in any given jurisdiction can and often does fall short of the distinctive values it ought to realize, but if an aspiration toward justice and the common good is an inherent feature of the concept of law, then the status of purely descriptive conceptual analysis seems uncertain. Indeed, MacCormick (2007) claims elsewhere that where a given law or set of laws “cannot be accounted for under any possible conception of justice that could reasonably be adopted or advocated by a reasonable person willing to subject his or her beliefs to discursive scrutiny, then what is thus done by way of rules and practices of governance would not properly count as law.” In such “extreme cases,” he says, the ostensible laws “carry no element of genuine obligation with them, though they may be backed by coercion enough” (p.209).
This is a congenial conclusion, perhaps, but it is certainly not Hart’s view of the matter. As is widely known, Hart’s project in THE CONCEPT OF LAW was to rescue positivism from the reductive Austinian formulation according to which law was essentially an order backed by an effective threat of coercion. The problem with this picture, Hart pointed out, is that one’s being obliged to obey a command under the threat of sanctions in the event of noncompliance in no sense gives rise to a genuine obligation. In order to distinguish habitual obedience, motivated perhaps by fear of punishment, from actual rule-following behavior, Hart insists that those to whom the rules apply must adopt a certain “reflective critical attitude,” namely they must willingly accept the rules as a shared or common “standard of behavior.”
In a pre-legal society, the “primary rules” of behavior are obligatory essentially because they are accepted as legitimate by the members of a group as forming part of its conventional morality. By contrast, in a modern legal system, Hart makes no appeal to the content of the primary rules. Instead, such rules are obligatory by virtue of their origin, because they are properly enacted according to a valid secondary rule, which is itself accepted as a social rule of the group.
Moreover, it is sufficient if the public officials who are responsible for the formulation and implementation of the primary rules – legislators, judges, and lawyers – willingly accept the secondary rules in a normative sense. For the system to function, the mass of the citizenry need only generally obey, although Hart allows that in a healthy society, most citizens will also adopt the internal point of view. In the last analysis, however, being under a legal obligation is, after all, to be subject to sanctions for disobedience, even for the members of a systematically oppressed minority. As Hart soberly observes, “coercive power, thus established on its basis of authority . . . may be used to subdue and maintain, in a position of permanent inferiority, a subject group . . . For those thus oppressed there may be nothing in the system to command their loyalty but only things to fear. They are its victims, not its beneficiaries.” Although MacCormick bristles at the suggestion (pp.194-195), it is difficult to escape the conclusion that Hart’s theory of law collapses into the very Austinian model he intended to reject.
These are difficult questions and much more would have to be said to make [*45] these brief comments convincing. But my suggestion is that, if Hart never really escaped the perspective of the typical socially liberal, upper middle class English lawyer of his day, as MacCormick says, then perhaps the substantive values he ascribes to the concept of law were not and could not have been as descriptively neutral as he supposed.
Bix, Brian. 1999. “H.L.A. Hart and the Hermeneutic Turn in Legal Theory.” 52 SOUTHERN METHODIST UNIVERITY LAW REVIEW 167-199.
Hart, H.L.A. 1961. THE CONCEPT OF LAW. New York: Oxford University Press.
Lacey, Nicola. 2004. A LIFE OF H.L.A. HART: THE NIGHTMARE AND THE NOBLE DREAM. New York: Oxford University Press.
Leiter, Brian. 2003. “Beyond the Hart/Dworkin Debate: The Methodology Problem in Jurisprudence.” 48 AMERICAN JOURNAL OF JURISPRUDENCE 17-51.
MacCormick, Neil. 2007. INSTITUTIONS OF LAW: AN ESSAY IN LEGAL THEORY. New York: Oxford University Press.
Perry, Stephen R. 1996. “The Varieties of Legal Positivism.” 9 CANADIAN JOURNAL OF LAW AND JURISPRUDENCE 361-381.
© Copyright 2009 by the author, Samuel T. Morison. The views expressed in this review are the personal opinions of the author and do not represent the official position of the U.S. Department of Justice.