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All We Like Sheep

Published online by Cambridge University Press:  09 June 2015

Jeremy Waldron
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In an extreme case, … only officials might accept and use the system’s criteria of legal validity. The society in which this was so might be deplorably sheeplike; and the sheep might end in the slaughter-house. But there is little reason for thinking that it could not exist or for denying it the title of a legal system.

The essence of legal positivism, wrote H.L.A. Hart, is a very simple contention: “[I]t is in no sense a necessary truth that laws reproduce or satisfy certain demands of morality” (185-86).

It is tempting to treat this claim—which some have called “the separability thesis”—as a definitional truth about law, i.e., as a constraint on any adequate definition of the term “law.” On this understanding, the positivist maintains that one should not define “law" in a way that excludes some norms from the extension of this term simply because they do not reproduce or satisfy a particular moral demand. Similarly, on this understanding, one should not exclude a system of norms, S, from the extension of the term “legal system” on account of S’s failure to satisfy the demands of justice. Indeed, positivism entails not only that one should not exclude S on this ground, but also that the injustice of S is not even a reason for regarding S as a problematic or marginal or less-than-central case of “law.” The positivist holds that it is a mistake to build moral conditions into the definition of “law” in any way whatsoever.

Type
Research Article
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Canadian Journal of Law & Jurisprudence , Volume 12 , Issue 1: Legal Theory , January 1999 , pp. 169 - 188
Copyright
Copyright © Cambridge University Press 1999

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References

1. H.L.A. Hart, The Concept of Law. 2nd ed. (Oxford: Clarendon Press, 1994) at 117.

2. Numbers in parentheses in the text of this paper are references to Hart, The Concept of Law, supra note 1.

3. Jules Coleman, “Negative and Positive Positivism” in his collection Markets, Morals and the Law (Cambridge: Cambridge University Press, 1988) at 5. See also Joseph Raz, The Authority of Law: Essays on Law and Morality (Oxford: Clarendon Press, 1979) at 37–38.

4. Cf. John Finnis, Natural Law and Natural Rights (Oxford: Clarendon Press, 1980) at 9–15, 25–29, and 363–66. For Hart’s rejection of this approach, see H.L.A. Hart, Essays in Jurisprudence and Philosophy (Oxford: Clarendon Press, 1983) at 11–12.

5. For a critique of the linguistic interpretation, see Joseph Raz, “The Problem about the Nature of Law,” in his collection Ethics in the Public Domain: Essays in the Morality of Law and Politics (Oxford: Clarendon Press, 1994) at 180–82.

6. Cf. Lon Fuller, “Positivism and Fidelity to Law – A Reply to Professor Hart” (1958) 71 Harv. L. Rev. 630 at 631: “It is not clear … whether in Professor Hart’s own thinking the distinction between law and morality simply “is,” or is something that “ought to be” and that we should join him in helping create and maintain.”

7. See Gerald A. Postema, Bentham and the Common Law Tradition (Oxford: Clarendon Press, 1986) at 328–36.

8. It is an interesting consequence of this that normative positivism tends to be associated with forms of positivism that are “non-incorporationist” (see Coleman, “Negative and Positive Positivism,” supra note 3)—i.e., that preclude the incorporation of moral standards into law by positive means. Positive law could not do the good work in society that Bentham and Hobbes thought it could do, if the rule of recognition recognized as law moral standards about whose application people normally disagreed. For a contrary argument, however, see W.J. Waluchow, Inclusive Legal Positivism (Oxford: Clarendon Press, 1994) esp. at 232–72.

9. Leslie Green, “The Concept of Law Revisited” (1996) 94 Mich. L. Rev. 1687 is an honorable exception. I have learned much from this article.

10. Fuller, supra note 6 at 632.

11. Neil MacCormick, H.L.A. Hart (London: Edward Arnold, 1981) at 108.

12. See Green, supra note 9 at 1699: “(TJt seems unlikely that there have existed societies that had rules of obligation, yet had no ways to create, extinguish, or vary such obligations. Hart focuses on a simple regime that regulates ‘free use of violence, theft, and deception’ (91), but surely the human condition also requires that any society find some way to regulate property and kinship. That suggests that well before the emergence of the systematizing rules of a legal order secondary rules in some of Hart’s senses already would have existed.”

13. The phrase is Leslie Green’s—see ibid. at 1699.

14. Ibid. at 1698. And, as Green notes, this reading can easily annoy us. Hart seems to be suggesting that “if a society lacks a legal system, then it lacks one of the achievements of modernity,” and it is tempting to turn this around and infer that Hart must be using a unacceptably “Western” notion of law to thus stigmatize other forms of society as “primitive or uncivilized.” Ibid. at 1699.

15. Ibid. at 1699–1700.

16. See Joseph Raz, Practical Reason and Norms (London: Hutchinson, 1975) at 148.

17. Pace E.P. Thompson, Whigs and Hunters (Harmondsworth: Penguin Books, 1977) at 263: “Most men have a strong sense of justice, at least with regard to their own interests. If law is evidently partial and unjust, then it will mask nothing, legitimize nothing, contribute nothing to any class’s hegemony. The essential precondition for the effectiveness of law, in its function as ideology, is that it shall display an independence from gross manipulation and shall seem to be just. It cannot seem to be so without upholding its own logic and criteria of equality; indeed, on occasion, by actually being just.”

18. Fear may motivate decision and in that sense generate conduct that is in some sense voluntary and active; one chooses to hand over one’s money because one prefers to keep one’s life. The contrast here is with sheer force in the sense of physically moving or restraining another. But there may be challenging intermediate cases: see, e.g., the account of terror in Hannah Arendt, The Origins of Totalitarianism. New edition (New York: Harcourt, Brace, Jovanovich, 1973) at 464–68.

19. See Jeremy Bentham, Of Laws in General. H.L.A. Hart & J.H. Burns, eds., (London: Athlone Press, 1970) at ch. 4, and John Austin, The Province of Jurisprudence Determined. W. Rumble, ed., (Cambridge: Cambridge University Press, 1995) at 242ff.

20. Bentham, supra note 19 at 18.

21. Austin, supra note 19 at 246–47.

22. Again, pace Thompson, supra note 17.

23. The explanation may be in terms of differential application of the rule, e.g., as between men and women (special rules for menstruation, birthing, etc.).

24. Peter Winch, The Idea of a Social Science and its Relation to Philosophy (London: Routledge & Kegan Paul, 1958) at 57ff. For an acknowledgment of the connection, see Hart’s note in The Concept of Law, supra note 1 at 289.

25. Michael Oakeshott, Rationalism in Politics, and Other Essays (London: Methuen, 1962), and On Human Conduct (Oxford: Clarendon Press, 1975). See also Paul Franco, The Political Philosophy of Michael Oakeshott (New Haven: Yale University Press, 1990) esp. at 170ff.

26. Ludwig Wittgenstein, Philosophical Investigations trans. G.E.M. Anscombe (Oxford: Basil Blackwell, 1997) esp. at pp. 81ff. and 88 (paras. 201ff. and 241).

27. Winch, supra note 24 at 62–65.

28. For a somewhat contrary view, that even in a pre-legal society, we can make sense of the notion of a rule that applies to a population even though its members do not practice it, see Raz, Practical Reason and Norms, supra note 16 at 53–54.

29. In these paragraphs, I am indebted again to Green, supra note 9 at 1700–02.

30. Ronald Dworkin, Law’s Empire (Cambridge: Harvard University Press, 1986) at 34 (my emphasis); cited by Green, supra note 9 at 1700.

31. See, for example, the relatively simple account of recognition in Thomas Hobbes, Leviathan. Richard Tuck, ed., (Cambridge: Cambridge University Press, 1988) at ch. 26 at 189: “Nor is it enough the Law be written and published; but also that there be manifest signs, that it proceedeth from the will of the Sovereign. For private men, when they have or think they have force enough to secure their unjust designes, and convoy them safely to their ambitious ends, may publish for Lawes what they please without, or against the Legislative Authority. There is therefore requisite, not only a Declaration of the law, but also sufficient signes of the Author, and Authority.”

32. Fuller, supra note 6 at 634.

33. H.L. A. Hart, “Positivism and the Separation of Law and Morals” in Hart, Essays in Jurisprudence and Philosophy, supra note 4 at 75 (my emphasis).

34. Or as Neil MacCormick puts it, the term “legal system” is not itself the name of a noble ideal. See MacCormick, supra note 11 at 158.

35. Lon Fuller, The Morality of Law. rev’d ed. (New Haven: Yale University Press, 1969) at 33–94.

36. See Fuller, supra note 6 at 646–57. See also the concession in Hart’s review of Fuller’s The Morality of Law. in Hart, Essays in Jurisprudence and Philosophy, supra note 4 at 352–53.

37. Fuller, supra note 35 at 46.

38. Hart, supra note 33 at 81.

39. For a misinterpretation of Hart along these lines, see David Lyons, Ethics and the Rule of Law (Cambridge: Cambridge University Press, 1984) at 82–87. (Lyons makes similar points to those made in this paragraph, but he mistakenly attributes the contrary position to Hart.)

40. Hart, supra note 33 at 81.

41. H.L.A. Hart, “Problems of the Philosophy of Law” in Hart, Essays in Jurisprudence and Philosophy, supra note 4 at 118.

42. H.L.A. Hart, ‘Are There any Natural Rights?’ in Jeremy Waldron, ed., Theories of Rights (Oxford: Oxford University Press, 1984) at 85. (It is worth noting that Hart thought this the only argument worth salvaging from this article. See Hart, supra note 4 at 17.)

43. See also: John Rawls, ‘Legal Obligation and the Duty of fair Play’ in Sidney Hook, ed., Law and Philosophy (New York: New York University Press, 1964); Robert Nozick, Anarchy, State and Utopia (New York: Basic Books, 1974) at 90–95; A. John Simmons, Moral Principles and Political Obligation (Princeton, NJ: Princeton University Press, 1979) at 101–42; and Dworkin, supra note 30 at 193ff.

44. Hart, supra note 42 at 86.

45. Even if a person is benefitted by a legal system, that itself does not give him a moral reason to support it or comply with its demands. For the benefits to him may be dependent on their unjust extraction from others. See Hart, supra note 41 at 116.