¹ Cohen, Felix, The Problems of a Functional Jurisprudence, 1 Mod. L. Rev. 5, 7–8 (1937).Google Scholar

² Holmes, Oliver Wendell, The Path of the Law, 110 Harv. L. Rev. 991–1009 (1897).Google Scholar

³ The chances for a law review article to be cited by the United States Supreme Court are infinitesimally slim.Google Scholar

⁴ The United Kingdom is a very special case owing to its relatively late arrival to the world of academic legal scholarship.Google Scholar

⁵ Of course, a host of other factors contribute to the fact that legal positivism appears to be terribly outdated. A society marked by rapid technological development and the internationalization of commerce is difficult to reconcile with a mindset for which legal codes or commands appear to be the paradigmatic instances of law. Ronald Dworkin, Justice in Robes 212 (2006).Google Scholar

⁶ See generally Phelan, Diarmuid Rossa, Revolt or Revolution: The Constitutional Boundaries of the European Community (1997).Google Scholar

⁷ Schlink, Bernhard, Die Entthronung der Staatsrechtswissenschaft durch die Verfassungsgerichtsbarkeit, 28 Der Staat 161 (1989).Google Scholar

⁸ See generally Holmes, , supra note 2.Google Scholar

⁹ Gardner, John, Legal Positivism: 5½ Myths, 46 Am. J. Juris. 199, 202–03, 218 (2001). Gardner would likely protest at this point and reply that I have just succumbed to one of the myths obscuring legal positivism, namely the belief that legal positivism, qua theoretical claim about the condition of legal validity, carries practical implications for legal interpretation or for allocating the tasks of law application on the one hand and law-making on the other. Id. at 222. But see also id. at 218–19. Gardner believes that positivism is “normatively inert,” by which he means that the position does not provide any practical guidance. Id. at 202. All that legal positivism is said to accomplish is to provide an explanation for what it means to make a legal claim, by contrast to, for example, claims of moral rectitude or economic efficiency. Id. at 203. Nevertheless, Gardner concedes that even in such an understanding legal positivism can become a premise of hypothetical imperatives. Id. at 208–11. He formulates such an imperative for someone who is supposedly under some obligation to find out what the laws of a certain jurisdiction are. Id. In such a case, legal positivism would have this person look for the sources. Id. This implies that what is in the sources can be described without regard to moral (or any other) merit. Id. Hence, even a purely explanatory legal positivist, who is merely interested in uncovering the necessary features of social practices, would have to admit that legal positivism implies further claims about the point of legal knowledge when it plays the role of a premise in a hypothetical imperative: “If I want to know what the law is and if legal positivism is right I had better consult sources and describe what I find therein.”Google Scholar

¹⁰ This belief fits even Gardner's remarkably narrow characterisation of legal positivism according to which valid law is valid by virtue of having a source. If it were impossible to ascertain what has sprung from the source and therefore the case that the law would say something new in every case of interpretation we would not be dealing with a source based system of validity. Id. at 222.Google Scholar

¹¹ See generally Esser, Joseph, Vorverständnis und Methodenwahl in der Rechtsfindung (1970).Google Scholar

¹² See generally Teubner, Gunther, Law as an Autopoietic System (1993).Google Scholar

¹³ See Gardner, , supra note 9, at 203, 222 (presenting the project of legal positivism that abstains from carrying normative implications with regard to whether law ought to be applied or made in singular cases and focuses exclusively on explicating on the meaning of legal validity).Google Scholar

¹⁴ See generally Scalia, Antonin, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849 (1989).Google Scholar

¹⁵ For the relevant analysis, see Ronald Dworkin, A Matter of Principle 34–57 (1985).Google Scholar

¹⁶ For a remarkable example, see generally District of Columbia v. Heller, 554 U.S. 570 (2008).Google Scholar

¹⁷ See Müller, Friedrich & Christensen, Ralph, Juristische Methodik (10th ed. 2010).Google Scholar

¹⁸ See Hart, H.L.A., Positivism and the Separation of Law and Morals, 71 Harv. L. Rev. 593, 615–21 (1958). Gardner, supra note 9, at 223, would likely put it differently and state in greater proximity to Austin that the source-based existence of law is one thing while its moral merit or demerit is another.Google Scholar

¹⁹ There is an alternative rendering of the separability thesis saying that necessarily legal validity cannot depend on the moral merit of norms because the authority of law is possible only if it does not overlap with moral authority. I guess that this would be Raz's view, but this should not detain us here. Joseph Raz, ‘Authority, Law and Morality’ In his Ethics in the Public Domain 226–30 (2d ed. 1995). For a critical analysis that perceives the issue unresolved in Raz's writings, see Dworkin, Justice in Robes, supra note 5, at 202.Google Scholar

²⁰ I hope that the latter formulation would be endorsed by Gardner who made insightful critical comments on the usual characterization of legal positivism as perceiving “no necessary connection between law and morality.” Gardner, supra note 9, at 222–25.Google Scholar

²¹ I add in passing that theorists of functional differentiation would say, at this point, that autonomy of the legal system is manifest in the code legal/illegal. See generally Niklas Luhmann, Law as a Social System, 83 Nw. U. L. Rev. 136 (1989); Luhmann, Niklas, Operational Closure and Structural Coupling: On the Differentiation of the Legal System, 13 Cardozo L. Rev. 1419 (1992).Google Scholar

²² I concur, on this point, with Dworkin, Justice in Robes, supra note 5, at 214–15, and Ronald Dworkin, Law's Empire 33–35 (1986).Google Scholar

²³ Hart, H.L.A., Bentham and the Demystification of Law, 36 Mod. L. Rev. 2, 8 (1973).Google Scholar

²⁴ See generally Kelsen, Hans, Hauptproblem der Staatsrechtslehre entwickelt aus der Lehre vom Rechtssatze (1960); Kelsen, Hans, Der soziologische und der juristische Staatsbegriff. Kritische Untersuchung des Verhältnisses von Staat und Recht (2d ed. 1928); Kelsen, Hans, Das Problem der Souveränität und die Theorie des Völkerrechts. Beitrag zu einer reinen Rechtslehre (2d ed. 1928).Google Scholar

²⁵ Hart, , supra note 23, at 3.Google Scholar

²⁶ No legal positivist who is not completely out of her mind would say that God is the author of a constitution whose preamble states that the constitution was adopted “in the name of God from whom all law originates.”Google Scholar

²⁷ For a classical statement of the demystifying mission of realism, see generally Felix Cohen, Transcendental Nonsense and the Functional Approach, 35 Colum. L. Rev. 808 (1935). For a useful comparison, see Brian Leiter, Legal Realism and Legal Positivism Reconsidered, 111 Ethics 278, 301 (2001) (providing a discussion that focuses almost exclusively on the legal positivism of H.L.A. Hart).Google Scholar

²⁸ Rudolph von Jhering, 2.2 Der Geist des römischen Rechts auf den verschiedenen Stufen seiner Entwicklung 385 (5th ed. 1899); see generally Stanley L. Paulson, Hans Kelsen's Earliest Legal Theory: Critical Constructivism, 59 Mod. L. Rev. 797 (1996).Google Scholar

²⁹ It is, of course, possible to argue, from the perspective of the first reading, that legal positivism needs to reject a second reading that is inconsistent with the first.Google Scholar

³⁰ In fact, readers may already wonder whether I have already prepared letters of apology to be sent to members of Balliol and University College at Oxford.Google Scholar

³¹ For a highly useful and authentic introduction into the outlook of Hartianism, see Jules L. Coleman & Brian Leiter, Legal Positivism, in A Companion to Philosophy of Law and Legal Theory 228–48 (Dennis Patterson ed., 2d. ed. 2010).Google Scholar

³² The allusion is, of course, to John Gardner, The Legality of Law, 17 Ratio Juris 168, 171 (2004), in which law itself is characterized as a genre.Google Scholar

³³ See, e.g., Kramer, Matthew H., Introduction, in The Legacy of H.L.A. Hart xiii (Matthew Kramer et al. ed., 2008) Without denying Hart his share of greatness, this is a bold claim to make, given that Hart competes in such a contest, questionable as it is, with the likes of Hans Kelsen, Karl Llewellyn, or Carl Schmitt (I do no dare say Ronald Dworkin).Google Scholar

³⁴ See, e.g., Shapiro, Scott J., The “Hart-Dworkin” Debate: A Short Guide for the Perplexed, in Ronald Dworkin 22– 25 (Arthur Ripstein ed., 2007) (providing an example of the centrality of the debate); Matthew H. Kramer, In Defence of Legal Positivism: Law without Trimming 128–92 (1999) (same).Google Scholar

³⁵ The latter is clearly reflected in Shapiro's attempt to arrive at a legal theory by answering questions that were only unsatisfactorily addressed in Harts work. See Scott J. Shapiro, What Is the Rule of Recognition (and Does it Exist)?, in The Rule of Recognition and the U.S. Constitution 250 (Matthew Adler & Kenneth Einar Himma eds., 2009) (undertaking to amend the house that Herbert built by developing a theory of “plans”). This article is supposed to answer a number of objections that have been made against Hart.Google Scholar

³⁶ See Dworkin, , Justice in Robes, supra note 5, at 188, 198 (finding that the Hartian approach is not a version of positivism at all).Google Scholar

³⁷ Gardner, , supra note 32, at 174–77; see also Dworkin, Justice in Robes, supra note 5, at 211 (providing a related observation regarding Hartianism).Google Scholar

³⁸ Among the most distinguished members are Jules Coleman, Kenneth Einar Himma, Matthew H. Kramer, Scott J. Shapiro, and Wilfrid J. Waluchow. I submit, however, that it is difficult to apply the rule of recognition for Hartianism as an outsider.Google Scholar

³⁹ The important periodical is Legal Theory. The monographs are virtually countless, and the flagship publication is The Oxford Handbook of Jurisprudence and Philosophy of Law (Jules Coleman & Scott J. Shapiro eds., 2002).Google Scholar

⁴⁰ See generally Shapiro, , What Is the Rule of Recognition, supra note 35.Google Scholar

⁴¹ See, e.g., Bix, Brian H., A Dictionary of Legal Theory 123 (2004) (providing the distinction). Shapiro, The “Hart-Dworkin” Debate, supra note 34, at 53 (same); supra note 39 (providing references to the literature).Google Scholar

⁴² For example, Brian Leiter, who is not a legal positivist, believes that, in contrast to Hart's theory, Hans Kelsen's theory is out of step with developments in modern philosophy. Brian Leiter, Michael Gree and Hans Kelsen Redux, (October 6, 2007), http://leiterlegalphilosophy.typepad.com/leiter/2007/10/michael-green-a.html.Google Scholar

⁴³ See Bloom, Harold, The Anxiety of Influence: A Theory of Poetry (2d ed. 1997) (discussing covert patricide as stimulus of literary production).Google Scholar

⁴⁴ See generally Coleman, Jules, The Practice of Principle: In Defence of a Pragmatist Approach to Legal Theory (2001) (representing a monographic exposition of Coleman's legal theory).Google Scholar

⁴⁵ Kelsen, Hans, 3 Veröffentlichung der Vereinigung Deutscher Staatsrechtslehrer 54, 55 (1927).Google Scholar

⁴⁶ Since Hartians do not share this ambition they neglect the critical import of constructions arrived at by more advanced forms of legal positivism. Repeatedly, Kelsen is reprimanded by Shapiro for arriving at a counterintuitive concept of the legal norm that conceives of it as primarily addressed to the law-applying official whose duty it is to impose a sanction. Hans Kelsen, Introduction to the Problems of Legal Theory 26–30 (trans. Bonnie Litschewski Paulson & Stanley L. Paulson, 1992); Shapiro, Scott J., The Bad Man and the Internal Point of View, in The Path of the Law and Its Influence: The Legacy of Oliver Wendell Holmes Jr. 199, 204 (Steven J. Burton ed., 2000). By insisting against Kelsen that Hart's “puzzled man” is to be guided by legal rules Coleman ignores the demystifying potential of Kelsen's construction, which reveals that legal systems can operate with disregard for how laypersons understand norms. H.L.A. Hart, The Concept of Law 40 (2d ed. 1994). I wonder whether Kelsen's account is not sociologically more accurate than a legal theory that takes intuitions about guidance by laypersons uncritically for granted. Not only is it the case that the puzzled man usually is the muzzled man; the insistence on the “puzzled man” obtaining guidance from rules is inconsistent with Hart's belief that law exists only where there is unity of primary and secondary rule. The “puzzled man” resides the pre-legal sphere governed by primary rules.Google Scholar

⁴⁷ Coleman, , The Practice of Principle, supra note 44, at 67, 109–10. The paradox has been duly noticed by Dworkin, Justice in Robes, supra note 5, at 189.Google Scholar

⁴⁸ Coleman, , The Practice of Principle, supra note 44, at 112, 126. Of course, Coleman needs to struggle at this point with re-establishing the authority of law vis-à-vis moral authority. He attempts to do so by reintroducing the power of someone to establish for ordinary folk what, according to moral standards, is law. He thereby likens his position again to “exclusive” legal positivism. (130, 141). Legal positivists, who, as Gardner, note 9 at 200, reminds us, believe that all legal norms are posited and hence come into this world as a result of acts, find it quite difficult to make sense of the idea that some laws might be void per se, regardless of whether the voidness is alleged to follow from immorality or illegality. See Hans Kelsen, Reine Rechtslehre (2d ed., Vienna: Deuticke, 1960) at 280.Google Scholar

⁴⁹ Coleman, , The Practice of Principle, supra note 44, at 68–69, 75.Google Scholar

⁵⁰ By “legality” Coleman means what is to be counted as law is therefore capable of partaking of legal validity. See also Shapiro, What Is the Rule of Recognition, supra note 35, at 240.Google Scholar

⁵¹ Coleman, , The Practice of Principle, supra note 44, at 152, 161. It may bear emphasis that the criteria for what might partake of legal validity are different from the criteria that account for the existence of a legal system, such as the unity of primary and secondary rules or the existence of legal officials. Gardner, The Legality of Law, supra note 32, at 170.Google Scholar

⁵² Hart, , The Concept of Law, supra note 46, at 256.Google Scholar

⁵³ Coleman, , The Practice of Principle, supra note 44, at 161.Google Scholar

⁵⁴ Hart, , The Concept of Law, supra note 46, at 256.Google Scholar

⁵⁵ Coleman, The Practice of Principle, supra note 44, at 77. Coleman believes the rule of recognition to be a duty-imposing rule, however, only on legal officials, whereby the duty itself is only incidentally related to law, for it arises from participation in a common enterprise and is a special case of an associative obligation (77, 85, 95, 97, 159-160). The duty imposed by the rule of recognition can therefore never be a legal obligation and is not addressed to “ordinary folk” (139).Google Scholar

⁵⁶ Coleman, The Practice of Principle, supra note 44, at 71, 93, 118; Hart, The Concept of Law, supra note 46, at 257.Google Scholar

⁵⁷ See Coleman, The Practice of Principle, supra note 44, at 76, 86 (noting that the sloppy characterisation of a social rule as a combination of a pattern of convergent behaviour plus internal point of view is flawed). The flaw goes back to Hart. Hart, The Concept of Law, supra note 46, at 255. One cannot, as a matter of judgement, ascertain convergent behaviour without adopting a point of view in the most elementary sense of discriminating between and among instances of a pattern. In this respect, a point of view is adopted vis-à-vis all others who are also engaged in making out regularities without being actively engaged in bringing them about. The difference between such a point of view, which is manifest in the exercise of what Kant would have called “reflexive judgement,” and what Hart calls the internal point of view, which is relevant for social rules, lies in the fact that the elements of the pattern are themselves treated as instances of rule-following. They are distinct from mere occurrences for which one tries to reconstruct a pattern. Hence, a point of view is applied not towards others who are also engaged in trying to make out a pattern themselves but to whatever appears to be like an instance of the pattern. Potential instances of the pattern are interpreted to be instances of rule-following. The critical reflexive attitude is directed at the claim that is attributed to them, namely, the claim to be cases of following a rule. Social facts are thereby read as involving implicit claims whose validity is put to the test. Only thus understood, the following statement by Coleman makes sense: “A social rule exists when convergent behaviour is conjoined with a critical reflexive attitude towards that behaviour. The critical reflexive attitude is the internal point of view.” Coleman, The Practice of Principle, supra note 44, at 82.Google Scholar

⁵⁸ Coleman, The Practice of Principle, supra note 44, at 88–89; Hart, The Concept of Law, supra note 46, at 86.Google Scholar

⁵⁹ The rule exists only if there is widespread acceptance of the internal point of view. Coleman, The Practice of Principle, supra note 44, at 83, 153. I spare readers a discussion of the delicate question whether the reconstruction of social rules from an external perspective merely suspends the application of the critical reflexive attitude towards what it treats as instances of the rule but nonetheless extends it to those engaged in the same hermeneutic exercise. Alas, the application of a critical reflexive attitude on the part of those engaged in an external and theoretical description of a social practice is absent in the otherwise highly useful discussion by Scott J. Shapiro, What Is the Internal Point of View?, 75 Fordham L. Rev. 1157, 1160–61 (2006).Google Scholar

⁶⁰ The belief that law is a system was most certainly held by Hart. Gardner, The Legality of Law, supra note 32, at 170.Google Scholar

⁶¹ Shapiro, , What Is the Rule of Recognition, supra note 35, at 246.Google Scholar

⁶² Coleman, The Practice of Principle, supra note 44, at 139. The rule of recognition is only a necessary, but not a sufficient condition for law, which also requires obedience by “ordinary folk” for its existence. Id. at 76.Google Scholar

⁶³ It is not infrequently said that the rule of recognition must be “accepted” by officials. Shapiro, What Is the Internal Point of View?, supra note 59, at 1159; Shapiro, What Is the Rule of Recognition, supra note 35, at 245. But this broad formulation obscures an important difference. Officials must accept that their behavior has to be intelligible and defensible as “rule-following.” But it is not necessary that they accept the rule substantively. See Hart, The Concept of Law, supra note 46, at 255 (noting that rules must be accepted (merely) as guides of conduct and criticism). See Shapiro, The Bad Man and the Internal Point of View, supra note 46, at 202 (getting it right by saying that officials must be “committed to following” the rule). But they need not accept it as such and not, of course, on its merits. Participants in the practice are therefore able to answer questions about how one plays by the rules. They are not necessarily able to answer questions about whether playing by the rules is useful and good. With this distinction, many conceptual monstrosities can be avoided, for example, the “detached attitude” or the relative moral authority of the legal point of view Shapiro, What Is the Rule of Recognition, supra note 35, at 259. Nonetheless, Patterson insists correctly against Hartians that what has to be accepted as rules by officials in order to be in the position to arrive at judgments about rule-following are “forms of argumentative appraisals,” such as methods of interpretation. Dennis Patterson, Explicating The Internal Point of View, 52 SMU L. Rev. 67, 73 (1999). Interestingly, Patterson, in turn, is not heeded of the fact that, just like explorations of the rule's merit, appeals to sound methods of interpretation mark the point at which mere conventional practice is exited. I surmise that these matters could be further elucidated from a background that is conspicuous by its absence in Hartianism, namely action theory. It is possible to conceive of participants in the practice as improvising actors in the sense envisaged by Velleman. See generally J. David Velleman, How We Get Along 12–14 (2009).Google Scholar

⁶⁴ Coleman, The Practice of Principle, supra note 44, at 78, 82, 95, 134.Google Scholar

⁶⁵ Dworkin, , Justice in Robes, supra note 5, at 198.Google Scholar

⁶⁶ Coleman, The Practice of Principle, supra note 44, at 80.Google Scholar

⁶⁷ Id. Google Scholar

⁶⁸ Case C-144/04, Werner Mangold v. Rüdiger Helm, 2005 E.C.R. I-9981.Google Scholar

⁶⁹ See Dworkin, , Justice in Robes, supra note 5, at 192–93 (discussing the convention).Google Scholar

⁷⁰ Coleman, The Practice of Principle, supra note 44, at 116.Google Scholar

⁷¹ Id. Google Scholar

⁷² See Dworkin, , Justice in Robes, supra note 5, at 190 (“Convention is built on consensus, not disagreement… . When a group of people disagrees about what behaviour is required or appropriate, it seems odd to say that they have a convention that decides the issue.”).Google Scholar

⁷³ Coleman, The Practice of Principle, supra note 44, at 99–100.Google Scholar

⁷⁴ Id. at 96–97.Google Scholar

⁷⁵ See Fish, Stanley L., Doing What Comes Naturally 471–502 (1989) (formulating a similar objection against Hart).Google Scholar

⁷⁶ See Dworkin, Justice in Robes, supra note 5, at 195–96 (observing correctly that shared co-operative activities are not necessarily conventional).Google Scholar

⁷⁷ See generally Coleman, The Practice of Principle, supra note 44.Google Scholar

⁷⁸ Id. at 116; See Dworkin, Justice in Robes, supra note 5, at 190 (providing perceptive critical observations).Google Scholar

⁷⁹ Here is how Coleman states the matter: “It is the shared attitude toward the pattern of behaviour that constitutes the fact that the behaviour is governed by a rule.” Coleman, The Practice of Principle, supra note 44, at 79. The formulation suggests that there is a pattern which is somehow joined by the internal point of view. But this cannot be the case. Elements of a pattern can only be relevant for the rule when it is integral to their meaning to be followings of the rule. Supra note 57.Google Scholar

⁸⁰ Coleman, The Practice of Principle, supra note 44, at 80.Google Scholar

⁸¹ Id. at 91.Google Scholar

⁸² Id. at 161.Google Scholar

⁸³ Luhmann, Niklas, 1 Rechtssoziologie 99, 105 (1972).Google Scholar

⁸⁴ Such social perspectives are still consistent with the standpoint that Shapiro characterizes, misleadingly, as “rule acceptance” or “internalization.” Shapiro, What Is the Internal Point of View?, supra note 59, at 1159; Shapiro, The Bad Man and the Internal Point of View, supra note 46, at 200, 208. It is misleading, for what matters for the internal point of view is one's performance as a competent rule-follower. Even—or maybe even in particular—hypocrites can be perfect rule-followers. I mention in passing that Hart's distinction between the external and the internal aspect of rules is remarkably difficult to square with his conventionalism. Hart, The Concept of Law, supra note 46, at 55–56, 86. The external aspect of rules captures general regularity of conduct, which is accessible even to an outside observer. The internal aspect is something that can be had by a rule “in addition” to the external aspect. Id. at 55. It is manifest in people “having views” about what it takes to play by the rules. Id. at 56. Because in the case of a convention these views have to have observance of a pattern of conduct as their point (“Now, you do as all others do!”) the external aspect is of overwhelming relevance for engaging the critical attitude from the internal point of view. Id. at 55. What would it take to “have views” as regards conventions? One would have to come up with educated guesses about how peers will be judging one's application of the rule, for if that were not decisive it would not be a convention (“This is what we do”). Conceivably, a lawyer with training in American constitutional law would approach an equal protection problem by first asking which level of scrutiny has to be applied. However, if she were to do so in the context of Austrian constitutional law she would be reproached by her Austrian peers claiming correctly that this is not the way things are done around here (“This is not what we do”). The internal point of view states what can be observed from the external point of view and asserts it as a matter of right. The difference between the internal and the external aspect is not whether one anticipates reactions from a pattern or, even more intelligently, one anticipates how peers believe all other peers to believe the pattern to be projected into the future, but whether one does it as a member of the group or as an outsider. Only as an insider you get away with saying “This is what we do” and do not have to worry much about doing as all others do. Then one is in a position to use as a reason for decision what one anticipates to be the reasoning of all others. Id. at 102; Carl Schmitt, Gesetz und Urteil (1912) (reconstructing this exact conventionalism).Google Scholar

⁸⁵ Mead, George Herbert, The Philosophy of the Present 190 (A.E. Murphy ed., 1932). Had Shapiro read Mead he would have likely explicated his “plan” theory of legal practice in the terms of a “game.” Georg Herbert Mead, Mind, Self, and Society from the Standpoint of the Social Behaviourist 153–54 (1934).Google Scholar

⁸⁶ Schmitt, , supra note 84, at 71.Google Scholar

⁸⁷ Hart believed the rule of recognition to be a coordinating convention. For a critical analysis, see Andrei Marmor, Legal Conventionalism, 4 Legal Theory 509 (1998).Google Scholar

⁸⁸ Dworkin, , Justice in Robes, supra note 5, at 197.Google Scholar

⁸⁹ Hart, The Concept of Law, supra note 46, at 203, 257.Google Scholar

⁹⁰ Wittgenstein, Ludwig, Über Gewissheit 125 (1984). Coleman underscores that the internal point of view towards a rule is different from the application of the reasons underpinning the rule in the first place. Coleman, The Practice of Principle, supra note 44, at 89.Google Scholar

⁹¹ It is quite amazing that Hart and the Hartians always imagined the “group” to be egalitarian. How can one assume that in the legal system—vis-à-vis courts—criticism is taken seriously or even to be legitimate? See Dworkin, Justice in Robes, supra note 5, at 196 (hinting, quite correctly, at the fact that it is empirically doubtful whether the relation among members of the United States Supreme Court can be described as a shared cooperative activity). Contra Shapiro, What Is the Internal Point of View?, supra note 59, at 1164.Google Scholar

⁹² Coleman, The Practice of Principle, supra note 44, at 91–92.Google Scholar

⁹³ This is not to say that members of the pack take their guidance from boys directly: They apply the rule as they believe it to emerge from the boy's internal point of view. Shapiro, The Bad Man and the Internal Point of View, supra note 46, at 206.Google Scholar

⁹⁴ This desire may be grounded in the expected reward to become bigger than one is when one is going with the crowd. Friedrich Nietzsche, The Dawn of Day 32–34 (trans. J.M. Kennedy, 1964).Google Scholar

⁹⁵ It is quite remarkable that in his critique of Austin's concept of legal obligation Hart shifts the focus from avoiding coercion towards avoiding rebuke for not going along with the crowd. See Hart, The Concept of Law, supra note 46, at 84 (“Rules are conceived and spoken of as imposing obligations when the general demand for conformity is insistent and the social pressure brought to bear upon those who deviate or threaten to deviate is great.”). It is consistent with this understanding of obligation that the internal aspect of rules rests on the complementary maxims of “This is what we do” and “I do as others do,” respectively. There is no reason, of course, why one would not be “obliged” by social pressures of conformity even if they were not backed with coercion. The critique that Hart has of Austin can be easily carried over to Hart himself. Why should the prospect of being shunned and rebuked by, say, members of the Tea Party Movement give rise to an obligation on my part to join the ranks of the radical right even if the large majority of Americans were to support the movement? What matters for the application of the rule of recognition is not the acceptance of the rule but rather the social skills necessary to pass as member of the pack. Any real acceptance of social rules as obligatory would have to be based, by contrast, on the desire to be part of the group, for it is through identification with the group that one can come to consider deviation from its norm as a threat to one's identity. Christine A. Korsgaard, The Sources of Normativity 102 (1996).Google Scholar

⁹⁶ See Weber, Max, Soziologische Grundbegriffe 42 (5th ed. 1981) (explaining this activity as an action that is in some manner heeded of the action of others).Google Scholar

⁹⁷ See generally Kripke, Saul A., Wittgenstein on Rules and Private Language: An Elementary Exposition (1982) (discussing rule-following and introducing the example of someone who adds numbers and instead of adding one after the other at a certain points begins adding more than one number). From the perspective of an observer who tries to infer the rule from behavior, this rule turns out to be not the rule of addition but of something slightly different, for example, “quaddition,” which does not use “plus” but “quus” as its operator. Id. Google Scholar

⁹⁸ Gardner, , The Legality of Law, supra note 32, at 175.Google Scholar

⁹⁹ For an extremely useful account of the mentality of the Common Law tradition, see Gerald J. Postema, Bentham and the Common Law Tradition (1986). His account of the common law mentality has recently been complemented by the following articles: Gerald Postema, Classical Common Law Jurisprudence (Part 1), 2 Oxford Univ. L.J. 155 (2003); Postema, Gerald, Classical Common Law Jurisprudence (Part 2), 3 Oxford Univ. L.J. 1 (2003).Google Scholar

¹⁰⁰ Coleman, The Practice of Principle, supra note 44, at 88.Google Scholar

¹⁰¹ Id. at 96.Google Scholar

¹⁰² Id. Google Scholar

¹⁰³ I add, in passing, that had Coleman taken the non-idealizing description into account he would have had more difficulty claiming that this practice is pregnant with obligation.Google Scholar

¹⁰⁴ See, , most candidly, Gardner, Legal Positivism: 5½ Myths, supra note 9, at 203.Google Scholar

¹⁰⁵ Coleman, The Practice of Principle, supra note 44, at 99. Interestingly, Coleman believes that differences regarding the content of a rule are different from differences concerning their application. While this is true for a difference of agreement over what a rule says on its face, which can be settled by looking it up in the relevant rule-book, it is completely implausible to assume that the question of whether two Member States constitutions are sufficient to constitute a “common constitutional tradition” does not affect the content of the rule. I find it difficult to imagine how Coleman would believe that.Google Scholar

¹⁰⁶ Id. at 80-81.Google Scholar

¹⁰⁷ Id. at 155.Google Scholar

¹⁰⁸ A more sociologically perceptive description of this situation is given by Sunstein in his theory of “incompletely theorised agreements.” Cass R. Sunstein, Legal Reasoning and Political Conflict 46–54 (1996).Google Scholar

¹⁰⁹ Coleman, The Practice of Principle, supra note 44, at 81.Google Scholar

¹¹⁰ See Somek, Alexander, Rechtssystem und Republik: Über die politische Funktion des systematischen Rechtsdenkens 343 (1992).Google Scholar

¹¹¹ I am aware that Wittgensteinians would at this point say that Wittgenstein insisted that there is a following of the rule that is not an interpretation. See, for example, Joachim Schulte, Wittgenstein: Eine Einführung 160–61 (1989). It never occurs to them that Ludwig might have been wrong about this.Google Scholar

¹¹² See generally Winch, Peter, The Idea of a Social Science and Its Relation to Philosophy (1958).Google Scholar

¹¹³ For a profound analysis, see Gerhard Gamm, Flucht aus der Kategorie: Die Positivierung des Unbestimmten als Ausgang der Moderne 140–42 (1994).Google Scholar

¹¹⁴ See Dworkin, , Law's Empire, supra note 22, at 48; Dworkin, Justice in Robes, supra note 5, at 11–12.Google Scholar

¹¹⁵ Pinkard, Terry, Hegel's Phenomenology: The Sociality of Reason 64 (1994).Google Scholar

¹¹⁶ Pippin, Robert, Hegel's Practical Philosophy: Rational Agency as Ethical Life 65 (2008).Google Scholar

¹¹⁷ In anticipation of purportedly Wittgensteinian objections I hasten to add that even within a reflective practice all justifications come to an end. That justifications come to an end (in the sense envisaged by Wittgenstein) does not mean that they are arbitrarily cut off.Google Scholar

¹¹⁸ I guess this is what Dworkin has in mind when speaking of a “pre-interpretative” stage of practice. Dworkin, Law's Empire, supra note 22, at 65–66.Google Scholar

¹¹⁹ Dworkin, , Justice in Robes, supra note 5, at 198.Google Scholar

¹²⁰ Coleman, The Practice of Principle, supra note 44, at 68, 100, 116, 153–54.Google Scholar

¹²¹ Id. at 157.Google Scholar

¹²² Id. Google Scholar

¹²³ I, for one, think that Dworkin is that right in suggesting that Coleman “has wholly decamped from the philosophical heritage he undertakes to defend.” Dworkin, Justice in Robes, supra note 5, at 198.Google Scholar

¹²⁴ Kelsen, Hans, General Theory of Norms 256 (trans. M. Hartney, 1991).Google Scholar

¹²⁵ That there is something like an “ideology of law,” which is part of socially relevant legal knowledge, was one of the more astute insights of the critical legal studies movement.Google Scholar

¹²⁶ Case 26/62, van Gend en Loos v. Nederlandse Administratie der Belastingen, 1962 E.C.R. 1.Google Scholar

¹²⁷ Kelsen, , Introduction to the Problems of Legal Theory, supra note 46, at 9–10.Google Scholar

¹²⁸ Puchta, Georg Friedrich, 1 Das Gewohnheitsrecht 147 (1828).Google Scholar

¹²⁹ See generally Carl Friedrich von Savigny, On the Vocation of Our Age for Legislation and Jurisprudence (trans. A. Hayward, 1999).Google Scholar

¹³⁰ For a good explanation, see Jeremy Waldron, Law and Disagreement 176–86 (1999).Google Scholar

¹³¹ Because I am making grand claims here, I refer to my own example of how I believe that promise can be delivered. Somek, Alexander, The Argument from Transnational Effects I: Representing Outsiders through Freedom of Movement, 16 Euro. L.J. 315 (2010).Google Scholar

¹³² Kant, Immanuel, The Metaphysics of Morals 96 (trans. M. Gregor, 1991).Google Scholar