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Published online by Cambridge University Press: 02 January 2018
This paper is divided into two sections. In the first section I examine the central role played by the concept of ‘legal validity’ in positivist theories of law. I suggest that this concept is capable of varying interpretations, of which some are wholly inapplicable to case law, while others are inappropriate, suggesting a misleading model of case law reasoning.
In the second section, I examine Hart's account of legal validity and the rule of recognition. I suggest that Hart's theory is inadequate because it fails to perceive the special nature of binding practices. I argue that the notion of a binding practice provides the most fruitful basis for an understanding of the common law, and explains the status of case law independently of Hart's account in terms of ‘legal validity’ and the rule of recognition.
1. Some philosophers would deny the propriety of ascribing ‘truth’ to moral judgments. For such thinkers, our question becomes one of whether propositions of law have objective truth-conditions.
2. See Stein, P. Regulae Iuris (Edinburgh 1966), ch 1Google Scholar. Thomas, J. A. C. Textbook of Roman Law (Amsterdam 1976), p. 6 Google Scholar.
3. This results in the search for firm criteria of ‘validity’ in relation to case law: see A. W. B. Simpson Common Law and Legal Theory in Oxford Essays in Jurisprudence (2nd Series) ed. by Simpson, A. W. B. (Oxford 1973), at p. 98 Google Scholar. Similarly, the jurists of the Roman Empire treated customary law on the model of legislation: see Digest 1,3,32,1. See also Neil MacCormick Legal Reasoning and Legal Theory (Oxford 1978), p. 60.
4. See e g Raz, J. Practical Reason and Norms (London 1975), p. 54 Google Scholar.
5. Kelsen Pure Theory of Law trans. by Max Knight (California 1967), pp. 10, 11; also p. 193.
6. Kelsen Pure Theory of Law, pp. 71–75, 201–205. Kelsen General Theory of Law and State trans. by A. Wedberg (Harvard 1945), pp. 45, 116.
7. Hart, H.L.A. The Concept of Law (Oxford 1961), p. 100 Google Scholar.
8. Ibid., p. 105.
9. Ibid., p. 93.
10. It is, however, possible to re-describe the process of distinguishing in a manner more appropriate to the treatment of case law as a body of ‘valid rules’: see Raz, The Authority of Law (Oxford 1979), ch 10Google Scholar. The question must be, of course, whether such re-description is required for any purpose other than the propping up of a fundamentally misleading theory. See also n. 12 below.
11. Questions resembling this may arise when we have to decide whether, say, the rules of a trade union are ‘law’. But, whilst such questions may arise in legal theory, it would be rare for such a question to arise as a legal issue. In any case such questions are hardly relevant to the discussion of case law, with which this paper is concerned.
12. Simpson, n. 3 above, at p. 94. See also Simpson's statement at p. 86: ‘There exists no context in which a judicial statement to the effect that this or that is the law confers the status of law on the words uttered, and it is merely misleading to speak of judicial legislation’.
13. On p. 245 Hart says ‘courts and officials’, but on p. 107 he says ‘courts, officials and private persons.’ I ignore these complexities.
14. Hurt, n. 7 above, pp. 112, 113.
15. Ibid., pp. 107, 108.
16. Ibid., pp. 54, 55. In The Concept of Law Hart clearly regards his theory of social rules as applicable to ‘concurrent’ as well as to ‘conventional’ morality (for this distinction see Dworkin, n. 17 below, p. 53). At one point, for example, he states that ‘The basic element in the shared or accepted morality of a social group’ consists of rules of the kind described by his theory (p. 165). This could scarcely be true if the theory applied only to conventions.
17. R. Dworkin Taking Rights Seriously (London 1977), pp. 49, 50.
18. Ibid., p. 72.
19. Hart, n. 7 above, pp. 54, 55.
20. Ibid., p. 107.
21. Ibid., p. 100.
22. Ibid., p. 99.
23. Ibid., p. 245; see also p. 105.
24. Ibid., pp. 144–150.
25. See, n. 3 above.
26. At. p. 94.
27. Raz ‘Legal Principles and the Limits of Law’ (1972) 81 Yale LJ 823 at p. 853. Raz contrasts ‘principles’ with ‘rules’. He believes that case law includes the principles embodied in judicial custom, together with rules laid down in particular decisions.
28. Ibid., p. 852.
29. Ibid., p. 854.
30. Simmonds ‘Practices and Professor Dworkin’ (1978) Juridical Review 142 and ‘Practice and Validity’ [1979] Cambridge Law Journal 361.
31. Simpson, n. 3 above, p. 94.
32. Cf. Hart, n.7 above, pp. 112, 113.
33. MacCormick, n. 3 above, pp. 63–65, 138, 139.