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ON HART'S CATEGORY MISTAKE

Published online by Cambridge University Press:  26 February 2014

Michael S. Green
Michael S. Green*
Affiliation:
College of William and Mary, [email protected]
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Abstract

This essay concerns Scott Shapiro's criticism that H.L.A. Hart's theory of law suffers from a “category mistake.” Although other philosophers of law have summarily dismissed Shapiro's criticism, I argue that it identifies an important requirement for an adequate theory of law. Such a theory must explain why legal officials justify their actions by reference to abstract propositional entities, instead of pointing to the existence of social practices. A virtue of Shapiro's planning theory of law is that it can explain this phenomenon. Despite these sympathies, however, I end with the suggestion that Shapiro's criticism of Hart, as it stands, is incomplete. Careful attention to Hart's notion of the internal point of view indicates that he was aware that legal justification ends with abstract objects, not practices, and that he offered his own explanation of this phenomenon.

Type
Research Article
Information
Legal Theory , Volume 19 , Special Issue 4: SHAPIRO'S LEGALITY , December 2013 , pp. 347 - 369
Copyright
Copyright © Cambridge University Press 2014 

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References

1. Pub. L. 73–291, 48 Stat. 881 (1934).

2. See, e.g., Jules L. Coleman, Negative and Positive Positivism, in Markets, Morals, and the Law 3, 5 (1988). I include myself here. Green, Michael Steven, Dworkin v. the Philosophers: A Review Essay on Justice in Robes, 2007 U. Ill. L. Rev. 1477, 1480Google Scholar.

3. Scott J. Shapiro, Legality (2011).

4. Id. at 225. In fact, Shapiro thinks some laws are planlike norms, that is, norms that perform much the same function as plans but that do not arise through legal activity; id. Insofar as the application of a planlike norm is required by the master plan of the legal system, it is a law too. I ignore this wrinkle.

5. Id. at 127.

6. Id. at 217–224.

7. Id. at 211–212.

8. Id. at 170–173.

9. Id. at 353–387.

10. Id. at 267–277.

11. Id. at 103.

12. See, e.g., Sciaraffa, Stefan, The Ineliminability of Hartian Social Rules, 31 Oxford J. Legal Stud. 603, 610 (2011)CrossRefGoogle Scholar; John Gardner & Timothy Macklem, Legality, Notre Dame Phil. Revs. (December 8, 2011) (book review), http://ndpr.nd.edu/news/27609-legality/; Waluchow, Wil J., Lessons from Hart, in 5 Problema 363 (2012)Google Scholar.

13. Shapiro, supra note 3, at 127.

14. Id. at 124.

15. Id. at 121.

16. Id.

17. Id. at 130.

18. Id. at 121.

19. Id. at 129–130.

20. Id. at 134–137.

21. Id. at 41.

22. Id. at 226.

23. Id. at 127, 226–230.

24. Id. at 41.

25. Id.

26. Id. at 127; see also id. at 103, 189, 190.

27. Id. at 103, 189.

28. Id. at 103.

29. Michael Dummett, Frege: Philosophy of Language (2d ed. 1981), at 487–488.

30. The Shannon number (named after the mathematician Claude Shannon) is the estimated lower bound on the number of chess matches of 40 moves or less. It is 10120, or around 1040 distinct matches for every atom in the universe. See Shannon number, Wikipedia, http://en.wikipedia.org/wiki/Shannon_number. In fact, the number of matches is infinite, however, for there is no limit on the number of moves in a match. A player may call a draw if no capture has been made and no pawn has been moved in the last fifty consecutive moves or if the same position occurs three times. But he need not do so.

31. Shapiro, supra note 3, at 127.

32. Id.

33. Id.

34. See Bob Hale, Abstract Objects (1987), at 49.

35. Shapiro, supra note 3, at 41–42.

36. Id. at 42.

37. Id. at 410 n.9; see also id. at 128. I set aside here plans that are incapable of creating normative demands on us even when adopted, because their content is contradictory or irrational.

38. Id. at 127.

39. Id. at 165.

40. Id. at 179.

41. Id. at 129, 147, 169, 181.

42. Id. at 126.

43. Id. at 128.

44. Id. at 84.

45. Id. at 95. Here Shapiro is articulating H.L.A. Hart's understanding of a social rule. But from what I can tell, this is Shapiro's definition as well.

46. Id. at 41–42.

47. Id. at 128.

48. Id. at 410 n.9. By saying that logical and moral norms have intrinsic validity, Shapiro suggests more than that their validity-makers are not facts about human beings. He also suggests that their validity-makers are the norms themselves. I am not sure that is true; I could easily imagine a theory under which something outside the logical or moral norm is what makes it valid. Logical and moral norms might be extrinsically valid. But even if this is so, it is not likely that logical and moral norms are extrinsically valid in the same way that plans and social rules are, that is, due to contingent and discretionary human acts.

49. See, e.g., Schroeder, Mark, Cudworth and Normative Explanations, 1 J. Ethics & Soc. Phil. 1 (2005)Google Scholar.

50. , David Enoch, Reason-Giving and the Law, in 1 Oxford Studies in Philosophy of Law 1 (Green, Leslie & Leiter, Brian eds., 2011)Google Scholar. He also speaks of epistemic reason-giving, which need not concern us here.

51. Id. at 4.

52. Schroeder, supra note 49.

53. Enoch, supra note 50, at 12–13.

54. Owens, David, A Simple Theory of Promising, 115 Phil. Rev. 51 (2006)CrossRefGoogle Scholar.

55. T.M. Scanlon, What We Owe to Each Other (1999), ch. 7.

56. Shapiro, supra note 3, at 123; see also id. at 127, 181, 183. By speaking of the norms of instrumental rationality, Shapiro is using the term to refer not to propositional objects but to propositional objects that are valid—indeed, it would appear, intrinsically valid, in the sense that we have a reason to do what the norms of instrumental rationality say independently of contingent facts.

57. H.L.A. Hart, The Concept of Law (2d ed. 1994), at 89.

58. Id. at 102.

59. Id. at 57.

60. Id. at 255.

61. Shapiro, supra note 3, at 95.

62. Hart, supra note 57, at 110, 292–293. Hart thinks there are other existence conditions for a legal system, such as popular acquiescence in (but not necessarily acceptance of) most of the system's laws, but we can ignore these here.

63. Id. at 110.

64. Shapiro, supra note 3, at 103.

65. See supra note 12.

66. Hart, supra note 57, at 255.

67. See id. at 55–58.

68. Sciaraffa, supra note 12, at 610. See also Gardner & Macklem, supra note 12 (“Nor does Hart identify the practice exactly with the rule. He identifies the content of the practice, or part of it, with the content of the rule.”).

69. Hart, supra note 57, at 90.

70. Id. at 11.

71. Id.

72. Id. at 11–12.

73. See, e.g., Saul A. Kripke, Wittgenstein on Rules and Private Languages (1982).

74. Hart, supra note 57, at 11.

75. Id. at 203. See also id. at 257. Some of these reasons for action, such as the wish to do as others do, are not intrinsically valid norms but are themselves triggers, with the social practice, of intrinsically valid norms, for example, the norm that absent contrary considerations, one ought to satisfy one's desires.

76. Id. at 203.

77. Id. at 102–103.

78. Id. at 108. See also id. at 245.

79. In offering this reading of Shapiro's category-mistake argument, I am guided in part by his favorable citation (Shapiro, supra note 3, at 412 n.2) of Joseph Raz's critical discussion of Hart's practice theory of rules in Joseph Raz, Practice Reason and Norms (2d ed. 1999), at 49–58. Shapiro's criticism of Hart's practice theory is similar to Raz's, except that rather than offering exclusionary reasons as the alternative to Hart's practice theory of rules, Shapiro offers plans.

80. Shapiro, supra note 3, at 103.

81. Id. at 104.

82. In the later-written Postscript to The Concept of Law, Hart apparently accepts the criticism that his practice theory of rules is unable to distinguish between following a rule and following a generally accepted reason for action. Hart, supra note 57, at 254–256.

83. Shapiro, supra note 3, at 107.

84. Id. at 105–110.

85. Hart, supra note 57, at 102–103, 292–293.

86. Shapiro, supra note 3, at 99. On expressivism in The Concept of Law, see Toh, Kevin, Hart's Expressivism and His Benthamite Project, 11 Legal Theory 75 (2005)CrossRefGoogle Scholar.

87. Charles L. Stevenson, Facts and Values (1963), at 80.

88. Id. at 86.

89. See, e.g., Simon Blackburn, Essays in Quasi-Realism (1993).

90. See, e.g., Stevenson, supra note 87, at 93 (emotivism “is an answer to relativism; and it can explain, in part at least, why the errors of relativism are tempting ones”).

91. See Hart, supra note 57, at 102–103, 292–293.