Rules and Social Facts

Ratio Juris, 2021

H.L.A. Hart’s ‘practice theory’ of rules is widely thought to face two problems: (1) it fails to account for the normativity of law, and (2) it is susceptible to a decisive counterexample dating back to Warnock (1971). In this paper, I offer solutions to both problems. In response to (2), I appeal to an old, but underappreciated distinction made by Rawls (1955) and argue that the counterexample is no counterexample at all. In response to (1), I apply a newly-popular distinction regarding the nature of law’s normativity and argue that Hart’s practice theory has no problem accounting for the normativity of law.

Michigan Law Review, 1996

What is a social rule? This paper first notes three important problems for H.L.A. Harts famous answer in the Concept of Law. An alternative account that avoids the problems is then sketched. It is less individualistic than Harts and related accounts. This alternative account can explain a phenomenon observed but downplayed by Hart: the parties to a social rule feel that they are in some sense bound to conform to it.

Indonesia Law Review, 2012

International Journal of Comparative Law and Legal Philosophy, 2020

One of the critical problems in philosophy of law for two decades is the clash between Hart's views and those of his former student and successor as Professor of Jurisprudence at Oxford University, Ronald Dworkin. Hart is a positivist whose account of law, or 'what the law is' is always potentially different from 'what the law ought to be'. Other positivists include Jeremy Bentham, John Austin, Hans Kelsen, Joseph Raz, and a host of others. In his Essays in Jurisprudence and Philosophy, Hart brings out a number of ways the expression 'legal positivism' has been used. He discerns five tenets or contentions 'legal positivism' has assumed in contemporary jurisprudence. With this, he arrives at the conclusion that law is basically a system of rule; a union of primary and secondary rules. The opposite contention of natural lawyers appeared easily dismissed by reference to professional practice. When lawyers give information about the law, or apply the law, they often complain about its contents; they show no readiness to trace its validity back to a moral basis. If asked to justify an assertion about the law, they cite authority, not reason; precedents and statutes, not treatises about justice or the good life. Dworkin does not challenge the conventional positivist assumptions about the decision of legal questions in clear cases by the application of valid rules. In 'Taking Rights Seriously', Dworkin arrives at three important conclusions about the nature of law. First, law is not solely comprised of rules. The logic of adjudication in 'hard cases'-that is, cases about which informed people can reasonably disagree-leads him to the conviction that rules are part of the law. But in hard cases, he argues, judges are guided to their decisions by standards which are not rules. Secondly, no line can be drawn between law and morality because the non-rule standards which judges employ in order to determine 'what the law is' in hard cases include principles embedded in the community's morality. Thirdly, judges do not legislate because reasons never run out and there is never a middle ground. He insists that there must be a right answer to virtually any questions of law. It is clear Dworkin has developed a distinctive system that transcends, and bridges the gap between naturalism and legal positivism; thereby integrating law into a branch of political morality. How then are we to adjudicate between Hart and Dworkin on these issues? It is the position of this work that principles are not propositions describing rights as Dworkin upholds. Rather, principles are relatively general norms which are conceived of as 'rationalizing' rules or sets of rules'. A legal principle, in the view of the person putting it forward as a principle, explains and justifies existing legal rules. It authorizes any new ruling which it would also explain and justify. This study examines Hart-Dworkin debate and draws a response.

Reconsider the influence of H. L. A. Hart’s The Concept of Law (1961) in its fiftieth anniversary, in particular, and the legacy of his work, in general, is an idea that first came to mind in informal discussions between Tom Campbell, Imer B. Flores, and Wilfrid J. Waluchow during the Conference The Legacy of H. L. A. Hart: Legal, Political, and Moral Philos- ophy, organized by the Cambridge Forum for Legal and Po- litical Philosophy, in Cambridge University, Cambridge (United Kingdom), July 27-28, 2007. Actually, the idea that it is necessary not only to reconsider Hart’s The Con- cept of Law but also to re-read and even to re-write it, can be traced back to Nicola Lacey’s A Life of H. L. A. Hart. The Nightmare and the Noble Dream, where she points out that the Appendix to The Concept of Law, which is now known as the “Postscript”, was conceived at some point by Hart himself as an essay with the title “The Concept of Law Re- considered”. Along these lines, Enrique Cáceres, Imer B. Flores, and Juan Vega Gómez agreed to pay tribute to Hart’s The Con- cept of Law in its golden anniversary not only by dedicating to him and his masterpiece the Discussion of Problema, Volume 5, but also by devoting themselves to the organiza- tion of different activities, during 2011, including a tête à tête Seminar Discussion between Kenneth E. Himma and Wilfrid J. Waluchow, two of the most representative heirs of Hart’s “soft positivism”, i.e. “inclusive legal positivism”. In addition, Flores proposed a Special Workshop “H. L. A. Hart’s The Concept of Law Reconsidered” to the organizers of the XXV IVR World Congress of Philosophy of Law and Social Philosophy “Law, Science, Technology”, which was held in Frankfurt am Main (Germany), August 18, 2011, with the participation of Tom Campbell, Pierluigi Chiassoni, Imer B. Flores, Noam Gur, Eerik Lagerspetz, and Roger Shiner. In the meantime, Jorge Fabra, approached Waluchow with similar proposals and was redirected to Flores, with whom he joined forces calling for submissions to this volume as guest editors. It is worth to mention that the Discussion is inaugurated with a biographical and bibliographical memo filled of refer- ences by Matthew H. Kramer and a more personal note full of anecdotes by Wilfrid J. Waluchow, in which the last stu- dent supervised by H. L. A. Hart re-tells some of the stories that depict his supervisor, mentor, friend and inspiration. The Discussion also includes the revised papers that both Himma and Waluchow presented both in the International Conference on Legal Philosophy hosted by the Graduate Program in Law at UNAM in Acatlán, one of the campus in the Metropolitan Area of Mexico City, and in the Discussion Seminar “Problema” organized by the Legal Research Insti- tute at UNAM, in the main campus, and also a reply from Himma to Waluchow. In addition, the volume incorporates the revised versions of the papers presented in the Special Workshop, and other papers submitted by Keith Culver and Michael Giudice, Pavlos Eleftheriadis, Giorgio Pino, Dan Priel, and Fabio P. Schecaira. As editors of this Discussion we are very pleased with the result and hope that the reader will enjoy the articles col- lected in this volume, which by the by contains original contributions. Most of them reconsidering the place of Hart’s The Concept of Law in Legal Theory and Philosophy (Campbell, Lagerspetz, Priel, and Schecaria); some pointing to the virtues of Hart’s methodology (Chiassoni, Culver and Giudice, Eleftheriadis, and Waluchow); and still others de- veloping critical reassessments of his main thesis (Flores, Gur, Himma, Pino and Shiner). Finally, we are extremely grateful to all the contributors for their enthusiasm that made possible this little homage to the “aristocracy of our intellect”.

This paper attempts to clarify, and to some extent defend, H.L.A. Hart’s views about the relation between justice and law. For these purposes, the paper distinguishes three prominent theses about the relation between justice and law: (a) Justice has priority (relative to other moral values) in the evaluation of law. (b) Law has necessary features which are also necessary features of justice (but which are not necessary features of other moral values). (c) Fidelity to law is pro tanto or defeasibly just. It may seem that Hart held all three theses, but he only really held two, namely, (b) and (c). These two theses are often misunderstood. In this paper their meaning will be explained, and their plausibility will be highlighted. Especially interesting is Hart’s thesis that general rules are necessary elements of both justice and law. http://ejournals.duncker-humblot.de/doi/abs/10.3790/rth.47.1.25

1998

The law presents itself as a body of meaning, open to discovery, interpretation, application, criticism, development and change. But what sort of meaning does the law possess? Legal theory provides three sorts of answers. The first portrays the law as a mode of communication through which law-makers convey certain standards or norms to the larger community. The law's meaning is that imparted by its authors. On this view, law is a vehicle, conveying a message from a speaker to an intended audience. The second theory portrays the law as a mode of interpretation, whereby judges, officials, and ordinary citizens make decisions about how the law applies in various practical contexts. The law's meaning is that furnished by its interpreters. According to this theory, law is a receptacle into which decision-makers pour meaning. The third viewpoint argues that these theories, while not altogether wrong, are incomplete because they downplay or ignore the autonomous meaning that the la...