The Concept of Law, 2d ed.

• Author: Green, Leslie

Law is a social construction. It is a historically contingent feature of certain societies, one whose emergence is signaled by the rise of a systematic form of social control and elite domination. In one way it supersedes custom, in another it rests on it, for law is a system of primary social rules that direct and appraise behavior, together with secondary social rules that identify, change, and enforce the primary rules. Law may be beneficial, but only in some contexts and always at a price, at the risk of grave injustice; our appropriate attitude to it is therefore one of caution rather than celebration. Law pretends, also, to an objectivity that it does not have, for whatever judges may say, they in fact wield serious political power to create law. Not only is law therefore political, but so is legal theory -- there can be no pure theory of law; concepts drawn from the law itself are inadequate to understand its nature. Legal theory is thus neither the sole preserve, nor even the natural habitat, of lawyers or law professors: it is just one part of a general social and political theory. We need such a theory, not to help decide cases or defend clients, but to understand ourselves, our culture, and our institutions, and to promote serious moral assessment of those institutions, an assessment that must always take into account the conflicting realities of life.

Those are the most important theses of the late H.L.A. Hart's The Concept of Law, published originally in 1961. Like some other great works of philosophy, however, Hart's book is known as much by rumor as by reading, so it will be unsurprising if, to some, that does not sound like Hart at all. For what circulates as his views -- particularly, I am embarrassed to say, in law schools -- is often quite different. Isn't Hart the dreary positivist who holds that law is a matter of rules that rest on a happy social consensus? Doesn't he think that law is objective, a matter of fact? Doesn't Hart celebrate the rule of law and take its rise as an achievement, a mark of progress from "primitive" to modern society? Doesn't Hart think that liberty and justice are possible only through the certainty that clear law provides? And isn't his whole theoretical perspective straight-jacketed by a disproved, or at least outmoded, distinction between fact and value? Isn't Hart concerned more with semantics than politics?

Between those conflicting readings of -- maybe I should say "attitudes toward" -- Hart's book, there also lies a realm of consensus about the way The Concept of Law changed the direction of Anglo-American legal theory. For one thing, it introduced and clarified a set of questions that came to dominate the literature: Is law always coercive? What are legal rules? Do judges have discretion? Is there a necessary connection between law and morality? Hart also coined the idiom in which we debate the answers to such questions: "the practice theory of rules," "the internal and the external point of view," "primary and secondary rules," "the rule of recognition," "core and penumbra," "content-independent reasons," "social and critical morality." These terms and distinctions are now part of cultural literacy for legal theorists writing in English.

How then can there be such a wide divergence in views about Hart's theory, such confusion about his central claims? It is impossible to put it down to style. Hart is a clear and honest writer: every technical term is purchased in the coin of necessity; the occasional obscurity of language is never a cover for shallowness of thought; humor and irony he uses to lighten, not conceal. In part, it may just be that the Zeitgeist has moved on.

The Concept of Law is a book of its time. The book's language, examples, and method rest in England and, more specifically, Oxford of the fifties.(1) Here I want to try to bridge the gap not only, as I have done in the opening paragraph, by connecting Hart's concerns with some more recent ones, but also by reexamining the 1961 work in light of some themes in its newly published Postscript.(2)

The second edition of The Concept of Law consists of the original text together with a reply to critics that Hart left unfinished at the time of his death in 1992. The editors, Penelope Bulloch and Joseph Raz, have done an invaluable job of preparing this Post- script for publication. Two parts were projected by Hart. The first, published here, is mainly a reply to the criticisms of Ronald Dworkin. The second, which never got beyond fragmentary notes, sought to counter other critics -- Raz among them, no doubt -- who, Hart concedes, found points of "incoherence and contradiction" in his work (p. 239). Hart chose to add a postscript, rather than revise the text of the book, because, as the editors note, he "did not wish to tinker with the text whose influence has been so great."(3)

It is not, of course, as if Hart waited thirty years to reply to his critics. He was a lively polemicist, and the points of refinement in this Postscript are less significant than a number of the essays he published after The Concept of Law.(4) The Postscript brings no major surprises or recantations, and some of Hart's responses to Dworkin are already well-established in the literature: there is no categorical distinction to be drawn between legal rules and principles (pp. 260-63); principles can be comprehended in the rule of recognition (pp. 265-66); judges do exercise discretion, even when they carry forward by analogical construction the underlying spirit of the law, for at some point a choice among analogies cannot be avoided (p. 275); and positivist legal theory has never been a matter of semantics (pp. 245-47). Here, I want to focus on some other points, in particular some of Hart's last thoughts about rules, power, the connection between law and morality, and about the nature of legal theory, for there we find some of the most enduring themes, and problems, of his work.

1. LAW AS SOCIAL CONSTRUCTION

   A. Antinaturalism and Antiessentialism

   Constructivism is now wildly popular in the social studies, where the term has expanded to refer to almost any antirealist, antiessentialist, or antideterminist view of social life.(5) Some of this argument is substantively idle, for it challenges no descriptive or normative thesis about its objects. If everything of interest is a social construction, if there is no unconstructed reality, then nothing follows from claiming that something is a social construction. Race is a social construction; and so are racism, poverty, and bullets. This might sound like a potent theory, but it is not. It is like being told that God does not exist, only to find out that the interlocutor does not believe in the existence of dogs either. Once we lose the terms of implied contrast and everything is on an ontological par, there is no critical bite to the claim.

   At a lesser level of generality, constructivism sometimes simply amounts to the thesis that the object in question has a history. Here, we need to distinguish the claim that our discourse about an object has a history from the claim that the object itself does. (That the word "electron" was invented in 1890 does not suffice to show that electrons were.) The significance of constructivism about our objects of inquiry depends on whether anyone might deny the latter thesis. It is trivial to speak of the social construction of intolerance, as it is undeniably obvious that tolerance and intolerance are matters of human thought and practice. It is more interesting to speak of the social construction of race, because many people still believe that the classification of people into races is a natural one, and constructivism challenges that belief. The most potent forms of constructivism are thus those that promise to surprise us with the news that a certain object of attention owes its very existence to social history.(6)

   Should we thrill to hear that law is a social construction? If that is just a consequence of the general thesis that everything is constructed, or that the word "law" is, then we more profitably may pass on to other business. If it is the claim that law is a phenomenon with a history, then we will have at the very least a challenge to certain arguments that associate law with reason out of time, with what P.F. Strawson once called the core of human thought that has no history.(7) Some forms of ancient and medieval natural law theory might then be under threat. For example, no longer could we say, with Cicero, that

   [t]rue law is right reason in agreement with Nature; it is of universal application, unchanging and everlasting . . . . We cannot be freed from its obligations by senate or people, and we need not look outside ourselves for an expounder or interpreter of it. And there will not be different laws at Rome and at Athens, or different laws now and in the future, but one eternal and unchangeable law will be valid for all nations and all times....(8)

   But even if there exists such a timeless and universal natural moral law, practically everyone agrees that human law, our law, has a history, that it is a product of human thought and practice. Naturalisms denying that are very much out of fashion among theorists -- though some judges have been known to flirt with them when they run out of arguments.

   Hart's theory places law firmly in history. According to him, that there is law at all follows wholly from the development of human society, a development that is intelligible to us, and the content of particular legal systems is a consequence of what people in history have said and done. Moreover, he maintains that even the normativity of law, its action-guiding and action-appraising character, is a social construction to be understood as a function of people's actions and their critical reactions to the behavior of others. For Hart, however, this is all part of the specific nature of law; it is not merely a consequence of...