Rethinking Legal Postivism

Jun 7, 2010 Connie Rosati

Survey courses in analytical legal philosophy commonly include brief excerpts from the jurisprudential writings of Jeremy Bentham and John Austin. After a cursory treatment of their work, with emphasis on the “command theory” of law, the focus shifts to H.L.A. Hart’s famous critique of Austin and then to Hart’s own influential version of legal positivism. The prevailing view has long been that Hart’s critique of Austin was decisive and that Hart’s own theory of law expresses legal positivism’s “core commitments.” Both bits of the conventional wisdom come under scrutiny in a pair of provocative recent articles by Frederick Schauer.

In “Was Austin Right After All? On the Role of Sanctions in a Theory of Law,” Schauer explains why, contrary to the prevailing view, Austin’s account of law may have been more nearly accurate than Hart’s. He acknowledges that on many points, Hart identified important deficiencies of Austin’s account. Austin focused, for example, on duty-imposing rules, neglecting the critical and sometimes constitutive role of the power-conferring rules so pervasive in advanced legal systems. And his notion of the sovereign oversimplified legal systems in multiple ways by essentially treating all of law on the model of an absolute monarch’s imposition of rules on obedient subjects.

Perhaps most important among Hart’s criticisms was that Austin failed to account for the normativity of law because his emphasis on sanctions and coercion led him to overlook the committed standpoint of officials who take up the internal point of view, who see the law as giving reasons and creating obligations. It is precisely here that Schauer invites us to reconsider the relative merits of Hart and Austin’s theories, suggesting that such a reconsideration may lead to fruitful inquiry into what a theory of law should be expected to accomplish.

Schauer maintains that although Austin erred in overlooking the non-coercive aspects of law, those who have apparently been influenced by Hart may err in dismissing the importance of sanctions or coercion. He suggests at least two difficulties for Hart’s critique of Austin. First, he argues, in a modern regulatory legal system, citizens may, for good reason, experience law as more coercive than Hart appreciated. Insofar as a theory of law should capture the most salient features of a modern legal system, insofar as descriptive or empirical adequacy is among the conditions on an adequate theory of law, Hart’s view would seem to do worse than Austin’s. Of course, many legal philosophers would reject such empirical considerations as irrelevant, arguing that a theory of law should concern itself only with the “essential features” of law—those that would figure in an analysis of the concept of law. Sanctions and coercion may be common to actual legal systems, but they aren’t essential. To take such a position is, however, to choose sides in a deeper debate as to the purpose of a theory of law, Schauer stresses, and it is far from obvious that theories of law should concern themselves with the concept of law rather than with common features of paradigmatic legal systems.

Second, Schauer takes issue with Hart’s appeal to ordinary language to argue that being obligated is different from being obliged. The linguistic data, including language from court opinions, is far from unequivocal, and so the appeal to ordinary language provides insufficient grounds for rejecting Austin’s understanding of legal obligation. Even if sanctions are not an essential feature of duty generally, they may be an essential feature of distinctively legal duty.

In a companion piece, “Positivism Before Hart,” Schauer takes on the second bit of conventional wisdom. His aim is to show the continuing relevance of Bentham and Austin’s versions of legal positivism to jurisprudential inquiry, contrary to the prevailing view, which treats Hartian positivism as supplanting these earlier versions. Schauer contends that it distorts the history to treat Hart’s as the exclusive or best understanding of legal positivism’s core commitments. He distinguishes among three forms of legal positivism, all of which he claims were probably held by both Bentham and Austin. Conceptual positivism, which dominates contemporary understandings, emphasizes the Separability Thesis. Normative positivism treats concepts as social artifacts and holds that the conceptual separation of law and morality depends on a normatively informed choice of a concept of law. Decisional positivism, unlike the other kinds, is concerned not with understanding what law is so much as with institutional design and procedures of legal decisionmaking. This latter, more neglected form of positivism, focuses on limiting the discretion of officials by restricting the sources of law to ones that can be readily identified and by creating legal institutions that operate according to fairly precise rules.

Those who adhere to the received view, Schauer says, will contend that only conceptual positivism expresses what is central to legal positivism, which most fundamentally concerns the concept or nature of law. To the extent that Bentham, Austin, and other legal positivists, including Hart, might have accepted normative and decisional positivism, that is purely incidental. Schauer reminds us, however, that what it is for something to be a “core commitment” is contestable. Conceptual positivism, he insists, has neither historical nor obvious philosophical priority over normative and decisional positivisms, and so without more argument, we have little basis to conclude that the latter are less deserving of the “positivist mantle.”

Schauer’s opening salvo raises more questions, of course, than it attempts to answer, but that, in the end, is just the point. Treating conceptual positivism as central assumes that there are concepts, that there is such a thing as “analysis,” and that the concept of law is sufficiently well formed to admit of analysis. But are these assumptions well founded? With regard to normative positivism, we might wonder whether, in the end, it is a coherent alternative. For if, as many philosophers would insist, concepts are abstract entities, then they are not objects of normative choice and social construction; normative positivism cannot be an alternative to conceptual positivism. As for decisional positivism, we might well wonder whether it can stand on its own independently of conceptual or normative positivism. If not, then arguably it is less deserving of the positivist mantle, though it may be no less deserving of our attention on that account.

Logical space exists, too, for forms of positivism that Schauer does not consider and that might compete for centrality, depending upon what makes most methodological sense and what best answers to the goals of a theory of law. Consider a kind of “reforming positivism” that offers a reforming definition of ‘law’ as a part of theory construction responsive to certain natural and social facts about human legal practices. Or consider a form of positivism that aims at a “real definition” of law rather than conceptual analysis.

Schauer’s essays offer a welcome invitation not only to revisit Bentham and Austin with an eye to their broader jurisprudential concerns. They urge us, in Schauer’s typically clear and fair-minded manner, to suspend the received view, while exploring anew a host of questions not only about legal positivism, but also about methodology and theory construction in the philosophy of law.

Methodology in Jurisprudence

May 19, 2010 Brian Bix4 comments

For decades, if not centuries, discussions in Jurisprudence classes often start with the question, “What is Law?”  What then ensues is usually the bandying about of various conventional or off-the-wall definitions (depending on the tastes and inclinations of the teacher or coursebook editor), followed by a predictable reading and discussion of the 1958 Harvard Law Review debate between H. L. A. Hart and Lon Fuller, perhaps with some reference thrown in to Ronald Dworkin, or a natural law theorist (either very old, Thomas Aquinas, or more recent, say, John Finnis).  By then, it is considered safe to abandon discussions of the nature of law and go on to the next topic.

The problem with these discussions is that they skim across the surface of jurisprudential debates without ever reaching the core.  Courses may include debates about whether the Nazis had law or not, or whether we have a moral obligation to obey the law, but still there is little attention to all that is being assumed by any discussion of theorizing about (the nature of) law.  However, one should not be too quick to blame the teachers (or coursebook editors).  Even the theorists who wrote the canonical articles were not always clear, or helpful, about what is going on when theoretical claims are made.

Consider the complications:  in what sense is “law” a thing that can be described or explained?  If we are talking about a particular social practice, one that changes over time, why should we assume that anything true about that practice here and now will be equally true of the practice in another time or place?  Are we just listing things that are true of most legal systems, all known legal systems, or all possible legal systems?  Are the theory’s claims descriptive, analytical, interpretive, conceptual, or some combination of the above?

It is only in recent years that legal theorists have been more curious and more forthcoming about the methodological assumptions of their work, and potential methodological problems with their claims.  Joseph Raz’s article, “Can There Be a Theory of Law?” is an excellent example of a theorist facing such methodological issues.

Raz’s analysis is that theories about the nature of law are actually theories about the concept of law.  That analytical philosophy is, might be, or should be, conceptual analysis is nothing new (though conceptual analysis certainly has its critics, both in philosophy generally and in legal philosophy in particular); after all, the best-known text in English-language legal philosophy does carry the title The Concept of Law (H. L. A. Hart – Oxford U. Pr., 1961; rev. ed., 1994).

However, note for Hart that the expression is “the concept of law,” implying that there is a single concept, universally true, perhaps grounded in some Platonic realm.  Raz declares instead a focus on “our concept of law,” one parochial to us, though one we apply universally to other societies, present and past.  To say that it is our concept of law indicates that other societies might (and do) have other concepts, that our concept may have changed over time, and that it does not make sense to speak of the concept itself (as contrasted to our descriptions of the concept) being right or wrong.  For Raz, the point of theorizing about (our concept of) law is to explore a concept that is part of our general self-understanding.  And within Raz’s own theory of law, the self-understanding is one that shows connections between the concepts of “law” and “authority” and “practical reasoning” (among other connections).

Readers might reasonably react to all these references to conceptual analysis by asserting that we are not interested in a mere “concept;” we want to know something about “the practice itself,” in this case, law.  However, an initial question is how we determine what counts as “law”:  what is it that makes one system of guidance and dispute resolution “legal” and another not?   The initial and primary concern of a theory of (the nature of) law is boundary lines: what it is that makes a particular normative system legal.

Even assuming that Raz (and Hart, and others) are correct that the proper focus of legal theory is conceptual analysis (and, as earlier noted, there are doubters, including prominently, Brian Leiter, e.g., here (2007)), other questions remain that Raz’s article does not get to.  How can we tell whether “we” have one concept of law or more than one?  If there is more than one, should the theorist select just one, and if so, on what grounds should a selection be made?  Finally, if theories of law are just efforts to elaborate our concept(s) of law, why do theorists commonly act as if something more important is at stake?  Are they simply mistaken?

Raz’s article does not answer all the methodological questions, nor will the answers he does give be satisfactory to all, but it is an important step forward in the conversation, and an invaluable addition to the literature.

Rethinking “International Law”

Apr 26, 2010 Dennis Patterson1 comment

It is a staple of the international law literature that international law is not or might not “really be law” because, among other things, it lacks what H.L.A. Hart refers to as a “rule of recognition.”  The contrast is most stark when one compares international law with domestic or municipal law.  In the case of the latter, there is widespread convergence of opinion on valid sources of law and even relative agreement about how to construe those sources.  It is the absence of such convergence that leads some (e.g., “realists” who maintain that power is the best explanation for the behavior of states) to conclude that international law is not law at all.

And what of constitutional law?  The conventional wisdom is that domestic constitutional law is not only law, it is perhaps the most important example of domestic law.  Constitutional law may not be as “solid” as municipal law, but it is certainly much more like “law” than international law could ever hope to be.  As Goldsmith and Levinson unassumingly put the matter, “[t]his Article questions whether these apparent differences between international and constitutional law really run as deep as is commonly supposed.” (1794)

One of the interesting claims in this timely, important and controversial article is that constitutional law may look different from international law but it is not.¹ Like international law, there is no State enforcement authority for decisions of the Supreme Court.  Additionally, it is doubtful there is a Rule of Recognition in constitutional law (e.g., contests over the meaning of key terms and interpretive strategies is pervasive).  The conclusion to be drawn is this: if you question the efficacy of international law, then you have to do the same with constitutional law.²

Given the structural similarities between constitutional and international law, why is it that compliance is never questioned in constitutional law but is always foremost in the context of international law?  The authors cover a variety of theories but suggest that game theory might provide the best answer.  When we speak of “the State,” could it turn out that the State is just a site for the resolution of collective action problems?  Might it be better to focus not on formal characteristics of legitimacy and authority (e.g., sovereignty) but a different question altogether?  That question, the authors suggest, is “how law works?”

In this short review, I can only fail to do justice to what is surely one of the most interesting articles on international law in the literature.  In an era when legal theorists are grappling with the conceptual challenges of transnational legal orders, Goldsmith and Levinson supply them with a rich and suggestive article.

Surely questions remain. The primary problem with a game theory approach to these issues is that game theory is an explanatory and not a normative approach to law.  Game theory might answer the question “Why do state comply with international law?” but it cannot answer the question of the normative status of law.  This question remains on the table.

Another Ride on Vehicles in the Park

Apr 12, 2010 Brian Tamanaha

“No vehicles in the park”—this deceptively simple rule has commanded the attention of legal theorists ever since the mid-twentieth century tussle between jurisprudential heavyweights Lon Fuller and H.L.A. Hart.  “It is the most famous hypothetical in the common law world,” leads Frederick Schauer, in his terrific analysis of the debate.   Schauer lays out the position of each protagonist, he explains how their respective positions are linked to (and detachable from) their broader theories of law, he indicates what each got right and each got wrong, and he identifies the relevance of the debate to central issues in legal theory and judging today.

“A Critical Guide” is admirably clear, it delivers a passel of insights, it is leavened with dashes of humor, and it comes in at an efficient 35 pages.  Schauer draws out links to legal realism and the legal process school, to Hart’s later engagement with Ronald Dworkin, to debates over Riggs v. Palmer and Church of the Holy Trinity v. United States, as well as touches on other familiar veins in U.S. legal theory.  Along the way, he treats the reader to edifying discussions of contextual meaning and shared acontextual understanding; of the difference between vagueness and “open texture;” of the theoretical and the empirical aspects of the “no vehicles” debate; of the distinction and interaction between linguistic certainty and legal certainty, and much more.

In the end, he diplomatically declines to say who “won” the debate.  Schauer clearly sides with Hart on the fundamental point that legal rules often have a core of plain meaning that can be understood and applied without consideration of purposes or consequences.  Schauer credits Fuller, on the other hand, for capturing the sense within the American legal tradition that judges may depart from the plain meaning of laws under rare circumstances (not universally accepted as a theoretical matter, but manifest in judicial practice).  Thus, he concludes, both theorists got something essential right.

Schauer’s “A Critical Guide” is illuminating for jurisprudential novices and veterans alike—a pure pleasure to read.  The analytical clarity and depth of his essay, furthermore, lay the basis for a new take on this old debate.  I began reading “Critical Guide” firm in the conviction that Hart was correct—as most legal theorists appear to hold—but I ended the essay thinking, to my surprise, that Fuller got it right after all.

The basic outlines of the debate are well established.  Automobiles are obviously prohibited by the literal meaning of “No vehicles in the park,” Hart observed, without consulting purpose or anything beyond the language of the rule.  Fuller insisted, to the contrary, that purpose is always relevant to the interpretation of legal rules (although not always consciously).  He countered Hart by posing the question: Is a military truck set up as a war memorial prohibited by “No vehicles in the park”?  Although a truck is a vehicle, Fuller thought it does not violate the rule because the rule was not aimed at prohibiting vehicles used as memorials.

The standard retort against Fuller is that a fully functional military truck is a “vehicle” and, consequently, is prohibited by the rule (a non-functional truck might not qualify as a “vehicle”).  Fuller’s example, according to this response, does not refute Hart’s point.  Rather, it illustrates that rules sometimes have unanticipated or undesirable consequences.

That is where the debate has stood for fifty years.  Fuller has defenders, but many legal theorists, including Schauer, think Hart was obviously correct in insisting that legal rules typically have a core meaning conveyed by the literal terms of the rule without resort to purpose.

In the course of his analysis, Schauer elucidates the relationship between linguistic certainty (the truck is a “vehicle”) and legal uncertainty (excluding the truck as a memorial makes no sense).  As Schauer puts it, “the language is clear, and the application is linguistically clear, but following the clear language will lead to what appears to be a wrong or unjust or unwise or inequitable” result.  Legal uncertainty arises in these situations owing to the unpalatable consequence produced by linguistic certainty.  This is a familiar problem in law.

Schauer’s explication of the underlying sources of uncertainty—linguistic? result-generated? interaction between the two?—helpfully exposes the basic elements at play.  His analysis enabled me to see, for the first time, that Fuller had a much stronger case than he put forth.  The key is to think about situations that deviate from the pattern articulated by Schauer.

For example, Hart suggested that it is uncertain as a linguistic matter whether bicycles are excluded by “No vehicles in the park.”  But why?  A standard definition of vehicle (quoted by Schauer) is “a means of conveyance” used “for transporting people, goods, etc.”  More people use bicycles (numbering one billion worldwide) than automobiles as their primary mode of transportation.  Bicycles easily fall within the linguistic meaning of “vehicle”—no doubt about it.  Why, then, did Hart think it linguistically uncertain?

A plausible explanation is that he knew that certain parks are for quiet walks (bicycles not allowed) while other parks are more active (bicycles allowed).  This uncertainty (what kind of park is it?), perhaps, implicitly lead Hart to hesitate about whether a bicycle qualifies a “vehicle,” creating linguistic uncertainty to his mind when none existed.  If this explanation is correct, remarkably, Hart was considering purpose (subconsciously) in connection with this very rule even as he denied that purpose bears on core meaning.

The example of a baby stroller provides additional support to Fuller.  No member of the community (no police officer, no judge) would even conceive that baby strollers are prohibited by “No vehicles in the park.”  Although they easily meet the definition of “vehicle,” baby strollers are normal in parks.  That is why it would not occur to anyone that they are prohibited by the rule—no doubt about it (the same analysis holds for wheelchairs).

What’s especially telling about this example is that, in Schauer’s terms, it is linguistically clear (baby stroller is a vehicle) and legally clear (baby strollers are allowed)—even though these two elements point in opposite directions.  Or to put it another way, legal uncertainty should exist owing to the bad results mandated by the clear linguistic meaning of the rule (baby stroller excluded!), but no legal uncertainty arises because purpose resolves the problem without anyone noticing.

We thus see two clear examples of purpose, in different ways, implicitly coloring the core meaning of the “No vehicles in the park rule.”  That was Fuller’s position.  The analytical clarifications provided in “A Critical Guide” reveals their significance to the debate.

It may seem paradoxical, or a backhanded compliment, to credit an essay for helping produce a serious critique of the position it purports to defend.  But outstanding theoretical work often provokes new thoughts in opposition, parasitically riffing on the advances brought by the work.  Schauer’s gem of an essay may well begin a renewed round of jurisprudential debates on an issue long considered settled.

Meet the Editors

Jan 5, 2010 Michael Froomkin

Section Editors

The Section Editors choose the Contributing Editors and exercise editorial control over their section. In addition, each Section Editor will write at least one contribution (“jot”) per year. Questions about contributing to a section ought usually to be addressed to the section editors.

Professor Brian Bix
Frederick W. Thomas Professor of Law and Philosophy,
University of Minnesota

Professor Brian Tamanaha
Washington University School of Law

Contributing Editors

Contributing Editors agree to write at least one jot for Jotwell each year.

Professor Pierre Brunet
Professeur de droit public, Membre de l’Institut Universitaire de France, Directeur du Centre de Théorie du Droit (UMR CNRS Théorie et Analyse du Droit 7074), Codirecteur du Master de Théorie et Analyse du Droit (paris Ouest-EHESS-ENS), Codirecteur de l’Ecole doctorale de sciences juridiques et politiques (EDSJP) (avec E. Dockès), Directeur du Cursus Intégré Droit-Italien (Paris Ouest Nanterre-Alma Mater di Bologna)

Professor Sean Coyle
Professor of Jurisprudence, University of Exeter – School of Law

Professor William A. Edmundson
Professor of Law & Professor of Philosophy, Georgia State University

Professor Michael Steven Green
Professor of Law, College of William and Mary, Marshall-Wythe School of Law

Professor Mark Greenberg
Professor of Law and Associate Professor of Philosophy, University of California, Los Angeles School of Law

Professor Kenmeth Himma
Associate Professor of Philosophy, Seattle Pacific University

Professor Robin Kar
Professor of Law and Philosophy, Thomas Mengler Faculty Scholar, University of Illinois College of Law

Professor Matthew Kramer
Professor of Legal & Political Philosophy, University of Cambridge

Professor Martin Krygier
Professor Gordon Samuels Professor of Law and Social Theory Co-Director, Centre for Interdisciplinary Studies of Law, University of New South Wales

Univ.-Prof. Dr. phil.  Lukas Meyer
Universitätsprofessor für Praktische Philosophie, Universität Graz, Leiter des Instituts für Philosophie

Professor Dennis Patterson
Professor of Legal Theory and Legal Philosophy, European University Institute

Professor Daria Roithmayr
Professor, University of Southern California School of Law

Professor Connie Rosati
Associate Professor of Philosophy, University of Arizona

Professor Edward Rubin
University Professor of Law and Political Science &  FedEx Research Professor
Vanderbilt University Law School

Professor Mortimer Sellers
University System of Maryland Regents Professor, & Director, Center for International & Comparative Law, University of Baltimore School of Law

Professor Robin West
Associate Dean of Research and Academic Programs, Georgetown University Law Center

Professor Ekow Yankah
Associate Professor, Benjamin N. Cardozo School of Law

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Nov 24, 2009 Michael Froomkin

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