Why so much Hart?

Thanks to Dan and everyone else at Prawfsblog for letting me guestblog this month. I’ve devoted most of my time to talking about what I believe are some of the peculiarities and prejudices of philosophy of law in the United States. My final post is not about something I think deserves more attention here, but something that deserves less, namely H.L.A. Hart (or, more accurately, his book The Concept of Law).

The Concept of Law was drawn from lectures Hart delivered to undergraduates, and the book was written as a general introduction with them in mind. It has no footnotes – although there are notes at the end of the book that engage in a more direct way with Hart’s predecessors. (Often these notes are the most illuminating part of the book.)

I do not think that The Concept of Law deserves the attention that it currently receives from Anglophone philosophers of law. The book is frustratingly unclear. After almost fifty years there are still serious disputes about what Hart meant, for example, by the distinction between the internal and external points of view or the distinction between having an obligation and merely being obliged. People disagree about what he meant when he described his book as an essay in “descriptive sociology.” I, for one, find the book to be very difficult to teach because of its lack of clarity.

I’m not saying that philosophers of law should not write about what Hart actually meant. There is an important place in the field for the history of the philosophy of law. But the book currently is more than part of the history of the discipline.  Many theories of law are presented as, or in the context of, interpretations of Hart. I don’t think it is a good idea for work in the philosophy of law to have such an exegetical focus.

There are some very good philosophers working in the field today and I could probably come up with up with a list of fifty of them who could craft a clearer account of the essential features of law and legal systems than what can be found in The Concept of Law. True, in many cases the accounts offered would be influenced by or have similarities to what is said in Hart’s book. But they would be lacking the book’s frustrating opacity.

Now I’ve gotten used to my posts generating significant disagreement, and this one probably will as well. But to make it clear what I am not saying:

1) I’m not saying that H.L.A. Hart was not a good philosopher.
2) I’m not saying that The Concept of Law was not a seminal event in the history of the philosophy of law.
3) I’m not saying that Hart did not put some philosophical problems to rest. He offers, for example, the definitive response to Austin’s belief that there must be a legally unlimited sovereign in every legal system.
4) I’m not saying that there is not an answer to the question of what Hart meant. For a plausible account of the internal point of view, see, for example, this article by Scott Shapiro.
5) I’m not saying that, correctly interpreted, The Concept of Law does not offer a correct theory of law. (I don’t think it does, but that is not the source of my current criticism – it is the difficulty determining what the correct interpretation of the book is.)
6) I’m not including in my criticism the posthumously published postscript to the book, which, although unfinished, does not suffer from the lack of clarity of the original book.

Addendum: Brian Leiter claims to find the above remarks “dumbfounding.” But I've made the same point a number of times to other philosophers of law in private conversation and the response has usually been agreement rather than shock.

And no wonder. If you look at publications in the philosophy of law in this country, the percentage that discusses The Concept of Law is extraordinarily high. In no other area of philosophy are current practitioners so concerned with fifty-year old works, much less one fifty-year old work, much less one fifty-year old work that was intended as an introduction to the field for undergraduates. Usually in philosophy people take what is useful – and there is much that is useful in The Concept of Law – and move on. (Indeed, since I thought of Leiter as an example of a philosopher who had moved on, I assumed – naively – that he would be sympathetic to my post.)

Part of the reason for this large current literature on The Concept of Law is that the book leaves so many crucial questions unanswered. I mentioned in my original post the question of the internal/external points of view and let me concentrate on that here. (What I say below should not be news to anyone familiar with the literature on Hart.)

Often Hart makes it sound as if the problem with theories of law that take the external point of view is that they ignore the attitudes of participants in the legal system – as if these philosophers of law adopted some form of strict behaviorism. But Austin did not ignore participants’ attitudes – he just thought that these attitudes could be primarily fear of sanctions.

But if Hart meant by the internal point of view a special form of acceptance of the law (one different from obedience out of fear of sanctions), what is this form of acceptance? No one can be blamed for thinking – as some people have – that Hart meant moral acceptance. There is evidence in favor of this interpretation, although there is contrary evidence as well.

But let’s assume Hart meant something other than moral acceptance. At one point he says the relevant attitude could include “long-term self-interest” (which Shapiro helpfully says would encompass a judge who enforced the law out of a simple desire to get a paycheck). But then it is unclear why the person who obeys only from fear of sanctions (which is also a self-interested motivation) is not adopting the internal point of view.

It is true that Hart thinks that the internal point of view would express itself in criticism of deviators. But it is not clear why those who obey solely out of long-term self-interest would criticize deviators. If I am applying the law simply to get a paycheck, what is my reason for criticizing a colleague who doesn't enforce the law because, being independently wealthy, he doesn't need a paycheck? Of course, I may criticize deviators because it is a condition for getting my paycheck, but someone also might criticize deviators to avoid sanctions.

The point is not whether these problems might be solved and some satisfactory account of the internal point of view arrived at. The point is that Hart manifestly failed to provide us with a clear statement of what the internal point of view is, even though it is absolutely crucial to his argument. If he had provided us with such a statement, we wouldn't be still talking about this issue fifty years later.

Another problem is why this attitude of acceptance is a necessary condition for the existence of a legal system. Why, exactly, is a system in which most people, including officials, act in conformity with the law only because of a fear of sanctions not a legal system?? (The question is a conceptual one – it does not matter that such a system would be unstable.) I frankly see no reason why it is not, but, once again, whether Hart's position can be defended is not the issue. The point is that he fails to defend it.

I don’t blame Hart for these failures. The book was written as a general introduction to the philosophy of law for undergraduates. It’s amazing that it had the amount of ground-breaking material in it that it did.

But given that most of what I read by current philosophers of law is much clearer than The Concept of Law, it is natural to ask the question (which was the question of my original post): Why are philosophers of law - as opposed to historians of the philosophy of law - still so focused on The Concept of Law? Why haven’t we moved on?

Indeed (and here I'm self-plagiarizing a comment I made in the thread), there is a real irony to the reception of Hart. He wanted to professionalize the philosophy of law - to take it away from discussion about what great men of the past thought. In some respects of course he did succeed in professionalizing the discipline. The philosophy of law looks very different now, and in the English-speaking countries Hart is really to thank for this. But in one respect he failed. He became one of those great men.

We would do greater justice to Hart's legacy by talking about him less.