[lit-ideas] Re: The Philosophy of Law
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How analytical can legal philosophy get: The keyword is H. L. A. Hart.
Some say that analytical legal philosophy is, in spite of its name, not
MERELY an exercise in conceptual analysis. A pure conceptual analysis playe a
role in Hart’s legal philosophy. But some believe that this sort of
analysis is tangential to the main project of Hart's substantive theory. His
main
objective in his opus magnum, "The Concept of Law" is alleged to be not
essentially different from that of Austin (not J. L. Austin) namely, to
provide a reductionist theory of law. The main purpose of Hart’s theory was
to offer an explanation of law in terms of something more foundational in
nature, that is, in terms of social facts, which, in turn, can be
explained by reference to people’s actual conduct, beliefs and attitudes.
Hart’s objection to Austin’s reductionism was not to the idea of
reduction but to the building blocks that Austin used in articulating his
theory. Some think the main METHODOLOGICAL thrust Hart's legal positivism is
reductionism, not thus analysis. The title of Hart’s opus magnum, "The
Concept of Law' (which should be "The Concept of English Law", since this was
the only law he practiced) gave the impression that some universal concept
of law stands for something of great importance, and that it is somehow
different from an ordinary understanding of what the word “law” means,
yet awaiting philosophical elucidation.
Of course the word “law,” at has many uses, such as in “laws of nature,”
“the second law of thermodynamics” and the like, that have nothing, or
almost nothing, to do with law in its juridical use. Still surely we
shouldn't multiply the senses of 'law' beyond necessity. In fact, law is
not
ambiguous, but uniguous. If we focus our attention on the USES of “law”
in the juridical context, some say is very doubtful that there is
something that the concept of law
stands for, distinct from what people ordinarily mean by the term --
which makes Hart a botanist. Let us begin with the obvious question, what is
a concept? And what is it that we try to do when we purport to explain
or analyze the concept of X?
Gilbert Ryle gave us a pretty good sense of what he meant by “concept”
and what analysis consists in. Concepts are not things, as words are, but
rather the functionings of expressions, as keeping wicket is the
functioning of the wicket-keeper. Very much as the functioning of the
wicket-keeper interlocks with the functioning of the bowler, the batsman and
the
rest, so the functioning of an expression, like 'law', interlocks with the
functioning of the other members of the team for which that word is
playing. One expression may have two or more functions; but one of its
functions
cannot change places with another. Clearly enough, according to Ryle,
concepts are not abstract objects. They are not things of any kind. A
concept designates the myriad ways in which a word is used by competent
utterers of the relevant language in a given language – that is, ways in
which
it plays specific roles in making moves within an interlocking set of
other concepts and arguments. Some concepts are more regimented than
others, depending on the particular discipline or setting in which they are
used.
But even with regimented or scientific concepts, Ryle thought, it would
be hopeless to look for a set of necessary and sufficient conditions
that
would provide the set of functionings a concept has in a language.
Rather we are looking at piecemeal examination of families of conceptual
connections, ways in which the functioning of a word is dependent on
another.
Furthermore, Ryle, like, in some ways, Grice, believed that these
conceptual connections are epistemically transparent.
A careful examination of the ways in which we use language at particular
settings is obvious to any competent user of the relevant language.
Because we know, and necessarily so, the meaning of the words we use as
competent members of the relevant community, we will always be struck with
the
undeniable correctness of any genuine conceptual connection whenever it
is presented to us. How much and how far we can generalize from these
connections, and how deep the solution they may
provide for various philosophical questions, is not entirely clear. Ryle
clearly thought that most philosophical problems are conceptual
problems. Still, the relation between the meaning of an expression and the
concept it designates is somewhat unclear. Expressions can mean different
things, depending on the contexts or settings in which they are used.
Ryle thought that one and the same word can label different concepts. The
concept designated by the expression “law” for example, would be quite
different when used in a juridical context from the same word used, say,
in the context of a theory in physics. Quite right, but this does not
answer our question.
Once we identify the concept – that is, the general functionings of an
expression in a given type of setting, say, “law” in the juridical usage –
is the concept different from what the word means in that general
setting? To use the familiar Fregeian terminology: How is concept different,
if it is, from sense? I am not trying to suggest that a concept is, after
all, some abstract object or entity (as Frege thought about sense). The
question is more practical, as it were. When we try to elucidate or
analyze a concept, is there anything else to it than figuring out what the
word, in its relevant settings, means in the language in question?
It is difficult to see how it would be different. Take the word “cricket”
for example. We use the expression "cricket" in English to designate a
certain type of game. In short, the word "cricket" in English has a fairly
clear meaning or "sense", designating a certain type of game. Now we can
call this a concept, if we like; we can say that all reasonably
competent users of English have a concept of cricket. But it is difficult to
see
how the concept of cricket is different from whatever "cricket" means
in its standard use in English expressions. If I asked you to tell me
what cricket is, would you feel compelled to ask me, “Do you mean the
concept of cricket, or just the meaning of the expression "cricket", in
English?
” Giving me an answer to the first would also give me an answer to the
second.Now you might think that there is a difference when other
expressions are at stake such as "law". As we know, people tend to have
different
conceptions of what "law" is. And thus it has become common to
distinguish the concept from its possible conceptions. We all understand
the concept of law, it is assumed, while we may disagree about its
favoured conception.
Now let us focus on the concept. People have a concept of "law" insofar
as they understand what the word "law" means, know what it stands for
and, by and large, use it correctly in their expressions. And thus, by
elucidating what the expression "law" stands for, you have given its meaning.
At the same time, you have explicated what the concept is. Suppose, to
illustrate, that someone who grew up in, say, Mars, has absolutely no idea
what "law" is. (Cfr. "The Senses according to the Martians: a
re-examination of Grice's example" by Coady). Let us assume that this
Martian has
never heard the word, "law". Now, having been found in Mars and brought to
Oxford, the Martian hears the expression for the first time (he is
auditing a lecture by the Prfoessor of Jurisprudence) and has the cheek to ask
Hart what it means. Let us assume that Professor Hart (God bless him) gives
the Martian a correct answer. Hart explain everything that would enable
him to use the word correctly – that is, you give him the correct meaning
of the expression in English. Is there anything left for him to know in
order to grasp the concept of "law"? Is there any point at which Hart
can say to the Martian, “You know perfectly well what ‘law’ means, but you
have not yet quite grasped the concept”? Some fail to see what this
residual piece of information might be.
One might object to this by pointing out how the mastery of numerous
expressions in a natural language requires not simply a form of
knowing-that, but also some form of knowing-how; mastery of a concept is
often a
matter of habituation, like a skill we acquire, which takes time, practice,
etc. Those of us who had to learn Classical Greek or Classical Latin know
exactly how frustrating and difficult this process of habituation often
is. And in fact Hart suggests that there may be pre-legal societies (or
that the Anglo-Saxon society, back in the day, was 'pre-legal' -- "or had
little respect for the predominantly Roman law that applied in England at
the time, when they (the Anglo-Saxons) invaded"). But this would not
show that there is a gap between mastering the meaning of the expression
"law" in a natural language and acquiring its concept. You do not really know
what a word means without an adequate grasp of what it stands for and
how to use it in different contexts. If it takes habituation and practice
to acquire this kind of knowledge, that is what it takes to grasp the
meaning of the expression and be able to use it properly.
Once you have acquired that competence, you have acquired the concept, and
vice versa. No residue is left here, in either direction. Philosophers
sometimes argue for conceptual claims that are explicitly acknowledged as
revisionist.
Such concepts are not meant to reflect an agreement in judgments about
the concept’s application to all its standard cases. Therefore,
counterexamples to the conceptual claim, based on prevailing linguistic
intuitions
or common usage, would not necessarily refute a revisionist concept. It
is certainly possible to define a concept that is revisionist in some
way. But then the concept would need to be supported by theoretical
arguments about its usefulness or theoretical purpose, not by anything
traditionally called "conceptual analysis": an analysis of concepts is an
analysis of the ways in which an expression functions in our actual
languages, which must be based on observation of linguistic practices and
prevailing linguistic intuitions, such as Hart's. Conceptual analysis cannot
be revisionist, unless it must. Is there a point at which we can say, “
Well, you may have the concept of law, but you do not quite know what
the expression "law" means”? That some find even more mysterious.
If we assume that reasonably competent speakers of a natural language
know the meaning of the word "law" (in its juridical "use"), they
understand the concept of law. And, crucially, there is nothing more to the
concept than that which is
designated by the expression "law". This is what calls the “semantic sting”
argument. Dworkin claims that Hart's conceptual analysis of "law" is
essentially, about the meaning of the expression “law.” One reply to
Dworkin has been that Hart is seeking to elucidate the concept of law, not the
ordinary meaning of the expression “law.” People have pointed out that
Hart explicitly rejected the idea that his theory is about the meaning of
the expression “law,” or that such an attempt
to define the meaning of law would be theoretically fruitful (He had
learned from J. L. Austin and Grice and was more onto 'implicature'). If we
are right, however, that there is no significant difference between
understanding the meaning of an expression (EXCLUDING its implicatures,
which
are not part of the expression's SENSE) and understanding its concept,
this line of response is taking the wrong tack. If you think (some don't)
that Hart’s theory of law is basically an attempt to elucidate the
concept of law, you would have to agree with Dworkin that Hart’s theory is an
attempt to articulate what the expression “law” means. So it is a “semantic
theory” after all -- even cum metaphysics. Grice's entitles the Part II
to his WOW (Way of
Words), "Explorations in semantics and metaphysics". He was trying to be
provocative, but also holistic.
Some think that Dworkin is right, up to a point. Dworkin is right to
assume that conceptual analysis is, essentially, a linguistic inquiry -- what
Austin calls 'botany'. At least it has been so conceived by the ordinary
language analysis
school of J. L. Austin, to which Hart (half-"heartedly", if you allow me
the pun, some think, because Austin looked down on anyone his senior)
belonged and which he was certainly influenced by. The idea of a concept
stands for the “
functionings of expressions in their settings, and ways in which these
functionings are intertwined with the functionings of related concepts with
which they interact in a given setting. Knowing what an expression
means, and consequently, understanding its concept, admit of degrees. In
many
cases it makes perfect sense to say that A has a better understanding of
the meaning of X than B. Or that A’s understanding of the concept of X
is more complete than that of B. The idea that conceptual analysis is
transparent and reveals something that can be recognized upon reflection as
obvious is only made plausible by the assumption that it is our own
linguistic practices that we seek to elucidate here. Conceptual connections
are transparent because they are constituted by our language, and language
-- especially at Oxford -- is public and knowable to every competent
user. Conceptual analysis is, essentially, about language. We do not mean
to suggest that philosophical inquiry into the conceptual connections of
language use is not interesting or worth pursuing. The ways we use
language typically reveal a great deal about the ways we think.
Thought, however – even if it is collective and public, as revealed by
language use – is never a guarantee of truth. The fact that we
collectively think about something in a certain way does not mean that
things are
that way. Systematic errors are not unheard of, even if they are deeply
entrenched in our language use.
Dworkin’s assumption is that that criterial semantics, which he
attributes to Hart (not unreasonably, given Grice's influence), is incapable
of
explaining the kind of “theoretical disagreements” in law that he focuses
on (Grice said that conceptual analysis is concerned with the analysis of
HIS OWN concepts -- "That's what makes philosophy personal". He was also,
_contra_ Hart, against specialisation in philosophy. Hart had become "Our
man in legal philosophy". But Grice joked about this. "If I go to a
university, and they introduce me to Mr. Poodle, our man in
seventeenth-century German aesthetics", I infer the 'implicature' (perhaps
unintentional,
but sometimes not) that Poodle is not even good at seventeenth-century
German
aesthetics: philosophy, like virtue, is entire."). (Grice uses scare
quotes in 'implicature' to simplify: an unwanted 'implicature' is not an
implicature -- it's not like an unwanted baby, which is still a baby).
The question is whether Hart’s theory of law is a form of conceptual
analysis at all and, more generally, whether analytical jurisprudence is
best seen as a form of conceptual analysis. Austin’s command theory of law
seems very intuitive, almost compelling at first sight, and thus, by
revealing its weakness (usually on the basis of Hart’s critique), we can
motivate a discussion of the hard questions about the nature of law, opening
the way to more sophisticated philosophical accounts presented to us by
philosophers of the 20th century. Austin’s theory of law purported to
provide a reduction of law to facts of a social kind, explicable in
sociological terms. (And recall that in Oxonian circles, 'reductionist' was
a term
of abuse).
Hart’s own theory of law is as reductionist as Austin’s. Hart clearly
shared Austin’s view that a theoretical explanation of the nature of law
should explain what the law is in terms of social facts, facts that can be
explained by more foundational truths about how people behave, the kind
of beliefs they have about their conduct, and the kind of attitudes and
dispositions that tend to accompany those shared beliefs. The hallmark of
Hart’s theory is the idea that social RULES of a special type are at the
foundations of law, and that social rules, in turn, can be explained
reductively in terms of people’s actual conduct, beliefs and attitudes. Hart’
s reductionist project has been blurred by his own cryptic remarks on the
importance of the internal point of view.
According to the common misunderstanding, Hart’s suggestion that an
adequate account of the normativity of law must explicate the ways in which
participants in the practice regard legal requirements as reasons for
their action, is taken to indicate that Hart shared Kelsen’s
anti-reductionist critique of Austin. Hart must have meant, people assume,
that
there is something misguided about an explanation of law’s normativity in
purely sociological terms.
But in fact, it is the other way around. Hart’s discussion of the
internal point of view is actually a critique of Kelsen, not so much of
Austin.
The point Hart makes about the internal point of view is that it can be
explained reductively (or behaviouristically), by observing people’s
actual practices, beliefs and attitudes. There is no need, Hart claims, to
postulate a presupposition of a basic
norm, as Kelsen argued.
This is clear when Hart explains the difference between the rules of
recognition and Kelsen’s basic norm.
Hart’s disagreement with Kelsen is precisely about the possibility of
reduction.
Hart strove to show that there is no need for such a presupposition as
Kelsen held about the basic norm.
By practice Hart means the actual patterns of conduct people exhibit,
the kind of beliefs they share about it and the attitudes that accompany
those beliefs.
If, as some claim, the main methodological thrust of Hart’s theory of
law, like that of Austin’s, consists in a reductionist project, where does
that leave conceptual analysis?
Is there a sense in which reduction of some type of discourse or class
of statements to another type or class is a form of conceptual analysis?
Recall Grice mocking Lewis when Lewis said of conceptual analysts:
"Clarity is not enough".
A successful semantic reduction in any domain assumes that, if such a
reduction is possible, it might constitute a form of analysis that is,
essentially, about language (Waissmann was obsessed with this when he spoke
of
'open-texture', which may have
influenced Hart's idea of defeasibility -- cfr. "Excluders").
Then, there's the idea of a metaphysical reduction -- the reductionism
that Grice found abusive -- is to show that a distinct type of phenomenon
is actually constituted by, and fully reducible to, some other, more
foundational type
of phenomenon.
It is possible to construe Austin’s legal command theory as attempting a
semantic reduction as well. If this is the case, then Hart certainly did
not share the objective. Nothing in Hart’s work suggests that he strove
to provide a semantic
reduction or that he thought such a project to be feasible.
But Hart’s reductive theory of law is not JUST or 'merely' (to use a
word I borrow from McEvoy) an attempt to explain how people use the concept
of law. It is an attempt to explain what law is in terms of observable
social
behavior of human beings.
If you want to start with a moral question about the legitimacy of state
coercion or the legitimacy of political authority or whatever, that is
fine. It has been done for centuries and is mostly referred to as
POLITICAL,
not LEGAL philosophy, of the sort Hart engaged in.
Let us focus, as Hart doesn't, on essential properties of social
practices. We can say that it is an essential aspect of cricket that it is a
competitive game -- and Grice's favourite game at that. Perhaps we need to
qualify this statement. It is an essential aspect of cricket, as we know
it, that it is a competitive game. For all we know, there might be
Martians who “play” cricket not as a competitive game but as a religious
ritual; perhaps the winning team becomes the high priest.So it is not really
a game on Mars. Whether Mars-cricket is, in some sense, cricket or not,
is a difficult question to answer, but it is not what is needed here.
What is needed is to realize that the characterization of cricket as a
competitive game is not a statement about concepts or, generally, about
language. It is a claim about the nature of a certain type of human
activity.
And whatever we know about cricket is not something we learn by mastering
a language, but by observation, learning and participation in this
activity (preferably at Clifton). If you do not know, for example, that
cricket, as played at Clifton, where Grice learned it and learned to play
it, is a competitive game, that players must aim to win the game, and
that what counts as winning is
determined by the rules, you will not be able to play cricket, nor will
you understand what is going on when observing others playing it. Some
find it boring. True enough, you will also not know what the word “cricket”
means, thus
we can say that you do not quite have the concept of cricket. But
learning that cricket is a competitive game is not something that comes about
by learning to speak English; it comes about by learning about cricket,
what it is and how to play it (or, at least, how to understand what others
are doing and aiming for when playing it).
Some allegedly essential features of law have been identified by Hart
(that modern legal systems combine primary and secondary rules. And these
features, and others, are not mutually exclusive, of course. The list of
features that philosophers identify as essential to law is not randomly
selected. The features serve some theoretical purposes, highlighting an
aspect of law that calls for theoretical explanation and has some
significance for the kind of theory offered.
But there is nothing question-begging about that.
There may be something ANSWER-begging, as Geary might prefer.
Legal interpretivism can critically engage with what it calls the
orthodox view if it denies the possibility of reduction.
In his criticism of Hart’s jurisprudence, this is precisely the path that
Dworkin followed. Though not phrased explicitly as an anti-reductionist
critique, Dworkin’s argument about legal principles aimed to show that
Hart’s rules of
recognition cannot provide a complete answer to what constitutes legal
validity, because legal validity is partly deduced by moral reasoning. This
is quite clearly an argument that purports to show that legality
cannot be reduced to social facts. Unfortunately, the interpretivist turn
in Dworkin’s theory obscured this anti-reductionist argument, and led
many to suspect, including Hart himself, that interpretivism and legal
positivism talk past each other. Legal positivism, as Hart clearly saw it,
aims to provide the essential features of law quite universally – that
is, wherever law exists – whereas the impression that Dworkin left about
interpretivism was that it articulates a theory of adjudication for law.
Some think that Hart was not quite right about this. There is a clear sense
in which Dworkin’s interpretative theory challenges the reductionism
inherent in Hart’s legal positivism. It aims to show that legality cannot
be reduced to facts about people’s conduct, beliefs and attitudes because
legality is partly, but necessarily, constituted by truths about moral
issues. Dworkin maintains that a theory about the nature of law must
provide the kind of explanation that participants in the practice can
recognize, at
least upon reflection, as something that rationalizes for them the ways
in which they understand the practice and its normative requirements.
Let us examine the validity of Dworkin's criticism with an example from
Hart’s account of social rules.
For a social rule to exist, Hart maintains, certain things must be true.
It must be the case that there is some regularity of behavior manifest
in the overt conduct of a certain population, and this conduct must be
accompanied by certain types of beliefs and attitudes that most individuals
in that population share about it. For this kind of reduction to be
successful, it has to be shown that the explanation is complete, and that
the elements offered are sufficient to distinguish social rules from
other, similar type of phenomena.Critics have argued, however, that Hart’s
explanation is not complete. In particular, it cannot distinguish between a
case of following a social rule and one of complying with a generally or
widely accepted reason.
People often exhibit a regularity of behavior because they believe that
there are some reasons that apply to the circumstances at hand, and thus
they comply with the reason and exhibit the same kind of attitudes that
Hart
associates with the “acceptance” of a rule. But, nevertheless, it is not
a rule they follow.
These relates to strategies followed in games, as when Grice's obituary
read that he was not an 'elegant' player, if 'effective' and 'strong'.
Players of cricket are often expected to know, as they do, that there are
certain things not done in a game, for example, because it would be a bad
strategy. So, by and large, they do not do them, and would criticize others
who do, etc. However, such widely recognized strategies do not form part of
the rules of cricket. If you fail to comply, you might be criticized
for being foolish or amateurish (Grice preferred "gentlemanly" -- but THE
TIMES disagreed, and his obituary read: "Professional philosopher and amateur
cricketer") but not for violating a rule of cricket. What Hart may have
missed here (perhaps, we are not claiming that he did -- but he certainly
was a worse cricket player than Grice) is the fact that following a rule
requires the attribution of a reflexive type of belief to those whose rule
it is.
The difference between complying with a widely believed strategy and
complying with a rule consists in the fact that participants regard the
existence of the rule as a reason for their action – which is to say that we
cannot account for the relevant type of belief people have without
invoking the very concept that we try to explain.
This would be a serious problem for Hart’s account if we thought that his
theory about the nature of social rules was meant to be a conceptual
definition. Then we would have to admit that he was trying to define what the
concept of a rule is in a way that presupposes that people understand the
concept. But we do not quite see it that way. What Hart is trying to do
is to provide an account of social rules, not a conceptual definition of
what rules are. This account purports to identify the kind of beliefs and
attitudes people must have when following a social rule.
It is not part of Hart’s project to provide a conceptual analysis of “
rules,” or “social rules” for that matter. His project is to show what
facts constitute the existence of a social rule in a given population, and
to show that we do not need to have more
in our toolbox for this purpose than the elements he identified, namely,
regularities of behaviour coupled with certain types of beliefs and
attitudes.
A language like English (which has words like 'law' and 'cricket', unlike
Martian -- for all we know) imposes certain constraints on social
explanations, but this is not the main object. It certainly does not mean
that
philosophical problems are conceptual
problems, or that conceptual analysis forms the relevant methodological
foundations. Every reductive explanation presupposes that the class
reduced to is, in some relevant sense, more foundational than the reduced
class.
But it does not have to assume that it is as foundational as it gets.
Cheers,
Speranza
Baker, G. P. Meaning and defeasibility, in the Hart festschrift.
Baker, G. P. Alternative mind styles, in PGRICE, Philosophical Grounds of
rationality: intentions, categories, ends.
Grice, Studies in the Way of Words -- for a discussion of Hart on
'carefully'.
Grice, Intention and uncertainty.
Hampshire and Hart, Decision, Intention, and Certainty, Mind.
Hart, Words and signs: a review of Holloway, Language and Intelligence,
Philosophical Quarterly
Hart, The concept of law.
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