• LAWS 20102: Jurisprudence

• HLA Hart and Legal Positivism

• Iain Brassington
• CSEP/ Law
• [email protected]
• 4.x.21
6
The Rule of Adjudication (2)
• What do we do when the law is unclear, or when it offers several answers (or
none) to a legal query, or when we don’t know how compatible a statute is with
another piece of law?
– Eg: what would happen if HMG proposed a law that violated the terms of a
treaty such as the NI Protocol?
– Since positivism insists that law is nothing but what has been posited, it’s not
obvious what the next move should be.
• But by the same token, we might wonder how it is that a law could be unclear.
– Why not just take it on its most natural reading?
– “No motor vehicles in the park” might exclude disability scooters; but if we
don’t want that, the solution would simply be to posit a new rule!

The Open Texture of Law

• Hart thinks that it’s not that simple.
– There will always be a need for adjudication.
• This is because of a phenomenon that he calls the “open texture of law”.
• Hart is influenced by contemporary work in other fields of philosophy
– Ludwig Wittgenstein, JL Austin*, AJ Ayer &c are important

*Not the same Austin…

Wittgenstein on Language
• Sees the meaning of words as indissociable from their use
– Thus as use changes, so does meaning; context is vitally important.
– Language is a social thing: it’s not determined by thought.
– Meaning may be otherwise indeterminate.

• The Open Texture of Law (2)

• Why is this important?
– It means there’s going to be an irreducible ambiguity in legal language.
– Laws have to be general, and therefore have to be interpreted in given
situations.
– But language can be ambiguous at the best of times
• “No motor-vehicles in the park”
– And any codicils, subclauses, or whatever that you may choose to add will
themselves be open.
• Hart’s concern is that law might be liable to similar problems.
• The Open Texture of Law (3)
• So faced with what do we do when the law offers several answers (or none), we
might be able to posit an answer…
– In fact, we may have no option.
– Part of the function of a judge is to make a decision about how the text of the
statute and precedents is to be interpreted and applied.
– This would apply to any legal system whatsoever.

Adjudication
• So Hart is claiming that, when the law is unclear, it is within the gift of officials to
interpret it as they see fit (cf RoA).
– Judge-made law
– Judges may make up for the “negligence or incapacity of the avowed
legislator”

Constraints on Adjudication
• Judicial discretion is not unlimited.
– It has to be reasonable: new cases may be added “because of resemblances
which can reasonably be defended as both legally relevant and sufficiently
close”
– In other words, one of the judge’s functions is to decide what the relevant
considerations are, and how the “open texture” should be closed.
– But in doing this, they’re still making posits!
• We’ll return to adjudication in a couple of weeks.

What Should a Law Be?

• Hart thinks that adjudication may also be informed by moral considerations.
– If a judge’s role is to decide on the “best” way to apply a law, this invites
evaluative claims!
• And this means that it’s a good time to move on to consider questions about the
relationship between law and morality.
• What we have so far is a picture in which we don’t appeal to the content of a law in
order to establish its validity
• But is there anything that we can say about the content of the law?

Necessity and the Law

• For Hart – as all positivists – there is no necessary link between law and morality
– There might be a link, but it’s only contingent.
• But what is meant by “necessity” in this sense?
– It has to do with what’s thinkable.

Necessity and the Law (2)

• It’s in this sense that positivists claim that there is no necessary link between law
and morality (the “separation thesis”).
– We could imagine a system of laws that had no moral content
• – imagine a legal system that allowed for private vendettas, but
insisted that they be recorded on pink forms at a central office –
– or one that was overwhelmingly immoral

Necessity and the Law (3)

– But then Hart says
– When thinking about law, we do find some kind of moral concept “built in”
• It must accommodate
– Human vulnerability
– Approximate equality
– Limited altruism
– Limited resources
– Finite competence/ will

• Necessity and the Law (4)

• Why?
– “We are committed to it as something presupposed by the terms of the
discussion; for our concern is with social arrangements for continued
existence, not with those of a suicide club.” (CoL, IX.1)
• In other words, Hart appears to be saying that the very idea of law does imply
certain characteristics.
• Necessity and the Law (5)
– One possible interpretation:
• There is a conceptual link between law and morality after all, and Hart
is wrong/ inconsistent/ confused.
– Another:
• It’s not a conceptual link: merely a hypothesis/ prediction about what
any viable legal system will look like as a matter of fact.
• What Hart might appear to be saying isn’t the same as what he
actually is saying.
• By analogy…

Certain Predictions
• Some things are so unlikely as to mean that I wouldn’t be risking too
much in this prediction.

• Necessity and the Law (6)

• I think that Hart must mean something similar.
– Just as I can predict with (near) certainty that no cat will never recite Sir
Gawain and the Green Knight, I can make predictions about any actual legal
system.
– The same applies to law’s minimal content.
Necessity and the law (7)
• In other words, it is conceivable as a matter of bare logic that certain legal systems
might have no moral content whatsoever.
– However, in practice, any legal system worth the name is overwhelmingly
likely to have some moral tone.
– (There’s an element of Hobbes here, actually…)
• Necessity and the law (8)
In societies of individuals, approximately equal in physical strength and
vulnerability, physical sanctions are both necessary and possible. They are
required in order that those who would voluntarily submit to the restraints of law
shall not be mere victims of malefactors who would, in the absence of such
sanctions, reap the advantages of respect for law on the part of others, without
respecting it themselves. Among individuals living in close proximity to each other,
opportunities for injuring others, by guile, if not by open attack, are so great, and
the chances of escape so considerable, that no mere natural deterrents could in
any but the simplest forms of society be adequate to restrain those too wicked, too
stupid, or too weak to obey the law. (CoL, X. 2; emphasis mine)

Making Moral Laws

• We might even want to go further, and insist that the law ought to have a moral
content.
– It probably does in reality: many laws are passed (and disputed, and
rejected) for moral or moralising reasons.
• This prefigures some of Devlin’s arguments.
– And there’s no reason why a Hartian would deny this.
• Everyone would prefer a morally defensible legal system, by whatever
standard of morality they accept…

Making Moral Laws (2)

• Nevertheless, even if all laws are passed for moral reasons, and/or all laws happen
to be morally unimpeachable, this is wholly compatible with the sources thesis.
– The law’s validity qua law does not depend on its moral characteristics.
That’s the central point about positivism.
• Law qua law is morally neutral.
– This seems to guarantee a kind of desirable secular liberalism… On which,
more later!

Applying Immoral Laws

• However, there may be a problem with law’s moral neutrality.
– Imagine that the laws passed are in some sense wicked
– Judges’/ officials’ role here would simply be to apply the law as received.
• cf Radbruch’s worry about Nazi judges.
• Positivism has flaws because if it is simply concerned with RoR or the
source of law wicked laws can be implemented
Obeying Immoral Laws
• We can ask a similar question about our obligations to obey the law.
– Remember that Hart claims that obligation isn’t simply a matter of being
obliged; legal obligation is based on a recognition of the law as law,
irrespective of its merits.
• That seems to be morally compromising!
– But is that the whole story?
• Let’s revisit our painting!

• Obeying Immoral Laws (2)

• Hart is talking about legal obligation
– … but precisely because of the difference between law and morality, this’ll
tell us nothing about moral obligation.
• We have legal reasons to obey the law stemming from its validity.
– And we might have a moral reason to obey the law
• But they would be further reasons, rather than simply “because it’s the
law”
– But, correspondingly, there might be moral reasons not to obey it.
• So there can be a dilemma about whether to obey a valid legal demand.
• Thus…
[E]verything that [Radbruch] says is really dependent upon an enormous
overvaluation of the importance of the bare fact that a rule may be said to be a
valid rule of law, as if this, once declared, was conclusive of the final moral
question: “Ought this rule of law to be obeyed?” Surely the truly liberal answer to
any sinister use of the slogan “law is law” or of the distinction between law and
morals is, “Very well, but that does not conclude the question. Law is not morality;
do not let it supplant morality
• …
[I]f we adopt Radbruch’s view, and with him and the [post-war] German courts
make our protest against evil law in the form of an assertion that certain rules
cannot be law because of their moral iniquity, we confuse one of the most
powerful, because it is the simplest, forms of moral criticism. If with the Utilitarians
we speak plainly, we say that laws may be law but too evil to be obeyed.
(“Positivism and the Separation of Law and Morals”, Harvard Law Review, vol. 71,
# 4, 1958, pp 618-620)
• In other words…
• The legal answer to “Ought I to obey this valid law” is always that you should.
• But the legal answer is not the same as the moral answer.
– Remember the Separation Thesis!
• “Because the law says so” is a legal answer – but it’s not the whole story.
• END OF PART 3!