The significance of the ‘critical reflective attitude’ is then discussed and, finally, the sociology of secondary rules will be examined. This paper will conclude that, while Hart infused his theory with sociology in an attempt to circumvent what he saw as the restrictive nature of Justinian formalism, he remained true to the core tenets of positivism, and, ultimately, expounded a positivist theory, not a sociology, of law. Locating or formulating definitions of the concepts discussed herein, such as positivism’ or ‘sociology of law’, is difficult.
For example, “legal positivism… Has been variously evolved and… How’s signs of excessive pluralism and theoretical fragmentation… So much so that nothing we can say about lit] can be agreed to by all positivists. ” 1 Yet such definitions are necessary in order to place Hart’s theory on the theoretical spectrum. Given that this paper is concerned with these concepts at a general level, determining where Hart’s theory lies in the broadest sense, general definitions Will suffice.
Cottrell Offers such a definition-2 He suggests a distinction between normative and empirical theories of law, corresponding to jurisprudential theories and sociologist of law respectively. The former is a “theory which seeks to explain the character of law solely in the terms of legal doctrine *and other legal the latter “seeks to explain the character of law in terms of historical and social conditions and treats… Law as… Explicable in terms of their social origins and effects. 4 Razz’5 definition of positivism is helpful as it seeks to identify the essence of traditional positivist theories, rather than a specific_ definition. 5 Razz notes that major theses have been traditionally associated with legal positivism”‘ the reductive semantic thesis, which “proposes a reductive analysis of legal tenements according to which they are Nan-normative, descriptive 1 2 Lets, ћH. L_A Hart”s Conception of Law” Clearinghouse Review 187-194, 187. Cottrell, ћThe Sociological Concept of Law” (1983) 1 CO of L & Society 241-255, 241.
However, note Moore, ћDescription and Analysis in the Concept of Law: a Response to Stephen Perry” (2002) 8 Legal Theory 91-114, 99 suggesting that even Cottrell general framework may be unhelpful. 34 S Ibid. Ibid. Razz, the Purity Of the Pure Theory” in Opener, Shift and Nobles (des), Introduction to Jurisprudence and Legal Theory: Commentary and Materials (LIP, Oxford 2005) 202. tenements”;6 the contingent connection thesis, which states that “there is no necessary connection between law and moral the sources thesis, that “the identification of the existence and content of law does not require resort to any moral argument. 8 Freeman suggests that sociological theories of law generally involve a rejection tot the uniqueness tot law and tot law as a closed logical order, a focus on the law in action and use of sociological methods. G Hart’s ‘Descriptive Sociology’ Claim An obvious starting point for this assessment is Hart’s ‘notorious’ 10 hope, expressed in the preface to The Concept of Law, 1 that his work “may also be of use to those whose chief interests are in… Sociology, rather than in Ian/’ and that ‘*notwithstanding its concern with analysis the book may also be regarded as an essay in descriptive sociology’. 12 Adding to the definitional evokes outlined above, Hart fails to define what he meant by ‘descriptive sociology. As Krieger notes, “*a+ sympathetic critic can be skeptical about the claim… Because the idea Of a descriptive sociology Of law is not developed”, 13 suggesting that perhaps Hart’s failure to define descriptive sociology itself shows that he was not too concerned With this aspect Of his hurry.
It is clear that Hart was referring to a subset of sociology generally and it is sufficient therefore to determine Whether Hart’s theory is sociological in the more general sense identified by Cottrell. There are three angles from which to approach Hart’s claim to descriptive sociology: the first is textual, analyzing the formulation of Hart’s claim; the second is biographical, looking to Hart’s background in an attempt to discern whether he was genuinely committed to his sociological claim; the third is an overview of the path that Hart’s theory took, ascertaining whether he followed through with his claim.
As for the first approach, whilst remaining aware of the danger of putting too fine a point on Hart’s choice of words at the expense of understanding his overall project, it should be horn in mind that Hart said his work “nay also”14 he considered a work tot descriptive sociology, suggesting that it was 6 7 8 9 Ibid. Ibid. Ibid. Freeman, ћLaw and SociologyВ« (2005) 8 Current Legal Issues I-IS, I _ Twining, ћSaucer on Hart” (2006) I Gig Harvard L R Forum 122-130, 127. Hart, The Concept of Law (2nd Eden JPG, Oxford 1994). Ibid preface.
Krieger, ћThe Concept of Law and Social Theory” (1982) 2(2) OILS 155-180, 157 Hart (n I I) emphasis added). 1011 121314 primarily intended to be a work Of jurisprudence that could be interpreted in a sociological light. He also stated that his theory “may be of use”15 to other disciplines, suggesting that, While sociologists and anthropologists could gain insights from his work, to paraphrase Krieger, he was not ‘doing what they do’ . 16 Lacey has written extensively on Hart’s life, 17 and her observations Hart’s background illuminate the extent to which Hart intended to engage in sociology.
She notes that, given the low status of the social sciences at the time, 8 that Hart was “a philosopher by training as well as by deepest disposition”, 19 and considering his criticism of sociological method,20 his claim is surprising. However, as Hart was “never a man to use words lightly’,21 Lacey concludes that we must “assume that the Preface’s claim was a considered one. “22 Hart who harbored “an Axon antipathy towards sociology’23 (though he regretted this later)24 would not have made this unusual claim had he not fully intended to do so.
Hart’s “determination to move beyond the conceptually rigid positivists of Austin and Kelsey”25 compellingly confirms that we should take Hart’s claim rigorously, Hart’s extensive attack on Austin was partly based on Hart’s assertion that Sustains formalism was unduly restrictive. It is in the context of solving this problem that the sociology in Hart’s account arises, as “law’s social being to reveal the inadequacy of the reigning positivist conception of that of Austin.
In the preamble to The Concept of Law, Hart expresses his wish to break from Justinian linguistic analysis by referring to the “social context” of words. 27 Nevertheless, Hart still emphasizes, quoting Austin, using “a sharpened awareness of words to sharpen our perception of the phenomena. “28 516 1718 19 2021 222324 Ibid (emphasis added). Krieger (n 13) 159. Lacey, A Life of HAL Hart: The Nightmare and the Noble Dream (POP, Oxford 2004). Lacey, ћAnalytical jurisprudence versus descriptive sociology revisited’ (2006) 84(4) Texas L R 945-982, 948.
Ibid 948. Ibid. Ibid. Ibid. Twining (n 10). See D Sugarcane, ћHart Interviewed: H. L. A. Hart in Conversation with David sugarcane” (2005) FL & society 267-293, 25 26 27 28 Lacey (n 18) 949. Fitzpatrick. The Mythology of Modern Law (Rutledge, London 1992) 6. Hart (n 11). Ibid. Harts intention appears both confused and confusing, but, overall his intention id not appear to be to offer a sociology of law: he was not intending to “explain the character of law in terms of historical and social conditions. 29 Hart states that his work is “primarily designed for the student of jurisprudence’30 and emphasizes the importance of analysis and linguistic philosophy. Hart’s philosophical background and initial contempt for sociology further emphasis this. Nevertheless, it is clear that Hart would not have referred to sociology had he not intended to use it in some way. Finally in relation to the preamble, it must be considered Whether Hart actually attended to this claim. In this regard Fitzpatrick draws Hart along a ‘sociological drift’,32 arguing that a commitment to sociology would have led Hart along a different path.
Fitzpatrick argues that the theory is with desperate metaphor rather than sociolinguistic or sociological observation. ’83 Weight is added by Lets, who laments the hypothetical linguistic convergence”34 employed by Hart, who “assumes that there is some linguistic convergence about the use of legal rather than adducing evidence, Cottrell agrees that this is “not descriptive sociology, speculative philosophy. “36 Lets goes further by asserting that the very act that Hart is attempting to answer such “persistent questions”37 as What are rules? Is “already a step away trot the descriptive approach… Because are not constituted by virtue of something that can be described but by something that puzzles us for non-empirical reasons. “38 Lacey agrees, arguing that “the structural features of Hart’s theoryћ, prevented him from building upon his %sociological claim+ . “39 From this brief selection of criticisms of Hart’s sociological claim it can be seen that he had much to elaborate on if he was to meet the expectations created by his statement in the preface.
Hart’s reaction is superficially satisfying, but deeper inquiry shows them to be particularly awkward. In his 29 30 31 32 Cottrell (n Hart (n 11). Lacey, ћModern Positivism: HAL Hart and Analytical Jurisprudence” in Opener (n 5) 171. Cottrell has also used this term. Cottrell, The Politics of Jurisprudence: A Critical Introduction to Legal Philosophy (Butterscotch, London 1989) 94-96. Lacey notes that Anis has also identified this argument. Ibid. 33 34 35 36 37 38 Fitzpatrick (n 26) 198. Lets (n 1) 193. Ibid. Cottrell (n 32) 95.
The title of the first chapter of The Concept of Law (n 11). Cottrell (n 36). Lacey (n 18) 946. Postscript, Hart’s defense was that “sociological and historical questions were not the ones that he set out to answer:40 such matters were “irrelevant to his concerns”41 and his “allusion to descriptive sociology was an… Attempt to signal his move away from *Austin and Further, when responding to Bodybuilder’s criticism that he had neglected disciplines other than philosophy, Hart further emphasizing the philosophical nature of his project. 3 These rebukes would be comfortingly conclusive to the present inquiry if Hart had not then “insisted with ever greater vehemence on the essentially descriptive nature f his project”44 in answering the natural law critiques. This insistence, while providing some answer to his natural law detractors, left him open once again to the sociological critiques that he had initially dismissed as not being central to his method. Hart seemed to back himself into a corner With no way out. Hart could not maintain both positions and thus, succinctly put, this “new position… Dad the inchoate nature Of the ‘social’ aspect Of his original theory still more vivid. “45 Having considered the text of the preamble to the concept of law and Hart’s background, and having inquired as to whether Hart followed through with the approach that he claimed to be taking, it is appropriate to consider the elements of his theory, and determine to what extent these elements may affect the classification of Hart’s theory as a positivist one, The Critical Reflective Attitude Hart thought Sustains account of the citizen as habitually following a sovereign to be deficient as it “ignores the various social uses of rules. 46 Hart, contrast with those who stress the importance of ‘habits’ *denied+ the possibility of explaining rules solely by reference to external regularities of behavior”47 and thus distinguished his theory from Sustains by arguing that the citizen takes an internal viewpoint to rules,48 “accept*ins+ them as formulating requirements for conduct of a group 4041 4243 Lacey (n 17) 230. Twining (n 10) 127. Lacey (n 17) 230.
Bodybuilder, ћModern Analytical Jurisprudence and the Limits of Its Usefulness” (1956) CICS) LLC Of Pennsylvania L Rev 1080-1086. Hart, Analytic Jurisprudence in Mid-twentieth Century: A Reply to Professor Bodybuilder (1957) 105(7) U of Pennsylvania L R 953- 975. 4445 4647 48 Lacey (n 18) 955. Ibid. Fitzpatrick (n 26) 4. McCormick, H. L. A. Hart (Jurists, Profiles in Legal Theory, Stanford University Press, Stanford 1981) 30. Hart (n 1 1) 88-9. ND adopt*ins+ a critical, reflective attitude toward,ћ Hart, by “paying some regard to sociolinguistic usage”,SO thereby inserted a sociological element into his theory: the internal viewpoint of those governed by the lavas Problematic, it arguing that Hart moves toward sociology, is that, having inserted this sociological element, Hart then appears to remove it by suggesting that it is the officials in a system that determine validity of rules, and therefore only their internal viewpoint is of importance.
The most outspoken critic of Hart in this connection is Fitzpatrick. In a scathing attack, Fitzpatrick makes the assertion that Hart inserted this sociological element of his theory to displace Austin,SO but then proceeds to erase it and “reaffirms the positivist equation of law with official authority. ћ”53 thus excluding the populace from law and relegating the citizen to “a state of Justinian inertness. 54 This criticism can best be understood by considering the position of the citizen under each theory. In Hart’s theory, citizens generally accept and obey the rules, determined by official authority, having considered them with a critical reflective attitude, Otherwise there is mineral disobedience and the system ceases to exist. 55 In Sustains theory, citizens habitually Obey the commands Of a sovereign, or the system ceases to exist.
By comparing these two positions it can be seen that, despite Hart acknowledging the citizen is more than a mere automaton when following rules, ultimately he accords them no greater position in a legal system than Austin; citizens under Hart’s theory can no more determine the validity of the rules, or the existence of the system itself, than those in Sustains theory. Thus, as Fitzpatrick concludes, while Hart is able to depose Austin from the throne of activism using this sociological element, he himself then eliminates that same element.
The internal attitude of the citizen therefore no longer serves a function when elucidating a concept of law; law remains, as in Sustains theory, the obedience of citizens to the rules proffered by an ultimate authority. The impact of this criticism can only be heightened by Hart’s acknowledgment that, even having been endowed with a critical reflective attitude, the citizen can passively follow the 49 so 51 Bales, Hart’s Legal Philosophy: An Examination (Keller Academic Publishers, Doddered 1992) 53-45.
Fitzpatrick (n 26) 4. An interesting aside is that John Finis found that one of Hart”s volumes on Max Weber had been heavily annotated, a sign Of close reading and a strong suggestion of “a Hibernia undertow in The Concept of Law’. Lacey (n 17) 230. 52 53 54 55 Ibid 4, 201 Ibid. Ibid. See Hart’s minimum conditions for the existence off legal system. Hart (n 11) 116. Rules, making it is possible that the internal viewpoint can become confined to the official world. 6 Hart anticipates concern with this dichotomy, asserting that need not be surprised by this duality”, 57 because it is “merely the affliction tooth composite character of a legal system”, as compared with a pre- legal system of only primary rules, where ‘the rules must be widely accepted as setting critical standards of behavior, a function performed in a legal system by officials This, however, does not answer the criticism that Hart, did not ultimately accord any more importance to the internal viewpoint than Austin did, thus nullifying the sociological implications of his original insight.
It also seems to show that Hart acknowledged that he made what Fitzpatrick calls a “mystifying shift” in relation to the introduction and eradication of the internal viewpoint. SO Hart’s Sociological Gesture toward Natural Law In a rare concession to natural law, Hart acknowledges that all legal systems must have a “minimum content of natural alpaca as on some very obvious… Truisms concerning human nature and the world in Which men live, show that… There are certain rules of conduct which any social organization must contain if it is to be viable. 61 While more usually grist for the ‘law and morality debate’ mill, the concession is relevant here as a uniquely sociological gesture towards natural law. Hart asserts that there is a universal moral core to law that does not derive from higher source or deity. This assertion is sociological because Hart suggests that the moral core of law derives from the inherent sociological function of a legal system: facilitating the survival of human societies.
Hart also noted that “the definition of *these truisms* in purely formal terms, without reference to any specific content or social needs, has proved inadequate”,62 again alluding to the sociological underpinnings of his minimum content theory. In addition, this statement seems directed toward the incapacitates of Austin and Shekel’s theories, criticizing their inability to account tort these sociological truisms due to heir formalistic nature, further evidencing Hart’s intention to move away from strict formalism and toward a more socially informed legal theory. 6 57 58 59 62 Hart (n 1 1) 117. Ibid. Ibid. Fitzpatrick (n 26) 4. Hart (n 1 1) 193. Hart (n 11) 192-193. Hart (n 11) 194 While this is a sociological concession to natural law, it is clear that it does not turn Hart’s positivism into a natural law theory, or, more importantly for the present inquiry, into a sociology Of law.
Hart maintains the positivist ‘sources thesis’, as the existence and content of his natural law emanating from human nines, and the ‘contingent connection’ thesis, as Hart does not acknowledge a necessary connection between law and morality, only that some moral content is inevitable in any legal system with the social function remains one of facilitating human survival, The Sociology of Secondary Rules Harts conception of a legal system as the union of primary and secondary rules is yet another example of a sociological thread in his theory.
Hart’s discussion is rooted in the social context that he thought necessary tort explaining the law and he discusses this notion with reference to the social situations of the human beings and societies that ales apply to. He starts by asserting that “only a small community closely knit by ties of kinshipћ. Could live successfully byћ, a regime of unofficial rules” and that larger societies require secondary rules to cure the defects that arise from such a regime_63 The sociological implications of Hart’s conception of secondary rules have been most thoroughly explored by Calvin and Fallers. 4 Calvin has used Hart’s conception of the union of primary and secondary rules as a conceptual framework for analyzing primitive legal systems, illustrating how this union is sociological in nature and, in the process, gathering the kind of empirical sociological evidence that Fitzpatrick thought to be missing from The Concept of Law. Poor instance, he analyses Hovel’s observations of Eskimo ‘Ian’, specifically the way that the Eskimo deal with a two-time murderer by executing him following interviews With the community. 5 Calvin views this, rather than through the lens of coercion, as Hovel’s work is often viewed,66 but through the Hartman lens Of primary and secondary rules. He notes that the procedure is socially recognized privilege of applying physical a rudimentary secondary rule Of enforcement. “67 Furthermore, Calvin notes the sociological origin of what “seems to be a rule of recognition based on custom. “68 What is most interesting about Collie’s idea that Hart’s union of primary and secondary rules can be 6354 Hart (n 11) 92. Calvin, ћThe Sociology of Secondary Rules” (1978) 28 University of Toronto Law Journal 196-214.
Fallers, Law without Precedent (University tot Chicago Press, Chicago 1969) using Hart’s conception of law as the union of primary and secondary rules to highlight distinctions between different societies. 65 66 67 68 Hobble, The Law of Primitive Man (Harvard University Press, HardВ»award 1954) 25-6. Calvin (n 63) 206. Ibid. Ibid. Seed as a conceptual framework to organize information about different legal systems is that this, rather than being a stretching of Harts theory,69 appears to be the use Hart intended to be made Of his theory.
Hart suggested that this union constitutes “a most powerful tool for the analysis of much that has puzzled both the jurist and the political theories, 70 and, having “accepted that his claim to have produced a descriptive sociology’, as opposed to a model which could be used by sociologists, had been renaissance”, 71 thought that a better formulation of his theory would be that it provides the “normative incepts required for a descriptive sociology. 72 This appears to suggest Hart had the broader aim of facilitating complementarily between jurisprudence and sociology, and “an aspiration that jurisprudence be of use to social scientists and sociological scholars. “73 Calvin and Fallers, in utilizing Hart’s theory as a conceptual framework to better describe and understand primitive societies and legal teemed, used Hart’s normative concepts in order to expound a descriptive sociology, a use tot Hart’s theory that Hart himself would surely have advocated.
Hart’s Concept of Law: Positivist Theory or Sociology? To return to the definitions at the beginning fifths paper, Hart’s theory is difficult to place at one of the distinct positions in Storyteller’s framework: it is not wholly internal, because it does contain strands of sociology and looks to inform an understanding of law with social context, yet neither is it a sociology of law, seeking to explain law in terms of social origins and effects.
In any case, it is arguable that such a clear distinction between conceptual and empirical accounts in unhelpful at the level of concept formation, as that level we are always in the intermediate sections of examining phenomena and trying to capture their substantial differences in our definitions”;74 this certainly seems to be the case here. Indeed, Hart’s theory Of law, as discussed, contains elements that tan rightly be characterized as sociological and these elements do distinguish Hart’s theory from those Of positivists generally, Who, like Austin and Kelsey, reject sociology altogether. 5 Both the acclaim and criticism that Hart’s theory attracted is partly a consequence Of this position: a positivist jurisprudential theory, Which nonetheless attempted to incorporate elements of sociology and acknowledge he rigidity and failings of prior positivists in eliminating all extra. Legal elements 69 70 71 72 73 74 75 As Calvin himself suggests that it may be. Ibid 196. Hart (n 11) 98, Lacey (n 17) 233. Written in a notebook of Hart’s. Lacey (n 18) 949. Ibid. Moore (n 2). “In Kelsey”s view a science of law… Resents legal reasoning as a realm of thought and understanding wholly apart from sociological observation,” Freeman (n 9) 8. From jurisprudence. The “protracted, inconclusive and sometimes unedifying debate”76 that Hart’s theory caused is a testament to its unusual position, which s well illustrated by now returning to Raise definition of positivism. 77 Hart’s theory fits squarely within the latter two tenets of positivism enumerated by Razz, While at the Same time infusing these theses with sociological elements.
For instance, Harts gesture toward natural law is a positivistic one, yet at the same time it is sociological, deriving natural law from the social context Of the human beings that use it. Hart also maintained the ‘contingent connection’ thesis in holding that “the existence and content Of law does not require resort to any moral argument’. 8 but instead can be “objectively ascertained by reference to social facts. “79 The reductive semantic thesis is not followed, but, as Razz himself notes, the three theses are “logically independent and one is free to accept any one of them while rejecting the others. 80 Far from suggesting Hart was offering a sociology of law,81 this rejection is simply a manifestation of Harts wish to break free of the confines of reductive semantic statements, used by other positivists,82 appealing instead to social facts and context. While showing that Hart incorporated elements of sociology, it is important not to overstate hem and to bear in mind the limited extent to which Hart followed up on his ‘descriptive sociology’ claim.
Considering Hart’s theory in light tot Freeman’s tenets of sociological theories of law further illuminates the fact that Hart’s theory did not move particularly far toward becoming a sociology of law. Hart did not reject the uniqueness of law,83 nor did he focus on the law in action, but instead the concept of law itself, and he did not use sociological methods. Hart did seem to suggest he was aiming to make a greater move toward sociology when he insisted on the descriptive nature of his project in answering natural law critiques.
However, the ‘finches nature’84 of this sociology and his realization that his reference to ‘descriptive sociology was deficient, as it overstated the extent to which his theory involved sociology and did not properly 76 77 78 79 80 Lacey (n 18) 946. Razz (n 5). Ibid. Ibid 203. Ibid. In this connection it is worth noting that Kelsey also rejected the reductive semantic thesis, though for different reasons, yet Shekels theory is most definitely a positivistic one. Ibid 202-3. 2 83 84 Ibid. See Hart (n IIS 1, commenting on law’s uniqueness. Lacey (n 18) 355. Reflect his intentions and, further confirms that Hart’s was a positivist residential theory of law, seeking only to be informed by social context. Hart himself, with hindsight, thought that a better formulation would have been to say that the book provided the “normative concepts required for a descriptive a formulation more in line with his theory being of use to sociologists than being sociology itself.
Conclusion Hart’s theory has undoubtedly been the catalyst for an unprecedented level of interdisciplinary dialogue, inspiring new theories involving jurisprudential and sociological thought. 86 However, it is clear that Hart visas not offering such a interdisciplinary theory myself: he was merely weaving some sociological threads into an essentially positivist theory, intending to place law in its social context and break free, with a “fresh from the excessive formalism of the past.