hart and the concept of law and per genus et differentiam

As I review the work, I will try to point out some of Hart's indebtedness to his time and the world of analytical philosophy at Oxford in the 1950s, where his ideas were hammered out. Let this essay, however, take him at face value and present what he says he is trying to do in this work. In the Preface he places himself in the tradition of analytical jurisprudence (going back to Bentham and Austin in England) but also states that he hopes his work to be read as an essay in descriptive sociology.

His first chapter, entitled Persistent Questions, brings us into what he calls the "perplexities of legal theory." These perplexities arise because of the wide range of definitions of law among legal scholars even though the generally educated person would have a pretty clear understanding of what law is. How is it, Hart wants to know, that there appears to be so much disagreement about the nature of law when "any educated man" is able to identify the salient features of legal systems? The question of what law is cannot immediately be answered, but it is an indication to him that significant issues swirl around its defintion. One can best get at the definitional issue by exploring what he calls "three recurrent issues" in law.

Freezing the Action

Before moving to the three issues which Hart sees as sort of perennial problems in defining law, I think I want to pause and ask where we are so far. Is the question, "What is law?" a question which concerns me or most people in 2005? Probably not. Does it not concern me because I lack a philosophical mind? Probably not. It doesn't concern me for two reasons. First, it was a question for the 1950s because of the peculiar needs/lacks of the time in English legal thinking. When Hart framed the question he was trying to revive a moribund English jurisprudence, and a discussion on the nature of law was chosen to help stimulate that revival. And, I think, it did.

But, second, in 2005 jurisprudence or legal thinking is anything but moribund. There are so many people writing about jurisprudential themes, about the "reach" of law, about the "conversation" of law with other disciplines, about the way law is being used/manipulated in our culture today that to ask the question, "What is Law?" is sort of like wandering into a crowd of 20 somethings now and asking them what they find groovy about the Kingston Trio. There are very few people in 1961 who would have doubted their groovyness; there are few 20 somethings today that have heard of them, much less the concept of groovyness. Much rather hear Gwen Stefani at Madison Square Garden.

But where should jurisprudence in 2005 take its start? That is the $64,000 question (to take another 1960s example), but I have some answers to that question. But, you will have to wait. This page is about explicating Hart. We may get to 2005 eventually. Ok, I will tip my hand a little bit. Any jurisprudence that makes sense in 2005/06 will focus on the issue of the relationship of law to power, politcal power, economic power and the way that law functions not simply in buttressing our system of government but the way that it functions to make sure that our values are either encouraged upon/crammed down on the rest of the world. This is only one idea, so let's return to Hart.

Hart's Three Recurrent Issues

Let's go back to 1961 and pick up Hart's argument. The three perennial issues or questions which "come together in the form of a request for a definition of law" are: (1) How do law and legal obligation differ from, and how are they related to, orders backed by threats? This is the "Austinian" issue, and it shows that Hart is dependent on the tradition kicked off by that 19th century thinker in asking the question of what law is. Then, (2) What is the relationship of law and morality? There are some laws of the coincidence between prohibitions of law and morals--such as the prohibition on killing. But what is the relationship between law and certain aspects of morality? Finally, (3) he asks a more general question, What is the nature of the rules that govern a legal system? Subsidiary questions to this include "What are rules?" and "What does it mean to say that a rule exists" (p.8)?

He goes on to distinguish nicely between mandatory rule, social custom and "convergent social behavior," and gives amusing examples about wearing hats in church, complying with table manners or going weekly to the movies. It is interesting that Dworkin uses some of the same examples (especially the one about Englishmen going to the movies weekly) in his first essay in Taking Rights Seriously. And here I was, thinking all the time that Dworkin was the original thinker....

Freezing the Action Once Again

Are any of these questions our questions? Do these "recurrent issues" recur for us? I don't really think so, except possibly the second one on the relationship of law and morality. Austin is easy to destroy on the first point--that the essence of law is simply the command of the sovereign--and Hart and Dworkin, more so Hart, take great pleasure in pointing out the limitations of an Austinian system that are pretty self-evident to anyone who has thought about law for about 30 minutes. Is there anyone running around today asking, "What is a rule?" and then trying to spend a lot of time differentiating between a rule and a law? I don't think so. His distinction among law, convention and convergent social behavior is pretty illuminating in its own right and it shows us that we are reading a pretty sharp person, who is attuned to the careful use of language in differentiating things. But these issues, so important to Hart, are seemingly important more because the tradition of legal thinking with which he is identified say they are important than because of any "intrinsic" (whatever that may mean) importance of the questions in legal discourse.

Concluding

After his longish discussion on the three recurrent issues that, for Hart, make the definition of law seemingly urgent, he closes with a little discussion of definitions. He inserts this because he wants to ask what kind of definition might "pass muster" for a definition of law. Is, for example, the definition per genus et differentiam useful? Probably not because to define law by something "bigger" or more inclusive than law is perhaps doomed to failure. But then the discussion ends, and we are off to his consideration of Austin.

So we know, by the end of chapter 1, that important to Hart will be the notion of law as rule, the connection (unspecified) between law and morality, and the desire to distance himself from John Austin. I think we have made a good start.

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