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One of the greatest contributions that H.L.A. Hart’s The Concept of Lawmade to the study and understanding of the nature of law was his insight that a legal system is not just made up of primaryrules that require people to act in particular ways (such as not harassing other people).
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See, in particular, CL, 94–97 (see list of abbreviations, p. xv).
CL, 234; also CL, 92.
This paragraph follows Hart’s argument in CL, 92–97.
Waldron, ‘Who needs rules of recognition?’ in Adler and Himma (eds), The Rule of Recognition and the US Constitution (Oxford University Press, 2009).
Ibid, section VIII.
CL, Postscript, 258.
See Shapiro, ‘On Hart’s way out’ (1998) 4 Legal Theory 469; and his book Legality (Harvard University Press, 2010), 36–40.
To the same effect, see Waldron, ‘All we like sheep’ (1999) 12 Canadian Journal of Law and Jurisprudence 169, 173.
See CL, 256, arguing that the rule of recognition is a ‘conventional social rule’ and ‘is in effect a form of judicial customary rule existing only if it is accepted and practised in the law-identifying and law-applying operations of the courts’.
Brian Leiter disagrees with this, arguing that even if Hart’s theory of law cannot explain ‘theoretical disagreement’, it is hard to see why we would get rid of it given its overwhelming success in explaining most features of our legal system: see his ‘Explaining theoretical disagreement’ (2009) 76 University of Chicago Law Review 1215, 1220, 1226–28. He draws an ana-logy with the theory of gravity: we would not think that theory wrong just because it makes it difficult to explain why the universe is expanding. But – to draw another scientific analogy – Newton’s laws of motion were hugely successful in explaining the movement of bodies in the solar system, except for the one tiny fact that Mercury was always slightly out of the position one would predict it would occupy applying Newton’s laws. This fact resulted in the eventual overthrow of Newton’s laws of motion in favour of Einstein’s theory of relativity. Scott Shapiro’s ‘The Hart-Dworkin debate: a short guide for the perplexed’ in Ripstein (ed.), Ronald Dworkin (Cambridge University Press, 2007) is more acute to recognise the importance of the phenomenon (if such it is) of ‘theoretical disagreement’ for the validity of Hart’s concept of law.
437 US 153 (1978).
The phrase originates from the work of Hans Kelsen, who argued – using the Midas analogy – that everything the state touches turns into law, and that everything the law refers to turns into law.
For the possibility that different judges who are committed to the same rule of recognition might disagree over how it applies, see Coleman, ‘Negative and positive positivism’ (1982) 11 Journal of Legal Studies 139, 152–54, 157. Also CL, 148–50, 258; Endicott, ‘Are there any rules?’ (2001) 5 Journal of Ethics 199.
See Stephen, Science of Ethics, 1st edn (1882), 137.
Dicey, Introduction to the Study of the Law of the Constitution, 1st edn (1885), ch. 1 (‘The nature of Parliamentary sovereignty’), text at fn. 56.
Stephen argued (and Dicey agreed) that: ‘If a legislature decided that all blue-eyed babies should be murdered, the preservation of all blue-eyed babies would be illegal; but legislators must go mad before they could pass such a law, and subjects be idiotic before they could submit to it.’ But as Trevor Allan has pointed out to one of us in private conversation, the judges are ‘subjects’ too – so by Stephen’s own lights, we could expect the judges to refuse to give effect to the statute, thereby establishing a practice of refusing to accept, as a rule, that this kind of statute was valid law.
Hart coined the memorable phrase ‘all that succeeds is success’ (CL, 153) to describe this process of development of the rule of recognition: ‘when courts settle previously unenvisaged questions concerning the most fundamental constitutional rules, they get their authority to decide them accepted after the questions have arisen and the decision has been given. Here all that succeeds is success. … a … piece of judicial law-making concerning the very sources of law may be calmly “swallowed”. Where this is so, it will often in retrospect be said, and may genuinely appear, that there always was an “inherent” power in the courts to do what they have done. Yet this may be a pious fiction, if the only evidence for it is the success of what has been done.’
Gardner, ‘Some types of law’ in Law as a Leap of Faith (Oxford University Press, 2012), 71–72, 73–74.
Brian Leiter calls this the ‘error theory’ explanation of ‘theoretical disagreement’ in his ‘Explaining theoretical disagreement’ (above, n. 26), 1224.
Brian Leiter calls this the ‘disingenuity account’ of ‘theoretical disagreement’: ibid.
22 NE 188, 115 NY 506 (1889).
A recent, and possible, example of theoretical disagreement among the judges is provided by the UK Supreme Court’s decision in R (Miller) v Secretary of State for Exiting the European Union  UKSC 5, where the majority eight Supreme Court Justices disagreed with the minority three over whether European Union law counted as an independent source of law under the UK constitution and therefore could only be removed as a source of law through Parliamentary legislation (rather than through the government’s simply exercising its prerogative to withdraw the UK from the EU’s founding treaties). The majority ruled that EU law did, indeed, constitute a source of law under the UK constitution ( ibid, at ) while the minority argued that EU law only affected UK law because the European Communities Act 1972 allowed it to do so, and the operation of the 1972 Act ‘is inherently conditional on the application of the EU Treaties to the UK, and therefore on the UK’s membership of the EU’ (at , per Lord Reed). However, Miller’s status as an example of theoretical disagreement is weakened by the fact that the majority insisted that they agreed with the minority that the rule of recognition under UK law had not been altered by the UK becoming a member of the EU (at ). The intellectual mess this makes of the majority’s judgment is well exposed by Elliott, ‘The Supreme Court’s judgment in Miller: in search of constitutional principle’ (2017) 76 Cambridge Law Journal 257, 268–73. The fact that the majority in Miller were unwilling to say that they disagreed with the minority over what the rule of recognition in UK law is provides strong support for Hart’s views.
A recent survey of non-judicial UK officials (such as civil servants and chief constables) reported in Howarth and Stark, ‘HLA Hart’s secondary rules: what do ‘officials’ really think?’  International Journal of Law in Context 1 also shows a very high degree of agreement among such officials as to what the UK rule of recognition is. The only disagreements that the authors are able to find are produced by the authors themselves asking the surveyed officials to pronounce on recherché questions such as whether international law counts as a source of law under the UK constitution.
Dworkin, ‘The model of rules I’ in his Taking Rights Seriously (Duckworth, 1977), 17.
Soper, ‘Legal theory and the obligation of a judge: the Hart/Dworkin debate’ (1977) 77 Michigan Law Review 473; Lyons, ‘Principles, positivism and legal theory’ (1977) 87 Yale Law Journal 415; Coleman, ‘Negative and positive positivism’ (above, n. 30).
The most extended treatment of this form of positivism is Waluchow, Inclusive Legal Positivism (Oxford University Press, 1994).
 2 AC 605.
Confusingly, Matthew Kramer reserves the term ‘inclusive legal positivism’ for the claim (1) that you can have a legal system where law is bounded by morality, and uses the term ‘incorporationism’ for the claim (2) that you can have a legal system where law is generated by morality: Kramer, ‘How moral principles can enter into the law’ (2000) 6 Legal Theory 83. There seems no reason for using the term ‘inclusive’ for claim (1), and doing so creates a lot of confusion as the term ‘inclusive legal positivism’ is used by others to describe the belief that claims (1) or (2) or both (1) and (2) are true. In the text we repeatedly use the term ‘soft (or inclusive) legal positivism’ to describe this belief, in order to make it clear at every turn that we are not using the phrase ‘inclusive’ in the restricted way that Kramer does.
See above, pp. 50–51.
See Dworkin, ‘A reply by Ronald Dworkin’ in Cohen (ed.), Ronald Dworkin and Contemporary Jurisprudence (Duckworth, 1984), 247–48.
CL, Postscript, 251.
Dworkin, ‘The model of rules II’ in his Taking Rights Seriously (Duckworth, 1977); and Dworkin, ‘A reply by Ronald Dworkin’ (above, n. 54), 253.
See above, pp. 52–53.
Indeed, Dworkin discusses precisely these issues in LE, 80–85. See also his Justice for Hedgehogs (Harvard University Press, 2011).
See Dworkin, ‘A reply by Ronald Dworkin’ (above, n. 54), 250: ‘I had thought it was part of Hart’s ambition (and of the ambition of positivists generally) to make the objective standing of propositions of law independent of any controversial theory either of meta-ethics or of moral ontology.’
CL, Postscript, 254.
Raz makes the same point with the example of an arbitrator, who is asked to decide what is fair in a dispute between two parties. All the parties to the dispute are told is that the arbitrator has reached his decision and he has made the right decision. See Raz, ‘Authority, law and morality’ in his Ethics in the Public Domain (Oxford University Press, 1994), 203.
Raz, ‘On the nature of law’ in his Between Authority and Interpretation (Oxford University Press, 2009), 114–15.
See above, p. 41.
For a very balanced discussion of the issue, see Waluchow, ‘Four concepts of validity: reflections on inclusive and exclusive positivism’ in Adler and Himma (eds), The Rule of Recognition and the US Constitution (above, n. 10).
Raz, ‘Incorporation by law’ in his Between Authority and Interpretation (above, n. 63), 193–202.
See above, p. 53.
Raz, ‘The inner logic of the law’ in his Ethics in the Public Domain (above, n. 62), 225–34. In his The Authority of Law, 2nd edn (Oxford University Press, 2009), 47, fn. 8, Raz argues that positivists who believe that sometimes the identification of some laws turns on moral arguments ‘have to provide an adequate criterion for separating legal references to morality, which makes its application a case of applying pre-existing rules, from cases of judicial discretion in which the judge, by resorting to moral considerations, is changing the law. I am not aware of any serious attempt to provide such a test’.
Dworkin, ‘Thirty years on’ (2002) 115 Harvard Law Review 1655, 1673.
Coleman, ‘Authority and reason’ in George (ed.), The Autonomy of Law (Oxford University Press, 1996), 307.
Eighth Amendment to the US Constitution.
On which debate, see Parfit, On What Matters: Volume Two (Oxford University Press, 2011), and below, Chapter 8.
Radbruch, ‘Statutory lawlessness and supra-statutory law (1946)’ (2006) 26 Oxford Journal of Legal Studies 1 (trans. Bonnie and Stanley Paulson).
Hart, ‘Positivism and the separation of law and morals’ (1958) 71 Harvard Law Review 593, 619.
CL, 210. Hart also argued in The Concept of Law that from an academic point of view ‘nothing is to be gained in the theoretical or scientific study of law as a social phenomenon by adopting the [view that iniquitous rules cannot have the status of law]: it would lead us to exclude certain rules even though they exhibit all the other complex characteristics of law. Nothing, surely, but confusion could follow from a proposal to leave the study of such rules to another discipline, and certainly no history or other form of legal study has found it profitable to do this’ (CL, 209). However, mindful of Hart’s later admonition that ‘the criteria [for legal validity] provided by a system’s rule of recognition’ are not ‘derived from the meaning of the word “law”’ (CL, 247) this academic argument as to the desirability of extending the term ‘law’ to cover iniquitous rules cannot be used as an argument for saying that a rule of recognition in a particular legal system will allow iniquitous rules to count as valid law. And indeed, as we have seen (above, p. 60), Hart did accept the soft (or inclusive) positivist position that in a particular legal system its rule of recognition could be such that iniquitous rules do not count as valid law.
Gardner, ‘Legal positivism: 5½ myths’ (2001) 46 American Journal of Jurisprudence 199, 202.
See above, pp. 6–7.
Fuller, The Morality of Law, rev’d edn (Yale University Press, 1969), 106.
Fuller, The Morality of Law (above, n. 81), 33–38.
CL, 207 (observance of Fuller’s precepts is ‘unfortunately compatible with very great iniquity’); Hart, ‘Review of The Morality of Law’ (1965) 78 Harvard Law Review 1281, 1284 (Fuller’s eight precepts ‘are essentially principles of good craftsmanship … They are independent of the law’s substantive aims just as the principles of carpentry are independent of whether the carpenter is making hospital beds or torturers’ racks’).
Alexy, The Argument from Injustice: A Reply to Legal Positivism (Oxford University Press, 2002) (trans. Bonnie and Stanley Paulson). See also Alexy, ‘A defence of Radbruch’s formula’ in Dyzenhaus (ed.), Recrafting the Rule of Law (Hart Publishing, 1999).
Gardner, ‘How law claims, what law claims’ in Klatt (ed.), Institutionalized Reason: The Jurisprudence of Robert Alexy (Oxford University Press, 2012).
See above, p. 41.
For the same point, see Dworkin, ‘Thirty years on’ (2002) 115 Harvard Law Review 1655, 1668–69.
This is not so different from the way the German Nazi government reacted to the prospect of impending defeat at the end of World War II.
This was something that Hart himself was happy to concede: CL, 155, 213.
go back to reference Hart, CL, chs 5.3 and 6. Hart, CL, chs 5.3 and 6.
go back to reference Green, ‘The Concept of Law Revisited’ (1996) 94 Michigan Law Review 1687. Green, ‘The Concept of Law Revisited’ (1996) 94 Michigan Law Review 1687.
go back to reference Raz, ‘Authority, law, and morality’ in Ethics in the Public Domain (Oxford University Press, 1994). Raz, ‘Authority, law, and morality’ in Ethics in the Public Domain (Oxford University Press, 1994).
go back to reference Gardner, ‘Legal positivism: 5½ myths’ (2001) 46 American Journal of Jurisprudence 199. Gardner, ‘Legal positivism: 5½ myths’ (2001) 46 American Journal of Jurisprudence 199.
go back to reference Dworkin, Taking Rights Seriously (Duckworth, 1977), chs 1 and 2. Dworkin, Taking Rights Seriously (Duckworth, 1977), chs 1 and 2.
go back to reference Dworkin, LE, ch. 1. Dworkin, LE, ch. 1.
go back to reference Shapiro, ‘The Hart-Dworkin debate: a short guide for the perplexed’ in Ripstein (ed.), Ronald Dworkin (Cambridge University Press, 2007). Shapiro, ‘The Hart-Dworkin debate: a short guide for the perplexed’ in Ripstein (ed.), Ronald Dworkin (Cambridge University Press, 2007).
go back to reference Leiter, ‘Explaining theoretical disagreement’ (2009) 76 University of Chicago Law Review 1215. Leiter, ‘Explaining theoretical disagreement’ (2009) 76 University of Chicago Law Review 1215.
go back to reference Gardner, ‘Some types of law’ in Law as a Leap of Faith (Oxford University Press, 2012). Gardner, ‘Some types of law’ in Law as a Leap of Faith (Oxford University Press, 2012).
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