Jurisprudence for Foxes

This paper contests Brian Simpson's claim that HLA Hart's book, The Concept of Law, is that of a 'hedgehog', that is, a monistic thinker. It is not. Hart's work is pluralist both in its explanatory concepts and in its evaluative
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  Jurisprudence for Foxes Leslie Green * IArchilochus is supposed to have said that ‘the fox knows many things, but the hedgehog knows one big thing’. No one knows what Archilochus meant. But we know what Isaiah Berlin meant in quoting him. 1  Berlin offered the fragment as a metaphor for two types of thinkers: those who have one leading idea and understand other things in terms of it, and those who have many independent and even conflicting ideas; the monists versus the pluralists. Berlin knew that the distinction is a rough one, but he thought it captured a broad difference of outlook. His own sympathies lay with the pluralists: with Aristotle as against Plato, Mill as against Marx, Goethe as against Hegel. The legal historian Brian Simpson saw himself as a member of Berlin’s party. Curiously, however, he thought that set him against the legal philosopher HLA Hart, whose book The Concept of Law  2  is the subject of Simpson’s Reflections . 3  Simpson writes: Hart’s general analysis of the structure of a legal system was not based on a prolonged study of complex legal arrangements, with a dawning awareness that beneath complexity there could be discerned simplicity … Instead the simplicity he discerned existed in the very nature of things; given the fact, if that is what you call it, that the USA has a legal system, it follows that its legal system conforms to Hart’s simple model. This plainly identifies Hart as a hedgehog. 4   This is not just a classificatory comment; it is a criticism. Simpson distrusts simplicity, especially simplicity that ignores the contingent, local variability in law to which the historian or comparativist is sensitive. Perhaps he does not wholly reject the possibility that after ‘prolonged’ empirical inquiry we may be able to say some true and important *  Professor of the Philosophy of Law and Fellow of Balliol College, University of Oxford, UK; and Professor of Law and Distinguished University Fellow, Queen’s University, Canada. Thanks to Nicola Lacey for helpful discussion on an earlier draft of this paper. 1 Isaiah Berlin, The Hedgehog and the Fox: An Essay on Tolstoy’s View of History   (Weidenfeld & Nicolson, 1953). 2 HLA Hart, The Concept of Law   (Clarendon Press, 1961); 3rd edn: Introduction and Notes by Leslie Green; Penelope A Bulloch and Joseph Raz (eds) (Oxford University Press, 2012). 3 AW Brian Simpson, Reflections on ‘The Concept of Law’   (Oxford University Press, 2011). 4 Ibid  , 140. (2012) 3(2) Transnational Legal Theory 150–160DOI: 10.5235/TLT.3.2.150  151  Jurisprudence for Foxes things about law in general, but he thinks the odds are against it. And the notion that analytical jurisprudence might turn up anything of that sort he treats as utterly fanciful.Exactly how Simpson arrives at his conclusion is unclear, however, for his Reflections  presents no relevant argument in the philosophy of social science and no convincing refutation of any of Hart’s substantive theses. What it does offer is a miscellany of remi-niscences about the context in which Hart’s book was conceived and various intimations that, if it was not inevitable that Hart should turn out to be a hedgehog, then at least it was not surprising. (‘[T]he Chancery division was not the place to broaden your general legal education or provide one if you never had one.’) 5  Simpson does give us a fascinat-ing glimpse of Oxford of the 1950s and ’60s (though perhaps most fascinating to those who have studied or taught there). He also gives us some insight into the influences on his own thought and character. As such, the book is a lively supplement to Nicola Lacey’s excellent biography of Hart. 6  Simpson confirms much of what Lacey tells us while bring-ing a few points into sharper focus. For example, he plausibly argues that Peter Winch had a bigger influence on Hart’s methodology than did Max Weber, and he suggests that an obscure passage by John Salmond may have been the srcin of Hart’s idea of ‘second-ary’ rules (ie rules that regulate other rules). Apart from that, however, there aren’t many surprises here for the historian of ideas and there are none at all for the legal philosopher. Those hoping for insight into Hart’s relationship to Oxford’s linguistic philosophy of that period will be disappointed: Simpson just accepts the conventional view that Hart must have been influenced by it because he said he was and because it was very much in the air. The fact that appeals to ordinary language are few and far between in The Concept of Law   goes unnoticed. 7  Perhaps if one can deduce on a priori grounds what a text must   say, or predict on ideological grounds what it might well   say, the sort of close attention to argument that might illuminate this or other philosophical issues just feels like wasted energy.IILet us in any case expend a little energy on Simpson’s charge that Hart is a monist, a hedgehog. There at least two kinds of monism: what we might call explanatory   mon-ism of the sort found in, say, Marx’s theory of history, and evaluative  monism, as in Bentham’s theory of value. These are logically independent: one could accept that there 5 Ibid  , 138. Hart himself saw his years in practice in a less jaundiced light. In a 1988 interview he said: ‘It made me understand the law in a more practical way than if I’d studied for a law degree. It provided me with a vast range of examples about which to philosophize. It stimulated me as a philosopher, because I saw that in the law there were questions which arose, and answers given, which could be explored philosophi-cally.’ See David Sugarman, ‘Hart Interviewed: HLA Hart in Conversation with David Sugarman’ (2005) 32  Journal of Law & Society   267, 271. 6 Nicola Lacey,  A Life of HLA Hart: The Nightmare and the Noble Dream  (Oxford University Press, 2004). 7 See Leslie Green, ‘The Concept of Law Revisited’ (1996) 94  Michigan Law Review   1687.  152 Transnational Legal Theory  is a single explanatory mechanism or conceptual structure underlying a field and yet deny that the field answers only to one basic moral or political value. I shall say some-thing about both monisms, though Simpson seems interested only in a version of the first. I say ‘a version’ because, although Hart does offer a sort of explanation of the nature of law, it is obviously not an empirical, predictive one. It is a philosophical explanation. It aims to explain law in the way that, say, Plato’s Symposium  aims to explain love, not in the way that Darwinism aims to explain sexual attraction. But the difference between philosophical and empirical explanation is not the difference between hedgehogs and foxes. As Simpson knows, Karl Marx and Arnold Toynbee were monistic hedgehogs if ever there were any. The monist/pluralist split is thus not a divide between  philosophy and history; it is a divide within  each of them. Showing that someone’s methods are philosophical does nothing to show that his account is monistic; just as showing that someone’s methods are empirical or historical does nothing to certify that his account is pluralistic.So what is the One Big Thing around which Hart supposedly organises his explana-tion of law? Perhaps it is the idea of a social rule. (Hart himself later referred to it as the ‘master concept’.) 8  The concept of a rule is indeed key to Hart’s explanations of obliga-tion, authority, legal systems and justice. But an appearance of unity here is misleading. For Hart points out that the relevant rules are of very different kinds: there are manda-tory rules and power-conferring rules, primary rules and secondary rules, enacted rules and customary rules, and the differences among them are crucial for understanding law. That is why Hart so strenuously opposes the monisms of John Austin or Hans Kelsen, who thought all legal rules are essentially the same. But maybe Hart’s One Big Thing is not a rule after all, but the concept of a rule system , that is, a lot of different rules uni-fied by relations among them and adding up to what Hart famously called a ‘system of primary and secondary rules’. He certainly argues that this is ‘the heart of a legal system’ 9  and that it is necessary for any adequate explanation of legal concepts such as validity, sources, and jurisdiction. So the notion of a rule system does a lot of work in explaining law. But not all of the work. Hart cautions: we shall conclude this chapter with a warning: though the combination of primary and sec-ondary rules merits, because it explains many aspects of law, the central place assigned to it, this cannot by itself illuminate every problem … [it] is at the centre of the legal system; but it is not the whole … 10   Notice that the device in question is said to be at the centre of the explanation of legal systems , not at the centre of the explanation of legal  phenomena . Actually, it is not even the whole explanation of the former, since no system of rules is a legal system unless 8 Sugarman (n 5) 282. 9 The Concept of Law   (n 2) 98. 10 Ibid  , 99.  153  Jurisprudence for Foxes it regulates a certain range of conduct (Hart’s ‘minimum content’ thesis) and no legal system exists unless it is generally effective amongst the population it governs (Hart’s ‘efficacy’ thesis). And then there are all the other legal phenomena on which rules and systems cast almost no light, including things that can only be understood with the help of the concepts of intention, choice, and discretion. So, far from being monistic, Hart’s explanation of law is starting to look like a jumble of disparate elements.Maybe Simpson’s fundamental objection is different. Perhaps he doesn’t think that Hart’s work revolves around One Big Idea, but that the various ideas that Hart does have lack the power to explain important features of our own legal systems, features better explained by Simpson’s preferred historical approach. That is suggested by some themes in Simpson’s well-known paper, ‘The Common Law and Legal Theory’, 11  and repeated here in Reflections . Simpson says: [I]t seems to me that the common law system is properly located as a customary system of law in this sense, that it consists of a body of practices observed and ideas received by a caste of lawyers, these ideas being used by them as providing guidance in what is conceived to be the rational determination of disputes … 12 Such customary law is created by acts that ‘are not directed to the making of law at all’ 13 —so it is misleading to think of it as in some way ‘willed’ or ordered as Bentham or Austin did. Common law rules are ‘similar to grammarians’ rules’ in that they ‘serve as guides to proper practice since the proper practice is in part the normal practice …’. 14  The importance of such customary rules, including those that capture standards like ‘reasonableness’ or ‘common sense’, ‘means that the law is inherently to some degree uncertain, and that the process of judicial decision cannot ever perfectly conform to the ideal of the rule of law’. 15 Much of this is correct—but Hart agrees  with it. It is Hart who first argues that not only common law but even statutory law rests on nothing more solid than a body of practices and ideas used by a professional caste. 16  It is Hart who argues that the sort of practices that make up customary law cannot be understood as willed, not even tac-itly. 17  And it is Hart who insists time and again that the law is partly uncertain and adjudication partly discretionary. 18  If there is any point of disagreement here, it must be connected with Simpson’s assertion that common law can be ‘located as’ customary law. 11 AWB Simpson, ‘The Common Law and Legal Theory’ in AWB Simpson (ed), Oxford Essays in Jurisprudence  (Second Series, Oxford University Press, 1973) 77. 12 Ibid  , 94. 13 Ibid  , 81. 14 Ibid  , 94. 15 Reflections ,   150. 16 The Concept of Law   (n 2) 107. 17 Ibid  , 47. 18 Ibid  , 124–36.  154 Transnational Legal Theory  That common law is in some ways like  customary law is not in doubt—it need not be created by any act intended to create law; it need not have any canonical formulation; it evolves dynamically. The question is whether common law is a kind   of customary law. Simpson does not show that it is, and we have reason to think it is not. In every legal sys-tem, whether common law, civilian or religious, those who apply law can also make law, at least by applying general norms to particular fact situations (thus making rulings ) and often by bringing it about that they shall apply to classes of fact situations (thus mak-ing rules ). According to the self-image of a civilian system, they can do the latter only by accident and indirection, for all the law is supposed to be in the code. Nonetheless, by repeated applications of a passage in the code civilian courts gradually build up agreed interpretations of what a rule requires. Over time and often supported by doctrine ( la doctrine ) these may get imputed back to the code itself, though that is a fiction. Com-mon law courts share that kind of gradual creative power, but they also have another power that gives them a shortcut. The rulings of our high courts can make law forthwith, binding not only on the parties but on other courts in future cases. So common law is importantly different from customary law: it does not require any special length or depth of practice to become binding. There is, however, one issue on which Hart and Simpson may disagree. Hart says that each legal system has an ultimate rule of recognition that identifies the fundamental sources of law in that system and requires courts to apply the law so identified. Simpson calls this a ‘dogmatic assumption’ 19  no better than Kelsen’s presupposition that there is a ‘basic norm’. What precisely is the dogma? Is it the claim that some of the recognition rules in every legal system are ultimate , ie not validated by any other rule of that system? Or is it the claim that every legal system has exactly one ultimate recognition rule? It is not seriously arguable that there are no  recognition rules at all—that there is nothing in English law that determines when a marriage is valid, a ruling intra vires , an order bind-ing, or a treaty adopted—all of these are determined by rules of positive law. 20  Are we then to assume that for every positive law there is a higher, legal, recognition rule vali-dating it? If at some level we fail to locate one should we then press on in a ‘protracted study of complex legal arrangements’? If we do, things may get very protracted indeed. There will be no end in sight. But why assume (dogmatically) that if only we keep on looking for positive law we must eventually find some? Why not accept that when legal recognition rules seem to run out, they probably have and that we have therefore hit rec-ognitional bedrock? Admittedly, that will not show that they all bottom-out in the same place: it is possible that, say, common law and statute law in England rest on different ultimate foundations. Hart does not explicitly consider that possibility, and if that is the basis for Simpson’s objection it is a fair one. And it is not a trivial point. It shows that we cannot tell the difference between two parts of one legal system and two different legal 19 Reflections , 151. 20 ‘Determined’ does not mean ‘conclusively determined for all possible cases’. Positive recognition rules, like all legal rules, are partly indeterminate.
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