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Realism, Hard Positivism, and Conceptual Analysis

Published online by Cambridge University Press:  16 February 2009

Brian Leiter
Brian Leiter
Affiliation:
University of Texas, Austin
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The American Legal Realists, as I read them, are tacit legal positivists: they presuppose views about the criteria of legality that have affinities with positivist accounts of law in the sense that they employ primarily pedigree tests of legal validity. Ever since Ronald Dworkin's well-known critique of H.L.A. Hart's positivism a generation ago, however, it has been hotly contested whether there is anything about positivism as a legal theory that requires that tests of legal validity be pedigree tests. So-called Soft or Inclusive versions of positivism are willing to relax the restrictions on the content of a Rule of Recognition to admit non-pedigree criteria of legal validity; Hard or Exclusive versons of positivism deny that such a move is compatible with the central commitments of positivism. Hard Positivism, of which Joseph Raz has been the leading proponent, thus competes with various Soft Positivisms, defended by, among others, Coleman, Lyons, Soper, Waluchow, and now, explicitly, Hart himself in the “Postscript.” If the Realists are positivists, as I claim, then it cannot be the case that Soft Positivism is a genuinely positivistic doctrine. But there is more at stake here than just labels. Realist arguments for the indeterminacy of law—arguments central to the whole Realist enterprise—depend crucially on their tacit Hard Positivism. If, in fact, positivism has a more relaxed view of the criteria of legality than Hard Positivism supposes, then Realist arguments depend on unsound tacit premises about legal validity. What is at stake, then, is not whether Realists should be called (tacit) “Positivists” or merely (tacit) “Hard Positivists,” but whether their underlying view of the criteria of legality is sound. It can only be so if the best arguments favor Hard Positivism.

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Articles
Information
Legal Theory , Volume 4 , Issue 4: Special Issue: Postscript to H.L.A. Hart's The Concept of Law, Part II , December 1998 , pp. 533 - 547
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Copyright © Cambridge University Press 1998

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References

1. For the arguments to this effect, see Leiter, Brian, Legal Realism, in A Companion to the Philosophy of Law and Legal Theory 261, 268–69Google Scholar (Patterson, Dennis ed., 1996Google Scholar) and Leiter, Brian, Legal Realism and Legal Positivism Reconsidered [forthcoming].Google Scholar

2. See, e.g., Raz, Joseph, Legal Positivism and the Sources of Law, in The Authority of Law (1979)Google Scholar [hereinafter in the text as LPSL] and Raz, Joseph, Authority, Law and Morality, 68 The Monist 295 (1985) [hereinafter in the text as ALM].CrossRefGoogle Scholar

3. Some writers call the view “Inclusive Positivism” or “Incorporationism.” I follow Hart's terminology in the text, even though “soft” runs the risk of a pejorative connotation.

4. Coleman, Jules, Negative and Positive Positivism, inGoogle Scholar Ronald Dworkin and Contemporary Jurisprudence (Cohen, Marshall ed., 1983Google Scholar) [hereinafter in text as NPP]; Coleman, Jules, Incorporationism, Conventionality, and the Practical Difference ThesisGoogle Scholar, Legal Theory [this issue; hereinafter “Incorporationism” by page number in the manuscript]; Lyons, David, Principles, Positivism and Legal Theory, 87 Yale L. J. 415 (1977)CrossRefGoogle Scholar; Soper, E. Philip, Legal Theory and tlie Obligation of a Judge: The Hart/Dworkin Dispute, 75 Mich. L. Rev. 473 (1977)CrossRefGoogle Scholar; Waluchow, W.J., Inclusive Legal Positivism (1994)Google Scholar; Hart, H.L.A., “Postscript,” in The Concept of LawGoogle Scholar (Bulloch, P. & Raz, J. eds., 2d ed. 1994Google Scholar) [hereinafter in the text as “Postscript”]. Leslie Green argues, plausibly, that The Concept of Law by itself does not support attributing Soft Positivism to HarL See Green, Leslie, The Concept of Law Revisited, 94 Mich. L. Rev. 1687, 1705–7 (1996).CrossRefGoogle Scholar

5. See Leiter, Brian, Legal Indeterminacy, 1 Legal Theory 481 (1995)CrossRefGoogle Scholar and Leiter, , Legal Realism, supra note 1 at 268–69.Google Scholar

6. This differs slightly from the characterization offered in Jules Coleman & Leiter, Brian, Legal Positivism, in A Companion to the Philosophy of Law and Legal Theory 241Google Scholar (Patterson, Dennis ed., 1996Google Scholar), a characterization that now seems to me too narrow to do justice to the full panoply of positivist doctrines.

7. See Coleman, , NPP, supra note 4.Google Scholar Coleman arrives at this doctrine by characterizing the Separation Thesis with a modal operator, that is, there is no “necessary” relationship between law and morality. (In fact, Hart's classic 1958 paper does not use the modal operator. See Hart, H.L.A., Positivism and the Separation of Law and Morals, 71 Harv. L. Rev. 593 (1958)).CrossRefGoogle Scholar The resulting “Negative Positivism” (as Coleman calls it) would be a weak enough doctrine if it claimed only that there exists at least one system in which the rule of recognition does not make morality a criterion of legality. But Coleman makes the doctrine even weaker than that by introducing yet a further modal element. He says that for Negative Positivism there need only be “at least one conceivable rule of recognition … that does not specify truth as a moral principle among the truth conditions for any proposition of law” and that it is enough that “we can imagine a legal system in which being a principle of morality is not a condition of legality for any norm” (id. at 30, 31; emphases added). As Coleman has noted, even Dworkin need not deny Negative Positivism in this sense. Indeed, a natural law theorist could accept Coleman's modal interpretation of Negative Positivism as well, as long as the natural-law claim that morality is a criterion of legality is taken to state a contingent, not necessary, truth about the concept of law, that is, a truth that holds in this world, but not in all possible worlds. Of course, natural lawyers typically want to make a stronger claim than this.

Coleman does note elsewhere that “Some might take the separability thesis to mean that law and morality are distinct in that no moral principles can count as part of a community's law.” Authority and Reason, in The Autonomy of Law: Essays on Legal Positivism 287, 315 n. 5Google Scholar (George, R. ed., 1996Google Scholar). I think it a desideratum in a characterization of the separability thesis that it allows for this possible reading, especially since Coleman's preferred “modal” interpretation renders the thesis trivial, as Coleman himself acknowledges.

8. Even in this latter scenario, Hard Positivists may want to deny that morality is an actual standard that constrains judicial decision.

9. One recent exception is Bix, Brian, Conceptual Questions and Jurisprudence, 1 Legal Theory 465, 470–75 (1995), esp. 465–75.CrossRefGoogle Scholar

10. Yet a third genre, which appeals to our concept of what it means to be guided by a rule, has recently been developed by Scott Shapiro. See Shapiro, Scott J., The Difference That Rules MakeGoogle Scholar, in Analyzing Law: New Essays in Legal Theory (Bix, Brian ed., 1998Google Scholar) and Shapiro's own contribution to this symposium. I do not discuss these interesting new arguments here.

11. Dworkin, Ronald, Taking Rights Seriously 347 (1977).Google Scholar Raz accepts this as a commitment of Positivism in ALM, at 320.Google Scholar Raz does not, however, invoke this as an argument for Hard Positivism; only Dworkin does that. Hart, in the “Postscript,” seems to acquiesce in this move, as discussed infra n. 13.

12. I am indebted to Scott Shapiro for clarification on this issue.

13. Dworkin's argument for Hard Positivism based on the “ideal of protected expectations” is really a variation on the epistemic version of the Public Guidance argument See Dworkin, Ronald, Laws Empire 117 ff. (1986).Google Scholar According to Dworkin, the Positivist theory of law must answer the fundamental question of political philosophy: how can the exercise of coercive power be justified? It can only be justified, for Dworkin's Positivist, if the law “give[s] fair warning by making the occasions of coercion depend on plain facts available [i.e., epistemically accessible] to all rather than on fresh judgments of political morality, which different judges might make differently.” Id. at 117. As an argument for Hard Positivism, this is vulnerable to the objection that it builds too much in to the concept of law, insofar as it assumes (as Hart puts it) “that die point or purpose of law and legal practice is to justify coercion.” Hart, , “Postscript,” supra note 4, at 248.Google Scholar Even if we don't go as far as Hart in claiming that “positivism … makes no claim to identify the point or purpose of law and legal practices as such,” we can agree with Hart's (not obviously consistent) claim that it is “quite vain to seek any more specific purpose which law as such serves beyond providing guides to human conduct and standards of criticism of such conduct.” Id. at 249. In other words, Dworkin's more particularized version of the Public Guidance argument attributes to our concept of the function of law more than might uncontroversially be found there. For further discussion, however, of the problem with appeals to our “concept” of law, see the final section of this paper.

14. Thus, I reject Coleman's view that the semantic sense of the Rule of Recognition is primary. Coleman, , NPP, at 30–31Google Scholar; Coleman, , “Incorporationism,” at 62.Google Scholar Treating the semantic interpretation as primary seems contrary both to what Hart actually says (e.g., “Postscript,” at 251Google Scholar) and to the label he chose: it is, after all, a rule of “recognition,” and recognition is an epistemic capacity.

In recent work, Coleman has recast his earlier distinction between semantic and epistemic versions of the Rule of Recognition in terms of the difference between the Rule of Recognition fulfilling a “validation” function and an “identification” function. While the Rule always fulfills a validation (or semantic) function, it does not, says Coleman, fulfill an identification (or epistemic) function for ordinary citizens. See Coleman, , Authority and Reason, supra note 7, at 307Google Scholar ff, and “Incorporationism,” at 60–62.Google Scholar While this distincdon seems, initially, to have some force against Raz's authority argument (see the discussion in the text below), it has no force against the argument from epistemic funcdon considered in the text, since Coleman concedes that the Rule of Recognition must still serve an epistemic function for officials (e.g., “Wherever there is law, [the rule of recognidon] is employed by officials to disdnguish the legal from the nonlegal.” “Incorporationism,” at 62).

15. This would sdll be a weaker doctrine than tradidonal Natural Law Theory, since Natural Law is a criterion of legality in the Extreme Scenario only because of a contingent fact (i.e., Uiis is how officials actually decide disputes).

16. Waluchow, , supra note 4, at 122.Google Scholar

17. See, e.g., Hart, 's “Postscript,” supra note 4, at 251Google Scholar

18. As distinct from the meta-level of deciding which rule of interpretation to employ.

19. Waluchow, W.J., Hart's “Postscript,” 96 APA Newsletters 52, 54 (Fall 1996).Google Scholar

20. Waluchow, , supra note 4, at 139.Google Scholar For a similar objection, see Coleman, , “Incorporationism,” at 57, 61.Google Scholar

21. Philippa Foot and Bernard Williams come to mind as exceptions. See the discussion in Leiter, Brian, Nietzsche and the Morality Critics, 107 Ethics 250, 258–60 (1997).CrossRefGoogle Scholar

22. Coleman, , Authority and Reason, supra note 7, at 307–8Google Scholar; “Incorporationism,” at 60–62.Google Scholar

23. Coleman, , Authority and Reason, supra note 7, at 308.Google Scholar

24. What about the authority of law vis-à-vis officials, for whom the Rule of Recognition still fulfills an epistemic function even on Coleman's account? Coleman does not address this point.

25. Coleman, , Authority and Reason, supra note 7, at 319 n. 17.Google Scholar

26. Id at 307.

27. Waluchow, , supra note 4, at 136.Google Scholar

28. Perry, Stephen R., Judicial Obligation, Precedent, and the Common Law, 7 Oxford J. Legal Stud. 221, 223 (1987).CrossRefGoogle Scholar

29. Waluchow, , supra note 4, at 137.Google Scholar

30. Part of the difficulty here attaches to the critically ambiguous notion of “weight” on which Perry relies. How much weight must we assign to a particular directive before it constitutes an authoritative directive? If the Supreme Court were to treat Roe u Wadeas a serious constraint on deciding whether a woman has a constitutional right to choose an abortion, but in the end decides that a woman has no such right, does it make any sense in this context to speak of Roe as “authoritative” because the court “weighed” it seriously before ignoring it?

31. See especially Perry, Stephen R., Interpretation and Methodology in Legal Theory, in Law and Interpretation: Essays in Legal PhilosophyGoogle Scholar (Marmor, A. Ed., 1995Google Scholar) and Perry, Stephen R., The Varieties of Legal Positivism, 9 Canadian J. L. & Jurisprudence 361 (1996).CrossRefGoogle Scholar

32. Perry, , The Varieties of Legal Positivism, supra note 31, at 361.Google Scholar For a related line of argument against (what Perry calls) “methodological positivism,” see Finnis, John, Natural Law and Natural Justice 3–22 (1980), esp. 3, 16.Google Scholar

33. Perry, , Varieties of Legal Positiinsm, supra note 32, at 377.Google Scholar

34. Perry, , Interpretation and Methodology in Legal Theory, supra note 31, at 113.Google Scholar

35. For some doubts about Perry's argument, see Colcman, , “Incorporationism,” esp. n. 21.Google Scholar Even Coleman claims, however, that “our concept” of law has “certain essential features.” He just denies that we need recourse to law's function to say what these features are (and thus denies (2), above, in the text). Id. at 25. We can identify these “essential features,” says Coleman, by recognizing “law's institutionality,” that is, “the complex thought that part of the distinguishing feature of law's authority is the idea that legal rules are the result of institutional action of various kinds.” Id. at 27–28.

36. Is it not this feature that makes most normative ethics so tiresome and pointless? Note that I can agree with Coleman that “It does not follow from the existence of controversial cases that there is disagreement at the core, or that the core is empty.” “Incorporationism,” at 16. The worry, however, is precisely that the intuitions conflict at the core.

37. For a related complaint about contemporary philosophy, see Harman, Gilbert, Doubts About Conceptual Analysis, in Philosophy in Mind 43Google Scholar (Michael, M. & O'Leary-Hawthorne, J. eds., 1994).Google Scholar

38. See Leiter, Brian, Rethinking Legal Realism: Toward a Naturalized Jurisprudence, 76 Texas L. Rev. 267. 311–14 (1997).Google Scholar

39. See, eg., Cross, Frank B., Political Science and the New Legal Realism, 92 NW. U. L. Rev. 251 (1997).Google Scholar