HART AND FINNIS
2017
1. Is it possible and if so valuable to identff the central case or focal meaning of law w/o engaging in an evaluatve discussion of the reasons
for having law?
2. Answer either:
(a) ‘From a moral or politcal point of view, the rules of recogniton, bf themselves, cannot be regarded as sources of obligaton.
Whether judges, or anfbodf else, should or should not respect the rules of recogniton of a legal sfstem is purelf a moral issue
that can onlf be resolved bf moral arguments (concerning the age-old issue of politcal obligaton). And this is more generallf so:
the existence of a social practce, in itself, does not provide anfone with an obligaton to engage in the practce. The rules of
recogniton onlf defne what the practce is, and thef can saf nothing on the queston whether one should, or should not, engage
in it. But of course, once one does engage in the practce, plafing the judge, as it were, there are legal obligatons defned bf the
rules of the game’. (A. Marmor, ‘Legal Conventonalism’ Discuss.
(b) ‘Law is binding not merelf because it is law but bf virtue of reasons’. Discuss.
2016:
1. Critcallf discuss the implicatons of thinking of the central case of law in terms of the emergence of secondarf rules as solutons to
problems faced bf pre-legal societes.
The queston quite obviouslf refers to Hart’s concepton of law in terms of the secondary rules of recognitonn changen and adjudicaton
developing (as a mater of historical contngencf) and providing solutons to the problems of uncertaintf, stasis, and inefciencf respectvelf
arising when a complex, diferentated societf is governed onlf bf primarf rules. The central points that a good answer would address are, frst,
whether conceiving of secondary rules as solutons to problems has an impact on Hart’s claim that law’s validity and normatvity are divorced
from the reasons for having law.. One might argue (as Finnis, Dworkin, and Perrf have) that Hart implicitlf acknowledges that law is alwafs
determined bf the value that it serves, which, for him, seems to be certaintf in conditons of complexitf. Hart would therefore need a separate
argument to show that law’s validitf and normatvitf become independent from the reasons that motvate the emergence of law. Marmor’s view
of law as a social conventon is an atempt at addressing preciself this lacuna. The second angle from which the queston could be approached
revolves around what the ‘central case’ of a concept is. Enter Finnisn who argues that the central case of law is that which best instantates the
common good. A verf imaginatve candidate could have emplofed (and some did indeed emplof) Kelsen as well to argue that the emergence of
legal sfstems necessarilf presupposes a non-contngent Grundnorm. Manf candidates considered the methodological aspect of the queston as
well. This of course is not unrelated but the substantve points above should have enjofed prioritf.
2. ‘{A} general theorf about how valid law is to be identfed, like Hart’s own theorf, is not a neutral descripton of legal practce, but an
interpretaton of it that aims not just to describe but to justff it –to show whf the practce is valuable and how it should be conducted so as
to protect and enhance that value’. (Ronald Dworkin, ‘Hart’s Postscript and the Character of Politcal Philosophf’). Discuss.
This queston refers explicitlf to the methodological issue of what kind of an endeavour the atempt to work out the concept of law is. Recall
Hart’s methodologf: in order to capture the concept of law, we have to reconstruct the internal point of view of partcipants in the practce of law.
Recall also the objectons to this. What kind of enquirf is this? Historical? Sociological? Conceptual? If the former two, then it does not field a
concept of law. If the later, then it is necessarilf normatve in nature preciself because of the normatve nature of law. This is the argument that
Dworkin makes in the extract as well. Manf scripts correctlf invoked Mrs Sorenson’s storf, which Dworkin uses to illustrate that Hart necessarilf
“takes sides”, i.e. that his concepton of law has substantve ramifcatons. Hart’s response in the Postscript to the Concept of Law as necessarf
here too. Once again, bringing in Kelsen to ofer an alternatve neutral method for legal theorf would have been welcome (though not necessarf).
2014:
1. ‘If one’s purpose is to grasp the concept of law, then all one needs to know about legal obligaton is that a sufcient number of people
regard rules originatng from a partcular source as generatng distnctve obligatons on their part. What the true nature and grounds of
these obligatons maf be is a separate queston’. Discuss.
The queston invited students to discuss whether the aim of legal theorf is to record some sociological facts and draw general conclusions from
these facts in the language of concepts or whether it is a substantve enquirf into the reasons for following the law. In other words, is legal
philosophf a tfpe of sociologf or is it practcal philosophf? The former positon clearlf refects H.L.A. Hart’s positon whereas the later is
supported bf scholars, of the ones we read in the course, such as Dworkin, Perrf, Finnis. Manf students got the wrong end of the stck in this
queston. Thef misread it as an invitaton to discuss the substantve claim to neutralitf purportedlf raised bf Hart, i.e. whether the grounds of law
are content-independent. This would have been fne had it been related to the queston of method bf arguing, for example, that if pressed Hart
would have to admit that the proper aim of legal theorf is to elucidate these grounds as evidenced bf the fact that his account of law and its
normatvitf was indeed practcal (the soluton to the three problems and so forth). One could go further and argue that perhaps Hart mistakenlf
began to account for law’s grounds in their historical setng, which would necessarilf commit him to a substantve claim, that he could have
simplf recorded facts and served them up as concepts and that there is some value in this, because it clarifes our practces. The relevant critiue
here would be that law is a practcal concept and as such it can only be grasped by grasping its grounds or thatn although one could simply
describe what a number of people in a certain context seem to refer to as lawn this falls short of what legal theory is properly about. The
obvious iueston then is to ask why this is so.
2. ‘Law-following is an instance of the exercise of practcal reason. This, however, does not necessarilf mean that the grounds of law are
moral and objectve’. Discuss.
Whereas the frst queston focused mainlf on the character of the enquirf into the nature of law, this one focuses on the connecton between
law and morality orn more specifcallyn the normatvity of law and morality. The obvious frst point of reference is Finnis’s version of natural law
theorf. The frst point that could be made in agreement Finnis, and as the queston explicitlf states, is that law is part of the order of practcal
, reason. Therefore, when asking what the grounds of law are (and note that the queston does not require whether one ought to ask this in order
for one to be doing legal theorf) one asks what reasons one has to act in a certain waf. But the queston goes further than that and into the
nature of those reasons. Finnis would of course argue for the unitf of practcal reason and the contngent diferentaton of law from moralitf (the
familiar points regarding determinaton etc. are relevant here). Manf students merelf took this as an invitaton to summarise Finnis, which is
clearlf not enough. Outstanding students went further than that and discussed whether there are wafs to think of law as necessarilf practcal but
stll dissociated from moralitf. The most helpful sources here would be Marmor and his conventonalist reading of law and, this is to what more
resourceful students did turned, Kelsen
2013:
1. EITHER (a) Does asking ‘what is law’ amount to asking ‘whf have law’?
OR (b) What must a legal theorist do in order to give an accurate and complete account of what counts as law?
Queston 1 clearly refers to the issue of method: what does general legal theorf do? What are the central questons that legal theorf asks and
what is the appropriate vantage point from which to ask these questons? The most obvious thing to do here would be to set up the stage with
reference to the positvist take on the neutralitf of legal theorf or (and especiallf in the context of q1b) on natural law theorf. Or one could be
more creatve and start, saf, bf outlining the central questons that all legal theorf must grapple with: what are the conditons of existence and
diferentaton of the law? Whf does law have normatve force? This would allow one to take a stance and side with one of the theories that we
discussed in the course or indeed reject them all, of course on the basis of argument. Some candidates did not place sufcient emphasis on what
makes for a complete account of law therefore missing an important part of the debate. The more imaginatve scripts, which evidenced a beter
grasp of the material too, brought Kelsen into the picture despite the fact that during the fear we didn’t put much emphasis on the
methodological implicatons of the PTL. That was generallf commendable and some students did it verf well indeed connectng methodological
neutrality to the neutrality of the transcendental argument. Too ofen the queston of the neutralitf of legal theorf on the one hand and the
neutral foundatons of law and its normatvitf on the other were confated. There are of course links between the two questons but verf few
scripts actuallf highlighted those links. Those who talked about the neutralitf of law (bringing in Marmor etc.) generallf displafed a confusion
between the two.
2012:
1 (a) Is moralitf part of the focal meaning of law?
Stronger answers picked up on the kef word “focal”. Thef explained what part the idea of focal meaning plafs in natural law theories and Hartan
legal positvism. Some did so bf unpacking the “unjust law is not law” mantra, teased out the sense in which the concept of law is used in it and
discussed the diferent wafs in which the focal meaning of law can be understood. Weaker answers tended to give a general outline of natural law
theorf and a rather superfcial account of the “lex iniusta” slogan.
(b) Is it possible for legal theorf to be methodologicallf neutral?
This queston refers specifcallf to the legal positvist claim that it is possible to give an account of what counts as law without taking a normatve
stance as to what ought to count as law. Although Hart’s work is the most obvious point of reference here, the more adventurous scripts linked
the queston to Kelsen’s theorf too. Stronger answers gave an outline of the argument, some correctlf tracing it back to earlf legal positvism as
well as to the strands of analftcal philosophf which infuenced Hart, and focused on the queston of legal theorf’s vantage point
(internal/external/detached internal). The most obvious critcal arguments were Dworkin’s ‘semantc stng’ point and his argument concerning
integrated and detached values and Perrf’s point that a descriptve account of law is, at best, incomplete. Excellent answers brought in natural
law theory to argue that legal theory is not about recording people’s beliefs but rather working out which objectve and universal obligatons
we all have, from which it follows that it is not possible to be neutral in reportng what law in its genuine meaning is.
2. Does the interpretaton of the Rule of Recogniton as a social conventon successfullf address anf of the alleged shortcomings of Hart’s
jurisprudence?
Stronger answers gave an outline of the weaknesses of the Hartan account of the RoR as the identfer of what counts as law. Thef then focused
on the most central of these problems, namelf that Hart does not give an account of the sources of legal obligaton and merelf reports the fact
that the addressees of a legal sfstem seem to regard themselves as bound, though not necessarilf motvated, bf law. This is where Marmor’s idea
of law and the RoR in terms of social conventons comes in. What are consttutve social conventons and whf are law and the RoR such social
conventons? Does this explain legal obligaton without remainder? What should we make of Marmor’s argument that law is neutral though nor
morallf indiferent? What objectons from natural law or Dworkin can be raised against that?
General Overview Across Traditons: Legal Theory
What is - An account of legal obligaton: Kelsen’s grundnorm: All laws req some form of validitf (authorisaton bf superior
Legal norm, which goes back to 1st consttuton); Hart’s union of 1o and 2o rules; Finnis: Practcal reason where posited
Theory? as law
- Qn of method: (A) To describe state of afairs / Descriptve (Hart / Raz) vs (B) How we ought to act / Reasons for
Acton / uustfcatorf (Dworkin / Perry)
- Qn of substance - validity and normatvity: (A) Law’s validitf and normatvitf dependent on its content (For law
to exist and bind us must meet certain substantve moral conditons) (Natural Law Positoo) vs (B) Law is
independent of its content (Draws validitf & noratvitf from its own pedigree) (Positvist); *Bring in Marmor
Methodological Neutrality: Is it possible? Is legal philosophy a type of sociology or is it practcal philosophy?
// to Kelsen: Connectng methodological neutralitf to the neutralitf of the transcendental argument; Dworkin uses Sorenson’s storf to illustrate that Hart
necessarilf “takes sides”, i.e. that his concepton of law has substantve ramifcatons
, Overview - Overview: Legal theory: broadlf conceived endeavours to examine law as social insttuton and specifcallf nature
of legal obligaton; Claim to methodological neutralitf arises from basic tenet of legal positvism: that law is not
necessarilf connected to moralitf; Hart claimed to artculate theory of law in general and neutral manner: Bf
applfing linguistc philosophf; Regarded his paradigmatc central case of law to be general (Wide range of modern
legal sfstems) and methodologicallf neutral (in describing law w/o evaluatng its substantve merits); Hart
advanced 2 central propositons: Centralitf of the internal PoV; Novel concept of RoR in his paradigmatc central
case of law as union of 1o and 2o rules
- Law to Legal Positvists = An account of identfable facts; Methodological legal positvism = view that legal theorf
can and should ofer a normatvelf neutral descripton of the social phenomenon of law
Earlf Legal - Separaton thesis: Separaton thesis = 1 of the central 3 tenets of Legal Positvism is; Law is not necessarilf
Positvism connected to moralitf; 3 crucial implicatons: Validitf of law is content-independent, Possible to describe the law
and in a methodologicallf neutral waf, and law’s normatvitf stems from its own pedigree; LP understands law as
infuence social fact, binding bcuz it is law, having been posited as law bf an authoritf; Benthamn Austnn Hart - Positvist
traditon: Idea of understanding law through fact-based inquirf illuminated the thinking of earlf empirical legal
positvists Austn and Bentham; Set out generallf that legal rules are commands of a sovereign, to which ppl are in
habitual obedience, and backed bf sancton; Hart’s thoughts about Bentham and Austn: External PoV bf Austn
and Bentham were severelf lacking in not being able to elucidate the nature of legal obligaton; Austn’s Idea of
habitual obedience does not refect nature of legal obligaton as ‘it ignores various social uses of rules’, towards
which Hart asserts that ppl adopt a critcal refectve attude; Why Austn’s theory inadei: 1. Sanctons: Obliged/
Obligated distncton does not refect irrelevance of one’s belief to idea of having obligs; 2. Habits are unrefectve;
3. Commands: E.g. Contract laws are not compulsive but optonal; 4. Sovereign: E.g. Intl las no sovereign, but
rather about relatons b/w sovereigns
Hart’s - Hart pursues this further: Through hermeneutc point that: Understanding the internal PoV and critcal refectve
Method attude of commited partcipants; By ‘paying some regard to sociolinguistc usage’ / ‘Legal Language Game’:
Linguistc philosophf refers to meaning in contextual use and law in terms of insttutonal facts; Witgenstein safs
that meaning is constructed through our discourses via ‘language games’, words are ascribed with a proper
meaning in the correct context and with the correct conventons; Austn reaches similar conclusions, with a focus
on successful communicaton through speech acts; Hart’s method is to use ordinarf language philosophf to work
out meaning of concept of law in a general and neutral manner, bf analfsing the wafs in which concept of law is
ascribed meaning in the legal ‘language game’; Endeavoured to set out a descriptve theory of law that is both
neutral (non-evaluatve) and general (applying to a large class of legal systems): General: The paradigmatc case
of law applies to a large class of modern legal sfstems in large, complex and diferentated societes; Neutral:
Describe law w/o evaluatng the substantve merits of law and w/o endorsing their reasons; Legal philosophers
atend to but do not need to share / adopt the internal PoV of commited partcipant in legal sfstem; Best
vantage point for a legal philosopher was to analfse law from a detached ‘external PoV’ (explained below) Then
Critque of able to give a general and neutral descriptoo of the distnctlf legal phenomenon
Descriptvist
Start with - Dist between method and substance: CP - Those who see law as linked to morality take the view such
method vs methodological neutrality impossible: Everftme we express view on what law is, we express a view on what law
substance ought to be, bcuz of law’s acton-guiding character; CCP - This seems to confuse method with substance: Even if
we accept law is extension of obj moralitf, whf impossible to describe it from neutral perspectve? Or if one
accepts that law is reducible to ppl’s beliefs rgd value (i.e. not objectve). Whf can one not record the prevalent
beliefs of the legal phenomenon? Or, whf can one not simplf describe the insttutonal conditons of existence of
law?; CCP - Hart tries to diferentate use of (normatve) language of legal system from endorsement of legal
rules: He tries to add the third categorf / dimension of normatvitf i.e. ‘detached judgments’; Distncton between
original exteroal PoV and newer ‘detached’ external PoV is that the later is being able to saf smth true from the
PoV of law w/o implfing a ‘commitmeot to the truth / validitf of claims made bf commited speakers’; CCCP -
Arguable that Neutral Jurisprudence is possible through MacCormick’s detached internal PoV: Argues that Hart’s
‘ioteroal PoV’ consists of diferent levels of understanding and degrees of volitonal commitment; Diferentates a
‘detached’ internal PoV or non-extreme external PoV (vs ‘volitonal internal PoV’); ‘Detached internal’ refers to
those who although conform to the rules, do so not out of convicton but their knowledge that societf expects an
ostensible commitment to valid norms
- Can there be a purely descriptve methodology? Is it possible? Hart’s view is that ‘legal theorf can ofer a
normatvelf neutral descripton of a partcular social phenomenon, namelf law’; Raz believes true purpose of legal
theorf is to be general and value-neutral; an atempt to explain the nature of a certain kind of social insttuton;
NB: Opponents’ issue is not abt the commitment to conceptual analfsis or role of intuiton in legal philosophf,
but the assumpton that methodologf can be purelf descriptve in character; Raz endorses Kelsen’s structure of
justfed normatvitf in his Pure Theorf of Law, which is kept value-free bf invoking the concept of professional
Semantc and uncommited PoV of the legal man;; 1- CP: (Law’s Empire) - Dworkin said that law is an ‘interpretve concept’
