Abstract
This paper examines “the Resistance argument,” one of HLA Hart’s arguments for legal positivism. For Hart, a positivist concept of law that separates law from morality compares favourably to non-positivist ones for it facilitates resistance against oppressive regimes. Since law is separable from morality, the argument goes, law loses part of its “aura of majesty” and thereby, the legality of a norm is not a conclusive reason for citizen obedience. Molina-Ochoa argues that the evidence provided from the Milgram Experiments about obedience to authority figures provides empirical support for Hart’s hypothesis. The author also suggests that these experiments provide elements to doubt of non-positivist concepts of law, particularly those in which law displays some form of moral correctness, such as the one advanced by Robert Alexy.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
- 2.
Green (2003b).
- 3.
Blass (2009).
- 4.
The Milgram experiment is usually ranked in surveys as the most famous psychological experiment. See: Banyard, P., and Grayson, A., Introducing psychological research: seventy studies that shape psychology. London: Palgrave.
- 5.
Takooshian, cited in Blass (2000, p. 10).
- 6.
According to Ernst Sosa (2007, p. 99), Experimental Philosophy “puts in question what is or is not believed intuitively by people generally. And it challenges the truth of beliefs that are generally held, ones traditionally important in philosophy.”
- 7.
Nadelhoffer and Nahmias (2007, p. 125).
- 8.
Hart (1958, pp. 593–629).
- 9.
Radbruch (2006, p. 6) claims that, “Positivism, with its principle that ‘a law is a law’, has in fact rendered the German legal profession defenceless against statutes that are arbitrary and criminal.”
- 10.
Ibid, p. 618.
- 11.
Ibid, p. 620.
- 12.
For an analysis of the debate, see Lacey (2008, pp. 1059–1087).
- 13.
The proliferation of books and articles about the authority of law are examples of this change in the zeitgeist of contemporary legal philosophy.
- 14.
According to Jerome Bickenbach (1985, p. 81), “If the legal institutions and those involved with them are merely fallible and not corrupt, the citizen aware of the constitutional framework of her legal system would surely not be justified in saying […] ‘This is law; but it is too iniquitous to be applied or obeyed.’ Rather, she should say, ‘This is a mistake; being iniquitous this putative law violates the constitution and is thus invalid.”
- 15.
In the Postscript, Hart (1997, p. 250) claims “The rule of recognition may incorporate as criteria of legal validity conformity with moral principles or substantive values.”
- 16.
Priel (2019, p. 268).
- 17.
Green (2003b).
- 18.
Hart (1994, pp. 185–186).
- 19.
Hart’s version of legal positivism is probably the most influential on analytical jurisprudence. Dworkin (1977, p. 17), for instance, wrote that, “I want to examine the soundness of legal positivism, particularly in the powerful form that Professor H. L. A. Hart has given to it. I choose to focus on his position, not only because of its clarity and elegance, but because here, as almost everywhere else in legal philosophy, constructive thought must start with a consideration of his views.” In the same sense, Kent Greenwalt (1996, pp. 3–4) claims that, “H. L. A. Hart [is] the most influential modern positivist in the English-speaking world.”
- 20.
Blass (2009).
- 21.
According to ibid (p. 5), one fact that “led Milgram to his obedience research was his attempt to fathom the Holocaust.”
- 22.
Milgram (1974, p. 1).
- 23.
Ibid, pp. 145–146.
- 24.
According to ibid, “The most far-reaching consequence of the agentic shift is that a man feels responsible to the authority directing him but feels no responsibility for the content of the actions that the authority prescribes.”
- 25.
- 26.
These feelings of distress were replicated in a recent experiment similar to Milgram’s that used an avatar instead of a human being, and which measured the brain activity of the participants. See: Cheetham et al. (2009).
- 27.
Burger (2009b).
- 28.
Milgram (1974, p. 3, pp. 145–146).
- 29.
As Leslie Green (2003a) suggests: “Many philosophers and social scientists agree that a social order is a legal system only if it has effective authority. An effective (or de facto) authority may not be justified, but it does stand in special relation to justified (de jure) authority. Justified authority is what effective authorities claim, or what they are generally recognized to have.”
- 30.
Alexy (2004, pp. 35–36).
- 31.
Perry (2013).
- 32.
Burger (2009a, pp. 1–11).
- 33.
Doliński et al. (2017, p. 932).
- 34.
- 35.
For a similar argument, see Chapter Two of Hart (1994).
- 36.
Doliński et al. (2017, p. 932).
- 37.
In Col and in other writings, Hart denies Fuller’s thesis that the structure of legal systems had an inherent moral value. Hart suggests that systems of rules, such as the one imposed during Apartheid, had all the features of a modern legal system but were oppressive and immoral. See Fuller (1958, pp. 630–672); Hart (1965, pp. 1281–1296).
- 38.
La Coalición de Derechos Humanos, No More Deaths, and The Abuse Documentation Working Group, Disappeared: How the US border enforcement agencies are fueling a missing persons crisis. http://www.thedisappearedreport.org/uploads/8/3/5/1/83515082/disappeared%2D%2Dintroduction.pdf, accessed January 8, 2021.
- 39.
Fernandez, Manny, “A Path to America marked by more and more bodies,” New York Times, May 4, 2017, https://www.nytimes.com/interactive/2017/05/04/us/texas-border-migrants-dead-bodies.html, accessed January 8, 2021.
- 40.
Zinn (2009, p. 420).
References
Alexy R (2004) The argument from injustice. Clarendon Press, Oxford
Bickenbach JE (1985) Law, morals, and the fallibility thesis. Univ Tor Law J 35(1):67–85
Blass T (2009) From New Haven to Santa Clara: a historical perspective on the Milgram obedience experiments. Am Psychol 64(1):37–45
Burger J (2009a) Replicating Milgram: would people still obey today? Am Psychol 64(1):1–11
Burger J (2009b) In their own words: explaining obedience through an examination of participants’ comments. Paper presented at the Meeting of the Society of Experimental Social Psychology, October 15–17, Portland, ME
Cheetham M et al (2009) Virtual Milgram: emphatic concern or personal distress? Evidence from functional MRI and dispositional measures. Front Hum Neurosci 3(29). https://doi.org/10.3389/neuro.09.029.2009
Doliński D et al (2017) Would you deliver an electric shock in 2015? Obedience in the experimental paradigm developed by Stanley Milgram in the 50 years following the original studies. Soc Psychol Personal Sci 8(8):927–933
Dworkin R (1977) The model of rules. In: Taking rights seriously. Harvard University Press, Massachusetts
Fernandez M, A path to America marked by more and more bodies. New York Times, May 4, 2017. https://www.nytimes.com/interactive/2017/05/04/us/texas-border-migrants-dead-bodies.html. Accessed 8 Jan 2021
Fuller L (1958) Positivism and fidelity to law—a reply to Professor Hart. Harv Law Rev 71(4):630–672
Green L (2003a) Legal obligation and authority. Stanford Encyclopedia of Philosophy. https://plato.stanford.edu/entries/legal-obligation/
Green L (2003b) Legal positivism. Stanford Encyclopedia of Philosophy. https://plato.stanford.edu/entries/legal-positivism/, retrieved October 2, 2018
Greenwalt K (1996) Too thin and too rich. In: The autonomy of law. Clarendon Press, Oxford
Hart HLA (1958) Positivism and the separation of law and morals. Harv Law Rev 71(4):593–629
Hart HLA (1965) The morality of law by Lon L. Fuller. Harv Law Rev 78(6):1281–1296
Hart HLA (1994) The concept of law, 2nd edn. Oxford University Press, Oxford
Hart HLA (1997) Postscript. Clarendon Press, Oxford
Haslam A, Reicher S (2012) Contesting the nature of conformity: what Milgram and Zimbardo’s studies really show. PLoS Biol 10(11)
La Coalición de Derechos Humanos, No More Deaths, The Abuse Documentation Working Group. Disappeared: how the US border enforcement agencies are fueling a missing persons crisis. Accessed 8 Jan 2021
Lacey N (2008) Philosophy, political morality, and history: explaining the enduring resonance of the Hart-Fuller Debate. N Y Univ Law Rev 83:1059–1087
Milgram S (1974) Obedience to authority: an experimental view. Harper & Row, New York
Mixon D (1976) Studying feignable behavior. Represent Res Soc Psychol 7(2):89–104
Mixon D (1989) Obedience and civilization: authorized crime and the normality of evil. Pluto Press, London
Nadelhoffer T, Nahmias E (2007) The past and future of experimental philosophy. Philos Explor 10(2):123–149
Perry G (2013) Behind the shock machine: the untold story of the notorious Milgram psychology experiments. The New Press
Priel D (2019) Law as a social construction and conceptual legal theory. Law Philos 38(3):267–287
Radbruch G (2006) Statutory lawlessness and supra-statutory law (1946). Oxf J Leg Stud 26(1):1–11
Reicher S, Haslam A, Miller A (2014) What makes a person a perpetrator? The intellectual, moral, and methodological arguments for revisiting Milgram’s research on the influence of authority. J Soc Sci 70(3):393–408
Sosa E (2007) Experimental philosophy and philosophical intuition. Philos Stud 132(1):99–107
Takooshian H (2000) How Stanley Milgram taught about obedience and social influence. In: Blass T (ed) Obedience to authority. Taylor & Francis, New York, pp 9–21
Zinn H (2009) The Zinn reader: writings on disobedience and democracy. Seven Stories Press, New York
Author information
Authors and Affiliations
Corresponding author
Editor information
Editors and Affiliations
Rights and permissions
Copyright information
© 2021 Springer Nature Switzerland AG
About this chapter
Cite this chapter
Molina-Ochoa, A. (2021). Milgram and Hart on Resisting Oppressive Regimes. In: Fabra-Zamora, J.L., Villa Rosas, G. (eds) Conceptual Jurisprudence. Law and Philosophy Library, vol 137. Springer, Cham. https://doi.org/10.1007/978-3-030-78803-2_10
Download citation
DOI: https://doi.org/10.1007/978-3-030-78803-2_10
Published:
Publisher Name: Springer, Cham
Print ISBN: 978-3-030-78802-5
Online ISBN: 978-3-030-78803-2
eBook Packages: Law and CriminologyLaw and Criminology (R0)