Abstract
H.L.A. Hart famously claimed that legal practice is conventional in character, and his insights were elaborated further by several authors using game-theory. This chapter explores whether this sort of account proposes a good explanation of conventional practices in general, whether it captures the institutional character of legal practice, and whether it explains disagreement among officials. It is argued that it does not. This sort of account does not explain conventional practices in general, essentially, because rules (understood in a relatively standard way) are absent from the picture. It does not explain the institutional character of legal practice for several reasons, the more important being that, if this sort of theory were correct, beliefs among officials to the effect that they are under a duty would be absurd. And it does not accommodate disagreement, basically, because this sort of theory requires convergent dispositions and actions among participants.
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Notes
- 1.
Some deny this. Margaret Gilbert, for instance, claims that there might be a convention of giving Festschrifts to scholars who reach 60 but, since few scholars reach that age, the rule is not actually followed; or that there might be a convention of sending hand-written thank-you notes to one’s host but, since nobody is used to hand-writing any more, nobody sends the notes any more, albeit thinking that they should (OSF 344–346; along similar lines, Sartorious 1987, 51). I think that these are not examples of conventions (or, more generally, of social rules), for regular conformity to the rule is absent. That is why the situation of the thank-you note case is most plausibly captured by statements like “we had a convention of sending thank-you notes” or “our convention is fading away”. The Festschrift case is not an example of a convention either, unless it is meant that members have entered into an agreement to give Festschrifts. But this, as Gilbert recognizes, is a different sense of “convention”.
- 2.
Assuming she has a minimal grasp of basic principles of practical reasoning.
- 3.
Cf PRN 22–25.
- 4.
CL 114–117.
- 5.
CL 114–117. But see n 54 below.
- 6.
CL 94–95.
- 7.
CL 114–116.
- 8.
PRN 146; CLS 198–199; AL 92–93; Hacker (1977, 23); MacCormick (1981, 105, 109); Coleman (2001a, 85). There are other possibilities. For instance, Hart’s contentions at CL 94/95 suggest that a rule of recognition has this form: “the norms of the system are those which satisfy criteria C1…Cn”. Yet at other points Hart implies that a rule of recognition confers powers on norm-applying officials to evaluate conduct of members of the community by applying norms that satisfy certain criteria (CL 97). This suggests that a rule of recognition has this form: “Norm-applying officials have the power to evaluate conduct by applying norms that satisfy criteria C1…Cn”. I shall assume, nevertheless, that the standard interpretation is correct.
- 9.
CL 96.
- 10.
CL 96–97.
- 11.
CL 55, 255.
- 12.
CL 56–57, 255.
- 13.
CL 55–57.
- 14.
CL 57.
- 15.
CL 255.
- 16.
Hart sometimes suggests that the existence of a rule of recognition is manifest in the general practice of officials and/or ordinary citizens, who also display the attitude of acceptance (CL 61, 101). I have characterized Hart’s doctrine as requiring acceptance by officials only because those suggestions seem introductory remarks revised later (CL 114–117). Besides, it makes more sense. For a legal system to exist, ordinary citizens need not display any attitude of acceptance. This is, I submit, the standard interpretation of his doctrine.
- 17.
Some advocates of the standard view claim that the rule of recognition is understood by Hart, not simply as a social rule as characterized above, but as a duty-imposing social rule, a notion that, as these theorists acknowledge, Hart construes in a slightly different way (AL 92–93; CLS 147–148, 199; Hacker 1977, 17, 23; MacCormick 1981, 55, 56, 105, 109). For Hart, a social rule that requires doing A in C is duty-imposing if, and only if, (a) conditions (1) and (2) above are met; (b) conditions (3)–(4) obtain in a particular way: the demands of conformity must be insistent, and the social pressure must be great; (c) the standard of behaviour in question is thought by participants to be important for the maintenance of social life or some highly prized feature of it; (d) the conduct required may conflict with what participants wish to do (CL 86–87). I am uncertain as to whether this view is acceptable as a reconstruction of Hart’s position (cf Hacker’s own doubts in Hacker (1977, 25)). But I shall consider it as a possibility. If the rule of recognition is a duty-imposing social rule, the account of legal practice we attributed to Hart should be revised. It should state that there is an instance of legal practice, the practice of norm-applying officials, if, and only if, there is a duty-imposing rule of recognition (a particular duty-imposing social rule) among them. That is, if and only if there is a group of individuals (norm-applying officials) who (i’) regularly behave in a certain way and (ii’) display the attitude of acceptance, i.e. they are disposed to treat this pattern of behaviour as a standard of conduct for the group insistently and forcefully; besides, they consider the pattern important for the maintenance of social life, or some highly prized feature of it; and there might also be conflict with what they wish to do. So this would be, on this view, Hart’s characterization of the structure of legal practice. Hart’s conception of the content of legal practice would remain the same: it consists of evaluating conduct by applying norms that satisfy certain criteria.
- 18.
CL 255.
- 19.
CL 256.
- 20.
Perhaps one should consider another possibility, parallel to the one suggested by some advocates of the standard view, namely that Hart would conceive of the rule of recognition as a duty-imposing conventional social rule. But Hart said nothing in this respect. And although one could conjecture how a Hartian account of duty-imposing conventional social rules would look like, I shall not do so here.
- 21.
Dworkin (2004).
- 22.
Among others, Coleman (2001b, 100–101); Marmor (2001, 194–197).
- 23.
- 24.
What about Hart’s account of duty-imposing social rules? The first objection would still apply, for Hartian duty-imposing social rules are, essentially, just regularities of behaviour and dispositions to do something regularly. The fact that doing so is thought important by members for the maintenance of social life, or that there might be conflict with what participants wish to do, adds nothing. Rules are still absent from this analysis of duty-imposing social rules. The second objection would apply too: the fact that most members do something regularly, that most are disposed to do so, that most think that this is important for the maintenance of social life, and that there might be conflict with what most wish to do, cannot be invoked by x, without absurdity, as a complete reason for y to do the same thing.
- 25.
I shall not explore what would happen if Hart had provided an account of duty-imposing conventional rules. For under any plausible reconstruction built out of the same elements, the same objections would apply.
- 26.
I am ignoring that, as Raz claims (AL 92), Hart has not proposed an account of power-conferring social rules.
- 27.
Coleman (2001a, 101); Kutz (2001, 462).
- 28.
CL 257.
- 29.
The picture would perhaps look different if the rule of recognition were conceived of, as some commentators insist, as necessarily a Hartian duty-imposing social rule (recall that here the relevant individuals think of the pattern as important for the maintenance of social life, or some highly prized feature of it). Perhaps something can be said in favour of this account as capturing participants’ self-understandings to the effect that they are under a duty. Nevertheless, it is clear that at least some instances of the Judiciary, namely those which are developed, would not be captured. In developed instances of legal practice most officials could be alienated. That is, it is possible that they do not think that the activity of the group is in effect valuable in relation to individuals other than themselves or for the society as whole, and accordingly that they do not think of it as actually important to the maintenance of social life (yet they would still conceive of themselves as under a duty to perform their tasks). So these instances would not be captured. We do not know what would occur if one conceived of the rule of recognition as a Hartian duty-imposing conventional rule, for Hart did not characterize the latter. But, under any plausible reading built on similar elements, it is clear that the criticisms apply.
- 30.
As the argument of the book progresses, it will become clear that there are many other difficulties with Hart’s account.
- 31.
Postema (1982, 176 ff); Coleman (2001b).
- 32.
- 33.
Cf Lewis (1969, 36–42).
- 34.
I am only paraphrasing Lewis’ first definition of conventions (not his refined definition) to show what the core idea is. Cf Lewis (1969, 14, 42, 78).
- 35.
Lewis’ model is also designed to capture that situation. Cf Lewis (1969, 10).
- 36.
Coleman (2001b, 114–121); see also his (2001a, 92); Postema (1982, 176 ff).
- 37.
Marmor (2001, 201–202); LPPR 392–393.
References
Warnock, Geoffrey. The Object of Morality. London: Methuen, 1976
Hacker, Peter. “Hart’s Philosophy of Law.” In Law, Morality, and Society: Essays in honour of H.L.A. Hart, edited by P Hacker and J Raz. Oxford: Clarendon Press, 1977
Kutz, Christopher. “The Judicial Community.” Philosophical Issues 11 (2001): 442
Postema, Gerald. “Coordination and Conventions at the Foundations of Law.” Journal of Legal Studies 11 (1982): 165
Lewis, David. Convention: A Philosophical Study. Cambridge: Harvard University Press, 1969
MacCormick, Neil. H.L.A.Hart. London: Edward Arnold, 1981
Sartorious, Rudolph. “Positivism and the Foundations of Legal Authority.” In Issues in Contemporary Legal Philosophy, edited by R Gavison. Oxford: Clarendon Press, 1987
Marmor, Andrei. “Legal Conventionalism.” In Hart’s Postscript: Essays on the Postscript to The Concept of Law, edited by J Coleman. Oxford: OUP, 2001
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Sánchez Brigido, R.E. (2010). Accounts Based on the Idea of a Social Rule (I): Hart’s Account and the Coordinative-Convention Approach. In: Groups, Rules and Legal Practice. Law and Philosophy Library, vol 89. Springer, Dordrecht. https://doi.org/10.1007/978-90-481-8770-6_2
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