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Published online by Cambridge University Press: 06 March 2019
Whether or not we have ourselves studied the philosophy of law, most of us are familiar with the fact that philosophical debate concerning the nature of law has been around since Ancient Greece. In much the same way, there have been long-running philosophical debates concerning justice, truth, reason and a host of other issues. The debate concerning law is in some respects different, however. For it is not too difficult to see how the nature of justice or truth or reason could give rise to a specifically philosophical debate, while it is far from clear why the nature of law should generate any philosophical puzzlement at all.
1 Some theories might wish to claim that justice does depend upon conventional beliefs. Such theories will either derive that conclusion from deeper non-conventional standards or they will be skeptical theories that are really denying that there is such a thing as justice, claiming that there are only groundless beliefs about justice. See Thomas Hobbes, Leviathan Chapters 14–15 (1651) (illustrating the way that Hobbes’ conclusions depend upon his “Laws of Nature”).Google Scholar
2 See Simmonds, Nigel, Law as a Moral Idea 1 (2007) (“Consequently, jurisprudence can fully understand its own status only when it has solved its central problem, by answering the question ‘What is law?'”).Google Scholar
3 Hart, H.L.A., The Concept of Law (2d ed. 1994).Google Scholar
4 This is, of course, not to deny that there is a philosophical problem in the vicinity of Hart's remarks, but Hart has failed to put his finger upon it in a way that can be expected to enlighten the reader.Google Scholar
5 Austin, John, The Province of Jurisprudence Determined (1832); H.L.A. Hart, Introduction to John Austin, The Province of Jurisprudence Determined (1954).Google Scholar
6 Hart, The Concept of Law, supra note 3; see also H.L.A. Hart, The Concept of Law (1961).Google Scholar
7 Kant, Immanuel, The Metaphysics of Morals, in Practical philosophy 353, 379 (Mary J. Gregor ed., 1996).Google Scholar
8 Kant, , supra note 7, at 387.Google Scholar
9 Id. Google Scholar
10 See Hart, The Concept of Law, supra note 3, at 84 (“[W]here rules exist, deviations from them are not merely grounds for a prediction that hostile reactions will follow or that a court will apply sanctions to those who break them, but are also a reason or justification for such reaction and for applying the sanctions.”).Google Scholar
11 H.L.A. Hart, Essays on Bentham 266 (1982).Google Scholar
12 Cf. Dworkin, Ronald, Law's Empire 3–6 (1986) (explaining the disagreement about law).Google Scholar
13 Hart, The Concept of Law, supra note 3.Google Scholar
14 There are perhaps some exceptions that do not affect the present argument. See Hart, The Concept of Law, supra note 3, at 153 (discussing the contexts where judges create law and then get their power to create it accepted after the event). As Hart puts it, “all that succeeds is success.” Id. Google Scholar
15 I set on one side for present purposes the “inclusive” aspect of Hart's legal positivism. See Hart, The Concept of Law, supra note 3, at 250 (explaining the inclusive aspect of Hart's legal positivism).Google Scholar
16 See id. at 84 (“[W]here rules exist, deviations from them are not merely grounds for a prediction that hostile reactions will follow or that a court will apply sanctions to those who break them, but are also a reason or justification for such reaction and for applying the sanctions.”).Google Scholar
17 Hart, , Essays on Bentham, supra note 11, at 266.Google Scholar
18 MacCormick, Neil, Legal Reasoning and Legal Theory 139–40 (1994). I phrase MacCormick's point in my own words here, which seem to me to capture his point better than his own formulations (which leave something to be desired).Google Scholar
19 Fuller, Lon, The Morality of Law (Revised ed. 1969).Google Scholar
20 Hart, , The Concept of Law, supra note 3, at 100–23.Google Scholar
21 Joseph, Raz, Between Authority and Interpretation: On the Theory of Law and Practical Reason 84–85 (2009). For criticism, see N.E. Simmonds, Reflexivity and the Idea of Law, 1 Jurisprudence 1 (2010).Google Scholar
22 Might one object that, since Hart's project is a purely descriptive one, he need not explain how the imposition of sanctions is to be justified? Such an objection would be misguided. Hart's theory “is concerned with the clarification of the general framework of legal thought.” H.L.A. Hart, Preface to H.L.A. Hart, The Concept of Law, at vi (2d ed. 1994). Hart would readily concede that this requires him to be able to explain how laws can intelligibly be invoked as a justification for the judicial decision, even if they do not in fact succeed in justifying the sanction. After all, it is on precisely this basis that Hart rejects Austin's analysis of “legal obligation” in terms of the likelihood of suffering a sanction: one cannot intelligibly invoke the likelihood of suffering a sanction as a reason for imposing a sanction.Google Scholar
23 Fuller, Lon, The Law in Quest of Itself (1940).Google Scholar
24 Collingwood, R.G., An Essay on Philosophical Method 100–01 (1933).Google Scholar
25 Id. at 4.Google Scholar
26 See Kramer, Matthew, Objectivity and the Rule of Law 108–09 (2007) (disputing this idea). I think, however, that Kramer misunderstands the import of Fuller's observation that the ideal of perfect realisation of the eight desiderata “is not actually a useful target for guiding the impulse towards legality.” Simmonds, Law as a Moral Idea, supra note 2, at 145.Google Scholar
27 For discussion, see Simmonds, Law as a Moral Idea, supra note 2, at 69–76.Google Scholar
28 Simmonds, N.E., Evil Contingencies and the Rule of Law, 51 Am. J. Juris. 179 (2006); Simmonds, N.E., Freedom, Law and Naked Violence, 59 U. Toronto L.J. 381 (2009).Google Scholar
29 Hart, The Concept of Law, supra note 3, at 207.Google Scholar
30 This summary description of the position obviously skates over a host of questions concerning, for example, the kinds of interferences that will prevent an option counting as being “available.”Google Scholar
31 Hart, Hart Essays on, supra note 11, at 171–73.Google Scholar
32 See Carter, Ian, A Measure of Freedom 237–45 (1999); Kramer, Matthew, The Quality of Freedom 135–49 (2003).Google Scholar
33 For other equally significant connections, see Kant's position as explained in Arthur Ripstein, Force and Freedom: Kant's Legal and Political Philosophy (2009).Google Scholar
34 See Pettit, Philip, Republicanism (1997); Skinner, Quentin, Liberty Before Liberalism (1998).Google Scholar
35 I am sure that Pettit and Skinner would wish to echo this claim; my point is simply that they sometimes appear to lose sight of it, and as a result, they seem to render themselves vulnerable to the line of attack developed by Carter and echoed by Kramer.Google Scholar
36 See, e.g., Selznick, Philip, Law, Society, and Industrial justice (1969).Google Scholar
37 See Ripstein, , supra note 33.Google Scholar
38 See Simmonds, N.E., Central Issues in Jurisprudence: Justice, Law and Rights 270–74 (3rd ed. 2008).Google Scholar
39 Simmonds, , Law as a Moral Idea, supra note 2, at 161. Cf. John Gardner, Offences and Defences: Selected Essays in the Philosophy of Criminal Law 45 2007) (explaining the notion of “moral clarity”).Google Scholar
40 See Gordley, James, Foundations of Private Law: Property, Tort, Contract, Unjust Enrichment (2006).Google Scholar
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