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October 31, 2007

Michael Green on H.L.A. Hart

Michael Green (William & Mary) has had one of the more unusual blogging stints in memory the past couple of weeks.  He deserves credit for tackling substantial topics, but his purported criticisms of Anglophone jurisprudence with respect to Kelsen and deontic logic have been quite peculiar and not, shall we say, wholly convincing.

Now Professor Green informs us that Hart's The Concept of Law "is frustratingly unclear" and "very difficult to teach because of its lack of clarity."  He thinks there are at least "fifty" contemporary philosophers of law "who could craft a clearer account of the essential features of law and legal systems than" Hart's and that they would do so without Hart's "frustrating opacity."  Readers may consult Green's post for what he considers "evidence" of this problem.  Comments are open there for those disposed to comment.  I will just say that while I found Green's comments about Kelsen and deontic logic peculiar, I find these remarks dumbfounding.

Posted by Brian Leiter on October 31, 2007 in Bad Jurisprudence | Permalink


I've already made a number of comments to Michael's post, which I won't repeat here. But Brian has focused on certain aspects of Michael's blog that raise an issue that is important for the assessment of Michael's claims. It is this: how exactly are we to assess the relative (and relevant) *clarity* of past work like Hart's?

As a field progresses, one of the things that tends to happen is that people become clearer about a number of distinctions of importance. A good example would be in the internalism/externalism debate, which, we can now see, partly masked a number of more finely-grained debates (are you a judgment-internalist, or a motivations-internalist, or a reasons-internalist? If you deny some, but not all, of these forms of internalism, then are you necessarily an "externalist," and, if so, then what is the importance of this narrower point.). In hindsight, I suppose it might appear that some of the early internalism/externalism debates were therefore framed in ambiguous terms, and were--to that extent--"unclear." But I think that an equally accurate, and perhaps more helpful, way to describe things is to say that they were just *early discussions of a topic*, which formed the basis for these more contemporary refinements.

Turning to Hart, I happen to think he was a very clear writer (even in The Concept of Law), at least in the senses most relevant to this discussion. And yet I say this as someone who has produced work that might seem to support the exact opposite conclusion. In "Hart's Response to Exclusive Legal Positivism," I have argued, in particular, that Hart's conception of the internal point of view may have been systematically ambiguous as to whether it makes essential reference to what Darwall has recently called the "second-person standpoint." (I have limited this claim to the internal point of view that is taken up in relation to norms that one takes to be legally obligatory.) And I have argued, further, that Hart struggled to capture certain features of legal authority that he was ultimately unable to define in terms then known to him. But, for what it's worth, I don't myself think that any of this means Hart was unclear in any sense relevant to the present discussion. In my view, this just shows that Hart's contributions can be developed and further refined with the aid of contemporary distinctions. (As I said in commenting on Michael's post, I also think it's important to develop these refinements with a clear sense of what the philosophical problems are that one is trying to address. In the philosophy of law, we are not just trying to describe the law in any old way, such that any distinction one can make will matter (!)).

Now, I suppose I could have just argued that legal authority makes essential reference to the second-person standpoint without referencing anything by Hart. But then I would not have been able to subsume and profit from a number of other elements of Hart's work that I think are very helpful and on track. (His naturalism, his quasi-expressivism, some of the general features of legal systems that he highlights, etc.) So I suppose that what I'm just trying to say is that clarity *by modern standards* is not always the best way to judge the importance and use of historical philosophical work. When past work gestures in helpful directions, which allow for later clarifiction and refinement, then past work can be very helpful as a starting point. I think Hart easily meets and surpasses this standard--though I also think that we'll likely progress away from so much focus on him, once a more consistent stream of good jurisprudential work has been developed.

Posted by: Rob Kar | Nov 1, 2007 4:07:57 PM

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