Week 2
Recap:
Two competing accounts of law’s nature:
- Legal Positivism is the view that what counts as law is purely a matter of social fact
- Natural Law is the view that what counts as law is in some sense a moral question
- Is legal positivism just pursuing a much narrower enquiry into the conditions of legal validity?
Legal Positivism: Claims:
- Law is a matter of social fact. It is determined its sources not by its merits.
- Law is conceptually/systemically separable from morality
- What law is and what it ought to be are two separate questions
o NOT a claim that there are no necessary connections between law and morality
+ Law may in fact still incorporate moral elements
o But that legal validity (the status of some norm or requirement as law) need/must not depend on its moral merits
a narrow statement
Legal Obligation/Normativity:
- Hart says an important aspect of law is that it obligates us:
o “[W]here there is law, there human conduct is made in some sense non-optional or obligatory.” Hart,
Concept of Law, p 82
When law tells us to do X, there is an obligation to do X not solely stemming from a demand backed
by a sanction
Hart trying to find a legal obligation to do X an autonomous normativity differentiated from a
moral requirement or one backed by threat of sanction
- Different from command (gunman) The Gunman does not create an obligation to hand over our money. So Hart wants
to make sense of how law is different from that sort of mere ‘command’.
- His idea of social practices is supposed to explain that sense
- But this account explains how obligations exist for those who accept them. Not if one really is obligated. Or why
they exist in a moral sense.
Social Rules:
- Can we say more about social rules?
- Marmor says that Hart’s account of social rules is insufficient
- It doesn’t adequately distinguish between following a widely accepted reason and following a rule
- Hart’s theory doesn’t adequately explain the specific way in which social rules are normative. It doesn’t tell us why
people follow them. In what way does the rule of recognition give the judge a reason for action?
Social Conventions:
- To solve these problems, we can see the rule of recognition as a social convention
- Social conventions are rules where a reason to follow them is the mere fact that others do
o The very fact that we all agree on it and use it gives us the reason for action
- In other words, conventions arise as solutions to coordination problems
- They are in some sense arbitrary
The Rule of Recognition as a Social Convention:
- Hart suggests that we can see the Rule of Recognition as a social convention so judges should follow it because other
judges follow it too
o Doesn’t point to morality
- But, as Marmor points out, the Rule of Recognition is not fully arbitrary
o It matters very much what laws people settle on!
Different legal systems chosen for different reasons based off of historicism
- And law isn’t just about coordination problems; rules are chosen because they are thought to be good or suitable ones
o E.g. Parliamentary sovereignty
Constitutive Conventions:
- There are different types of conventions, Marmor argues, that don’t solve coordination problems
- They constitute autonomous practices
- Games are conventional practices that are constituted by the conventions that govern them
o These don’t solve problems – chess isn’t a solution to any kind of problem.
- To understand law we have to look to the historical narrative to explain why a particular rule of recognition emerges
The Rule of Recognition as a Constitutive Convention:
- Query: is there a proper analogy with games here?
o Law is not fully autonomous as games are
o Games have a sense of autonomy, no impact on our lives, but law isn’t the same where the analogy runs out
- Marmor says that these rules can’t tell us whether or not to play the game, but they can tell us what the rules are once we
are inside the practice
- Legal obligations exist within the practice, and on Marmor’s view, can conflict with moral obligations (‘whether judges,
or anybody else, should or should not respect the rules of recognition of a legal system is purely a moral issue that can
only be resolved by moral argument’ p 530)
Approaches towards compliance with the law:
- Independent moral reasons
Recap:
Two competing accounts of law’s nature:
- Legal Positivism is the view that what counts as law is purely a matter of social fact
- Natural Law is the view that what counts as law is in some sense a moral question
- Is legal positivism just pursuing a much narrower enquiry into the conditions of legal validity?
Legal Positivism: Claims:
- Law is a matter of social fact. It is determined its sources not by its merits.
- Law is conceptually/systemically separable from morality
- What law is and what it ought to be are two separate questions
o NOT a claim that there are no necessary connections between law and morality
+ Law may in fact still incorporate moral elements
o But that legal validity (the status of some norm or requirement as law) need/must not depend on its moral merits
a narrow statement
Legal Obligation/Normativity:
- Hart says an important aspect of law is that it obligates us:
o “[W]here there is law, there human conduct is made in some sense non-optional or obligatory.” Hart,
Concept of Law, p 82
When law tells us to do X, there is an obligation to do X not solely stemming from a demand backed
by a sanction
Hart trying to find a legal obligation to do X an autonomous normativity differentiated from a
moral requirement or one backed by threat of sanction
- Different from command (gunman) The Gunman does not create an obligation to hand over our money. So Hart wants
to make sense of how law is different from that sort of mere ‘command’.
- His idea of social practices is supposed to explain that sense
- But this account explains how obligations exist for those who accept them. Not if one really is obligated. Or why
they exist in a moral sense.
Social Rules:
- Can we say more about social rules?
- Marmor says that Hart’s account of social rules is insufficient
- It doesn’t adequately distinguish between following a widely accepted reason and following a rule
- Hart’s theory doesn’t adequately explain the specific way in which social rules are normative. It doesn’t tell us why
people follow them. In what way does the rule of recognition give the judge a reason for action?
Social Conventions:
- To solve these problems, we can see the rule of recognition as a social convention
- Social conventions are rules where a reason to follow them is the mere fact that others do
o The very fact that we all agree on it and use it gives us the reason for action
- In other words, conventions arise as solutions to coordination problems
- They are in some sense arbitrary
The Rule of Recognition as a Social Convention:
- Hart suggests that we can see the Rule of Recognition as a social convention so judges should follow it because other
judges follow it too
o Doesn’t point to morality
- But, as Marmor points out, the Rule of Recognition is not fully arbitrary
o It matters very much what laws people settle on!
Different legal systems chosen for different reasons based off of historicism
- And law isn’t just about coordination problems; rules are chosen because they are thought to be good or suitable ones
o E.g. Parliamentary sovereignty
Constitutive Conventions:
- There are different types of conventions, Marmor argues, that don’t solve coordination problems
- They constitute autonomous practices
- Games are conventional practices that are constituted by the conventions that govern them
o These don’t solve problems – chess isn’t a solution to any kind of problem.
- To understand law we have to look to the historical narrative to explain why a particular rule of recognition emerges
The Rule of Recognition as a Constitutive Convention:
- Query: is there a proper analogy with games here?
o Law is not fully autonomous as games are
o Games have a sense of autonomy, no impact on our lives, but law isn’t the same where the analogy runs out
- Marmor says that these rules can’t tell us whether or not to play the game, but they can tell us what the rules are once we
are inside the practice
- Legal obligations exist within the practice, and on Marmor’s view, can conflict with moral obligations (‘whether judges,
or anybody else, should or should not respect the rules of recognition of a legal system is purely a moral issue that can
only be resolved by moral argument’ p 530)
Approaches towards compliance with the law:
- Independent moral reasons
