Hart’s The Concept of Law has left positivism uneasy with the philosophical divide between moralism and reductivism. The Hobbesian notion of moral chaos, from which positivism is derived, requires that the law be understood independently from subjective moral values, and the rejection of moralist accounts. A reductivist legal theory, Hart argues, is insufficient in that merely predicts what will happen, and cannot explain issues such as why we obey the law, and on what criteria the law is made and to be judged by- the ‘normativity’ of the law. While Hart offers a middle way between moralism and reductivism, a ‘social normativity’ to the law found from within the legal institution itself, his efforts are largely unconvincing. As a result, contemporary positivists appeal to moralist concepts of an absolute morality or goodness in their efforts to explain the law’s normativity. This paper, by contrast, rejects such moralist notions and attempts to follow in Hart’s stead by offering an alternative theory of social normativity.
Hart’s ‘social normativity’ – why it fails.
Hart’s theory works off Austin’s reductivist definition of the law, orders backed by threat of a sanction from an independent and supreme sovereign to those in a habit of obedience to that sovereign. Hart claims that by redefining Austin’s definition as a collection of social rules which both bind and empower the individual, such rules become normative. Hart’s rules form a pyramid of rules whose validity ultimately depends on the “Rule of Recognition,” a master rule, binding if accepted by officials and obeyed by ordinary citizens. Hart further argues that this obedience is maintained by social coercion, pressure from others and the mandate to pressure others.
Hart’s theories find little support in contemporary jurisprudence, as it seems Hart fails to distinguish himself from basic reductivist principles. The distinction between acceptance by officials and obedience by the general public seems arbitrary, how does someone else accepting a rule create an obligation? Who are these officials? The validity of Hart’s theory is rooted in a cyclical argument – officials are selected by rules, which are valid by the rule of recognition, which needs acceptance by officials to be enforced. If this element is removed, all that is left is a position similar to Austin’s definition – rules valid only because they are based on something supreme, obeyed by the general population because of social pressure to do so. In response to Dworkin’s attack on the validity of ‘social normativity’ in Law’s Empire, Hart, in his post-script, accepts that moral principles may be integrated to the rule of recognition. As a result, Hart fails his own concept of social normativity, as if the validity of the rules becomes dependent on their morality, it is morality, not the rules, which makes the law normative.
Contemporary positivism and moralism
Post-Hart positivist theories are driven by a presumed link between normativity and conceptions of morality or goodness, and therefore include certain concepts (i.e. Dworkin’s moral principles, Raz’s justified normativity, Fuller’s morality of the law, Kelsen’s basic norms) to accommodate this moralist intervention. This is because questions such as normativity invoke the same issue that faces any philosophical inquiry into the process of reasoning itself –rationality cannot be justified by its own rules. Lewis Carroll illustrates this issue best in the allegory “What the Tortoise Said to Achilles,” where the tortoise refuses to accept the conclusion of Achilles’ basic syllogism by rejecting the idea that paired factual statements necessitate the conclusion. Asking Achilles to use logic to justify the syllogistic format, the tortoise tricks Achilles into an infinite regression, as any factual statement justifying the format needs another factual statement to justify the format.
Like Achilles, contemporary positivists, when asking why we obey the law, are faced with the prospect of not being able to justify any motivation to obey due to the infinite regression that would result from strict adherence to the principles of logic. Instead, these positivists fall back to dogmatism, and declare infallible truths that, in their own right, are both factually true and persuasive. Dworkin and Fuller rely on absolute moral principles. Kelsen relies on an absolute basic norm. Raz, though not explicitly, requires some notion of an absolute goodness for his service conception of the law to work, shown by his acquiescence towards Finnis’ basic goods. They all appeal to constructed notions beyond the limits of logic and reason, which, as a result, are not subject to rational criticism. However, dogmatism is also necessary to the operation of rationality, as the purpose of reason is to decide an argument’s persuasiveness by distilling it to its core justification, an agreeable truth. For the operation of an argument to work correctly (without resorting to circularity) and completely (without an infinite regression), a truth must be presupposed.
Moralism purports to provide such a truth, appealing as a dogmatic scheme of morality and goodness. However, moralism as a justification seems inappropriate. For an argument to be persuasive, the truth must be agreeable to serve as a common standard for the discussion. Morality, by virtue of its nature, is invoked in issues of controversy and contention as a means of by-passing difficult justification. To refer to a morality is to assume that the other party agrees to that morality as a motivating force for their decisions, which is very rarely the case. To declare a specific morality or goodness as a universal truth, thereby, is a difficult proposition to maintain. Moralism should be seen as the dangerous concept it is, and, as a matter of principle, ought not to be utilized as the ultimate justification of a legal theory.
An obligation to obey
Raz in The Authority of Law distinguishes two types of reasons to obey, moral and prudential, and argues that only moral reasons can create an obligation, as the persuasiveness of prudential reasons are contingent on certain shared aims. Therefore “You ought to do X if you want Y” does not impose an obligation, as one needs to want ‘Y’ for it to be persuasive. By contrast, Raz argues, moral reasons such as “Thou shall not kill” do impose an obligation, as they are not contingent on any aim. This distinction between prudential and moral reasons in an artificial one, as moral reasons can be rephrased to fit the prudential format – “Thou shall not kill if thou wants to be moral.” Even if one accepts the concept of an absolute morality, the only difference between the two types of reasons is that being moral is considered a universal aim, and therefore the condition can be dropped. If that is the case, the distinction should be between reasons pursuing universal aims and conditional aims, and therefore, if – in theory – one could find an alternative universal aim, they can found an alternative basis for an obligation.
A Character-based theory
By referring again to Hart’s theory, specifically the critically reflective attitude invoked by social pressure, and flipping the focus from society to the individual, Hart can be seen as arguing that people obey the law to protect their reputation, or character. Working with this concept of ‘character’, it is submitted that a character can be understood as the objectification of personality – the flat, first-instance image one projects to the rest of the world. Characters can be seen as a necessary element of societal cooperation, as by projecting certain values/characteristics to the forefront of one’s personality, the introductory phase of human interaction can be shortened to moments, and relationships formed. However, with deference to Wolff’s concept of autonomy as a right to self-legislation, it seems reasonable to suggest that the autonomous person has a need to define themselves as individuals. Therefore it is contended that creating, maintaining and developing one’s character, as an expression of personality, may be considered necessary to the universal aim of preserving autonomy, and can found an obligation.
With control over the maintenance and development of character as a potential ground for an obligation, a theory of social normativity to the law may be possible. However, this requires some working backwards in the construction of how to view the law. Taking the view of society as a collection of characters, each with their own values and characteristics, social norms can be seen in a similar light to Hart, hierarchies of rules which become valid by acceptance of a rule of recognition. However, anyone can create such a set of rules, which are merely the formalization of their expectations towards other characters, and the legal system is but only one of many sets of rules available. People develop certain archetypes of characters, which result in there being certain expectations that need to be met before the character is accepted. These sets of rules, as expectations concerning other characters, become correspondingly more normative the more people subscribe to their rules of recognition.
The reason for their normativity is that the stigma associated with breach of a commonly held expectation results in the collection of rules’ institution applying a societal label to the character to make it fit within one of their archetypes. The more people subscribing to the rule of recognition, the greater the ability of that institution to advertise its societal label and therefore the more the label is able to distort and paralyze the aspects of character to which it applies. The threat of these labels runs directly against the maintenance and development of character, as autonomy requires autonomy at every point in time. Just as parliament cannot bind a future parliament, autonomy requires fluidity of character, and the distorting paralyzing effect of these societal labels prevent one from amending their character in the future. Therefore the autonomous person actually has an obligation to avoid appropriating particularly stigmatizing societal labels.
An ‘autonomous obligation’?
For this character-based theory to work, one has to accept the paradoxical notion that autonomy can create an obligation. While unusual, the idea of an autonomous obligation is by no means a novel or absurd idea. Wolff, in “In Defense of Anarchism,” identifies an obligation to take responsibility as an obligation not to sacrifice the ability to reason to the judgment of someone else. Following this logic, by accepting the notion of character, one has an obligation to determine it as a positive imposition of certain characteristics on others. To allow the character to simply be reactive to the desires or social expectations of others, or to see character as the mere appearance of personality in a social context, is to take a passive role in the formation of that character and fail to meet the autonomous duty.
The paradox of an “autonomous obligation,” reflects the complexity of the relationship between individual interests and societal interests as motivations for action. Autonomy is a generally recognized, and benign, justification for acting in the self-interest. Rather than presuppose some alternative universal aim (i.e. Morality) to weigh against autonomy as a means of explaining self-sacrifice, this theory aims to put society’s interests and individual interests on the same sliding scale. Whichever best preserves autonomy wins and gets obligatory force.
The Character-based Theory and the Legal Framework.
The Character-based obligation can be linked to the law if one sees the law as a traditional, widely subscribed institution of rules with a wide capacity to advertise its labels. The particular potency of the law’s labels is due to the process by which it is decided. The law is determined by taking a broad stroke view of the collection of characters under its desired dominion and formalizing what seems to be the most common elements, these elements forming the culture of that territory. The law must use culture to determine its rules, as in order to maximize its normativity; it ought to require the fewest number of people to change their characters to accept the rule of recognition. Therefore the ‘morality of law’ is actually just the formalization of the seemingly most common values within the territory. The law changes as the culture changes and judges and legislators use their discretion with the will of the majority in mind.’
Kiran Rao
King’s College London 2012