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Published online by Cambridge University Press: 20 July 2015
Making the perspective of insiders critical to a theory of law, including particularly those who accept and enforce legal standards, has been the hallmark of corrections to John Austin’s theory at least since Hart’s The Concept of Law. Burge-Hendrix’s book continues this tradition and brings its insights to bear on the particular dispute between inclusive and exclusive positivists. That being said, the project has always seemed to me to be incomplete. If the participant’s perspective is indeed the critical one, then the recognition that participants make normative claims about the concept of law itself (not just about their legal standards) surely deserves its own proper place in a legal theory. Those normative claims about law range, at the very least, from claims that coercion is (morally) justified to claims of (moral) authority. If these claims turn out to be false in cases of laws that are extremely unjust, then either they are not “laws” at all according to the participants’ own views(in which case the natural law theorists are correct.) Or, participants will have to give up their normative claims about law and recognize that all that counts is pedigree and the power to coerce. In that case, we will be back to Austin’s coercive account of law, and much of the dispute between exclusive and inclusive positivists will be irrelevant.
1. Chapter two (“Concept or Concepts of Law”) considers whether some societies might have social systems so different as to constitute distinct “concepts of law,” in which case no single legal theory could explain the concept for both systems. A purported example is the sixteenth-century German legal system of Spruchkollegien in which academics could issue legally binding opinions (41-42). The chapter contributes little to the book’s overall thesis and seems paradoxical: if the phenomena under consideration are really different, then they are different things (religious systems, e.g., not legal systems); to insist that they are different but still concepts of “law” implies that there is a general, abstract genus of “law” which these varying systems share, however different they may be in their particulars. The Spruchkollegien example is particularly unconvincing as any general theory (such as Hart’s) would simply explain that in this system the Rule of Recognition gave academics the power to function as judges.
2. The argument is made by Murphy, Liam, “The Political Question of the Concept of Law” in Coleman, Jules, ed. Hart’s Postscript: Essays on the Postscript to the Concept of Law (New York: Oxford University Press, 2001).Google Scholar
3. The point seems well-taken, indeed obvious; but the chapter could have been improved if Burge-Hendrix had proceeded to evaluate Murphy’s arguments for the political advantages of exclusive positivism. The claim that natural law, or inclusive positivism, encourages “quietism” because citizens are too apt to defer to legal experts’ opinions about the justice of morally-laden “laws” is, to my mind, insupportable. See Soper, Philip, “Choosing a Legal Theory on Moral Grounds” (1987) 4 Social Phil. & Policy 31.CrossRefGoogle Scholar (Reprinted in Philosophy and Law, Coleman, J. & Paul, E.F., eds. (Oxford: Basil Blackwell, 1987)).Google Scholar (“Moral conscience, if it is inclined to yield to officialdom, is likely to do so regardless of the prevailing legal theory because [all regimes] will claim that their directives are just”.) At the very least, moral arguments about which legal theory has the best consequences are at least as uncertain as the epistemic issues that divide inclusive and exclusive positivists. An argument developing this conclusion would have bolstered Burge-Hendrix’s claim that the rush to a “second best” theory (on moral grounds) is unwarranted.
4. The primary target of the discussion here is Stephen Perry. See Perry, “Hart’s Methodological Positivism” in Hart’s Postscript, supra note 2.
5. Waluchow, W.J., Inclusive Legal Positivism (Oxford: Clarendon Press, 1994).Google Scholar The influence of Waluchow’s work in exploring these two versions of positivism and in defending the inclusive positivist’s position is evident throughout Burge-Hendrix’s book, so much so that the room for originality is considerably reduced.
6. For a fuller discussion, see Soper, , “Searching for Positivism” (1995-96) 94 Mich. L. Rev. 1739 at 1744-51CrossRefGoogle Scholar (reviewing Waluchow, ibid.).
7. This argument can be dressed up in many ways, e.g., by a theory of authority that insists that law, to be authoritative, must claim to exclude the underlying reasons that go into determining legally required conduct. See, e.g., Raz, J., The Authority of Law: Essays on Law and Morality (Oxford; Clarendon Press, 1979).CrossRefGoogle Scholar Raz’s account of authority is, of course, controversial. See Soper, P, The Ethics of Deference (Cambridge: Cambridge University Press, 2002) at 51–88.CrossRefGoogle Scholar But in any event, it seems of secondary importance. Whatever one thinks law claims about required conduct, it is still true that one must first know what the required conduct is—that is the primary point. See Soper, supra note 6 at 1746.
8. This latter objection is problematic. Unless one intends to take a position on the meta-ethical question of the objectivity of morality (which, as discussed above, seems off-limits to positivists), the only moral standards that might seem uncontroversial are either very trivial ones, which will not apply in most cases, or widely accepted norms—in which case, it is arguably not morality but social facts that are guiding contact. See Soper, supra note 6 at 1750.
9. Compare Dworkin, R, Taking Rights Seriously (Cambridge, MA.: Harvard University Press, 1986) at 349 Google ScholarPubMed (the whole point of positivism is to provide a theory of law that is “independent of any controversial theory either of meta-ethics or of moral ontology,” with Hart, H.L., The Concept of Law, 2nd ed. (Oxford: Clarendon Press, 1994) at 253–54 Google Scholar (“I still think legal theory should avoid commitment to controversial philosophical theories of the general status of moral judgments and should leave open, as I do in this book, the general question of whether they have what Dworkin calls ‘objective standing’.”).
10. For the same argument, using even more “extreme” examples of judges relying on witchcraft and astrology, see Soper, , “Two Puzzles From the Postscript” 4 (1998) Legal Theory 359 at 366-72.CrossRefGoogle Scholar
11. Ibid.
12. See Soper, , “In Defense of Classical Natural Law in Legal Theory: Why Unjust Law is No Law at All” (2007) 20 Can. J. Law & Juris. 201.CrossRefGoogle Scholar