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Practice and Validity

Published online by Cambridge University Press:  16 January 2009

N. E. Simmonds
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Extract

The word “practice” does not occur frequently in the pages of H. L. A. Hart's book The Concept of Law. Yet the notion of a practice is, if not the key to the science of jurisprudence, at least the key to the central foundations of Hart's theory. The validity of a law, according to Hart, can be established by reference to certain social (or official) practices: in this way questions of legal validity are separated from questions of moral justification. The theory can profitably be read as a study of the connection between the characteristic forms of legal discourse and the existence of social practices.

It is surprising that the already voluminous literature on the Hart v. Dworkin dispute has neglected the issues I intend to raise. One of Dworkin's arguments attacks Hart's claim that the existence of a rule is, in some cases, the existence of a social practice. The argument, if successful, would refute everything Hart has to say about the rule of recognition. Can Hart's theory meet this criticism? I shall sketch the hint of a shadow of an analysis of practices which offers Hart an escape, but an escape which has its price. By adopting something resembling my analysis, Hart can preserve major elements of his theory. I will attempt to isolate those features which are valuable and which can be salvaged. The price that Hart must pay, however, is the abandonment of his extreme positivism. If my suggestions about practices are correct, then the ultimate questions concerning legal validity are moral or political questions.

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The Cambridge Law Journal , Volume 38 , Issue 2 , November 1979 , pp. 361 - 372
Copyright
Copyright © Cambridge Law Journal and Contributors 1979

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References

1 (Oxford: Clarendon Press 1961).

2 Hund's, J. G. note in Mind (1977).Google Scholar

3 It is sometimes tempting to say that the context forms “part of” the meaning of an utterance, but this is a mistake. The meaning of the word “meaning” can only be clarified by reference to the activity of “explaining the meaning” of a word or sentence. In such explanations we do in fact attach great importance to context.

4 Hart, op. cit., p. 99.

5 Ibid., p. 100. Also p. 106.

6 Ibid., Preface.

7 Loc. cit.

8 My discussion at this point assumes a close connection between the concepts of “law” and “legal system.” This might misinterpret Hart but, even so, I do not consider that to be very relevant to the main aims of my article.

9 Ibid., p. 245.

10 Loc. cit.

11 This terminology is convenient, but I would not wish to suggest that Hart uses it in precisely this way.

12 Ibid., p. 107.

13 Ibid., pp. 54–55.

14 n. 9 above.

15 Dworkin, , Taking Rights Seriously (London: Duckworth 1977), pp. 48–58.Google Scholar I have discussed Dworkin's argument at greater length and from a rather different point of view in my article “Practices and Professor Dworkin” (1978)Google Scholar, Juridicat Review, 142.

16 Hart, op. cit., p. 90.

17 In my other article on the subject I suggest that Dworkin neglects the distinction between behaviour and action. If there is any truth in that suggestion it would serve to connect the issues discussed here with a wide range of philosophical problems.

18 I am conscious of a difficulty here. If describing a practice involves an interpretation of its rationale, how can there be a pointless practice?

19 Dworkin, op. cit., p. 58.

20 Hägerström, , Inquiries into the Nature of Law and Morals (Stockholm 1953), p. 17.Google Scholar