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A Practice Theory of Legal Pluralism: Hart’s (inadvertent) defence of the indistinctiveness of law

Published online by Cambridge University Press:  20 July 2015

Mariano Croce
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This article claims that H.L.A. Hart’s theory may be regarded as a sound vindication of what today is known as legal pluralism. In short, Hart’s practice theory of norms attests to the fact that state law is only one system of rules among many others, and that it does not exhibit any distinctive feature that may distinguish it from those others. I will depict this as an inadvertent but extremely valuable outcome of the practice theory. Indeed, Hart’s battle against the claimed connection between law and coercion and his firm conviction that legal normativity should be understood in light of the broader phenomenon of social normativity make his practice theory of rules a sound and fertile vindication of legal pluralism as a theoretical approach to legal phenomena. As a result, even though Hart was a legal centralist and a legal monist, his theorizing ends up dismantling the identity between the general phenomenon of law and the law of the state. I will proceed as follows: I will first look at the contentious issue of the relation between law and coercion by examining how two prominent legal scholars, Hans Kelsen and E. Adamson Hoebel, came to the conclusion that the distinguishing mark of law is coercion (sec. 1). This analysis will be instrumental in demonstrating that Hart failed to grasp the relevance and salience of the relation between law and coercion, and in particular, the peculiar role Kelsen and Hoebel attributed to the latter (sec. 2). I will argue that Hart’s discomfort with the emphasis on the notion of coercion was due not to the nature of this notion as such, but to the distortive effect its overemphasis had exerted on positivist legal theorizing. I will claim that Hart’s most insidious adversaries were two (at the time prominent) philosophical and jurisprudential streams, namely, behaviourism and emotivism (sec. 3). I will go on to say that Hart’s arguments against these adversaries are well addressed but inadequate, and will try to reinforce them by drawing on a Wittgensteinian view of practices (sec. 4). I will conclude by showing that the consistent outcome of a “reinforced” practice theory is a highly pluralist view of law (sec. 5).

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Research Article
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Canadian Journal of Law & Jurisprudence , Volume 27 , Issue 1 , January 2014 , pp. 27 - 47
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Copyright © Canadian Journal of Law and Jurisprudence 2014 

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References

1. Menski, Werner, Comparative Law in a Global Context: The Legal Systems of Asia and Africa, 2d ed (Cambridge: Cambridge University Press, 2006) at 98.CrossRefGoogle Scholar

2. Ibid at 99.

3. Hart, HLA, The Concept of Law, 2d ed by Bulloch, Penelope A & Raz, Joseph (Oxford: Oxford University Press, 1994 Google Scholar) [Hart, Concept of Law].

4. For pithy and thoughtful introductions to the wide-ranging debates in the field of legal pluralism, see Tamanaha, Brian Z, “Understanding Legal Pluralism: Past to Present, Local to Global” (2008) 30 Sydney L Rev 375 Google Scholar; Woodman, Gordon R, “Ideological Combat and Social Observation: Recent Debate about Legal Pluralism” (1998) 42 J Legal Pluralism 21 CrossRefGoogle Scholar. For a detailed examination of the theoretical views of some leading exponents of legal pluralism and a detailed reference list on the subject, see Croce, Mariano, Self-sufficiency of Law: A Critical-institutional Theory of Social Order (Dordrecht: Springer, 2012)CrossRefGoogle Scholar ch 5.

5. For a thoughtful and comprehensive work on this topic, see Twining, William, General Jurisprudence: Understanding Law from a Global Perspective (Cambridge: Cambridge University Press, 2009).CrossRefGoogle Scholar

6. Legal centralism and legal monism are the two mortal sins of mainstream legal theory according to one of the most famous articles in the field of legal pluralism. See Griffths, John, “What is legal pluralism?” (1986) 24 J Legal Pluralism 1 CrossRefGoogle Scholar.

7. On the diatribe between Kelsen and Ehrlich, see Klink, Bart van, “Facts and Norms: The Unfinished Debate Between Eugen Ehrlich and Hans Kelsen” in Hertogh, Marc, ed, Living law: reconsidering Eugen Ehrlich (Oxford: Hart, 2009)Google Scholar.

8. Kelsen, Hans, General Theory of Law and State, translated by Wedberg, Anders (Cambridge: Harvard University Press, 1945) at 26 Google Scholar [Kelsen, General Theory].

9. Even though Hart does not directly comment upon Hoebel’s theory, I would like to stress two points. First, by briefly exploring Hoebel’s idea of coercion, I want to suggest that the issue of the relationship between law and sanctions does not merely relate to the circumscribed context of modern Western states. This is why I believe the heated debates among legal anthropologists about sanctions and the law in non-Western geo-historical contexts to be very useful for legal philosophy as well. Second, I think that Hart’s attitude toward the work of legal anthropologists is still to be excavated. Even though—as many legal anthropologists have pitilessly noted—Hart’s understanding of primitive law was definitely underdeveloped, his (scattered and hasty) references in footnotes show that he took notice of what was going on in the field of legal anthropology, and it could be the case that some of his reflections on sanctionless laws were inspired by the work of leading legal anthropologists such as Bronislaw Malinowski (whom Hart cites).

10. Llewellyn, KN & Adamson Hoebel, E, The Cheyenne Way: Conflict and Case Law in Primitive Jurisprudence (Norman: University of Oklahoma Press, 1941).Google Scholar

11. Llewellyn, KN, “The Normative, the Legal, and the Law-Jobs: The Problem of Juristic Method” (1940) 49 Yale LJ 1355 CrossRefGoogle Scholar. In my opinion, for the best work on Llewellyn’s seminal contribution to legal theory, see Twining, William, Karl Llewellyn and the Realist Movement, 2d ed (Cambridge: Cambridge University Press, 2012)CrossRefGoogle Scholar (among other things, the author thoroughly elucidates the capacity of the idea of law-jobs to meet some of the challenges of the contemporary globalized world).

12. E Hoebel, Adamson, The Law of Primitive Man: A Study in Comparative Legal Dynamics (New York: Harvard University Press, 1954) at 28 Google Scholar [emphasis in the original].

13. Ibid at 25 [emphasis added].

14. Ibid [emphasis added].

15. Ibid at 27.

16. Kelsen, Hans, Introduction to the Problems of Legal Theory: a translation of the first edition of the Reine Rechtslehre or Pure theory of law, translated by Paulson, Bonnie Litshewski & Paulson, Stanley L (Oxford: Oxford University Press, 1992) at 10 Google Scholar [Kelsen, Problems of Legal Theory]. On Kelsen’s notion of ‘imputation’, see Paulson, Stanley L, “Hans Kelsen’s Doctrine of Imputation” (2001) 14 Ratio Juris 47 Google Scholar; Langford, Peter & Bryan, Ian, “Hans Kelsen’s Concept of Normative Imputation” (2013) 26 Ratio Juris 85 CrossRefGoogle Scholar.

17. Kelsen, supra note 16 at 10.

18. Ibid.

19. Hoebel, supra note 12 at 15.

20. See Nino, Carlos S, Introducción al análisis del derecho, 2d ed (Buenos Aires: Editorial Astrea, 2003)Google Scholar.

21. Hart, Concept of Law, supra note 3 at 34-35 [emphasis added].

22. Ibid at 285.

23. Kelsen portrays norms of competence as always related to primary rules involving the application of a sanction on the part of officials. See Kelsen, General Theory, supra note 8 (“If two individuals make a loan contract, if the debtor does not return the loan in due time, and if the creditor brings a suit against the debtor, then the court has to order a certain sanction against the debtor” at 90).

24. Here I am assuming that there is a stable identity between secondary rules and power-conferring rules. Although this appears to be Hart’s view in the passages to which I refer, in other parts of the book it appears questionable. As early as 1971, Rolf Sartorius cast light on two principal and incompatible accounts of secondary rules given by Hart in The Concept of Law. At times Hart depicts secondary rules as rules of competence that confer power on officials and govern specific sectors of citizens’ private life (contracts, marriages, wills). At other times he describes secondary rules as rules over rules, namely rules which indicate how to recognize, apply, and modify primary rules. Sartorius contends that not every rule over rules confers power, and that not every norm of competence is a rule over other rules. See Sartorius, Rolf, “Hart’s Concept of Law” in Summers, Robert S, ed, More Essays in Legal Philosophy: General Assessments of Legal Philosophies (Berkeley: University of California Press 1971) 131 Google Scholar.

25. Kelsen, Problems of Legal Theory, supra note 16 at 26 [emphasis added].

26. Hart, Concept of Law, supra note 3 at 34-35 [emphasis added].

27. See Rottleuthner, Hubert, A Treatise of Legal Philosophy and General Jurisprudence, vol 2 (Dordrecht: Springer, 2005) at 12–17 Google Scholar.

28. It should be noted that some interpreters of Hart would disagree with my contention here. In particular, they would argue that Hart was the holder of an early form of expressivism. See e.g., Toh, Kevin, “Hart’s Expressivism and His Benthamite Project” (2005) 11 Legal Theory 75 CrossRefGoogle Scholar; Shapiro, Scott J “What is the Internal Point of View?” (2006) 75 Fordham LR 1157 Google Scholar. This interpretation relates to Hart’s understanding of statements about the existence of primary legal rules that do not state propositions and therefore cannot be true or false. I will not delve further into this issue at this time, but I think that an alternative and perhaps sounder way to interpret the nature of such statements is to focus on the different types of validity claims that different speech acts raise. For a reading of Hart’s internal aspect of statements about rules as akin to Jürgen Habermas’s element of validity in the Janus-face of the law, see Rehg, William, “Translator’s Introduction” in Habermas, Jürgen, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, translated by Rehg, William (Cambridge: Polity Press, 1996)Google Scholar.

29. Hart, Concept of Law, supra note 3 at 90.

30. For a convincing explanation of this point, see Stueber, Karsten R, “How to Think about Rules and Rule Following” (2005) 35 Philosophy of the Social Sciences 307 CrossRefGoogle Scholar “We normally are not aware of the fact that we are following certain rules…. But what makes our social skill a practice of rule following is the fact that I recognize normative violations. It is in such moments that I am also able to recognize my practice as following the rule” at 319).

31. Hart, HLA, Essays in Jurisprudence and Philosophy (Oxford: Oxford University Press, 1983) at 13 CrossRefGoogle Scholar [Hart, Essays].

32. Ibid at 167.

33. This is why I believe that Hart’s project in 1961 was much more ambitious than a conventionalist account of the coordinated practice of judges. He wanted to reach the core of social normativity and, based on this, to shed light on the normativity of legal obligations.

34. Ross, Alf, Book Review of The Concept of Law by Hart, HLA, (1962) 71 Yale LJ 1185 at 1188-89CrossRefGoogle Scholar.

35. Ibid at 1189.

36. As Jules Coleman observes, Ross’s legal positivism rests on his logical positivism, which urges Ross to assert, with no further justification, that “normative language generally lacks cognitive content” ( Coleman, Jules L, The Practice of Principle: In Defence of a Pragmatist Approach to Legal Theory (Oxford: Oxford University Press, 2001) at 202 Google Scholar [Coleman, Practice of Principle]).

37. See Coleman, Jules L, “Authority and Reason” in George, Robert P, ed, The Autonomy of Law: Essays on Legal Positivism (New York: Oxford University Press, 1999) 287 CrossRefGoogle Scholar [Coleman, “Authority”].

38. For reasons for doubting that in the 1960s Hart regarded his theoretical enterprise in terms of an ‘embryonic’ conventionalist account of legal normativity, see Dickson, Julie, “Is the Rule of Recognition Really a Conventional Rule?” (2007) 27 Oxford J Legal Stud 373 CrossRefGoogle Scholar; Gardner, John, “Some Types of Law” in Edlin, Douglas E, ed, Common Law Theory (Cambridge: Cambridge University Press, 2007)Google Scholar.

39. I am not saying that my attempt is original. A good deal of literature is devoted to Wittgenstein and legal theorizing and also to the particular relationship between Wittgenstein and Hart. See, e.g., Patterson, Dennis, ed, Wittgenstein and Law (Farnham: Ashgate, 2004)Google Scholar. It is my claim, however, that recent debates in legal theory have established quite a strong link between the questions of rule-following and legal indeterminacy, so as to favour a ‘sceptical’ reading of Wittgenstein’s view of meaning and rules. See, e.g., Bix, Brian, Law, Language, and Legal Determinacy (New York: Oxford University Press, 1993)Google Scholar ch 2. Quite the contrary, I would support the argument that “Wittgenstein’s lesson” for law is not “a lesson of legal indeterminacy” ( Schauer, Frederick, “Pitfalls in the Interpretation of Customary Law” in Perreau-Saussine, Amanda and Murphy, James Bernard, eds, The Nature of Customary Law: Legal, Historical, and Philosophical Perspectives (Cambridge: Cambridge University Press, 2007) 13 at 26Google Scholar).

40. For a captivating discussion of that topic, see Brian Simpson, AW, Reflections on ‘The Concept of Law’ (Oxford: Oxford University Press, 2011) at 96ff CrossRefGoogle Scholar.

41. Some scholars think that there is no relation whatsoever between these two giants of philosophy. For example, Austin’s former disciple John R Searle forcefully claims that there was neither theoretical nor personal sympathy between the two. John R Searle, (Philosophy 133 Lecture delivered at UC Berkeley, Fall 2010), online: http://www.youtube.com/watch?v=-9BXHqiosnI.

42. In this section I will refer to the following edition of Wittgenstein’s Philosophical Investigations: Wittgenstein, Ludwig, Philosophical Investigations, 4th ed by Hacker, PMS & Schulte, Joachim, translated by Anscombe, GEM, Hacker, PMS & Schulte, Joachim (Oxford: Blackwell 2009)Google Scholar.

43. Ibid at § 31.

44. Ibid.

45. “The use of the word ‘rule’ and the use of the word ‘same’ are interwoven” (Wittgenstein, supra note 42 at § 225). For comments on this remark, see Winch, Peter, The Idea of a Social Science and its Relation to Philosophy, 2d ed (London: Routledge, 1990)Google Scholar (“someone is following a rule if he always acts in the same way on the same kind of occasion…it is only in terms of a given rule that the word ‘same’ acquires a definite sense” at 28).

46. See Baker, GP & Hacker, PMS, Wittgenstein: Rules, Grammar and Necessity, 2d ed by Hacker, PMS (Oxford: Blackwell, 2009)CrossRefGoogle Scholar (“[i]t is the practice itself which is, as it were, the arbiter of what counts as doing the same thing. In teaching someone to apply a given rule, we teach him what counts in this case as ‘doing the same’” at 146).

47. “There is one thing of which one can state neither that it is 1 metre long, nor that it is not 1 metre long, and that is the standard metre in Paris” (Wittgenstein, supra note 42 at § 50). Also on this point, I would like to mention an article that provides further reasons against a sceptical twist of Wittgenstein’s view. WJ Pollock writes that anyone who asks if we can further question whether or not the standard metre is 1 metre long “is really putting the cart before the horse. They are trying to make the standard conform to the system, when it should be the other way round. The system is supposed to conform to the standard” ( Pollock, WJ, “Wittgenstein on The Standard Metre” (2004) 27 Philosophical Investigations 148 at 150)CrossRefGoogle Scholar. As I will claim at note 50, this view opens the door to a range of even greater dilemmas. Nevertheless, it is the correct way to interpret Wittgenstein and—since I believe Wittgenstein to be right on this—to understand the phenomenon of social normativity.

48. This understanding corroborates Hart’s criticism of Kelsen’s idea that the Grundnorm is a theoretical hypothesis devised by the legal scientist in order to explain the unity of the legal system. Famously, Hart’s argument goes as follows: saying that the rule of recognition “is ‘assumed but cannot be demonstrated’, is like saying that we assume, but can never demonstrate, that the standard metre bar in Paris which is the ultimate test of the correctness of all measurements in metres, is itself correct” (Hart, Concept of Law, supra note 3 at 109).

49. On the notion of ‘paradigmatic application’ and how it makes the sceptical paradox dissolve, see Voltolini, Alberto, “Is Wittgenstein a Contextualist?” (2010) 11 Essays in Philosophy 150 CrossRefGoogle Scholar.

50. In this paper I cannot go into the major conundrum stemming from this view, or rather, the questions of how standards emerge, and how it can be that a word/action/conduct becomes a standard and lends itself to be used as a criterion of correctness for further words/actions/conduct. It would be very tempting to say that it is the reiteration itself of a word/action/conduct that renders it a standard. Voltolini seems to go down that road: “An application becomes paradigmatic insofar as, in originally applying the rule in that circumstance, people converge in effecting exactly that application”, ibid at 157). Nonetheless, this view should be able to explain the quasi-magical transition from reiteration as an instance of regularity to reiteration as a rule-applying activity. For a suggestive (and yet puzzling) solution to this problem where the author points at the self-referential nature of standards and connects it to the practice of citing, see Bloor, David, Wittgenstein, Rules and Institutions (London: Routledge, 1997)Google Scholar (“The acts of reference to the rule are occasioned by commenting on the performances of others, and of one’s self. Thus the rule ‘exists’ in and through the practice of citing it and invoking it in the course of training, in the course of enjoining others to follow it, and in the course of telling them they have not followed it, or not followed it correctly” at 33 [emphasis added]).

51. Wittgenstein, supra note 42 at § 218.

52. Taylor, Charles, “To Follow a Rule…” in Calhoun, Craig, LiPuma, Edward & Postone, Moishe, eds, Bourdieu: Critical Perspectives (Cambridge: Polity Press, 1993)Google Scholar.

53. For persuasive replies to interpretations that take Wittgenstein’s account to be sceptical, see Baker, GP & Hacker, PMS, Scepticism, Rules and Language (Oxford: Blackwell 1984 Google Scholar); Williams, Meredith, ed, Wittgenstein’s Philosophical Investigations: Critical Essays (Lanham: Rowman & Littlefeld, 2007)Google Scholar.

54. Taylor, supra note 52 at 55.

55. Giddens, Anthony, The Constitution of Society: Outline of the Theory of Structuration (Cambridge: Polity Press, 1984) at 21 Google Scholar.

56. I should say that grasping the standard always entails engaging in processes of negotiations. But clarifying this point would take me too far. For elaboration on this point, see Croce, supra note 4 at ch 3.5.

57. Wittgenstein, supra note 42 at § 293.

58. Ibid.

59. In this regard, see Schauer, Frederick, “Was Austin Right after All? On the Role of Sanctions in a Theory of Law”, (2010) 23 Ratio Juris 1 Google Scholar, where the author points out that Hart’s notion of obligation is a variant of the idea of role obligations developed in Hardimon, Michael O, “Role Obligations” (1994) 91 J Phil 333 Google Scholar.

60. See Payne, Michael, “Hart’s Concept of a Legal System” (1976) 18 Wm & Mary LR 287 Google Scholar. See also Himma, Kenneth Einar, “Substance and Method in Conceptual Jurisprudence and Legal Theory”, Book Review of The Practice of Principle: In Defence of a Pragmatist Approach to Legal Theory by Coleman, Jules L (2002) 88 Va LR 1119 at 1167 Google Scholar; Shiner, Roger A, Norm and Nature: The Movements of Legal Thought (New York: Oxford University Press, 1992) at 160–61CrossRefGoogle Scholar.

61. Hart, Concept of Law, supra note 3 at 249.

62. Ibid.

63. Ibid.

64. See, e.g., Schauer, supra note 59 (“[O]nce we see that this analysis applies as straightforwardly to football and religious duties as to legal duties, we have not made much progress in trying to understand the institution of law, other than it being just one more system of rules” at 16) See also Shapiro, Scott J, Legality (Cambridge: Harvard University Press, 2011) at 92 CrossRefGoogle Scholar.

65. By population I mean a particular group of humans, no matter their extension or number.

66. For further development of my view, see Croce, supra note 4 at chs 7-10. On same wavelength, at least in my reading, see Benda-Beckmann, Franz von, “Who’s Afraid of Legal Pluralism?” (2002) 47 J Legal Pluralism 37.CrossRefGoogle Scholar