What the 20th Century Can Teach the 21st

The best books speak to permanent truths.

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Robert P. George on Jurisprudence

The flowering of interest in jurisprudence among English-speaking philosophers in the second half of the twentieth century produced a number of outstanding books. The four I discuss in the following paragraphs are, in my judgment, of the deepest and most lasting significance.

In the late-1950s H.L.A. Hart assumed the chair of Jurisprudence in the University of Oxford and began publishing work—culminating in his magisterial book The Concept of Law (1961)—designed to correct key defects in the thought of earlier figures in the tradition of analytic jurisprudence, particularly Jeremy Bentham and John Austin. While retaining his predecessors’ insistence on maintaining a sharp “conceptual separation” between law and morality, or “law as it is” and “law as it should be,” Hart faulted them for adopting a purely “external” approach to legal phenomena that left out of account the important respects in which citizens and public officials characteristically treat legal norms as reasons for actions. Hart showed that the simpleminded Benthamite understanding of law as “orders backed by threats” (the so-called “command theory”) fails to describe accurately the role and functions of law in developed societies. The problem is not, he insisted, in the early positivists’ aspiration to describe law independently of moral evaluation; it is, rather, that their descriptive theories “failed to fit the facts.”

Lon L. Fuller, a Professor of Law at Harvard, argued in his masterwork The Morality of Law (1964) that the legal positivism Hart retained from Bentham and Austin should be rejected. According to Fuller, careful attention to the “purposive” nature of law reveals that positivism’s insistence on the strict “conceptual separation” of law and morality is untenable. Law, Fuller observed, is a matter of “subjecting human behavior to the governance of norms.” But to accomplish this goal, rulers—even selfish or corrupt ones—must conform their edicts to certain procedural criteria of legality. Their commands must be promulgated, prospective, reasonably clear, etc. Otherwise, people to whom they are directed will simply not be able to comply with them. Fuller maintained that the criteria of legality, though procedural, constitute an “inner morality of law.” And while it is possible for rulers to respect this inner morality while pursuing evil ends, their powers of repression will be significantly mitigated by their compliance with “the rule of law.”

Joseph Raz, a student of Hart’s, brilliantly defended his teacher’s legal positivism and further developed the modern tradition of analytic jurisprudence. In Practical Reason and Norms (1975), Raz explored the different ways in which laws function in people’s deliberation and action. He observed that often legal rules function as norms for coordinating human behavior to achieve social goals (e.g. traffic safety, environmental protection). Thus, they provide what he labeled “exclusionary reasons.” These are reasons for disregarding other reasons for acting, despite the fact that in the absence of the exclusionary reason these other reasons would properly be taken into consideration, and might even justify an alternative course of action.

The idea of exclusionary reasons, as developed by Raz, is plainly incompatible with the reductionism of the Benthamite account of law, and evinces the willingness of contemporary legal positivism in the analytic tradition to treat human behavior as, in part at least, reasoned and chosen, and note merely as the pure product of external causes. In related writings, Raz responded to Fuller’s critique of Hart by arguing that the procedural criteria of legality that Fuller had usefully elucidated are not properly as an inner morality. Raz maintained that, like a sharp knife, the rule of law can be used for good or bad ends. Indeed, conformity to the rule of law, where it improves the efficiency of the evildoing of wicked rulers, is a bad thing.

John Finnis, another student of Hart’s, deployed analytic methods in his great work Natural Law and Natural Rights (1980) to develop the tradition of natural law theorizing. Finnis argued that “there are human goods that can be secured only through the institutions of human law, and requirements of practical reasonableness that only those institutions can satisfy.” Finnis showed that positivism’s concern to preserve the autonomy of descriptive jurisprudence is entirely compatible with a sound understanding of natural law and natural rights. His objection to the work of Hart and Raz was that their theories had not gone far enough in pressing the basic insight about law’s’ role in providing citizens and officials with reasons for action. They rightly rejected Benthamite reductionism and insisted, instead, on understanding law from “the internal point of view”—the viewpoint of the citizen or official who treats legal norms as characteristically providing action-guiding reasons. But they failed to see that the “central” or “focal” case of the internal point of view is the viewpoint “in which legal obligation is treated as at least presumptively a moral obligation; a viewpoint in which the establishment and maintenance of legal order is regarded as a moral ideal if not a compelling demand of justice.”