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July 10, 2007


Dean C. Rowan

Simpson writes, “Hart [like Kelsen] does not devote more than a small part of The Concept of the Law to the detailed application of his theory to the common law” (84). If this is so (is it?), then perhaps the piece was never intended as a direct indictment of Hart.

Although he doesn’t say as much, it would seem that the exercise of restatement of the common law in a form much like a code would lend some support to Simpson’s second claim. It appears that he is arguing against the likelihood of success of any effort to codify or catalog precisely and exhaustively the rules. “It is, I suspect, a rather futile ideal...” (99).

I have trouble with the comparison with grammatical rules. Grammatical practices exhibit certain regularities (to, among others, observant grammarians), from which rules “emerge” in expressions compiled in grammars, dictionaries, user appeals to custom, etc. These rules are indeed “posited” in the crude (something like the “pure”) sense intended by Simpson. They are “positive,” too, in your sense that they describe “observable conventional practices of humans” in some linguistic community. But their emergence in either sense is contingent. The phenomenon of their being posited (laid down, formulated) by an authority is not itself part of the grammatical system. By contrast, the derivation of legal rules is a legal enterprise.

Furthermore, I don’t think Simpson meant the comparison to go as far as your discussion suggests. Two sentences before he proposes the comparison with grammatical rules, Simpson states that the view that legal ideas and practices are “dependent upon conformity with the past [i.e., they are customary]...does not require us to identify theoretical propositions of the common law—putative formulations of these ideas and practices—with the common law, any more than we would identify statements of the customs observed within a group with the practices which constitute the customs” (94). In these remarks leading up to the comparison, he emphasizes “identify” to stress the imprecision of the correspondence of the observed legal behaviors to their linguistic expressions. The expressions are mere “guides” (not rules or doctrines or principles), “inherently corrigible” as verbal formulations of “what they describe” (94).


I am not sure the answer to the puzzle ("why does Simpson think any of this states a dispute with Hart's theory of law?"), but it likely has something to do with Simpson's (bewildering) view that Hart's idea of a rule of recognition specifying the ultimate criteria of validity in a legal system evinces "absent-minded conformity to the idea that all laws originate in legislation". [p12 of reprint in Twining (ed.), Legal Theory and Common Law; penultimate paragraph of Section II.] It's tough to make sense of that view, perhaps because there's none to be made of it. Simpson seems to understand (based on comments earlier in the same paragraph) that Hart's view is that there can be legal rules whose "status as law does not necessarily depend upon their having been laid down". If Simpson understands that for Hart the rule of recognition is itself customary, he is then saying that the idea of one customary rule serving to establish the validity of other customary rules is in absent-minded conformity to the idea that all laws originate in legislation. That makes no sense. So perhaps Simpson's understanding is that the rule of recognition is legislative in origin? If so, he would be hard-pressed to explain who the legislator could be and whence its legal authority (not to mention where in the Concept of Law he got that idea!).


I realize this blog is not active (at the moment), and that this particular post is four years old, but this link comes up at the top of a Google searches for Simpson, so I'd like to say a few words in his defense.

As an historical matter, I have no idea why Simpson declined to cite Hart regularly in "The Common Law and Legal Theory." That being the case, however, I don't think there is much of a "puzzle" as to why (in your words) "Simpson think[s] any of this is a dispute with Hart's theory of law." He doesn't think that. Just as you point out, he isn't thinking of Hart at all.

Maybe he should be, but there are some historical reasons he might be targeting other positivists. The so-called "classical" theory of the common law is really Simpson's interest here (he cites the "older writers" on page 91); and the classical theory is best identified with Coke and Hale, who wrote long before Hart; and who wrote primarily in response to royalist assertions of monarchical absolutism. Hale's target was, of course, Hobbes's positivism, which incorporated a "command theory" like the one Hart later rejected. So when Simpson says "positivism," it is natural to assume that he means, in part, the idea that law is the command of the sovereign, even though he published this essay (as you point out) a decade or so after The Concept of Law.

Now, Simpson does purport to reject the "classical" idea that the common law is the custom of the people, and suggests that we should think of the common law as a body of practices observed and ideas received by lawyers. But that doesn't mean that the authority of common law rules consists in their being observed and received by lawyers. Here's where the analogy to grammar comes in; a rule of grammar doesn't become authoritative because it is observed by a grammarian (thank god for this). Such a rule can be incorrect, and when it is, it is corrected by reference to actual speaker practices. The authority of a grammatical rule rests on its being reasonably descriptively accurate. The same goes for the customary common law--even today. In applying private law, the court engages in an assessment of whether it is "reasonable" in the sense of conforming with our actual practices and expectations.

Simpson might be accused of being excessively subtle on this point, and maybe this position is consistent with a very "soft" positivism of recent vintage. But, after all, Simpson isn't aiming at Hart or his many admirers. He's aiming at the positivism of an earlier generation, whose paradigm was (to repeat) a kind of royalism. Even allowing a guiding role for the "caste of lawyers," the notion of customary law is very different in spirit from the view of law offered by royalists.

BL COMMENT: If this is what he *really* meant, he might have said so!

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