A couple of years ago, Leslie Green and I had a spirited exchange in the pages of the Times Literary Supplement with A.W.B. Simpson about his hatchet job on H.L.A. Hart, delivered under the guise of a review of Nicola Lacey's fine biography. Like some other reviews of Hart's biography--I am thinking especially of Thomas Nagel's sanctimonious review of the same book in the London Review of Books--Simpson's sneering told us more about the reviewer than the book. In any case, it left me with the impression that this was someone not at all serious about legal philosophy who, at the same time, was quite embittered about Hart's fame and success. (This is odd, given Simpson's own great professional success and his fine reputation as a legal historian.)
In any case, I have been thinking this summer about what Dworkin calls the problem of "theoretical disagreement" in Law's Empire, prompted by the paper by my friend Scott Shapiro on the Hart/Dworkin debate in the new CUP volume on Dworkin edited by Arthur Ripstein. (I may write about Ripstein's introduction to that volume at a later date.) In reading around, I was led back to the old and well-known paper by Simpson on "The Common Law and Legal Theory," which appeared in the Oxford Essays in Jurisprudence, 2nd Series that he edited in 1973. The paper has been much cited, and I have a dim recollection of having read it in law school 20 odd years ago. In any case, I re-read it today.
I am struck by what a bad paper it is and puzzled, accordingly, by why it is cited so often. To be clear: it is well-written, learned, and lucid. But what it says about the positivist theory of the common law is uncharitable in the extreme. The paucity of citations to Hart's The Concept of Law is perhaps the first indication that this is meant to be an indictment, not a scholarly assessment, of the positivist theory of the common law.
Simpson claims, first, that positivists think "the common law is a set of rules" (here he echoes the early Dworkin) which "owe their status...to the fact that they have been laid down" (80), and here at least he can cite some pertinent passages from Austin, John Chipman Gray (!), and Kelsen. Simpson takes the common law, by contrast, to consist of "customary" rules, and so he thinks the positivist account "has to be emasculated until it means only that the norms of customary law are the products of acts of will, even though these acts of will are not directed to the making of law at all" (81). He is silent about the obvious alternative possibility (apparent to a reader of Hart) that the positivity of law consists not in its being the product of intentional human action (of someone "laying down rules") but rather in its being a "positive" fact, namely, that the law is what it is in some community in virtue of the observable conventional practices of humans in that society. More on that thought in a moment.
Simpson claims, secondly, that positivists conceive "of law as a sort of code" (81). Here he does not even try to cite textual evidence, since he has simply made this comitment of positivism up out of whole cloth. (Am I wrong? What could Simpson be thinking of?)
Simpson's preferred view is that the "common law" is a kind of "customary law" (91 ff.). (Readers of Hart must surely be puzzled at this point as to why Simpson thinks he is having a dispute with positivism. But it gets worse.) Simpson describes a custom as a practice "which is regularly observed and has been regularly observed for some time in a group, and which is regarded within the group as the normal and proper practice" (92) which will remind any informed reader of Hart's account of a social rule, though perhaps less developed. Simpson then poses the strawman objection that rules of the common law, like the rule against perpetuities, can not be "customs" since they are not "putative descriptions of the customary practices of Englishmen" (92), which must surely be true. But there is another possibility that a scholar writing 12 years after The Concept of Law might have been expected to note: namely, that the customary practice is not that of citizens, but of certain officials, namely, their practice of treating certain kinds of dispositions of property after death as legally valid, others as not.
This brings us to the key passage in Simpson's article (p. 94):
[I]t seems to me that the common law system is properly located as a customary system of law in this sense, that it consists of a body of practices observed and ideas received by a caste of lawyers, these ideas being used by them as providing guidance in what is conceived to be the rational determination of disputes litigated before them, or by them on behalf of clients, and in other contexts.
But is this not just to say that the common law consists of those norms validated by the social rule constituted by the practice of "officials" (the "caste of lawyers") in a particular community? Perhaps the idea that the content of this rule reflects "what is conceived to be the rational determination of disputes" means that this describes a version of Soft Positivism, but that too would have been congenial to Hart. But the puzzle remains: why does Simpson think any of this states a dispute with Hart's theory of law?
There is a further irony on this page, namely that Simpson formulates his objection to positivism by suggesting that,
Formulations of the common law are to be conceived of as similar to grammarians' rules, which both describe linguistic practices and attempt to systematize and order them; such rules serve as guides to proper practice since the proper practice is in part the normal practice; such formulations are inherently corrigible, for it is always possible that they may be improved upon, or require modification as what they describe changes. (94)
But surely, one thinks, the "positivist" theory of grammar is the correct one! Grammatical rules emerge from the grammatical practices of speakers of a language, practices which (in Hartian terminology) speakers accept from an "internal point of view," i.e., which the speakers take as obligatory as evidenced by the fact that they appeal to them in sanctioning deviation and commending conformity. (The preceding is true, I take it, even if a broadly Chomskian/nativist account of the disposition to conform to grammatical rules is the correct one.) So if, as Simpson claims, common law rules are "similar to grammarians' rules," then the positivist theory of the common law is precisely the one Simpson himself endorses!