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December 07, 2011


Jessica Murphy

I also liked this paper but with reservations. I agree with the claim that contemporary theorists have for the most part failed to appreciate the nature and depth of the disagreement between sanction-based and rule-based theories of law. I think, however, that once we place Hart’s response to the reductive account of law and legal obligation in the context of post-Wittgensteinian philosophy of action, his own view of human nature (or at least the nature of human action) begins to come to the surface. The depth of the conflict between the two accounts can be at least partially attributed to these conflicting views: What Bentham made an explicit requirement of successful social scientific explanation – the reduction of all human activity to terms commensurate with the natural sciences (in his time, spatial, mechanistic terms) – Hart and his Oxford colleagues deemed a logical impossibility; without the notion of a social rule, “we fail to understand the whole distinctive style of human thought, speech, and action which is involved in the existence of rules and which constitutes the normative structure of society.” The view of human beings as essentially rule-followers may not seem like a very robust or interesting statement of human nature, but it opens up a realm of possibilities for human action not available on Bentham’s mechanistic model, where the creature described is nothing but a locus of competing forces that elicit action on the basis of pure reward contingencies. The rise of conceptual analysis in post-Wittgensteinian philosophy of action reversed the order of priority between questions of truth or ontology and questions of meaning, but it could only do so accompanied by its own image of the human being as more than a bundle of conditioned responses to his environment – an image that took seriously the claims to agency, self-determination, and responsibility embodied in the grammar of our practices. Implicit (and sometimes explicit) in the response of ordinary language and hermeneutic philosophers to positivistic/behaviouristic accounts of human action was a move from an image of human being as passive, predictable, and controllable to an image of people as active, meaning-giving, and free.

That these different metaphysical backgrounds set up different criteria of success between the two accounts is something that does not tend to be acknowledged by contemporary positivists, who continue to oppose the reductive account of legal obligation by reference to our ordinary normative discourse, and I think the paper does well to challenge the appropriateness of such a response. But Hart must be put in his context as much as Bentham and Hobbes must be put in theirs. In my view, it’s not that Hobbes and Bentham had accounts of human nature while Hart had none, but that they had radically different conceptions of the human being and of human action which placed different requirements on explanation, in the sense of placing limitations on the types of entities and relations to which explanatory statements can coherently refer. It is true that on Bentham’s and Hobbes’ theories, much more than on Hart’s, these limitations are clear. But this doesn’t have to signal some deficiency in Hart’s theory – it could just be that the possibilities for social life and organization are much narrower on a view of human beings as passive creatures reflexively tied to their environment than on a view of human beings as active and dynamic.

One confusing feature of the paper is that Priel calls the characterization of sanction-based accounts as “external” theories “the mistaken contemporary legal positivist take on the classical positivist view,” but then goes on to apply the internal/external distinction in much the same way Hart did. On Bentham’s theory, what is suggested is that normative rules can be redescribed as, or seen as shorthand for, descriptive generalizations about self-interested or self-preserving behaviour. This kind of obscuring of the distinction between a norm and an empirical claim was, for Hart and his Oxford colleagues, a fundamental mistake of behaviouristic accounts of human activity; to “externalize” a relation was to take the grammatical or the criterial for the empirical. The point of “internalizing” the relation between rules and practices was to resist the naturalistic urge to assimilate normative compulsion to causal compulsion, by challenging the associated view of rules as themselves as normatively inert. For Hart, sanction-based theories that define legal obligation in terms of the power of the state to enforce sanctions must have begun from precisely this misplaced starting point: the question of how normative relations get introduced into a normative void. This is one variation of the hard problem of consciousness, and it is at least highly debatable that cognitive science has provided a solution to that problem. For the Wittgensteinians, the question is unanswerable because there is no such void – our practices are already and irreducibly normative.

The idea that our practices are shot through with meaning not reducible to the contents of individual minds is the starting point of hermeneutic methodology. Somewhere along the line it seems to have become the view that hermeneutic methodology studies “attitudes”. From there it is too easy to conclude that such studies are either empirical and properly scientific or else speculative and/or stipulative. This is distorting and trivializing, and hermeneutic theorists have been explicit that this is not what they have in mind (e.g. Charles Taylor’s target in his Interpretation and the Sciences of Man is precisely a methodology that “cannot allow for the validity of descriptions of social reality in terms of meanings, hence not as brute data, which are not in quotation marks and attributed as opinion, attitude, etc. to individual(s).”) I think that the paper could benefit for a more charitable reading of the hermeneutic tradition as well.

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