Matthew H. Kramer, H.L.A. Hart: The Nature of Law

Matthew H. Kramer, H.L.A. Hart: The Nature of Law (Polity, 2018)

An advantage of having a long-time expert like Matthew Kramer write an overview of a towering 20th-century intellectual like H.L.A. Hart is that he’s fully at ease with the many intricate debates surrounding Hart’s work. A concern, however, is that if this overview is intended to be an introductory text, the abundance of expertise at hand may also turn out to be a disadvantage, because some of the topics covered may seem marginal to the casual or student reader. That seems to me to be the case here. 

Take, for example, the question of how to understand power-conferring laws, like a regulation that allows only those individuals who have received specified training and appropriate certification to perform certain actions, say, pronouncing a plumbing fixture “up to code,” or a statute that lets ordinary citizens contractually bind others when they voluntarily sign certain sorts of documents. Correctly understanding this distinction between obligation-imposing and power-conferring rules is important because the great doctrinaire legal positivist of the 19th Century, John Austin, had previously insisted that nearly everything that counts as a law should be understood to be the command of a sovereign that is associated with enforceable sanctions: an expression along the lines of “Your money or your life!” 

In his seminal critique of Austin, Hart pointed out that there are a multitude of power-conferring laws that seem not to be at all like robbers’ directions. However, philosophy being what it is, consensus has not been total in every corner of this issue, and other positivists, including fellow Hart scholar Neil MacCormick, have tried to make the case that Hart’s claimed essential dissimilarities between prohibitions and power-conferrals might be overcome. 

I don’t want to suggest that this issue is either inconsequential or uninteresting: I just wonder whether passages like the following are entirely apposite in a book of this type: 
MacCormick went astray in his conflation of power-conferring norms and duty-imposing norms. Contrary to what he presumed, the conditional obligation to which he referred is not an obligation at all. Rather, it is a Hohfeldian liability; specifically, it is a liability to incur an obligation….Thus the moral power of Jane to impose a promissory obligation on herself entails, and is entailed by, her moral liability to incur such an obligation through her exercise of that moral power….Pace MacCormick, the promissory norm which he recounted is not an obligation-imposing norm. Instead, it is a norm which confers a power (one’s power to impose promissory obligations on oneself through a specified procedure) and which establishes a correlative liability (one’s liability to incur promissory obligations through one’s adoption of that specified procedure). It is, in short, a power-conferring norm – exactly as Hart contended.

While perhaps philosophically impeccable, this detail may prove a barrier to the general reader. I, at any rate, though trained in (non-legal) philosophy, found Kramer’s discussion of this issue both difficult to follow and likely outside the appropriate range of a general series devoted to “Key Contemporary Thinkers.”# Because generalist readers are likely to have limited knowledge of the vast literature on these subjects, they may not attach a great deal of importance to Hohfeldian liabilities or the production of a careful typology of the various types of external and simulative standpoints with which one might comprehend a secondary legal rule. 

Even if the distinction between duty-imposing and power-conferring rules is central to Hart's critique of Austin, the subsequent debate over Hohfeldian liabilities and MacCormick's conditional obligations seems to me marginal to understanding Hart's initial move. For good or ill, what we (admittedly more dilettantish) readers likely want to learn will be exhausted by basic questions regarding the various differences between Hart’s version of positivism and the reasons for insisting on them and for opposing the views of such near or distant main adversaries as Austin, Dworkin, Finnis, Kelsen, and Llewellyn.

It may well be that every single dispute covered in Kramer’s book is indispensable to a comprehensive understanding of Hart’s views and their importance to contemporary jurisprudence. But not all of them are obviously so. And, for good or ill, completeness is not a desideratum for undergraduates and patzers like me. The good news, however, is that Kramer provides a lot of material to sink one’s teeth into regarding the crucial issues as well.

Generally, when considering the value of a work of this nature, I think it is important to focus on the following (non-exhaustive) list of virtues that such writings can exemplify: (i) philosophical excellence; (ii) the likelihood of getting peers and students to think about key issues and read important literature they might not otherwise crack; and (iii) “readability.” Fortunately, what Kramer’s book is arguably lacking in the third category, (and the detriment that may cause with respect to the second one), it amply makes up for via (i). Kramer's technical command of the primary philosophical material—even sometimes actually managing to advance protracted thorny debates that have dogged the area for years—seems to me to outstrip the edge in readability achieved by other legal philosophers.$

Let me, then, summarize my thoughts of Kramer’s book as a whole at this early point in my review by saying that it seems to me a valuable, if difficult, contribution to both Hart’s thought and the philosophy of law. It is probably not the best choice for one’s first book on either Hart or legal positivism, but it may be an indispensable additional volume for a library with a section devoted to either of those topics. This summation out of the way, I will now devote the rest of my review to a couple of specific issues that I believe illustrate the book's strengths and weaknesses.

What makes a particular philosophy of law positivistic is, in a word, the belief that law is an artifact of human activities. That is, it denies there are “natural laws” (perhaps divulged by God) that are–like F = MA–simply “out there” waiting to be discovered by clever (and maybe also necessarily virtuous?) diviners. So, where have these rules come from and what is the nature of their force? Is it only legislative institutions that can make them? Are judges also (or exclusively) required? Alternatively, less process-focused positivists may hold that there can also be laws that are somehow created by societal custom, without the necessity of any “official” interventions or the imprimatur (whether tacit or explicit) of governmental officers. Hart himself took a broad, perhaps central, position here. On his view–and Kramer agrees–given the right conditions, both official and non-official activities can generate authoritative laws.  

Hart and Kramer are quite convincing in their arguments that Austin’s resort to the necessity of “tacit approval” by a sovereign in every instance of an authentic law is implausible. But considerably less material can be found in Hart’s book to parry the claims of either legal realists or Kelsenians that there simply aren’t any laws without such imprimatur. While Kelsen would agree that there neither is nor generally needs to be specific authorization by “the sovereign” in every instance of a governmental operation, he asks why we might not insist that it’s wrong to say there’s really a law where such assent is lacking. After all, widespread approbation or scorn might be considered insufficient without more. Hart does give us this remark on the matter (as well as useful additional comments in later writings): 

Why should it not be true that, just as the courts recognize as binding the general principle that what the legislature enacts is law, they also recognize as binding another general principle: that customs of certain defined sorts are law? What absurdity is there in the contention that, when particular cases arise, courts apply custom, as they apply statute, as something which is already law and because it is law?

The thing is, an assertion need not be thought to be absurd to be denied, and it seems to be merely an attempted burden shift on Hart’s part to suggest that anybody who doubts that conventions are sufficient to produce laws must be saying that such non-official production isn’t just false, but patently absurd. 

Fortunately for his own readers, Kramer spends a good deal of space defending the Hartian position on this crucial matter. One  section that I believe to be quite helpful consists of Kramer’s discussion of a number of parallels between natural languages and legal systems. According to this picture, the rules of each may be memorialized by documents–in one case dictionaries and grammars, in the other statutes (including constitutions) and judicial opinions. But while publication of such documentation may sometimes result in changes to both linguistic and legal systems, no such written material should be thought to be absolutely foundational. It is always the social customs–including beliefs about what just seems wrong–that supply the ultimate support.

I think it’s worth noting that this tenet of orthodox Hartianism was also endorsed by Carl Schmitt, for whom it was a crucial thesis that written constitutions never provide the fundament, because only what he called “positive constitutions” can do that. Of course, for Schmitt such foundations require the consensus of a necessarily like-thinking, thoroughly homogeneous group of “friends.”🗡 With reason, Anglophone legal philosophers of Hart’s generation were reluctant to spend much time discussing the views of “Hitler’s favorite jurist”--perhaps especially so when their views seemed to align on this or that matter.*

But while Kramer doesn’t discuss the “friend/enemy” conundrum, he arguably does find a method for dispensing with Schmittian decisionism. This can be found in his discussion of how to avoid the vicious circle to which Scott Shapiro has suggested the Hartian take on a societal foundation is arguably vulnerable. As Shapiro understands this “Possibility Puzzle,” state officials have the legal power to create laws only if they’ve received that authority from existing societal norms. But, paradoxically, societal customs seem to have the legal power to create authentic power-conferring norms only if they’ve been given such ability by the state. 
In essence, Kramer steers clear of this dilemma by claiming that it depends on an equivocation.  He argues that “legal power” is used in a narrower sense when it is said that officials have it than when it is used with respect to the ability of social customs to create both duty-imposing and power-conferring norms. That is, for Hart as for Schmitt, not all legal authority emanates from the same sources. As Kramer points out, although many “legal powers” are 
products of a legal system – in that they owe their existence to legislative processes or other law-making events within such a system – not all legal powers… are such products. Some of them exist without having been created by legislative processes or other law-making events….[W]hat is clear is that the foundational powers of a legal system – the powers that enable the system to be brought into existence, and the powers that are the bedrock of the workings of the system thereafter – are legal powers [in a] capacious sense. As the underpinnings of the system’s operations, they do not owe their existence to those operations.  
What’s important is that there seems no reliance here on decisionism or the pronouncments of a “constituent power.”

Another laudable section of Kramer’s book involves his discussion of the always important differences between ratio essendi and ratio cognoscendi (being and being known). He is quite right to criticize those writers who have failed to grasp the difference between, e.g., an indeterminate legal situation and an observer’s uncertainty about the matter. As my regular readers will know, I find this error to be not only among the most common of philosophical fallacies, but the one whose commission I believe to be connected with the most grievous errors about the world, our knowledge of it, or both. Kramer notes that Hart himself occasionally fell into this mistake, sometimes “lurching between assertions of indeterminacy and assertions of uncertainty.” I suppose it is comforting to see that even the greatest works by the wisest authors contain blemishes. In any case, Kramer’s passages on various types of mind-independence and fallibility seem to me generally praiseworthy, in spite of our differences regarding the most useful way(s) to understand the concept of objectivity.

Also valuable is Kramer’s assessment of (the later) Wittgenstein’s argument that every conceivable arrangement of a finite batch of articles or events is consistent with an infinite number of different rules having generated the progression. As Kramer summarizes the matter, notwithstanding Wittgenstein’s undeniable point, “Norms that guide patterns of conduct will continue to require certain decisions, and to disallow contrary decisions, by the people whose behavior is subject to them. [The indeterminacy of “going on”] does not detract…from the decision-pescribing force of the norms that have been correctly singled out.”

As one would likely expect–and want–Kramer allots considerable space in the book to a discussion of law and morality, a central topic for Hart and legal positivism generally. For Kramer, the discussion starts with descriptions of numerous distinctions between various understandings of morality. I don’t think he gets all of them quite right. One seems to me to be neither obvious nor necessary to the arguments Kramer wants to make: a clear distinction between what is morally impermissible and what is “morally noxious,” And he gives as an example of something that is one but not the other “breaking a minor promise.” 

Fortunately, I don’t think that what I take to be his finer-grained-than-common-usage-requires analysis of this issue matters much to his subsequent arguments. Unfortunately, at least one other definitional choice he makes does seem to me to be dangerous. It regards prudential values, which contra-Kramer, actually need not be essentially focused on individuals. Scanlon and many others have explained that what makes something a prudential rather than a moral value is not that it looks at a single person rather than a group, but that it is good for some person or group rather than good per se. 

So, for example, forcibly taking a healthy person’s internal organs for distribution to a bunch of seriously ill patients may be prudentially valuable (or extremely prudentially disasterous) not only to this or that individual, but for this or that entire group. But it is nevertheless generally thought to be morally impermissible (and “noxious”)–in addition to being severely detrimental to the “donor’s” wellbeing.  Thus, Kramer’s explication: 
A prudential reason for some action by P is focused exclusively or primarily on the interests of P and only derivatively if at all on the interests of anyone else. A moral reason for some action by P is focused exclusively or primarily on the interests of other people and only derivatively if at all on the interests of P. 
is not only heterodoxical, but seems to me to misplace the essential differences between the two different value types. (As an example of where this can lead, when Kramer describes what he calls the moral value connected with someone quitting smoking, he refers exclusively to what most observers would describe as estimates of effects on group wellbeing But if any particular moral standing is claimed to be implied by those effects, it will be a strict function of the particular moral theory endorsed such claimant.)

I suppose if one shares a strict utilitarianism with Austin and Bentham, something like Kramer’s typology might work, but for non-utilitarians–and, arguably all those who believe involuntary organ donations are usually morally reprehensible regardless of the effects on overall wellbeing produced by such takings will be among them–it is bound to seem wrong. That’s because most people’s intuitions are such that moral and prudential values can be distinguished whether or not individuals or groups are being discussed.

Another, related matter. A few years back, Kramer and I privately discussed our disagreement about whether or not it is appropriate to call occurrences like the falling of a leaf morally permissible. Such a categorization seems acceptable (if not particularly useful) to me, but Kramer calls it “daft” in his book. His take on this matter allows him to conclude that
If we are asking whether law is inherently moral, and if the contrast implicit in the question is between the moral and the non-moral, the answer is that law is indeed inherently moral [the sort of thing that might reasonably be suggested to be moral rather than amoral]. No legal positivist in his or her right mind has ever suggested otherwise, because no legal positivist in his or her right mind has ever doubted [Kramer’s way of using the term “non-moral”]. 
I suppose that’s possible, though I’d guess that both usages can be found in standard dictionaries. Anyhow, for what it’s worth, as with the matter “impermissibility” and “noxiousness” mentioned above, I don’t think anything of importance rests on one’s linguistic preference here. Certainly, it should be quite easy for an understanding to be reached between the sane language users and those preferring the “daft,” “out-of-right-mind” employment of these terms. Surely there is little difficulty in making any translations that might be necessary to obtain complete comprehension by both parties. So long as everybody is understood, it seems to me that nothing of philosophical importance hinges on the choice one makes regarding these definitions.

While I’m not sure the same can be said with respect to our different conceptions of “prudential value,” this latter linguistic disagreement does not suggest to me that the Hart/Kramer position argued for here with respect to moral vs. prudential reasons for obeying laws is mistaken in any respect. At any rate, I agree with Kramer that it is Raz who got this matter wrong when he insisted that such reasons must be moral. (What, if any, infirmities Kramer’s heterodoxical conception of prudential value may subject his other works to, I don’t know.)

The substantial sections regarding (i) arguments for Kramer’s favored version of “inclusive legal positivism” against both exclusive positivists and those endorsing alternative versions of inclusivism; and (ii) detailed accounts of various contemporary theories of meta-ethics, again seem a bit “inside baseball” for a book of this type. No doubt there will be appeal to specialists, but for the rest of us, subtle distinctions and arguments over incorporationism or non-cognitivism may feel tangential to understanding Hart’s central contributions. This impression is likely to be amplified by reading the two really excellent sections that precede it–one on “the minimum content of natural law” and the other on the problem of political authority. Those modules are so good–acute, easily comprehended, and deep–that one wishes the rest of the book could have reached those heights.ℵ Admittedly, however, that’s a pretty high bar. 
________________________________#It might be added that Kramer sometimes shows a Buckleyesque proclivity for substituting the bigger, more unusual word for one that readers are almost certain to understand without having to consult Roget or Google. (He seems particularly fond of pumping as many adverbs as possible into each paragraph, which I suppose is responsible for “proteanly,” “suffocatingly,” “far-reachingly,” and “proleptically.”)
$See his terrific 1998 paper on Fuller and scrupulousness as an example. Thus, while I believe I disagree pretty comprehensively with most of the positions Kramer has taken here and elsewhere with regard to the natures of morality and objectivity–as well as with his answers to the epistemological and psychological questions surrounding how we might reach them (see my books on democratic theory and Everett Hall for my own views on those matters)–I always get the sense that Kramer is quite comfortable in the densest philosophical weeds. (I admit, in fact, that a state of near complete confusion is much more frequent in my own case!)
🗡For an excellent overview of this matter, see Lars Vinx’s edition of the Schmitt/Kelsen dispute over who or what should be “the guardian of the constitution.” My review of Vinx’s book can be found here at 3:16 AM.
*As Kramer mentions in a later chapter, Hart was “writing at a time when the horrors of fascism and Communism had led numerous jurisprudential theorists to denounce legal positivism for what they perceived as its excessively deferential attitude toward the directives of legal-governmental officials.”
ℵ However, even in these excellent passages, I will admit to being troubled once or twice by Kramer’s use of “‘moral” when I think “prudential” would have been more appropriate and by a couple of insertions of “correct” in front of “moral principles.”

About the Author

Walter Horn is a philosopher of politics and epistemology.

His 3:16 interview is here.

Other Hornbook of Democracy Book Reviews

His blog is here