The Demise of Legal Positivism?
Responding to Frederick Schauer, (Re)Taking Hart, 119 Harv. L. Rev. 852 (2006)
Professor Nicola Lacey’s biography of Professor H.L.A. Hart provides a rich resource for reflection about the state of legal philosophy, as Professor Frederick Schauer’s review so well illustrates. It may be a pivotal moment in a field that Professor Hart more or less created: according to Professor Schauer, one of Professor Hart’s two principal contributions to jurisprudence was transforming it into a philosophical discipline. The other, Professor Schauer says, was Professor Hart’s focus on the nonadjudicative, systemic features of law — in particular, the “rule of recognition,” which was Professor Hart’s term for the ultimate rule of any legal system, the rule that gives it its systematic quality by providing criteria that certify whether any rule is a valid member of that system.
Like Professor Lacey, Professor Schauer considers the transformation of jurisprudence into philosophy a mixed blessing. It might undervalue or even drive out other kinds of inquiry into the nature of law, especially work of the more empirical sort. But Professor Schauer welcomes a return to a focus on the systematic features of law because he thinks that philosophy of law has become overly preoccupied with adjudication — in part, because Professor Ronald Dworkin’s critique of legal positivism attacks the rule of recognition as unable to account for the role of principles in adjudication. In Professor Schauer’s view, the debate about the rule of recognition, principles, and adjudication got off on the wrong foot: Professor Hart’s account of the rule of recognition was not originally intended to be, nor is it best understood as, a contribution to a theory of adjudication.
In sum, Professor Schauer offers the following two prescriptions: first, one should not equate philosophy of law with jurisprudence since that equation promotes an unproductive philosophical imperialism; second, philosophy of law should return to Professor Hart’s questions about the systematic nature of law, which requires relaxing the grip of adjudication on legal philosophy.
Both of Professor Schauer’s prescriptions should be reframed in ways that are closer in spirit to Professor Lon L. Fuller’s and Professor Dworkin’s critiques of legal positivism. We will then be better placed to appreciate Professor Schauer’s most provocative claim: that legal positivism plays only a minor role in Professor Hart’s influential work, The Concept of Law. This reduced role is due to the fact that legal positivism is unsuited to dealing with the features of law on which Professor Hart wanted to focus, such that it would have been better for positivism to play no role at all. Professor Lacey's book, appreciated through the lens of Professor Schauer's review, lays the basis for predicting the demise of legal positivism.
119 Harv. L. Rev. F. 112 (2006)
