Ep. 303: H.L.A. Hart on the Foundations of Law (Part Two)

0:07 Mark: This is a Partially Examined Life Episode 303, Part 2. We've been discussing HLA Hart's essay Positivism and the Separation of Law and Morals, using ideas from his book the Concept of Law, which we'll get more into. Chapters five and six of that. We were up to about section four of the Positivism.

0:26 Dylan: We just finished four, didn't we?

0:27 Mark: Well, yeah, I guess we were summarizing that that was the stuff about the Nazi regime.

0:30 Seth: Yep.

0:31 Mark: He doesn't put it this way, but one of the critiques that I was reading of Hart. You know, the whole reason why people might think that there needs to be some connection between law and morality is because you might think the whole purpose of doing a philosophy of law is to figure out why law is actually obligatory on us.

0:53 Wes: Right.

0:53 Mark: And there's nothing in here. It just says, well, it's a fact. And people feel that it is. And that's Hart's answer, that there is nothing more profound that you're going to dig in there. Whereas this guy in section 4, this German philosopher Radbruch, that we're talking about briefly, you couldn't feel that living under an evil regime, you could not feel that those laws were obligatory on you. In the same way that in a rightly constructed society where laws are put in place for the common good, that there's something just sort of built into legitimate law itself.

Right. If law is functioning correctly, you might want to even say if there is a functioning legal system. You know that one of the characteristics you might want to claim is that it is as a whole, and I think Hart actually agrees with this, ultimately is built around if it is fundamentally like think of evil alien colonizers or something, and they set these laws for the people and they're entirely just about keeping the people down. Yeah, there's a sense in which those laws exist. The colonizers wrote those down. You could judge in the colonizers could say, yes, you've contravened this law, but this one, not so much.

And they could make factual judgments based on that law. But in a sense, it's not the law of those people. That there needs to be some legitimacy built into it for it to be really the law of that people.

2:18 Dylan: I mean, that's the question about whether a legal system exists. That comes up in six, which is maybe as far as Hart goes to this idea that there's something that maybe more morality comes in. But to me, his interpretation is that what you have there is just a complete and utter failure of the legal system at all. You have something called lawlessness. In the state of lawlessness, it just means that the laws don't exist because no one's obeying them. Because that's a condition for there to be laws and have a legal system. And there's nothing more magical about it than that they don't exist because there's a activity of laws existing is that they're obeyed in some kind of normal way. So what could have happened in the Nazi regime is that it could have gone into a lawless state in which people stopped obeying the laws.

3:04 Mark: I mean, that would be a peculiar thing to call a totalitarian state full of laws. Right. Just call it fundamentally a lawless state, because everybody knows it's totalitarian and they don't respect it except for the people that are at the top trying to foist this on people. And to say because of that disconnect, therefore it's a lawless state, that's at least an interesting neologism. It's at least as artificial as saying it's not really law. Because I don't like it.

3:28 Dylan: That's why I think it fails. And I agree with Hart's argument that the proper way to have engaged or dealt with the laws when you've revised the regime is to say that that regime was illegit. We don't want it anymore. If we're going to still call it our country, we're going to retroactively remove those laws, we're going to change them, that kind of thing. You want to hold people accountable and have laws that deal with people collaborating and stuff like that. You have all those complications, right, about people's behavior during certain time that you want to hold them accountable for Something

4:00 Seth: Hart doesn't say, but I think is. I don't want to say it's implied in his view. I'm not sure if it's implied any of the thinker's views, but we have the sense that laws should somehow be reflective of mores or morals, that there's just something about the notion that we enact laws in order to create a system for judgment and prosecution of things that we think are wrong. Right. That's kind of the intuition that's underlying this. And the point he's getting at is that laws are quite a bit more complicated than that. And that notion of the moral import of a law, the way a law reflects a moral consideration, it's not structurally how law exists or what justifies the existence of law or whatever.

It's like it's a coincidence in some respects, or it's like they're related. We think of them in the same breath. But it's not as though you have. In order to come up with a theory of law and what a legal system is that you need to bring the notion of morals into it.

5:05 Dylan: He addresses this head on 623, where he's engaging what it would mean to have natural law. And he has a kind of a long paragraph about it. And he was trying to give it a description. He says at the end, at present, and until such radical changes supervene, such rules are so fundamental that if a legal system did not have them, there would be no point in having any other rules at all. Such rules overlap with basic moral principles. Vetoing, murder, violence and theft. And so we can add to the factual statement that all legal systems in fact coincide with morality at such vital points.

The statement that this is, in this sense, necessarily so, and why not call it natural necessity? And he objects to that basically on the idea that we don't know enough. You know, there's too many differences amongst human beings, and they have different aims, different pursuits of happiness, different understandings of justice. And he says, of course, we must be careful not to exaggerate the differences among human beings. But it seems to me that above this minimum, the purposes men have for living in society are too conflicting and varying to make possible much extension of the argument that some fuller overlap of legal rules and moral standards is necessary in this case.

And this is really at the root of him being a classical liberal, the reason why we have liberalism. And I wanted to bring back a reference to the very beginning where he's basically saying, look, the utilitarians were in this mode. Their structure was giving us the basic structure for defending all of our normal liberal law and government. He points out Bentham, he says in his Elements, there are liberty of speech, oppressed rights of association, the need that laws should be published and made widely known before they are enforced, the need to control administrative agencies, the insistence that there be no criminal liability without fault.

All of those things that we hold that are part of what we would consider a liberal democracy are part of not insisting that the law be moral, but part of the insistence on, in this case, utilitarianism, the utilitarian interpretation.

7:18 Wes: So it's the whole idea that justice is prior to the good. Right. And there's a thin conception of justice focused on rights. And thinking back to Sandel here, and that we have a pluralistic society in which, you know, many different conceptions of the good can flourish. So if Catholics believe that life begins at conception, that's fine. There are other groups who don't. But we don't want to see that conceived of as a natural law or not. All of us do want to see that become part of the law. Right. It sounds like that's the worry, which is that, you know, natural law theory settles more questions than we want our legal systems to settle.

7:56 Dylan: In a way, yeah, that's a historical

7:59 Mark: point about utilitarianism that we probably should have been aware of and made earlier in our discussions of utilitarianism. Because inevitably, yes, we say there's a difference between act utilitarianism and rule utilitarianism, but that opens the door to so much. It sounds like, well, a utilitarian, a truly utilitarian government would just be without principles because it would only have the one, the one principle of utility. And it would determine should we kill Dylan, let's calculate would him dying make all of the rest of us a little bit happier.

And with that we could measure it in hedons, you know, Bentham being the most supposedly just crude version of additive pleasures and pains in a way that even Mill, you know, backed away from. But no, apparently right there in Bentham was all this stuff when it actually came down to implementing a social policy based on this. A full blown suite of rights. So no hedons leading to totalitarianism at all.

8:58 Wes: They thought they could ground rights and the concept of utility.

9:01 Mark: There was one part I noticed in the Nazi chapter so 620 making the point. This is still in four actually part of the mythical apparatus he's arguing against is the desire that there be the law. Again, another source of like why would you be coming at this and thinking that morality and the law have to be the same? Well, think about the Crito. Think about Socrates arguing he really, you know, this is the deal I made. There's something fundamental. If you think society is this natural thing, society's laws, even though, you know individual things, the legislature might make a bad call and condemn Socrates to death.

You have to go along with it because ultimately there's something unified about law. You can almost think of it as a single will speaking its words through all the different things. That would give you a. I don't want to say a critical apparatus because it's just a metaphor, but for saying whenever the law seems to contradict itself, it's like interpreting God's will. Why is God allow evil? Well, that seems like a contradiction. He wants us to be do well, but then he's allowing this evil and we have to give some sort of theodicy for why. To smooth that over and in part is just saying don't try to do that with the law.

Please don't just acknowledge that the law is kludged together from lots of distinct acts by legislatures or whatever. You know what, over time and it's why we need judges to work these things out.

10:18 Dylan: Six. He's trying to engage the criticism of refusing natural law as being the foundation of relativism and that somehow saying that, well, law is basically whatever we made it up to be, whatever we agreed it to be, isn't that relativistic? How can it be that loosey goosey?

10:40 Mark: We could euthyphro it and say do I obey the law? Because that's Just what the law says, or do I obey the law because the law, built into its teleology, is trying to accord with the good. It's the same as the Euthyphro problem. Do you obey God just because God says so, or is it because God's nature is such that God will do good? And so that's why I obey what I assume? So this entirely the same background as natural law theory?

11:05 Dylan: It is sort of, but I think this aspect of the question comes up a lot better in 5 and 6. But this notion that there's other things you buy into that are unwritten about laws and about a legal system. So for instance, that you will respect the legal system itself. And that's different than saying I'm going to obey a particular law. It would be that something like I more or less buy into this legal system and all of the habits, normative behaviors that go into supporting the existence of the legal system, and that the legal system will never be strong enough to withstand rampant disregard for its mechanisms. It'll just become lawless and become cease to exist. And that to me is a very, very interesting, timely question regarding all of our questions that's going on contemporaneously regarding the importance of respecting our legal system and working within it.

12:03 Wes: What he'll conclude is just that this is on page 626, that he goes through some of this non cognitive stuff, which is just that morality is not real, it's not rationally grounded. That's the idea.

12:15 Mark: It is moves in a language game. When I say that is good, what

12:18 Wes: I'm saying is yay, that expressing emotions

12:20 Mark: or I want you to believe that I believe that.

12:23 Wes: You know, you know, he'll say, even if we reject non cognitive theories, right? So morality is real. What follows is nothing. He'll say, right, so laws, however morally iniquitous, would still, as far as this point is concerned, be laws.

12:37 Dylan: Yep.

12:38 Wes: The only difference which the acceptance of this view of the nature of moral judgments would make would be that the moral iniquity of such laws would be something that could be demonstrated. It would surely follow merely from a statement of what the rule required to be done, that the rule was morally wrong and so ought not to be law, or conversely, that it was morally desirable and ought to be law. We can still say what ought to be law and what ought not to be law, and we can still think that we have rationally grounded real moral reasons for doing that. But the idea here is that we still ought to be making a distinction between law and Morality and saying if the law is immoral, it doesn't cease to be law, it just isn't a moral law.

13:17 Mark: I mean, this is making me want to go on a Hobbes digression because for Hobbes it actually seemed like there was no morality in the state of nature. I mean, we have these natural rights. In other words, there's some telos built into human nature that pushes us to sign the social contract and to assume that we have signed a social contract. But strictly speaking, there is no justice and injustice until there is a state to say what is just and unjust. And so morality, if it even exists at all in the Hobbesian system, seems like it is derived from.

It is something that is an extension of the legal system. I think somebody like Hart would have to say, even if you believe that, of course the legal system is going to be a finite number of things. Whereas again, going from the general rules to actual cases. Right. So when you're actually making moral decisions yourself, what should I do now? There's no law that points to you specifically. I don't know. This is just an argument that there has to be something like morality. Even in the, I would say radically relativist, authority based system that Hobbes puts forward.

You know, the fundamental. If you're saying that's like the most basic kind of legal positivism.

14:26 Wes: Yeah. In the state of nature we have the right to kill whoever we want.

14:32 Mark: Yeah.

14:32 Wes: So that that changes when we want to be nice to each other and have a society. We gave up that right. Which is frustrating.

14:42 Dylan: Be an interesting conversation about Blood meridian.

14:46 Wes: Yeah. Oh, I should start reading that actually.

14:49 Mark: All right, what is the next thing people have starred or whatever in this essay here?

14:54 Wes: 627 Almost at the end. So surely something further more specific must be said if disproof of non cognitivism or kindred theories and ethics is to be relevant to the distinction between laws. It is. And laws that ought to be. Then he's referencing Professor Fuller of Harvard. In no legal system is the scope of legal rules restricted to the range of concrete instances which were present or believed to have been present in the minds of legislatures. This indeed is one of the important differences between a legal rule and a command. Right. So a command is.

It's about the intent of the person giving the command. That's a personal relationship between the commanding person, whoever is receiving the command. And law is something else that, as Mark has already pointed out, is independent of what's going on in the minds of Legislatures, it gets codified. Right. The bill might be a thousand pages. It might be assembled by a lot of different experts, different parts written by different lobbyists, different parts of the bill written by different people. And then so you as a legislature, don't even know what's in it.

It's code, Right. It's like computer code. And it's going to execute the way it executes, except that the execution, the interpreter that it's running through, rather than just being a machine, is a human being who has to be able to think about that. And what they're not doing is thinking, well, what was in the minds of the legislators when they did this?

16:15 Mark: You could think what should have been in their minds if they were actually considering the whole thing.

16:19 Dylan: Yeah, right. I like the way Hart concedes the point, which is sort of the insight and the concern of the natural law people is that interpreting some cases that, you know, we reflect on interpreting the legal rules. This is the bottom of 268, 628. Sorry. We find after reflection, this interpretation to be so natural an elaboration or articulation of the rule that to think of and refer to this as legislation or making law or a fiat on our part would be misleading. So the argument must be. It would be misleading to distinguish in such cases between what the rule is and what it ought to be, at least in some sense of ought.

He basically concedes that. Yes, so I get it in certain cases. But in throwing the middle, he says, but it's really, really important that after all is said and done, we must remember how rare in the law is the phenomenon held to justify this way of talking. How exceptional is this feeling that one way of deciding a case is imposed upon us as the only natural or rational elaboration of some rule. Surely it cannot be doubted that for most cases of interpretation, the language of choice between alternatives, judicial legislation, or even fiat, though not arbitrary fiat, better conveys the realities of the situation.

17:35 Wes: So it's in these penumbra interpretation cases, right, where there's a little window where the light of natural law might be to shine in, or the light of morality. Let's say this is one of the intersection of morality and law moments. The way he puts it on 6, 27 is the inclusion of a new case under the rule takes its place as a natural elaboration of the rule, something implementing a purpose, quote unquote, which it seems natural to attribute in some sense to the rule itself, rather than to any particular person, dead or alive. So this joins what I've just been saying to what Dylan is pointing to, which is we're not referring back to intent of legislatures.

We are thinking in these penumbra cases, let's say, not in the core cases, you might think about the common good or what it's natural to attribute to the rule itself, or however you want to put it. I think he thinks there is a real intersection here between law and morality in these cases. And that's really interesting because we'll get more into this very big problem of interpretation when we get to Dworkin.

18:32 Seth: I would modify what you say with the penumbra is where there can be an intersection of law and morality, but there can be an intersection of law and something else. The example that he cites from Wittgenstein on page 627, I think it is show the children a game. So I teach them how to gamble with dice. And the person says, no, no, not that kind of game. That's not what I meant. And a lot of what can happen in the penumbra, but also not in the penumbra, is the sense that there's an assumed set of conditions and understanding that go into the articulation of a law or rule.

But what might happen is you might get a case that is in the penumbra, and what it forces you to do is articulate a clarification, teach the children a game that's age appropriate. You add a qualifier, you modify your law to add this additional clarification to rule out that case. And that would be an example where it's not necessarily a moral consideration, at least not strictly moral. Right. More like mores. Or you can think of other examples where that might be the case. This is something that we see all the time. Like, if you're into the cryptocurrency stuff, right?

We have laws that regulate banking and the trading of assets and currency and what you can and can't do and interest rates that you can pay on currency. And the technology is so far ahead and out of line with what the laws were conceived to regulate. The law is imagining that a currency is centrally managed by a government and produced and yada, yada, yada. And then somebody comes along and says, I've just created a digital currency. And the question is, okay, is it a currency? Is it to be regulated by the laws that we use to regulate currency?

Is it an asset? Is it a security? It is so unbelievably complex, but it's a recognition of this evolution of law and how now the laws that are there have to be held up against the particular instance. And then you have to say, does this fall under that? If it doesn't, do we need to create new laws to regulate this? So I feel like that motion is very natural. And I'm just saying that's an example of a penumbra case. I guess that's not about morals and law, but it's about something else.

20:54 Wes: It'll turn out that there is a legislative component to legal interpretation, to adjudication,

21:00 Dylan: and that's part of the deal. That's part of the nature of law.

21:04 Wes: Yeah, we have a rule of recognition that says, okay, what the legislature does is law, but we also have precedent. And people may go look at judges when they're making decisions, don't just look at the law. They look at past cases. They look at case law and precedent and all that stuff. And so there's a legislative component to those decisions. So people who say, you know, you should be legislating from the bench have not thought about this. But.

21:31 Mark: So I was thinking maybe to bat down our chief justice's metaphor of I just call the balls and strikes that. That's actually to bat down with another metaphor that's like from the Blues Brothers. We got both kinds of music, country and western. In other words, you're assuming. I don't know if the transition between those two analogies works, but it seems like just saying a one dimensional thing like is it a ball or is it a strike? In other words, does this case fall under the rule or does it not, Is a fundamental misunderstanding of what interpretation amounts to.

Right. Interpretation is not mere application of a rule. It's more multidimensional than that. So to transition formally to the book, the concept of law, actually it's chapter seven that is formalism and rule skepticism, which we didn't read. So we're not going to talk any more about that. But there was plenty in chapters five and six. Five was going back to the end of his criticism. I guess he's criticized this in the previous couple chapters as well. Of Austin's take on why looking at law as fundamentally analogous to the legislature giving orders.

I think we put out a lot of the reasons for that. Right. The title of the chapter is law is the union of primary and secondary rules. So primary rules are the ones don't do this, do that. Those are the ones that if you could arguably be at least comparable to the government is holding a gun to our head and saying, this is what you need to do. Those are the primary rules. But then there are rules about the rules, right? The rules that set up structures that appoint judges, judges that set up voting that, you know, all these things that are much harder to see, you know, using the gunman analogy.

So the secondary rules, I think, is the overall way of characterizing these additional things that John Austin couldn't account for.

23:15 Wes: So in the previous chapters, we do get kind of four objections to Austin. He only gives a bit of a summary right at the beginning of five. So one of them is just that the law applies to the sovereign as well. It applies to those who enact it and not merely to others. So that doesn't work well with the whole command theory. I think Mark already mentioned this. There are other varieties of law, right? Like conferring legal powers to adjudicate or legislate. That'll become a rule of recognition, being able to create wills. The third thing is legal rules can have an origin other than explicit prescription.

And we have to be able to talk about that, even to talk about how the law becomes systemized, systematized out of custom. And then finally, the command theory of law doesn't really account for continuity of legislative authority as a characteristic of the modern system. So even if you say a sovereign is an electorate or a legislature, the continuity of the. I'm not going to try to explain that. People can go look at those Kaplan videos or look at the prior chapters if they want more on that. But what we're concentrating more on here is first of all, this, what he calls the internal point of view and the idea of obligation.

And then on these secondary rules, including the rule of recognition.

24:30 Mark: You talked about the rules that come out of custom, which we talked about in part one a bit. Does that make him not entirely a positivist? Because I thought what the word positivist means in this context is some legislature, some sovereign, posited the rule at some point, brought it out of whole cloth, as opposed to it being a natural law that was merely articulated by the legislature or something, because the legislature is intentionally trying to pursue the common good. But it seems like if it materializes out of a custom that's there. Of course, you can still say, well, customs don't have to be good customs, and the good customs don't have to become the ones that become laws. But it's still. It's not strictly a positing. It is a finding the law.

25:13 Wes: Well, it's implicit positing, yes, because it's

25:16 Mark: English common law that, you know, for us, our rule of recognition, which we're going to talk, you Know, the thing that the buck stops at, the Constitution. Whereas there's nothing like that in English common law. It's just like tradition and judicial rulings going back millennia, going back a long damn time. And so when you're asserting that, yes, this law that we're articulating right now, we're not saying it by fiat, like we're just articulating the thing that we already follow. We're finding the law.

25:45 Dylan: But Hart doesn't agree with that, does he? I mean, he can't possibly agree with the idea that we would call, properly call that finding.

25:53 Wes: Instead of finding it in the divine or in utilitarian calculation. We're discovering it as a social phenomena from the external point of view, right? If we are approaching it in that sense, trying to think about this as members of a primitive society. Mark, you're bringing up a point about when it happens as custom depositing is not explicit. It's natural in a way, and it's not natural. It's natural in the sense that this develops naturally as part of the social life in the society. But that doesn't mean it's natural in the sense of natural law, where it's grounded in some metaphysical reality. It's grounded in a social reality.

26:29 Dylan: Would Hart agree or disagree with the notion that laws exist outside of a legal system? My sense is he would say that laws don't exist outside of a legal system. It calls them rules. So before you could have a primitive society that has rules against stealing, rules against killing other members of the community. But those aren't laws, those are rules. And there might be people enforcing them. You know, you kill the guy in the other hut, then some other guys might come and drag you out and string you up yourself, right? They might even say you violated the law. But that wouldn't be a law, according to Hart, because there's no legal system that's doing that.

27:11 Wes: I mean, the legal system would include, right, the centralization of the authority that actually does that punishment, and a lot of other stuff that we're going to talk about. But I think we should talk about this idea of obligation section a little more, even though we've done some of that, because this is kind of the central problem when you say a legal system.

27:27 Mark: Dylan, do all the laws have to be articulate? Because I felt like that was one of the things that Hart was recognizing is that part of this underdetermination of law, you know, that makes judges necessary, is that there's a set of background assumptions behind any law that have to Be rules or customs, something that falls short of law until I guess a judge explicitly makes it part of the legal system by casting a ruling on this. Just like the teach the kid a game. I didn't mean teaching them pin the tail on the stripper. No, pick something that is appropriate for teaching kids games.

Like have some common sense. So there has to be some sort of common sense. You know, the mores that underlie any given the interpretation, even the simplest law. What counts as murder. I mean you could imagine a primitive society like of course all we need is the ten Commandments begotten, thou shalt not kill. But then like self defense. Immediately things come up where you're like, does that count as killing? Is that the bad kind of killing?

28:28 Dylan: It just turns out not to be true that there's a rule against killing. It's just a rule against certain kinds of killing.

28:33 Wes: Ah, right. So yeah, so it's a rule until it starts to get codified. Yeah.

28:41 Mark: The fine print on the Ten Commandments.

28:44 Wes: Yeah. Until there's a rule of recognition that says yes, hey, this is the process for making it a law. And when this process happens, it is law. And we're going to say there's people to adjudicate whether a case falls under the law. There's people to punish you if the adjudicator says, you know, it did fall under the law and you know all that stuff. But all of that happens in an informal way in these other societies. Right. So there's lots of social punishments and even physical punishments can happen. Right. You know, as Dylan was saying, what is now centralized, the punitive authority is just everyone within the society.

So yeah, if you murder someone, a group of people, self appointed people might be the ones to come punish you in. In what way are they going to beat you up? Are they going to. You know, it's not well defined. And that of course is part of the problem. I think Hart calls that an inefficiency. Right. Because it leads to vendettas, for instance. It's just a bad way to handle things. So there are lots of reasons to make the transition to law itself.

29:42 Dylan: What I was reacting against was the idea that just because there is a coincidence between a law that's built in a legal system and something that we would call a moral attitude doesn't mean that that law was found. Those aren't the same things. I don't think that that's evidence on the face of it that those rules were found. Especially when you have all the other examples and argument that Hart gives that it's insufficient to talk about the laws that we have as all being found.

30:16 Wes: Well, the person codifying them, the people codifying them. Some Moses comes along and says, here's our Constitution, here's the Commandments. It's unlikely to work. If that's just a matter of his personal whim or even his long standing reflection on what he thinks is going to make a good society. He's probably codifying and systematizing what's already there. I think that's. Correct me if I'm wrong. That's what Mark was talking about as a kind of finding.

30:42 Mark: And it kind of goes again with the thing I said that Hart hated of seeing the law as a Geist, as a spirit, as let's ferret out the American character, ferret out what the British character should say about this. And using that as your guiding principle, which I kind of think is what judges do, you know, certainly at the Supreme Court level they care about whether, you know, even in these abortion things, the majority in the Dobbs is saying it's really not the case that everybody's for abortion. And that's just the common thing. You know, look at all these dissensions and look at the history of it and you know, and maybe they're making bad historical arguments, but the fact that they're making that kind of argument at all is trying to show that law as properly conceived has to be rooted in tradition.

It's just that tradition is inherently, especially in a very complicated society, is inherently ambiguous. So you're sort of picking and choosing which apparent trajectory, which Geist. There's something a little bit arbitrary about it that's more than just fine. It is definitely creative, it's definitely legislative.

31:47 Wes: Yeah, we've talked a lot about this obligation section and the internal aspect of rules. One of the main things he's trying to do here is to challenge the idea, what he calls the predictive theory, which defines obligation as a likelihood of punishment following deviation from a rule.

32:05 Mark: The behaviorist take.

32:06 Seth: Yes.

32:07 Wes: And it doesn't get at the internal aspect of rules. Right. And part of the problem is, you know, he gives the example of the red light. So the red light to an external observer. Right. If the red light in the sense of a light for cars to an external observer who's not part of that system, you could just say, well, okay, that's a sign that people are going to stop because I regularly see people stopping when the light is red. And then if they don't do it, I see them getting in Trouble, punished, whatever pulled over. But within the group internally, it's not just a sign, Right.

It's not just a predictive sign that people will stop. It's a reason to stop. And there's a sense of, like, I had an obligation to stop. It's not, oh, I'm going to predict that I'll probably suffer if I don't stop. It's like, I have to stop. So the way he puts it is that people use rules as guides to conduct, and they use them to make claims, they make them to use, to make demands. They use them as the grounds for criticism, as the grounds for punishment, and also as a reason to be hostile. Right. It's not just a prediction of hostility. It's like, that person did something wrong.

I'm pissed off at them. They broke the rule. They shouldn't have done that. And so that's what these previous forms of positivism have not caught onto. So I'm still a bit puzzled by what that does for us.

33:26 Seth: It was interesting to me because he actually uses the exact same language that we got when we went and did the Langer episodes. He says that for the external observer, the red light is a sign that people will stop or might stop. It's like, where there's red light, there's stop. But to the internal observer, it's a signal that they should stop or that they must stop. And it put in mind, you know, the talk of symbolic language, the notion that it points to something absent. And I didn't make much of it, but I thought it was really interesting that because it's pointing to this idea that signaling is a much more complex function than simply signing, if you will, or to be a symbolic function is much more complex.

And in this case, what he's trying to get at is that to the internal observers, the laws or the rules function in a much more complex way than can be captured by the external observer in a simply descriptive state.

34:21 Wes: I thought of that as well. Yeah. The other thing I wanted to say here, though, is that what's puzzling to me is that it's not just a prediction of hostility, but a reason for hostility. And then I'd be like, damn it, that person ran a red light. They shouldn't have done that. Screw them. And then someone says, well, what's the reason for your hostility? I would probably revert back to moral language. This becomes an argument for, or it might, natural law points of view. I haven't thought about it. So that's what's confusing to me. That Becomes a moment where you say, well, I want to justify the normativity of the law.

It seems like I have to refer back to normal language. There might be other ways to do it. Right. It's just that, well, that's what we all agreed to. I have to do it. Why should they? There may be other reasons on top of the moral considerations. Right. That it's dangerous to run the light, that someone might get hurt. There might be other normative, purely legal reasons on top of that to be hostile.

35:13 Mark: So what if you see you're stopped at a red light and the lane next to you is open and you see a cop car come up and they turn on their blinkers so they can go through the red light and then they turn off their blinkers as soon as they get through the red light and they continue on their very way. That was legal, what they did. But you would be like, I think it says something about the psychology of, you know.

35:35 Wes: Yeah, that pisses me off.

35:36 Mark: Yeah, exactly.

35:37 Wes: Because I know they're just trying to get to Dunkin Donuts. Sorry, Sorry. To anyone, fans or police officers or.

35:45 Mark: So you're stopped at a red light late at night and there's nobody around. It is a small street and you could see if anybody's coming. Do you eventually just go through the damn red light? Because you're just like, I understand what the purpose of the red light is. I already stopped. I fulfilled that purpose. It should be a flashing red light at this time of night, but it's not. And I'm just not going to sit here anymore. So I'm going to go through it.

36:05 Wes: Yeah, I've done that. And I do it on a bike all the time. I got a bicycle and I used to hate bicyclists for breaking this law and now it's like, this doesn't apply to me. If it applied to me, it would be possible to get pulled over and get a ticket. But it doesn't apply to me because that couldn't happen. But anyway, what I was trying to get at is, is there a way to. He's explaining the internal point of view in terms of hostility and normativity. But can we actually do that simply in legalistic, non moral terms? If we're talking about hostility, don't we always get back to morality? So I'm a little bit confused about. And it may just be that inevitably our sense of the normativity of law is always moralized. It could be the case that morality and the law are distinct, even if psychologically we are bound to feel the force of the law via moralization.

37:02 Mark: Maybe all normativity is moralized. So, like, I don't care about etiquette, really, because I don't moralize that. Whereas somebody who actually cares about etiquette is, like, actually affronted. Oh, what a terrible child rearing to have your elbows on the table or be chewing with your mouth open or whatever that's, well, mouth open. That's so inconsiderate to show me the contents of your mouth. Like, we do moralize all that stuff, even though nobody's saying that etiquette is morality.

37:31 Wes: Well, yeah. I mean, they're bad people if they do that. So.

37:36 Mark: So, yeah, he wants to admit this. And I really liked in this paper that there are so many different kinds of levels of normativity. But psychologically, I think you might be right that we are not that subtle creatures. If you shouldn't do it, you shouldn't do it. And you'd have to pin me down, you know, and make me like, well, but do you really feel the same way about. Yes, okay, fine. I feel different strengths of these things. I don't feel like somebody should be flogged for eating with their mouth open, but they should get the stern look.

38:05 Wes: I don't think we can explain the internal point of view without an appeal to morality. There's no purely legalistic sense of obligation.

38:16 Dylan: And that's because what we're effectively doing is turning the rule following itself into a moral question. You're under obligation because you ought to be following it, because what you ought to be doing is following the rules.

38:29 Mark: If you're Socrates in the Crito, absolutely what you ought to be doing is following the rules. If you're, oh, I'm so much smarter than the rule makers or whatever, then you're like, I'm only going to obey the law insofar as I see what the rationale for it is. Maybe also because I don't want sanctions, but, like, I'm only going to really care about following the. You know, my maxim is not always follow the law. It's follow the law when there was a good reason for it. And so there's usually a good reason for traffic lights. But if you then confirm that nobody's coming and that's the whole reason for the traffic light, then go ahead.

39:02 Dylan: But this idea that the internal point of view always involves a kind of moral judgment kind of rings right. And the kind of indignation it's easy to feel when you just see people not obeying the Rule.

39:17 Wes: Yeah, we can't explain hostility without it, and there'd just be no reason to. It's like if it's just a game and someone doesn't know how to play. You couldn't do the same thing. You couldn't say, oh, the pawns don't work that way. You ought not to do that. I'm feeling hostile for you for breaking that rule. It's not, it's different. You might be frustrated with them for not learning the rules or something like that. But that's different. What we mean by morality there. It could be just like again a utilitarian consideration, like it's dangerous, that person's going to kill someone going through life.

But it could also be something as simple as this is the compact. You know, we all agreed to this. If I'm going to be restricted in my behavior, you have to be too. Or it could be any number of other things like that, but it still seems to me has to be moralized. And that again puzzles me because it's. It brings me back to the question of the distinctness of the two things. And I just haven't thought enough about it.

40:11 Mark: All right, let's get some more stuff from the text. What other notes do people have? I know the general structure of this chapter five is that there are you mentioned inefficiency.

40:21 Wes: There's ambiguity to uncertainty, staticness and inefficiency. This is section three.

40:27 Mark: Problems with a merely rule based as opposed to actual full grown law. Okay, so this is no longer talking about the problem with an count of the law based on orders. Right, he's done with that.

40:39 Dylan: He's already dispensed with that.

40:41 Wes: So in the beginning of section three, he's talking about primitive communities without courts, without legislatures, without officials, and the only means of social control is the attitude of the group. You know, he says we'll call that custom. He doesn't really like that word because it doesn't fully capture the sense of obligation he thinks. But we can put that aside.

40:58 Mark: I like that we're considering this because we had the anarchy episode and I feel like we have a number of listeners that are just like, isn't it enough that there are just sanctions and there's enough cohesion in the group that you have an understanding of things? Do we need laws? Do we need formal sanctions? Wouldn't we have a better world? You could take this as an argument of, yeah, actually there's a lot of advantages to having an actual system of law.

41:20 Wes: Yeah, just go to your local anarchist club and See how many bylaws they have in there and rules and procedures they have.

41:28 Dylan: I think on this point that you can just go read a Calvin and Hobbes Calvinball strip and you'll understand why this is a problem.

41:38 Wes: Basically, what he's going to say, it's really not possible to move beyond the small community if all your rules are unofficial. The first defect is uncertainty, which is to say doubts will rise as to the scope of the rules, something we've been talking about. And there would be no procedure for settling that doubt by reference to an authoritative text or an authoritative official. The second defect is that there's no way to really change the rules. You just have to wait for custom to change. Right. There's no reflective way to do that.

42:07 Dylan: It takes forever.

42:08 Wes: It takes forever. And then the final defect is inefficiency. What we talked about as a product of diffuse social pressure. Disputes are interminable. There's no central agency to do the punishment. So you get vendettas, smoldering vendettas, as he puts it. And it's also a waste of time. You need a police force, just so you're not all wasting your time constantly going around having to be tough with people. So the remedy is to supplement the primary rules with what he calls these secondary rules. And these are rules about the rules, Right? Rules about the primary rules. Restrict your behavior. Can't do this, can't do that. The secondary rules are about how the primary rules are made, changed, adjudicated, blah, blah, blah. So let's go. What is the remedy for uncertainty? And that's the rule of recognition.

42:53 Mark: He says enough in chapter five about it that we didn't strictly need six, but it was nice to unpack that further. And I think we've sort of said what the issues are in terms of, like, was the Nazi law a legitimate law? Well, who passed it? Did that person have appropriate authority to pass it? Did the person who appointed that person was appointed that person in the right way? Ultimately, does it come back to an election or whatever? The Constitution initially said, even if the Constitution has now been jettisoned by the new regime, was it done so according to official procedures?

And if you can trace that back, then that is what the rule of recognition amounts to. That you're at least. I think he's open as to what the source could be, because the rule of recognition could just be the judges have a definite role in deciding these things. And so maybe it is indeterminate whether after this long chain of. Even if the causal stuff went back to the right rule of authority. If it ends up somewhere disastrous, maybe a judge has the authority to come along and just say, nope, that was not a rule, or whatever.

43:58 Seth: You're at an advanced stage already. I mean, if we think about the context of moving from the custom based society where everybody knows what the laws are, even if they're not written down and they implicitly adhere to them, I think what he's trying to say is in any sufficiently complex society that has laws, there is something that's not a law, but which is either implicit or explicit, which is this rule of recognition. In other words, there has to be some way for the people in that society to recognize that something is a law and what the laws are.

And in the case of the individuals who are a subject, as he calls them, private persons or whatever, that may not be explicit, but there's an understanding because they may not know all the laws and they have to have at least some way of recognizing what is and isn't a law in the society. Whereas for the jurists and the lawyers and so forth, it actually becomes an active principle of the way in which they implement and create secondary laws or whatever, the primary and secondary laws. So he's just saying for something to be a legal system in any modern sense of the word, it can't just have laws.

It also has to have this rule of recognition because it performs this function.

45:13 Wes: And it could just be as simple, right? As, you know, if so and so stands on a rock and gives you a rule, that rule is law because that's our rule of recognition. And Seth, is you're pointing us to something that will become a big deal in chapter six, which is that rule of recognition can itself be a law. It just has to be a practice. So we never fully transcend the realm of customary practice. Even if you say it's the law, that this is the rule of recognition, that doesn't solve the problem. So it could be something that simple. It could be an authoritative list or text, a constitution, a more developed, complex system with the legislature, right? Just having a legislature and saying, hey, if you go through this process and put this thing in writing and all you guys vote, and that's the rule of recognition. That's an example.

45:59 Seth: But what's important about it is it is like the motive force for the legal system. It addresses a couple of those three different problems. But essentially the law of recognition is what makes possible the secondary laws, which is really what makes possible movement in the law. So it's not simply a foundational principle. It also, in essence, is the energy behind how you might recognize something else as a legitimate source of law, or how you might delegitimize the source of law, or how you adjudicate between different sources of law. And he gets into talking about ultimate and supreme, or statute versus statutory. I don't know the terms, but without the rule of recognition, you can't have any of that stuff.

46:41 Wes: It's making me think of Schoolhouse Rock.

46:44 Seth: I'm just a bill. Yes, I'm only a bill.

46:47 Wes: And how we tell our kids what the rule of recognition is, it's very important.

46:51 Mark: It all boils down to the things in the Constitution and our customs for dealing and making those a reality. And what supports that? Well, just custom. That was the last verse of that that was left off.

47:04 Wes: Just not. There's no reason is what it is,

47:07 Mark: just what we do. It seems to work pretty well.

47:10 Wes: I think before we end, we could just finish up quickly by saying, because we could use the part three for chapter six. But saying what? The rules of change. So the problem of static ness is solved by rules of change, which involve powers of individuals to introduce new primary rules, which of course is connected to rules of recognition when we get to things like a legislature. But also there's wills and contracts and ways for people themselves to kind of take on individual legislative powers. But anyway, the point is that there are rules according to which we can actually change our laws. And then finally, the remedy for inefficiency is adjudication. So we empower certain people to say whether a rule is broken. We say, you're a judge, you have this particular power to do this.

47:54 Dylan: We establish processes too, right? Trial by jury and how to bring in evidence and stuff like that.

48:00 Mark: And all this makes very vivid when people talk very commonly about the system breaking down. Now, you know, if you have 50 judges making rulings against Trump on the election thing, and a lot of people just saying, well, those judges, they're all biased or they don't accept that there is any adjudicator that is objective. And so what Hart's analysis of this rule of recognition, it's not that everybody recognizes it all the time. It's just most of the people, and particularly the people who are cogs in the legal system itself, have to recognize this as the chain of authority.

Like it doesn't necessarily matter if you have a bunch of peasants. They're only kept in line from the sanctions. There has to be internal respect for the law qua law for the thing to work. So the question Is the skepticism that we have is that merely on the margins, such that there are always people who live in the society that are moved by baser motives than respect for the law, or is there some actual disruption? If there were parts of the law, the Trump appointed judges that are fundamentally going in different directions? And this is the criticism that people have, of course, at the Supreme Court now that we don't even have a body, we haven't gotten to the point of.

I don't just cast a dissenting vote on this ruling. I'm going to say this majority ruling is not even a legitimate ruling. Like, no, they're not. To that point, I'm going to go and start my own Supreme Court again.

49:22 Wes: Yeah, right. Well, he'll bring up in Chapter six, the case of South Africa, where there were appeals courts set up to oversee the regular courts, and the regular courts were saying, well, those appeals courts aren't valid. It'll be interesting when we get to the most recent abortion decision and the dissent, which is pretty withering and, you know, good piece of writing and reasoning. So even if they're not saying this isn't a real decision, they can get pretty heated.

49:48 Mark: So next time, though, we are going to be talking about this Dworkin Hart debates. We're going to read Dworkin's 1967 article, Model of Rules.

49:58 Wes: Well, we're going to do Chapter six for part three, right?

50:01 Mark: Yes. But before that, we have a Part three, which only the supporters will get to hear, where we'll go more in detail on Chapter six, which is just. Just more about this rule of recognition. We've given the outline, but there's still a lot of good stuff still in here and we can do some more.

50:14 Wes: Don't undersell it. We're going to get to the ultimate rule of recognition.

50:18 Mark: So, supporters, that'll be in your feed next week. Ah, we hope you've enjoyed this treatment of the philosophy of law because you're going to get more of it with next time and not the time after that, but the time after that. At least two more episodes in the foreseeable future will be in this area, and I think it's fascinating myself, so you should all agree. Good night, everybody.

50:40 Seth: Good night.

50:40 Dylan: Good night.

50:40 Wes: Good night.