On Jurisprudence

Claremont Review of Books, Winter 2001.

The flowering of interest in jurisprudence among English-speaking philosophers in the second half of the twentieth century produced a number of outstanding books. The four I discuss in the following paragraphs are, in my judgment, of the deepest and most lasting significance.

In the late-1950s H.L.A. Hart assumed the chair of Jurisprudence in the University of Oxford and began publishing work—culminating in his magisterial book The Concept of Law (1961)—designed to correct key defects in the thought of earlier figures in the tradition of analytic jurisprudence, particularly Jeremy Bentham and John Austin. While retaining his predecessors’ insistence on maintaining a sharp “conceptual separation” between law and morality, or “law as it is” and “law as it should be,” Hart faulted them for adopting a purely “external” approach to legal phenomena that left out of account the important respects in which citizens and public officials characteristically treat legal norms as reasons for actions. Hart showed that the simpleminded Benthamite understanding of law as “orders backed by threats” (the so-called “command theory”) fails to describe accurately the role and functions of law in developed societies. The problem is not, he insisted, in the early positivists’ aspiration to describe law independently of moral evaluation; it is, rather, that their descriptive theories “failed to fit the facts.”

Lon L. Fuller, a Professor of Law at Harvard, argued in his masterwork The Morality of Law (1964) that the legal positivism Hart retained from Bentham and Austin should be rejected. According to Fuller, careful attention to the “purposive” nature of law reveals that positivism’s insistence on the strict “conceptual separation” of law and morality is untenable. Law, Fuller observed, is a matter of “subjecting human behavior to the governance of norms.” But to accomplish this goal, rulers—even selfish or corrupt ones—must conform their edicts to certain procedural criteria of legality. Their commands must be promulgated, prospective, reasonably clear, etc. Otherwise, people to whom they are directed will simply not be able to comply with them….