Hart’s Fatal Mistake in The Concept of Law and How to Fix It — My Abstract for the Next International Social Ontology Conference of my 2nd Dissertation Paper

This is just a draft of my Abstract for the next International Social Ontology Conference of my 2nd Dissertation Paper.

It’s called: Hart’s Fatal Mistake in The Concept of Law and How to Fix It.

Here’s what I have so far for the abstract. It’s too long right now. I have to cut it down:

Hart’s Fatal Mistake in The Concept of Lawand How to Fix It

Abstract

In The Concept of Law, HLA Hart crafts a theory of legal systems as the union of primary, duty-imposing social rules of obligation and secondary, power-conferring social rules of authority.  The social group whose legal system it is confers authority upon the public officials of the legal system to promulgate, repeal, change, and adjudicate the primary duty-imposing social rules of obligation.  If a public official of the legal system oversteps her authority, she has not breached a duty or obligation; she has simply failed to make valid law within this legal system.  A social rule is a legal rule for this social group, because it is part of this legal system, and is valid according to the Rule of Recognition, the ultimate criterion of validity, the set of secondary power-conferring rules of authority, including the Rule of Change and the Rule of Adjudication.  The set of primary, duty-imposing rules of obligation of the social group whose legal system it is constrain the authority of the public officials of the legal system.  It is the citizenry who confers authority upon the public officials of a legal system. If the public officials purport to make law beyond the constraints of what the social group whose legal system it is accept as valid, then the public officials have failed to make valid law.

Hart then makes a fatal error, undermining his entire legal theory, an error, which Ronald Dworkin famously recognized and exploited to great effect in Law’s Empire.  Hart alienates the citizenry, the general public, the social group whose legal system it is from their own legal system. Hart does this to save the obligatory character of law.  Hart thinks the obligatory character of law is a social fact that arises from the fact that all of the members of a social group take the internal point of view towards the social rules that comprise their legal system.  They accept the social rules.  Hart believes that this obligatory character only manifests in situations wherein everyone in the social group accepts the social rule, and he believes that this will only occur when the social rule is a matter of great importance to the social group, such that no one would wish anyone in the social group to unilaterally deviate therefrom.  This is a point upon which Hart receives much pushback, because he has to make a seemingly arbitrary distinction between social rules that are important enough to be real social rules, and social rules that are lesser, or not real, social rules, such as rules of etiquette.  

Hart recognizes that it would never be the case that all members of a social group, the citizenry, if you will, would accept the social rules comprising their legal system.  So, he strips the citizenry, the general public of their legal system.  He alienates them from their own social rules.  For Hart, it is enough that the citizenry not mutiny against the public officials.  He makes the body of public officials the social group whose legal system it is.  He thinks that, by so doing, he is able to argue that all of the public officials of the legal system would accept the social rules comprising the legal system. He turns the Rule of Recognition into a primary, duty imposing social rule of obligation.  But, this makes no sense, because this would mean that the public officials confer authority upon themselves and constrain themselves, according to what they will and will not accept as valid.  And, still, as Dworkin so astutely pointed out, no body of public officials accepts their social rules en masse, as a monolithic entity, devoid of unilateral deviation or disagreement or dissent.

I believe there is a way to fix Hart’s fatal mistake, and craft a legal theory that returns a social group’s legal system to the citizenry, whose legal system it is.  The solution is to apply my Modified Lewisian / Hartian Account of Social Conventions to Hart’s legal system as the union of primary, duty-imposing social rules (conventions) of obligation and secondary, power-conferring social rules (conventions) of authority.  According to my account of social conventions (rules in Hart’s parlance), what it is to be a social convention is to be a union of a primary, duty-imposing social convention of obligation, so to speak, and a secondary, power-conferring social convention of authority.  All social coordination requires authority.  

By recognizing that all social rules (really, conventions) are these unions of a primary social convention of obligation and a secondary convention of authority, Hart’s necessary connection between obligatory character and unanimity of acceptance is severed.  Social conventions are step public social goods, for which the public officials (authorities) are freeriding defectors, and the moment at which the social convention arises, the social group rests upon an equilibrium point.  All members of the social group, save the authorities, are parties to the convention.  Because no one would wish anyone party to the convention to unilaterally deviate, because the social convention (step public social good) would collapse.  Therefore, there is something closely akin to an obligation for all social group members party to the convention to continue to conform thereto.  But, the authorities (freeriding defectors) are not party to the convention, and they fare far better by continuing to defect.  The fact of their not being party to the convention also makes it the case that they are free to move the social group to alternate social conventions, by exercising their authority.  It is in this way that we can allow for social conventions (social rules) of a legal system to arise, evolve, devolve, and, eventually collapse. Likewise, dissent and disagreement and legal advocacy become part and parcel of a legal system.  Social conventions (rules) wax and wane over time, as do legal systems.  The citizenry is a major player in its own legal system, conferring power upon public officials, constraining their authority, and pressuring the evolution and devolution of their legal systems.

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