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

My FINAL 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:

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, change, and adjudicate the primary duty-imposing social rules of obligation.  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 accepts 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 from their own legal system.  Hart does this to save the obligatory character of law.  Hart believes that this obligatory character only manifests in situations wherein everyone in the social group accepts the social rule.  

Hart recognizes that it would never be the case that all members of a social group would accept the social rules comprising their legal system.  So, he strips the citizenry of their legal system.  He makes the body of public officials the social group whose legal system it is.  But, this would mean that the public officials confer authority upon themselves and constrain themselves.  And, still, as Dworkin so astutely pointed out, no body of public officials accepts their social rules devoid of 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.  The solution is to apply a Modified Lewisian/Hartian Account of Social Conventions to Hart’s legal system.  According to this account, what it is to be a social convention is to be a union of a primary, duty-imposing social convention of obligation and a secondary, power-conferring social convention of authority.  All social coordination requires 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.  No one would wish anyone party to the convention to unilaterally deviate, because the social convention 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. It is in this way that we can allow for disagreement and dissent about what the law is and should be, because we can have sub social groups that are step public goods in and of themselves that wax and wane over time.  The citizenry is a major player in its own legal system, conferring power upon public officials and constraining their authority.

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