I wanted to make sure to archive Ken Ehrenberg’s (University of Surrey in the UK) awesome comments on my talk at the International Social Ontology Conference, Hart’s Fatal Mistake in the Concept of Law and How to Fix It, and my responses, in case they went away for some reason. And, I decided to memorialize them in a blog post.
Here’s my YouTube video of my Talk:
And, here’s my YouTube video where I paraphrase Ken Ehrenberg’s comments and my responses:
And, here is my archive of my webpage for Social Ontology 2021 with Ehrenberg’s comments and my responses:
And, here I’m going to copy and paste Ken Ehrenberg’s first set of comments:
Sorry; I won’t be able to attend the Q&A in person so I’m going to ask here. Feel free to ignore or not, but I hope it helps:
What do you think Hart would say if the officials thought a legal enactment was invalid, but the rest of the populace thought it was valid and followed it? Would it not be law b/c the relevant validity-determining social group (public officials) doesn’t agree with its validity? Or would the populace be ‘reclaiming’ its legal system in that case? But then wouldn’t that mean that it is still their system in some sense?
There’s something a bit off in your presentation of Hart’s requirement of unanimity. What requires unanimity (or near unanimity) is the CRITERIA of validity, not their application. This is where Dworkin goes wrong — he conflates these two and presents Hart as being unable to accommodate ‘theoretical disagreement’. But theoretical disagreement is fine as long as it’s theoretical disagreement in the application of the criteria of validity and not about the criteria themselves. Your presentation makes it sound like you’re agreeing with Dworkin that Hart cannot accommodate any disagreement among officials at all.
You say that the problem of alienation is at least partially the ‘arrogation’ of authority by officials (bootstrapping their own legitimacy), which alienates the people from their own legal system. But that would suggest that there is another solution if we can discover what independently legitimates their authority. Then it is the people’s obligation to comply with the officials’ validity determinations (when legitimate) that ‘delegates’ (bad word here, but I’m lost for another one) authority to the officials. So the Hartian picture can survive with the officials being the relevant social group for acceptance by the internal p.o.v. because the people’s obligation is essentially to delegate that power to them (when doing so is for their own good) and hence they are not really alienated from the system. I take it this is Raz’s fundamental insight.
You and I are walking down the street towards each other and are about to bump into each other but instead I signal that I’m going to step to left and you see that signal and therefore step to your left as well so that we avoid bumping into each other. Perhaps I’ve deployed a convention in doing so (my signal to you must take part in a convention), but have I exercised authority? Have you? It seems like an instance of social coordination without authority.
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Here I’m going to paste my responses:
Thank you so much. This comment is the perfect opportunity for me to clarify several points that I’ve been giving much thought.
1. I would say yes, the public officials may overstep their authority in repealing a valid law as much as they can when promulgating or adjudicating a law, and then would have failed to do so.
2. I completely agree with your second point. I’ve been giving this point much thought. I think I need to tighten up my language when I discuss this. I am saying what you are saying — there can be no theoretical disagreement about the Rule of Recognition (for Hart), the ultimate criterion of authority. Before I was thinking that the Rule of Recognition was a secondary power conferring rule of authority, and I thought I was an exclusive legal positivist in a trivial sense. Now I think that the Rule of Recognition is the set of primary duty imposing social rules (conventions) of obligation (or quasi-obligation) that the social group whose legal system it is accepts, and I have shown how we can allow for theoretical disagreement and dissent and pluralism.
3 and 4. My answer to this point is essentially the same as in 2. Yes, you are right. The obligation to comply, to confer authority, as part of the secondary power-conferring social rule (convention) of authority, to confer authority on the assumed authority, arises or piggy backs on the quasi-obligation to conform as one’s social group conforms as part of the primary duty imposing social convention of obligation (or quasi obligation). This is Raz’s definition of authority, and I am using it. Authority is the ability to change the protected reason of someone else. A protected reason is a first order reason to do something and a second order reason not to consider any other alternate actions. I take it that this can be a very nominal notion of authority. I do not need nor want my nominal notion of authority to be anything near legal authority, but it could be legal authority. And, authority is always assumed, and then conferred. But, an assumed authority doesn’t always step up to the plate when needed. Social coordination problems go unsolved. So, I do take it that when the first person steps to the left, and the second person then also steps to the left, this is an exercise of assumed authority, which is then conferred.
Just to clarify one other point in 3 and 4.
So, this means, as I’m arguing, that the Rule of Recognition, the ultimate criterion of validity, must be the body of primary duty imposing social rules (conventions) of obligation (or quasi obligation) that the Social Group accepts, the social group whose legal system it is, in order for it to be the case that they have an obligation (or quasi-obligation) to confer authority upon an assumed authority as part of a secondary power conferring social rule (convention) of authority. The one obligation (or quasi-obligation) piggy backs on the other. This is why you cannot alienate the social group from their own legal system.
Sorry. In 2., I accidentally typed that the Rule of Recognition is the ultimate criterion of authority, and, of course, I meant to type that the Rule or Recognition is the ultimate criterion of *validity*.
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And, here I’m going to paste Ken Ehrenberg’s subsequent brilliant comment, which I responded to a little bit in my YouTube video, but which I’ll address further later:
Just a note to be careful about terminology and avoid overreach: a protected reason is a first order reason coupled with an exclusionary reason to not to act on SOME reasons to do otherwise. To say that the exclusionary part is a reason ‘not to consider any other alternate actions’ is misleading in two ways. First Raz is clear that you can consider whatever you want; you just can’t ACT on those other reasons and still comply with the exclusionary reason. (This is an upshot of his debate with Hart about the force of a legitimately authoritative directive, with Hart saying it cuts off deliberation, while Raz claims it only cuts off action.) Second by saying ‘ANY’ other actions, you misleadingly imply that the exclusionary reason excludes ALL other considerations, which it need not do. It only needs to exclude some specified set of reasons. In Raz’s view, when dealing with a legitimately authoritative directive by a (e.g.) legislature, it excludes only those non-compliant options that the legislature was meant to consider in making its directive. So if there is a new reason for non-compliance that the legislature was not meant to consider, then that would not be excluded by the exclusionary reason.
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