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Language and the normativity of law
Legal philosophers have tried to explain the normativity of law — the fact that the law of a community is, or presents itself as, a guide to the conduct of members of a community. One easy way to express this abstract feature of law is by pointing out that the law can be stated by making normative statements (i.e. statements that use expressions like ‘obligation’, ‘right’, ‘must’, ‘may’). And one attractive way of trying to explain it is by explaining the meaning and use of the normative language that is often used in stating the law. That is, the problem of explaining the nature of legal norms (obligations, rights, etc.) can be addressed by explaining the meaning or the use of the normative words that are used in law (‘obligation’, ‘right’,…). Joseph Raz has put it that ‘The problem of the normativity of law is the problem of explaining the use of normative language in describing the law or legal situations.’ (1990, 170)
We saw that Bentham's theory of normative language in general was that, because there is no perceptible substance or emotion for which they stand as a name, words such as ‘right’ must be ‘expounded’ by paraphrasing sentences containing them by the use of sentences that contain only words that can be defined as referring to substances and perceptions. When no such paraphrase is available, he considered that normative language is meaningless. So he held that the phrase ‘natural rights’ is “simple nonsense: natural and imprescriptible rights, rhetorical nonsense; nonsense upon stilts”(Bentham 1843, Art.II). While the language is meaningless, he thought, we can explain its use — as a way of doing something. Using such nonsensical expressions is a way in which the speaker expresses his preferences.
Although Bentham and Austin thought that the notion of a natural right was nonsense, they did not at all think the same about the notion of legal rights. In their command theory they found a way of making sense of normative expressions in their legal use. They explained the meaning of the word ‘duty’ — and thereby the normativity of law — by reference to the pain and pleasure that a superior offered as motivation for compliance with the superior's will:
That is my duty to do, which I am liable to be punished, according to law, if I do not do: this is the original, ordinary, and proper sense of the word duty. (Bentham 1776, 109; cf. John Austin 1832, 14).
Hart used the resources of twentieth-century philosophy to challenge that approach to normative language. He drew on the work of J.L. Austin, a philosopher of language who thought that problems in many areas of philosophy could be dissolved by pointing out the things that people do with words. J.L. Austin once suggested that “a statement of ‘the law’” is a performative statement, rather than “a statement of fact” (Austin 1962, 4 n.2). The suggestion is that to state the law is to perform an act (an act other than the making of a statement that can be true or false). J.L. Austin's claim offers to account for the normativity of law by reference to the things that people do with words. That hint seems to have attracted Hart, whose theory of law is based on a ‘practice theory of rules’. He articulated the theory by pointing out what people do with the normative language they use in stating rules.
Hart started by arguing that Bentham and Austin had explained the meaning and use of normative language in a way that failed to account for its role in ordinary discourse. He pointed out that their account of the meaning of the word ‘duty’ left them unable to draw a distinction that people ordinarily draw in their use of language, between the command of a gunman (which no one would say imposes a ‘duty’ or an ‘obligation’), and a legal prescription:
The plausibility of the claim that the gunman situation displays the meaning of obligation lies in the fact that it is certainly one in which we would say that B, if he obeyed, was ‘obliged’ to hand over his money. It is, however, equally certain that we should misdescribe the situation if we said, on these facts, that B ‘had an obligation’ or a ‘duty’ to hand over the money. So from the start it is evident that we need something else for an understanding of the idea of obligation. There is a difference, yet to be explained, between the assertion that someone was obliged to do something and the assertion that he had an obligation to do it. (Hart 1994, 82)
Bentham and Austin would have had a ready response: that people ordinarily misuse the word ‘obligation’, by failing to give it a meaning that can be expounded by reference to sensible objects. Bentham and Austin (unlike J.L. Austin) were not ordinary language philosophers. They sought a way of using language that would back up their empiricism and utilitarianism, and they were actually pleased if that technique called for a reorganisation of ordinary language: it showed that they were disclosing what had been obscured by prejudice and cant.
Hart's approach to language was different, but it may seem that he did not need to talk about language, and that his point could have been made without mentioning types of assertions, or what ‘we would say’. His argument, you might think, simply puts into the linguistic mode an argument that could be made with no mention of language: an argument that you can have an obligation without being liable to sanction. And yet, the linguistic form of the argument was important to Hart. He wanted to avoid explaining the difference between obligation and coercion in the way a natural law theorist might (by saying that an obligation is a special sort of reason). So his focus on the use of the word ‘obligation’ is no accident. He did not point out the way we use that word merely as an oblique way of appealing to our shared wisdom as to what obligation is. It was actually important to him to point out how we use the word ‘obligation’. His explanation of the normativity of law relies on a view of the use of such words to display an attitude.
Hart claimed that a legal system is a system of power-conferring and duty-imposing rules, which are validated by a ‘rule of recognition’. That rule is not made valid by another rule; it is a ‘social rule’. It is in Hart's explanation of that crucial notion of a social rule, that he turned to the use of words to explain the normativity of law. He claimed that a social rule is a regular pattern of conduct accompanied by a ‘distinctive normative attitude’, which ‘consists in the standing disposition of individuals to take such patterns of conduct both as guides to their own future conduct and as standards of criticism’ (Hart, 1994, 255). In accounting for that disposition, or ‘internal attitude’, Hart's emphasis was on speech acts — on the use that participants in the practice make of normative language. He did not adopt J.L.Austin's suggestion that a statement of law is a ‘performative’ rather than being a statement that can be true or false. But the focus of his attention was on what people do when they make a normative statement — and not on what they assert.
What is necessary [for a social rule to exist] is that there should be a critical reflective attitude to certain patterns of behaviour as a common standard, and that this should display itself in criticism (including self-criticism), demands for conformity, and in acknowledgements that such criticism and demands are justified, all of which find their characteristic expression in the normative terminology of ‘ought’, ‘must’, and ‘should’, ‘right’ and ‘wrong’. (Hart, 1994, 57)
Hart's interest in normative language was focused not on its meaning, but on the attitude that people display when they use it. His explanation of the difference between non-normative and normative assertions (between, as he put it, ‘the assertion that someone was obliged to do something and the assertion that he had an obligation to do it’) was merely that the latter sort of assertion is used to display a distinctive sort of attitude.
Just as Bentham's approach to normative language was allied to his empiricism and his utilitarianism, Hart's approach to normative language was allied to his philosophical methodology, and to his views on the relation between law and morality. His methodological purpose was to describe human practices, and he wanted to defend a conceptual separation between law and morality — a distinction in kind between legal obligation and moral obligation (see Hart 1994, 239–240). The practice theory of rules attracted him as a tool for those purposes, because it offered a way of accounting for the normativity of law by pointing to ways of behaviour which could be described, and which did not (in his view) carry any moral baggage. In saying that people use normative language to display an attitude to regularities of behaviour, the theorist did not need to do moral philosophy, and did not need to make any moral evaluations of the practice being described. The theorist did not even need to ascribe any moral evaluations to the participants in the practice, since the fact that people use normative language to display an attitude is, Hart considered, consistent with their having various moral views or none at all.
How much simpler it would be to say that normative language means the same in its moral uses and in its legal uses. While a person who says that you must stop at a red light may display various attitudes, what he or she asserts is a necessity that implies a (presumptively) conclusive reason to stop. He says the same thing, whether he is saying what conduct the law requires, or what conduct is required, all things considered, by right reason. That approach is not only simpler; it closes the gap that Hart left in his theory. According to Hart, the meaning of normative language differs in morality and in law, but he never explained the difference. In fact, Hart had nothing to say about the meaning of normative expressions such as ‘ought’ and ‘must’ or ‘obligation’ or ‘right’ (except that their meaning differs in law and in morality). He only pointed out that people display an attitude when they use it.
Joseph Raz rejected Hart's claim that normative terms have a distinctive meaning in statements of law. In his view, to make a normative statement such as ‘you must stop at a red light’ is to say that you have a certain sort of reason for action. If it is a statement applying the law, it states that you have reason to stop from the point of view of the law. Raz's theory of law, unlike Hart's, is part of a theory of practical reasoning in general, and his account of normative statements treats them as having the same meaning in law and in morality. Hart initially thought that that approach would necessarily lead to an extreme sort of natural law theory, in which every true statement of law is also a true moral statement, and every valid legal obligation is necessarily a moral obligation. But Raz resolved that concern of Hart's, by pointing out that normative statements can be made in a detached way. People can make them without endorsing the point of view from which the reasons they are stating are valid (see Raz 1990, 175–177). Still, Hart did not accept Raz's approach, which he felt created a certain sort of conceptual connection between law and morality. In responding to Raz, he insisted that ‘statements of the subject's legal duties need have nothing directly to do with the subject's reasons for action’ (Hart 1982, 267). And in an interview with the Spanish journal Doxa near the end of his career he maintained ‘that legal and moral obligation are conceptually different’ in the sense that a statement of obligation has a different meaning in law and in morality (De Paramo 1988).