Legal positivism’s focus on social sources as the only necessary determinant of legal validity is well adapted to explain some important features of the concept of law, such as its jurisdiction-specific nature and propensity to clash with morality and justice. However, it faces the challenge of adequately explaining law’s normativity without appealing to necessary moral content. HLA Hart, the most influential legal positivist of the last century — and the leading proponent of inclusive legal positivism, as defined above — sought to explain law’s normativity by analysing it as a species of social rule. Legal officials regard law as normatively binding, according to Hart, because they recognize the existence of social pressure to conform with the rule of recognition, which supplies the ultimate test for legal validity.

HART ON LEGAL OBLIGATION

Early versions of legal positivism sought to explain law’s normativity by appealing to a centralized view of legal authority and emphasizing the role of coercion. John Austin, widely viewed as the founder of legal positivism, famously defines law as the command of a sovereign, backed up by sanctions. Austin’s view of a sovereign is premised on the notion of a single, dominant source of legal authority with in a given jurisdiction. The sovereign is defined as the authority to whom every one habitually renders obedience and who, in turn, habitually obeys nobody. Austin’s theory is therefore unable to accommodate less centralized forms of legal order, including those found in international and customary law. These normative orders, according to Austin, are not law ‘strictly so called’; rather, they are forms of ‘positive morality’.
Hart’s theory of law, by contrast, deliberately abandons Austin’s emphasis on the commands of the sovereign in favour of an analysis of law as a system of social rules. Legal rules are distinguished from other social rules (such as rules of morality and etiquette) by reference to an overarching rule of recognition that supplies the criteria for legal validity. The rule of recognition is itself a social rule embodied in the practices of legal officials. According to Hart, something counts as law because legal officials acting in accordance with the rule of recognition accept it as having the necessary features to confer legal status upon it.

Hart’s theory of law (unlike Austin’s) is not necessarily incompatible with non-state forms of legal order, such as customary law. Customary legal norms stem from processes that may be accepted as legally binding if they are acknowledged by the secondary rules of the relevant jurisdiction. A similar point applies to norms arising from contracts and other voluntary agreements. The legal force of a contract or marriage, Hart points out, does not come directly from the sovereign (as Austin’s theory might appear to suggest) but rather from the voluntary agreement of the parties, which is then recognized as binding by legal officials. An appropriately inclusive rule of recognition could, in principle, recognize a wide variety of social institutions as legally binding.
Hart uses his critique of Austin’s emphasis on sanctions to make a more fundamental point. He draws a distinction between ‘being obliged’ to do something and ‘having an obligation’ to do it: if someone holds a gun to our heads and tells us to hand over our money, we may be obliged to comply, but we would not say we had an obligation to do so. Having an obligation requires more than mere compulsion; it implies that we ought to behave in a certain way, due to the existence of a binding rule. Hart argues that the existence of law depends upon having obligations, rather than being obliged. This is not a matter of having certain beliefs, motives or reasons, but rather involves recognizing the existence of a social rule.

Social Instititionism

Hart’s theory of law offers a credible account of the nature and origins of social norms in the context of legal institutions. His treatment of this issue, however, leaves some important questions unanswered: how exactly do legal officials identify the content of their legal obligations and simultaneously judge themselves to be bound by them? How do these obligations emerge, evolve and persist over time? Our aim in the following sections is to offer some answers to these questions by drawing on recent work in social psychology and norm theory. We will begin by considering the contribution of social intuitionism, exemplified by the work of Tversky, Kahneman and Haidt, to our understanding of practical decision-making and, in particular, how practical decisions are influenced by the social environment.

It is admittedly beyond the scope of Hart’s project to explain the cognitive process by which legal officials identify their legal obligations. However, insofar as he does not address this topic, it leaves an explanatory deficit in his theory. An account of how this occurs would usefully supplement his theory. Social intuitionism plays this role by showing how practical decision-makers rely on judgements that incorporate both factual and normative dimensions. It therefore helps to explain how legal officials not only identify the content of legal rules, but also accept them as binding. However, it then becomes significant to ask whether this account can be integrated with Hart’s overall theory to yield a coherent explanatory picture. We will return to this question in the penultimate section of this article.

People do not usually respond to an ethical dilemma in a purely reflective way by weighing up the different options. Rather, they use System 1 thinking to form a holistic judgement about the case at hand. These judgements are not arbitrary, but are generally based on rough rules of thumb or heuristics that enable us to deal with complex situations in a cognitively efficient way. The soundness of the judgements will then depend on the reliability of the heuristics involved. System 1 thinking, then, is typically the first element of a practical decision. It is not necessarily the end of the process, since decision-makers will often employ System 2 thinking to reflect upon and perhaps modify their conclusions. However, decision-makers nonetheless begin their reflective reasoning with a preconceived sense of the relevant factors and, in many cases, at least a presumptive outcome.

The kinds of intuitive judgements identified by Haidt and his collaborators seem to be irreducibly be holistic in that they involve a combination of descriptive and normative factors. People confronted with ethically charged scenarios no doubt make intuitive judgements about the facts: they draw various inferences about what is going on in the situations described (including temporal ordering, causal relations and soon). However, these intuitive assessments also seem to have an intrinsic normative component. It is not that people make a purely factual judgement and then use syllogistic reasoning to conclude that because the conduct involves a particular kind of fact scenario it must be ethically wrong. This would involve a combination of System 1 and System 2 processes. Rather, the evidence suggests that the subject’s judgement of wrongness forms part of their initial reaction to the scenario.

The Role of Social Norms

Social intuitionism deepens Hart’s practice theory by explaining the cognitive process by which legal officials simultaneously identify the content of law and judge themselves to be bound by legal obligations. The role of heuristics in this account further helps to explain how the judgements of officials are shaped by their experiences over time and reinforced by the surrounding legal culture. More needs to be said, however, about how these heuristics are shaped by the social environment and, in particular, from where they derive their normative significance. How is it that legal officials are not only able to identify the content of legal rules, but also judge themselves to be bound by the associated legal obligations? The previous section suggested that these assessments are formed at least partly at a pre-reflective level, but this does not tell us where their content comes from. The present section draws on theories of social norms to offer a response to this question.

The Content of Legal Obligations

Hart, as we have seen, argues that legal officials identify the content of law in accordance with a rule of recognition. The rule of recognition is itself a social rule that officials follow because they have an obligation to do so. The content of this rule, for Hart, is supplied by authoritative social sources (such as legislation, judicial decisions and social customs), although some legal systems may incorporate moral standards into this overarching rule. Hart’s account of the rule of recognition, in this way, lays the foundations for his defence of legal positivism. The content of law, for Hart, is a matter of examining the content of the relevant social rules. It does not depend on any necessary moral test, apart from the very minimal (and not overtly moral) requirements imposed by what he terms the ‘minimum content of natural law’. does, of course, play a potential role in Hart’s theory in a range of other respects. The rule of recognition is a social fact that identifies the criteria for legal validity. However, as Hart makes clear, it might be accepted by legal officials for moral (as well as non-moral) reasons. Furthermore, according to Hart’s inclusive legal positivist outlook, the rule of recognition might incorporate moral norms among the standards for identifying valid law. It is also consistent with judicial reliance on moral principles in deciding certain kinds of cases. Nonetheless, Hart insists there is no inherent moral component to the test for legal validity.

The account of legal obligation given in this article, however, challenges Hart’s theory in two interlocking ways. First, as we have seen, Hart’s account leaves open the question of how exactly legal officials identify legal rules and simultaneously judge themselves to be bound by them. We have suggested that social intuitionism offers a plausible answer to this question. However, social intuitionism indicates that legal officials identify the content and force of law as part of holistic normative judgements. It is not the case that legal officials first identify the content of law and then judge themselves bound by it; rather, officials make a holistic judgement about what they ought to do that incorporates relevant legal standards.

It might be said that, on the account offered above, the rule of recognition is still a matter of social fact, because its content depends on interpreting the actions and beliefs of legal decision-makers. However, this is true only to the extent that the actions and beliefs of the legal officials are taken to be independent of other kinds of normative facts, such as facts about moral or prudential reasons. An interpretation of what others are likely to do and believe involves constructing a working theory of what motivational reasons they have, which will often involve asking what normative reasons they have (given the plausible assumption that people generally seek to act for reasons).

The Scope of Legal Obligations

Legal obligation, as Hart recognizes, is not solely a matter of legal officials interpreting the law. It is, rather, a matter of legal officials interpreting the actions and beliefs of other officials. It is likely to be the case that this process of interpretation yields a picture of legal obligation in which the positive sources of law play a central role. However, the conception of rule-following behaviour that constitutes the relevant sense of obligation is unlikely to be wholly determined by those sources. It is tempting to assume that legal obligation, as a species of social norm, simply follows the positive law, but it would be more accurate to view the positive law as providing an arena within which such obligations are formed.

A large society with a well-developed and stable legal system may therefore converge over time on a relatively coherent and consistent idea of legal obligation. This sense of legal obligation will reflect a complex social practice and will therefore exhibit some dynamism and local variation. It will be unlikely to correspond exactly to the content of positive law, but will rather depend upon what we might call the ‘folk law’: the law as popularly understood within the community. It might be expected to track roughly the positive law in its most salient requirements, particularly if sanctions are regularly applied to reinforce this. However, its content is also likely to be influenced by moral and prudential considerations independent of the law, for reasons analogous to those canvassed in the previous section.

CONCLUSION

We have argued in this article that Hart’s well-known theory of legal obligation can usefully be supplemented and extended by drawing on recent work in social psychology and norm theory. Hart’s theory, while insightful and explanatorily powerful, leaves some critical questions unanswered. These include questions about how legal officials identify the content of legal norms while at the same time judging themselves to be bound by them, and how these norms emerge and are sustained over time. We have argued that these questions can be at least partially answered by drawing on the social intuitionism of Tversky, Haidt and Kahneman, along with the theory of social norms developed by Bicchieri. These theories support the general picture of legal norms developed by Hart, while supplementing his relatively schematic view of the emergence and operation of legal normativity.

Our focus in this article has been on the implications of our account of social norms for Hart’s theory of legal obligation. However, the theory advanced here has wider implications. We will conclude by mentioning three of them. First, the dependence of legal norms on social norms means that the two categories necessarily bleed together. Legal officials necessarily take account of social norms in reaching their legal judgments. This suggests there is no clear and consistent distinction between the norms applied by legal officials and broader social processes of norm creation. Legal judgment, including the interpretation of legal materials, has an intrinsic social and cultural component. This challenges views of legal interpretation that focus myopically on the literal or originally intended meanings of legal texts. It also undercuts Hart’s view of legal systems as ‘Janus-faced’ entities involving two distinct and contrasting interpretive communities — namely, ordinary citizens and legal officials.

Second, we have noted that the rule-following behaviour of legal officials rests on their interpretation of the actions and expectations of other officials, at least as much as the formal content of the legal rules. This explains why legal officials, as a social group, tend to have a conservative view of law that resists exogenous change. Legislative amendments do not always produce immediate changes in the courtroom. This can be explained by the fact that the decision-making behaviour of legal officials will only change where their shared norms of conduct change — and this will only happen where they expect a general shift in the behaviour of their peers. The decision-making of legal officials is, in this sense, somewhat insulated from the effects of legal reform. A time lag may sometimes occur between changes in the positive law and changed outcomes in the courtroom and other decision-making arenas.