Hart and the Metaphysics and Semantics of Legal Normativity

• Published date: 01 December 2018
• DOI: http://doi.org/10.1111/raju.12223
• Author: Matthew H. Kramer
• Date: 01 December 2018

© 2018 The Author. Ratio Juris © 2018 John Wile y & Sons Ltd

Ratio Juris. Vol. 31 No. 4 December 2018 (396–420)

Hart and the Metaphysics and Semantics

of Legal Normativity

MATTHEW H. KRAMER

Abstract. A number of philos ophers in recent years have maintained t hat H. L. A. Hart in

The Concept of La w propounded an expressivist account of the se mantics of the legal state-

ments that are uttere d from the internal view point of the people who run the i nstitutions of

legal governance in a ny jurisdiction . Although the primary aim of th is article is to attack

the attribution of t hat semantic doctr ine to Hart, the ar ticle will beg in with some meta-

physical matters—the m atters of reductioni sm and naturali sm—that often lie beh ind the

development of expressivist approaches to t he semantics of norm ative discourse. Aft er

briefly exploring t hose metaphysical concerns (to which I will re turn later), the article will

begin its mai n discussion by rehea rsing the dist inction betwee n the semantics a nd the

pragmatics of utterance s. It will then deline ate the doctrine of ex pressivism which th e

aforementioned philo sophers have in mind when they a scribe that doct rine to Hart.

Although I will ma ke reference to a few such philosopher s, I will focus chief ly on an article

by Kevin Toh that has been the fou ntainhead of all the subsequent att ributions of expres-

sivism to Hart. As wi ll be argued herei n, Toh and like-minded philo sophers have gone

astray in imputing to Ha rt a semantic version of expres sivism. Notwithstand ing that Hart’s

theory of law can aptly be ch aracterized as expre ssivist, that character ization is appropriate

only when expressivis m is understood as an account of the pragmatic s of legal statements

rather than as an acc ount of their semantics.

1. Introduction

A number of philosophers in recent year s have maintained that H. L. A. Hart i n

The Concept of Law propounded a n expressivist account of the semantics of the legal

statements that are uttered from t he internal viewpoi nt of the people who run the

institutions of legal governa nce in any jurisdict ion. Although the primary a im of

this artic le is to attack the attribution of th at semantic doctrine to Ha rt, the article

will begin w ith some metaphysical matters—the matters of reductionism and nat u-

ralism—that often l ie behind the development of expressivist approaches to the se-

mantics of normative discourse. Af ter briefly exploring those metaphysical concerns

(to which I will return later), the article w ill begin its main discu ssion by rehearsing

the distinct ion between the semantics and the pragmatics of uttera nces. It will then

delineate the doctri ne of expressivism which the aforementioned philosophers h ave

in mind when they asc ribe that doctrine to Hart. Although I wil l make reference to

a few such philosophers, I will foc us chiefly on an article by Kevin Toh that has been

the fountainhead of al l the subsequent attributions of expressivism to Hart. A s will

be argued herein, Toh and like-mi nded philosophers have gone astray in imputing

397

Ratio Juris, Vol. 31, No. 4 © 2018 The Author. Ratio Juris © 2018 John Wile y & Sons Ltd

Hart and Legal Normativity

to Hart a semantic version of expressivi sm. Notwithstandi ng that Hart’s theory of

law can aptly be characterize d as expressivist, that character ization is appropriate

only when expressivism is understoo d as an account of the pragmatics of legal state-

ments rather than as an account of t heir semantics.

2. Was Hart a Reductionist?

During the past couple of decades, some philosophers have submitted t hat Hart

in The C oncept of Law was engaged in a reduction ist project. Such a view has been

expressed most bluntly by Andrei Marmor (2013, 209), who proclaims that “Har t’s

main objective in T he Concept of Law was not esse ntially different from t hat of

Austin, namely, to provide a reductionist theory of law.” To assess this contention

by Marmor, we shall obviously need to gain a clear sen se of what he means by

“reductionist.”

Immediately after the s entence just quoted, Marmor supplies his initial gloss on

his invocation of reductionism: “The m ain purpose of Hart’s theory was to offer an

explanation of law in terms of somet hing more foundational in nat ure, that is, in

terms of social facts, whic h, in turn, can be explained by reference to p eople’s actual

conduct, beliefs, and attitudes” (ibid., 209). Given that Marmor is here elaborating on

his characteri zation of Hart’s theory as reductionist, he is presuming t hat the reduc-

tion of some phenomenon X to some other phenomenon Y consists in e stablishing

the explanatory priority of Y over X. If a theory ex plains X fully by refere nce to Y

and not vice versa, then the theory h as reduced X to Y—or so this in itial conception

of reductionism suggests. Concomitant to th at explanatory conception of reduction-

ism is a metaphysical conception that is signa led by the wording about “something

more foundational in nature.” That is, Marmor here assu mes that the reduction of

X to Y consists in showing th at Y is metaphysically deeper than X. Patently, anyone

propounding such a conception of reduction ism will need to elucidate the nature of

the metaphysical priority of Y over X.

Both of these inti mately related understandings of reductionism are operative in

Marmor’s essay as it unfolds. When Marmor embarks upon hi s principal discussion

of the reductionist cha racter of Hart’s theorizing, he virtual ly echoes the statements

that have been quoted above: “Hart clearly shared Austin’s view that a theoretical

explanation of the nature of law should explai n what the law is in terms of soci al

facts, facts that can be explai ned by more foundational truths about how people be-

have, the kind of beliefs they have about their conduct, and the ki nd of attitudes and

dispositions that tend to accompany those sh ared beliefs.” He continues: “In other

words, the hallmark of Hart’s theory is t he idea that social rules a re at the founda-

tions of law, and that social rules, in tu rn, can be explained reduct ively in terms of

people’s actual conduct, beliefs, and attitudes” (ibid., 214).

Still, none of these statements so far h as shed much light on the specif ics of the

metaphysical priority which Marmor has i n mind when he talks of reducing law to

social facts about people’s conduct and attitudes and beliefs. After w isely denying

that Hart was pursuing a proj ect of semantic reductionism—whereby all statements

expressed in legal ter ms could be fully replaced with statements for mulated in the

terms of some other disc ipline such as social psychology—Marmor expand s slightly,

though only slightly, on the type of metaphysical priority that he envisages. He de-

clares that the reduction ism endorsed by Hart and other legal positivists is c entered