In Defense of the Practice Theory

• DOI: http://doi.org/10.1111/raju.12251
• Published date: 01 September 2019
• Date: 01 September 2019
• Author: Frank Lovett

© 2019 The Author. Ratio Juris © 2019 John Wi ley & Sons Ltd.

Ratio Juris. Vol. 32 No. 3 September 2019 (320–338)

In Defense of the Practice Theory

FRANK LOVETT

Abstract. Hart proposed t hat law is made possible by the practice a mong legal officials of

observing convention al social rules, the most i mportant being rules of recog nition. This view

has been dubbed the pract ice theory, and it has been attacked by many legal theori sts. This

paper argues that ma ny criticisms of the practice theor y fail because they misunders tand the

nature of the organ izational challe nge to which rules of recogn ition are the solution. The cha l-

lenge of constituti ng a legal system is essentially the c hallenge of constituting a g roup agent,

and when viewed through Pet tit’s account of group agency, the practice the ory can easily be

defended.

1. Introduction

All legal positivists agre e that the possibility of law ulti mately depends on social,

not moral, facts.1 But what are the relevant social facts? According to clas sical posi-

tivists such as Hobbes, Bentha m, and Austin, the relevant social fac ts are the coer-

cively enforced commands issued by a sovereign. Ha rdly anyone accepts this view

today. Among other difficulties, the command t heory cannot explai n the existence

in many legal communitie s of effective formal and informal l imits on the exercise of

sovereign authority, nor can it explain the continuity and persi stence of legal sys-

tems when sovereign power passes from one person or g roup to the next. These

important criticism s were canonically presented by H. L. A. Hart (1994, 42–4, 51–71),

and together proved decisive against the cla ssical view.

In place of the classical comma nd theory, Hart proposed the theory that law is

made possible by the practice among legal official s of observing certa in conven-

tional social r ules—the most important being, of course, the famous r ules of recog-

nition. Conventional social ru les, on Hart’s (1994, 255) view, are “social practices” in

which “the general conformity of a group to the m is part of the reasons which its

individual members have” for accepting those pract ices.”2 This view has been

dubbed the practice theory. Many legal theorists have attacked the pract ice

1 In the words of Austin (1998, 184), “the existence of law is one thing; its mer it or demerit is

another.” This proposition is ofte n called the social fact thesis.

2 Cf. Dickson (2007, 378): “In order for the rule of reco gnition to be a conventional rule, the f act

that there is a common of ficial practice of recogn izing certain th ings as constituting va lid law

must form part of the reas ons why each official accepts the r ule [...].”

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Ratio Juris, Vol. 32, No. 3 © 2019 The Author. Ratio Juris © 2019 John Wi ley & Sons Ltd.

In Defense of the Practice Theory

theory—not only opponents of positivism suc h as Ronald Dworkin, but also many

positivists such as Joseph Raz, Scot t Shapiro, Andrei Marmor, and Julie Dickson.

Rather than attempti ng to respond to all of the many critici sms that have been

offered against the the ory, this paper wil l address an important subset raised sp ecif-

ically by positivists: It argues that the se criticisms fail because they misu nderstand

the nature of the organ izational challenge to wh ich rules of recognition a re the

solution. 3

For the purpose of discu ssion, let us say that a legal system is a set of human

institutions capable of creating a nd applying legal norms in an ongoing and reliable

manner. Legal norms are c reated when, for example, national legislatures issue rules

such as “pay your taxes,” and they are applied when, for example, judges employ

those rules in t he disposition of cases. This may not be all legal systems do, but it is

central to what they do: Nothing that can not on an ongoing and reliable basis per-

form these funct ions at least could plausibly be regarded as a legal system. It tur ns

out that the challenge of const ituting a legal system, so defined, is t he challenge of

constituting a group agent. From thi s it follows that the possibility of law necessarily

depends on this part icular organizational cha llenge having been somehow or other

solved in actual practice; and for it to have been solved, not only must the general

conformity of legal offici als to rules of recogn ition provide a part of the reason for

each individual legal officia l to follow those same rules, but indeed such conformit y

must provide a sufficient reason for each of t hem to do so.

The first sect ion of this paper describes the standard account of the practice t he-

ory, especially as found in Hart’s Concept of Law a nd its postscript, while the second

rehearses the mai n criticisms that have been leveled against the t heory. Thus far, the

paper merely reviews. In the third a nd central section, however, it is argued that the

challenge of constitut ing a legal system is best understood as the ch allenge of consti-

tuting a group agent. The argu ment here builds on the compelling account of group

agency developed by Philip Pettit and various coauthors in re cent years (see esp.

List and Pettit 2011, Pettit 2007, and Pettit and Schweikard 2006), which improves on

previous and familia r accounts of joint intentionality in import ant relevant respects.

The fourth sect ion shows how the practice theory, when examined from the point

of view of group agency, can easily respond to the usual critici sms. And finally, the

concluding section brief ly considers the relationship bet ween legal and moral obli-

gation in light of the present disc ussion.

2. The Practice T heory

According to Hart’s practice theory, it is the fact that legal officials o bserve certain

conventional social rules t hat makes law possible. But what is a conventional social

rule in the requi red sense? Not every descriptive pattern in human behavior cou nts.

For example, most Americans are in the h abit of eating meat, but—as any vegetar-

ian will point out—no ru le requires that they do so. For genuine social rules to exi st,

further conditions must b e satisfied, generally referred to in t he literature as the

“practice conditions.” Hart’s discussion of the practice conditions in Th e Concept of

3 Note that the practice the ory is sometimes confused w ith what is often termed “legal con-

ventionalism”—roughly, the view that the ma in or central purpose of l aw is to solve coordina-

tion problems. Green (1999) amply demonstrates the in adequacy of legal conventionalism.