учебный год 2023 / 3505144

FERNANDOATRIA*

LEGAL REASONING AND LEGAL THEORY REVISITED

(AcceptedMay 20, 1999)

ABSTRACT. This articledeals with the relationbetween a theoryof law and a

theoryof legal reasoning.Startingfrom a close readingof ChapterVII of H. L. A. Hart'sThe Conceptof Law, it claims thata theoryof law like Hart'srequires

a particulartheoryof legal reasoning,or at least a theoryof legal reasoningwith some particularcharacteristics.It then goes on to say that any theory of legal

thatthis is the reasonwhy not only Hart,but also writerslike Neil MacCormick andJosephRaz have failed to offer a theoryof legal reasoningthatis compatible with legal positivism as a theory of law. They have faced a choice between an

explanationof legal reasoningthat is incompatiblewith the core of legal positivism or else strangelysceptical, insofar as it severs the link between general

KEY WORDS: application of law, appropriateness,clear cases, deductive reasoning,legal positivism,legal reasoning,open texture

When H. L. A. Hartwrote The Conceptof Law, legal reasoningas

such was not in the philosophicalagenda. Consequently,he later acknowledgedthatin TheConceptof Lawhe had "saidfartoo little aboutthe topic of [...] legal reasoning"(1994, p. 259). This aspect of Hart'sbook was soon subject to criticism because it appeared to some (most notably, Dworkin 1967) that the implications of Hart's theory for legal reasoning were clearly at odds with what lawyers andjudges saw themselvesas doing. Whatwas needed, in

ination of the way in which a powerful explanationof the nature

what the law is, but also of how the law works, or, better,how

* Licenciadoen Derecho (Universidadde Chile, 1994); Ph.D. (Universityof Edinburgh,1999); Assistant Professorof Law, Universidadde Talca (Chile). I am indebtedto Zenon Bankowski, Neil MacCormick,Kevin Walton, Claudio Michelon and BurkhardSchaferfor thoughtfulcriticismof previousversions of this article.They have, of course,no responsibilityfor the mistakesthatremain.

LA Law andPhilosophy 18: 537-577, 1999.

9 )? 1999 KluwerAcademicPublishers. Printedin theNetherlands.

people work with the law: a theory of the applicationof the law (i.e. legal reasoning).We are now told that Legal Reasoning and

Legal Theorywas supposedto be such a companion(MacCormick 1994, p. xiv). Before consideringthatbook, let me explain where the tensionbetween legal reasoningandlegal theorylies, andto do so we shallconsiderH. L. A. Hart's"opentexture"thesis.

HART ON OPEN TEXTURE

For our purposes,a full expositionof Hart'sopen texturethesis is not neededhere:sufficeit to say thathe triedto strikea middleway

betweenwhathe called "ruleformalism"and"rulescepticism",and that to do this he borrowedfrom F. Waismann(Waismann1951) the idea of open texture.Accordingto the text-bookexposition of this thesis, the argumentwas that, since meaningis use, conceptwords cannot have any meaning whatsoeverwithout there being clear instancesto which they apply.To be able to recognise those examples as instances of the relevantconcept-word(s)is to know the meaning of the latter.By the same token, however, in many instancesthe applicationof those concept-wordsto some eventwill not be completely obvious, and disagreementbetween competent users will arise. In these circumstances,failureto use the relevant concept-wordto refer to those events is not evidence of ignorance of theirmeaning(as failurein the clearcases is), since these events are said to be in thepenumbraof meaningof the relevantconcept- word(s), where differentopinions might exist between competent users as to whetheror not a particularconcept-wordapplies. To makean often-quotedpassageeven moreoften quoted,

If we areto communicatewith each otherat all, andif, as in the most elementary form of law, we are to expressour intentionsthata certaintype of behaviourbe regulatedby rules,thenthe generalwordswe use [... ] musthave some standard

of settled meaning,but therewill be, as well, a penumbraof debatablecases in whichwordsareneitherobviouslyapplicablenorobviouslyruledout (Hart1958, p. 63).

So understood,Hart'sis a thesis aboutthe limits of certaintythat generalclassificatoryterms can have in naturallanguages:"[open

textureis] a generalfeature of humanlanguage;uncertaintyat the

borderlineis the price to be paid for the use of generalclassifying terms in any form of communicationconcerningmattersof fact" (1994, p. 128; my italics). It is an inescapablefeature of natural languagesas we knowthem,andhence is partof thehumanpredicament:if we areto communicatewitheach otherusingnatural(rather than artificial)languages, then it is pointless to strive to achieve complete certainty:there is nothing we can do to exclude open texture,at least insofaras we also wantto use generalclassificatory terms:

that the use of any languagecontainingempiricalclassi- ficatorygeneraltermswill, in applyingthem, meet with borderlinecases calling for freshregulation.This is the featureof languageI called 'opentexture'"(Hart,

quotedby Bix

On this first reading of it, the open texture thesis is one about language,andonly derivativelyaboutthe law. "Opentexture"is not a featureof law but, as Hartexplicitly says in the quotedpassage, one of naturallanguages.Needless to say, since (or: only because) legal rules are expressedin naturallanguages,the open textureof the lattercommunicates,so to speak, to the former.Thus it is not surprisingat all to hear from Hart that, for example, "whichever device, precedentor legislation, is chosen for the communication of standardsof behaviour, these, however smoothly they work over the great mass of ordinarycases, will, at some point where their applicationis in question, prove indeterminate"(Hart 1994,

pp. 127-128).

Immediatelyafterpresentingthenotionof opentexture,andin an

attheborderlineis certainlynothingto be afraidof. Butin thecourse of this consolationthe natureof the open-texturethesis switches:it becomes a thesis no longeraboutone of the inescapablefeaturesof naturallanguages as we know them, but aboutthe convenienceof having open-textured(i.e. not completely certain and predictable) rules.It ceases to be a featureof languageto become one of the law. Of course, there is no reason why you cannot argue that X is

the case and then go on to arguethatX is also desirable,which is the usual way in which the relevantpassages on The Concept of Law seem to have been read.But Hartdid somethingmore:when

Italics added). Open texturethen is not an externallimit language imposes on the levels of certaintyhumanbeings can achieve, but the consequence of a normative decision, i.e. a decision about how best to balance the requirementsof certaintywith those of

appropriateness.1

It is importantto emphasisethat, as we have seen, what a hard

when the facts are such that they do not fit naturallyand uncon-

troversiallyone or more of the general classificatoryterms of the relevantrules, i.e. when it is what could be called a "semantic" hardcase (when, e.g. the ruleforbidsyou to go into the parkwith a vehicle andyou wantto use a toy carin it). Onthe secondinterpreta- tion, however,the point is not uncertaintyat the borderline.As we can "indeedsucceed"in having clear and certainrules (regardless of the featuresof naturallanguages), a case will be hardbecause whatis an issue is not the classificationof particularsin the world, but the very differentone of whetheror not this case was one of thoseleft "open,for latersettlementby an informed,officialchoice" even if it is coveredby the semanticmeaningof the rulein question (was the case of the veteran'swantingto use a militarytruckin a memorialin the parksettledwhen the "novehicles"rulewas issued or was it "leftopen"?).Since the only reasonwhy it makes sense to begin to discuss whetheror not this case is covered is thatit could be covered,in this explanationa hardcase in fact presupposesthat

classificatoryterms.

Bearingthese considerationsin mind,we go back to the tension between law and legal reasoning, to the challenge mentionedby MacCormick:a Hartianexplanationof legal reasoninghas to be seen to flow from, or at the very least to be consistent with, the

controversialto say thatone of the centraltenetsof Hart'stheoryof

1 Some stipulationswill be of use here:(a) I will call "certainty"(or:"predictability")the firstof the social needs Hartdistinguishedand(b) "appropriateness" the second; (c) I will talk of "application"when referringto the problem of whetheror not a rule shouldbe appliedto a particularcase, and(d) of "meaning" when referringto thatof graspinga rule'smeaning.

542 FERNANDOATRIA

law was thatat a conceptuallevel law is independentfrommorality, thatis, what the law ought to be is not the same thanwhat the law is.2 These two questionsare, in Hart'sview, not only different,but logically different:it is possibleto establishwhatthe law is without inquiryinto whatthe law oughtto be; no conclusionaboutwhatthe

sametime, Hartsaw thatanytheoreticalelucidationof the natureof

law mustexplainwhy andhow it is possible for competentlawyers, judges and lay persons to disagree not only about what the law

context)aboutwhatthe law actuallyis. Now, the explanationof the latterkind of disagreementcannotbe groundedupon the existence of disagreementaboutwhat the law ought to be, since if thatwere the case the law as it is wouldnotbe conceptuallydifferentfromthe law as it oughtto be (thatis, it cannotbe the case thatwe disagree aboutwhat the law is because we disagree what the law ought to be, if these two questionsareconceptuallydifferent).Hence we got Hart'sopen texturethesis.

The importanceof this thesis is that it performedthe role of

allowingus to explaindisagreementaboutwhatthe law is in a way

be. This was, therefore,the explanation(at least the kindof explanation)requiredby Hart'stheoreticalassumptions,if his theorywas to have any consistency.But Hartnoticed (or so I claimed)thatthe idea of open texture,importantas it might be, did not explain the whole of the fact of legal disagreementwhen looked at froma legal reasoning-perspective,.e. clarificationof the meaningof words is not always the kind of informationthatwould be useful to lawyers andjudges and lay personswhen they are discussingwhat the law

2 There is some discussion as to the precise content of what is sometimes called "theseparabilitythesis"(see, amongothers,FtiBer1996; Coleman 1996).

thethesis.ConsiderShiner's(admittedly"crude")version:"theexistenceof law is one thingandits meritordemeritanother"(Shiner1992). I do believe (alongwith most positivists,naturallawyers, and realistsof differentdenominations)thatin this sense the thesis is true.I think,however,thatI can bypassthis debatebecause in any plausiblereadingthatthesis must mean, for legal positivists,thatthe fact thatthe law oughtto be differentis not enoughto establishthatit is different.

is in concretecases. Hartrealisedthatin many of these cases what

was discussed was not whethera x was an instanceof a particular

generalX, but ratherwhetheror not a particular(otherwiseclear and unambiguous)rule was, in a legal sense, meant to be applied to the facts thatconfiguredsome concretecase. Hence he offered, in the same pages of The Conceptof Law, a second explanationof the fact of legal disagreement,one based on the claim thatthereis a built-intension in law between (what I called) predictabilityand

appropriateness.

Now, it is in my view a crucial point that the legal theory- implicationsof this second explanationare at odds with the central claim of Hart'sbook identifiedabove.In the firstexplanation,what made a case hardwas a "value-free"feature,i.e. the open texture of the relevant words. This is why Hart was free to say that in

clear cases the applicationof rules does not requirethe decision maker to exercise a "freshjudgement"(1994, p. 135). From the universeof cases courts will have to solve from now on, some of

themare (or will eventuallybe) markedby the fact thattheybelong to the penumbraof meaning of the relevantwords;the identification of those cases as hardwill not imply,therefore,thatevaluative ideas about what the law ought to be will be smuggled in at the momentof ascertainingwhat the law is. When the "mark"of open textureis discovered the court will have reached the outer limits

of the law: it can then discuss aboutwhat the law will be afterthe

court'sdecision,in the lightof whatthelaw shouldbe, only because there is no law on the matter.Notice that nothing guaranteesthat this will be uncontroversialThere.can be disagreementon whether

of the word "vehicle".That is to say, I think Raz is correctwhen he says (Raz 1985, p. 218) that it is false "thatall factualmatters are non-controversial"and that "all moralpropositionsare controversial".What is importanthere is not that accordingto the open texturethesis the applicationof the law is non-controversial,but thatany legal disagreementwill not be moralbutfactual (or verbal,

ness must be placed there instead. If we then retain the original second part,i.e. the claim thatin hardcases courtshave discretion, the incompatibilitybetween what we would then get and the core of Hart'sphilosophyof law (as identifiedabove) is evident:In this modifiedversion,Hart'sview on hardcases would be: (i) a case is

hardwhen the applicationof the (primafacie) law is deemedobjectionable(i.e. when theprimafacie solutionis such thatthe demand

when a case is hard,the law is unsettled,andthe courtshavediscretion. In short:when the applicationof an otherwiseclear legal rule to a case thatbelongs, so to speak,to its core of meaningproduces an objectionableresult, it is the law that there is no law on the subject.What the law is for the case depends upon what the law (i.e. the balancebetween predictabilityand appropriateness)ought to be for the case. Whenthe (primafacie) law oughtto be different, itis different.lex iniustanon est lex!

Now, is this "ought"a moral "ought"?It might appearthat the answeris obviouslyyes: thepointis why is predictabilityimportant,

they cannot but be moral, since "thereis no otherjustificationfor the use of an autonomousbody of considerationsby the courts"

(Raz 1993, p. 318). But we shouldbe carefulhere. Hartis indeed careful not to talk of these values as moral values, at least in The Conceptof Law. And in "Positivismand the separationof law and morals"he is explicit in denying that this is a moral ought: "we shouldrememberthatthebaffledpoisonermay say, 'I oughtto have given her a second dose' " (Hart 1958, p. 70). Hartalso points out that"underthe Nazi regimemen were sentencedby courtsfor criticism of the regime. Here the choice of sentence might be guided exclusively by considerationof what was needed to maintainthe

state'styrannyeffectively"(ibid.).

So Hartbelieved thatthe solutionto the conflictbetween appro-

ationsinstrumentalfor.In the poisoner'scase, they areinstrumental to achievea goal previouslyandindependentlygiven, i.e. to kill the woman.In Nazi Germany,they "might"have been instrumentalto