Comment on Simmonds—Legal Positivism and the Limits of the Contemporary Legal Theoretical Discourse

Mátyás Bódig

doi:10.1017/S2071832200017041

¹ See Simmonds, Nigel E., Law as a Moral Idea (2007) [hereinafter Simmonds, Law as a Moral Idea].Google Scholar

² See id. at 164–168. This is also reflected in the essay I am commenting on. See Nigel E. Simmonds, The Nature of Law: Three Problems with One Solution, 12 German Law Journal 2, 604 (2011) [hereinafter Simmonds, The Nature of Law].Google Scholar

³ Attacks on legal positivism could proceed from the remarkable fact that positivists tend to shy away from raising issues concerning the role and methodological character of legal doctrinal scholarship. One could say that they more or less consciously seek to drive a wedge between conceptual legal theory and legal doctrinal scholarship (as it is actually reflected in Simmonds's analysis; see Simmonds, The Nature of Law, supra note 2). By the way, this feature of positivism goes back way beyond the emergence of the Hartian account. An extreme version of this “detachment” can be found in Kelsen who sought to purge the “pure theory of law” of doctrinal aspirations, and condemned the work of doctrinal scholars as an illegitimate exercise of political influence. See Hans Kelsen, Introduction to the Problems of Legal Theory 3–4 (1992).Google Scholar

⁴ The main documents of the debate are the following: Matthew Kramer, In Defense of Legal Positivism: Law without Trimmings ch. 2 (1999) [hereinafter Kramer, In Defense of Legal Positivism]; Matthew Kramer, On the Moral Status of the Rule of Law, 63 Cambridge L.J. 65, 65–97 (2004); Simmonds, Nigel, Straightforwardly False: The Collapse of Kramer's Positivism, 63 Cambridge L.J. 98, 98–131 (2004); Simmonds, Nigel, Law as a Moral Idea, 55 U. Toronto L.J. 61, 61–92 (2005); Simmonds, , Law as a Moral Idea, supra note 1, at ch. 3; Matthew Kramer, Once More Into the Fray: Challenges for Legal Positivism, 58 U. Toronto L.J. 1, 1–38 (2008); Simmonds, Nigel, Freedom, Law and Naked Violence: A Reply to Kramer, 59 U. Toronto L.J., 381, 381–404 (2009).Google Scholar

⁵ This was an important theme in Simmonds book. See Simmonds, Law as a Moral Idea, supra note 1, at 130, 135.Google Scholar

⁶ This is what makes his analysis of the “gunman situation” so important. See H.L.A. Hart, The Concept of Law 20– 25 (2nd ed. 1994).Google Scholar

⁷ See Simmonds, , The Nature of Law, supra note 2, at 608.Google Scholar

⁸ See, e.g., Hart, , supra note 6, at 254–57. He made sense of the idea of non-moral “ought” (pretty successfully) by pointing to the way in which normative claims figure in conventional practices (like games) that offer reasons for action not reducible to moral reasons. See id. at 56–57, 140–41. Cf. Simmonds, The Nature of Law, supra note 2, at 608–9.Google Scholar

⁹ See Hart, , supra note 6, at 100–10.Google Scholar

¹⁰ See id. at 185–86.Google Scholar

¹¹ For this reason, the so-called “conventionality thesis,” as formulated by Coleman, seems the best attempt to capture the core idea of Hartian legal positivism. Jules L. Coleman, The Practice of Principle: In Defence of a Pragmatist Approach to Legal Theory 71 (2001).Google Scholar

¹² See Coleman, Jules L., Negative and Positive Positivism, in Ronald Dworkin and Contemporary Jurisprudence 28, 30 (Marshall Cohen ed., 1983).Google Scholar

¹³ Simmonds, , Law as a Moral Idea, supra note 1, at 129.Google Scholar

¹⁴ See Simmonds, , The Nature of Law, supra note 2, at 611; see also Simmonds, Law as a Moral Idea, supra note 1, at 50, 128.Google Scholar

¹⁵ See Simmonds, , The Nature of Law, supra note 2, at 612.Google Scholar

¹⁶ I have to admit that I would be more inclined to try another strategy that claims that the rule of recognition, in the sense specified by Hart, does not even exist. See Mátyás Bódig, Jogelmélet és gyakorlati filozófia 292 (2004). But I set that issue aside for now.Google Scholar

¹⁷ Simmonds, , The Nature of Law, supra note 2, at 613.Google Scholar

¹⁸ Id. at 610.Google Scholar

¹⁹ Simmonds, , Law as a Moral Idea, supra note 1, at 133.Google Scholar

²⁰ Lon L. Fuller accused positivists of perceiving law as a “one-way projection of authority.” Lon L. Fuller, The Morality of Law 215–16 (2nd ed. 1969).Google Scholar

²¹ See, e.g., Payne, Michael, Hart's Concept of a Legal System, 18 Wm. & Mary L. Rev. 287, 287–319 (1976); Duff, R.A., Legal Obligation and the Moral Nature of Law, 25 Jurid. Rev. 61, 80–82 (1980); Postema, Gerald J., The Normativity of Law, in Issues in Contemporary Legal Philosophy 92, 92–93 (Ruth Gavison ed., 1987); Goldsworthy, Jeffrey D., The Self-Destruction of Legal Positivism, 10 Oxford J. of Legal Stud. 449, 456–57 (1990); Shiner, Roger, Norm and Nature: The Movements of Legal Thought 160–61 (1992); Allan, T.R.S., Constitutional Justice: A Liberal Theory of the Rule of Law 64–66 (2001).Google Scholar

²² “The notion of acceptance [by legal officials] does not enable Hart to distinguish between a legal system based on power and a legal system based on authority.” Payne, supra note 21, at 318.Google Scholar

²³ Many prefer to formulate the arguments against legal positivism in terms of the ability of law to establish obligations. As legal sanctions are invariably justified by the alleged breach of legal obligations, that issue also revolves around asking questions about the justificatory use of legal propositions.Google Scholar

²⁴ See Mátyás Bódig, Interpretivism and Conventionalism: Contributions to the Critical Assessment of Contemporary Methodological Legal Positivism, in Legal Positivism: Conceptual Approach 152, 167–70 (Asifa Begum ed., 2008) [hereinafter Bódig, Interpretivism and Conventionalism]; see also Bódig, supra note 16, at 65– 69.Google Scholar

²⁵ See Simmonds, , The Nature of Law, supra note 2, at 610–11.Google Scholar

²⁶ The requirement that the law must have distinctive normative force is often formulated as the “practical difference thesis” by legal positivists, and they think it strengthens their position. See Scott J. Shapiro, On Hart's Way Out, in Hart's Postscript: Essays on the Postscript to the Concept of Law 178, 178–79 (Jules Coleman ed., 2001); Coleman, supra note 11, at 69; see also Scott J. Shapiro, The Difference That Rules Make, in Analyzing Law: New Essays in Legal Theory (Brian Bix ed., 1998).Google Scholar

²⁷ I do believe that that is what happened with Moore who insists that “only morality can obligate.” Michael S. Moore, Law as a Functional Kind, in Natural Law Theory: Contemporary Essays 188, 224–25 (Robert P. George ed., 1992). For his account of authority, see Michael S. Moore, Authority, Law, and Razian Reasons, in Educating Oneself in Public (2000).Google Scholar

²⁸ This idea is one of the central features of Kelsen's criticism of the natural law doctrine. Kelsen claimed, pretty unfairly, that natural lawyers cannot explain the need for a legal system alongside a system of moral norms. See, e.g., Hans Kelsen, The Natural-law Doctrine before the Tribunal of Science, in What is Justice? Justice, Law, and Politics in the Mirror of Science 142–44 (1960).Google Scholar

²⁹ See Simmonds, , The Nature of Law, supra note 2, at 610.Google Scholar

³⁰ Id. at 612–13.Google Scholar

³¹ See Simmonds, , Law as a Moral Idea, supra note 1, at 51–56. The idea is turned into the following conceptual claim about law by Simmonds: “The status of rules as law depends on the approximation of the system of rules to an abstract idea of law.” Id. at 130.Google Scholar

³² See Simmonds, , The Nature of Law, supra note 2, at 617; see also Simmonds, Law as a Moral Idea, supra note 1, at 158–63.Google Scholar

³³ See Simmonds, , The Nature of Law, supra note 2, at 615–17; see also Simmonds, Law as a Moral Idea, supra note 1, at 64–68. The desiderata are the following: (i) there must be rules; (ii) which are published; (iii) prospective; (iv) possible to comply with; (v) intelligible; (vi) free from contradiction; (vii) reasonably stable through time; and (viii) there must be congruence between the declared rules and the official action.Google Scholar

³⁴ “Fuller's theory becomes interesting when he proceeds to demonstrate that the eight desiderata (identified as minimum conditions), when taken collectively, be regarded as a guiding ideal for legal thought: the ideal that we usually label ‘the rule of law.'” Simmonds, The Nature of Law, supra note 2, at 616.Google Scholar

³⁵ “The eight requirements are not principles of efficacy, but (when taken together) represent a moral ideal for legal systems. Considerations of efficacy would, at best, give one good reason to comply with the eight requirements to a limited extent.” Simmonds, The Nature of Law, supra note 2, at 616. This is the “entry point” of Simmonds's debate with Kramer.Google Scholar

³⁶ See Simmonds, , Law as a Moral Idea, supra note 1, at 191.Google Scholar

³⁷ See Simmonds, , The Nature of Law, supra note 2, at 602.Google Scholar

³⁸ See id. at 613.Google Scholar

³⁹ Cf. Simmonds, , Law as a Moral Idea, supra note 1, at 4.Google Scholar

⁴⁰ See id. at 1.Google Scholar

⁴¹ “Another response … postulates “natural laws” that are made by no one but that ground the authority of the supreme law-maker… . Once we scratch the surface of the position and start to examine it closely, however, it begins to look more convincing.” Simmonds, The Nature of Law, supra note 2, at 603.Google Scholar

⁴² See Fuller, , supra note at 20, at 133–51; see also Lon L. Fuller, Positivism and the Fidelity to Law, 71 Harv. L. Rev. 630, 630–72 (1958).Google Scholar

⁴³ See Fuller, , supra note at 20, at 33–34.Google Scholar

⁴⁴ For a recent example of positivist confidence about handling the Fullerian challenge, see Kramer, In Defense of Legal Positivism, supra note 4, at 37–77 (2003).Google Scholar

⁴⁵ See Hart, , supra note 6, at 207; see also H. L. A. Hart, Book Review—The Morality of Law, 78 Harv. L. Rev. 1281, 1284–87 (1965) [hereinafter Hart, Book Review].Google Scholar

⁴⁶ Simmonds, , The Nature of Law, supra note 2, at 616.Google Scholar

⁴⁷ “Unlike most modern theories of law, this view treats law as an activity and regards a legal system as the product of sustained purposive effort.” Fuller, supra note 20, at 106. Cf. Lon L. Fuller, Human Purpose and Natural Law, 53 J. of Phil. 697, 697–705 (1956).Google Scholar

⁴⁸ “The author has all his life been in love with the notion of purpose and this passion, like any other, can both inspire and blind a man. I have tried to show how it has done both to the author. The inspiration is so considerable that I would not wish him to terminate his longstanding union with this idée maîtresse. But I wish that the high romance would settle down to some cooler form of regard. When this happens, the author's many readers will feel the drop in temperature; but they will be amply compensated by an increase in light.” Hart, Book Review, supra note 45, at 1296.Google Scholar

⁴⁹ See Green, Leslie, The Political Content of Legal Theory, in 17 Philosophy of the Social Sciences 1, 12–13 (1987); Coleman, Jules L., Methodology, in The Oxford Handbook of Jurisprudence and Philosophy of Law 311, 337–38 (Jules Coleman & Scott Shapiro eds., 2002).Google Scholar

⁵⁰ This is what came to the fore in Hart's replies to Dworkin. He insisted upon the fundamental importance of the theoretical task of answering “important questions to which the existence of law has always given rise, and which are not questions of moral or political justification but concern the structure or constitution and interrelationship of legal phenomena.” H.L.A. Hart, Comment on Dworkin, in Issues in Contemporary Legal Philosophy 37 (Ruth Gavison ed., 1987) (emphasis added); see also Hart, supra note 6, at 240.Google Scholar

⁵¹ I took the term from Stephen R. Perry, see Stephen R. Perry, The Varieties of Legal Positivism, 9 Canadian J. of L. & Juris. 2, 361, 361–81 (1996); see also Stephen R. Perry, Hart's Methodological Positivism, 4 Legal Theory, 427, 427–67 (1998). For my account of methodological positivism, see Bódig, supra note 24, at 158–61.Google Scholar

⁵² This commitment to demystification is what Hart admired in Bentham. See H.L.A. Hart, Essays on Bentham: Jurisprudence and Political Theory 21–39 (1982); see also H. L. A. Hart, Bentham, Lecture on a Master Mind, in More Essays in Legal Philosophy: General Assessment of Legal Philosophies 18, 27–33 (R. S. Summers ed., 1971).Google Scholar

⁵³ See, e.g., Dworkin, Ronald, Law's Empire 87–89 (1986).Google Scholar

⁵⁴ See Finnis, John, Natural Law and Natural Rights 16 (1982) [hereinafter Finnis, Natural Law]; see also John Finnis, Law as Co-ordination, 2 Ratio Juris 97, 97–104 (1989).Google Scholar

⁵⁵ See supra note 27; see also Michael S. Moore, Moral Reality Revisited, 90 Mich. L. Rev. 2424, 2424–533 (1992).Google Scholar

⁵⁶ See, e.g., Dworkin, Ronald, Taking Rights Seriously 105–07 (1978). The tendency of imposing political values on law is visible in the way the analysis of “integrity” leads Dworkin into a political philosophical discussion. See id. at 176–224.Google Scholar

⁵⁷ See Finnis, , Natural Law, supra note 54, 14–15.Google Scholar

⁵⁸ Finnis and his disciples (like Robert George) are the most obvious targets of such criticism. For them, a conceptual account of law is inherently linked to laying the foundations for arguing about controversial political issues (like abortion, euthanasia, or homosexual emancipation). See, e.g., John M. Finnis, Law, Morality, and Sexual Orientation, 9 Notre Dame J.L. Ethics & Pub. Pol'y 11, 11–39 (1995); George, Robert P., Public Reason and Political Conflict: Abortion and Homosexuality, 106 Yale L.J. 2475, 2475–504 (1997). But Dworkin can also be vulnerable to accusations of political partisanship; see Richard Posner, The Problematics of Moral and Legal Theory, 111 Harv. L. Rev. 1637, 1637–717 (1998).Google Scholar

⁵⁹ Of course, the issue for legal theory is not finding ways to make accounts of law non-ideological. That is unrealistic as legal practices (just like any other human practice) have their ideological features. But it can be realistic (even important) to try to avoid imposing on law ideologies that are external to legal practices—that are not inherently connected to the professional culture of lawyers. Giving up resistance on this point would imply giving up the claim of the legal profession and legal scholarship to integrity. And the claim to professional integrity is dear to the heart of lawyers and legal scholars. They are unlikely to sympathise with theories of law that deliberately give it up.Google Scholar

⁶⁰ “Nevertheless, it must be conceded that Fuller never really succeeded in giving a clear explanation of the moral status of his eight requirements. It is here that I feel my own work clarifies matters and contributes positively to the debate.” Simmonds, The Nature of Law, supra note 2, at 617.Google Scholar

⁶¹ See Waldron, Jeremy, Normative (or Ethical) Positivism, in Hart's Postscript, Essays on the Postscript to the Concept of Law 410 (Jules Coleman ed., 2001); Campbell, Tom D., The Legal Theory of Ethical Positivism (1996); see also Tamás Gy˝rfi, Normatív pozitivizmus, in Natura Iuris: Természetjogtan és jogpozitivizmus és magyar jogelmélet (Miklós Szabó ed., 2002).Google Scholar

⁶² See Joseph, Raz, Practical Reason and Norms 56–57 (2nd ed., 1990); Joseph, Raz, Hart on Moral Rights and Legal Duties, 4 Oxford J. of Legal Stud. 123, 130 (1984). For Raz's ideas on how this limits the force of certain anti-positivist arguments against his account, see Joseph Raz, Postema on Law's Autonomy and Public Practical Reasons: A Critical Comment, 4 Legal Theory 1, 19 (1998).Google Scholar

⁶³ See, e.g., Joseph, Raz, Ethics in the Public Domain 194 (1994).Google Scholar

⁶⁴ See, e.g., Schauer, Frederick, The Limited Domain of the Law, 90 Va. L. Rev. 1909, 1914–15 (2004).Google Scholar

⁶⁵ See Coleman, , supra note 12, at 30–31.Google Scholar

⁶⁶ Here is what Coleman defends as the specification of the separability thesis: “[T]here exists at least one conceivable legal system in which the rule of recognition does not specify being a principle of morality among the truth conditions for any propositions of law.” Id. at 31. Although I am not sure that that this particular formulation is beyond doubt, I am ready to admit that the separability thesis is true in some (pretty unimportant) sense.Google Scholar

⁶⁷ See id. at 32.Google Scholar

⁶⁸ The confidence in this strategy often generates a form of triumphalism among positivists. Many of them think they won the debates with anti-positivists long ago. It justifies the dominating position of legal positivism in legal theory. The current problem of legal positivism is that it is becoming the victim of its own success: it needs to find a new function for itself. Brian Tamanaha provides a good example for this attitude. He quotes, with genuine sympathy, a speech by Brian Bix: “[L]egal positivism is orthodoxy in desperate need of dissent.” Brian Z. Tamanaha, The Contemporary Relevance of Legal Positivism, 32 Australian J. of Legal Phil. 1, 1–2 (2007).Google Scholar

⁶⁹ It is not that positivists are never tempted to make a strong claim of separation. Kelsen went pretty close to it when he denied the possibility of any real conflict between law and morals. The perspectives of morality and law mutually exclude one another. “[J]udging from one point of view excludes the other … . It is evident to any jurist—that is, when the cognition of legal norms is involved—he must disregard the moral aspect. No moralist would think of letting considerations of positive law interfere with the validity of norms which he has recognized from his point of view.” Hans Kelsen, General Theory of Law and State 410 (1949).Google Scholar

⁷⁰ Cf. Kramer, Matthew H., Where Law and Morality Meet (2004).Google Scholar

⁷¹ See Mitrophanous, Eleni, Soft Positivism, 17 Oxford J. of Legal Stud. 621, 622 (1997).Google Scholar

⁷² See Gardner, John, Legal Positivism: 5½ Myths, 46 Am. J. Juris. 199, 222–24 (2001).Google Scholar

⁷³ See Coleman, , supra note 12, at 30.Google Scholar

⁷⁴ By the way, this is the very intuition that makes Simmonds's rejection of identifying the criteria of legality with derivability from a rule of recognition work.Google Scholar

⁷⁵ See Hart, , supra note 6, at 207–12; H.L.A. Hart, Positivism and the Separation of Law and Morals, 71 Harv. L. Rev. 593, 615–21 (1957) [hereinafter Hart, Positivism and the Separation]; see also Frederick Schauer, Positivism as Pariah, in The Autonomy of Law: Essays on Legal Positivism 31 (Robert P. George ed., 1996).Google Scholar

⁷⁶ And this may not sound implausible at all. For a legal theory, the issue of validity seems more important. Lawyers and legal scholars, in the context of professional discourses, are more likely to raise issues of validity than issues of obedience.Google Scholar

⁷⁷ See Coleman, , supra note 11, at 69–73.Google Scholar

⁷⁸ Cf. id. at 118. I had a personal experience that serves as a nice illustration of this point. A few years ago, I had a conversation with a prominent positivist theorist. I outlined for him a few familiar arguments about the inability of legal positivism to account for the ability of law to establish obligations. He answered that he agreed with me as a political philosopher but not as a legal theorist.Google Scholar

⁷⁹ Gardner admits that legal positivism is “not a whole theory of law's nature, after all.” Gardner, supra note 72, at 210.Google Scholar

⁸⁰ I must admit that I have fallen for the temptation to target the core positivist claims several times. See Bódig, Interpretivism and Conventionalism, supra note 24, at 161; see also Mátyás Bódig, A jog és az erkölcs közötti viszony, 2(2) Miskolci Jogi Szemle 5, 5–32 (2007).Google Scholar

⁸¹ This understanding of validity is actually reflected in the works of earlier positivists like Kelsen who were less concerned about anti-positivist challenges, and did not try to sidestep a whole dimension of the issue of the normativity of law. “Validity of law means that the legal norms are binding, that men ought to behave as the legal norms prescribe, that men ought to obey and apply the legal norms.” Kelsen, supra note 69, at 39; see also Kelsen, supra note 28, at 257. Most anti-positivists would agree that this is the proper way to formulate the question of validity: it captures the inherent connection to normative force.Google Scholar

⁸² And where the issue of obedience actually takes centre stage, like in the case of civil disobedience, it is hardly decoupled from the issue of validity. Where the law is not thought to be worthy of obedience, there is a challenge against its claim to validity (or the scope of its validity).Google Scholar

⁸³ It is easy to find scholars (even positivists) who also worry about this. “[T]hese analytical discussions tend to be flat and repetitive in consequence, revolving in smaller and smaller circles among a diminishing circle of acolytes.” Jeremy Waldron, Legal and Political Philosophy, in The Oxford Handbook of Jurisprudence and Philosophy of Law 381, 381 (Jules Coleman & Scott Shapiro eds., 2002).Google Scholar

⁸⁴ For me the best example for an elusive but somehow true claim is that “we have to distinguish what the law is from what it ought to be.”Google Scholar

⁸⁵ No doubt, validity has this technical aspect. And the criteria of validity are always developed in a practice that has a particular sociological profile. There should be ways of making sense of issues of validity within the context of a sociological understanding of the practice. But the fruitfulness of such an understanding in throwing light on normativity is a more dubious matter.Google Scholar

⁸⁶ For an example of trying to accommodate and re-contextualise core positivist claims, see John Finnis, The Truth in Legal Positivism, in The Autonomy of Law: Essays on Legal Positivism 195 (Robert P. George ed., 1996).Google Scholar

⁸⁷ Even some positivists worry that legal positivism is losing its ability of turning its attention to issues that matter. See Frederick Schauer, Legal Positivism and the Contingent Autonomy of Law, in Judicial Power, Democracy and Legal Positivism 216 (Tom Campbell & Jeffrey Goldsworthy eds., 2000); Brian, Bix, Patrolling the Boundaries: Inclusive Positivism and the Nature of Jurisprudential Debate, 12 Canadian J. of L. & Jurisprudence 17, 25 (1999).Google Scholar

⁸⁸ Cf. Gadamer, Hans-Georg, Truth and Method 198–304 (2004).Google Scholar

⁸⁹ The symbolic discursive event that indicated the emergence of the new discourse is the Hart-Fuller debate in 1957–1958. See Hart, Positivism and the Separation, supra note 75; Lon Fuller, Positivism and the Fidelity to Law, 71 Harv. L. Rev. 630, 630–72 (1958). The other decisive discursive event is the publication of Hart's The Concept of Law in 1961.Google Scholar

⁹⁰ See Simmonds, , Law as a Moral Idea, supra note 1, at 21–25.Google Scholar

⁹¹ Id. at 124.Google Scholar

⁹² See id. at 170–71.Google Scholar

⁹³ Id. at 170.Google Scholar

⁹⁴ Id. at 126.Google Scholar

⁹⁵ See id. at 22.Google Scholar

⁹⁶ See Simmonds, , The Nature of Law, supra note 2, at 612.Google Scholar

⁹⁷ See Simmonds, , Law as a Moral Idea, supra note 1, at 41–42.Google Scholar

⁹⁸ See id. at 43.Google Scholar

⁹⁹ See id. Google Scholar

¹⁰⁰ See Simmonds, , The Nature of Law, supra note 2, at 613–14; cf. Simmonds, Law as a Moral Idea, supra note 1, at 10.Google Scholar

¹⁰¹ See Simmonds, , The Nature of Law, supra note 2, at 613.Google Scholar

¹⁰² See Hart, , supra note 6, at 240.Google Scholar

¹⁰³ For an example of the Hartian rejection of the relevance of certain issues for conceptual legal theory, see id. at 107–08. Google Scholar

¹⁰⁴ See Simmonds, , The Nature of Law, supra note 2, at 602–3.Google Scholar

¹⁰⁵ See Simmonds, , Law as a Moral Idea, supra note 1, at 172–73.Google Scholar

¹⁰⁶ See Simmonds, , The Nature of Law, supra note 2, at, 602.Google Scholar

¹⁰⁷ See id. at 614.Google Scholar

¹⁰⁸ For my account of interpretivism, see Bódig, Interpretivism and Conventionalism, supra note 24, at 155–58; see also Bódig, supra note 16, at 446–55.Google Scholar

¹⁰⁹ Before Hart, other types of background epistemology were prevalent, even among positivists. Kelsen, for example, relied on a version of Kantian transcendentalism that seeks to elucidate concepts by reducing them to their transcendental presupposition. See, for example, the way he characterises “ought” as a transcendental category in Kelsen, supra note 3, at 23–25. But empirical reductionism, that seeks to reduce legal phenomena to their empirical grounds, is a more familiar alternative to interpretivism. Scandinavian realists kept it influential even in the first half of the 20^th century. For an example, see Karl Olivecrona, law as fact (1st ed. 1939).Google Scholar

¹¹⁰ See H.L.A. Hart, Essays in Jurisprudence and Philosophy 13 (1983).Google Scholar

¹¹¹ Even John Finnis accepts the interpretivist starting point for legal theory. See Finnis, Natural Law, supra note 54, at 3.Google Scholar

¹¹² See Dworkin, , supra note 53, at 12–14. Some argue that interpretivism itself is to be identified with Dworkinian jurisprudential methodology. See Nicos Stavropoulos, Interpretivist Theories of Law, Stanford Encyclopaedia of Philosophy, available at http://plato.stanford.edu/entries/law-interpretivist. I think such claims are misleading and simplify the character and development of interpretivism in legal theory.Google Scholar

¹¹³ See Moore, Michael S., The Interpretive Turn in Modern Theory: A Turn for the Worse?, 41 Stan. L. Rev. 871, 871–957 (1989); Postema, Gerald J., Jurisprudence as Practical Philosophy, 4 Legal Theory 329, 329–30 (1998).Google Scholar

¹¹⁴ For my commitment to interpretivism, see Bódig, Interpretivism and Conventionalism, supra note 24, at 156– 57.Google Scholar

¹¹⁵ See Simmonds, , The Nature of Law, supra note 2, at 610.Google Scholar

¹¹⁶ See id. at 614; see also Simmonds, Law as a Moral Idea, supra note 1, at 23.Google Scholar

¹¹⁷ See Simmonds, , Law as a Moral Idea, supra note 1, at 55.Google Scholar

¹¹⁸ See Simmonds, , The Nature of Law, supra note 2, at 614; cf. Simmonds, Law as a Moral Idea, supra note 1, at 58.Google Scholar

¹¹⁹ See, e.g., Dworkin, , supra note 53, at 50–52.Google Scholar

¹²⁰ See Simmonds, , Law as a Moral Idea, supra note 1, at 176.Google Scholar

¹²¹ Simmonds puts real emphasis on making that difference clear. See id. at 33–34. In fact, Simmonds implicates Dworkin in his criticism of “fragmentation of inquiry.” “Dworkin's view seems to be that there is no general philosophical question to be asked about the nature of law as a distinct type of social structure.” Id. at 27. This is one of the reasons behind his insistence that his anti-positivism is different to Dworkin's. See Simmonds, The Nature of Law, supra note 2, at 607–8, 622.Google Scholar

¹²² See Simmonds, , Law as a Moral Idea, supra note 1, at 173; cf. id. at 151.Google Scholar

¹²³ Id. at 150.Google Scholar

¹²⁴ See id. at 150–55.Google Scholar

¹²⁵ See id. at 152–53. The impact of the “modern” approach may be even reflected in the “fragmentation of inquiry”—“in the attempt to divide jurisprudence into a neutral and a normative inquiry.” Id. at 147.Google Scholar

¹²⁶ Id. at 7.Google Scholar

¹²⁷ Id. at 141.Google Scholar

¹²⁸ Dworkin also takes an interpretive attitude to values in general. See Ronald Dworkin, Objectivity and Truth: You'd Better Believe It, 25 Philosophy and Public Affairs 87, 87–139 (1996); Dworkin, Ronald, Hart's Postscript and the Character of Political Philosophy, 24 Oxford J. of Legal Stud. 1, 5–9 (2004). For Simmonds, however, Dworkin is not really detached from the “modern” approach. I accept this even though I can imagine how one can challenge this reading in light of what Dworkin says on “integrated values.” See id. at 14–16.Google Scholar

¹²⁹ For Simmonds, Gadamer is the guide to the way the Aristotelian perspective can be used in a contemporary philosophical context. See Simmonds, Law as a Moral Idea, supra note 1, at 146–48.Google Scholar

¹³⁰ See id. at 8.Google Scholar

¹³¹ “Jurisprudence can only properly be understood in the light of the possibility that moral insight might be derived from historically informed reflection upon our practices and institutions … .” Id. at 147.Google Scholar

¹³² See Simmonds, , The Nature of Law, supra note 2, at 615.Google Scholar

¹³³ See Simmonds, , Law as a Moral Idea, supra note 1, at 163.Google Scholar

¹³⁴ See id. at 100–01, 142, 163.Google Scholar

¹³⁵ See id. at 145.Google Scholar

¹³⁶ See id. at 68.Google Scholar

¹³⁷ There are other attempts to reconstruct the discourse. Waldron's can be very important as it comes from within legal positivism. It is based on reconsidering what we should mean by “general jurisprudence.” See Jeremy Waldron, Can There Be a Democratic Jurisprudence?, 58 Emory L.J. 675, 675–712 (2009). Twining also has a proposal that would be based on assessing how globalisation changes the agenda. William Twining, General Jurisprudence: Understanding Law from a Global Perspective (2009). I find Twining's initiative somewhat less promising than Waldron's.Google Scholar

¹³⁸ For my account of the character and functions of conceptual legal theory, see Bódig, supra note 16, at 435–42.Google Scholar

¹³⁹ See id. at 478–506.Google Scholar

¹⁴⁰ Simmonds, , Law as a Moral Idea, supra note 1, at 23; see also id. at 36.Google Scholar

¹⁴¹ Simmonds, , The Nature of Law, supra note 2, at 615.Google Scholar

¹⁴² See Bódig, supra note 16, at 486–90.Google Scholar

¹⁴³ For an account like this, see Mátyás Bódig, A normativitás és a jog sajátos normativitása, in Értékek és normák interdiszciplináris megközelítésben (Katalin S. Nagy & Annamária Orbán eds., 2008).Google Scholar

¹⁴⁴ Simmonds raises the issue of grounding the authority of decision-makers (i.e. legislators). See Simmonds, The Nature of Law, supra note 2, at 604. For highlighting the justificatory aspect of laws, see id. at 605.Google Scholar

¹⁴⁵ “Suppose that a judge sentences me to prison, citing a certain rule as the justification for my punishment. I protest and demand to know how the existence of the rule serves to justify sending me to prison.” Id. at 610 (emphasis added).Google Scholar

¹⁴⁶ I do not simply mean Herbert Hart here (who is singled out in the paper I am commenting upon). I do believe that Simmonds's arguments work very well against Jules Coleman, Matthew Kramer, Wilfrid Waluchow and Kenneth Einar Himma as well. These are mostly the prominent figures of what we tend to call “inclusive legal positivism.” See Coleman, supra note 11; Kramer, In Defense of Legal Positivism, supra note 4; Matthew Kramer, Where Law and Morality Meet (2008); Waluchow, Wilfrid J., Inclusive Legal Positivism (1994); Himma, Kenneth E., Law's Claim of Legitimate Authority, in Hart's Postscript: Essays on the Postscript to the Concept of Law 125 (Jules Coleman ed., 2001).Google Scholar

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Comment on Simmonds—Legal Positivism and the Limits of the Contemporary Legal Theoretical Discourse

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Comment on Simmonds—Legal Positivism and the Limits of the Contemporary Legal Theoretical Discourse

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