NARRATOR: Thanks for joining this episode of the No. 86 lecture series, where we discuss classical and modern Jurisprudence. Today’s episode features Eric Claeys, Professor of Law at Antonin Scalia Law School at George Mason University. In his scholarship, he studies theories of natural law and natural rights and their implications in property law. Professor Claeys’s main teaching interests include Property, Torts, Jurisprudence, and Intellectual Property. As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker. PUBLIUS: Professor Claeys, in the last episode, we talked about the early positivists - Jeremy Bentham and John Austin. Can you tell us about the next generation of positivism, and in particular, H.L.A. Hart? ERIC CLAEYS: Hart was an analytical English philosopher. Hart was a scholar for a long time at Oxford. When Austin wrote and taught in the first half of the 19th century, Hart wrote and taught in the middle and the back half of the 20th century, and there had been a lot of changes in philosophy. Philosophy of language was much, much richer, and there were many kinds of social philosophy that existed in the 20th century that didn't exist when Austin wrote, and Hart found dissatisfying Austin, command theory, and the command theories of other analytical English philosophers who came after Austin. Hart took Austin's work as his point of departure. Hart agreed with Austin that whether law exists is a question separate from whether a law is a good law. With Austin, Hart assumed that a good analytical philosopher could help you answer the question whether a directive is law. Hart also agreed with Austin that the natural law tradition before them was kind of messy [00:01:00] and not very well thought out, and it was ludicrous. Hart's main work is the concept of law, and the concept of law has maybe three parts. The first part is a sustained critique of Austin's command theory ,and once Hart finishes this long critique of Austin and Command Theory, he then introduces his own account of law, and that's in the second part of the concept of law. In the final part of the concept of law, Hart applies his definition of law, and then circles back and takes a look back at the natural law tradition. When Hart criticizes Austin, he makes several different criticisms, but I think two stand out. One is that there are lots of instances of things that we agree are laws, but we don't think of them as being commands, and the simplest illustrations would be a directive in a will. When somebody writes up a will, the probate officer who administers the will is commanded, but we don't think of that being the main effect of the directive. There's property that used to be owned by the will- writer and is going to be owned by the recipient, and the main function of the will directive is to convey the property from one person to the other. That's not a command, and when two people make a contract; before the contract, the two of them were free to go in their different directions. After the contract is formed, each now owes obligations to the other and can sue the other if the other doesn't perform on those obligations. Now their commands play roles in making sure that will property gets passed on and contracts get respected, but we don't think of the commands as the most important, or the defining features of the contract and the testamentary directive. They're changing legal relationships. There are a lot of different kind of directives in law that don't work without the command function. So Austin built a theory of law, and he had in his mind's eye, a penal statute or a criminal statute. Don't do X, and if you do X, you're going to go to jail and the sheriff's going to arrest you. That's a command. But a civil lawyer understands that marriages, contracts, wills, partnerships or organizations; these are all things where law coordinates behavior and obligations arise when the behavior's coordinated, but the coordination is much more central to what happens than the commands are. And for Hart, a theory that couldn't explain why a marriage or corporate organization or contract are just as much law as a penal statute was an unsatisfying theory of law. The other and the more important criticism that Hart made of Austin was what was now known as the internal point of view. And to understand the internal point of view, Hart asks readers to think of two examples. So in one, a sheriff comes and says: you need to give up this property to pay a court order judgment or to pay your taxes. And in the other, somebody from a criminal syndicate comes along and says: nice building you got there, why don't you pay us some money so that it doesn't burn down? Assume that law is a command. If law is a command, then the two directives there, the directive by the criminal syndicate to pay money for protection, and the directive to give up property to pay taxes; they're both commands. Because in both cases, somebody's saying you have to do blank, and if you don't do blank, you're going to suffer some disability: get knee capped, getting shot, going to jail, getting arrested, whatever it is. And Hart said: if that's all command theory can tell you it's missing something that is crucially important to law. Becausewe can say in both cases, the subject of the criminal syndicate member and the subject of the sheriff, they're both obeying, but the obeying is really different across the two cases. In one one's obeying because one doesn't want to get shot, or kneecapped. In the other one's obeying because one knows I'm part of an association, and it's part of the rules in this association that I do what I'm being ordered to do, and I follow this person's authority. And Hart argued that any account of law, even a positivist account, if it cannot account for this way in which people get, or they intuit, that they're following rules of a game, it's an impoverished theory of law. PUBLIUS: So what alternative theory does Hart offer instead? ERIC CLAEYS: So then, Hart takes those and other problems he sees with Command Theory to offer his own account of law. Hart defines not really so much a law as he defines a legal system. For Hart, a legal system consists of a set of primary rules and secondary rules. And primary rules are rules that regulate the conduct of the members of society: penal laws, tort laws, contract laws, property laws. And then, secondary rules are rules that specify how the primary laws are made and enforced. The most important secondary rule for Hart is called the rule of recognition. The rule of recognition is a rule by which all the officers in the community, and all the citizens, recognize that certain rules are part of the legal system. And so, the rule of recognition is this basic ,shared expectation that everybody has, that helps everybody's identify the things that are laws and the things that are orders by vigilante groups, or other groups that are not the government. And so, crucial to all of this for Hart is the internal point of view. So Hart's thinking that a positive account for law needs to account for law from the internal point of view, it needs to account for law from the perspective of a subject of a government in this political system, who knows that certain directives are part of the systems, and things that anybody who's a member of good standing in that system needs to follow. From that internal point of view, somebody who's a citizen can say: okay, I know that the rules of Tort are part of the common law and they're law, they're primary rules that are law. I know that these statutes are made by Parliament or the Congress, they're law, and I know that these criminal laws are law. And then I also know that the rules by which Congress writes things, they're in the Constitution and the Constitution's law, and so the Constitution provides a secondary rule for changing the basic primary rules. The difference between primary rules and secondary rules is primary rules regulate the conduct of people going about their daily lives, secondary rules are the meta rules by which judges and legislators and regulators change the primary rules. PUBLIUS: What is the difference between primary and secondary rules? ERIC CLAEYS: A Tort law saying: don't beat somebody up; that's a doctrine of tort, and that's in the common law, that's a primary rule. The law of the legal system to let you know that judges can discover, apply, modify a common law, that's a secondary rule. And then the rules that tell you that a legislature can enact a statute that preempts the common law of battery, that's another secondary rule. The internal point of view helps people identify both primary rules and secondary rules. The internal point of view lets people see the difference between directives that are worked out or made by a government, and directives that are worked out or made by a company, or by a criminal gang. If the sheriff comes to your house and says: you were found guilty of beating somebody up, you were ordered to pay $50,000 in judgment; you have to pay that. If the person says: why do I have to pay it back? The sheriff's answer is going to be, because there was a court process. And the person's answer back is: but why do I have to follow the court process? At some point, the sheriff's going to come back to saying, this was a legal proceeding operated by the government, and you're a subject of this government. You're just bound to do what the government says. If the person were ordered to pay $50,000 to a criminal gang, the person would ask the member of the criminal gang: why am I supposed to pay that; the gang member couldn't give that kind of answer. It would have to come back to something like: I'm just telling you to do this if you don't want get hurt, or we did something for you, you now owe us a favor, and so if you don't want us to retaliate for not making good on the favor we want recovered. The rule of recognition helps people see the difference between directives that are part of the government system and directives that just aren't. PUBLIUS: Tell us about the newer generation of positivists, after Hart. Are there different types of positivism now? What elements do they have in common? Who are the prominent scholars? ERIC CLAEYS: One way or another, positivism refers to an idea that one can provide a satisfactory account of law without including as any definitional element whether the law's just. That leaves open a question. What if a legal directive requires people who are following it to consider what's just? So let's say, the 14th Amendment of the Constitution, bars states from, denying equal protection to people. Let's say a legislator or judge is trying to work out what the law is about coming from the equal protection clause. The words equal protections got some normative freight to it, or some normative substance. Somebody who is trying to figure out what equal protection requires is going to have to say what policy seems to protect people, and what policy seems to protect people equally. And you can't answer questions about protection or equally without getting into questions of morality. So the question then you might ask a positivist is this. When somebody is trying to figure out what equal protection requires, and the person's doing some normative analysis, is that normative analysis law or is that normative analysis reasoning that's going to lead up to law, but it's not law by itself. Inclusive positivists hold, or they accept that a legal directive can require people who are obeying the law, or carrying out the law, to conduct moral analysis in the course of working out what the law requires. Exclusive positivists think that there's more of a separation between morality and law. So, if and when legal sources don't give clear answers, and a judge needs, or some other legal actor needs to reflect on what the law ought to be, at that moment, the actor is doing non-legal policy analysis. And when the actor then settles what the law is, that's now legal analysis again. So inclusive positivists agree that law is positive, but they accept that legal materials can require people following the law to conduct moral inquiry in the course of doing what the law says, exclusive positivists think that when a legal source requires people to make moral choices, the moral reasoning is never legal. The moral reasoning makes decisions. The decisions then make a choice, and the choice is legal, but the moral reasoning that leads up to the choice is not legal reasoning. I would say that all of the positivists stay different from natural lawyers. All positivists would agree with the proposition that whether a directive is good or not has no bearing on whether it is in fact law. The exclusive and inclusive positivists fall out if there's a legal directive, and the legal directive requires people to make choices that have morality in them. They disagree whether the reasoning people engage in when they settle these normative choices is legal reasoning. Exclusive positivists think the normative reasoning that leads up to the choice is not legal reasoning, it's moral reasoning, and only the choice at the end of the day is legal reasoning. The inclusive positivists think, if a legal source tells you to consult morality, then you're doing law while you're consulting morality.So, natural lawyers think that whenever you're doing law, you're doing morality, because the law has got a moral function to it. Inclusive positivists, the first thing you ask is whether you can recognize a particular directive is law. If that directive just tells you to do blank, and doesn't require you to do anything moral, then you can do law without doing morality. So drive 55, it's just all you have to do is to drive 55 when you're doing law. But if the law, if the directive tells you, make sure the state is not denying equal protection to its citizens, you have to reflect on what equality and protection mean to figure out what the law of equal protection is. And so, you do morality when you work out what equality means, when you're figuring out what equal protection requires as a matter of law, The exclusive positivist says: we can figure out whether the equal protection clause is law without conducting moral inquiry. And then when we know the equal protection clause is law, then we know we have to make some decisions about what equality and protection require. Those decisions are not legal decisions. When we choose what equal protection requires, and then figure out some order or statute on the basis of that decision, that order or statute at the end of the reasoning, that's now law again. But the equal protection clause, that's law; it requires officials to engage in reasoning, but the reasoning is not itself law. When the reasoning leads to a clear decision at the end the clear decision's law. Hart's concept of law and Hart's work revolutionize jurisprudence as a scholarly subject, and most people in the English speaking world who are studying jurisprudence now do so from Hartian perspectives. Most people take Hart's concepts of law as a starting point, and there are a lot of rich discussions on a lot of specific topics about law, precedent, rules, standards, obligation, authority; and other concepts like that that have to do with law. And there are a lot of very specialized debates that have gone way past Hart, but Hart still set the basic terms of debate. And among Hartians, I'd say that they are more inclusive positivists than exclusive positivists, but both traditions or both schools are still very well represented, and the debates between them are very lively still. NARRATOR: Thank you for listening to this episode of the No. 86 Lecture series on Jurisprudence. The spirit of debate of our Founding Fathers animates all of the No. 86 content, encouraging discussion and critical reflection relative to how each subject is widely understood and taught in law schools and among law students. Subscribe to the No. 86 Lecture series on your favorite podcast platform to have each episode delivered the moment it’s released. You can also go to fedsoc.org/no86 for lectures and videos on Federalism, Separation of Powers, the Judiciary and more. Thanks for listening. See you in class! TRANSCRIPT - VERBATIM FOR YOUTUBE Thanks for joining this episode of the No. 86 lecture series, where we discuss classical and modern Jurisprudence. Today’s episode features Eric Claeys, Professor of Law at Antonin Scalia Law School at George Mason University. In his scholarship, he studies theories of natural law and natural rights and their implications in property law. Professor Claeys’s main teaching interests include Property, Torts, Jurisprudence, and Intellectual Property. As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker. Professor Claeys, in the last episode, we talked about the early positivists - Jeremy Bentham and John Austin. Can you tell us about the next generation of positivism, and in particular, H.L.A. Hart? Hart was an analytical English philosopher. Hart was a scholar for a long time at Oxford. When Austin wrote and taught in the first half of the 19th century, Hart wrote and taught in the middle and the back half of the 20th century, and there had been a lot of changes in philosophy. Philosophy of language was much, much richer, and there were many kinds of social philosophy that existed in the 20th century that didn't exist when Austin wrote, and Hart found dissatisfying Austin, command theory, and the command theories of other analytical English philosophers who came after Austin. Hart took Austin's work as his point of departure. Hart agreed with Austin that whether law exists is a question separate from whether a law is a good law. With Austin, Hart assumed that a good analytical philosopher could help you answer the question whether a directive is law. Hart also agreed with Austin that the natural law tradition before them was kind of messy [00:01:00] and not very well thought out, and it was ludicrous. Hart's main work is the concept of law, and the concept of law has maybe three parts. The first part is a sustained critique of Austin's command theory ,and once Hart finishes this long critique of Austin and Command Theory, he then introduces his own account of law, and that's in the second part of the concept of law. In the final part of the concept of law, Hart applies his definition of law, and then circles back and takes a look back at the natural law tradition. When Hart criticizes Austin, he makes several different criticisms, but I think two stand out. One is that there are lots of instances of things that we agree are laws, but we don't think of them as being commands, and the simplest illustrations would be a directive in a will. When somebody writes up a will, the probate officer who administers the will is commanded, but we don't think of that being the main effect of the directive. There's property that used to be owned by the will- writer and is going to be owned by the recipient, and the main function of the will directive is to convey the property from one person to the other. That's not a command, and when two people make a contract; before the contract, the two of them were free to go in their different directions. After the contract is formed, each now owes obligations to the other and can sue the other if the other doesn't perform on those obligations. Now their commands play roles in making sure that will property gets passed on and contracts get respected, but we don't think of the commands as the most important, or the defining features of the contract and the testamentary directive. They're changing legal relationships. There are a lot of different kind of directives in law that don't work without the command function. So Austin built a theory of law, and he had in his mind's eye, a penal statute or a criminal statute. Don't do X, and if you do X, you're going to go to jail and the sheriff's going to arrest you. That's a command. But a civil lawyer understands that marriages, contracts, wills, partnerships or organizations; these are all things where law coordinates behavior and obligations arise when the behavior's coordinated, but the coordination is much more central to what happens than the commands are. And for Hart, a theory that couldn't explain why a marriage or corporate organization or contract are just as much law as a penal statute was an unsatisfying theory of law. The other and the more important criticism that Hart made of Austin was what was now known as the internal point of view. And to understand the internal point of view, Hart asks readers to think of two examples. So in one, a sheriff comes and says: you need to give up this property to pay a court order judgment or to pay your taxes. And in the other, somebody from a criminal syndicate comes along and says: nice building you got there, why don't you pay us some money so that it doesn't burn down? Assume that law is a command. If law is a command, then the two directives there, the directive by the criminal syndicate to pay money for protection, and the directive to give up property to pay taxes; they're both commands. Because in both cases, somebody's saying you have to do blank, and if you don't do blank, you're going to suffer some disability: get knee capped, getting shot, going to jail, getting arrested, whatever it is. And Hart said: if that's all command theory can tell you it's missing something that is crucially important to law. Becausewe can say in both cases, the subject of the criminal syndicate member and the subject of the sheriff, they're both obeying, but the obeying is really different across the two cases. In one one's obeying because one doesn't want to get shot, or kneecapped. In the other one's obeying because one knows I'm part of an association, and it's part of the rules in this association that I do what I'm being ordered to do, and I follow this person's authority. And Hart argued that any account of law, even a positivist account, if it cannot account for this way in which people get, or they intuit, that they're following rules of a game, it's an impoverished theory of law. So what alternative theory does Hart offer instead? So then, Hart takes those and other problems he sees with Command Theory to offer his own account of law. Hart defines not really so much a law as he defines a legal system. For Hart, a legal system consists of a set of primary rules and secondary rules. And primary rules are rules that regulate the conduct of the members of society: penal laws, tort laws, contract laws, property laws. And then, secondary rules are rules that specify how the primary laws are made and enforced. The most important secondary rule for Hart is called the rule of recognition. The rule of recognition is a rule by which all the officers in the community, and all the citizens, recognize that certain rules are part of the legal system. And so, the rule of recognition is this basic ,shared expectation that everybody has, that helps everybody's identify the things that are laws and the things that are orders by vigilante groups, or other groups that are not the government. And so, crucial to all of this for Hart is the internal point of view. So Hart's thinking that a positive account for law needs to account for law from the internal point of view, it needs to account for law from the perspective of a subject of a government in this political system, who knows that certain directives are part of the systems, and things that anybody who's a member of good standing in that system needs to follow. From that internal point of view, somebody who's a citizen can say: okay, I know that the rules of Tort are part of the common law and they're law, they're primary rules that are law. I know that these statutes are made by Parliament or the Congress, they're law, and I know that these criminal laws are law. And then I also know that the rules by which Congress writes things, they're in the Constitution and the Constitution's law, and so the Constitution provides a secondary rule for changing the basic primary rules. The difference between primary rules and secondary rules is primary rules regulate the conduct of people going about their daily lives, secondary rules are the meta rules by which judges and legislators and regulators change the primary rules. What is the difference between primary and secondary rules? A Tort law saying: don't beat somebody up; that's a doctrine of tort, and that's in the common law, that's a primary rule. The law of the legal system to let you know that judges can discover, apply, modify a common law, that's a secondary rule. And then the rules that tell you that a legislature can enact a statute that preempts the common law of battery, that's another secondary rule. The internal point of view helps people identify both primary rules and secondary rules. The internal point of view lets people see the difference between directives that are worked out or made by a government, and directives that are worked out or made by a company, or by a criminal gang. If the sheriff comes to your house and says: you were found guilty of beating somebody up, you were ordered to pay $50,000 in judgment; you have to pay that. If the person says: why do I have to pay it back? The sheriff's answer is going to be, because there was a court process. And the person's answer back is: but why do I have to follow the court process? At some point, the sheriff's going to come back to saying, this was a legal proceeding operated by the government, and you're a subject of this government. You're just bound to do what the government says. If the person were ordered to pay $50,000 to a criminal gang, the person would ask the member of the criminal gang: why am I supposed to pay that; the gang member couldn't give that kind of answer. It would have to come back to something like: I'm just telling you to do this if you don't want get hurt, or we did something for you, you now owe us a favor, and so if you don't want us to retaliate for not making good on the favor we want recovered. The rule of recognition helps people see the difference between directives that are part of the government system and directives that just aren't. Tell us about the newer generation of positivists, after Hart. Are there different types of positivism now? What elements do they have in common? Who are the prominent scholars? One way or another, positivism refers to an idea that one can provide a satisfactory account of law without including as any definitional element whether the law's just. That leaves open a question. What if a legal directive requires people who are following it to consider what's just? So let's say, the 14th Amendment of the Constitution, bars states from, denying equal protection to people. Let's say a legislator or judge is trying to work out what the law is about coming from the equal protection clause. The words equal protections got some normative freight to it, or some normative substance. Somebody who is trying to figure out what equal protection requires is going to have to say what policy seems to protect people, and what policy seems to protect people equally. And you can't answer questions about protection or equally without getting into questions of morality. So the question then you might ask a positivist is this. When somebody is trying to figure out what equal protection requires, and the person's doing some normative analysis, is that normative analysis law or is that normative analysis reasoning that's going to lead up to law, but it's not law by itself. Inclusive positivists hold, or they accept that a legal directive can require people who are obeying the law, or carrying out the law, to conduct moral analysis in the course of working out what the law requires. Exclusive positivists think that there's more of a separation between morality and law. So, if and when legal sources don't give clear answers, and a judge needs, or some other legal actor needs to reflect on what the law ought to be, at that moment, the actor is doing non-legal policy analysis. And when the actor then settles what the law is, that's now legal analysis again. So inclusive positivists agree that law is positive, but they accept that legal materials can require people following the law to conduct moral inquiry in the course of doing what the law says, exclusive positivists think that when a legal source requires people to make moral choices, the moral reasoning is never legal. The moral reasoning makes decisions. The decisions then make a choice, and the choice is legal, but the moral reasoning that leads up to the choice is not legal reasoning. I would say that all of the positivists stay different from natural lawyers. All positivists would agree with the proposition that whether a directive is good or not has no bearing on whether it is in fact law. The exclusive and inclusive positivists fall out if there's a legal directive, and the legal directive requires people to make choices that have morality in them. They disagree whether the reasoning people engage in when they settle these normative choices is legal reasoning.Exclusive positivists think the normative reasoning that leads up to the choice is not legal reasoning, it's moral reasoning, and only the choice at the end of the day is legal reasoning. The inclusive positivists think, if a legal source tells you to consult morality, then you're doing law while you're consulting morality.So, natural lawyers think that whenever you're doing law, you're doing morality, because the law has got a moral function to it. Inclusive positivists, the first thing you ask is whether you can recognize a particular directive is law. If that directive just tells you to do blank, and doesn't require you to do anything moral, then you can do law without doing morality. So drive 55, it's just all you have to do is to drive 55 when you're doing law. But if the law, if the directive tells you, make sure the state is not denying equal protection to its citizens, you have to reflect on what equality and protection mean to figure out what the law of equal protection is. And so, you do morality when you work out what equality means, when you're figuring out what equal protection requires as a matter of law, The exclusive positivist says: we can figure out whether the equal protection clause is law without conducting moral inquiry. And then when we know the equal protection clause is law, then we know we have to make some decisions about what equality and protection require. Those decisions are not legal decisions. When we choose what equal protection requires, and then figure out some order or statute on the basis of that decision, that order or statute at the end of the reasoning, that's now law again. But the equal protection clause, that's law; it requires officials to engage in reasoning, but the reasoning is not itself law. When the reasoning leads to a clear decision at the end the clear decision's law. Hart's concept of law and Hart's work revolutionize jurisprudence as a scholarly subject, and most people in the English speaking world who are studying jurisprudence now do so from Hartian perspectives. Most people take Hart's concepts of law as a starting point, and there are a lot of rich discussions on a lot of specific topics about law, precedent, rules, standards, obligation, authority; and other concepts like that that have to do with law. And there are a lot of very specialized debates that have gone way past Hart, but Hart still set the basic terms of debate. And among Hartians, I'd say that they are more inclusive positivists than exclusive positivists, but both traditions or both schools are still very well represented, and the debates between them are very lively still. Thank you for listening to this episode of the No. 86 Lecture series on Jurisprudence. The spirit of debate of our Founding Fathers animates all of the No. 86 content, encouraging discussion and critical reflection relative to how each subject is widely understood and taught in law schools and among law students. Subscribe to the No. 86 Lecture series on your favorite podcast platform to have each episode delivered the moment it’s released. You can also go to fedsoc.org/no86 for lectures and videos on Federalism, Separation of Powers, the Judiciary and more. Thanks for listening. See you in class!