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There is an unintended resemblance between Hart™s view on this point
and the Realist one he means to refute. For if the core of a law consists of
“standard cases,” a law appears to have the character of a class of
particulars, rather than that of a rule. If a law is no more than a collection
of particulars it would seem reasonable to conclude, as the Realists do,
that rules of law have no independent claim to attention. Furthermore, in
drawing out the implications of the “penumbra,” Hart takes over the
Realists™ reliance on judicial intuition of social needs. When the judge is
faced with a case in the penumbra, as he cannot decide in terms of logic,
Hart says, he can only consider which decision would produce the most
desirable social consequences. In such cases, judges who pretend to be
applying the law as it “is” are really enemies of social progress.
Hart consequently interprets the decision of Justice Rufus Peckham in
Lochner v. New York (1905) “ that regulating bakers™ hours of labor by
state legislation was an unprecedented interference with the right of
free contract “ as an attempt to “give effect to a policy of a conservative
type.” What is taken to be an excessive use of logic in law, Hart explains,
consists in giving “some general term an interpretation which is blind to
social values and consequences (or which is in some other way stupid or
perhaps merely disliked by critics).”41 Thus, in cases belonging to the
penumbra, justice or morality and law intersect in a way not allowed for
by utilitarian theory. The qualifications on utilitarianism that he pro-
poses, Hart believes, can save the reality of rules of law while allowing
for the truth that inspires some jurists to disown them.
But in saving the reality of rules of law by distinguishing between a
“core” and a “penumbra,” Hart has failed to provide a genuine alternative
to Realism. He assumes that rules of law can sometimes produce a certainty
that they can never produce. Cases that appear to belong to the “core” are
not logically different from cases in the “penumbra;” they are merely less
likely to be highly disputable. At the same time Hart unwittingly joins the
Realists in denying the possibility of separating the powers of judge and
legislator when he permits judges to decide cases in the penumbra in terms
of what they consider desirable social consequences; then it becomes true,
as the Realists argued, that a man cannot know what the law is until his
case has been decided.

40
H. L. A. Hart, “Positivism and the Separation of Law and Morals,” Harvard Law Review
71 (November 1958): 607.
41
Ibid., 610“11.
216 The significance of rules

Nor is Hart™s notion of “validity,” for all its superiority to Kelsen™s,
competent to explain why rules of law are obligatory. Here again Hart is
handicapped by his allegiance to a positivist epistemology that has no way
of accounting for abstract ideas that cannot be traced to sense percep-
tions. This allegiance to a positivist epistemology prevents Hart from
admitting to his understanding of law the only idea that could solve the
problem that concerns him “ the concept of authority.
“Indeed, law™s validity falls short in making it obligatory for several
reasons.” Hart argues that if a law is “valid,” observing it is obligatory.
But to say that a valid law is obligatory does not indicate why it is
obligatory. The concept of validity only pushes the question back onto
a prior or higher law “ this law should be obeyed because it conforms to
other laws. That, however, leads to an infinite regress, and the real
difficulty persists at every stage of the regress. The real question raised
by making “validity” the source of legal obligation is: Why should I obey
any law that has consequences that I consider undesirable?
The question can be rendered irrelevant only if we take the view that a
law can be shown to be desirable by a demonstration from indubitable
premises. Then the desirability of the law becomes a necessarily true
conclusion that is irresistible to any rational creature. Indeed, after such
a demonstration it would be superfluous to say that a law is obligatory
because a man cannot be obliged to accept what he necessarily cannot
reject (though perhaps a law might still be “obligatory” for human beings
who are not perfectly rational and prevented by their passions from
recognizing rational necessity). The Realists replace obligation with social
necessity. If men must adjust to or change social reality in order to
survive, and if a judicial decision attuned to social needs indicates what
is necessary to achieve this result, then men who wish to survive are
obliged to obey the orders enabling them to do so. Thus, the Realists
make practical rather than rational necessity the ground for accepting
the law.
If, furthermore, a political association is not thought of as an associ-
ation of individual human beings, but as an organism of which the
members constitute organs, as many Realists suggest, all questions about
the obligation to observe the law become irrelevant. For these questions
arise from the supposition that the purpose of a political association is to
promote the well-being of its members, individually considered. This is
what gives its members the right to ask: Why should I obey a law? But if
the end of a political association is independent of the ends of its
members, then the latter have no rights; they can but serve and suffer.
Then all questions concerning the validity of laws belong to the world of
fantasy and need concern no one.
Edward Levi, Hans Kelsen, H. L. A. Hart 217
But if laws are intended to regulate the behavior of persons as individ-
uals, and if no law can be shown to be necessarily desirable, then even
good and wise men may deny the desirability of any particular legal
prescription. Then the question arises: Why should I obey a law that I
consider undesirable? Hart answers this question by asserting that a law
must be obeyed when it is made in a certain fashion that renders it
“valid,” regardless of whether it is desirable in content. To say that the
concept of validity is central to the law does not, however, explain why a
valid law that is not desirable is nevertheless necessarily obligatory.
Where does this necessity come from? It is put there by lawmakers
observing the prescribed procedures. But if the lawmakers™ acts cannot
claim the sanction of a divine or eternal law, what obliges people to
recognize this man-made necessity? The only answer is that the lawmakers
have been given the authority to make rules obligatory. It is this idea of
authority that is missing from Hart™s account. Though he speaks of
secondary rules giving an “authority to legislate,”42 he does not explain
why the authority of law is independent of the justice of its content. This
lacuna in the response to the Realist attack was fully exploited by jurists
who were bent on repudiating altogether the traditional idea of law.
Yet in his famous debate with Lon L. Fuller43 about whether a law duly
promulgated in Nazi Germany could be considered a valid law, Hart
defended something like the Hobbesian concept of authority. Fuller
took the modern natural law view “ which differs from that of Aquinas
“ that an unjust law cannot be a valid law. Hart™s reply, that the German
law at issue was valid even though iniquitous, was taken by some of
his critics to signify that he considered any question about the justice of
law to be irrelevant for deciding whether to observe it. That was not
Hart™s view. But Hart could not adequately rebut his critics because he
had not addressed the question of why we need or value a legal system.
Only by answering this question could Hart have given a satisfactory
explanation of why the law as it is should be distinguished from what
the law ought to be, and why insisting on this distinction, far from
denying that law is a moral institution subject to a variety of moral
judgments, is intrinsic to the moral quality of law. In other words, what
is missing from Hart™s account is an account of why distinguishing law™s
authority from its justice follows from recognizing why the rule of law is
a desirable or just institution.

42
Hart, Concept of Law, 57.
43
Hart, “Positivism and the Separation of Law,” 593“629; Lon L. Fuller, “Positivism and
Fidelity to the Law “ A Reply to Professor Hart,” Harvard Law Review 71 (November
1958): 630“72.
218 The significance of rules

Moreover, Hart contributed to the further development of the tendency
in Realism that he opposed by his distinction between the law™s “core”
and “penumbra.” This distinction was designed to explain the uncertainty
of adjudication. But instead it suggested that if there is any uncertainty
about how to interpret a rule, then the rule is an illusion. This suggestion
has been implicit in all modern reflections on law, which nowhere differ-
entiate, as Aristotle and Aquinas did, between the logic of theoretical
reasoning and the logic of practical reasoning. Only on the basis of this
distinction “ because it explains how judicial decisions can be rational and
yet yield conclusions that may be rationally disputed “ can the Realists be
adequately answered. But Hart™s positivist epistemology can no more
than Kelsen™s provide any ground for differentiating theoretical from
practical reasoning. Instead, Hart™s distinction between the “core” and
the “penumbra” of law opened the way to an all-out attack on Hart™s
central contention that “law essentially comprises rules.”44 A new defense
of this contention, based on a broader understanding of the concept of
law, has most recently been undertaken by the advocates of law™s “for-
formalism,” led by Robert S. Summers.45 But this defense of law™s for-
malism was provoked by a more direct and destructive attack on the idea
of law than that of Realism.

44
Neil MacCormick, H. L. A. Hart (London: Arnold, 1981), 26.
45
Cf. P. A. Atiyah and R. S. Summers, Form and Substance in Anglo-American Law
(Oxford: Clarendon, 1987); R. S. Summers, “The Formal Character of Law,” Cambridge
Law Journal 51 (July 1992): 242“62; Joseph Raz, Practical Reason and Norms (London:
Hutchinson, 1975); Joseph Raz, The Authority of Law (Oxford: Clarendon, 1983); Raz,
The Concept of a Legal System (Oxford: Clarendon, 1970).
Part V

The idea of law repudiated
12
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _Marxist______________________ _ _ theories___________________________________________________________________________________________________________



Although the lengthy history of law™s study has produced many different
questions and many different answers, until the nineteenth century there
was agreement on two points: First, that law is a way of ordering com-
munal relations that must be chosen and can be rejected by those subject
to it; and second, that law is superior to other forms of regulation. Both
points have been denied by Marxist writers on law.
Just how the Marxist view influenced subsequent developments in
the philosophy of law is not immediately obvious. Echoes and intimations
of Marxist ideas appear in later writers. But whether they were directly
derived from Marx remains to be established. The Realists, who contri-
buted to the repudiation of the idea of law, do not explicitly draw on
Marx and were not known to be Marxists. Direct acknowledgments
to Marxism in the philosophy of law became noticeable only after mid-
twentieth century, in Critical Legalism and Feminist Jurisprudence. But
however Marxism affected attitudes towards law, it is an important part
of this history because it so clearly highlights the postulates of the idea of
law that have been definitely rejected by others subsequently.
The rejection of law rests on the Marxist definition of man as a
“species-being.” When Marx said that man is a “species-being,” he meant
that individual human beings are manifestations of the human species in
the same way as leaves are manifestations of the life of the tree on which
they hang. Or, as Marx put it: “The individual is the social being. . . The
individual and the species-life of man are not different, although, neces-
sarily, the mode of existence of individual life is a more particular or a
more general mode of species-life or the species-life is a more particular
or more general individual life.”1 Just as leaves exist to enable the tree to
survive, so men and women exist to perpetuate the human species. Just as
leaves on a tree are united by the dependence on the stems and branches


1
Karl Marx, Economic and Philosophical Manuscripts, in Karl Marx: Early Texts, trans.
and ed. D. McClellan (Oxford: Blackwell, 1971), 150“51.

221
222 The idea of law repudiated

from which they grow, so human beings are held together by “natural
necessity,”2 that is to say, by the relations that they develop in the course
of their efforts to produce what they need to survive. These relations are
not chosen by men but imposed upon them by the conditions of their
productive activity: “. . . men create and produce their communal nature
by their natural action, they produce their social being which is no
abstract, universal power over against single individuals, but the nature
of each individual, his own activity, his own life, his own enjoyment, his
own wealth. Therefore this true communal nature does not originate
in reflection, it takes shape through the need and egoism of individuals,
i.e., it is produced directly by the effect of their being. It is not dependent
on man whether this communal being exists or not. . .”3
In other words, the conception of man as a “species-being” presupposes
that what distinguishes human beings from animals is their capacity for
“labor” or “production,” which is the power to transform nature rather
than merely to use what is given as animals do. Although “labor” is the
activity of making goods needed for the survival of the species, it also
enables human beings to give real expression to their personality because
it embodies their activity in concrete objects that are “visible to the
senses.”4 Whether productive activity is the essence of humanity is no
more disputable than whether human beings are part of the human
species. But if men cannot choose whether to engage in productive activ-
ity, they can be more or less self-conscious about how their lives are
shaped by the productive activities in which they engage. Greater self-
consciousness cannot, however, alter these productive activities. For these
productive activities have a natural, given pattern of development that
unfolds over time and are therefore part of a “process.”
The fundamental relationship between human beings which determines
all others is that in which they seek the satisfaction of their substantive
needs: that is, a relationship of work, or an association in a productive
enterprise governed by some particular mode of production. In respect
¨
of this relationship human beings are said to compose burgerliche
Gesellschaften. These are not necessarily bourgeois societies, which clas-
sification denotes a particular corrupt “mode of production”; nor are
they, properly speaking, civil societies, which are associations in terms
of non-instrumental legal conditions. They are local associations for the


2
Karl Marx and Frederick Engels, The Holy Family, or Critique of Critical Criticism, in
Karl Marx, Frederick Engels: Collected Works, trans. Jack Cohen et al. (London:
Lawrence and Wishart, 1975), IV:120.
3
Marx, “On James Mill,” in Karl Marx: Early Texts, 194.
4
Ibid., 202“03.
Marxist theories 223
satisfaction of common or reciprocal needs. Thus, human beings are not,
as they sometimes imagine themselves to be, primarily related in terms of
some moral or legal or “political” conditions; these, where they exist, are
secondary and derivative considerations. It is sheer superstition, Marx
writes, to think (as some still do) that productive association must be held
together by legal and political conditions (“the state”); on the contrary, a
“state,” when it exists, is held together by the considerations of productive
enterprise.5
The Marxist view of man accordingly denies that all human beings have
an independent destiny that they choose for themselves and seek to
achieve. It denies that individuals may choose to associate with one
another in different ways: all such differences are illusory. And it denies
the possibility of any form of association that is not, or is not determined
by, an engagement to satisfy needs. Thus, whereas Aristotle distinguished
a polis as an association in terms of moral considerations (“the good
life”) and thought it to be a superior form of association to that of a
tribe or a household because it was (not like them) concerned with
something higher than the satisfaction of economic needs, for Marx
“communist” association was superior to tribal or household association
only in respect of its superiority as a productive enterprise. And this
superiority derived from its conscious, express, and exclusive recognition
of the “species-being” of its members reflected in a “mode of production”
appropriate to their alleged characters.
All the distinctions that pervade bourgeois society “ between the various
aspects of production, between production and distribution, between
public and private, between one nation and another “ are attributed by
Marx to what he calls “the division of labor.” He charged the division of
labor with producing a “fragmentation of productive forces,” with giving
labor the illusory character of being only one among many possible
activities, and with preventing individuals from recognizing their labor
as the activity that unites them to other men and enables them to express
their humanity. That is why, he explained, the division of labor, and the
private property associated with it, gives rise to alienation, which is the
illusion in human beings that they have or can have independent, private
purposes.6 For whenever production becomes geared to consumption, to
satisfying private desires, it is no longer a “species-activity.” The transla-
tion of the value of goods into money and the buying and selling in the


5
Marx and Engels, Holy Family, 120“21.
6
Karl Marx, The German Ideology, trans. Jack Cohen et al. (Moscow: Progress, 1976),
94“96.
224 The idea of law repudiated

market directed to satisfying consumption are “alienating” arrangements
because they distract man from seeing himself as a producing being,
whose nature is fulfilled by laboring for the maintenance of the species
and not for the satisfaction of private wants.
One of the worst illusions fostered by alienation is the idea that freedom
consists in the unhindered pursuit of private satisfactions. Real freedom,
Marx argues, consists in emancipation from all distinctions so that indi-
viduals have, and can recognize themselves as having, only one sort of
relationship, that of producers who spontaneously work together to
satisfy their needs as parts of the human species and are not tempted by
the illusion of private claims: “Only when the real, individual man re-
absorbs in himself the abstract citizen, and as an individual human being
has become a species-being in his everyday life, in his particular work, and
in his particular situation, only when man has recognised and organised
his forces propres as social forces, and consequently no longer separates
social power from himself in the shape of political power, only then will
human emancipation have been accomplished.”7 The abolition of private
property and the division of labor becomes possible once the organiza-
tion of production develops to such “a degree of universality that private
property and division of labor become fetters. . . .”8 Once “the total
productive forces” are appropriated by “the united individuals” and all
distinctions are obliterated, the intercourse of individuals will become
“the intercourse of individuals as such,” and a person™s particular way
of gaining his livelihood will “become accidental” because it will have no
effect on his life.9 That is why the only society in which the genuine and
free development of individuals ceases to be a mere phrase is communist
society, where individual development is determined not by the separation
but by “the connection of individuals, a connection which consists partly
in the economic prerequisites and partly in the necessary solidarity of the
free development of all, and, finally, in the universal character of the
activity of individuals on the basis of the existing productive forces.” This
will bring about a complete change in the individuals™ consciousness of
their mutual relations. Love will become as irrelevant as egoism. All
relations will be derived from “the concept of man.”10
Marx held this view of human progress because he understood the
relation of the human world to nature very differently than his predeces-
sors. Whereas they considered the human world to be fundamentally

7
Karl Marx, “On the Jewish Question,” in Karl Marx, Frederick Engels: Collected Works,
III:168.
8 9
Marx, Ideology, 464. Ibid., 97.
10
Ibid., 465, 454“55.
Marxist theories 225
different from the natural world (in the sense of physical and biological
nature), Marx taught that what goes on in the human world is merely a
reflection of what is given by nature. He thereby made it impossible to
think of law as a way of ordering human relations that can be chosen or
rejected by human beings because his view of the relation between the
human world and nature denies that human beings can make of their
experience what they choose. Nevertheless, Marx and Engels and their
disciples have acknowledged that there is in European civilization a
phenomenon such as law, that is to say, a set of authentically recorded
rules, which are made by human beings and subject to being changed
by them, for the regulation of communal life. And they have made
various attempts to explain this phenomenon in accordance with Marxist
doctrine.
Marx and Engels themselves devoted relatively little attention to law
as such. Marx concentrated on denouncing the illusion that law is a
human invention, or, as he put it, a matter of “mere will.” Jurists tell
us, he says, that individuals can choose to enter into relations with others
through making contracts and that the content of these relations rests
“purely on the individual free will of contracting parties.” But in fact
neither the general nor the private will can determine the existence of
property, and legal titles as such are meaningless, for the legal owner who
cannot command the capital to cultivate his land really “owns nothing as
a landed proprietor.”11 The true nature of law can be grasped only by
recognizing its connection with the state.
Because the ruling class asserts itself by setting up the institutions that
constitute the state, it is supposed that law rests on will, “indeed on the
will divorced from its real basis “ on free will.” But in reality the law, like
all political institutions, is an instrument through which the ruling class
exercises its power to satisfy its interests. What the bourgeoisie describe as
the freedom to make legal arrangements is only the reflection of the forms
of intercourse in production at any particular time. Nor does the belief
that law presupposes equality, a belief fostered by the ruling class, corres-
pond to any reality because law arises from the dominance of one class
over others. Although law makes it possible for the “personal rule” of the
dominant class to “assume the form of average rule,” law is nothing but
the expression of the will, that is to say, the common interests of the ruling
class.12 But it is as wrong to blame the bourgeoisie for this, Marx warns, as
to credit them with the development of law, for that, like everything else


11
Ibid., 100“01.
12
Ibid., 99, 348.
226 The idea of law repudiated

in the human world, is determined by the conditions of production. The
fact that the will of the ruling class is enforced in the form of law, and
thereby made “independent of the personal arbitrariness of each individ-
ual among them,” no more depends on their “idealistic will” or their
“arbitrary decision” than does the weight of their bodies.13 The idea that
law is a human invention is just one of the errors propagated by Enlight-
enment scholars, who had not yet acquired the science that could have
enabled them to account for the forms of human relationships. They

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