2. Is Law’s Moral Risk Internal and Distinctive?

LMR must first be distinguished from another more common thesis, which, following Green, we may call the ‘fallibility thesis’.⁸ According to the fallibility thesis, there is no guarantee that considered individually or evaluated as a system overall, laws or ‘the law’ will necessarily produce overall morally positive results in each and every particular instance. The problem is that the fallibility thesis, although true, is trivial. Natural lawyers need not deny it and positivists have no patent on it. LMR must mean more than this. In order to be morally significant, we require an internal and distinctive connection between law and morality, or, as in the case under examination, between law and immorality.⁹ What does this mean?

First, we are looking for intrinsic defects rather than extrinsic costs, evaluating law by its formal structure—established through conceptual analysis to be part of law’s nature—not by its results (or ‘output legitimacy’ as political scientists might put it). This is what it means to speak of law’s inner immorality. It does not of course mean that, on balance, it is better not to have law: the gains of law may still outweigh the costs.¹⁰ Nor does it entail the philosophical anarchist’s argument that law’s authority is necessarily incompatible with our moral autonomy and can therefore never be legitimate.¹¹ But if LMR does signify more than that there is a risk of ending up with immoral laws or immoral legal systems; it signifies that all legal systems qua systems of governance are liable to alienate because of the way that they are internally structured. In line with a methodology of conceptual analysis it is not enough, in other words, to point to instances where laws are immoral, or where subjects in legal societies are alienated from their norms. The task is more onerous, by supposing a strong sense of what it means to speak conceptually of law, since ‘to grasp the concept of law is to grasp what cannot fail to be true of law, whenever or wherever it turns up’.¹²

LMR must also establish a vice that is in some sense distinctive, if not unique, to the legal world. Otherwise, in answer to the claim that ‘law is morally risky’ the temptation would be to reply, ‘sure, but so is not having law. So is any form of governance or method of social organisation’. Any method of social organization or type of social regime that regulates our conduct is necessarily morally risky in one sense: it might prescribe immoral conduct, or proscribe morally beneficent (or merely harmless) conduct. The law might constitute and help to maintain an illicit authority or prop up an odious regime. But even if law can present the odious regime with a tool for imposing its will in a more efficient manner it is not law as such which makes that regime odious, but the odious actions of its rulers.¹³ How then is this point different from the first, that law is internally morally risky? What we require here is a sense in which law is morally risky in a way that not having law (or having a different type of governance) is not morally risky; otherwise the argument is liable to be trivial: it would pertain, internally, to any form of social order. What is special about the law as a form a social order that makes it distinctively, if not uniquely, morally risky?

There are two dimensions to Green’s argument that law has an internal and distinctive moral vice: the tendency to over-value legality at the expense of other virtues and the alienation of life from law.¹⁴ We will deal briefly with the first, because the over-valuation of legality is not a vice of legality, still less of law, but of those who over-value it. Whilst the ‘nature’ of something in conjunction with certain facts about human nature might cause us to over-value it (precisely, perhaps, because it does have some value) its over-valuation is not inherent in its nature, only, perhaps, in ours. This brief response does suggest a further line of enquiry. What is it about our relationship with the law that tends towards us over-valuing its virtues and what precisely are the other virtues that get neglected as a result? The suggestion might be that the vice of legalism speaks to a certain aspect of our human nature, which is to turn away from our social responsibilities and towards a private sphere of personal freedom. In the modern legal world we become overly reliant on law as providing a formalized mechanism for resolving problems that could be better tackled by engaging our other-regarding social sensibilities. We will return to this suggestion later.

The second argument, the alienation of life from law, is more complex and problematic. As it stands it seems incoherent or at least incomplete. Since law is not life, without law, of course life could not be alienated from it. Law must facilitate our alienation from some other aspect of human life, namely, social norms. In contrast to the simple system of primary rules alone, ‘[w]ith the emergence of law… people are also regulated by norms that meet officials’ criteria of validity and are enforced by specialised agencies.’ As a result of this ‘division of labour’ people can be alienated ‘from the most important rules that govern their lives – rules that threaten to become remote, technical, and arcane’.¹⁵

The claim that law risks becoming a specialized and institutionalized system of norms, managed by an official class who are removed from the ordinary folk recalls Weber and Marx, Tocqueville and Dickens.¹⁶ But compared to Marx or Weber, Tocqueville or Dickens, whilst they too might have taught us that legality can degenerate into the vices of legalism (including the risk of alienation), what makes for Hart’s originality, Green suggests, is that he identified the specific contribution of the nature of law to this degeneration.

The claim under examination is therefore a theoretically ambitious one. It is not just a specific aspect of law, such as the regulation of property rights or labour relations—or a specific social-historical period, such as the rise of modern capitalism and the modern State—that alienates man. It is law as such. What then is it about the nature of law in Hart’s account that suggests the truth of LMR? [T]he step from the simple form of society, where primary rules of obligation are the only means of social control, into the legal world with its centrally organised legislature, courts, officials, and sanctions brings with it solid gains at a certain cost. The gains are those of adaptability to change, certainty, and efficiency, and these are immense; the cost is the risk that the centrally organised power may well be used for the oppression of numbers with whose support it can dispense, in a way that the simpler regime of primary rules could not. Because this risk has materialised and may do so again, the claim that there is some further way in which law must conform to morals beyond that which we have exhibited as the minimum content of Natural law, needs very careful scrutiny.¹⁷

No mere conceptual analysis here for sure; rather a synthetic, historical reflection. For Hart, law’s ambivalence is demonstrated by social facts; history tells us to be sceptical of any alleged necessary connection between law and morality. But might this suggest instead that there is a conceptual connection between law and immorality?¹⁸ Even though the cost is described in terms of a risk and is therefore contingent, is it a risk that is necessary and intrinsic to the law, existing irrespective of the uses to which the law is put? Just as there are perhaps non-instrumental (or not purely instrumental) gains of legal order, which Hart overlooks,¹⁹ there may also be non-instrumental losses, and this is what Green’s account in support of LMR instructively flags up. How are we to describe these losses?

The centrally organized legal regime, with its legislature, courts, officials and sanctions, can oppress in a new way: it can alienate its subjects because its rules need not be widely accepted for its authority to prevail. Only its rule of recognition need be accepted, and then only by legal officials.²⁰ Law is a distinctively official practice and it is this aspect of the legal world that constitutes its ‘inner immorality’. As Hart himself argues, the consequences of the ‘officialization’ of our social normative order could well be devastating. The society in which acceptance of the legal system is restricted to an official class might not only be ‘deplorably sheeplike’ but the sheep might well all end up ‘in the slaughterhouse’.²¹ Citing this passage is a powerful way of responding to Fuller’s claim that the Hartian positivist advances a ‘managerialist’ conception of law.²² Fuller is half right. In Hart’s view, law is managerialist, but a failure to be aware of this aspect of the nature of law is a failure to be aware of an important and sobering social reality.

Yet since Hart does no more than hint at any ‘speculative legal sociology’,²³ we seem to be left with the bare claim that law vitiates the need for widespread acceptance because an official class alone can maintain the legal society and its normative order. In other words, because of the features of the legal regime (as identified by Hart), law is sustainable in the absence of general social acceptance. The contrast to this potentially widespread passivity of subjects in the legal world lies in the fact that active acceptance of social norms would have to be widely disseminated in the pre-legal world. A social system that doesn’t have law, specifically a regime of primary rules alone, is not sustainable in the way that a legal regime is. LMR is a conceptual argument, because the risk of alienation is presented as one that ‘cannot exist without law and exists whenever and wherever there is law’.²⁴ There is more to Green’s argument than this. But let us suppose for the moment that in essence, that is it. To what extent is it supported by Hart’s concept of law?

3. Hart’s Law: A Social or An Official Practice?

At first glance the claim that Hart’s account identifies law as an official practice might appear surprising. After all, Hart’s most significant contribution to legal philosophy is often thought to be his account of law as a social practice, the normative aspect of which makes it irreducible to merely habitual obedience to the commands of a sovereign. It is a practice that can only be properly understood once we grasp the viewpoint of participants who are oriented towards the law, the ‘internal point of view’.²⁵ In this way, legal normativity is explained (if not justified) on the basis of the internal aspect of social rules and the difference between following a rule and conforming to a habit. Whilst both demonstrate regularity of behaviour, rule-following is coupled in a way a mere habit is not with the adoption of an internal point of view towards the behaviour in question. This means that some regard it as a standard, non-conformity with which invites criticism that is perceived (by some at least) to be justified criticism. Some, in other words, accept the behaviour as a social practice.²⁶

This internal aspect of social rules should be considered conceptual and context-independent, both in time and in space: wherever there is society there are social rules and wherever there are social rules there are some (a majority or unusually powerful minority) who adopt the internal point of view towards those rules. In any given context, how many need to adopt this point of view for the society to thrive, or even just to survive, is unclear from Hart’s account. It is perhaps contingent on factors such as the spread of social resources and political and ideological power, the extent of inequalities and so on. In order to illustrate the distinct nature of the society with a legal system, however, with its power-conferring rules and the rule of recognition, Hart develops a distinction between simple and modern society. The nature of this distinction is not at all self-evident; but whether it is quasi-historical, a fable, metaphorical, or a simple thought-experiment,²⁷ what is clear is that, with its introduction—which at the very least implies an evolutionary ‘before’ and ‘after’ (for one thing, Hart uses pre-legal and legal, rather than non-legal and legal),²⁸—the socialized aspect of the internal point of view is revealed to be contingent. Whereas in the simple society of primary rules alone, the rules are considered normative in virtue of a practice of general acceptance, the modern legal world with its union of primary and secondary rules and rule of recognition is sustained (or rather is sustainable) in virtue of a practice of official acceptance alone.²⁹ There are therefore two minimum conditions necessary and sufficient for the existence of a legal system. On the one hand, those rules of behaviour which are valid according to the system’s ultimate criteria of validity must be generally obeyed, and on the other hand, its rules of recognition specifying the criteria of legal validity and its rules of change and adjudication must be effectively accepted as common public standards of official behaviour by its officials.³⁰

The difference between a system being sustained and being sustainable by official acceptance is of course great. Whether the legal regime is actually sustained in this way in any given society, or even in all known societies, remains an empirical question.³¹ The problem is that Hart is ambiguous on how much acceptance amongst the population represents the ‘central case’ of the legal regime.³² On the one hand, he suggests that official acceptance alone is an ‘extreme’ case and that in a ‘healthy’ society subjects too will often accept the rules or even more generally the constitution behind them.³³ To assert that there is a legal system in England, Hart says in an earlier essay, ‘does entail that there is in fact general acceptance of a fundamental rule such as the rule that what the Queen enacts in Parliament is law’.³⁴

On the other hand, Hart says of the ‘Janus-face of law’, that it looks ‘towards obedience by ordinary citizens and acceptance by officials’ (of secondary rules as critical common standards of behaviour) and that acceptance ‘may be split off from the relatively passive matter of the ordinary individual acquiescing in the rules by obeying them for his part alone’.³⁵ Hart also insists that the ‘reality of the situation in the modern state is that a great proportion of ordinary citizens, perhaps a majority – have no general conception of the legal structure or of its criteria of validity’.³⁶ The relatively active aspect of acceptance ‘is seen primarily, though not exclusively in the law-making, law-identifying and law-applying operations of officials or experts of the system’.³⁷ Whilst general social acceptance of the legal system is not therefore conceptually precluded, it is a state of affairs that the legal world can hardly be said to embrace. One might well conclude that the central case of law is an official case of law. But even if the emergence of specialized legal dominion and an uninvolved general population has an air of inevitability about it, we are not told any more than that this scenario has actually materialized in some unspecified historical situations.

Presented merely with the new possibility in the legal world that officials alone adopt an internal point of view—not with its actuality, eventuality or even its likelihood—we have no more to play with than the following: in the simple society, by contrast to the legal world, it would be impossible for more than a minority of those subject to the rules not to accept them: In the simpler structure [of primary rules alone], since there are no officials, the rules must be widely accepted as setting critical standards for the behaviour of the group. If there, the internal point of view is not widely disseminated there could not logically be any rules.³⁸

Such a society, living by a regime of unofficial rules, would have to be ‘a small community closely knit by ties of kinship, common sentiment, and belief, and placed in a stable environment’.³⁹ In the legal world, which, we can assume, is large, anonymous and disenchanted, the ‘some’ that must accept the rules is drastically reduced in number. The legal system thus enables or at least facilitates power to be wielded by the few over the many in a way that is not possible in the simple regime. This raises an obvious question. Why does the legal regime require only acceptance by its officials; how does its authority survive such minimalism? One answer might be the distinctive presence of sovereignty and centrally organized coercion, but then the distance Hart puts between himself and the classical positivism of Austin is lost. Sovereignty and coercion are not, for Hart, the defining marks of the legal world.

Conversely, why does the simple society require general acceptance (or ‘wide dissemination’ of the internal point of view) and not merely obedience to the set of primary customary norms? General patterns of conforming behaviour are a minimal pre-requisite for the existence of any rule-based system (like Kelsen’s notion of ‘effectiveness’ as a condition of validity of the legal system).⁴⁰ But if there is only unreflective obedience or conformity to certain patterns of behaviour then there are no norms or rules in the society, only habits. Whether a collection of human beings that interacts in that manner alone, assuming it has existed, is properly called a ‘society’ is doubtful. But why, as a matter of ‘logic’, does a normative approach towards social rules need to be widespread, to exist for the majority in the simple society of primary rules alone? Surely a well-positioned minority, who tend to the norms, without fully fledged secondary rules and a complete legal system, would suffice.⁴¹ It is of course difficult to distinguish the situation in which a small subset in the simple society accept and actively tend to the social norms amidst widespread passivity of the general population, from the legal world with secondary rules and official-dominated practice. In one sense, it is difficult to imagine any society surviving for long without secondary rules and certain persons with at least quasi-official capacities. But the difficulty in drawing the line between a simple society with a powerful minority and the complex legal world with its official minority suggests that the difference between simple and complex should not be relied upon to do too much work in supporting an ambitious theoretical claim such as LMR.⁴²

The ‘fictional’ society of Rex, which we may imagine as an intermediary step between simple and complex societies, illustrates the problem with any general thesis such as LMR.⁴³ Rex’s society, unlike the simple society of customary rules, does have an explicit authority structure, with secondary rules and officials who identify, apply and enforce Rex’s word as law. Formally, it is like the modern legal world. The difference between Rex’s society and the legal world is only a matter of degree, the constitution and rule of recognition being far simpler in Rex’s world than, for example, in the modern state.

When turning to this imaginary society, Hart himself notes that both officials and citizens might well accept the rule of recognition specifying Rex’s word as the criterion of valid law for the whole society. The ‘constitution’ is so simple in this case that we can expect even ordinary citizens to have knowledge of and accept it.⁴⁴ Would we say that Rex’s citizens are non-alienated, simply because they accept a rule granting him a relatively unlimited authority to legislate over them, irrespective of their manner of and reasons for acceptance of such a rule? Perhaps they accept the tradition that Rex (and his successors) are divinely chosen and have the divine right to rule. At the very least, this possibility must lead us to doubt whether widespread acceptance can be said to preclude the vice of alienation, if acceptance is given no further specification.

We need to know more about the nature of acceptance in order to make the connection with alienation. In other words, in order to move from the claim that the legal society may, whereas the pre-legal society may not, be sustained in the absence of social acceptance of its social rules to the claim that the legal society may, whereas the pre-legal society may not, be alienated from its social norms, we need to know precisely what acceptance means.⁴⁵

The point is not that the presence of law—and with it an authority, or authorities, that are capable of making social rules in a relatively deliberate manner (eg through procedures of legislative enactment and judicial precedent)—fails to pose any moral risks. It is only that in order to characterize the legal regime as one that is endemically liable to alienate its subjects because of its nature—ie on the sole basis that the subjects need not accept the legal system for that system to survive—acceptance must be investigated more thoroughly. It is instructive to turn the argument around in order to continue. If what is distinctively alienating about the legal regime is the possibility of non-acceptance, then the contrasting necessity of acceptance in the pre-legal regime must render alienation in that regime impossible. Otherwise the risk of alienation is common to both regimes and there is nothing distinctively morally risky about the law (at least in terms of LMR). In other words, the claim that the possibility of non-acceptance creates the risk of alienation must entail that acceptance (or the impossibility of non-acceptance) negates the risk of alienation. Is the subject who accepts social norms necessarily non-alienated? This is far from clear.

4. What Does It Mean to Accept A Social Norm?

We know from Hart’s critique of Austin that in order to reflect the normativity of law, acceptance must constitute more than merely habitual obedience or conformity towards a pattern of behaviour based on self-interested avoidance of a prospective sanction for non-compliance.⁴⁶ But this still falls short of establishing a link between acceptance and non-alienation. One problem in attempting to forge this link is that Hart uses two different versions of acceptance, which are rarely disambiguated by commentators, and Hart himself fails properly to distinguish them. Let us call them the ‘weak’ and the ‘strong’ version.⁴⁷ In the stronger sense, acceptance means adoption of a critical reflective attitude or internal point of view towards a particular social practice. In the weak sense, which Hart most often utilizes, acceptance simply means endorsement, for any or no reason whatsoever.⁴⁸ Allegiance to authority, Hart explains, may be based on ‘calculations of long-term interest; disinterested interest in others; an unreflecting inherited or traditional attitude; or the mere wish to do as others do’.⁴⁹

This weak sense of acceptance holds as much for officials and judges, the class of relevant ‘acceptors’ for the purposes of satisfying the existence-conditions of a legal regime. Focusing on the attitude of the judge in applying or using a rule of recognition in order to assert some source of law as authoritative in a particular dispute, Hart says: individual judges may explain or justify their acceptance of the legislator's enactments by saying that they simply wish to continue in an established practice or that they had sworn on taking office to continue it or that they had tacitly agreed to do so by accepting the office of judge. All this would be compatible with judges either having no belief at all concerning the moral legitimacy of the legislature or even with believing that it had none.⁵⁰

To be sure, as others have argued, Hart’s account elides any sense in which law genuinely conditions our judgements of practical reason. A judicial practice of recognition, ‘whether idiosyncratic, widespread, or universal’, Finnis observes, ‘provides by itself no reason for its own continuation’.⁵¹ Even a commitment to continue in an established practice, settles nothing about what one has sufficient reason to do, ‘about what is to be done’.⁵² Yet despite Hart’s own expressed state of confusion on the point,⁵³ he insists that a weak endorsement of the rule of recognition is enough; it is, he says, reverting to shallow sociological observation, simply more ‘realistic’ than the alternative.⁵⁴

It is undoubtedly the case that if one is looking for an account of law’s normativity that explains its genuine ‘reason-giving’ quality, one is bound to be disappointed by Hart’s concept of law.⁵⁵ Hart’s own doubts about the objectivity of practical reason, and his apparent moral non-cognitivism, have been well-documented elsewhere.⁵⁶ For our purposes, however, the threshold of ‘normativity’ need not be set at the level of moral cognition; we can remain agnostic on that question because we are interested in alienation, rather than immorality per se. The question is whether Hart’s weak account of acceptance is compatible with law as a social rule-based practice that has an internal and also, as we will see shortly, a collective aspect. This problem persists irrespective of our views on the status of moral claims or the relationship between legal and moral obligation.⁵⁷ We can, in other words, criticize Hart’s weak account on his own terms.

This can be illustrated with the help of Raz’s critique of Hart’s account of judicial acceptance.⁵⁸ How can a judge, whose only reason for upholding a legal obligation against a subject is his wish to stay in office, ‘properly’ demand of that subject to act in accordance with the obligation in question, which might of course involve considerable sacrifice for the subject? It is not only that justification of the rule of recognition can not be made out on the basis Hart lays out. Nor is the problem simply one of how the judge can justify his acceptance of the legislator’s enactments. The issue is what his ruling signals in terms of the obligation it claims to impose on the legal subject.⁵⁹

Even where the judge has explicitly or implicitly vowed through taking an oath of office to impose a legislator’s wishes, at most this could justify some kind of obligation on the judge. It could not create an obligation on the part of the subject towards anyone (including the judge or the legislator).⁶⁰ As far as the subject is concerned, the relevance of the judge’s personal attitude towards the rule of recognition is hard to discern. One cannot (as judges often do) impose an obligation on another (as opposed to accept such an obligation for oneself) for reasons of self-interest. Such a prescription, as an ‘ought statement’, in order to provide a genuine reason for action, must, as Raz has argued, be in that other’s interest or for moral reasons.⁶¹ This of course is a prelude to Raz’s more general insistence that law, as a de facto authority, necessarily claims legitimate authority, which for Raz is a moral claim and one that is made through officials as the ‘mouthpieces’ of the law.⁶²

But we need not insist with Raz that judicial acceptance reflects a moral position to notice the problem with Hart’s weak formulation, which is problematic on Hart’s own terms. If a judge accepts the rule of recognition only because he has tacitly sworn to do so, or out of unreflecting inherited attitude or the mere wish to maintain his practice, he is not adopting an internal point of view or critical reflective attitude.⁶³ To adopt such a position requires critical reflection and an acceptance of the rule ‘as a standard to be followed by the group as a whole’.⁶⁴

If a social rule must be considered with critical reflection we can rule out ‘unreflecting’ adherence to tradition as insufficient to characterize genuine acceptance. If a rule must be accepted as a standard to be followed by the group as a whole, we can query purely self-interested acceptance. To accept a rule only because it is in my self-interest (short or long-term) is not to look upon it as a standard to be followed by others (ie the group as a whole), unless I assume that they too ought to pursue rules that serve my interest. If instead they accept a rule only because it is in their self-interest then, similarly, they are not looking upon it as a standard to be followed by the group as a whole. The point is not to suggest that people do not acquiesce in rules for prudential reasons, clearly they often do, perhaps most people most of the time accept rules in that weak sense. It is just that if this is the only reason for their acceptance, then the internal point of view is deficient. A rule may of course be in our collective interest, based on its propensity to serve the common good, or to reflect a principle of egalitarian justice. But if I accept a rule for the reason that it benefits the whole (or some part) of the group then I am not doing so purely out of self-interest (even if I am doing so partly).

Hart’s weak account of acceptance is therefore dubious irrespective of our position on the relationship between legal and moral obligation and the status of moral claims. As Hart himself notes in the case of judicial acceptance of the rule of recognition of the legal system: it must be considered a common, public standard, that each judge does not accept for his part only but does so as part and on behalf of a wider community, although, as we will see shortly, this ‘community’ must not be restricted (as it is in much post-Hartian positivist jurisprudence) to the community of judges.⁶⁵

The problem with Raz’s critique is that it does not go far enough. What we learn from Raz is that if a person accepts a rule he must also understand it, which includes ‘understanding what kind of reasons are logically capable of justifying its acceptance’.⁶⁶ But there is no reason in principle for this argument to be confined to the judicial acceptance of the rule of recognition. If sound, the argument can be extended to acceptance of any rule that is properly social and normative in type.⁶⁷ If social rules are also always in part collective rules, in that they raise a claim to impose duties (whether or not moral) on others in the group, then acceptance of such rules—judicial or otherwise—implies, directly or indirectly, an obligation on others. It is by developing this stronger concept of acceptance, one that involves understanding of law’s social aspect, that we will begin to reconnect the two terms of our enquiry: acceptance and alienation. In order to begin this task of reconstruction, which will be pursued more substantively in the final section, it is illustrative first to take a slight detour and examine an aspect of alienation that Hart did address, in passing, namely the alienation of the person who is unaware of the nature of their social rules. Hart’s own, albeit brief, account of social alienation helps to explain why a stronger cognitive sense of acceptance needs to be developed.

5. Alienation, Cognition and Modernity

If understood in the weak sense described above, then acceptance is no prophylactic against alienation. Even if weak acceptance of social rules were widespread—as is necessarily the case in the pre-legal regime—all the acceptors may be accepting the rules out of an unreflective response of acquiescence to tradition or the wish to continue an established practice. This in itself, is enough to dispose of the claim that law is distinctively morally risky in the sense that it is liable to alienate its subjects. We have suggested, however, that such a weak account of acceptance is defective on Hart’s own terms, as demonstrated by its incompatibility with his critical reflective attitude and internal point of view. With a stronger sense of acceptance in mind (if as yet undeveloped) we can return to the argument at hand.

Might it be the case that there is something qualitatively different between the pre-legal and legal regimes in terms of the nature of acceptance involved? Could Green’s argument be modified to suggest that the manner of acceptance that tends to follow the legal order is of a less robust type or that in the pre-legal regime acceptance has a different and stronger meaning, so that acceptance is not only ‘quantitatively’ but also ‘qualitatively’ differentiated between the two regimes? Possibly. Noting that the judge’s acceptance of the legislator’s authority is something quite different from the popular acceptance of the ‘commander’s’ words in the ‘simple society’,⁶⁸ Hart suggests that there might be a dilution of the internal point of view in the modern legal world. Conceding the objection that this equates to the ‘whittling down’ of normative order, Hart notes that the introduction of ‘specialized law-applying and law-enforcing agencies would mean the institutionalization of the recognition of the commander’s authority as now defining public standards of official adjudication and this would transform the situation’.⁶⁹ The problem is that Hart fails to explain how and in what respect these aspects of modernization transform the model of law as social order with an internal aspect.

Specialization, institutionalization and officialization are all aspects of the transition to the modern legal world that have an obvious social and political dimension, as revealed in sociological accounts of law, such as Max Weber’s.⁷⁰ The law increasingly becomes an autonomous system of norms, tended by an official elite or specialized group of staff with an impersonal authority to enforce legal norms through coercion of the general population. Pursuing this line, we might argue that subjects in modern society do become more alienated from their norms because of the increasing autonomy of the legal system and the social division of ‘normative labour’. But this could only be shown by a social-historical account of the development of law in modern society, which is much more than Hart (or many of his positivist successors) is willing to provide.

There is, however, a strong factor pointing in a different direction, towards a more demanding sense of acceptance in the modern legal world. In Weber’s account, specialization, institutionalization and officialization are tied to a broader process of modern rationalization of law (and the economy).⁷¹ This is a more general social phenomenon than suggested by Hart’s account of the transition to the legal world. The rise of the modern bureaucratic regime with a staff to enforce popular compliance points to the increasingly legal-rational basis of authority, where rational on the Weberian account signifies ‘disenchanted’. Social rules are revealed to be posited by man, rather than based on magic, revelation, the mystery of immemorial tradition or the authority of a charismatic leader. We can elucidate this element by briefly pursuing a different tack and considering a concept of alienation distinct from the one implicitly advanced by Green, one which Hart does discuss. In commenting upon the curious similarities between Bentham and Marx as social reformers, particularly in their attack on the ‘mystifications’ of the law, Hart alludes to the fact that this mystery was imposed upon the law in the self-service of those whom it benefited most: For both [Bentham and Marx] such mystery was made possible by the failure on the part of ordinary men to realise that the forms of law and human society were at bottom merely human artefacts, not natural necessities but things actually made by men, and hence things which could be unmade and remade.⁷²

For Hart, ‘alienation’ in this sense refers to the condition of those who have come to think of the legal structure not as a social and human creation but as an ‘external object’ having power over them.⁷³ This scenario is entirely consistent with general social acceptance (at least in the weak sense). For the ordinary man to overcome this form of alienation requires a certain cognitive engagement, a realization that social norms are man-made and capable of being collectively remade. This is a goal towards which both (the early) Marx and Bentham fiercely aimed and is often perceived to be a central aspect of the political and philosophical project of modernity.⁷⁴

Once social norms in the pre-legal society are seen for what they are—arbitrary human conventions—it becomes open to us to make and remake the social order according to a transparent normative and political plan.⁷⁵ It is not only that the idea of a ‘natural law’ conception of a morality that springs from nature becomes ‘antithetical’ to the framework of ‘modern secular thought’, resting on ‘old confusions from which modern thought… triumphantly free[s] itself’.⁷⁶ Modernity’s casting aside of old naturalistic confusions leads not only to an advance in clarity of thought; there are also significant social and political repercussions for our concept of authority. For one thing, there is the revolutionary potential of the modern social consciousness that emerges from the ashes of tradition, as revealed by Hart in arresting terms: [O]nly those who had been blinded by the truth that laws were human artefacts could acquiesce in these absurdities and injustices as things to be ascribed to nature; and one way of opening men’s eyes was to preach to them the simple but important doctrine that laws were but expressions of the human will. Law is something men add to the world, not find within it.⁷⁷

Armed with this concept of alienation we can see that more than acceptance qua acquiescence must be present in order to negate its possibility. Think again of Rex’s fictional subjects, who largely accept the authority of Rex, perhaps unreflectively as a result of deeply engrained traditional attitudes towards his divine right to rule, political and social inertia or the mere wish to do as others do. Institutionalization, officialization and specialization of the legal order have not yet set in. Would we consider these subjects non-alienated simply because they accept Rex’s divine right to legislate and consider his commands to be Godlike whereas they are, perhaps, merely the whims of a fickle monarch?

We can now begin to answer the question that we posed earlier. Alienation is not necessarily precluded in the society with general acceptance of its social norms because, for one thing, acceptance might be conditioned by a false belief. If we think that this belief might actually be true (in a case such as Rex’s) it is easy enough to imagine a society where acceptance is based on beliefs that are false or at the very least, come to be regarded as false by that same society. In historical terms, for example, we might explain the transition from traditional to modern society as one involving a rationalization of authority based upon the disenchantment of its origins.⁷⁸ We come, in other words, to view authority as resting on a legal-rational basis, which in Weber’s account is the distinctively modern form, grounded on a broader ideology of value positivity, the sense that values themselves are posited by man.⁷⁹

Since we may be alienated from our social norms by failing to be aware of their true nature, (weak) acceptance, rather than precluding alienation, might actually exacerbate it. A similar example could be imagined in the case of a simple regime of primary rules alone. There, the nature of the authority of the customary regime is difficult to establish because it remains largely indistinct from the customs themselves, but perhaps authority there is opaque in contrast to the modern legal regime with its relatively transparent, if complex, structure of legislative and judicial authority.⁸⁰ A different form of alienation might therefore be avoided in the modern legal regime, namely alienation from the man-made nature of our social norms, with the realization—as the young Marx put it in his critique of Hegel’s mysterious Geist as the embodiment of the national constitution—that ‘democracy is the resolved mystery of all constitutions’.⁸¹ For Weber too, the possibility of rationalization of authority as based on posited or ‘enacted’ law was crucial to the process of modernization, even if in practice, modern man is often more removed from his social tools than primitive man.⁸² This transformation, assuming it to be accurate, has little to do with the changing nature of law and everything to do with the transformation in our self-understanding as social and political animals.

We need not even assume that social norms are necessarily man-made to see the point. To the extent that we think they are not, and that, for example, they are divinely created or imposed by a transcendental reason, we could argue that modern secular society is alienated from the theological or transcendental nature of its normative order. The example is only meant to demonstrate that neither Rex’s subjects nor those of the customary regime, nor citizens in modern society are fully engaged with their social norms merely because they happen to accept them, at least if all we have at our disposal is a weak sense of acceptance. In order to contrast acceptance to alienation we need a richer notion of acceptance, which implies cognition of law’s normative and collective aspect.⁸³ The task now is to explain how this stronger case of acceptance should be understood and reconceived.

6. Acceptance as A Critical and Reflective Attitude

We have already seen how an internal point of view or critical reflective attitude is stronger than a weak sense of acceptance in at least two ways. First, it rules out acceptance based on unreflective response. Second, because of the collective aspect of social rules, acceptance of a rule is not just for oneself but for the group as a whole. We might adduce a further dimension by drawing an analogy with Hart’s notion of critical morality: as opposed to positive morality which merely reflects the shared moral norms of a group, critical morality takes us ‘beyond the confines of the obligations and ideals recognized in particular social groups to the principles and ideals used in the moral criticism of society itself’, as for example being ‘unenlightened’ or ‘unnecessarily repressive’.⁸⁴ This is a kind of second-order reflection, which assumes a detachment and distance from the mores of a particular society. Detachment and distance can never of course be complete, which is to say that one is always engaged in critique from a particular social standpoint: there is no ‘view from nowhere’. But ‘implicit in this type of criticism’, Hart continues, ‘is the assumption that the arrangements of society… must satisfy two formal conditions, one of rationality and the other of generality’.⁸⁵ These refer to principles of justification and not mere description.⁸⁶ If this analogy is apposite then to accept a social norm with a critical reflective attitude is to adopt a point of view on the legitimacy and justification of its demands not only for oneself but for others in society and to do so from a detached or ‘second-order’ perspective.

Crucially for our purposes, this is not restricted to the role of an official. Whenever I accept a social norm in the strong sense I am looking on it as such a standard to be followed by the group as a whole, whether I am a judge, in which case my acceptance may lead more or less directly to a legal (and according to Raz a putative moral) obligation on the part of another, or a citizen, in which case the relation between my acceptance and another’s obligation is less direct, but no less significant. In a legal system, one might object, the subject’s acceptance or otherwise is neither here nor there, it is without any significance; subjects need merely obey for the system to exist and to be sustained as a normative system. It is sufficient for the rule of recognition, which picks out the criteria of validity for rules of the system, to be accepted by officials. But the question of why the judge’s acceptance, as opposed to the subject’s, is necessary for the existence of a legal system is not the issue: it is simply assumed as a conceptual point in Hart’s account. What is at issue now is the meaning of acceptance of a social rule. There is no reason to distinguish judicial from everyday acceptance on the ground that the former is the only kind to generate obligations for others, because, as we know from Hart’s account, acceptance by the ordinary person of the primary rules in the simple society also effectively generates obligations for others. In fact even my continued obedience towards the legal system and its norms partially and indirectly contributes to the continuance of legal obligations for others, for in the absence of general obedience, the legal system would not exist at all, hence the social (and perhaps moral) significance of civil disobedience.⁸⁷

We can go further, and claim that social rules not only oblige others, but emerge from or on behalf of the collective group. With the modern constitutional settlement this claim is made explicit: ‘we, the people’ are proclaimed as the authors of our own laws (even if this is betrayed in reality or raises philosophically paradoxical positions). The claim to legitimacy is a democratic claim, and this might be understood in modernity to be more than an empirical generalization about the performative claims of written constitutions. Perhaps, ‘in principle’, all ‘modern constitutions begin ‘we, the people’.⁸⁸ In any case, constitutional popularity is no less significant when offered in the form of the implicit normative claims of a social order. In this sense, it has been noted, ‘the self of self-government is a “we” not an “I” ’.⁸⁹ Contrary to Raz’s image of law as an official authority, in the modern democratic order we are all implicit ‘mouthpieces’ of the law, an insistence on which might begin to inculcate a sense of legal and social responsibility and perhaps in more radical guise, a social purpose, to reclaim law’s authority.

The point is not that a legal system cannot exist without strong collective acceptance or full social engagement with its normative and collective aspect. Both legal and pre-legal regimes could survive such a lack of engagement. It is that for acceptance to mitigate alienation, it must be strong, more than merely unreflective acquiescence. It is important to distinguish between the existence conditions of a society in terms of its basic sustainability and the flourishing of a legal system qua social normative order. A legal system in which there is widespread alienation is still a legal system, but it is a defective one in terms of the disjuncture that exists between the law’s social and normative aspect and the subjects’ perception of and engagement with it. The bar is set high: failure to be oriented towards the law in a critical and reflective manner is to be alienated from it qua social rule.⁹⁰ But it is important to note that this is no stronger than the account of acceptance Hart initially works with in The Concept of Law. If this seems an unrealistically high threshold to be met in contemporary society, then that only goes to show how extensive is our alienation.

In order for acceptance to negate alienation it must be both cognitive and volitional. Whether such strong acceptance is widespread in any particular society will depend upon a number of factors that cannot be fully developed here, but there is no reason to assume that these are fundamentally different in the legal as opposed to the pre-legal (or non-legal) society. Whilst knowledge of the legal system and its rule of recognition might be more difficult to acquire in the modern society because it is increasingly complex, this is largely an empirical question. There is nevertheless an important theoretical as well as historical debate to be played out here. As Hart’s reflections on Bentham and Marx suggest, on the one hand, critical reflection on our norms in terms of assessing their legitimacy and justification might be considered typical of a modern Enlightenment mindset. On the other hand, we might make out, and some have made out, a case that with the gradual dominance of the ‘freedom of the moderns’ there is a retreat to the private sphere and a general apathy and disengagement from political life and the public sphere in general. In the first case, freedom from alienation might only become possible in the wake of a post-Enlightenment rationality, the ‘reflexivity’ of modernity.⁹¹ In the second, freedom from politics might be the distinctively modern form of alienation of the self-interested individual in the market society.⁹² But, in neither case is alienation or freedom determined by the nature of law and its minimal existence conditions.

Modern society does, however, facilitate a certain ‘division of normative labour’ and in a manner that is more regimented and institutionalized than in the primitive society. The notion of a ‘division of labour’ suggests the sociology of Marx and especially Durkheim, whose thesis of the same name supposes that order is pursued in advanced industrial society by increased regulation of interdependence and the attempt to maintain an organic solidarity, as opposed to the high-intensity mechanical solidarity generated by essentialist similarities between (or the common conscience of) members of primitive society.⁹³ Does the division of normative labour instigated by the modern legal order threaten the social solidarity of society, which now has relatively little else to integrate it? Does law in this sense contribute in some fundamental way to the alienation of the subject from his true or authentic nature—which is social, collective and cooperative?⁹⁴ Modern law, it might be argued, contributes to the atomism of man, to his alienation from community and society, or even ultimately, in Marxist terms, from his ‘species being’.⁹⁵ Analogous to the claim that the system of modern capitalist accumulation alienates man from his labour, the system of modern law alienates man from society and his shared social norms, resulting in a state of anomie, a reaction to his overexposure to specialized legal norms and increasingly autonomous systems of regulation. To say that modern law is at the root of social alienation is to lay a tremendous significance on it. But how could the truth of such a claim be established?

Neither Green nor Hart provides us with a narrative of alienation in modern society against which such a judgment could be made. We might identify citizens who are alienated from their social norms as citizens who feel isolated or estranged from them, perhaps powerless to influence them, unable or unwilling to participate in their creation, interpretation and application. Political scientists have coined a term that might be used for such a system; it is said to suffer from a deficit in ‘input legitimacy’. The degree to which the members of our societies feel alienated from the law is largely an empirical question. To discover the causes of this feeling, assuming it to be prevalent, as many social philosophers undoubtedly do (and have done in the past), we could look into the role of adjudication and litigation in the regulation of our social life, of the phenomena of voting and legislation in political decision-making, of participation in local government and other institutions, civic associations and political parties as well as belonging to and identification with other political and social groups and with the polity as a whole. The necessity of a sense of identification with the polity, however indirect, or of a ‘special relationship’ between rulers and ruled in order to mitigate any loss caused by the division of normative labour tends to be neglected or explicitly rejected in the tradition of legal positivism.⁹⁶

Yet sociology and social theory, although helping to identify the extent of our actual alienation and to explain under what circumstances it is likely to occur, fail to tell us what it is in the nature of law that makes the risk of alienation liable to be realized. In other words, social theory fails to tell us how the failures of the social world are connected to law’s nature, rather than, say, to human nature, the nature of individual and social consciousness, the passage of social-historical events or the evolution of economic relations. This, for Green, is the significance of Hart’s contribution. It is argued here, however, that an account of law’s nature such as that developed by Hart is far too thin to draw any interesting link to a thick concept such as alienation. Developing the critical reflective attitude or internal point of view, which is not determined by law, but by the general structure of our social norms, is the appropriate way forward in terms of constructing the link to alienation or an absence thereof.

7. Concluding Remarks

This last point raises an important issue in relation to law’s moral riskiness. It is conveniently captured by the distinction commonly referred to as output versus input legitimacy. Remember that we are dealing with the claim that alienation is ‘internal’ to the law, as being a form of oppression that is liable to exist whenever and wherever there is law. It is obviously the case that many people could (and do) critically and reflectively accept (and not only obey) rules that are actually immoral or against the collective interest. Stronger acceptance of a legal order does not guarantee against its immorality or injustice, it guarantees only against alienation, even though it is perhaps the case that in such a society, certain forms of injustice are less likely to emerge and to prevail.⁹⁷

Conversely, an enlightened despot could impose morally beneficent laws upon an uninvolved public. But it is a mistake only to think of acceptance in terms of the ‘end-product’ of laws considered individually or even as a package. This type of evaluation we can refer to as output legitimacy. Alienation invokes an absence of what political scientists refer to as ‘input legitimacy’, which is about how we engage (or fail to engage) systemically with our social norms, in terms of our input into the authority structure in the first place. This involves consideration of the manner in which our norms are constructed, interpreted and applied rather than their substantive results alone. It means that we need to consider the system that is responsible for our norms as a whole, expressed in the metaphor that the law is ‘ours’, that it is promulgated ‘in our name’ (hence the power of the slogan ‘not in our name’).⁹⁸ This is of course quite literally the claim of the modern constitutional settlement, inaugurated in the name of ‘we, the people’, but it applies not less in principle where the authority structure is silent in this regard. Failure to engage with this collective aspect of the law is to be alienated from the law qua social norm. The meaning of such engagement will have to remain obscure for the moment. But it does suggest that in practice, avoidance of alienation might require not only volition and cognition but also participation in regard to our social normative order.

This is not to say that there is no correlation between output and input legitimacy. Of course there is. But correlation is not identity. What we have been examining is whether widespread acceptance precludes general social alienation. Our rejection of this claim on the basis of weak acceptance leads us to consider how acceptance could negate alienation. If acceptance has nothing to do with our attitude towards norm-production, in the sense that our acceptance is entirely independent of process and is geared only to whether individually one—in some sense—‘approves’ of the end product, then there may be little relationship between acceptance and (the absence of) alienation. If it is the case that some at least can be alienated from their norms without knowing that they are, which seems likely, then volition in itself is clearly not enough.

By way of conclusion let us return directly to the question with which we began: is law morally risky in the sense that it is endemically liable to become alienated from its subjects? The short answer is ‘no’. There is nothing to support the claim that on Hart’s account of the concept of law the legal regime is distinctively morally risky in the sense suggested.⁹⁹ If we adopt Hart’s weak account of acceptance, there is no link to alienation; if we adopt the stronger account, there is no reason to think the legal regime is endemically liable to alienate as compared to the pre-legal regime. In confronting the concept of alienation and its relationship to social acceptance we have, however, been led to reassess what it means to accept a social norm. Our investigation suggests that to a slightly different question, a longer answer would be required. Is it in the nature of modern society for subjects to become alienated from their laws qua social norms? Do the features of modern society tend to distance subjects from genuine engagement with the law and can this be seen in the way modern law becomes official, specialized and institutionalized? There may well be something about modern society that promotes a retreat by the subject to the private sphere, and the adoption of a limited and deficient sense of acceptance of law that is purely self-interested or sheeplike. This is the vice of legalism of which we spoke earlier. This deficiency might be a feature or consequence of the dominance of modern instrumentality rationality or of the Protestant ethic of individual salvation. If this is so, its truth will be revealed more by social theory and historical reflection than by conceptual inquiry into the nature of law.