STEVEN WALT

HART AND THE CLAIMS OF ANALYTIC JURISPRUDENCE*

Bayles' posthumously published Hart's Legal Philosophy l covers

all of Hart's work in analytic and critical jurisprudence except his
coauthored work on causation. Quibbles aside, it is probably the
best survey of Hart's jurisprudential work in print. Hart's Legal
Philosophy stands up well to its likely competitors in every respect
except price. The depth of coverage is greater than MacCormick's H.
L. A. Hart, and the quality of presentation and critical commentary
exceeds that of Martin's The Legal Philosophy of H. L. A. Hart and
Moles' Definition and Rule in Legal Theory. Bayles methodically
rehearses in close detail Hart's handling of topics, canvasses relevant
secondary literature up to 1990, and provides defenses and friendly
criticism. Given the format of the book, it is more in the nature of
a reference work than a sustained argument. A resulting weakness
is that points raised in one place are forgotten at other places, and
that sometimes arguments are too incomplete to be convincing. I
shall illustrate the weakness by commenting on three familiar topics
Bayles addresses: the validity of legal rules, Hart's commitment
to semantic claims concerning the "open texture" of general legal
terms, and the inclusion of legal principles among the corpus of legal
sources.

1. THE VALIDITY OF LEGAL RULES

Criticisms of Hart's account of law often rely on one of three

mistaken assumptions about nature of the account. One assump-
tion is that Hart's account is offered as a complete theory of law. A
second assumption is that it is offered as a particular component of a
* Michael D. Bayles, Hart's Legal Philosophy, Dordrecht, Kluwer Academic
Publishers, 1992, pp. xi + 316, $119.00 cloth.
1 All page references in parentheses are to this volume.

Law and Philosophy 15: 387-397, 1996.

@ 1996 Kluwer Academic Publishers. Printed in the Netherlands.
38 8 STEVENWALT

complete theory: a theory of judicial reasoning. The third assumption

is that Hart's account describes unimportant elements of that theory.
Charges that Hart's account of law is defective because incomplete
make the first assumption. The second assumption is made in charac-
terizations of legal positivists as offering a theory of adjudication. 2
It also is present in Dworkin's characterization of jurisprudence as
forming part of the theory of adjudication. 3 The third assumption
animates Dworkin's well-known stipulation that the concept of law
states the conditions which justify legal coercion. 4
Hart's account of law is not presented as a complete theory. Hart is
only interested in the question, "What is law?" The answer comprises
several elements of a complete theory of law. A complete theory of
law presumably would include at least the following components: (1)
a theory of legal validity; (2) criteria for the identity of legal norms;
(3) a descriptive and normative theory of legislative and judicial
reasoning; (4) a theory of institutional legitimacy; (5) a semantics of
legal language; and (6) a theory of compliance. Chapters V and VI of
The Concept of Law provide components (1) and (2) by presenting
criteria of legal validity and describing the existence conditions of
legal norms. Hart's noncognitivist account of normative statements
and his views on the "open texture" of general terms amount to
semantic claims concerning legal language. (Even here, Hart does
not set out claims systematic or complete enough to be qualify as
a "theory of legal semantics.") But Hart does not provide accounts
which form components (3) or (4). Aside from disparate remarks on
judicial reasoning in The Concept of Law and later writings, 5 Hart

2 See Jeremy Waldron, "The Irrelevance of Moral Objectivity," in Robert

George, ed., Natural Law Theory: Contemporary Essays (Oxford: Clarendon
Press, 1992), 159.
3 R°nald Dw°rkin'"Legal The°ry and the Pr°blem °f Sense"' in Ruth Gavis°n'
ed., Issues in Contemporary Legal Philosophy (Oxford: Clarendon Press, 1987),
19; see Joseph Raz, "The Problem about the Nature of Law," University of Western
Ontario Law Review 21 (1983): 211,217.
4 Ronald Dworkin, Law's Empire (Cambridge: Harvard University Press,
1986), 93, 190; Dworkin, op cit., 15.
5 See, e.g., H. L. A. Hart, "Problems of the Philosophy of Law," in H. L. A.
Hart, Essays in Jurisprudence and Philosophy (Oxford: Clarendon Press, 1983),
106-7, "Commands and Authoritative Legal Reasons," in H. L. A. Hart, Essays
on Bentham (Oxford: Clarendon Press, 1982), 265-66, H. L. A. Hart, "Postscript,"
The Concept of Law, Second Edition (Oxford: Clarendon Press, 1994), 259.
 HARTAND THE CLAIMSOF ANALYTICJURISPRUDENCE 389

does not present a descriptive or normative theory of adjudication.6

Nor does he say anything about the conditions of legislative legit-
imacy. Since Hart is concerned only with several components of
a complete theory of law, criticisms which assume provision of a
complete theory or misspecify the components with which Hart is
concerned fail.
Bayles is careful not to confuse components or hold Hart to a com-
plete theory of law (cf. pp. 127-28, 180, 188-89). 7 But he charges
that Hart's account of the validity of legal rules is unimportant.
According to Bayles, the interpretation and application of rules, and
their implementation in settling disputes and enforcement- what he
calls the "system of laws" - are central (p. 97; cf. pp. 64-65, 67,
138). The validity of legal norms is less frequently at issue in the
daily operation of law and therefore has less practical importance
(p. 97). Hart, according to Bayles, is "blinded" to this by his focus
on legal validity. Both the charge of unimportance and the diag-
nosis are off the mark. This is so for five reasons. First, practical
importance is an inappropriate standard to impose on all compo-
nents of a theory of law. Hart's focus is on the existence conditions
of legal norms and systems. It is a limited conceptual inquiry and
can have theoretical virtues unrelated to the daily practice of law.
Those theoretical virtues are tested by their theoretical importance.
In Chapter IX of The Concept of Law, for instance, Hart identifies
two advantages which result from a conceptual separation of law
and morality: clarity in morn deliberation and role of a conceptually
separate notion of law in unified explanations of social phenomena.
The latter, if true, is a theoretical virtue.
Second, Bayles' charge of practical unimportance smuggles in an
unreasonably strong requirement of adequacy. It does so by requir-
ing that an adequate theory of a legal system, even if incomplete,
must contain a theory of judicial decision making (p. 97; cf. p. 138).

6 Of course, some of Hart's commitments have implications for elements of a

complete theory of law which he leaves unaddressed. For instance, given Hart's
claims about the "open texture" of general terms, an account of legal reasoning
that had the implication that courts decide cases by invoking principles or rules
containing completely nonvague terms would be false. The point is that Hart does
not provide an account of those elements (e.g., a theory of adjudication).
7 See also Michael D. Bayles, "What is Jurisprudence About? Theories, Defin-
itions, Concepts or Conceptions of Law," PhilosophicalTopics 18 (1990): 23-40.
390 STEVENWALT

Since such a theory is part of an account of adjudication and legis-

lation, Bayles is requiring that an adequate theory include theories
of adjudication and legislation, even if incomplete. The require-
ment is unreasonable because too stringent. Because Hart's focus
is on the existence conditions of legal norms and systems, it is a
limited conceptual inquiry. Theories of adjudication and legislation
are both different inquiries, which may or may not be conceptual.
An insistence that adequacy requires that Hart's conceptual inquiry
include other matters is unjustified.8 (It also is odd because Bayles
elsewhere concedes the appropriateness of the restrictive scope of
some jurisprudential inquiries (cf. pp. 188-89). 9) Bayles provides
no conceptual or metaphilosophical reason for his insistence.
Third, the charge elides the obvious distinction between some-
thing being significant and it being controversial. In most of the daily
operation of law the issue of the validity of a norm does not arise.
Validity, most of the time, is uncontroversial and therefore undis-
puted by all involved. It doesn't follow that the validity of particular
legal norms is unimportant even in these predominant instances.
Validity might be important here in fact precisely because the effi-
cacy of a system of laws depend son it often being undisputed.
Fourth, Bayles' charge of unimportance is wrong on its own
terms. If practical importance is gauged by frequency of litigation
in which the existence of a legal rule is at issue, legal validity is
important. Consider the following common legal issue: has a subse-
quent statute displaced the judge-made law either surrounding a
predecessor statute or standing alone? The issue surfaces in a number
of commercial cases. For instance, has a sometimes recognized
promissory estoppel exception to the Statute of Frauds survived
passage of Article 2 of the Uniform Commercial Code? Or has the
"new value exception" to the absolute priority rule in bankruptcy
reorganizations survived passage of the 1978 Bankruptcy Code?

s Waldron attributes modern legal positivists' omission of an account of legis-

lation to an implicit belief that legislation is jurisprudentially uninteresting; see
Jeremy Waldron, "The Dignity of Legislation," Maryland Law Review 54 (1995):
647. The more charitable implication is that Hart and other legal positivists are
concerned with the narrow question of the existence conditions of legal norms
and systems. For purposes of answering the narrow question, the constituents and
structure of legislation is uninteresting.
9 Bayles, op. cit., 23-40.
 HARTAND THE CLAIMSOF ANALYTICJURISPRUDENCE 391

Since the issues in both cases concerns the derivability of a norm

from a corpus of legal materials, validity is at stake and central.
Fifth, Bayles' diagnosis presupposes that a suitably abstract
description of legal systems includes common processes of deci-
sion making and enforcement. Otherwise, there is no justification
for including the requirement, as Bayles does (p. 97), in an adequate
account of a legal system. The requirement instead would be one
for an adequate account of particular legal systems (cf. p. 180).
But Bayles gives no argument for imposing the requirement in the
first place. Hart later came to regret the sparse treatment given to
legal reasoning in The Concept of Law. 1° But he never suggests, nor
without argument is there reason to suggest, that the details of legal
reasoning comprises a suitably abstract description of legal systems.
It well could turn out that legal systems cannot be identified or
characterized by institutional features such as decision making and
enforcement. A rule of recognition and norms derivable via opera-
tions on the corpus of materials, both identified by that rule, might
be the most adequate account of a legal system available. Noth-
ing that Bayles suggests justifies thinking otherwise. Hence Hart's
"blindness" in focusing on legal rules in the end might be prescience.

2. CLUSTER TERMS IN NATURAL LEGAL LANGUAGE

Hart's claims concerning the "open texture" of general legal terms

depend on a conventionalist semantic theory. For if linguistic mean-
ing is given by the conventional intension associated with a general
term, the extension of the term is determined by the term's conven-
tional intension. Intensions are given by the conventional conditions
associated with a terrn's use. Hence indeterminacy in conditions
for application result in vagueness in a term's extension. HaWs
familiar claim, which he continued to maintain, 11 is that general
terms lack necessary and sufficient conditions for their application.
A cluster of features is associated with the "core" of a term's use; no
10 See "Postscript," The Concept of Law, op cit., 259.
11 See H. L. A. Hart, "Jhering's Heaven of Concepts and Modem Analytical
Jurisprudence," in Essays in Jurisprudence and Philosophy, op cit., p. 269; and
the letter from Hart to Bix, quoted in Brian Bix, Law, Language, and Legal
Determinacy (Oxford: Clarendon Press, 1993, 24.
392 STEVEN WALT

feature is necessary or sufficient for application in the "penumbra"

of its extension. Hart's claim is that general legal terms are "open
textured" or"cluster terms," as Bayles (following Putnam) also calls
them. Vagueness of two sorts results from norms containing "open
textured" terms. 12 One sort concems instances which vary along
a single feature, as a matter of degree. Another sort of vagueness
concerns instances which satisfy different features commonly asso-
ciated with a term's use. Hart emphasizes the latter in The Conceptof
Law, at the end of Chapter VI, the beginning of Chapter VII, and in
Chapter X. His views on the ineliminability of judicial discretion and
conceptual analysis are based on the claim about cluster concepts.
In defending Hart, Bayles makes heavy use of claims about cluster
concepts. Bayles takes duty-imposing rules (p. 103), the minimum
content of morality (pp. 121,255), law (pp. 75, 77, 121,127, 137,
255), morality (pp. 101, 103-5, 121), a system of laws (p. 41, 53,
137), moral obligations (p. 106), and punishment (p. 258) to be
cluster concepts. Sometimes the notion is overworked. In discussing
the minimum content of morality, for instance, Bayles reconstrues
Hart's views about the minimum content of natural law: as a matter
of natural necessity, morality and law contain proscriptions which
significantly promote "commodious living" (pp. 121-22). The recon-
strued minimum content of natural law is, for Bayles, among the
cluster of features defining morality and law (cf. p. 255). This recon-
struction confuses a question about the content of a set of norms
with a question about the conditions associated with a term's use.
It also proves too much. For if the minimum content of morality is
a matter of natural necessity, it obtains in every system of norms.
That is, given predominant facts about people and their circum-
stances, morality and law contain rules having a particular content
in common. Norm systems lacking this content won't constitute
viable systems of law or morality. This content states a necessary
condition of these norm systems. Proper use of the term "law" or
"morality" would require satisfaction of the condition. If so, Bayles'
attempt to preserve Hart's claim that law and morality are cluster
concepts fails.

~2 Waldron provides a compact discussion of both sorts of vagueness; see Jeremy

Waldron, "Vagueness in Law and Language: Some Philosophical Issues," Cali-
fornia Law Review 82 (1994): 516-21.
 HART AND THE CLAIMS OF ANALYTIC JURISPRUDENCE 393

Bayles often invokes the notion of a cluster concept to avoid what

would otherwise be counterexamples to a proposed analysis. Charac-
terized as a cluster concept, the "core" of the notion is captured by
a particular analysis. A seeming counterexample is deemed part of
the "penumbra" of the notion, against which the analysis need not
be tested. The consequence is that a proposed analysis is defended
by characterizing its analysand as a cluster concept. Instances of
a term's application are sifted into central and atypical cases. To
convince, this defensive strategy requires much more defense than
Bayles gives it.
Take the concepts of a duty-imposing legal rule and punish-
ment, respectively. Bayles, following Hart, considers importance
to be among the features characterizing the core instances of duty-
imposing rules (p. 103). In the case of punishment, infliction of harsh
treatment by a legal official is among the features characterizing
central instances of punishment (p. 258). Agreement on core
instances of the two notions can result form either of two possibili-
ties. One possibility is via cluster concepts: instances are identified
according to the set of features associated with use of the terms
"duty-imposing rule" and "punishment." The other possibility is
via a substantive theory: core instances are identified by substantive
claims of(presumably) political theory in which a feature figures. For
instance, duties might be important because their imposition serves
a valuable coordinating function. And harsh treatment might be
justified only when imposed by a person having executory authority.
Duty-imposing rules would be important not as a conceptual matter
but as a matter of substantive theoretical claims about such rules.
Similarly, punishment would be imposed by a legal official not by
virtue of conceptual feature of punishment but as a substantive
theoretical claim about when punishment is justifiably imposed.
Claims based on a substantive political theory, not a claim about
cluster concepts, explain core instances of a concept. To eliminate
this possibility, two assumptions are required: (1) that a cluster of
features associated with a legal concept obtains independently of
substantive claims about the connection among features; and (2)
that these features determine the extension of the concept.
Hart acknowledges his reliance on both assumptions. In the intro-
duction to Essays in Jurisprudence and Philosophy, he recognizes
3 94 Sa~VENWALT

the first assumption above in noting its limits: "[t]he methods of

linguistic philosophy ... are not suitable for resolving or clarifying
those controversies which arise, as many of the central problems of
legal philosophy do, from the divergence of basic point of view or
values or background theory... ,,13 Hart makes the second assump-
tion by requiring a conceptual analysis to identify criteria associated
with the use of a term and guiding its use.14 Given Bayles' pattern of
argument, some defense of these assumptions is needed. My com-
plaint is not that Bayles fails to defend a semantic theory that allows
for cluster terms. Nor am I insisting that he supply full criteria for an
adequate conceptual analysis. My point is simply that, without some
defense of cluster concepts, Bayles cannot use the notion to do the
jurisprudential work he requires.

3. LEGAL PRINCIPLES AND THE CORPUS OF LEGAL MATERIALS

Legal positivism provides existence conditions for legal norms.

It supplies criteria for membership in the set of legal materials.
Positivists and their friends differ over the permissible existence
conditions legal norms have to satisfy. For Hart, legal norms consist
of the standards validated in specified ways by a rule of recognition,
a master rule of validity. Since Hart allows that a rule of recognition
could contain moral criteria, the corpus of valid legal norms can also
include moral principles. Other positivists impose stricter conditions
on legal norms. Raz, for example, requires that valid legal standards
arise in various ways only from some fact of social behavior: social
custom, judicial decision or legislative or administrative enactment.
Given the stricter requirement, convention-independent moral prin-
ciples cannot be among the conditions of legal validity. Consid-
erations such as coordinative function, authority and uncertainty
typically are introduced to decide between stricter and more relaxed
existence conditions imposed on the set of legal materials.
The quarrel among positivists is usually over whether moral prin-
ciples can be counted among legal materials. It is worth noting
that there is another issue less focused on: whether positivists can
13 Hart, Essays in Jurisprudence and Philosophy, 6.
14 H . L . A . Hart, "Book Review: Bentham. By Ross Harrison," Mind 90 (1987):
156.
 HARTANDTHE CLAIMSOF ANALYTICJURISPRUDENCE 395

even count legal principles among the corpus of legal sources. For
the existence of legal principles depends on the stringency of the
existence conditions imposed on legal standards. If legal standards
require enactment or declaration by a legal authority, 15 principles
cannot count as legal standards because they lack canonical formu-
lation. If the acts necessary for enactment or declaration are relaxes,
or the requirement of a canonical formulation is eliminated, legal
principles could count as legal standards. And if the requirement
that legal standards be enacted or declared is not imposed in the
first place, legal principles again could exist among the corpus of
legal materials. Hence whether legal principles exist depends on
restrictions placed on the permissible sources of law.
Bayles does not argue for placing less demanding over stronger
existence conditions on legal norms. In passing he simply adopts
Hart's view to the effect that a rule of recognition can include moral
criteria (p. 168). If a rule of recognition can include moral criteria,
presumably it can contain criteria for adducing legal principles too.
The easy implication therefore is that legal principles also can be
among the standards underwritten by a rule of recognition. The trou-
ble is that, without an argument for preferring particular existence
conditions over others, Bayles cannot justifiably include legal prin-
ciples among the corpus of legal materials.
Bayles' defense of Hart's existence conditions of law relies on
legal principles. It does so by making use of two sets of distinc-
tions that Bayles finds Hart omits. One distinction is between types
of standards; the other is between standards and their application.
Without stating formal criteria, Bayles distinguishes among stan-
dards between legal rules and principles (cf. pp. 65, 67, 138, 172).
Within the application of standards, orders are distinguished from
judgments (cf. pp. 65, 67, 138, 172). A system of laws, according to
Bayles, consists of rules validated by the rule of recognition (p. 172).
A legal system consists of the set of standards and their application:
principles, rules, decisions and judgments (pp. 65, 97, 138). Accord-
ing to Bayles, Hart's denial that legal principles are law therefore is
consistent with their being part of a legal system (pp. 172, 174).

15 See Joseph Raz, "Legal Principles and the Limits of Law," Yale Law Journal
81 (1972): 848; for a relaxation of the requirement of an enactment or declaration,
see Joseph Raz, The Authority of Law (Oxford: Clarendon Press, 1979), 48.
396 s~vzN WALT

Bayles' defense is weak in at least three places. First, as a matter of

Hart exegesis, it is inaccurate. Hart is tolerably clear in The Concept
of Law and its postscript that standards are norms which include
both rules and principles. 16In Hart's view, legal principles and rules
don't differ in kind. A system of law, for Hart, is comprised of
both standards. Second, the reason Bayles gives for distinguishing
rules from principles is questionable. Legal principles, according
to Bayles, are not properly called "a law;" a legal rule is called "a
law" (p. 172). This lexicographic test arguably does not give the
result Bayles wants. Think of the requirement that, exceptions aside,
agreements are enforceable only if supported by consideration. Or
think of the maxim of contract interpretation according to which
ambiguities in a document are to be construed against the drafter.
It is not conversationally inappropriate or otherwise odd to express
these propositions by sentences beginning "Legally, it is the case that
... " o r " T h e law requires that . . . . "More important, a lexicographic
test is itself the wrong sort of test. If law is an institutional matter,
as it is for Hart, then components of law are to be distinguished by
their distinctive roles in the operation of legal practice. Linguistic
propriety is a unreliable guide to that institution.
The third weakness is more serious. Bayles' move depends on
treating legal principles as part of the system of law. But absent
particular existence conditions of law, legal principles cannot be
counted among legal materials in the first place. This of course is
Dworkin's familiar complaint against Hart: the legal validity and
weight of legal principles cannot be specified by a rule of recog-
nition. It does not good to respond that legal principles form part
of a system of law, rules constituting its laws (cf. p. 174). For the
complaint is that, wherever legal principles are located, positivists
cannot provide a criterion of validity by which legal principles exist.
An adequate response requires provision of acceptable existence
conditions which underwrite legal principles. Since Bayles' defense
simply assumes that legal principles exist, it does not justify includ-
ing them among the corpus of legal materials. A more convincing

16 See, e.g., Hart, The Concept of Law, 100, 259. Bayles is unsure of his
attribution to Hart, at one point conceding that it is controversial whether Hart
considers principles to be rules (p. 64) while later stating that Hart insists that laws
consist only of rules (p. 172; cf. p. 90).
 HARTAND THE CLAIMSOF ANALYTICJURISPRUDENCE 397

defense needs to support Hart's existence conditions against more

demanding conditions which would exclude legal principles.
For example, consider the following skeletal argument against
including legal principles among legal materials: (1) A legal prin-
ciple is a standard of decision which lacks canonical expression
and possesses weight. (2) Legal standards exist only if they have
complete weights (i.e., weights are assigned to them in every case
in which they apply). (3) A legal standard has complete weights
only if it is enacted. (4) But legal principles cannot be enacted. (5)
Therefore, they lack complete weights and therefore do not exist. 17
As stated, several of the argument's premises can be questioned.
Requiring that legal principles possess complete weights might be
an unjustifiably strong demand. So too might the requirement that
the assignment of complete weights requires enactment. The point
here is simply that both demands impose constraints on acceptable
existence conditions of law. Something can be serve as part of the
corpus of law, according to the demands, only if it has complete
weights and is enacted. Bayles' treatment of legal principles as com-
ponents of a system of law, while not themselves laws, misses the
issue at stake. For the issue is not how legal principles should prop-
erly be treated as among the corpus of legal materials. It is whether
they are included in the corpus at all. Hence the issue turns on t h e
appropriate existence conditions of law. Bayles' defense of Hart is
seriously incomplete because it fails to discuss the matter.

University of Virginia School of Law

17 Alexander and Kress present a version of this argument in Larry Alexander

and Ken Kress, "Against Legal Principles," in Andrei Marmor, ed., Law and
Interpretation: Essays in Legal Philosophy (Oxford: Clarendon Press, 1995), 281
n. 6, 301-03.