Mullock on Summers on Hart is bad enough, but Summers on Mullock on Summers on Hart is worse. Fortunately or unfortunately, there is no rule (primary or secondary) entitling either of us to vouch Professor Hart into the proceedings. With all due respect to Professor Mullock (and to me, of course), I fear the two of us may be compounding erroneous interpretations of Professor Hart’s work. Sans Hart, I shall exercise admirable restraint and argue over the meaning of the scripture. Regrettably, Professor Mullock and I are both defenders of the faith; I had hoped to draw the fire of a non-Christian

Summers, Robert S.

English

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A BRIEF REJOINDER TOPROFESSOR MULLOCKROBERT S. SUMMERS*M ULLOCK on Summers on Hart is bad enough, but Summerson Mullock on Summers on Hart is worse. Fortunately orunfortunately, there is no rule (primary or secondary) entitlingeither of us to vouch Professor Hart into the proceedings.' Withall due respect to Professor Mullock (and to me, of course), I fearthe two of us may be compounding erroneous interpretations ofProfessor Hart's work. Sans Hart, I shall exercise admirable re-straint and not argue over the meaning of the scripture. Regret-tably, Professor Mullock and I are both defenders of the faith; I hadhoped to draw the fire of a non-Christian.IUNION OF RULESIn The Concept of Law,2 Professor Hart, among other things,analyzes concepts3 In analyzing concepts, Professor Hart dis-B.S. 1955, University of Oregon; LL.B. 1959, Harvard University. Associate Pro-fessor of Law, University of Oregon; Social Science Research Council Fellow in LegalPhilosophy, Oxford University, 1964-1965.1Cf. UNnoas CoMmm c L CoDE § 2-607 (5).2 The title of Professor Hart's book may be unfortunate for two reasons. To speak"of the concept of law begs the question at the outset. On analysis, it may turn outthat there is no single unifying concept, but rather many different concepts. Also,much of the book is concerned with the analysis of concepts much more specific than"the concept of law." Perhaps, however, we should not expect too much from a title.'Professor Hart often substitutes "elucidate" for "analyze." What is conceptualanalysis? This question can be divided into at least three questions. First, what arethe aims of conceptual analysis? These are many and varied, but commonly it is saidthat clarification is the prime objective. Occasionally it is also said that the aim is to"give us information in depth about phenomena, knowledge of their inner constitu-tion." Second, what are the techniques of conceptual analysis? These, too, are manyand iraried. Sometimes it is said that the "essence" of conceptual analysis is descriptionof the actual uses of words and formulation of principles or criteria actually governingtheir use. This is obviously an oversimplification. For a description of some of themethodological ideas, techniques, and distinctions involved, see Summers, ProfessorH. L. A. Hart's Concept of Law, 1963 DuKE L.J. 629, 661. Third, how does conceptualanalysis differ from other kinds of analysis? Conceptual analysis is sometimes analogizedto scientific analysis, e.g., the kind of analysis done by chemists. As is often the casewith comparisons, the differences are more instructive than the similarities. ChemistsA BRIEF REJOINDERtinguishes between legal and nonlegal concepts and between specificlegal concepts, e.g., a legal obligation, and general legal concepts,e.g., the legal system. He utilizes various "tools" in his analysis, oneof which is his "combination of primary and secondary rules." 4 Atone point, he says:If we stand back and consider the structure which has resultedfrom the combination of primary rules of obligation with thesecondary rules of recognition, change and adjudication, it is plainthat we have here not only the heart of a legal system, but a mostpowerful tool for the analysis of much that has puzzled both thejurist and the political theorist.Not only are the specifically legal concepts with which thelawyer is professionally concerned, such as those of obligation andrights, validity and source of law, legislation and jurisdiction, andsanction, best elucidated in terms of this combination of elements.The concepts (which bestride both law and political theory) of thestate, of authority, and of an official require a similar analysis ifthe obscurity which still lingers about them is to be dissipated. 5In the article of mine to which Professor Mullock addresseshimself, I said:But is it a combination of primary and secondary rules that en-ables Professor Hart to clarify such basic and important conceptsas legal validity and obligation? He uses only the notion of a"primary rule" to elucidate the concept of obligation. He usesonly the notion of a "rule of recognition" to elucidate the conceptof legal validity. In fact, he does not use a combination of pri-mary and secondary rules to elucidate any specific concepts. 6In view of Professor Mullock's remarks, do I continue to stand bywhat I said? Yes, but with additional critical comment.Whether or not Professor Hart uses a combination of primaryand secondary rules to analyze specific legal concepts depends partlyupon what he means by "combination," partly upon what I meanby "uses," and partly upon other factors. Professor Mullock con-analyze substances, and substances exist in the physical world. All things which can be"analyzed" do not exist in this way. Concepts do not. Furthermore, although thechemist, by separating substances into their component elements, adds to our knowledgeof the world, it is often contended that conceptual analysis, while it may "sharpenour awareness of phenomena," cannot give us new facts. See generally, Lazerowitz,Moore and Philosophical Analysis, 33 PHILosoPHY 193, 198 (1958).' In Professor Hart's book, this combination of rules has a dual status: it is botha datum to be analyzed and a tool of analysis.HART, THE CONCEPT OF LAW 95 (1961) [hereinafter cited as HART].Summers, supra note 3, at 689.Vol. 1965: 76]DUKE LAW JOURNALcedes that when he analyzes the concept of legal validity, ProfessorHart uses only the notion of a secondary rule of recognition. 7 Whenhe analyzes the concept of social obligation,8 Professor Hart uses thenotion of a primary rule of obligation without invoking secondaryrules. However, when he analyzes the concept of legal obligation,does Professor Hart use a combination of primary and secondaryrules? A case can be made each way. First, it might be said, withProfessor Mullock, that an obligation imposed by a social rule is nota legal obligation unless the rule is a legal rule, i.e., a valid rule ofthe legal system. Thus, to analyze "legal obligation," it is necessaryto invoke both primary rules of obligation and secondary rules ofrecognition specifying criteria of validity. Second, and alternatively,it might be said that an analysis of legal obligation is really an analy-sis of two distinct concepts, obligation and legal validity, and that inanalyzing the former, Professor Hart uses primary rules of obliga-tion but not secondary rules, and in analyzing the latter, he usessecondary rules of recognition but not primary rules.But whether two separate concepts or only one basic concept isbeing analyzed is less important than the correctness of ProfessorHarts overall analysis of the concepts of obligation and validity.In addition to the criticisms I made in my initial article, I would,now make three further points (tentatively, and without attemptingto develop-them in detail). First, in analyzing the concept of obliga-tion, Professor Hart assumes that primary rules imposing obligationscan exist in the absence of secondary rules specifying criteria forthe identification of valid primary rules. But is this not a logicalimpossibility?9 When we say "X has an obligation," me mean boththat there is a primary rule imposing a duty on X and that this ruleis recognized as valid.10 To recognize a rule as valid is implicitly toinvoke criteria of 'validity, criteria which, if embodied in rules atall, must, in Professor Hart's scheme, be embodied in secondary rulesof recognition. Thus, unless we say merely that a regime of primaryrules of obligation with criteria of validity unembodied in rulesT Mullock, Some Comments on Professor Hart's Legal System-A Reply to ProfessorSummers, 1965 DuxE L.J. 62, 64.* HARi 79-88.'I am indebted to Professor Donald Davidson of the Stanford University facultyfor stimulating me to think about this question, but I assume sole responsibility forthe tentative answer I give here.1 0 This certainly seems true if we are speaking of legal obligation; with moral rules,however, it is difficult to set up a heirarchy of primary and secondary rules withoutartificiality.[Vol. 1965: 76A BRIEF REJOINDERcan exist, we must conclude that a regime of primary rules of obliga-tion without accompanying secondary rules of recognition is a logicalimpossibility.Second, Professor Hart's failure to perceive the logical impossi-bility of his regime of primary rules may explain his apparent failureto understand Hans Kelsen's characterization of the rule of recogni-tion as a "postulated ultimate rule." Professor Hart says Kelsen'scharacterization "obscures ... the point... that the question whatthe criteria of legal validity in any legal system are is a question offact."'- Really there are two questions here, and Kelsen addresseshimself to one and Professor Hart to the other. The first questionis: What is logically presupposed in talk about legal rules? Tothis Kelsen would say, a "basic norm" (a rule of recognition). Asecond and different question is this: What is the rule of recognitionin a given legal system? We may, with reservations, 12 agree withProfessor Hart that this is an "empirical, though complex, questionof fact."'8Third, even if it be granted that Professor Hart's regime of pri-mary rules is a logical possibility, the question remains whether thisregime is to be called law. Professor Hart is not consistent. At onepoint, he speaks of this regime as "pre-legal"; 14 at another place, heacknowledges the possibility of "rudimentary law."' 5  My prefer-ence is the latter characterization, but the propriety of callinga regime a regime of law is, of course, less important than an aware-ness of the actual similarities and differences between the ordinarycases in which we say there is law and borderline cases in which wemight say there is law.IIREDUCTIONISMReductionism is but one of many sources of error in legal philoso-phy.'1  But what is reductionism? Professor Mullock says I have-- HART 245.121 am not prepared to state these reservations here. For useful comment, seeCameron, Observations on the Concept of Law, 1963 JURmICAL RV. 101, 109; Hughes,Book Review, 9 NATURAL L.F. 164, 168 (1964); Singer, Hart's Concept of Law, 60PHILOSOPHY 197, 212 (1963).18 HART 245.1 HART 91.1 HART 84.11 A list of other sources of error might include the influence of the criminal lawmodel, the desire for order and system, insufficient clarity of aim, the assumption that. Vol. 1965: 76]DUKE LAW JOURNALcalled three different things "reductionism," none of which shouldbe so characterized. First, he says that "the ability to see 'the onein the many' should not be dismissed as reductionism."' 7 I was not,however, criticizing Professor Hart's ability to see the one in themany. I was, to use Professor Hart's own words, criticizing his"failure to resist the temptation to oversimplify the heterogenousand complex phenomena of law," a temptation which he himselfcalls "reductionist."' 8Second, Professor Mullock says that the activity of classifyingphenomena should not be dismissed as reductionism. Thus heobjects to my two questions: "Can rules be reduced to two classes?"'1and "Can secondary rules be reduced to three types?"'20  Of course,not all classification is reductionist, but the very examples ProfessorHart himself uses to illustrate reductionism are, in ProfessorMullock's words, "about classification." Thus, Professor Hart says:This oversimplifying "reductionist" drive, so often found to be asnare in many other branches of philosophy, is evident, for ex-ample, in Kelsen's insistence that really the "genuine norms" arethose rules ("primary norms") which direct officials of the systemto apply sanctions under certain conditions, and that the essenceof a legal system is best revealed if we restate all legal rules in theform of conditional directions to officials to apply sanctions. 21Thus, Kelsen would classify all legal rules into a single category.Professor Hart, or so I thought,2 2 would put them into two cate-gories, which for me, still does not do justice to the "heterogenousand complex phenomena of law."Third, Professor Mullock says that mere emphasis upon onefeature of what is to be analyzed should not be dismissed as re-ductionism. Thus, for him, Professor Hart's emphasis upon rulesin the analysis of the concepts of court and legislature is not reduc-tionism. Of course, to emphasize is not necessarily to distort, butwhat is can be understood without seeing how it comes to be, the failure to get downto cases, and the "school" scheme of classification. I expect to prepare a paper on thissubject during the coming year.2 Mullock, supra note 7, at 67.28 Hart, Analytical Jurisprudence in Mid-Twentieth Century: A Reply to ProfessorBodenheimer, 105 U. PA. L. Rnv. 958, 959 (1957).19 Summers, supra note 3, at 641.2 0 Id. at 642.2 Hart, supra note 18, at 959. See also HART 83.2 1 now think that I was wrong; Professor Hart should probably be interpretedto allow for more than two basic types of legal rules. See especially HART 82.[Vol. 1965: 76A BRIEF REJOINDERwhen emphasis results in the neglect of significant aspects of whatis being analyzed, there is indeed typical reductionist distortion.Professor Mullock does not address himself to the reasons I gavein my article for believing that an analysis of the concepts of courtand legislature in terms of rules may distort.2So much for the concept of reductionism. It is, I think, usefulto distinguish two varieties of reductionism. What is analyzed maybe reduced down to its lowest denominator, e.g., the concept of alegal system may be reduced to its bare bones, primary and secondaryrules. On the other hand, what is analyzed may be reduced toanother thing, e.g., laws may be reduced to something else-rules?In my initial article, I charged Professor Hart with both brands ofreductionism, but I obscured the distinction between the two.Professor Mullock's remarks do not incline me to drop thesecharges.24IIIPart IV of Professor Mullock's paper is largely a frolic of hisown. While this does not, of course, make Part IV of his .paperunimportant, I nevertheless leave it entirely to him with this query:Can mathematical models help us? Indeed, may they not positivelymislead us?252 Perhaps one reason Professor Hart overstresses rules is that he is influenced bythe desire to show that the legal realists were too extreme. Thus, for example, by ana-lyzing the concept of a court in terms of rules "constituting" it, he reminds the realiststhat it is not enough to say that the law is what the courts say it is, for we must lookto the law first before we can even identify a court.2" What I said in my article was intended only to be suggestive; I deliberately re-frained from arguing my case in detail.25I here relegate the following comments (quibbles?) to footnote status.(1)Professor Mullock says: "Professor Summers asserts that in elucidating the con-cept of validity, Professor Hart uses the notion of a rule of recognition rather than aunion of rules. But what else could he use, and what more is necessary?" Mullock,supra note 7, at 64. I did not intend to suggest that he could or ought to use more;I was purportedly stating a fact.(2) I asked, "Can laws be reduced to rules?" Summers, suPra note 3, at 640. Pro-fessor Mullock says: "I have difficulty in understanding what Professor Summers isgetting at, for in a footnote he adds that he does not mean to imply that ProfessorHart says that laws can be reduced to rules." Mullock, supra note 7, at 68. Again, Imeant only that Professor Hart does not, in so many words, say that laws can bereduced to rules.(3) Professor Mullock says: "Therefore, if Professor Summers wants Professor Hartto specify criteria for the existence of a legal system, he is asking Professor Hart to dosomething other than analytical jurisprudence, for such criteria, as has been indi-cated, are not to be found within the concept 'a legal system.'" Mullock, supra note 7,at 69-70. But Professor Hart himself undertakes to lay down necessary and sufficientconditions for the existence of a legal system, and it was to this effort that my remarkswere addressed.. Vol. 1965: 76]

A Brief Rejoinder to Professor Mullock

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Cornell Law Faculty Publications Faculty Scholarship
Winter 1965
A Brief Rejoinder to Professor Mullock
Robert S. Summers
Cornell Law School, rss25@cornell.edu
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Summers, Robert S., "A Brief Rejoinder to Professor Mullock" (1965). Cornell Law Faculty Publications. Paper 1349.
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Cornell University Law SchoolScholarship@Cornell Law: A Digital RepositoryCornell Law Faculty Publications Faculty ScholarshipWinter 1965A Brief Rejoinder to Professor MullockRobert S. SummersCornell Law School, rss25@cornell.eduFollow this and additional works at: http://scholarship.law.cornell.edu/facpubPart of the Jurisprudence CommonsThis Article is brought to you for free and open access by the Faculty Scholarship at Scholarship@Cornell Law: A Digital Repository. It has beenaccepted for inclusion in Cornell Law Faculty Publications by an authorized administrator of Scholarship@Cornell Law: A Digital Repository. Formore information, please contact jmp8@cornell.edu.Recommended CitationSummers, Robert S., "A Brief Rejoinder to Professor Mullock" (1965). Cornell Law Faculty Publications. Paper 1349.http://scholarship.law.cornell.edu/facpub/1349HeinOnline -- 1965 Duke L. J.  76 1965HeinOnline -- 1965 Duke L. J.  77 1965HeinOnline -- 1965 Duke L. J.  78 1965HeinOnline -- 1965 Duke L. J.  79 1965HeinOnline -- 1965 Duke L. J.  80 1965HeinOnline -- 1965 Duke L. J.  81 1965

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