Hart's Concept of Law Lecture Seven 2001:
E. Rule of Recognition:- Hart's final point is that International Law lacks a Rule of Recognition. But his rule of recognition is akin to a constitution and a constitution must itself be presupposed as valid in order to validate inferior rules. Therefore in order even to say that legally an individual or a state) ought to do something, whether in municipal or international law, one must logically presuppose an ultimate ought statement, a basic norm, or a rule of recognition. Thus if "State X ought to do Y" is a valid legal norm, its normative character is ultimately based upon a presupposed basic norm, as with Kelsen. Of course, it is true that any analogue of a municipal constitution in international law would be partial and vague, but if one interprets international relations as legal at all, as Hart proposes to do; that is as normative (as what ought to be), then one presupposes in one's thinking, a higher norm which validates the particular normative judgment. Hart questions this: 206 "... why should we make this a priori assumption ... and so prejudge the actual character of the rules of international law?" (Hart, op.cit., p.228) which is to suggest that there is no logical necessity of a basic norm in international law; that international law lacks a rule of recognition: 207 "Yet if rules are in fact accepted as standards of conduct, and supported with appropriate forms of social pressure distinctive of obligatory rules, nothing more is required to show that they are binding rules, even though, in this simple form of social structure, we have not something which we do have in municipal law: namely a way of demonstrating the validity of individual rules by reference to some ultimate rule of the system". (Hart, op.cit., p.229).
But "acceptance" is a socio-psychological phenomenon and from the point of view of an analysis of law the assumption is made that behaviour ought to conform to the rules of law, not that it actually does so conform. Because behaviour and "acceptance" never totally conforms to rules of law, it must be possible to say that individual X ought to do Y, but does not do so; or that state Z did not behave as it ought to at International law. But Hart's behavioural analysis renders such judgments problematic, perhaps logically impossible. His analysis represents law ultimately as what in fact happens, as opposed to what ought to happen. And what s worse, it does so while purporting to be a normative - i.e. an ought-to-be - analysis of law. So Hart's analysis of international law is unpersuasive and this is in part due to his having adopted a practice theory of rules which as we shall shortly see is open to serious criticism.
14 "Internal" Criticisms
(a) "Practice Theory of Rules": The central concept of Hart's theory is, despite some early tergiversation, that of a "rule". Yet Hart fails to give an adequate account of that concept. [OHP8] According to Hart, there is a rule that individuals ought to do X under certain conditions in a particular society iff:
(a) Most individuals who are members of the society do X in the circumstances stipulated; i.e. they "comply" with the rule;
(b) When an individual does not do X in such circumstances he encounters critical reactions [this would be much better if "sanctions" were substituted though Hart is estopped from that substitution];
(c) Such criticism are not the objects of further criticisms themselves;
(d) members of the society use locution like "an individual ought to do X in such circumstances" and "it is a rule that X be done in such circumstances".
This stipulation guarantees that the rules are general or widespread and not merely the ideas of a few cranks; and it seeks to separate rules from mere habits or regularities. Yet it won't do. Not only because a rule may qualify the behaviour only of a few contrary to (a) but also because it may well be that critical reactions to critical reactions are far from rare. And again, it cannot be an adequate analysis of a rule to say one exists if people say so since the term they use is the very one for which an analysis is sought. [cf Loch Ness Monster] There are three major defects in Hart's analysis of as "rule":
1. If not all rules are "practices", his account fails to explain those which are not.
2. It fails to separate rules and reasons
3. It deprives rules of their normative character.
ad 1 Rules need not be practised in order to be rules; e.g a statute, before anyone has an opportunity to comply, or one for which the relevant conditions do not come about. Hart came to accept this criticism as one of several justified criticisms of the "practice theory of rules": 208 "Enacted legal rules by contrast, though they are identifiable as valid legal rules by the criteria provided by the rule of recognition, may exist as legal rules from the moment of their enactment before any occasion for their practice has arisen and the practice theory is not applicable to them" (Hart Concept, 2nd edn., p 256) Moral rules may be like this too in that it is possible to believe in a rule even if one is not and never is a member of a community which practices that rule; eg a solitary vegetarian in a community of meat-eaters. Indeed one may believe that a rules is valid and not observe it: "I see and praise the better, do the worse". At the very least, critical reaction and general compliance are not conceptually part of a rule. Therefore there may be rules which escape Hart's criteria.
ad 2 Rules and reasons (Warnock) It is simply not the case that every occasion of a critical reaction presupposes a rule. It may be that people regard X as a good thing to do, "a good move" but yet not something required by a rule. Recollect Ross's point about chess, published some years before Hart's Concept: 19 "Even after watching a thousand games [of chess] it would still be possible to believe that it is against the rules to open with a rook's pawn". (Alf Ross, On Law and Justice, London, 1958, p.15). Although there is a practice of not opening with a rook's pawn there is no rule against it. Warnock provides the following illustration of the point: 209 "Consider the situation of the spectator of a cricket match, ignorant of the game, and trying to work out what rules the players are following. He will find, for instance, that when six balls have been bowled from one end, the players regularly move round and six balls are then bowled from the other end; deviations from this, he will observe, are adversely criticised. He will probably find also that, when a fast bowler is replaced by a slow one, some persons who were previously stationed quite close to the batsman are moved further away, some, probably, a lot further away; and he will find that, if this is not done, there is adverse criticism. But if he concludes that, in so acting, the players are following rules, he will of course be right in the first case, and wrong in the second. There is no rule that a slow bowler should not operate with exactly the same field setting as the fast one; this is indeed scarcely ever done, and it would nearly always be regarded as wrong to do it, but that is because, quite independently of any rules, it is something which there is nearly always good reason not to do". (G.J. Warnock, The Object of Morality, Oxford, 1971, pp.45-46). Hart's criteria fail to allow for this distinction.
ad 3 Internal and external aspects of rules (Raz): There are two contributions to the debate from Professor Raz to which I will draw attention: (1) "internal point of view", which I address now; and (2) "sources thesis", which I will address in a later lecture. Rules are normative and prescriptive, but practices are factual and descriptive. A rules states what ought to be done. A statement of a practice says what actually happens - what is, or has, been. The fact that people behave in a particular way gives no reason why they do so and does not licence the inference that they ought so to behave. Further (at pp 171-177) Raz makes another telling point against Hart's internal/external dichotomy and its consequences for legal statements. For Hart, statements about law seem to be one or other of two kinds:
(1) these made by people who believe in the validity of law - the internal point of view;
(2) statements made by those who do not accept the validity of law - the external point of view. But, Raz says 210 "... I should like to draw attention to one further kind of statement which is of great importance to our understanding of discourse about law as well as normative discourse in other contexts". (Joseph Raz, Practical Reason and Norms, p.172). Raz first rejects Hart's dichotomy: 211 "The analyses to be rejected assimilate the statements under consideration into one or other of the basic types of statement". (Raz, op.cit., p.173) and holds that 212 "The beginning of wisdom is to allow that such statements are not reducible to one or the other of the basic types". (Raz, op.cit., p.175). Such statements are made from and express "the legal point of view" - they describe what the law is, and not how this or that individual feels about the law. They are statements about law from its own point of view: 213 "When giving legal advice a solicitor or any other person is stating what is the case from the legal point of view. He may do so because he believes that the man he is advising endorses this point of view completely or in part. But sometimes he makes no such assumption. He may know that the man he is advising is not law-abiding, that his interest is merely to find out what view the police or the courts are bound to take of his behaviour. A law lecturer or legal writer normally does the same. He states what is the case from the legal point of view without normally making any specific assumptions about the reasons which may make his audience interested in his lecture or book - they may just be interested in the information (in order to pass an examination or for any one of a variety of reasons).
A barrister arguing a case before a court may do no more. He may simply state what is the case according to law in the knowledge that the judges hold themselves bound to act according to law. Naturally a barrister, a solicitor, a lecturer or any other person talking about the law may ... state what reasons there are on account of the law. But it is important to see that they may not do this. They may merely state what ought to be done according to the law". (Raz, op.cit., pp.176-177). This is a useful activity because 214 "There are always people who accept the point of view and want to know what ought to be done according to it in order to know what they ought to do". (Raz, op.cit., p.177) and 215 "... even people who do not endorse them have a practical interest in what is required by law. This leads them to make normative statements from a point of view which they do not necessarily accept as valid". (ibid).
Many years ago I watched, spellbound, a television series presented by Jacob Brownowski, entitled The Ascent of Man. Among many things that fascinated was Brownowski's account of Einstein's intellectual development; 216 "The thought that Einstein had had in his teens was this: 'What would the world look like if I rode on a beam of light?'" As Brownowski says, "The answer to the question is full of paradox, and that makes it hard. And yet, as with all paradox, the hardest part is not to answer but to conceive the question". (Jacob Brownowski, The Ascent of Man, London 1973, p 247) The brilliant and paradoxical Kelsenian question, which Raz answers more convincingly than did Hart was: "What would law look like from its own point of view?"
15. "External" Criticisms
(a) Law and Morality. Fuller conceives of law as ... 217 "... the enterprise of subjecting human conduct to the governance of rules". (Fuller, The Morality of Law, Revised ed., 1970, pp.96, 106, 122, 130). Thus, 218 "Law has to do with the governance of human conduct by rules". (Fuller, op.cit., p.53). But, says Fuller, this implies a moral point of view of human beings as beings capable of adapting their conduct to the idea of rules and that imposes moral limits upon what can be law. Fuller thinks that it is defect of Hart's Concept that is does not acknowledge the important point that: 219 "To embark on the enterprise of subjecting human conduct to the governance of rules involves of necessity a commitment to the view that man is, or can become, a responsible agent, capable of understanding and following rules, and answerable for his defaults". (Fuller, op.cit., p.186). Law, then, as made by man, must be true to its purpose which, according to Fuller, is:- 220 "If I were asked, then, to discern one central indisputable principle of what may be called substantive natural law - Natural Law with capital letters - I would find it in the injunction: Open up, maintain, and preserve the integrity of the channels of communication by which men convey to one another what they perceive, feel and desire". (Fuller, op.cit., p.186).
It is this element in Fuller's approach more than any other that entitles him, in my opinion to be classified as a natural lawyer concerned with the intrinsic value of law and not as merely a sophisticated positivist commenting on instrumental values. For Fuller, there are certain characteristics which "law" must exhibit to be law in order to live up to its "purposive" nature. This is the core of the idea of the "inner morality" or "inner logic" of the law: 221"... in nearly all societies men perceive the need for subjecting certain kinds of human conduct to the explicit control of rules. When they embark on the enterprise of accomplishing this subjection, they come to see that this enterprise contains a certain inner logic of its own, that it imposes demands that must be met (sometimes with considerable inconvenience) if its objectives are to be attained. It is because men generally in some measure perceive these demands and respect them, that legal systems display a certain likeness in societies otherwise quite diverse. It is, then, precisely because law is a purposeful enterprise that it displays structural constancies which the legal theorist can discover and treat as uniformities in the factually given" . (Fuller, op.cit., pp.151-151).
[OHP9] To illustrate the limitations which the inner morality of law imposes upon what can be thought of as law, Fuller lists "Eight ways to Fail to Make Law" - or eight desiderata of law:-
1. General rules cf ad hoc decisions;
2. Promulgation - must be public, published and open to public criticism;
3. No retroactivity - due process, prospective rules, etc.;
5. Non-contradictory - i.e. not merely logic, but also teleology;
6. Should not require the impossible --- Fuller is not too happy about strict liability
7. Should not change overmuch; i.e "permanent" not "evanescent";
8. Congruence between official action and deed.
I summarised these points as an undergraduate in the mnemonic poem 222
ODE TO FULLER - EIGHT WAYS TO FAIL
The King of any country
Will fail to make 'good' law
If his putative enactments
Are marred by one such flaw:-
Be he completely silent
Or loud, but most unclear
In either case we have to say,
There is no law made here.
Should he keep his laws a secret
Or publish laws absurd
Require impossible actions
Or go against his word,
Or change his laws too frequently
Or pass backward-looking laws
The subject knows not what to do
And the sovereign's laws are flaws.
Fuller's case against Hart, in a nutshell, is that Hart's "Model of Rules" ignores the purpose of law and its inner morality or inner logic and that only by doing so could Hart hold that what went on in Nazi Germany was Law.
External Criticisms (b) Principles and Rules: Dworkin has criticised Hart's theory on many on many points over the years but his one of his earliest, most important and most enduring criticisms, set out in his essay, "Is Law a Model of Rules", is that Hart failed adequately if at all to consider and accommodate the idea of a legal principle. Law, for Dworkin is not merely a set or system of rules but involves principles. Rules are incapable of stating the whole of the law and it is through an understanding of the nature of principles that the obligatory nature of law is to be appreciated. Dworkin was particularly concerned with the ideas of obligation and discretion and he argues that the positivist must hold that when a judge decides a case of, say, first instance, he is not deciding according to the law. But in the case Dworkin cites, possibly now the best known case in jurisprudence, Riggs v Palmer 115 NY 506, 22 N E 188 (1889), it would be absurd to say that the judge applied a rule, yet not absurd to say that the judge applied the law.
The case of the odious Elmer, who aged 16, fatally poisoned his grandfather in order to inherit under his will before the old man remarried is widely described, perhaps misleadingly as a "hard case". Unlike some cases which may be difficult to decide because the rules are unclear or conflicting this is a case where the rules are clear and applicable. A literalist application of the legal rules, that is the statutes defining the making of wills, would have permitted, perhaps even required, Elmer to inherit. In general, such statutes do not contain any express exclusion for "felonious beneficiaries". However, the New York Court of Appeals, albeit by a majority held that the rules were subject to override by the (equitable) principle that "No one should profit from their own wrong".
Dworkin draws a series of conclusions for legal theory from this example, not all of which have been easy for his colleagues to accept. First, and perhaps least contentious, that there is more to law than rules. Principles are important and Hart's model of rules would be deficient if it excludes them. Secondly, and this is less a matter of agreement, rules and principles differ logically. Rules, for Dworkin are "all-or-nothing"; principles have weight and are "more-or-less". Rules are polar; principles are scalar. If rules and principles differ logically, then principles cannot be reduced to rules. But that means that a rule-based theory, such as Hart's cannot fully accommodate all the relevant legal phenomena and, accordingly, Dworkin can conclude that the "model of rules" does not work. As I said, this point is contestable and it was contested. Many came to Hart's defence including Tapper (in England), Richards (in America) and Tur (in Scotland) arguing that (i) that there was only a difference of degree, not logical kind, between principles and rules; (ii) that, accordingly a sophisticated positivist could accommodate principles. And Hart, himself, agrees: 223 "Some critics who have found this defect in my work have conceived of it as a more or less isolated fault which I could repair simply by including legal principles along with legal rules as components of a legal system, and they have thought that could do this without abandoning or seriously modifying any of the main themes of the book" (Hart, Postscript p 259). Hart reiterates the sophisticated positivist view that the distinction between what he now calls "near-conclusive rules" and "non-conclusive principles" is a matter of degree and with, I think, some disappointment that it is necessary to do so, he reiterates the point that 224"... I certainly did not intend in my use of the word 'rule' to claim that legal systems comprise only 'all-or-nothing' or near-conclusive rules" (Hart, Postscript p 263).
Although this may satisfy some of Hart's charitable critics and may, indeed, provide the basis for a new departure in legal theory, Dworkin was not impressed either by the general defence or by the implication that he, himself, might be included within the sophisticated legal positivist camp: 225 "I did not intend, in rejecting the idea that law is a system of rules, to replace that idea with the theory that law is a system of rules and principles. There is no such thing as 'the law' as a collection of discrete propositions, each with its own canonical form. People have legal rights, and principles of political morality figure, in ways I have tried to describe, in deciding what rights they have" (Dworkin, Taking Rights Seriously, 3rd impression, 1981 with a "Reply to Critics", p 344). This clearly distances Dworkin from any version of legal positivism, however sophisticated, because whatever else may be said about it, his is certainly a rights-based theory of law.
Among his other concerns, Dworkin criticised Hart (thirdly) on obligation. For Dworkin, like the natural lawyers, obligation is a matter of content, not pedigree; and it is principles such as " No one should profit from their own wrong" which determines this content. Thus Dworkin sees in even Hart an undue formalism because the positivist idea that "any content can be law" is inconsistent with the content-constraining role of principles.
Fourthly, Dworkin criticised the role Hart ascribed to discretion. It appears to Dworkin that for Hart where "rules run out" judges have "strong discretion" and this means that, according to the positivist theory, judges make law which involves the invention of obligations imposed retrospectively and, arguably, in contravention of democratic ideals. It follows that even if Hart's position, as Dworkin understands it, was descriptively accurate, it is normatively unappealing from Dworkin's perspective.
For my own part, I think that Dworkin's criticisms of Hart rest on a number of misapprehensions about Hart's theory in particular and legal positivism in general. One point relates to the idea of a judge as an individual authorised to decide. Such decisions are, for the positivist, as for the Realist, "law" irrespective of content and are legally binding unless and perhaps until set aside by another authorised decision maker and "decisions" of the court of last resort are eternally res judicata not as a matter of content, exhaustively determined by pre-existing principles, but by virtue of the legal power to decide. The House of Lords recently ruled in Preddy that no offence under section 15(1) of the Theft Act, 1968 can be committed on the facts because a vital ingredient, "property of another" is missing. However, a decision of a court convicting someone of mortgage fraud under section 15(1) prior to Preddy is not automatically, or at all overturned by the ruling in Preddy, even if the normal effect of judicial decisions is both prospective and retrospective (Kleinwort; ex p Evans). So the weight of res judicata requires us to admit that a decision which is wrong in law as subsequently declared remains binding on the parties, even to the extent of someone convicted under an erroneous view of the law remaining in prison. On this view the need for a decision, any decision, is more important than that the decision have a particular content, however congenial or "fitting".
So legal positivism privileges the "delegation" by which the power to decide is vested in individuals or institutions, over the "subsumption" by which the content of decision is already pre-figured in existing legal materials. That, for the purposes of these lectures is where I propose to leave Dworkin other than to say that advanced students are encouraged to read Kadish & Kadish, Discretion to Disobey (esp pp 90-94)and to add that my own jurisprudential project is working out what kind of legal theory emerges from accepting, as I do, that "principles" can be accommodated within a positivist and/or Hartian framework. I think that something like Schauer's "Presumptive Positivism" emerges and having explored these issues in 1996 and 1997 in a series of lectures mysteriously entitled "Law as open-ended defeasible normative conditionals", I am in my spare time [!] trying to write it all up.
(c) Common law and rules: Simpson's criticism boils down to the challenging view that the common law is not a set or system of rules but is a body of customary law. There are some serious misapprehensions about positivism in general and Hart's version in particular - no least the false attribution of "all-or-nothing" rules expressly to Hart and impliedly to legal positivism - but there are some profoundly important and insightful points. Simpson's case is that a model of rules such as Hart's cannot adequately account for the common law. He suggests that the common law is thought of as a body of rules but that the utility of such a conception is dubious. Against this, he offers 226 "... the idea that the common law is best understood as a system of customary law, that is, as a body of traditional ideas received within a caste of experts". (A.W.B. Simpson, "The Common Law and Legal Theory" in Oxford Essays in Jurisprudence, Second Series, Oxford 1973, ed. A.W.B. Simpson, pp.77-99, p.80).
The common law as a body of rules is intimately associated with legal positivism. This itself is fair enough; as Simpson says that theory does assert 227."... that all law is positive law". (Simpson, op.cit., p.80) although whether this proposition is justly referred to as " a dogma" [p 80] is a further question. Simpson then offers what, with respect, may be seen as something of a caricature of legal positivism. He says that positivism is characterised by two elements: (1) 228 "... viewing all law in terms of a model of statute law".(ibid) and (2) treating 229 "... law as a sort of code" (Simpson, op.cit., p.81). This characterisation is clearly tendentious and will strike many positivists as inaccurate.
However Simpson develops his account of positivism to include the idea that ... 230 "... all laws must have an author ... there must be some test or criterion for identifying the lawmaker of lawmakers ... all must originate in legislation or some law-creating act ... law so conceived will appear as the product of acts of will ... it cannot be a necessary characteristic of law that it should have a particular content ... what has been laid down, conceived as a code, is exhaustive of the law of any given time - the 'school-rules concept' of law". (Simpson, op.cit., p.82). Such an account more or less equates all law with statute law. Simpson does acknowledge that some positivists, e.g. Hart and Kelsen do not insist upon legal rules having been laid down on the model of statutory legislation but that both require legal rules to be warranted as legal by reference to some master rule, be it Rule of Recognition or grundnorm. These are, as Simpson rightly notes, tests of pedigree, not content. He also acknowledges that ... 231 "As applied to the common law such weak versions of positivism could in principle no doubt cater for the possibility that it consists of rules which are not necessarily of legislative origin, nobody having ever laid them down". (Simpson, op.cit., p.83). But in either form, strong (Austin) or weak (Hart and Kelsen) Simpson claims that positivism is inadequate. It is difficult to isolate the act of legislation which Austinian positivism requires. Austin holds that... 232 "... there can be no law without a legislative act". (Austin, Lectures, 5th ed., 1855, ii, 216) and that judges are the makers of the common law - otherwise the common law would be ... 233 " ... a miraculous something made by nobody, existing, I suppose, from eternity and merely declared from time to time by the judges". (Austin, op.cit., p.655).
Simpson cites the example of the "rule" that "parole contracts require consideration" which has been part of the common law from the 16th century. When was it legislated? He says that this is not the same as asking: "What authority is there for it?" To that question one might cite Eastwood v Kenyon (1840) 11 A & E 438 or Rann v Hughes (1778) 7 T.R. 350 n; 4 Bro. P.C. 27. Even better as an authority would be a modern House of Lords case. But...
234 "... the production of authority is not the same as the identification of acts of legislation". (Simpson, op.cit., p.85); i.e the rule has been asserted very much longer and was legislated before the case was cited as authority. Further, even if one could find beyond doubt THE case in which the rule was first enunciated, this would not be the authority for the rule. One must, says Simpson, a distinguished legal historian, distinguish legal authority and legal history. In contrast, the rule that a will requires two witnesses laid down in the Wills Act, 1837 fits the model readily enough. Common law "rules" are rules of the common law not by virtue of an unequivocal act of legislation but by virtue of what Simpson aptly calls "continued reception". Judges may express opinions but 235 "... to express an authoritative opinion is not the same thing as to legislate". (Simpson, op.cit., p.86).
Simpson then makes a claim which is perhaps hard to accept from any point of view and impossible for a positivist to accept ... 236 "There exists no context in which a judicial statement to the effect that this or that is the law confers the status of law on the words uttered, and it is merely misleading to speak of judicial legislation". (ibid), a radically anti-realist position
The weaker form of positivism does not fair any better: it claims that the common law is a set of rules, a sort of code and, of course, we all know that it s not a code. What the rules are may be discovered by utilising the test the system lays down, e.g. the Rule of Recognition. Now in recent times the formulation of rules governing authorities has been attempted, but these are far from clear ... e.g. hierarchy, interpretation, rationes, obiter, etc. Simpson teases us that 237 "... it is all a very theological world, with mysteries similar to those that surround the doctrine of papal infallibility ... all is reminiscent of the smile on the face of the Cheshire cat". (Simpson, op.cit., p.87).
A further problem is that the rules of common law are unclear and shadowy whereas those of statute are crisp and identifiable. The common law ... 238 "...professes ... to develop and apply principles that have never been committed to any authentic form of words". (Pollock, A First Book of Jurisprudence, 3rd ed., 1911, p.249). So, is the common law, as Bentham though merely 239 "... a fiction from beginning to end ... a mischievous delusion". (Bentham, Collected Works, IV, 483). If one assumes the common law to be a set of rules one is embarrassed to find that one cannot state them. Bentham, again, 240 "In these two words [common law] you have a name pretended to be the name of a really existent object:- look for it till doomsday, no such object will you find". (ibid) and 241 "As a system of general rules, the common law is a thing merely imaginary". (Bentham, A Comment on the Commentaries 1928, ed. Everett, p.125).
Clearly there is no authentic form of words stating the rules of the common law. Academics and judges differ inter se - for every 5 academics there are 6 different, perhaps conflicting, statements of the rule ! The courts do not reach a final authoritative statement of the law in a general abstract sense. But Bentham's view is extreme, says Simpson. Here are many"rules" which would secure general agreement among common lawyers as being correct statements of law. For Simpson there are propositions of the common law which can guide judges in their decisions and thus, contrary to Bentham's view, the courts are not a 242 "... power everywhere arbitrary". (Bentham, Collected Works, IV, 460). A modern version of this kind of Benthamism is found in Campbell's The Legal Theory of Ethical Positivism. Like Bentham, Campbell seeks the abolition of the common law and its replacement by clear, written statutory rules, exhaustively defining all legal relationships; like Bentham, but unfashionably today, Campbell opposes empowering judges by way of a Bill, Charter, or Convention of Rights to override such rules, however obnoxious the rule and however much it may impinge upon fundamental freedoms or civil liberties; and like Dworkin, Campbell opposes and seeks to eradicate judicial discretion in any meaningful sense of that term.
Further, says Simpson, the fact that a proposition of law is long established and warranted by the tests of the system does not mean that only legislation can change it. This is a direct criticism of Hart: 243 "... the result of the English system of precedent has been to produce, by its use, a body of rules of which a vast number, of both major and minor importance, are as determinate as any statutory rule. They can now only altered by statute". (Hart, The Concept of Law, p.132). This may have had some credence prior to 1966 but the Practice Statement re-asserts the power of the courts to alter even well-established common law rules and in general, common law rules are open to subsequent modification or even reversal by the courts. As the American Realists put is, "Law is in flux". For Simpson, 244 "The point about the common law is not that everything is always in the melting-pot, but that you never quite know what will go in next". (Simpson, op.cit., p.91), a radically pro-realist position
So, Simpson encourages us to abandon the rule-based model of the common law as a sort of code and revive ... 245 "... the traditional notion of the common law as custom". (ibid); as lex non scripta; what Hale called 246 "... the general customs or the common law properly so called". (Hale, The History of the Common Law, 2nd ed., 1716, p.22) which 247 "... are grown into use, and have acquired their binding power and force of laws by a long and immemorial usage, and by the strength of custom and reception in the Kingdom". (Hale, op.cit., p.23). But we should wish to allow for conscious change in our system of customary law, says Simpson. It is not only of immemorial antiquity. There are recently evolved doctrines; some come and go, some survive. Thus the common law is for Simpson a customary system of law consisting of the ideas and practices of an expert caste. It is not a matter of rules as positivism seeks to claim. Thus ... 248 "Formulations of the Common Law are to be conceived of as similar to grammarians' rules, which both describe linguistic practices and attempt to systematise and order them; such rules serve as guides to proper practice since the proper practice is in part the normal practice; such formulations are inherently corrigible.." (Simpson, op.cit., p.94). The caste of experts who nurture the common law is incapable of precise definition ... 249 "Now a customary system of law can function only if it can preserve a considerable measure of continuity and cohesion, and it can do this only if mechanisms exist for the transmission of traditional ideas and the encouragement of orthodoxy. There must exist within the group - particularly amongst its most powerful members -strong pressures against innovation; young members of the group must be thoroughly indoctrinated before they achieve any position of influence, and anything more than the most modest originality of thought treated as heresy". (Simpson, op.cit., p.95). Simpson believes that these conditions were met by the common law; it had a private language [cf Bentham !]; institutions to produce cohesive thought; and a gerontocratic organisation. Customary practices develop out of the consensus that such institutionalised cohesiveness brings. Thus things were done and doctrines developed not because they fit a test as positivists claim. The common law is chiefly an oral tradition; still only imperfectly reduced to writing ... 250 "To argue that this or that is the correct view, as academics, judges and counsel do is to participate in the system, not simply to study it scientifically". (Simpson, op.cit., p.97). So is the common law a body of rules? Well ... 251 "... the common law is more like a muddle than a system". (Simpson, op.cit., p.99). ["..a maze, not a motorway ... that is its beauty", L Diplock] Thus it is not systematic. The reduction to a system of rules is an ideal of knowledge and not the reality of the common law: 252 "The systematization of the common law ... is surely a programme, or an ideal, and not a description of the status quo". (ibid)... 253 "It is the ideal of the expositor of the law, grappling with the untidy shambles of the law reports, the product of the common law mind which is repelled by brevity, lucidity and system ... it is, I suspect, a rather futile ideal; the only effective technique for reducing the common law to a set of rules is codification, coupled of course with a deliberate reduction in the status of the judiciary and some sort of ban on law reporting". (ibid). Thus, for Simpson, there is no way that the common law can properly be represented as or reduced to a body of rules. Accordingly, rather like Austin's theory, Hart's fresh start may accommodate statute reasonable well but it s inadequate as an account of common law.