The Concept of Law and 'The Concept of Law' Author(s): Neil MacCormick Source: Oxford Journal of Legal Studies,

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The Conceptof Law and 'The Concept of Law't

NEIL MACCORMICK*

This lecture commemorates a great jurist and philosopher. Since Herbert Hart's recent sad death, many have paid just and eloquent tribute to his qualities as scholar, as teacher, and as human being. His work, and his approach to work and to life, were a source of guidance and inspiration to many. My own intellectual debt to him is a great one, and I owe much to his personal kindness and professional support as well. I am too much honoured in being invited to give this year's Hart lecture. Against original hope and design, this has turned into a lecture in memoriam Herbert Hart; as such, it can at best only echo his own splendid qualities. Perhaps its title 'The Concept of Law and The Concept of Law' has, appropriately, the ring of an echo in it. The starting point for discussion has to be in one of the focal ideas of Hart's legal positivism, that of the conceptual distinction between law and morality. Three salient points of distinction are, for me, that law is institutional, authoritative, and heteronomous, contrasting with the personal and controversial, the discursive, and the autonomous character essential to morality. Having established these contrasts in the first section, I proceed in sections two, three and four to discuss respectively the institutional, the authoritative, and the heteronomous character of law. Finally, bearing in mind that law and morality are both normative, both action-guiding for rational agents, I mitigate the sharpness of the earlier-drawn contrast in a consideration of practical reason, law, and morality in relation to law.
t This is the revised text of the Hart Lecture, delivered in Oxford University on 11 May 1993. I am very grateful to Adrian Zuckerman for his kindness and help in arranging this lecture, and for the invitation by himself and the other trustees to present this lecture. I received great help in preparing it from Zenon Bankowski (cf his 'Don't Think about it: Legalism and Legality' in M. Karlsson et al (ed) Law, Justice and the State, Rechtstheorie, Beiheft 15, 1993), from discussion with Michael Menlowe, and from reading Michael Roumeliotis' Linguistic Jurisprudence (Edinburgh University, PhD thesis, 1993), from seeing and discussing Tom Campbell's typescript of his forthcoming Legal Theory of Ethical Positivism (Dartmouth Publishing Co, Aldershot, 1994, forthcoming), and from discussions with Hamish Ross on Hart's legal theory and the sociology of law during his period of work in Edinburgh Law Faculty supported by the Lindsay Bequest Fund. I received valuable comments and criticisms at the seminar following the Hart Lecture, from John Finnis, Carl Wellman, Nicola Lacey, Tony Honore and others, including students, whose names now escape me. All these contacts have certainly improved my initial thoughts and earlier typescripts, but the remaining defects are imputable to myself alone. * University of Edinburgh.

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1 Law and Morality: A Conceptual Distinction

Recently, Anthony Bland, a victim of the Hillsborough disaster of 1989 died after several years in a persistent vegetative state. He died because of the discontinuance of the nourishment through tubes which had hitherto sustained him. Given his long-enduring persistent vegetative state, and given that this state was irreversible owing to the degeneration of brain-tissue, responsible medical opinion was that continued medical intervention to prolong Anthony Bland's life was not in his best interest. On these two accounts, the House of Lords held that cessation of feeding and of treatment with antibiotics was lawful, and laid it down that in future like cases, the same test should be applied, subject to the confirmation by the High Court in each case of the lawfulness of the discontinuance in the light of all prevailing circumstances.' Recently also, men have been convicted of and imprisoned for the perpetration on each other of violent and injurious acts; these were held to be serious assaults in law, even though the acts had taken place on private premises and the victims had desired and consented to hurt on their genitals and elsewhere by way of sado-masochistic pleasure. The House of Lords has pronounced on this, too, holding that consent is a defence to a charge of assault only in a restricted class of cases such as necessary surgery or regulated sports.2 So the assaults in the Brown case are to be treated as serious crimes, involving grievous bodily harm. Substantial prison terms are being served by the persons involved. In the first case, the judicial ruling was challenged by a priest who tried to raise a private prosecution after Tony Bland's death. In the second, controversy also continues, as the Lords' ruling is challenged at Strasbourg under the European Human Rights Convention. In this case or some other soon, the question will be raised at the European Court of Justice in Luxembourg whether the human rights convention is now incorporated in European Union Law through the Maastricht treaty, hence operative in the United Kingdom as domestic law, hence requiring and enabling British judges to apply it directly in domestic legal disputes. Nevertheless, for the time being, the House of Lords decisions stand as a matter of UK law, determining authoritatively and clearly the English law on the questions raised. In all sorts of ways, as we see, issues of life and death can give rise to controversy. Abortion is another perennial example. In 1938, the surgeon Alec Bourne performed an abortion on a girl of fifteen impregnated by violent rape, and then reported himself to the police. He was prosecuted, but the judge directed the jury to acquit if the Crown had not proved beyond reasonable doubt that the surgeon had not acted in good faith with a view to protecting the life,
Airedale NHS Trust v Bland [1993] 1 All ER 821; note Lord Goffs view that the process of reference of each case to the President of the Family Division of the High Court is expected to build up a jurisprudence which will constitute a sufficiently determinate body of law to make continuing reference to the court in every case unnecessary-the law should come to be sufficiently determinate for self-application by medical practitioners.
2 R v Brown [1993] 2 All ER 75 (HL).

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understood as the continuing sane and healthy existence, of the girl in question; the law's express prohibition on .performing or procuring abortion was, according to the judge, subject to an implied exception of the sort indicated.3 Mr Bourne was acquitted, and the ruling in the case somewhat precariously accepted as governing the sound interpretation of abortion law for the three following decades. But since a precedent at this level is only persuasively binding, the law so stated spoke with an uncertain voice to the medical profession, to women, and to any other concerned citizens. In 1967, to remedy unclarity by providing clearer legal permissions and prohibitions, the Abortion Act was passed by Parliament on the initiative of David Steel, MP. The legal determination thereby achieved has evidently worked as a statement of intelligible rules of law, though remaining in the front line of moral controversy. Similar controversy has yielded to different determinations in other places. In Ireland, indeed, the Constitution was quite recently amended to exclude doubt in the opposite way, and prohibiting abortion in all cases save where death of a foetus is the unavoidable sideeffect of a necessary operation to save a woman's life. But recently, a challenge in Ireland has arisen on the question whether conformity to this rule entails a power in the courts to prohibit a woman's travelling to another EC country to seek an abortion lawful under the law of that country. Does the constitution require this, or is such an interpretation of it overridden by the right of freedom of movement among member states? How do Irish law and Community law mesh in such a case?4Meanwhile, in Canada and the USA, supreme courts have deliberated on the meaning of their respective constitutional rights in respect of legislative regulation of abortion. Medical professional ethics can have a bearing on the lawfulness of life-anddeath decisions, as in Bland's case. Legal professional ethics can too. Here is an illustration to ponder. If a lawyer is involved in the defence of a damages claim for personal injuries, what should she or he do in the following case: A medical report obtained in the preparation of the defence indicates that the plaintiff is in fact more seriously ill than his own medical experts have discovered, so that not merely are the damages claimed less than they should be on the facts disclosed to the defence, but indeed the life of the plaintiff is in imminent danger owing to an aneurism? Ought the defence lawyers to warn their fellow human being of his/ her dangerous condition, or must they observe the confidentiality of their own client's information obtained for the purposes of the litigation on foot? Should they stand by and let the lower damages be awarded without giving life-saving information at the cost of higher damages? It has been authoritatively held as a matter of professional ethics that here the duty of lawyer-client confidentiality prevails, and the defence lawyers are not free to warn the defendant.5 Not everyone, I suppose, will agree with the rightness of this determination of the
R v Bourne [1938] 3 All ER 615. 4Attorney General v X and others [1992] 2 CMLR 277. See Spaldingv Zimmer,nan 116 NW 2d 704 (1962) SupremeCourtof Minnesota;I owe this referenceto

Richard Tur's unpublished to Ethics'(1992),andam muchindebtedto him fora paper'An Introduction Lawyers' seriesof discussions problems professional on of ethics in relationto law.

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point in controversy. Those who disagree may even find it the more shocking that the decision is said to be dictated by 'ethics'. The point to focus on is the morally controversial character of the official determination of the ethics question. This is perfectly in parallel with the controversy attaching to my other life-and-death cases, they being, however, cases at law strictly so-called. Not merely do we find passionate moral controversy on such matters, but the controversies have all the air of being irresoluble for the time being at the level of pure moral debate. This is not because there is no basis of possible agreement. We all see that there is a profound issue at stake in each of the cases mentioned. Choices are being made between life and death, between liberty and respect for bodily integrity, between liberty and life, between binding confidentiality and the duties of a Samaritan. What counts as a life and what counts as a human person are in issue, too. Most people are aware of powerful reasons on each side of the questions raised, but they evaluate them differently, and come in the end to different and even antagonistic views about the rights and wrongs of the matter. When we think of these moral issues at the deepest moral level, our deliberation is autonomous and discursive.6 Each of these characteristics is of great importance and needs explanatory underlining. Moral deliberation is autonomous, in that each person's careful and reflective judgment upon a moral question is for that person the only final authority upon it. Judgment belongs to each person's rational will, their will guided by careful thought and reflection. We each must come to our own final conclusion on the right of any practically open moral issue as it appears to us after fullest reflection; we can do no other. Moral deliberation is discursive, in the sense that it is incumbent on each to listen with respect, and as an un-coercive equal, to the opinion and argument of any other, so as to be sure of considering and reflectively weighing every relevant point and principle. Discursivity means we should come to a conclusion only on the ground of reasoned debate rather than by simple dogmatic say-so. And there cannot be appeal to overriding authority, for moral autonomy excludes the appeal to authority. Since the claim of autonomy is to the ultimate authority of each moral agent, discursivity is a necessary corollary: each must acknowledge every other as an equal and co-ordinate authority, with a valid view upon the issue at stake. These very features of moral reasoning and decision are, however, just what makes moral controversy so often insusceptible of being settled intersubjectively. If people disagree after careful and mutually respectful weighing and consideration of all morally relevant points put forward by all the discoursepartners, they do just disagree. We have to be careful here, of course. That moral
6 These characteristics of moral deliberation have their classical source in Kant first and foremost, but have been elaborated in great depth by many thinkers of the later twentieth century. Book 1 of Alexy's Theory of Legal Argumentation(trans R. Adler and N. MacCormick, Oxford University Press, Oxford, 1988) is a particularly good source for consideration of the joint impact of autonomy and discursivity, drawing equally on British analytical philosophy, Perelman's rhetoric and the work of Habermas and the Frankfurt school on the concept of rational practical discourse.

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controversy may be unsettlable does not mean that moral questions admit of no right answer. To find the right answer to them is the very point of moral reflection for each of us. When we disagree, it is about what we take to be the real truth of the moral matter. But each would negate moral autonomy if willing to force another to a moral conclusion by anything other than the weight of the reasons put forward. If one's partner in dialogue continues to see these weights differently, the controversy necessarily remains open and unsettled for the time being. A view of morality as essentially autonomous is itself open to meta-ethical controversy. I am not going into that here, though. Herbert Hart himself on occasion said reproving words about what he saw as excessively 'protestant' in the moral autonomism of R. M. Hare's theses about moral reasoning.7 Yet when Hart himself speaks in Concept of Law of 'enlightened morality'8 and its place in practical life, what he says points, for me, just to such an autonomous, rational, and discursive approach to moral questions as I have mentioned. In some of his finest work, in Law. Liberty and Morality, he took just such an enlightened morality as a basis for what he called also 'critical morality'. By that, he meant moral deliberation directed at the critique of established social institutions, especially law. He also taught us that this autonomous morality (as I shall call it) could be directed at the criticism of morality itself, in another sense of the term, namely conventional social morality, or 'positive morality'. Here is an example of a possible critique: As a matter of conventional positive morality, it may be thought as some of the tabloid newspapers keep averring or implying, that homosexual men are queer and perverted, so that their sexual acts are abhorrent to decent people, and they themselves should be shunned by decent people except if they can manage to be thoroughly continent and discreet. Perhaps some have come to this view by autonomous moral reflection. But I suspect that in many quarters such a view is unreflectively held just as the common view, and justified if at all by appeal to its very commonality. Appeal to the common view, indeed, is often the most any of us rises to in ordinary life. What everybody knows fine is that about which I need not always be re-thinking for myself. Positive morality is a great stay and support to us all in our ordinary way of going along. But only up to a point. The mere fact that most people I know take such and such a moral line is of itself finally indecisive as to the rightness or wrongness of the line they take. It can always be questioned in the perspective of autonomous morality as critical morality. Of course, it may be that an initially unreflective view is confirmed, or refined and then confirmed, by a process of critical argument. It may be that respect has to be given to the
7 H. L. A. Hart, 'Legaland MoralObligation', A. I. Melden(ed) Essays MoralPhilosophy in in (Universityof a as Washington morality primarily matterof the application Press,Seattle,1958)82-107, at 100:'To characterize to conductof thoseultimate whichthe individual principles acceptsor to whichhe commitshimselffor the conduct of his life seemsto me an excessively Protestant as approach. Important thisaspector kindof moraljudgment we is, need to understand as a development it fromthe primary of phenomenon the moralityof a socialgroup.' 8 H. L. A. Hart, The Concept Law (OxfordUniversityPress,Oxford,1961),ch9. of 9 H. L. A. Hart, Law,Liberty, Morality(OxfordUniversityPress,Oxford,1963),ch 1. and

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common view as a matter of respect for the persons whose common view it is. But the act of reflection and deliberation whatever its outcome transforms the character of the view held, and establishes an autonomous commitment to it. Moral argument in this way challenges us all to reconsider in one direction or another the taken-for-granted views we have picked up as an inevitable element in our own socialization. We have all experienced this, however we in the end come out on any particular question. Nobody drew this to the attention of my generation more forcefully than Herbert Hart. And a good part of the force of his appeal was to a more kindly and forbearing moral line on differences of sexual orientation, coupled with a withdrawal of the law's prohibition from acts which did nobody harm except perhaps their perpetrator, or, in the case of consensual sexual relations, perpetrators. However that may be, while paying a passing tribute to Hart's work on behalf of a liberalization of moral attitudes and criminal law, I mean today to focus rather on the controversial and unsettlable quality of moral disagreement than on Hart's own proposals in moral debate. If morality is autonomous, controversy is bound to be endemic. That is a necessary starting point for the present theme. It forces us to a certain view about the conceptual relations between the moral and the legal. To pick this up, let me now state again that one vital point of legal institutions is exactly that they exist (inter alia) to settle authoritatively for practical purposes what cannot be settled morally. Citizens of this country still disagree morally about the right way to treat PVS patients, or consensual sadomasochistic violence, or women seeking abortions. But the Parliament and the judges have severally and cumulatively pronounced on the issues raised, and the law is for the time being settled in quite clearly formulated terms on points that are unsettlable morally. Where matters are less morally contentious, or even morally indifferent, the same process of institutional determination of legal rules and rulings is no less saliently visible. Law settles what moral consensus cannot, whether through absence or through silence. For this, there is a price. It is that the law may be settled in favour of the morally wrong, even disastrously wrong, answer. Some of us will disagree profoundly with the law's determination whatever is legally determined. But the law can be determined. How? The law speaks through institutional agencies, and these agencies speak with authority. The authority of law enables them to settle determinate rules for practical human guidance. We cannot all agree with all the guidance it gives, but when the law's jobs have been well done, we can agree what guidance it gives. Though we cannot all always agree, and though the will is often weak even when the mind assents, the law is sanctioned with penalties and remedies. Legal institutions exist and their authority is established within a systematic hierarchy. Law is institutional as well as authoritative. Its authority is backed up sometimes with measures of coercion, and for one reason or another most people most of the time keep in line with what it prescribes. So law also has positivity. It sets a

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practical common line of conduct, and serious efforts are made by various agencies to uphold that as an actually governing line. It is important to humans to have some way of doing this, for they have to share social space and must coordinate their activities and achieve mutual forbearances and set up reliable frameworks for some sorts of interpersonal co-operation. The very features of law that set up contrasts between it and morality are vital features to these ends. But these features do entail that, in matters of law, each individual is not a final authority co-equal with every other. That is, law is heteronomous. It always makes the appeal to over-riding authority that autonomous morality as such never can make. Thus law and morality are conceptually distinct. Autonomous morality is autonomous. Law is not. They must be conceptually distinct. To summarize, law is institutional where morality is controversial and personal; law is authoritative, settling questions by acts of authority, where morality is discursive, always open to fresh argument on equal terms by any interested participant in the discourse; finally, law is heteronomous, binding us from without, where morality is autonomous, binding us by our own reflective judgment and will. Heteronomy is also a feature of professional ethics where that is delegated to professional corporations or their disciplinary tribunals or ethics committees for decision in problem-cases. Professional ethics so understood is also institutional, authoritative and heteronomous. Positive morality also lacks autonomy and discursivity, albeit not institutional. It is authoritative through the authority of group solidarity, and unreflectively imitative, hence lacking discursive quality. So it must be said that the conceptual distinction drawn here is one between law and morality only in one sense of the latter term, that is, only between law and autonomous morality. The contrast is then of interest only to those who take autonomy to be at the roots of rational agency, and hence foundational for morality in its deepest and most significant sense. In the remaining sections, I explore the ideas successively of law's institutional character, its authoritative character, and its heteronomous character, all guided by a critical reading of The Concept of Law. Finally, I reconsider that which law and morality have in common, their normative character. This arises in virtue of their both being addressed to our practical reason. I shall show that reflection on practical reason in relation to law must lead to some mitigation of the sharpness of the contrast so far drawn. In the end we shall have to conclude that law is only relatively heteronomous.

2 The Institutional Character of Law

In turning to an exploration of the institutional character of law in today's context, it is proper to focus from the outset on The Conceptof Law. There, Hart puts the view that there are three recurring questions that beset juristic

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reflection, and whose exploration yields understanding of law.'? The questions are: How does law differ from and how is it related to orders backed by threats? How does legal obligation differ from, and how is it related to, moral obligation? What are rules and to what extent is law an affair of rules? I shall summarize an understanding of Hart's Concept by giving summary versions of the answers I think he gave to these questions:

Question 1, on law and orders

Law differs from orders backed by threats because mere superiority in force, even when supported by the habitual obedience of many to the one or the few, is never enough to account for legislation. Law-making requires authority, not just coercive power; and authority depends on rules about who ought to be obeyed, not just habits of actual obeying. Not all such rules can themselves be constituted by authoritative acts. Power-as-authority is then essentially rule-conferred, but the rules that confer it and guide human beings in exercising such power are not to be thought of as coercive orders of any kind. Law-application also requires authority, again conferred by authorizing rules; the power to apply law includes the power to order enforcement of sanctions against law breakers, and the fact that this is so gives the backing of coercive threats to rules which directly regulate the behaviour of persons in societies. These rules more resemble orders backed by threats than do the ones that confer powers of law-making or law-application. But resemblance is not identity. Rules do not merely oblige us to act in the prescribed way, as do simple coercive orders; as well as obliging, rules obligate. For this, no merely imperative model of law is adequate.

Question 2, on obligation, legal and moral

The truth that law imposes obligations (or duties) sets up a strong analogy of form between law and morality. But again, analogy is not identity. What I must do for the law's sake is not automatically the same as what I must do for moral goodness' sake; and vice versa. There are good reasons why duties against interpersonal violence and deceit, and requirements for respect of possessions or property, belong alike in any viable legal or any intelligible moral code of behaviour. Yet despite such overlap of legal duty with moral duty, there are between them many contingent divergences of content; neither scientific clarity nor moral concern justify constructing any conceptually necessary relationships of entailment or of mutual conditionality between the legal and the moral. The formal analogy of legal and moral obligation comes from the fact that rules can set standards or patterns of behaviour; these standards have an internal
'1 The Concept of Law 13.

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aspect characterized by critical reflective attitudes to behaviour. Critical reflection involves judging actual behaviour by comparison with some conceived ideal pattern. Where highly prized features of life are at stake, and yet conflict with individual momentary preference possible, critical attitudes to divergent behaviour being commensurately severe, rules are conceived as defining what it is obligatory to do. This signifies a demand more forceful or urgent than that of what is merely correct or acceptable, but not fully obligatory, to do. Thus law and morality alike constitute obligations. But legal obligation and moral obligation remain distinct. It does not seem too contrived to locate the disanalogy discerned by Hart exactly in what I have been characterizing as the institutional setting and institutional character of law.

Question 3, on the 'affair of rules'

To enquire in what way law is an 'affair of rules' is to turn to the very theme of law's institutional setting. This requires further elucidation of 'rules'. Rules are patterns of behaviour subject to an 'internal point of view' among human agents. Humans exhibit this point of view whenever they treat abstract and general patterns of behaviour as guides to concrete action and criticism of it in the course of life. The internal point of view is characterized by a 'critical reflective attitude' to one's own deeds and to others'. Concrete actions are referred to abstract patterns, and judged unfavourably if non-conforming. Rules do come in more than one kind. The primary kind comprises rules that impose duties, or stipulate interpersonal obligations. But there are other rules operating at a second level. These are secondary rules that confer powers. These do have a necessary bearing on the duty-imposing 'primary' rules. Those that empower general legislation enable new rules of obligation to be made, old ones amended or repealed. Those that empower law-application, or adjudication, enable binding decisions to be made about breaches of obligation. The former, Hart calls 'rules of change'. There are other rules of change, namely those enabling private persons to alter legal relations by appropriate acts-in-law like contracting or marrying or settling property. The rules about deciding cases and organizing trials and the like he calls 'rules of adjudication', defining as they do all elements in law-application and law-enforcement processes. Rules of change preserve the law from being static in the face of social or technological change. Rules of adjudication solve the inefficiency which would exist if there could be perpetual unregulated disputes about the true meaning and proper application of the other rules of the system-or if there were no substantial guarantee that those who are prepared to observe the law voluntarily will not be sacrificed to the dominion of those who are not. This presupposes that all who enforce the law, indeed all who participate actively in the processes of legal change and law-application, have a largely common view of what counts as the law in force relative to a given population and its governmental agencies.

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This common view is summed up in Hart's famous 'rule of recognition',of which more in a moment. Finally, although the law comprises rules, and although these can and do genuinelyguide the acts and decisionsof citizens and officials,there is a limit to the guidance they can give. Being linguistic entities, rules are subject to in vaguenessand open texture.Their properinterpretation concretecasescanbe highly problematic.In the light of the valuesthem embody,they can sometimes throwup casusomissi,and in generalbe subjectto unstatedand even indeterminate exceptions;this can even be true of the rule of recognitionitself (I noted already,for example, that we cannot for the moment be quite sure about the for binding character British Courtsof the Europeanhuman rights convention under EC law as applicablein the UK). This entails that law-appliers,and judgesof the higher courts,must have and must frequentlyexercise particularly quite substantial discretion in rendering certain a law that ex ante lacks univocalityor certaintyin its applicationto the concrete case. This degree of discretionand (in effect)free law-makinggoes beyondanythingthatnineteenthbut centuryformalistswould have acknowledged; it falls short of the degreeof legal indeterminacypropoundedby Americanlegal realists in the more 'rule sceptical'of their contributionsto jurisprudence. In summaryon the three questions and their answers:law comprisesrules
with an internal aspect, not orders backed by threats, and there are rules that

confer powers as well as those that impose obligations. Legal obligationsare differentin kind and sometimesin content from moralobligations,and there is no necessaryconceptualconnectionbetweenlaw and morality.The legal system is a structuredset of primaryand secondaryrules. These rules can alwaysgive rise to some interpretative problems,but are neverthelessrelativelydeterminate and hence often clear and univocal in practical application. So the law can genuinelyguide action and facilitatelegal changewithout perpetualrecourseto courts. When necessary,however, resort can be had to the courts to make a ruling on hithertovague or uncertainpoints. That was the very point at which this lecture commenced. The systemicstructureof law thus depictedexhibits one aspectof what I call the institutionalcharacterof law. Especiallythe focus on rules of change and are rules of adjudicationindicateshow law-makingand law-application themselves structured by law. Structured institutions of law-making and lawapplication make possible the determinationof specific answers to legally controversial matterswhere necessarilymoral controversyabout the very same issue quite commonlyremainsas lively as ever, or perhapsbecomesmore lively as groups and factions contend over reform of the now-determinedlaw. The institutionsof privatelaw, such as contract,trusts, property,marriage,are in a a similarway structured facilitatedby law, with the sameeffectof facilitating and and obligationsjudged by of considerabledeterminateness interpersonal rights the law'smeasure-again, in contextswheremutualmoralrightsand obligations

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11

are apt to be acutely controversial in such contexts as the break-up of relationships between previously co-operating parties." There is thus an account of the institutional aspect of law to be constructed through the analysis of primary and secondary rules. Yet amendments to Hart's picture are necessary, at least at the level of significant details. First, so far as concerns the very nature of rules, much work has been done since 1961, most notably by Rolf Sartorius,'2 by Joseph Raz'3 and by Frederick Schauer,'4 in clarifying the concept of a rule and the distinctive part reasoning from rules plays in practical deliberation. This takes us beyond any too simple treatment of rules just in terms of standard patterns of behaviour backed by an 'internal' attitude among members of a social group. The point about rules as distinct from other grounds of practical judgment is the specially 'exclusionary' (Raz) or 'entrenched' (Schauer) quality of rules as reasons. Where they have a bearing on what to do, they exclude other factors of deliberation unless themselves cancelled by overriding or defeating considerations of some kind. The need for amendment of his earlier work in this respect was acknowledged by Hart in Essays in Jurisprudenceand Philosophy and in Essays on Bentham.'5 In his later view, rules are represented as 'peremptory reasons for action'. As well as being a genuine advance on the analysis proposed in The Conceptof Law, this ties in well with the point stressed in the present paper, that a very specific characteristic of law is its ability to make ever more determinate rules and rulings upon practical issues. These are peremptory exactly in that they close further debate on a questionwhatever may remain open to question, at a certain point the law settles its answer to issues raised before it. Legal institutions exist with exactly this capability. A second area for improvement upon the Hartian account concerns the differentiation of rules of obligation and power-conferring rules. Within a theory of rules as grounds of practical reasoning, we need an account of the different modalities of that reasoning. Rules about what we must do (obligation) differ from rules about what we may do (permission, permissibility), and from rules about what we can do, in the sense of normatively operative changes we are enabled to bring about (powers).16 In turn, this differentiation must be held distinct from that version of the differentiation of primary and secondary rules
" See MacCormick, 'Law as Institutional Fact', in N. MacCormick and O. Weinberger, An Institutional Theory of Law (D. Reidel Co., Dordrecht, 1986), ch2; also Law Quarterly Review 90 (1974), 102-29; and see article 'General Legal Concepts' (by N. MacCormick) in T. B. Smith, R. Black (eds) The Laws of Scotland: Stair Memorial Encyclopaedia, vol 11 (Butterworths/Law Society of Scotland, Edinburgh, 1989). Hart assimilates the institutive rules of these institutions to his 'rules of change', but this seems strained and contrived to me. 12 R. Sartorious, 'Positivism and the Foundations of Legal Authority', in R. Gavison (ed) Issuesin Contemporary Legal Philosophy (Clarendon Press, Oxford, 1987), 43-61. 13 J. Raz, Practical Reason and Norms (2nd ed, Clarendon Press, Oxford, forthcoming; cf Raz, The Morality of Freedom (Clarendon Press, Oxford, 1988), chs 1-3. 14 F. Schauer, Playing by the Rules (Clarendon Press, Oxford, 1991). 15 Clarendon Press, Oxford, 1983 and 1982 respectively. I have some reservations about Hart's expression of his conception of 'peremptory reasons', expressed in my contribution to Gavison, op cit, above n 12. 16 Some of this is argued more fully in my (hereby superseded) H. L. A. Hart (Edward Arnold, London, 1981), chs 5 & 6; more recent reflections are in 'Powers and Power-Conferring Norms', forthcoming in Ratio Juris, 1994 or 1995; deliberation on this ought to start with J. Raz, The Concept of a Legal System (Oxford University Press, Oxford, 1970 and 2nd ed 1980), and J. Harris, Law and Legal Science (Oxford University Press, Oxford, 1978).

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which concerns the institutional specialization of legal institutions, viz, the difference between rules of change, enabling and in various ways regulating and governing legislative organs, and rules of adjudication, establishing and enabling courts to do their work, and regulating how, and dealing with all necessarily connected matters about powers to raise actions or prosecutions before the courts, execution of judgments, and much else. Save at the most abstract and schematic level, rules of change and of adjudication are better seen as clusters of interrelated rules, not just a pair of rule-types. To take that further would require much thought about individuation of laws.17 The moment one goes beyond the pure abstract analysis of what a rule is, and enters into contemplation of differentiation of rule-types, and those types which have to do with institutions of public law and their relation to institutions of private law, one necessarily commits oneself to some conception of law-assystem. In fact, it is a special virtue of the Concept of Law, shared with parallel but earlier work of Hans Kelsen, that it does aim to account for law in terms of its systemic quality. This, of course, is as much a matter of the rational reconstruction of raw legal processes that lie before our gaze, as much a matter of making the phenomena intelligible by matching them to a model, as it is anything like the neutral observation of an always-already, present feature of the 'real world' of the law. But it is intrinsic in the work of legal doctrine and legal theory to engage in such rational reconstruction and model-building.18 The present claim that law is institutional is a claim made within legal theory understood in that way, not an assertion about some unanalysed reality anterior to theory. But only if the reality of legal processes prior to and apart from theory is of a certain broad character will the theory apply illuminatingly. Like Hart, I think it does.

3 The Authoritative Character of Law

One aspect of the peremptoriness of legal determinations, whether at the legislative or at the judicial level of decision-making, is clearly that the law's answers to practical questions are not only institutionally determined but authoritative. Within limits, when a legislature has determined a rule upon something, abortion, for example, that is the matter settled authoritatively for the time being as a legal issue within a particular legal system, even if the moralists still contest issues about the right to life versus the right to choice, or vice versa. Certainly, any enacted law on abortion may throw up problems of interpretation-Bourne's case involved, as we saw already, an interpretation of the legislative prohibition of 'unlawful' procurement of abortion in section 58 of the Offences against the Person Act 1861. What did the statutory term 'unlawful' imply? When is abortion lawful? (The answer given by McNaghten J was drawn by analogical reasoning from the Infant Life Preservation Act, and as we saw was
7 See Raz, Concept ch IV and Postscript. 18 See N. MacCormick, 'Reconstruction after Deconstruction: A Response to CLS', Oxford

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(1991) 539-58.

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19 Concept, chs 4-6, confuting there-noted arguments of Austin and Bentham. Was Hart right about their idea of sovereignty? I think so, but for a different opinion cf R. Moles, Definition and Rule in Legal Theory (Basil Blackwell, Oxford, 1987). 20 MiacCormick, 'Beyond the Sovereign State', Modern Law Review 56 (1993) 1-18.

This brings us back to the topic of the rule of recognition, lightly passed over in the last section. As I said there, and as is obvious in the present context, the coordination of various authorities under law can work so as to provide firm determinations on legal questions only if a common view is shared among

in terms of whetheror not a surgeonacted in good faith to preservethe life of a pregnantwoman.) In complex legal systems, other problemsmay arise, as we saw. It may be that a constitutionplaceslimits on legislativepower,andthe issue is whethereither a statutorypermissionor a statutoryprohibitionof abortionin stated circumstances can stand with the constitutional provision properly interpreted. Beyond the limits of the state's constitution, it may be that internationalinstrumentssuch as the European Convention, or transnational legal orderslike that of the EuropeanCommunity,or both, furthercomplicate the issue. But again, despite complexity, there exist processes at law for determininganswersto even the most puzzlingquestions,and determiningthem in a finallyconclusivemannerfor any given controversyinternallyto a particular system.Wheresystemsoverlapand interact,as with EuropeanCommunitylaw, Europeanhumanrights law, and the laws of the EuropeanStates, there have to be arrangements mutual reconciliationof authoritativeanswersin different for systems if authoritativedeterminationis going to work univocallyfor persons over whom two or more systems are proclaimedto have jurisdiction. There was a time when authoritativeness apt to be analysedin terms of was sovereignpower,and sovereigntyitself assumedto be a matterof relativelyplain politicalfact. The sovereignwas the individualor assemblyhabituallyobeyedby the multitude,but not habituallyobeyingany other. More sophisticated versions gave a legal analysisof sovereignty,but still traced all authorityultimatelyto sovereignwill. A huge merit of Hart's work was finally to quell the 'sovereignand subject' myth in legal theory.'9Authorityis a propertyof institutionsinternalto a legal system, and limited authorityis at least as common as the unfetteredauthority that sovereigntytheoristsrepresentas an omnipresentdefiningfeatureof law. In of fact, a system-analysis law such as that offeredby Hart, clearsthe way for an of possible pluralismof legal systems and legal authorities. acknowledgement This is, as I arguehere and elsewhere,20 essentialto a satisfactory understanding of the legal evolution of Western Europe, where we all live now 'Beyond the SovereignState',underthe authorityof interacting non-sovereignlegal systems, which seem able to interact successfullywithout any vacuum of authorityon questionsof law, even thoughthereis no ultimatesovereigntyof Communitylaw over nationallaw, nor vice versa. As I said of our Europe a moment ago, 'despite complexity, there exist processesat law for determininganswersto even the most puzzling questions, and determiningthem in a finallyconclusivemannerfor any given controversy'.

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superior decision-makers about whose say goes on any given issue. Hart's account of this common view is in terms of common acceptance by officials of a 'rule of recognition'. This 'rule of recognition' is one of his most distinctive contributions to the intellectual apparatus of legal theory. In sharing a common view about the rules which have to be applied by legal decision-makers in their official capacity, members of a legal community evince their support for or acceptance of a rule stipulating criteria of validity of legal rules. The rule determining the obligation of respect for the rules valid by those criteria is the rule of recognition. At the heart of a legal system, giving it its unity as system, lies the rule of recognition. A legal system is thus represented to be a rule of recognition and the whole structured set of primary and secondary rules that are valid by its criteria of recognition. There are some well-known difficulties about this picture. Above all, these concern the linkages among different secondary rules. The rule of recognition contains criteria for validity of other rules; the rule of change says who can validly change rules, so determines the validity of legislative rules-is this rule, including its provision about validity, valid because of the rule of recognition, or must the rule of recognition contain legislative acts among criteria of validity because of the validity of the rule of change? Again, if anyone is directly bound by the rule of recognition, it is the judges-they, above all, have the duty to ascertain, interpret and apply valid law. So the rule of recognition presupposes the existence of judges. But if the rule of recognition is necessary to validate the rule of adjudication, we are in a logically vicious circle. I once thought we could resolve this circularity through appeal to some kind of a quasi-historical analysis, but writers such as Michael Martin and Michael Bayles have shown me I was wrong; and I am reluctant to resort to Luhmannesque theories of autopoiesis or self-referentiality of systems to get rid of the difficulty.2' Indeed, it must be confessed that Hart's picture gets the more problematic the closer it is examined. Kent Greenawalt22 and the late Frank Dowrick23 have shown how near-impossible it is to assemble and rank unequivocal criteria of validity or unitary rules of recognition for such salient instances of legal systems as the law of the United States of America or that of the European Community. There are also problems of individuation. How many rules does it take to set up a set of judicial institutions? Or a legislature and subordinate or co-ordinate legislatures? 'Rules of Change' and 'Rules of Adjudication' must exhibit bewildering multiplicity or bewildering complexity, or both, leave aside the problem of separating them off from the rule of recognition. The idea that they all exhibit a single modality, that of empowerment only, seems implausible; then there
21 MacCormick, H. L. A. Hart, 108-15; for critique, see M. Martin, The Legal Philosophy of H. L. A. Hart (Temple University Press, Philadelphia, 1987) 35-8 and M. D. Bayles, Hart's Legal Philosophy (Kluwer, Dordrecht, 1992) 81-3; on autopoeisis in this connection see G. Teubner, Law as an Autopoeitic System ((trans) A. Bankowska and R. Adler, (ed) Z. Bankowski, Basil Blackwell, Oxford, 1993). 22 K. Greenawalt, 'Hart's Rule of Recognition and the U.S.' 1 Ratio Juris (1988) 40-57. 23 F. E. Dowrick, 'A Model of the European Communities' Legal System', Yearbookof European Law 3 (1983) 169-237.

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remains open a question of explaining interrelated rules of different modalities that structure our institutions of legal change and of adjudication. When one examines the foundational instruments of states and trans-statal communities, one sees a striking fact. Above all, they are concerned to establish and formally empower main institutions of central government. The composition of executive, legislative, and supreme adjudicative organs is stated. Any express normative principles or rules governing their activities are stated; continuing bodies of private or criminal law to be implemented by courts unless and until changed can be expressly upheld (as with Scots Law in the UK Articles of Union of 1707) or impliedly taken into account, as with common law in the states of the American Union in and after 1787. And, at least in outline, provision is made to authorize one or more organs to make all necessary or desirable rules or laws governing matters not expressly reserved or entrenched in the constitution, or in amendments of it carried in accordance with its own provisions as to amendment. Such instruments fall a long way short of laying down complete or comprehensive criteria of validity for the whole ensemble of the legal system. And yet they are extensive and complex instruments, not easily conceptualized as amounting in any case to a single 'rule of recognition'. When a state's or a community's legal system set up under such an instrument actually works as a legal order, what must we suppose is going on? The answer seems to me to be that there must be an ongoing custom or practice of treating the foundational authorizations as an in-some-way coherent order of validation of legal acts, and hence of practices of recognition of other legal sources treated as binding by duly authorized institutions, especially courts of law. Basic to a dynamic, that is, a self-changing and self-regulating legal order is, as Hans Kelsen contended, some foundational or fundamental authorization taken to be itself valid or binding. Not recognition, but the competence to determine law either legislatively or judicially, is fundamental to a constitutional legal order. Nevertheless, without some obligation of respect, the notion of authority to decide is nugatory. So one must postulate with Hart a customary or practicebased obligation here, in my submission an obligation to respect the constitution by giving full force and effect to its provisions and all acts carried out under them, taking account of the conditions necessary for overall coherence in the system. The acknowledgement of such an obligation is presupposed in treating acts-under-a-constitution as authoritative. Hart was right to stress the practice-based, or customary, character of the validation of the ultimate rule. It will not do to treat the validity of the ultimate authorizations simply as hypothesis or presupposition, in the Kelsen style. It is a custom, custom that sees the overall unity of authorization and hammers out priority as between rival authorizations, that alone can finally underpin an abstract constitution and make it constitutive of a going legal order. So in the end the truth is shared between Hartian and Kelsenian perspectives.

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4 The Heteronomy Law of

We here re-encounter the idea of law's heteronomy, perhaps already predetermined by its authoritative character. How could law not be heteronomous in the light of the findings so far? Law essentially has rule-established institutions which authoritatively determine legal rulings on practical questions. Thus, for each private individual subject to a system of law, questions that for her or him may have the deepest moral significance, hence engaging autonomous judgment and will, are susceptible of becoming topics of legislation. The legislature may enact rules in terms deeply opposed to the individual's best judgment and most considered will on that very issue. Alternatively, or additionally, they may be subjected to judicial judgment of a most wrong-headed character, according to the individual's sovereign moral judgment. (Recall Fr Morrow's interventions in the Bland case.) Finally, it is at least a standard if not an inevitable feature of legal determinations that they are subject to sanctions of an ultimately coercive kind in the physical sense. So the individual will is subject to forceful (albeit never quite overwhelming) pressure to conform with the public but heteronomous against the autonomous but private judgment. Not that this is without potential moral merit. Legislation is a way of settling common rules on matters which could be for ever indeterminate as between autonomous moral reasoners. There seems no convincing moral argument, even with all due respect for autonomy, against the view that we often need common rules on points of potential conflict or points where co-ordination is desirable. Indeed we perhaps need them most on the topics on which we least agree as pure moral issues. Institutional adjudication can provide impartial judgment where a society of purely autonomous reasoners might find their disputes eternal and debilitating. Sanctions can enhance the probability that common determinations of rules by legislation or by interpretation and application through adjudication are widely observed, and hence reasonably to be relied on, whether or not commanding universal autonomous assent. So the state of affairs brought about by the existence of institutional and authoritative law is one which may well be judged to have value from a moral point of view. I judge it so myself, as may be obvious. The autonomous moral reasoner may, after all, have reason, as Kant himself opined,24 to choose autonomously in favour of legal order just for the sake of the values it represents. And how can a subjection voluntarily chosen for good moral reasons be equated with heteronomy? May not law be autonomous after all, autonomy collectivized, clothed with interpersonal authority, thus institutionalized? But autonomy finally unimpaired? The answer is only that indeed it may be; almost always it is so for some persons. But still we come up against the controversial character of autonomous
24 I. Kant, Metaphysical Elements of Justice ((trans) J. Ladd, Bobbs-Merril, Indianapolis, 1965) section 47, 'The Original Contract'.

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morality. One person's freely chosen acknowledgement of authority can contribute to another's unwilling bondage under a purely externally enforced law. For every moral acceptor of law there can be another merely prudential complier. The prudential view uses legal rules for the advantages they confer; acknowledges legal authority as practically determinative of controversy, and goes along with the determinations of authority, partly with a simple view to avoiding the sanctions threatened for breach, at any rate where detection is likely. The purely prudential complier no doubt adjusts his or her will to the law for the sake of advantage when available, and for the avoidance of trouble when it threatens. But even this is a long way short of the stance of one who willingly adopts the law's determinations as also the content of the autonomous will, and as being so for the very sake of their institutional, authoritative, and sanctioned character. We can distinguish again from the still self-commanding will of the prudential reasoner the merely thoughtless response of the one who complies for the sake of habit and tradition, to say nothing of the possible existence of a terrified or terrorized confronter of severe laws, whose will is simply overborne, not persuaded or convinced by the demands of law, nor even capable of calculating advantages and disadvantages of conformity, chances of detection, and the like. All these positions being possible in real societies, it cannot be said that law escapes heteronomy altogether, even though it may, perhaps must, square with the autonomy of some. At most, it is an aspiration of actual law to achieve ideal character, the ideal character it would have if it were rationally willed and assented to by all its subjects over all its demands. It is a legitimate, if never achieved, ambition of law to acquire fully autonomous endorsement of its authority and of the content of its provisions from every one of its subjects. In the real world, the ambition is everywhere unfulfilled. An important element in Hart's jurisprudence is his discussion of the 'acceptance' of law. This ties in with the earlier discussed matter of the 'internal point of view' we may take towards rules or rule-governed activity. The existence of a legal system depends, in Hart's view, on its being accepted as a common set of rules by the members of a community. The rule of recognition and all that follows from it must at least be accepted as a common standard by the superior officials under a legal system; ideally, it would also be accepted by citizens as well, but this is not needed for a legal system to exist as a genuine and positive system of law.25 Since an account of the way rules are potential guides to practical reasoning, and of the specific role of rules in practical reasoning, is essential to carrying through the idea of the 'internal point of view' to a satisfactory conclusion in the light of subsequent debate and criticism, the notion of acceptance also needs to be reviewed. A person's stance toward law contains at least three elements: as to the content of a legal rule or rules, especially a primary rule-does one endorse a rule with that content, for example a rule prohibiting murder, or one demanding payment
25 Concept, ch 6.

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of a poll-tax? Secondly, as to the authority of the system-does a rule's being enacted or determined by that authority constitute a reason for accepting the rule as binding, apart from any question about its content? Thirdly, as to the sanction-does one fully assent to or will that, sanctions attached to a rule be implemented in cases of breach, even breach by one's own self? It seems obvious that one whose stance is a reasoned and affirmative one on all points fully accepts the law and the legal system. Again, one may assent to authority without assenting to the content of some, even many, laws; and one may at least assent to or go along with the imposition of sanctions in the case even of laws to which one does not assent. Here one can even distinguish non-approval of the content of laws from actual disapproval, with different gradations of acceptance accordingly. Or one might minimally accept the authority of law, where some law or laws seem so wrong as to justify open defiance of them, but where one still acknowledges and assents to the authority of rule-making and determination within the system for some purposes but subject to at least these exceptions, and with a willingness to resist or evade sanctions in given cases. And all these differ (as noted) from prudential acceptance, where the existence of law is a factor in one's calculations of the best course of action to take, and this involves an awareness of the meaning and interpretation of rules in a hermeneutic perspective, but no real commitment to law's authority as an exclusionary reason. This can be shown in tabular form:

'Accept'Rules Full Moderate Reluctant Minimal Prudentially

Content Endorse Indifferent Disapprove Defy Use

Authority Support Support Reluctantsupport Supportwith exceptions Observe

Sanction Will Go along Reject Confront Avoid

Figure 1. Accepting the law Wherever persons purport to act under authority of law as governments, lawmakers, or judges, they necessarily assert the authoritativeness of law as they determine it, representing it as a justified common exclusionary reason for action and judgment by those they say it binds. They construct and produce accounts of how the constitution authorizes their use of the powers they purport to exercise, and hence authenticates the obligations of others to respect the determinations they issue, whether legislatively, judicially, or in an executive capacity. How the persons addressed by this 'law' respond to it is a matter of practical reason, including prudential calculation, for those persons. The more any are disposed to accept in at least my first three senses, the more others have reason to do so prudentially; the more people do so out of rational acceptance or prudential

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calculation (or even some in mere apathy or out of pure fear),. the more weight attaches to both moral and prudential reasons for acceptance, with or without qualifications or reservations. One can construct a story which shows how a community of autonomous practical reasoners can well end up as most contemporaries have ended up, subject to a system of externally determined and coercively sanctioned law. The point of it all is that we need rules, decisions, determinations. And that is what law gives us. Law may then engage our autonomous assent, but in its own character it is relatively, if not absolutely, heteronomous.

5 Practical Reason and Law

Already we have broached the question of practical reason and law. Anyone's acceptance in any degree of any legal requirement is a matter of practical reason and deliberation. The determination of law is also a matter for the practical reasoning and deliberation of legislators, judges, and others. Judicial and legislative deliberation usually start from previously issued rules and rulings on points of law, and always work toward the articulate formulation of a rather determinate rule or ruling on some actual or potential topic of common or conflicting concern to the members of a society. The law in its most basic elements is the body of rules that authorizes these processes of deliberate decision-making, together with the rules and rulings that the decision-making process determines. But there are other elements of law that interact with these. One might think of the relevance of principles as grounds for decision in just those cases where the prevalence of controversy gives rise to some need for legal determination of some point. The elements of practical deliberation that are deployed in working out an answer to some point in controversy are also elements of law, are they not? To reflect on this is to confront the obvious Dworkinian objection to the case I have put so far. For example, has not my running use of the Bland case been tendentious and coat-trailing? Surely this was par excellence a case of judicial inquiry into and argumentation about fundamental moral-as-well-as-legal principles at the very boundary of life and death? The idea that this illustrates a rulebased theory of law attracts obvious and forceful objection. The boundary line between legal practical reasoning and unrestricted (moral) practical reasoning may be thought either thin and permeable or indeed wholly unreal in such an instance. Even in less path-breaking instances, the open-textured quality of legal rules and the omnipresence of interpretative dilemmas requiring recourse to principle in order to make sense of statute, precedent or constitution, or (more likely) some thick congeries of any two or all three, does or ought to shake our confidence in the view that rules as analysed here, or more thoroughly elsewhere by Schauer or Raz, play the grand role assigned to them. Perhaps they do not play any role other than that of mere factors in deliberation. Perhaps 'law as a system of rules' is just a myth, an imagining of the academy obtaining no real

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support in a candid view of legal processes or real practical reasoning in law's hard cases? This is, in part, a question of fact, calling for quite laborious content-analysis of judicial and other official decision-making at many levels, in low-level routine cases as well as in complex and difficult ones handled at the highest levels of appeal, cassation, or constitutional review. To present a characterization of rulebased reasoning in the context of a theory of practical reasoning is not to show that the relevant type of reasoning is actually used by the courts or anybody else. Nevertheless, as Hart pointed out in his critique of 'scorer's discretion',26there is some significance in the fact that it is the courts, or the supreme court, to which we go to have some questions decided. Surely this is acknowledgement of their being specially empowered to decide, and by their decision to authorize other officials to take lawful measures of enforcement. This institutionalization of a power to decide logically requires a rule-analysis. And the decisions issued in virtue of that power have surely a special quality in virtue of their institutional character. This in turn cannot but place restrictions of relevancy on the forms and contents of argument that are acceptable as justifications for exercising the power in question. Even if the principle of attending to the well-being of one's neighbour is common to legal and moral deliberation, in the legal context it is tied up with questions of causation and remoteness of damage, mitigation of loss and quantification of damages, all together being involved in the law of torts as a matter of securing reparation of injury, by court order and legal enforcement thereof when necessary. The whole context of deliberation is different as between individual moral deliberation and institutional judicial deliberation, and this makes a great difference. So too when the question is not what one individual owes to another who is at an extremity of suffering, or beyond anything we can conceive of as suffering, but what a physician exercising a publicly defined professional responsibility for the care of patients may be publicly authorized by a tribunal of the State to do in respect of a patient in PVS. To say truly that both are deliberations of principle concerning ultimate values; to say truly that both raise moral issues and engage moral responsibilities is not to elide the crucial difference of institutional setting in legal debates-nor does Dworkin in any way deny or belittle this fact. To say truly that the nature of such debate presupposes the possibility of a right solution of dilemmas both in law and in morality is not to deny that the law's special contribution to practical life is other than reasoning from grand principles to determinate rules and rulings-and then encouraging everybody, judges and all, to stick to the determinations previously achieved. That which is specially legal in a hard case is more the determination, the ruling towardswhich we argue than the principles and values from which we argue. I agree with Ronald Dworkin that there has to be wide-ranging practical deliberation in the legal case as well as over the moral dilemma, and that these
26 Concept, ch 7.

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have much in common. But it does seem to me that the nature of the legal case is such as to call for a ruling that will be actually dispositive of the immediate problem, and in principle dispositive for future cases of physicians with patients in PVS. Practical reason directs that legal deliberation issue in a ruling. It also directs that such a ruling be held to as a rule in future unless and until validly challenged and repealed or overruled. For these difficult cases, it is a theorem of practical reason that the legal authorities ought to issue a rule, and, having issued it, ought to respect it and secure respect for it notwithstanding that the answer remains controversial from the standpoint of autonomous morality. It remains indeed an open question of legal sociology how far they in fact uphold such respect. But interpretive deliberation about the needs of practical reasonableness suggests an answer; they ought to, and, since they ought to, they probably do, albeit imperfectly. Once this point is well-hammered home, however, there does remain another side to the picture, looking to the quality and correctability of judicial deliberation en route to decision. While the very decision itself has to be authoritative, the quality of forensic debate and deliberation, and of judicial opinions justifying decisions, is different; these are indeed discursive and dialogical. They do involve framing and testing of general principles and of universalizable maxims27 covering the particular decision. The question how best to frame and formulate relevant principles and maxims, the consequential questions of relative weight and comparative value in a choice between rival possible formulations, these are questions engaging practical reason and judgment in exactly the same way as do questions posed by autonomous morality. The legal process in the phase of predecisional deliberation and in that of post-decisional justification has a principled and discursive quality strikingly similar to that of moral deliberation, albeit more formalized and structured. The same is to a degree true of legislative debate, though partisanship may overlay discursive quality to all too large an extent here. Where, between rival readings of precedents, or statutory or constitutional provisions, one asks which is sounder, more plausible, 'better law', one engages with actual law on the understanding that it is capable of being 'good law', law that can command rational and autonomous assent. This is an element of the necessary aspiration of actual legal process to ideal law, or of the perennial 'claim to correctness' implicit in law-making and law-applying acts.28 Since there is an implicit 'claim to correctness' behind every act of determining the law, and this is especially salient in the case of judicial decision-making, a system ought to remain in some measure open to hearing criticism of past decisions as erroneously founded albeit authoritative for the particular case. Most systems do allow some challenge to precedents, though usually with considerable self-restraint. Thus it can indeed be, and in well-ordered legal
' See H. J. Paton, The Moral Law (trans I. Kant, Groundwork of the Metaphysic of Morals, Hutchinson University Library, London, 1948) 67; cf MacCormick, Legal Reasoning and Legal Theory (Clarendon Press, Oxford, 1978) chs 4, 5 and 6. 28 See Alexy, Theory of Legal Argumentation, 104-8, 214-20, on the 'claim to correctness' and its significance.

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systems it is, the case that some degree of defeasibility does and ought to attach to even the clearest determination of law. The Bland decision has been severely criticized, and subjected to powerful analysis and dissenting arguments. John Finnis, for example, has forcefully argued, not merely that the law could better have taken a better form, but indeed that the judges have flatly erred in law in their attempts to formulate adequate principles of judgment.9 It could be that different counsels will prevail on later occasions. It would not be the first time the highest court corrected itself here or elsewhere. Law's authority is real but not irreversible. In common with the conclusion of the previous section, these observations help reinforce the need to qualify the heteronomy we ascribe to law. Law's heteronomy is a genuine feature of it, but the heteronomy is relative only. It is also necessary to place some qualification on the contrast drawn between the discursive quality of moral reasoning and the authoritative character of legal determination. As we have seen, legal reasoning has a substantial discursive element in it, but perhaps one should again say that it is only relatively discursive. In any event, there has to be a limit to defeasibility or reversibility. Acts done on the faith of a determination like that issued in Bland's case ought not to leave the actors open to further legal accusations. The need for settled practice in future dilemmas also remains acute here and in other like situations. Moreover, the discursivity of legal arguments is truly constrained by the fact that they start from and end in authoritative determinations. The very question what a principle of law is, as distinct from a principle of autonomous morality or pure practical reason, drives us to the need for an interpretative rationalization of settled rules of law and prior institutional articulations of relevant principles. Without the starting point of a systemic analysis of law as a framework of always incomplete, always imperfectly determinate rules, this aspect of legal discourse would be unimaginable. The only other possibility looks to what Stanley Paulson calls an 'empowerment' view of legal norms and of law.30Law could be thought to exhibit ruliness only in the way of empowering officials to take decisions of certain kinds within appointed jurisdictions. The grant of power could be on terms that they always make their decisions in the most reasonable way possible, taking account of all relevant circumstances, including their own previous decisions and any legislative instruments issued by legislatures within the jurisdiction. Although this sounds a bit like what Weber belittled as Khadi-justice, there are to be seen in each of Llewellyn, Kelsen, and Dworkin hints of a tendency towards supporting this view of legal institutions and legal deliberation. It is not, of course, the case that decision-making in such a system would be arbitrary, though the process might be very costly, since it would be difficult for anything to be finally settled. And the divergence of public opinion on many of the most problematic topics for
29 See J. M. Finnis, Casenote on Bland, (1993) 109 LQR 329. 30 S. Paulson, 'An Empowerment Theory of Legal Norms', Ratio Juris 1 (1988), 58-72.

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decision might embroilthe judiciaryin potentiallyde-legitimizingcontroversy. All in all, it would seem to me more reasonableto have a system in which the grant of power also bound the power-holdersto a relatively high degree of commitmentto rule-basedreasoning. The possibilityof such a commitmentis the drivingtheme of The Concept of Law.HerbertHart'sgeniuswas to give the idea of law as rule-systemas clearand stylish an expressionas one can well imagine.Many have followedwherehe led. Naturally, subsequent work has revealed flaws in the edifice, and periodic and reappraisals revisionshavebeen calledfor. Differentof us will seek to pursue a generally Hartian line of theorizing in differentways, and there can be no restingupon the text of 1961 as a last word or a sacredbook. Recallingas I now do with pleasurethe vigourof conversation, genialityof discussion,the sheer the excitementof intellectualcontact with Herbert Hart, I conclude that my own conception, dare I say 'any sound conception', of law owes a huge amount to Herbert Hart's Conceptof Law. There remainsmuch unfinishedbusiness, but what a start to the business that was.