Michael Steven Green (William & Mary Law School) has posted On Hart's Category Mistake (Legal Theory, Vol. 19) on SSRN. Here is the abstract:
This essay concerns Scott Shapiro’s criticism that H.L.A. Hart’s theory of law suffers from a “category mistake.” Although other philosophers of law have summarily dismissed Shapiro’s criticism, I argue that it identifies an important requirement for an adequate theory of law. Such a theory must explain why legal officials justify their actions by reference to abstract propositional entities, instead of pointing to the existence of social practices. A virtue of Shapiro’s planning theory of law is that it can explain this phenomenon. Despite these sympathies, however, I end with the suggestion that Shapiro’s criticism of Hart, as it stands, is incomplete. Careful attention to Hart’s notion of the internal point of view indicates that he was aware that legal justification ends with abstract objects, not practices, and that he offered his own explanation of this phenomenon.
Here is the crucial passage from Shaprio:
Unfortunately, the Practice Theory is fundamentally unsound, for it commits the type of error philosophers call a “category mistake.” Social rules cannot be reduced to social practices because rules and practices belong to different metaphysical categories. Rules are abstract objects…. Practices, on the other hand are concrete events. They take place within the natural world and causally interact with other physical events…. Because rules and practices are different kinds of things, one cannot be reduced to the other.
And from Green:
We can, therefore, interpret Shapiro’s category-mistake argument against
Hart as follows. When officials take the rule of recognition as their reason
for action, what is that rule? Not the propositional object guiding their action,
for that cannot justify conformity to the object. Not the preexisting
reasons for action triggered by the rule of recognition as a social fact, for
these do not apply solely to the officials. Morality and prudence bind everyone,
everywhere. The rule of recognition is a social rule; it is justificatorily
relevant only to participants in the legal system. The justifying “rule” must
therefore be the social practice itself.
* * *
Although I am sympathetic to Shapiro’s category-mistake argument
against Hart, I would like to end with a suggestion that the argument, as it
stands, is incomplete. Careful attention to Hart’s idea of the internal point
of view shows that he, like Shapiro, tried to account for the phenomenology
of legal justification.
Previously, I assumed that it is not essential to the internal point of view as
Hart understands it that officials presuppose rather than explicitly appeal to
the existence of the rule of recognition as a social fact when justifying their
actions and criticizing deviants. An official could adopt the internal point
of view even if he points to official practice and the background reasons for
action that the practice triggers. But Hart occasionally argues that officials
must presuppose the existence of the rule of recognition as a social fact for
the internal point of view to arise.85 To the extent that officials’ justification
refers to the practice as a social fact, they will have abandoned the internal
point of view within which legal rules are perceived to exist. In other words,
Hart also hopes to explain the phenomenology of legal justification. He,
too, wishes to explain why legal justification ends with legal rules.
But how can Hart accomplish this feat? Shapiro uses planning to explain
why official justification would end with an abstract object. But for Hart,
law is not essentially a planning activity. The question remains, therefore,
why Hart thinks official justification can end with an abstract object. In
ending justification with an abstract object, officials appear to be treating
the object as intrinsically valid, as if appeal to the object is sufficient to justify
conformity. But this seems false. Conformity is actually justified because the
practice as a social fact triggers reasons for action that exist independently
of the practice.
It what follows I would like to offer a very brief account of what I take to be
Hart’s explanation of the phenomenology of legal justification, an explanation
that is very different from Shapiro’s. Shapiro explanation seeks to show
why the fact that officials terminate their justification in an abstract object is
itself justified by instrumental rationality. He does so by arguing that the abstract
object is a plan. Hart, in contrast, does not treat the phenomenology
of legal justification as rationally justified.
Very interesting and highly recommended, as is Shapiro's important book, Legality