Thu Nov 16, 2017
Howison Library, 4–6 PM
|Graduate Research Colloquium
How to Make a Rule: A Defense of a Supposedly Refuted Theory
H.L.A. Hart’s theory of law rests on a widely rejected theory of rules. This “practice theory of rules,” as it has come to be called, attempts to offers something that is helpful not just to philosophers of law, but to anyone interested in social phenomena, like language or games. The practice theory attempts to offer sufficient conditions for the existence of a social rule. But this theory is thought to face two problems: (1) it fails to account for the normativity of law, and (2) it is susceptible to a decisive counterexample dating back to Warnock (1971). In this paper, I offer solutions to both problems. In response to (2), I argue that the counterexample is no counterexample at all. We see this by revisiting an old, but underappreciated distinction made by Rawls (1955). In response to (1), I argue that though mention of the normativity of law is ubiquitous, it is widely misunderstood. Once we are clear on the sense in which law is normative, we can see that Hart’s practice theory has no problem accounting for it.