Logic, Intuition, and the Positivist Legacy of H.L.A. Hart

SMU Law Review Volume 52 Issue 1 Article 16 1999 Logic, Intuition, and the Positivist Legacy of H.L.A. Hart Douglas Lind Follow this and additional works at: https://scholar.smu.edu/smulr Recommended Citation Douglas Lind, Logic, Intuition, and the Positivist Legacy of H.L.A. Hart, 52 SMU L. REV. 135 (1999) https://scholar.smu.edu/smulr/vol52/iss1/16 This Symposium is brought to you for free and open access by the Law Journals at SMU Scholar. It has been accepted for inclusion in SMU Law Review by an authorized administrator of SMU Scholar. For more information, please visit http://digitalrepository.smu.edu. LOGIC, INTUITION, AND THE POSITIVIST LEGACY OF H.L.A. HART Douglas Lind* TABLE OF CONTENTS I. INTRODU CTION ........................................ 135 II. LEGAL FORMALISM AND ITS CRITICS .............. 138 A. LEGAL FORMALISM ................................... 138 B. FREE LEGAL DECISION ................................ 140 C. LEGAL REALISM ...................................... 143 11. THE FUNDAMENTAL ERROR OF LEGAL FO RM A LISM ............................................ 148 A. THE VICE OF PREJUDGMENT .......................... 148 B. PROBLEMS IN THE PENUMBRA OF LEGAL CONCEPTS .. 150 C. THE "OPEN TEXTURE" OF LEGAL LANGUAGE ........ 151 D. A MISTAKE OF LANGUAGE, NOT LOGIC .............. 153 1. The Secondary Importance of Logic to Legal Formalism ......................................... 153 2. Linguistic Closure and the "FormalistJudge" . ..... 155 IV. INTUITION AND THE POSITIVE BOUNDS OF JUDICIAL FREEDOM ............. .............. 157 A. FREE DECISION WITHIN THE LOGIC OF A LEGAL SYSTEM ............................. .................. 157 1. Judicial Practice Within a Framework of Secondary Rules .................................... 158 2. The Limited Scope of Judicial Intuition ............ 160 B. THE RESILIENCE AND FORCE OF LOGIC ............... 163 V. CONCLU SION ........................................... 165 I. INTRODUCTION HROUGHT the twentieth century, jurisprudence in Europe and America has focused to a great extent on judicial method and practice. The critical study of adjudicative practice, in fact, may well be the theme for which the century's jurisprudence will be remembered. This study has led to a wide and impressive array of theo- ries seeking to answer the many questions that have arisen regarding judi- * Associate Professor of Philosophy, University of Idaho; Faculty member, National Judicial College. B.A., University of Minnesota; J.D., Washington University (St. Louis); Ph.D., University of Pennsylvania. SMU LAW REVIEW [Vol. 52 cial practice, including the role and function of courts in modern, complex legal systems, the nature of the judicial process, the forms and methods of judicial interpretation of law, and the ethical ideal of the "good judge." One particularly thorny and recurring question in this vein concerns the role of "logic" in judicial decisionmaking. Ever since Oliver Wendell Holmes declared that, "[t]he life of the law has not been logic: it has been experience,"' jurisprudential writers, especially in the United States, have sought to downplay the significance of logic in adjudication. Much of the impetus for this effort has been the notion, widely held during the nine- teenth century and persistently resilient throughout the twentieth century, that judicial decisionmaking in the main follows a simple logical structure, where a court's decision represents the conclusion of a deductive syllogism in which the major premise is a preexisting general legal rule and the minor premise a statement of the facts established in the case. 2 By this notion, which came to be called (largely by its critics) "Legal Formalism," courts perform the basically ministerial or "mechanical ' 3 function of identifying the controlling general role, determining whether the facts make the case at bar an instance thereof, and then issu- ing the decision that logic dictates.4 Jurisprudential criticism of legal formalism became widespread in both the United States and Europe during the first half of the twentieth century. Parallel jurisprudential movements took hold on each side of the Atlantic. In the United States, the new wave of jurisprudential thought came to be known as "Legal Realism," while on the European continent it was called "Free Legal Decision" or the "Free Law Movement." Among the more controversial points raised by jurists in each of these movements was the claim that, despite appearances, logic, especially in the sense of deductive inference, plays only a secondary role in judicial decisionmaking. Several of the legal realist and free decision writers maintained that while judicial decisions often give the appearance of logical reasoning and form, judicial method actually depends, to a far greater extent, on a judge's "intuitions" or "sense of justice." As stated by one of the American legal realists, the true basis of legal judgment is not logic 1. OLIVER WENDELL HOLMES, JR., THE COMMON LAW 1 (1881). 2. See, e.g., Everett V. Abbot, Keener on Quasi-Contracts11, 10 HARV. L. REV. 479, 482 (1897). 3. See Roscoe Pound, Mechanical Jurisprudence,8 COLUM. L. REV. 605 (1908) (criti- cizing legal formalism). 4. See Abbot, supra note 2, at 482. This conception of judicial decision making as a non-discretionary enterprise bounded by logic goes back to at least the jurisprudential writings of eighteenth century philosophers in the rationalist tradition. Cesare Beccaria, for example, wrote in 1764: In every criminal case, a judge should come to a perfect syllogism: the major premise should be the general law; the minor premise, the act which does or does not conform to the law; and the conclusion, acquittal or condemnation. If the judge were constrained to form even two syllogisms, or if he were to choose to do so, then the door to uncertainty would be opened. CESARE BECCARIA, ON CRIMES AND PUNISHMENTS 11 (David Young trans., Hackett Publ'g Co. 1986) (1764). 1999] POSITIVIST LEGACY OF H.L.A. HART but an "intuitive flash of understanding," the inarticulable "hunch" that a certain result "feels" right. 5 Direct debate over the respective roles of logic and intuition in the process of adjudication has waned since the heydays of legal realism and free legal decision in the 1920s and 1930s. Nevertheless, the debate has been kept alive through the work of several more recent jurists who have treated it as an underlying fundamental issue preliminary to any mean- ingful inquiry into judicial method.6 H.L.A. Hart stands at the forefront of those who have contributed in this way to the logic-intuition debate. As with every other issue in analytic jurisprudence that he tackled, Pro- fessor Hart offered to this debate critical insight and a moderating voice that is well worth our reexamination. To Professor Hart, both sides of the debate-the formalists and the realists/free law thinkers-represent indefensible extremes. While each side identified salient features of judicial practice, their common tendency to emphasize certain features to the exclusion of other important aspects of the practice rendered their works irredeemably flawed. Hart accordingly sought to bring to the debate a middle ground; at once emphasizing the importance of logic while ac- knowledging its limitations, likewise recognizing the presence of intuition while rejecting the claim that judges are free to decide cases according to their hunches or feelings wholly independent of logical constraints. This Article examines Professor Hart's contribution to the logic-intuition debate. I argue that he largely succeeded in tempering the extremes by showing that the debate itself rests on confusion. In some of the most philosophically important passages of his vast jurisprudential output, Hart argued that the root error of legal formalism is not an over-reliance on logical form, but a misunderstanding of language. Formalism, he claimed, rests fundamentally on the belief that legal concepts are linguis- tically fixed or closed. Accordingly, the formalists were unable or unwill- ing to recognize that legal terms and concepts are, as he put it, inherently 7 "open-textured" and that problems of legal interpretation can arise in a concept's "penumbra": 8 the hazy, borderline area outside its "core of set- tled meaning."9 By Hart's account, that is, deductive logic is not founda- tional for legal formalism but a tool, an attractive implement of reason for legal theorists who, because they view a society's law as a complete and harmonious unity of predetermined rules and principles, cannot con- ceive of problems of legal definition or meaning arising which logic cannot resolve. 5. Joseph C. Hutcheson, Jr., The Judgment Intuitive: The Function of the "Hunch" in Judicial Decision, 14 CORNELL L.Q. 274, 278 (1929). 6. See Michael S. Moore, The Semantics of Judging, 54 S.CAL. L. REV. 151 (1981); JOSEPH RAZ, THE AUTHORITY OF LAW: ESSAYS ON LAW AND MORALITY 194-206 (1979). See generally STEVEN J. BURTON, AN INTRODUCTION TO LAW AND LEGAL REASONING (2d ed. 1995) (discussing roles of logic and intuition). 7. See H.L.A. HART, THE CONCEPT OF LAW 124-35 (2d ed. 1994). 8. See H.L.A. Hart, Positivism and the Separation of Law and Morals, in ESSAYS IN JURISPRUDENCE AND PHILOSOPHY 49, 63 (1983). 9. Id. SMU LAW REVIEW [Vol. 52 Yet Hart did not only regard formalism as untenable. To him, legal realism and free law theory were mistaken as well. As we will see, he found their endorsement of intuition in judicial practice, an endorsement grounded in their mistaken view that logic is the root error of formalism, to be equally problematic, though for different reasons. He maintained that the intuitionist account fails when considered within the context of his positivist description of the foundations of a legal system. In particu- lar, he claimed that intuition cannot be a central feature of the judicial process within any legal system regulated in part by the centrally important "secondary rules" of "recognition" and "adjudication."'' 1 Before turning to these pivotal aspects of Hart's work, however, we should consider the background against which he wrote, the background of legal formalism and its critics where the debate between logic and intuition took root.

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