Positive Law and Systemic Legitimacy: A Comment on Hart and Habermas

Ratio Juris. Vol. 6 No. 3 December 1993 (245-78)

Positive Law and Systemic Legitimacy: A Comment on Hart and Habermas*

ERIC W. ORTS

Abstract. The author revisits H. L. A. Hart‘s theory of positive law and argues for a major qualification to the thesis of the separation of law and morality based on a concept of systemic legitimacy derived from the social theory of Jurgen Habermas. He argues that standards for assessing the degree of systemic legitimacy in modern legal systems can develop through reflective exercise of “critical legality, ” a concept coined to parallel Hart’s “critical morality,” and an expanded understanding of the “external” and “internal” perspectives on legal systems. Following Habermas, he argues that modern positive law must retain systemic legitimacy. After suggesting criteria for measuring systemic legitimacy, the author concludes that the concept provides a useful approach to contemporary problems of “lawless” regimes and “law’s imperialism.”

Positive legal theory, burdened with the label “legal positivism,” still has a bad name. H. L. A. Hart has noted how the term “legal positivism” became pejorative, used more as a “missile in intellectual battles” than treated seriously (Hart 1958,50-51). Hart’s own efforts to restore a theory of positive law to respectability have been widely criticized (e.g., Dworkin 1978; Moles 1987), though more constructive treatments have not been lacking (e.g., MacCormick 1981).

This article joins with recent attempts to reconstruct a qualified theory of positive law in the Hartian tradition (cf. Greenawalt 1992; Schauer 1991; Weinberger 1991; Coleman 1988; MacCormick and Weinberger 1986). How- ever, the article proposes that Hart’s theory requires a major qualification derived from the social theory of a n unlikely, but sophisticated ally: Jiirgen Habermas. Drawing on Habermas, the article contends that a modern theory of positive law must include a requirement of basic systemic “legitimacy.” * I thank Kent Greenawalt not only for his comments on an early draft, but for his example. I also thank Maia Caplan, Tom Dunfee, Sean Laane, Keith Smith, Aidan Synnott, the referees for Ratio lurk, and participants in presentations at Columbia Law School and the Wharton School for comments. Dan Walther assisted with excellent research and translation, and Natalia Bragilevskaya and Anita Zelinski provided expert secretarial support.

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The article first revisits Hart's multi-faceteJ and often misunderstood legal theory, emphasizing two key features: (i) the social evolution of positive law or, in sociological terms, the differentiation of a "legal system"; and (ii) the relationship of justice and morals to law. In the process, the article proposes a new concept of "critical legality" parallel to Hart's concept of "critical morality," and expands on Hart's distinction between "internal" and "external" perspectives on legal systems.'

The article then turns to Habermas. Finding significant agreements between Hart and Habermas, the article suggests that on one level Habermas counts as a positive legal theorist in Hart's sense. On another level, however - namely, Habermas's view of the parallel social evolution of morality along with law, and the development of a rationalized "lifeworld" along with social systems- Habermas offers a fundamental qualification to Hart's legal theory. Modern legal systems must possess a requisite degree of "legitimacy. "

The article concludes by suggesting how a theoretical amalgam of Hart and Habermas can prove useful in assessing modem legal systems. Two potential applications are discussed: (i) developing criteria to determine the extent to which modem legal systems adhere to a contemporary formulation of the "rule of law," particularly with respect to the limiting case of "lawless" regimes, and (ii) critiquing the modem tendency toward "law's imperialism," as exemplified in two areas: juridification (that is, the proliferation of law) and judicial usurpation of law-making power.

I . Hart's Theory of Positive Law Revisited

A central thesis of Hart's legal theory concerns the relationship between law and morals.' Hart sets forth "the simple contention that it is in no sense a necessary truth that laws reproduce or satisfy certain demands of morality,

1 claim no affiliation with the loosely organized movement in American jurisprudence known as critical legal studies. The term "critical legality" is meant here in a different sense.

I refer to Hart's theory of positive law rather than ''legal positivism" because ambiguity in the term "positivism" causes a great deal of misunderstanding. Hart characterizes "legal positivism" as a "title" that "has come to be used for a range of different theses about law and morals" (Hart 1972,181). He elaborates on the many meanings as follows: "The expression 'positivism' is used in contemporary Anglo-American literature to designate one or more of the following contentions: (1) that laws are commands of human beings; (2) that there is no necessary connection between law and morals, or law as it is and law as it ought to be; (3) that the analysis or study of meanings of legal concepts is an important study to be distinguished from (though in no way hostile to) historical inquiries, sociological inquiries, and the critical appraisal of law in terms of morals, social aims, function, etc.; (4) that a legal system is a 'closed logical system' in which correct decisions can be deduced from predetermined legal rules by logical means alone; (5) that moral judgments cannot be established, as statements of fact can, by rational argument, evidence or proof ('non cognitivism in ethics') [. . .]" (ibid., 253 n.). Hart places himself squarely in category (2). Hart's legal positivism is therefore quite distinct from the philosophical debate over logical positivism, and rejection of logical positivism does not necessarily entail a rejection of legal positivism (e.g., Coleman 1989, 67).

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though in fact they have often done so” (Hart 1972,182-83). He immediately qualifies this statement, however, in two respects. First, an often overlooked but important qualification regards the level of historical development necessary for positive law to arise. Second, Hart qualifies his thesis by admitting a certain minimal substantive correspondence between law and morality.

1. The Social Evolutionary Dimension of Positive Law

Positive law does not exist in hunter-gatherer societies. Such societies have only ”primary rules” of obligation (ibid., 89). Sociologically, “primal” societies are characterized by ”mechanical solidarity” where “the individual personality is absorbed into the collective personality” (Durkheim 1964, 131). In such societies, “law” and “morals” are indistinguishable (Hart 1967,253; Habermas 1987b, 82-87).

Problems tend to arise, however, in societies that operate only with primary rules. According to Hart,

It is plain that only a small community closely knit by ties of kinship, common sentiment, and belief, and placed in a stable environment, could live successfully by such a regime of unofficial rules. In any other conditions such a simple form of social control must prove defective and will require supplementation in different ways. (Hart 1972, 89-90)

Hart identifies three sources of pressure leading societies to adopt legal systems (ibid., 91-95). A society based only on primary rules faces problems of (i) uncertainty, which arises from the absence of an established way to determine what rules apply and who should apply them; (ii) unchangeability, which refers to a lack of settled procedures for changing social rules to accord with changing circumstances; and (iii) inefficiency, which results from reliance on diffuse methods of social enforcement rather than creating institutions to police violations. To remedy these problems, societies adopt three second-order rules. (i) A “rule of recognition” solves uncertainty by speclfylng a conclusive manner by which to determine in each situation what rules apply and who applies them. (ii) “Rules of change” solve unchangeability by empowering specific groups within society, such as kings or legislatures, to adopt new primary rules, eliminate old rules, and alter existing rules. Rules of change also allow for “private power-conferring” rules, such as rights to enter contracts, make wills, or transfer p r~pe r ty .~ (iii) “Rules of adjudication’’ solve inefficiency by identifying a

’ Hart does not adequately account for the complexity of the relationship between (i) ”primary” and “secondary” rules and (ii) “duty-imposing” and ”power-conferring” rules. At one point, he discusses duty-imposing rules (e.g., criminal prohibitions) and power-conferring rules (e.g., the power to contract) from the perspective of participants in a legal system (Hart 1972,4041). Elsewhere, however, from the perspective of the legal system, he describes primary rules as

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special class of officials (judges, magistrates, lawyers) who apply primary rules to determine whether other members of society (defendants) have broken them.4 The three secondary rules, or “meta-rules” (Lucas 1977), signal the advent of modern positive legal systems. With each secondary rule, primal societies “step from the pre-legal into the legal world,” and “all three remedies together are enough to convert the regime of primary rules into what is indisputably a legal system” (Hart 1972, 91).

Most important among the secondary rules is the ”master rule” of recognition (Coleman 1989, 69). Both rules of change and rules of adjudication depend on the rule of recognition for their constitution. The rule of recognition provides “the germ of the idea of legal validity”; it is the “authoritative mark” identifying the legal system as a ”unified” set of rules (Hart 1972,93).

This aspect of Hart’s theory requires some elaboration. The adoption of secondary meta-rules heightens the legal complexity of society. Kent Greenawalt (1987a) demonstrates, for example, the remarkable complexity of the rule of recognition in the legal system of the United States.’ From this very complexity, the legal idea becomes separated, or differentiated, from the idea of the “morally good.” This is Hart’s “separability thesis” (Cole- man 1988,4; Coleman 1989, 67-68):

When [. . . I the means of social control [. . . I includes a system of rules containing rules of recognition, adjudication, a n d change, this contrast between legal a n d other rules [including morals] hardens into something definite. The primary rules of obligation identified through the official system are now set apart from other rules, which continue t o exist side by side with those officially recognized. (Hart 1972, 165)

only “duty imposing” and secondary rules as “confer[ring] powers, either public or private” (ibid., 78-79). For Hart, then, primary rules include only those under which “human beings are required to do or abstain from certain actions, whether they wish to or not.” This is at least confusing, if not wrong (Hacker 1977,19-20; Lucas 1977,86). Distinguishing between public and private power-conferring rules would clarify the matter. Secondary rules are public power- conferring in that they confer public power to such bodies as legislatures and courts to pass laws (primary rules) and adjudicate disputes (apply primary rules). They include rules that courts apply to themselves, such as constitutional and procedural limitations. Private power- conferring rules, however, such as an individual’s power to enter contracts, are best conceived as primary rules because they are constituted by and subject to change through the operation of secondary rules. On this view, both private power-conferring rules (e.g., contract law) and duty-imposing rules (e.g., criminal law) are properly considered primary rules. (Compare the solution suggested here with those of Raz 1975, 97-106; Hacker 1977, 19-22; Lucas 1977; MacCormick 1981,21,83-87,103-6; and Schauer 1991,6-12,167-74.)

The adjudicatory class depends also on a related class of rule-enforcers (police, bailiffs, prison guards) who wield the legally constituted coercive power of the state. However, one can imagine the public at large to serve as generalized rule-enforcers without a specialized law enforcement class, and such societies have in fact existed (e.g., medieval Iceland) (Miller 1990, 224, 232). Even today, of course, civil law depends mainly on the public at large serving as ”plaintiifs” against those alleged to have broken legal rules. Also, the idea of public enforcement continues in statutes that permit citizens to act as ”private attorneys general” (e.g., under various environmental and securities laws of the United States).

An important problem not yet adequately addressed is the place of international law in the ”rule of recognition” of the municipal law of nation-states, and vice versa.

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This does not mean that particular laws can no longer be morally criticized, or that morals cannot approve and support law. Many interrelationships between law and morals remain. But with the advent of secondary rules, and the rule of recognition in particular, conflicts between law and morals become possible and require resolution (Greenawalt 198%). We may examine particular laws-identified by the rule of recognition, subject to rules of change, and enforced through rules of adjudication-and judge them morally wrong. Changes in the law may be recommended as a result. We may also examine from a moral standpoint how a legal system is working as a whole and suggest reforms and improvements. The essential point, however, is that law and morals become in modern societies distinct.

This analysis demonstrates the social evolutionary dimension of Hart's theory of positive law. Societies adopt secondary meta-rules to solve general social problems, and from these rules derive systems of positive law. The "separation" of law and morals occurs at this evolutionary moment.6

2. The Relationship of Positive Law and Morality

I turn now from the social problems that positive law solves to problems its establishment creates. Secondary rules of positive law solve problems of uncertainty, unchangeability, and inefficiency, but the "solution" of efficient, centrally organized, legal power poses new problems. Positive legal systems can conflict directly with morality, not only at the "micro" level of moral disagreements with particular laws or sets of laws, but at the "macro" level of the nature of the legal system itself. Along with greater certainty, flexibility, and efficiency, positive legal systems bring also the potential of systemically organized evil7

Before addressing this problem, however, it is helpful first to understand how Hart himself limits the thesis that "it is in no sense a necessary truth that laws reproduce or satisfy certain demands of morality.'' Hart's critics too often overlook his theory of morals, which coexists with his theory of law. Hart's moral theory limits his legal theory in three areas: his theory of justice, his typology of morals, and his "minimum content" natural law.

Hart's developmental account of positive law is in this way similar to Niklas Luhmann's (1985, 22-158). Luhmann also conceives of positive law developing in response to social evolutionary demands. In Hart's terms, Luhmann also focuses on the problems presented by "uncertainty" (for Luhmann, the problem of assuring the "expectation of expectations" and avoiding "disappointments") and "unchangeability" (for Luhmann, the more affirmative social evolutionary concept of allowing for the "selectivity" of laws).

An additional supposed problem concerns the "interpretation," broadly understood, of positive law. Some critics of Hart's legal theory object that even if a separation between positive law and morals were desirable, it is not possible. They argue that positive law is inevitably "indeterminate" and that judges inevitably "interpret" law in uncontrolled ways according to moral, political, and even psychological predispositions. This article does not address this issue. See Hart's response to this "nightmare" vision of jurisprudence (Hart 1972, ch. 7; Hart 1977, 126-32) and other more recent treatments (e.g., Greenawalt 1992).

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In the course of discussing these three points of connection between law and morals (sections 2.1,2.2, and 2.4 below), I suggest two improvements to Hart’s account: the addition of a conceptual category of critical legality parallel to Hart’s critical moraIity (section 2.3) and a deeper understanding of the implications for legal theory of Hart’s distinction between internal and external perspectives on legal systems (sections 2.5, 2.6, and 2.7). These conceptual improvements help to address systemic problems presented by the emergence of positive law in modern societies.

2. I. Hart’s Theo y of Justice Hart claims that justice is a form of morality, not law (Hart 1972,153-57,202). However, the idea of ”justice as fairness” touches close to law in the admonition to “treat like cases alike.” The “impartiality or objectivity” of law guarantees that “the law is applied to all those and only to those who are alike in the relevant respect marked out by the law itself.” In this sense, ”a minimum of justice is necessarily realized whenever human behavior is controlled by general rules publicly announced and judicially applied.” Completely arbitrary government is both unjust and non-legal. Hart thus recognizes a necessary connection between justice and law in that law must possess to this degree what Lon Fuller calls an “inner m~ral i ty .”~

Against Fuller, however, Hart argues that the necessary justice in law does not amount to much. The objectivity of law-namely, its orderly and universal method of application - is unfortunately “compatible with very great inequity.” This results from the “shifting or varying criterion used in determining when, for any given purpose, cases are alike or different.” Not “the law itself,” but people making and applying the law “determine what resemblances and differences among individuals the law must recognize.” Hart gives the example of a law forbidding people to enter public parks on the basis of skin color. Immoral laws can apply to everyone in a procedurally “legal” way.

For Hart, then, substantive justice differs from the necessary procedural objectivity of a legal system. Because “the criteria of relevant resemblances and differences may often vary with the fundamental moral outlook of a given person or society,” “assessments of the justice or injustice of the law may be met with counter-assertions inspired by a different morality” (Hart 1972,158). Substantive justice is not, therefore, a necessary part of law; it is a type of ”critical morality” (Hart 1963, 20).

Fuller actually uses the phrase “internal morality.” He also refers to this quality of law as “procedural natural law,” which concerns ”the ways in which a system of rules for governing human conduct must be constructed and administered if it is to be efficacious and at the same time remain what it purports to be“ (Fuller 1%9, ch. 3). This idea is a forerunner, in the natural law tradition, of Habermas’s procedural rationality, discussed below.

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Hart in this way distinguishes implicitly between two theories of justice. His proceduruf theory of justice allows that law, by its nature, must conform to certain minimal restrictions in its operation, obeying such principles as universal application and adherence to a methodology of rules. Hart’s substantive theory of justice, however, embraces much richer moral standards outside the law. Substantive justice provides critical standards needed to criticize and reform positive law and its institutions.

2.2. Hurt’s Typology of Morals

Hart’s moral theory is less clear than his concept of law. He conceives of three general types of morality (Hart 1972,163430; Hart 1963,20,70-74). (i) “Social” or “positive morality” refers to “the morality actually shared and accepted by a given social group. ” (ii) ”Critical morality” refers to “general principles used in the criticism of actual social institutions” and ”the criticism of society itself .” (iii) ”Individual morality” refers to the values of individual people, independent of the societies in which they live. Given the several types of morality, and the differences within each type, Hart favors a “moral pluralism involving divergent sub-moralities” (Hart 1967, 261-62).

On closer analysis, Hart’s moral theory collapses into two essential com- ponents: (i) social or positive moralities, which are empirically adopted and believed by social groups and individuals, and (ii) critical moral theories, which are rationally and communicatively developed and applied to both empirical social moralities and society itself.’ No strict separation between social and critical morality is warranted-as the two types influence each other (MacConnick 1981, 54). But Hart’s distinction captures the critical capacities of people in modern societies to reflect on the empirical moral standards of themselves and their societies and to contemplate or “imagine” alternatives (e.g., Castoriadis 1992).

With respect to social or positive morals, Hart makes the following case for the separation of law and morals (Hart 1972, 169-76). Unlike positive laws, social morals have the following qualities: (i) they are always essentially important; (ii) they are not easily changed and, when they do change, usually do so only gradually; (iii) they usually invoke references to state of mind, voluntariness, or intent to do wrong; and (iv) they are enforced by social moral pressure, such as appeals to conscience and feelings of guilt and shame.” These four differences support Hart’s argument that positive law and positive morality are in modem societies distinct.

Each case of “individual” morality can also be classified as either a ’‘social’’ or a “critical” morality or both. Jules Coleman (1989,70) similarly describes Hart’s scheme as distinguishing between “conventional” and “critical” morality.

The last is the weakest of Hart’s criteria. When a particular legal system has “legitimacy,” a condition discussed below, the appeal to follow the law ordinarily carries great weight.

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critical morality

social or positive morality

2.3. The Missing Idea of "Critical Legality"

In his typology of morals, Hart observes a "splitting" in the moral sphere between social and critical morality. However, he misses a similar "splitting" in the legal sphere. Parallel to social morality is empirical social legality, referring to positive law and its institutions. Parallel to critical morality corresponds a capacity for critical legality (see Figure 1). Just as a critical morality reflects on empirical social moralities (as well as other empirical social realities, including law), so an attitude of critical legality can reflect on empirical social legality from the perspective of legal ideals.

crifical legality

social legality (positive law and legal institutions)

theoretical level; social criticism

empirical level; social reality

Morality Law

Because Hart does not allow for this level of complexity in his legal theory, he offers only a moral criticaI perspective on law and legal institutions. Standards derived from a sense of critical legality, however, can reflect on the social reality of law, just as critical morality reflects on social morality. The general theoretical point can be illustrated from perspectives of both social legality and critical legality.

From the perspective of social legality, namely, a society's existing legal system, events can occur that affect the functioning of the system so dras- tically that it no longer operates in a descriptively legal way. Taking an extreme example, imagine that "law" is reduced to an expression of arbitrary decisionmaking, on a case by case basis; police detain people they dislike for whatever reason, and punishments are meted out by chance, say, the roll of the dice. The point is that the social evolution necessary for the advent of a positive legal system admits also the possibility that society can devolve to an extent that the "legal" system evaporates. In other words, a positive legal system can become so misshapen that it can no longer be properly described empirically as "legal." 0 B a d Blackwell Ltd. 1993


From the perspective of critical legality, standards can be developed to assess the degree to which legal systems meet legal ideals. This is not, of course, a new idea; the concept of “the rule of law” traces originally to Aristotle and ancient Greek political theory (Shklar 1987,l-4; Weinrib 1987, 60-63). More recently, the contemporary meaning of “the rule of law” has again become hotly contested (e.g., Hutchinson and Monahan 1987; Mac- Cormick 1989; Nonet 1987; Oakeshott 1983; Reynolds 1989; Shklar 1987; Waldron 1989; Weinrib 1987).” I do not attempt to contribute to this debate here other than to suggest that developing critical legal standards and ideals to assess empirical legal systems may help to ground a modem theory of the “rule of law.”

Standards of critical legality are further discussed below, in connection with conceptions of proceduraz rationality and systemic legitimacy. The point here is simply that Hart does not allow a critical legal perspective on legal systems in addition, and as a supplement, to a critical moral one.

2.4. “Minimum Content” Natural Law

In addition to his theory of justice and his account of social and critical morality, a third point at which Hart admits morals necessarily touch law appears in his conception of “minimum content” natural law (Hart 1972, 181-97). Hart follows the “teleological” strand of natural law theory, which holds that human beings have a certain discoverable ”purpose” or ”end” in life. Some theorists, such as Aquinas, carry the teleology of human nature quite far, with the aid of well-developed theologies. Hart the moral plural- ist, however, limits his teleological concession to the necessary good of basic human survival: “Our concern is with social arrangements for continued existence, not with those of a suicide club.”

From the limited purpose of human survival, Hart derives the “minimum content” of natural law from ”reflection on some very obvious generaliza- tions - indeed truisms - concerning human nature and the world. ” He argues that there is “a common element in the law and conventional morality of all societies which have progressed to the point where these are distinguished as different forms of social control”; thus minimum content natural law is necessarily found “both in law and morals” (emphasis added).

As for the actual minimum content of natural law, Hart recounts five ”truisms”: (i) ”human vulnerability” to violence and bodily harm, (ii) ”approximate equality” to inflict violence and bodily harm, (iii) ”limited

Francis Allen has well described the ”rule of law” literature as follows: “The notion of the Rule of Law dates from the beginnings of political thought in the western world. In many ways it has had a curious career, for the concept has inspired hyperbole and bombast while, at the same time, generating some of our most sensitive meditations on the nature of ‘law and the relation of individual rights to the exercise of political power and authority” (Allen 1991, 811-12).


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altruism," (iv) "limited resources" or economic scarcity, and (v) "limited understanding and strength of will" in coordinating human action for the collective good. Key to all five elements is what Hart calls a "system of mutual forbearances.'' This refers to the fact that at least some members of a society must employ legal and moral rules to organize themselves as a group, with certain minimal cooperative understandings among them: for example, refraining from arbitrarily killing each other. The system of mutual forbearances underlies the very possibility of a legal system.

Hart further argues for "two minimum conditions necessary and sufficient for the existence of the legal system" (ibid., 113,193,196-97). First, a group of rulers must adopt among themselves a "system of forbearances," from which they may make and administer laws governing the society as a whole. Second, the subjects of such alegal system (namely, those who are not rulers) must in general obey the laws established. Their obedience need not result from any degree of moral agreement or "consent." Pure self-interest, fear of the consequences of disobeying, or any other reason may serve as well.

2.5. External and lntemal Perspectives on Legal Systems

Having set out the rational minimum requirements of law, Hart then shows that, from an external observer's point of view, the "system of mutual forbearances" provides small comfort. First, it necessarily covers only a small percentage of persons in a society; survival only of the ruling group is required. Having established a "system of mutual forbearances" for themselves, rulers may refuse to extend privileges of the system to others. Even a society that enslaves ninety percent of its people or destroys the chances of survival for future generations complies with Hart's telos."

Hart also argues for minimal limits on a legal system from an internal point of view: "If a system of rules is to be imposed by force on any, there must be a sufficient number who accept it voluntarily. Without their voluntary co- operation, thus creating authority, the coercive power of law and government cannot be established" (Hart 1972,196). Historical instances of totalitarian regimes exemplify how small is the minimal "sufficient number" required for coercive government.'3 Nonetheless, at least this number of "rulers" must necessarily adopt an internal perspective toward the legal system. Hart writes:

It is plain that neither the law nor the accepted morality of societies need extend their minimal protections and benefits to all within their scope, and often they have not done so [. . .]. Nazi Germany and South Africa offer parallels unpleasantly near to us in time. (Hart 1972, 196)

l2 The possibility of ecological destruction of the human species, however, gives new currency to Hart's telos of "survival" (cf. Weiss 1989). l3 In the cases of Nazi Germany and Stalinist Soviet Union the strength of ruling parties was limited to "a few millions" and the number of the ruling elite to "several hundred thousand" (Arendt 1951,413).

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Here Hart misses an opportunity-not to apply critical morality to regimes such as Nazi Germany and South Africa, which he does-but to explore possible rational limits imposed by standards of critical Zegalify. This analysis can proceed from both “external” and “internal” perspectives as follows.

2.6. Critique of Hart’s External Perspective

From the external perspective, Hart too readily applies the name “legal system” to extreme cases of essentially “lawless” regimes, such as Nazi Germany. Emphasizing the Nazis’ frequent recourse to retroactive laws, secret laws, and disregard of law in general, Lon Fuller makes the point directly in response to Hart:

The existence of a legal system, even a bad or evil legal system, is always a matter of degree. When we recognize this simple fact of everyday legal experience, it becomes impossible to dismiss the problems associated with the Nazi regime with a simple assertion: “Under the Nazis there was law, even if it was bad law.” We have instead to inquire how much of a legal system survived the general debasement and per- version of all forms of social order that occurred under the Nazi rule, and what moral implications this mutilated system had for the conscientious citizen forced to live under it. (Fuller 1958, 646)

Even Fuller, however, confuses the Zegal point with his moral one. Not only was the Nazi regime immoral, about which Hart, Fuller, and everyone else with any moral sense agree. Empirically as well, it is questionable whether the Nazi regime counts as “legal.”

Hannah Arendt argues that the Nazi regime was essentially “lawless” as a matter of fact (Arendt 1951, 393-94). Arendt documents how Nazi rulers not only disregarded laws pre-dating their seizure of power, but ignored even their own laws. She describes the Nazi system as in “a permanent state of lawlessness” where neither law nor regulations bound the highest authority, the secret police. Arecent study by Ingo Miiller confirms Arendt’s judgment (Miiller 1991, 68-81, 90-182). He shows how Nazi judges, far from feeling legally constrained, went outside of the law to achieve the overarching purposes of National Socialism. Miiller also demonstrates how so-called Nazi jurisprudence was not really a theory of law, but of power and “order.” It emphasized an “organic” theory of law and the state in which ”[plositive law, the gardener’s tool, was gone”; ”Fiihrer law” deemed positive law “antiquated” (Schoenbaum 1980, 200).

One might object that even though some areas of social life under the Nazi regime were devoid of law, at least some other areas-such as “normal” criminal laws and laws governing economic organization - retained indicia of a legal system. To be sure, an empirical Nazi legal system existed to this

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extent (Fraenkel1969,57-64). However, the objection overlooks the degree to which "rule by party" supplanted "rule of law" in the Nazi state whenever the rulers deemed an exception expedient: "In all areas of the law and in all kinds of courts, genuine or presumed opponents of the regime were deprived of their legal rights" (Miiller 1991, 138). Nazis who committed murder and other crimes went free, but courts broadly construed criminal laws to punish opponents of the regime. A "dual state" resulted, where laws operated "normally" in some spheres of life, but were subject to arbitrary preemption by a "prerogative state" though summary orders from officials (Fraenkel 1969, 3-56).

The point is not to deny that "laws" were used by the Nazis. "Laws" created concentration camps, and "laws" condemned millions to death in the camps. Through "laws," marriage rules were altered to discriminate against Jews and other groups to achieve "the racial purity of the German people" (e.g., Miiller 1991,85-128; Weisberg 1992). The point goes instead to the systemic nature of the relation between the political and the legal. In this context, "the rule of the law" expresses the systemic subjugation of political decisionmaking to processes of law. A "prerogative state" that routinely ignores and exempts itself fromlaws, including its own laws, poses an easy target for critical legal standards. As Ernst Fraenkel wrote in what remains one of the best legal studies of the Nazi system, "it must be appreci- ated that the opposite of the legal order of the rule of law is the lawlessness and arbitrariness of the Prerogative State" (Fraenkell969, 25).

This analysis, from the external perspective, demonstrates through the example of Nazi Germany that the existence of a "legal system" can be disputed empirically. The establishment of a "prerogative state" violates minimal critical standards of "the rule of law."I4 A similar analysis applies, of course, to other extreme cases: Pol Pot's Cambodia, Idi Amin's Uganda, and Saddam Hussein's Iraq, to name only several more recent examples of essentially "lawless" regimes. Hart seems blind, however, to such empirical limits to his theory of law.

2.7. Critique of Hart's Internal Perspective

Looking at legal systems from the opposite direction-not the external perspective of whether one can identdy a legal system in a society, but the internal perspective of people living in the society-reveals a second approach for a critical legality. Again to use Hart's examples, apartheid- divided South Africa and the slave-owning U.S. South unquestionably had

l4 Alexy (1989,176) makes a similar point when he writes: "There are two kinds of social order that cannot be legal systems for conceptual reasons, no matter whether they are of continuous validity or not: the senseless and the predatory order."

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empirical legal systems as measured from the external perspective. Legal systems also existed from the internal perspective of whites (or at least white males) living in the two societies, and the systems probably met basic critical legal standards from the perspective of whites. But Hart does not similarly inquire about the internal perspective of non-white legal “subjects” (or objects?!). Instead, he recurs to the external observer’s perspective concem- ing whether a legal system exists at all, and reverts for criticism to a moral rather than a legal attitude:

In slave-owning societies the sense that the slaves are human beings, not mere objects to be used, may be lost by the dominant group, who may yet remain morally most sensitive to each other‘s claims and interests. Huckleberry Finn, when asked if the explosion of a steamboat boiler had hurt anyone, replied, “No’m: killed a nigger.” Aunt Sally‘s comment “Well it’s lucky because sometimes people do get hurt” sums up a whole morality which has often prevailed among men. Where it does prevail, as Huck found to his cost, to extend to slaves the concern for others which is natural between members of the dominant group may well be looked on as a grave moral offence, bringing with it all the sequelae of moral guilt. (Hart 1972,196)

Hart recognizes that Huckleberry Finn tells the story of the development of Huck’s moral sentiments as they attach to Jim, the runaway slave with whom Huck teams up in his adventure, in contrast to the prevailing social morality of the time and place (ibid., 254 n.). But Hart ignores the internal legal perspectives of the dispossessed. He does not fully appreciate that what one sees from the internal perspective depends very much on who one is. From the internal point of view of blacks in both systems it is very odd- and wrong- to say that a legal system exists. From the internal perspective of Jim in Huckleberry Finn, the prevailing legal system recognized him only as an “object” of property, not a proper legal “subject.” In the classic words of the abolitionist William Lloyd Garrison, slaves “by the law of the land, by the voice of the people, by the terms of the slave code” were “only a piece of property, a beast of burden, a chattel personal” (Douglas 1982,34). When a particular group of people is excluded from coverage of a legal system by definition, it is simply incorrect to say that a “legal system” exists for them.

Various societies have legally defined particular classes of persons within the society as “slaves” or otherwise as “objects” of laws that deprive them of the status of persons, such as the notorious “protective custody” decrees against Jews and others in Nazi Germany and Vichy France (Bracher 1970, 417-27; Weisberg 1992, 136-58). Women have also long been deprived of basic legal recognition (e.g., Cohen and Arato 1992,550-55; cf. MacKinnon 1989,116-17,237-49). These systems cannot properly be called legal systems from the internal point of view of those deprived of legal status by the systems. A legal system may exist for the “rulers” and true “subjects” of these systems, but from the perspectives of those excluded, they are systems not of law, but of irrational coercion.

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The internal perspective in this way suggests a critical legal principle mandating recognition of members of society with rational capacity. Laws made for a society must include those with rational capacity to participate in the legal and political process. Societies marked by laws that define classes of people as simply “objects” without legal capacity cannot be called “legal” from the point of view of the dispossessed. Such systems are “rational” only from the perspective of those empowered in the system.15

11. Habermas, Positive Law, and Systemic Legitimacy

Thus far, I have argued that Hart ignores a latent “critical” capacity within law itself that may help to diagnose the social pathologies that the invention of modem legal systems make possible. Hart himself recognizes the danger that the evolutionary ”solution” of modern legal systems presents:

Reflection [. . .] reveals a sobering truth: the step from the simple form of society [of] primary rules [. . .] into the legal world with its centrally organized legislature, courts, officials, and sanctions brings its solid gains at a certain cost. The gains are those of adaptability to change, certainty, and efficiency, and these are immense; the cost is the risk that the centrally organized power may well be used for the oppression of numbers with whose support it can dispense, in a way that the simpler regime of primary rules could not. (Hart 1972,197-98)

Hart does little, however, to advance legal theoretical approaches to this “sobering truth.” He wams against complacency that modern legal systems will inevitably comport with morality in some basic sense, but does nothing to provide standards to tell when a legal system crosses the line. A concept of critical legality, with an enhanced understanding of the external and internal perspectives on legal systems, helps to add theoretical strength to judgments about legal systems. These ideas find support in the social theory of Jiirgen Habermas and a related concept of systemic legitimacy. l5 Difficulties remain for this analysis from both the internal and external perspectives. From the internal perspective, for example, adult legal systems do not accord children full legal rights and capacities. Does that mean that legal systems do not exist for children? Given that children are commonly left to the direct care of their parents, then perhaps this conclusion is generally correct, although family laws such as child abuse legislation limit the extent and type of coercion that parents can legally exercise over their children. Perhaps one way to resolve this problem is to say that human beings with the rational capacity to participate in legal systems require more than paternalistic laws to protect them. Adult legal systems may exclude children because, arguably, children have not yet developed sufficient rational capacity to participate in a legal system. One is not greatly worried, however, by the fact that a legal system does not exist for dogs. Dogs benefit from laws preventing cruelty to animals, and “even a dog distinguishes between being stumbled over and being kicked” (Holmes 1982, 3), but dogs do not need to participate in law because they have no rational capacity for it. The same is not true for rational human beings. From the external perspective, difficulties also remain. Critical legal standards may easily judge tyrannies and totalitarian regimes- where law is nonexistent, virtually nonexistent, or severely deformed-as entirely deficient. See Part 111 below. But what of legal systems that exist minimally, but have severely impeded legal operations? How does one assess regimes with a greater or lesser degree of ”legality,” or different degrees of “legality” for different social groups? Some of these questions are also addressed below.



Like Hart, Habermas conceives law in social evolutionary terms, leading to the differentiation of law and morality. Unlike Hart, however, Habermas develops a more complex view of the relationship between the social evolution of law and morality and what this relationship means for a modem theory of positive law. Habemas‘s theory of law must be understood in the context of his uniquely double-sided social theory conceived in terms of “lifeworld” and “system” (section 1 below). From an understanding of Habermas’s concept of the legal system, it becomes clear how his legal theory is in many respects similar to Hart’s. In fact, Habermas is, in Hart’s sense, a positive legal theorist (section 2). However, Habermas’s account of the social evolution of morality also provides a fundamental qualification to his theory of positive law in the form of a basic requirement of the legitimacy of any modern legal system (section 3). This broader concept of “legitimacy” fits with the concept of critical legality advanced above, and it provides theoretical “bite, ” identifying an additional necessary theoretical limit on law than Hart admits.

1. Lifeworld and System

Habermas’s double-sided social theory distinguishes between ”lifeworld” and ”system.” Neither of the two concepts owes originally to Habemas (1987b, 119-52, 199-299, 414 n.1).I6 But he combines them in an original way, proposing that ”we conceive of societies simultaneously as systems and lifeworlds.”

Two possible orientations to the social world justify the lifeworldlsystem distinction: the point of view of a participant and that of an observer. “Lifeworld” refers to the social participant’s perspective; ”system” to the observer‘s (Habermas 1987b, 117,153). Habermas’s lifeworldlsystem theory in this way recalls Hart’s emphasis on internallexternal perspectives (Hart 1972, v, 86-88). For Habermas, a complete social theory requires a simultaneous grasp of both the internal perspectives of lifeworld participants and external perspectives on social systems.”

1. I. The Concept of the Lifeworld

For Habermas, the “lifeworld” relates to social communication among human beings in everyday life (Habermas 1987b, 113-52). The lifeworld is a place “behind” communication, a structural “given” of language and

l6 For the concept of the ”lifeworld,” with roots in phenomenology, Habermas owes Alfred Schutz and Thomas Luckmann, among others. As for “system,” he relies on various sociologists, most notably Talcott Parsons. Habermas also draws heavily on the work of George Herbert Mead (Habermas 1987b, 1-111). l7 The internallexternal and lifeworldlsystem dichotomies also reflect the traditional theoretical distinction between ”individuals” and “society.”


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culture that human beings assume as background to communication with each other. Somewhat opaquely, Habermas explains:

This lifeworld is, so to speak, the transcendental site where speaker and hearer meet, where they can reciprocally raise claims that their utterances fit the world (objective, social, or subjective), and where they can criticize and confirm those validity claims, settle their disagreements, and arrive at agreements [. . .I.

The lifeworld is constitutive for mutual understanding as such, whereas the formal world concepts constitute a reference system for that about which mutual understanding is possible: speakers and hearers come to an understanding from out of their common lifeworld about something in the objective, social, or subjective worlds. (Habermas 1987b, 126)

The lifeworld, in other words, refers to the ”place” where mutual understanding occurs. It is “transcendental” because it constitutes certain assumptions people make when they communicate, for example: the same language and grammatical rules for its use, a shared culture, and certain inherited common traditions about how to understand the world.I8 Haber- mas derives the “objective, social and subjective worlds” from I. C. Jarvie’s adaptation of Karl Popper‘s theory of three worlds (Ingram 1987, 28-31), which correlate with three categories of “truth”: (i) objective truths refer to anything “about which true statements are possible” (e.g., scientific know- ledge); (ii) social truths refer to ”legitimately regulated interpersonal relations” (e.g., law and morals); and (iii) subjective truths refer to the “privileged access” a speaker has to truths about oneself (e.g., authenticity) (Habermas 1987b, 120).

Without more fully explicating Habermas‘s complex conception of the lifeworld, it is sufficient for purposes here to observe that the lifeworld-as the “place” in which participants in communication can understand and agree about the world- is also the “place” in which people agree upon and “learn” moral orientations to the world. In this sense, the lifeworld represents the internal perspective of participants in society from which the development of moral consciousness, or “social integration, ” occurs (ibid., 117).19 The Habermasian lifeworld, although it is constituted from the ”participants’ perspective” in a manner reminiscent of Hart, differs from Hart’s looser use of the internallexternal dichotomy. Habermas‘s lifeworld provides a complex theoretical account of social agreement about norms, both law and morals, that is absent from Hart’s theory.

W. T. Murphy usefully describes the Habermasian lifeworld as follows: “[Tlhe decisive feature of the lifeworld . . . is that much of its content remains in the background of the consciousness of the individual actor most of the time. It is never entirely on view, it is never, taken as a substantive whole, capable of being the object of explicit synoptic attention from the point of view of social actors” (Murphy 1989, 140).

Habermas’s lifeworld in this way shares similarities with Robert Cover’s concept of nomos. Cover describes the nomos as “a normative universe” where “[wle constantly create and maintain a world of right and wrong, of lawful and unlawful, of valid and void“ (Cover 1983,4).

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2.2. Systems Theory

From the perspective of the observer rather than the participant, Habermas agrees with Hart that modern “legal systems” become “differentiated” (Habermas 1992a, 135-38, 188; Habermas 1987b, 199-282). However, Habermas’s systems theory broadly conceives the differentiation of law to occur simultaneously with the differentiation of other social “systems,” which the legal system helps to establish.”

The economic and political systems are preeminent. These systems become differentiated through “media“ -namely, the social structures of money and power - which operate as communicative short-cuts to longer- winded ways of reaching agreements (Habermas 1987b, 262-63). Systems based on money and power, namely, market economies and governments, evolve because they get things done more efficiently than other methods of social organization (cf. Lindblom 1977). One commonplace illustration from the economic system: It is often more efficient simply to set a price, allowing consumers to choose whether or not to buy a product at that specified price, than to rely on bartering. The same principle applies in political systems: It often maximizes efficiency for one person (who is ”in power”) simply to tell another person what to do, rather than to engage in an extended discussion to persuade the other to do it. While these systems develop in accordance with the logic of efficiency, however, they at the same time become, in Habermas’s terms, “uncoupled” from the lifeworld, the place from which we make communicative, morally grounded agreements (Habermas 1987b,

Law plays an important role in establishing and maintaining the economic and political systems of money and power (ibid., 270, 309-310). Property and contract law, for example, structure economic markets; constitutional and administrative law organize political bureaucracies. At the same time, law also develops a systemic character. Through social development that differentiates separate economic and political systems, a “legal system” is also born. In constituting these systems, law is both a ”medium” at the systems level and also, at the level of the lifeworld, an “institution” which becomes “embedded in a broader political, cultural, and social context” (ibid., 365-66).

153-97). ”

Habermas follows Parsons in reserving ”system” to refer to society as a whole, and speaks of ”subsystems” when referring to subdivisions of society. Passing over this distinction, this article uses the simpler term “system” to refer to ”subsystems.”

Lindblom similarly postulates three “fundamental politico-economic alternatives”: (i) “social organization through the authority of government,” (ii) ”social organization through exchange and markets,” and (iii) ”social organization through persuasion” (Lindblom 1977, 4).


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2. Habemas and Positive Law

One cannot always pin down Habermas on what he believes about a particular subject at a particular time, given the complexity of his thought and the pace of change in his views.= However, this article ventures to argue that Habermas counts as a positive legal theorist in Hart’s sense, with one very important exception. The exception- the requirement of systemic legitimacy- is better conceived as a major qualification, rather than a refutation, of Hart’s theory of positive law (cf. Rasmussen 1990,75-93).

Habermas agrees with Max Weber, despite other theoretical differences between them, that modem law has developed a “systemic character”:

Modem law is in a particularly high degree jurists’ law. With legally trained judges and officials, the administration of justice and public administration became professionalized. Not only the application of law but the enactment of law became increasingly bound to formal procedures and thereby to the specialized mind of jurists. This situation promoted the systematization of legal propositions, the coherence of legal doctrine, that is to say, the rationalization of law according to internal, purely formal criteria of analytic conceptual structure, deductive rigor, principled explanation and justification, and the like. This tendency can be observed already in late medieval faculties of law; with legal positivism, it is completely established [. . . I . (Habermas 1984, 256)

Hart would certainly agree. He would also agree with Habermas‘s re- capitulation of Hart’s theory of positive law:

H. L. A. Hart and others have shown that modem legal systems include not only legal precepts, permissions, prohibitions and penal norms [i.e., primary rules] but also secondary norms, rules of empowerment and rules of organization that serve to institutionalize processes of legislation, adjudication, and administration. In this way the production of legal norms is itself regulated by legal norms. (Habermas 1988,229)

Finally, Hart would agree wholeheartedly with Habermas’s insistence that ”the boundaries between law and morality ought not to be blurred“ (ibid., 24923

22 This article was largely written before the publication of Habermas’s most recent contribution, Fuktizitiit und Geitung (Facticity and Validity) (1992a). A referee for Ratio luns suggested that this article should respond to this book, and some attempt has been made to do so. However, a fuller treatment of the ideas contained in this important new book must await a later date.

In this connection, note that Habermas, in his famous ”positivist debate” with Karl Popper and Hans Albert in the 1970s, is not concerned with Hartian legal positivism. Instead, Habermas contests positivism in social science methodology (Holub 1991, 20-48; Braaten 1991, 106-14; McCarthy 1978, 40-52, 137-62). In opposition to logical positivism, Habermas argues for a model of “communicative rationality” by which truths or ”criticizable validity claims’‘ are reached through “mutual understanding” (Habermas 1987a, 294-326; Habermas 1987b, 71-72). Habermas’s anti-positivist social theory does not, however, entail a rejection of Hart’s positive legal theory. See note 2 above.

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The case should not be overstated. Habermas also follows Ronald Dwor- kin’s critique that modern legal decisionmaking often, if not always, refers to moral principles (Habermas 1992a, 254; Habermas 1988, 230). Habermas argues that “legal discourses, however, bound to existing law, cannot operate within a closed universe of unambiguously fixed legal rules,” because of ”the stratification of modem law into rules and principles” and because “many of these principles are both legal and moral, as can easily be made clear in the case of constitutional law.” Habermas goes on, however, to assert that such moral rules and principles “have become positive law in modern constitutional states.” Here, Dworkin’s legal theory to the contrary notwithstanding, Hart and other positive legal theorists agree (Hart 1972, 199; Coleman 1989,74-75; Greenawalt 1987a). In the legal system of United States, for example, “the ultimate criteria of legal validity explicitly incorporate principles of justice or substantive moral values.” The same is true of the German legal system (e.g., Alexy 1992, 148). As discussed above, Hart’s theory of positive law denies neither that morals influence law nor that legal systems substantively incorporate morals into positive law. Hart claims only that there is no necessary connection and that it makes sense to conceive of law and morals as, to a certain extent, separate.

Habermas thus agrees with much of Hart’s theory of positive law. How- ever, Habermas also points to a major revision in Hart’s theory with respect to the necessary legitimacy of modern positive legal systems.

3. The Necessary Systemic Legitimacy of Modem Legal Systems

Habermas argues for a necessary connection between law and morality in terms of a concept of “legitimacy” (Habermas 1992a; 1992b; 1988). Legitimacy depends in tum on the degree of ”procedural rationality” present in a legal system. Habermas arrives at this qualification of Hart’s theory of positive law through a complex account of the social development of both law and morals.

3.2. The Social Evolution of Lnw and Morals

Habermas sees the historical progression of law and morals in terms of the following “levels of social integration” (Habermas 1979,157-58). (i) “Neo- lithic societies” employ “legal regulation of conflict from preconventional [moral] points of view.“ (ii) “Early civilizations’’ employ “conflict regulation from the point of view of a conventional morality tied to the figure of the ruler who administers or represents justice. “ (iii) “Developed civilizations” also employ “conflict regulation from the point of view of a conventional morality,” but it is “detached from the reference person of the ruler” and includes ”tradition-dependent but systematized law.” (iv) ”The modem


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age” employs ”conflict regulation from the point of view of a strict separation of legality and morality.”24

Habermas’s description of the modern “strict separation of legality and morality” confirms his affiliation with Hart. His descriptive account of the social evolution of law roughly parallels Hart’s conceptual account. How- ever, Habermas adds an account of social moral development. Law and morality are related, according to Habermas, because they are both ”second order norms” that serve the goal of ”social integration” (Habermas 1987b, 173-74). Law and morality are different, but complementary, forms of general norms of action or Hundlungsnormen (Habermas 1992a, 135-38,143). If everyday communication fails to resolve conflicts, people may, instead of resorting to violence, appeal to second-order norms: what is right; what is legal.

In his description of the progress towards the modern separation of law and morality, Habermas employs the three levels of moral consciousness developed by Lawrence Kohlberg- preconventional, conventional, and postconventional (Habermas 1987b, 174-75; Habermas 1979,156). (i) At the preconventional level, law and morals remain fused. As in Hart’s society of only primary rules, ”actions, motives, and acting subjects are still perceived on a single plane of reality.” (ii) At the conventional level, “conformity with a certain social role or with an existing system of norms is the standard.” Conventional morality follows the rules set, for example, by King or Queen, mother or father, or religious authorities. (iii) At the postconventional level, the ”systems of norms” of both law and morality ”lose their quasi-natural validity; they require justification from universalistic points of view .’’E

Postconventional morality emerges through what Habermas calls the “linguistification of the sacred” (Habermas 198710, 42-118). “Universal- istic” morality, which is historically related to the great universal religions remains, but it is shorn of sacred authority, at least at the level of society generally. Postconventional morality continues to make universal claims, but is fragmented by the post-Enlightenment development of various schools of thought and the corresponding decline of religious dominance. It is characterized by “moral pluralism” of a kind similar to that found in Hart’s moral theory.26

24 The “modem age” for Habermas includes the present. He is a staunch opponent of the view that we live in a “post-modern” age (Habermas 1987a). 25 Feminist theorists such as Carol Gilligan have criticized Kohlberg’s moral stages of development as inherently sexist (Gilligan 1982,lS-38,72-73). Habermas has elaborated on Kohlberg‘s theory and attempted to respond to feminist criticism (Habermas 1990,33-41,123-33,175-88). 26 This does not mean that Habermas (or Hart) embraces moral relativism. One can agree about the existence of objective truths, or at least the usefulness of believing in objective truths, and yet remain humble about one‘s own access to truth, admitting that more is learned through the meeting of a “plurality” of moral views (cf. Walzer 1989).



Because Habermas gives a better account than does Hart of how law and morality actually separate, he is in a better position to account for the basic problem faced by both law and morality at the postconventional level, namely, the source of a “universalistic point of view” by which both normative systems can be “validated.” This is the problem of legitimacy.

Specifically as to modem positive law, “the metasocial guarantee of the validity of law on the basis of sacred law” that classical natural law theories had provided is lost in modern societies. According to Habermas, this loss occurs historically as follows (Habermas 1988, 260-63). Three elements characterize pre-modern legal systems: sacred law, bureaucratic law, and customary law. Positive legal systems incorporate traditional forms of bureaucratic and customary law relatively easily.27 Replacing the legitimating force of sacred law, however, is much more problematic. Previously, “the canopy of sacred law provided the legitimating context within which the ruler exercised his secular power through the functions of adjudication and bureaucratic legislation.” With the modern loss of the sacred, the problem for secular, positive legal systems becomes: Why are they legitimate?

3.2. The Requirement of Systemic Legitimacy The qualification Habermas delivers to positive legal theory lies in his claim that modern legal systems, although separated from morality, remain necessarily tied to post-conventional morality in that they must have legitimacy. In this connection, Habermas writes:

Inasmuch as law becomes positive, the paths of legitimation grow longer. The legality of decisions, which is measured by adherence to formally unobjectionable procedures, relieves the legal system of justification problems that pervade traditional law in its entirety. On the other hand, these problems get more and more intensive where the criticizability and the need for justification of legal norms are only the other side of their positivity - the principle of enactment and the principle of justification reciprocally require one another. The legal system as a whole needs to be anchored in basic principles of legitimation. (Habermas 1987b, 178)

Illustrating the modern problem of the legitimacy of positive law, Habermas sees a “paradox” in Hart’s rule of recognition (Habermas 1992a, 165; Habermas 1988,253). At the same time as society views the rule ”externally as a social fact” for determining what the law is, the rule is also “accepted internally” by the society “as a convincing criterion for legal validity.” In

’’ Conflicts may remain, however, between bureaucratic law and customary expectations that continue in the lifeworld.


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other words, the paradox is that society respects the rule of recognition, and yet at the same time refers to the rule as the basis for this respect.28

Social theory cannot resolve the paradox in terms of law alone. Hart agrees that ”there is something outside the official [legal] system’’ to which individuals must turn to solve problems of obedience (Hart 1972,206). Focus- ing on the narrower, more practical question of obedience per se, however, avoids the larger point of the paradox: the necessary connection of law and legitimacy at the level of the social system as a whole. The central problem of “law” and “legitimacy” occurs not at the practical level of whether or not to obey particular laws, but at the systemic

Habermas resolves the paradox of the rule of recognition as follows. Modern law loses its former legitimacy because it has lost the component of sacred law. However, modern law regains legitimacy, not by returning to sacred legitimation- although some fundamentalist Islamic regimes may illustrate this reactionary “conventional” strategy (e.g., Mayer 1991)-but by calling on the same legitimating force that historically brought down universal sacred systems in the first place: post-Enlightenment rationality.30

Without God-or at least without a God about which everyone agrees- people are thrown back on themselves. Without God backing up human positive law as reflecting divine natural law, how can law be legitimate? Habermas finds an answer to the problem of modern legal legitimacy in the “procedural rationality” of democratic political institutions. He draws on social contract theorists such as Rousseau, who ”can be understood as proposing a procedure whose rationality is supposed to guarantee the correctness of whatever decisions come about in [the designated] procedural manner” (Habermas 1988, 228).

For Habermas, “procedural rationality” is systemically necessary to positive law (ibid., 241-45). It is a much “thicker” theory than Hart’s procedural

2n Social theorists before Habermas have noted this paradox. Hannah Arendt (1965, l a ) , for example, discussed how democratic revolutions “throw into relief with unparalleled sharpness the old problem [. . .) of the source of law which would bestow legality upon positive, posited laws, and of the origin of power which would bestow legitimacy upon the powers that be.” More recently, Jules Coleman (1989, 72) has stated the paradox as follows: ”The rule of recognition sets out the conditions of legal validity and cannot itself be valid ’under’ same other rule. If it could be, then that other rule would be the rule of recognition, and the very same suestions would arise with regard to it.”

Much of the theoretical discussion of ”legitimacy” focuses on the question of obedience (e.g., Greenawalt 198%; McBride 1984; Hyde 1983). At the concrete level, a legal system’s legitimacy does not determine whether or not one should obey a particular law. The practical decision of obeying any particular law involves many other moral and practical factors in addition to one’s assessment of the system’s overall legitimacy. They include: the relative importance of the law, its moral and political correctness, its economic sense, the chances of being caught, the possible penalty, the probable consequences, and circumstantial justifica- tions. The point made in the text is only that the problem of legitimacy cannot be reduced to the

A question remains concerning the potential limitation of Habermas’s historical account, and by implication his social theory, to Westemloccidental societies. I do not address this issue here.

roblem of obedience.

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theory of justice because Habermas incorporates a richer conception of "rationality." Only the rational procedures of democracy can provide modern positive law with its needed legitimacy (Habermas 1992a, 139,209, 516-17, 536-37; Habermas 1992b, 446-52). In a word, the difference between the legal theories of Hart and Habermas is democracy.

At the systemic level, the requirement of democratic "procedural rationality" within law refers to the nature of government (Habermas 1992a, 209; Habermas 1979,178). The legitimacy of positive law therefore presupposes legitimate democratic government. One might object that requiring the legitimacy of both law and government is contradictory; legitimacy should refer either to legal or political theory, but not both. Habermas avoids contradiction, however, through his historical account of the social evolution of both positive law and democratic government, together with evolving structures of morality and rationality. Moreover, he attempts to link law and democracy in a theory of rational collective will-formation that captures the systemic interplay between them (Habermas 1992a; 1989).

3.3. The Meaning of Systemic Legitimacy

The meaning of systemic legitimacy as it is used here-referring to the necessary connection of positive law to postconventional morality and politics at the level of the social system- must be clarified in contradistinc- tion to other theories of legitimacy. David Beetham (1991,3,15-20) usefully distinguishes three "dimensions" or "levels" of legitimacy. (i) Legitimacy sometimes refers to whether specific actions or behaviors conform to the legal rules of a society. A theory of positive law would more precisely describe this sort of legitimacy as "legal validity." (ii) Legitimacy is also often used, particularly in sociological theory, as referring to the extent to which people in a society "believe," as an empirical matter, in the basic structure and organization of power in society. This sort of legitimacy derives from the influential social theory of Max Weber.31 (iii) Finally, legitimacy, as many contemporary social and political theorists use the term, refers to the extent to which "power is acquired and exercised according to justifiable rules, and with evidence of consent." Habermas refers to this kind of legitimacy when he speaks of the necessity of procedural rationality and democratic govem- ment. To distinguish this theory of legitimacy, based on the rational assessment of regimes or societies, from "legal validity" and "empirical legitimacy," I refer here to systemic legitimacy (see Figure 2).

31 Weber's well-known troika of rational-legal, traditional, and charismatic authority all correspond to an empirical theory of legitimacy based on a people's "belief" in the system." Beetham (1991, 6-12) summarizes the persuasive arguments against this empirical theory of legitimacy; it prevents development of rational standards by which to judge various regimes or societies.


268 Eric W. Orts

Figure 2

Theories of Legitimacy

Procedural rationality in law-making and law-applying; democratic government Systemic Legitimacy

General social ”belief” in the existing political and legal systems Empirical Legitimacy

Correspondence of actions and behaviors with existing laws Legal Validity

Social Description Theory

This article does not propose to articulate fully what a modern theory of systemic legitimacy would entail. In outline only, systemic legitimacy requires rational procedural processes of democratically elected legislatures (for example, voting and deliberative government), as well as adjudication (for example, procedural rules for argument, hearing both sides of a case, and basing decisions on reasoned opinions and judgments). The minimal content of a modem theory of systemic legitimacy, in other words, would include necessary conditions of procedural rationality that encompass both “law-making” and ”law-applying” (Habermas 1992b, 47-48, 154, 165, 235-36,287-92,536-37; Wroblewski 1990, 114).32

A theory of systemic legitimacy, drawing on a reflective sense of critical legality, suggests how rational standards can develop for assessing whether and to what extent particular societies adhere to “the rule of law.” Is the law- making process “rational” and “deliberative”? ”Laws” made by tyrannical fiat easily flunk the test. More difficult questions, however, include the following. To what extent has a particular group in society ”captured” law- making processes for its own interest? Are some members of society completely left out of law-making? One can also ask about the degree to which the law-applying process is “rational” and “deliberative.” A system dominated by arbitrary judges would easily flunk this test. More difficult questions concern the extent to which judging may become subject to non-legal considerations. Are results rationally related to the applicable laws? Does the justice system actually work in the way the law says that it should?

Administrative agencies, which both “make” and “apply” law, must also be included. Precisely because of the merging of political and legal functions, however, administrative law poses a particularly difficult problem for a theory of systemic legitimacy (Maenpaa 1989).



Again, I do not offer here a full-fledged theory of systemic legitimacy. However, the following criteria are among those that might be critically developed to assess the degree of systemic legitimacy in modern legal systems (cf. Sunstein 1988, 1548-58).

Procedurai rationality. The paradox of Hart’s rule of recognition, created by the vacuum left by the absence of natural and theological law, can be overcome at the systemic level only by a democratic theory. The answer to the paradoxical question, “Why should we recognize the rule of recognition?” can be found in a contemporary reformulation of social contract theory. Hart’s rule of recognition is “legitimate” for any society only to the extent that rational procedures of law-making and law-applying connect - to an extent acceptable given the complexity of modem society (Habermas 1992b, 516) -with the rational expectations and needs, wills and interests, of the “authors” and subjects of positive law. Without basic moral and political legitimating structures of procedural rationality- both in law-making and law-applying -a modem positive legal system crashes like a house of cards. Neither God nor ideology can justify the abridgement of the rational procedures of modern democratic regimes.

Equal rights of participation. Procedural rationality alone, however, is not enough. Democratic procedures using the principle of majority rule for decisionmaking can undermine equal rights of participation in legal and political processes. As Samuel Freeman has recently written,

Democracy is not a notion that is exhaustible in procedural terms. Whatever else we might choose to call it, a society that allowed for equal political rights and majority rule, yet systematically denied religious, ethnic, and racial classes some or most of the basic rights [of participating freely in the system], does not realize the ideals we associate with democracy, and consequently hardly deserves the name. A society is more or less democratic to the degree that it provides for the fundamental rights of free and equal sovereign citizens, and insures the social conditions for their effective exercise and each person’s free pursuit of his good. (Freeman 1990-91, 362)33

Rational critical reflection concerning the “internal perspectives” of legal subjects leads to a principle of equal rights of participation or ”citizenship.” Social movements for “human” and “civil rights” express this basic principle. Legal systems that exclude rationally capable subjects from participation are illegitimate, especially from the point of view of those excluded. This principle refers only to basic rights to participate in legal and political systems, however; it does not refer to “substantive” rights that the legal and political systems may then establish through rational procedures.M

Emphasizing this dimension of what I am calling systemic legitimacy, Freeman (1990-91) makes a strong case in favor of judicial review and against anti-majoritarian criticism of it.

Rational standards of equal rights to legal and political participation therefore differ from potentially broader standards developed through exercise of ”critical morality” or standards imposed on legal systems in theories of classical or modern “natural law.”


270 Eric W. Orts

Universality. A commitment to rational legal and political procedures implies a belief that the legal and political processes can overcome moral relativism and at least approximate, through rational deliberation, true conceptions of the “common good” or the “public interest” (cf. Walzer 1989). Without this commitment, and the underlying moral epistemology it presumes (e.g., Nino 1991; Putnam 1990, 1684-88), the democratic faith in rationality falters and fails. Legitimacy refers to the extent to which legal and political processes succeed in keeping this faith.

111. Possible Applications of Systemic Legitimacy

This article concludes with two brief illustrations of how a theory of systemic legitimacy, constructed with a sense of critical legality, may prove useful. I consider first the problem of modern tyranny, which Hart cannot adequately handle in his theory of law, and then the problem of what may be called “law’s imperialism.”

I . Modem Tyranny

Because Habermas’s theory develops in the historical context of post-World War I1 Germany, it not surprisingly proves useful in approaching the problem of modem tyranny. His conception of the necessary legitimacy of modem legal systems indicates this concern, as the following theme in a debate with Niklas Luhmann illustrates:

In a fascist regime [. . .] the legal form of administrative acts can have at best a masking function. This means that the technical legal form alone, pure legality, will not be able to guarantee recognition in the long run if the system of authority cannot be legitimized independently of the legal form exercising authority. (Habermas 1975, 100)

As seen above, however, Hart’s treatment of the same troubling subject of degenerate regimes such as Nazi Germany reaches a different conclusion. Hart realizes that such cases pose difficult questions for his legal theory, but he sticks to an overly grudging conception of “law.” To the argument pressed most strongly upon him by Lon Fuller, he responds quite weakly that the Nazi regime was in fact “legal” (Hart 1972, 204-7).

Hart’s argument in this respect rightly disturbs many people. It is in- sufficient to assert, as Hart does, that any regime ruling by orders or threats which it may call “laws” qualifies as ”lawful” as a matter of legal theory. The “rule of law,” if it means anything, cannot be reduced to meaning simply any method of government that a brutal regime may deem acceptable. Regimes that entirely abandon the rational characteristics of modern legal systems and methods cannot properly be described as operating 0 B a d Blackwell Ltd. 1993


according to “legal” principles. Hart argues that legal systems can become “pathological” only as a ”factual statement” of whether or not a particular coercive system exists empirically, thus excluding only systemic “break- downs” of revolution, occupation, anarchy, or banditry (ibid., 114-17).35 But he confuses an important distinction between rational legal systems and irrational systems of coercion. In contrast, because Habermas recognizes the potential for “deformation of law” (Habermas 1988, 233), he substantially improves on Hart.

The distinction between ”lawful” and ”lawless” regimes is not, of course, original to Habermas. The distinction finds roots in ancient political theories of tyranny. The ancient Greek writer Xenophon defines tyranny as rule without laws (Strauss 1963,109; Jbz i and Lewis 1957,3-4). Hannah Arendt updates the idea: “Only tyranny, according to political theory a bastard form of government, does away with constitutional, namely, lawful, government” (Arendt 1965, 143).

The related idea of legitimacy originates in the Middle Ages as a legal concept elaborated as ”a defence against illegal usurpation and tyrannies” (Luhmann 1985, 199). Although the concept of legitimacy declined with theories of natural law, there seems no reason why it cannot be ”reconstructed” in the modern context in terms of systemic requirements of procedural rationality (cf. Jaszi and Lewis 1957, 205-18).

A theory of legitimacy, reconstructed from a perspective of critical legality, addresses the problem of “lawless” regimes, because such regimes break the necessary systemic connection between positive law and rational procedures of law-making and law-applying. They pose easy targets for the theory. In borderline cases, however, the exact parameters and dimensions of the procedural rationality needed for positive legal systems to remain legitimate will prove more difficult to establish. Legal systems may operate relatively well in some areas, and yet reveal grave problems that strike to their essential “legality” in others. To take an example from the American legal system: Requirements of procedural rationality are met with highest possible standards in court cases where large amounts of money are at stake, but the systemic legitimacy of criminal plea-bargaining practices in inner cities is questionable (e.g., Arenella 1983, 188 and n.18, 200-8, 216-28). A fully articulated theory of systemic legitimacy would have to account for these sorts of discrepancies in modern, complex societies.

Habermas argues that improvements on social contract theory, along the lines of “a communication-concept of rational collective will-formation,” may provide solutions (Habermas 1992b; 1989; cf. Freeman 1990-91, 341-48;

35 Note that even under Hart’s criteria, certain modern cases would not qualify as legal regimes. The recent situation in Somalia, for example, provides an example of systemic breakdown into anarchy and banditry.


272 Eric W. Ovts

Donaldson and Dunfee 1993). Again, this article does not propose to address in detail the emerging debate concerning the degree of procedural rationality needed for a legal system’s legitimacy (e.g., Habermas 1992a). At a minimum, however, a modern theory of systemic legitimacy should revive minimal standards of procedural rationality, which should prove useful not only in monitoring one’s own legal system from within-that is, assessing the degree to which one’s current system satisfies the requirements of procedural rationality and pressing for change and reform when needed-but also in judging other regimes. Too infrequently in recent times have modern democratic states failed to employ substantive standards of ”the rule of law” in foreign policy, except to the extent an ideological use of the term served national interests of political or economic expediency (cf. Douglas 1961).

2. LRW’S Imperialism

Another major contemporary problem arises from the tendency of the political and economic systems increasingly to “instrumentalize” positive law to extend their respective efficiency rationales past the point where people may want systemic logic to go. Habermas captures this problem in terms of the threatened ”colonization of the lifeworld.” Because the lifeworld vitally concerns communication and the possibilities of rational agreement, Habermas argues that the structures of the lifeworld must retain a certain richness and flexibility. If the short-hand codes of power and money reduce the lifeworld’s “structures” (again, the background assumptions allowing for rational communication), then ”everyday communicative practice” becomes impoverished. This occurs when the “forms of economic and administrative rationality” penetrate into “areas of action that resist being converted over to the media of money and power because they are specialized in cultural transmission, social integration, and child rearing, and remain dependent on mutual understanding as a mechanism for coordinating action” (Habermas 1987b, 330).

In this way, the expansion of what Habermas calls “the imperatives of autonomous subsystems,” which “make their way into the lifeworld from the outside-like colonial masters coming into a tribal society-and force a process of assimilation upon it,” strikes at the moral fabric of society (ibid., 355). Habermas fears nothing less than that money and power become the referents for ”meaning in life,” displacing the more complex moral structures necessary for the rational creation of meaning in modern society. More concretely, ”systemizing” the lifeworld produces social pathologies. Not tyranny; for here, “the rule of law” is affirmatively employed. Instead, the pathologies are personal and psychological: loss of meaning, alienation, disorientation, and other antisocial reactions, which can in turn lead to broader social problems of deviance, destructiveness, and apathy (ibid., 14-43). 0 Basil Blackwell Ltd 1993


Positive law is involved because of its usefulness in advancing the social scope of political and economic systems. Bureaucratic power, of course, is expanded directly through law: for example, by the creation of yet another social agency with authority to make and enforce its own regulations. The scope of the economic system is also extended through law: for example, through the creation of new markets (Polanyi 1957).

The solution to the tendency of political and economic systems to encroach on the lifeworld is easier to state than to accomplish. Limiting the "colonization of the lifeworld" calls for (i) reinforcing institutional protections that contribute to healthy lifeworld structures, such as the family and schools (Habermas 1987b, 368-73), and (ii) circumscribing the inappropriate expansion of systemic rationales into the lifeworld by limiting the scope of government and economy, such as by laws against the commodification of sexual relations (e.g., Radin 1987).

My description of this phenomenon as law's imperialism plays off Habermas's metaphor of "colonization of the lifeworld," as well as the darker side of modern positive law- a contrast to Dworkin's "noble dream" of "law's empire" (Dworkin 1986; cf. Hart 1977).% Law's imperialism is a theoretical name for the tendency of modern law and society to extend systemic rationality beyond its appropriate scope.

With respect to the governmental and bureaucratic side of law's imperialism, academics refer to "juridification" (e.g., Teubner 1987). Juridification "refers quite generally to the tendency toward an increase of formal (or positive, written) law that can be observed in modern society" (Habermas 1987b, 357). A recent study of the United States, the United Kingdom, and Canada, for example, documents exponential increases in the number of lawyers, the amount of published law - statutes, regulations, reported cases -and litigation (Galanter 1992,2-11). But certainly some structures of the lifeworld should remain off limits to the increasing scope of modem law, which tends to extend the rationalizing, reductive powers of the political bureaucratic systems ever further into human society; surely, in a legitimate democratic society "there are areas of individuals' lives that are not subject to infringement by political processes, but which are matters for citizens' own control" (Freeman 1990-91, 338). Habermas identifies, in a passage quoted above, the areas of "cultural transmission, social integration, and child rearing." But how can social decisionmakers who may share this view decide exactly where to draw the line? A theory of rational will-formation adhering to democratic procedures may help (e.g., Habermas 1992a; 1989), but the balancing of efficiency gains and moral values involved is not an easy

36 In a different theoretical sense Robert Cover speaks of law's "imperial mode" and "imperial characteristics" (Cover 1983,16,60). It should go without saying that "law's imperialism" is not meant in the Marxist or, worse, Leninist sense.


274 Eric W. Orts

task, especially given increasing social complexity. Also, how should the line be drawn? Perhaps schools and family should be somehow protected, but how is the encroachment of systemic rationality to be checked? Here, various proposals for more proceduralized, “reflexive” law (e.g., Teubner 1987) or legal strategies of “decentralization” (e.g., Tuori 1989, 137) seem suggest- ive. In such ways, law might help defend rather than disable the lifeworld.

On the economic side of law’s imperialism, positive law can also extend market rationality to more and more areas of human life, for example, by legalizing prostitution (where it is not already legal) or allowing baby-selling. Or consider, with respect to judicial law-applying and law-making, the American phenomenon of powerful law-and-economics judges. In this connection, a different concern arises over the potential for judicial usurpation. For example, Judge Richard Posner, a leading law-and-economics jurist, calls for judges aggressively to enact economic policy through court decisions. In his jurisprudence, Posner is not impressed with theories of judicial legitimacy that attempt to bind judges to democratic theory and procedures (Posner 1990,124-57). Instead, Posner and other “activist” law- and-economics judges often employ legal decisionmaking to serve economic rationality. Sometimes, this approach fits with conventional expectations about the place of economic analysis in judicial decisionmaking (Greenawalt 1992, 163-92). But sometimes the law-and-economics approach extends economic rationality past the point where people usually think it should go, for example, into the area of human sexual relations (e.g., Posner 1992). The easy political answer, of course, is to refrain from appointing or electinglaw- and-economics judges. Legislatures could also employ positive law (so long as judges follow it, and even law-and-economics judges do not usually ignore clear statutory language) to preserve certain areas of human life from the economic logic of the market. On the theoretical plane of systemic legitimacy, further thought should be given to the ways in which judges should feel themselves constrained by the ”procedural rationality” of law. However, although there are exceptions (e.g., Greenawalt 1992), much recent American legal theory advocates further empowering judges (e.g., Posner 1990; Dworkin 1986), beyond the limits a complete democratic legal theory of systemic legitimacy and procedural rationality would establish.

Conclusion

The concept of systemic legitimacy, derived from the social theory of Jiirgen Habermas, strengthens Hart’s theory of positive law. Introducing the idea of legitimacy cures a major weakness in Hart’s theory by providing critical legal standards by which to assess regimes that depart from the procedural rationality necessary for the rule of law. In addition, a theory of systemic legitimacy promises solutions to a contemporary tendency toward “law’s imperialism.” Habermas’s concept of the lifeworld, and a reconstructed 0 Basil BlackweU Ltd. 1993


theory of democracy based on procedurally rational processes of law-making and law-applying, offer critical standards for determining how legal systems can decline towards illegitimacy. A theory of systemic legitimacy generates critical standards for determining where the processes of positive law, which remain to a large extent independent of those of morals, should stop.

University of Pennsylvania The Wharton School

Department of Legal Studies 3620 Locust Walk

Philadelphia, PA 19104-6369 U. S.A.

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Positive Law and Systemic Legitimacy: A Comment on Hart and Habermas

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