Hart is concerned to defend two things: his understanding of law as rules and what he calls the “utilitarian” distinction between “what law is” and “what law ought to be.”
We spent most of our time with the argument in section III.
Hart seeks to establish two major points in Section III.
First, some legal thinkers exaggerate the significance of the cases in the penumbra. In particular, they see all legal cases as hard or ‘penumbral’ ones. (See the first and last paragraphs of the section.)
This poses an obvious threat to Hart’s claim that laws are rules. That would not look plausible if all legal cases are in the fuzzy zone.
Second, there is a disagreement about how to describe what judges are doing when they issue rulings in these hard cases. Suppose they take considerations of social policy into account when making up their minds. When they do that, should we interpret what they’re doing as discovering what the law really? (If so, the social policy considerations they take into account are part of what the law is.) Or should we interpret what they’re doing as using considerations of social policy to legislate, that is, make new law? (See p. 612)
Hart believes that the first option leads to conflating the way law is with the way law ought to be. If considerations of social policy are part of the law, after all, then the considerations that tell us what the law should be like are, well, part of the law. So he prefers the second option: judges legislate.
Callum noted that if judges legislate, as Hart is willing to concede, then they play a large role in making the law, as the realists said. I don’t think Hart would disagree. I think his chief point is that the extent of judicial legislation shouldn’t be exaggerated: most of the time, the law isn’t in the penumbral region.
Emma said some of the phenomena I referred to better served the realists’ position than Hart’s. For instance, I said that we all try to follow countless legal rules every day: that’s what we do when we fill out our tax forms and obey the traffic rules, for instance. Hart claims that what we’re doing is trying to follow the rules; we’re not trying to predict what a judge will say. I said I agreed. Emma, however, disagreed. She noted that we care much more about how traffic laws will be enforced than we do about the actual law. If I know that no one gets tickets for going only five miles per hour faster than the posted limit, that’s what I’ll do rather than trying to obey the posted limit. She might have added that something similar is true of taxes. If we know that the state doesn’t do anything to collect sales tax on items bought on the internet, we don’t record those taxes on our returns, even though the tax booklet says we should. Again, it’s the enforcement that we’re thinking about and not the rules. Interesting!