(Post #3 in my ongoing series on H.L.A Hart’s The Concept of Law, keyed to the ongoing MTSP Discussion on that book.)
According to H.L.A. Hart, law is a union of primary and secondary rules. A rule is a codified directive to someone. Primary rules are primary because they give directives directly to, or impose obligations directly on, those governed by the rule. Secondary rules are rules about the primary ones, specifying “the ways in which the primary rules may be conclusively ascertained, introduced, eliminated, varied, and the fact of their violation conclusively determined” (Hart, Concept of Law, p. 94). Among the secondary rules is a “rule of recognition,” which specifies “some feature or features possession of which by a suggested rule is taken as a conclusive affirmative indication that it is a rule of the group to be supported by the social pressure it exerts” (Hart, Concept of Law, p. 94).
The rules of recognition are both ultimate and supreme with respect to a legal system.* They’re ultimate in the sense that they (collectively) provide the most fundamental criterion for determining the validity of any given rule within the system. They’re supreme in the sense that they override any competing norms apparently eligible for validity within the system. On Hart’s view, it’s a necessary and sufficient condition of law that within any putative legal system, the primary and secondary rules so conceived are generally obeyed by those governed by them, and the rules of recognition are “effectively accepted as common public standards of official behaviour” by the officials in charge of the system (Hart, Concept of Law, p. 116).
Bear with me a minute as I run a crazy thought by you.
Suppose that I personally adopt the primary rule of regarding myself as bound to exercise my right to self-defense in any case where my bodily integrity is being violated, or is imminently about to be violated. I then adopt secondary rules that specify “the ways in which the primary rules may be conclusively ascertained, introduced, eliminated, varied, and the fact of their violation conclusively determined.” Suppose I adopt a rule of recognition as well, specifying a feature or features possession of which I take to be a conclusive affirmative indication that the primary rule of exercising my self-defense has authority over me.
Suppose further that with respect to my bodily integrity (at least), I conceive of my right to self-defense as both ultimate and supreme: my right of self-defense (and my obligation to exercise it) governs every use of force that I employ when it comes to my bodily integrity, and I recognize no further authority above my own to judge when or how I’m to exercise that right. Suppose that I am in fact governed by my self-selected rules in practice, and (perhaps trivially) accept them as a standard of behavior for myself where they apply. Suppose, finally, that I write all of these rules down in codified form so that I’ll have a systematized record of them, am less likely to forget them, and can advertise them to others.
If you like, you can make the further supposition that the norms expressed by my rules track the objective moral truth about self-defense. This last stipulation will, I suspect, matter to some readers more than others, but I’m more than happy to make it, and making it actually helps a bit, as you’ll see once you scroll past the ridiculous video I’ve inserted just below.
Are the rules that I adopt for myself laws? Am I, at least with respect to self-defense, a living, bipedal legal system? Is this a case where I literally am the law–a “law unto myself”?
You might say “no,” because the primary and secondary rules are supposed to govern different sets of people; primary rules govern citizens or denizens, whereas secondary rules govern officials.
But that doesn’t work. Officials are, after all, themselves citizens or denizens subject to at least some of the primary rules. And in a democracy, citizens are in some sense officials, so that at least some of the secondary rules can be applied by them. We can, at least in principle, imagine a participatory democracy in which everyone is subject to the same primary rules, and everyone, by rotation, functions as a government official so as to apply (or observe) the same secondary rules. So the self-defense example can’t be disposed of by insisting that the distinction between primary and secondary rules requires two separate sets of people corresponding to the two sets of rules.
Perhaps the more obvious way of disposing of it is to say that law is inherently a social phenomenon, and therefore has to govern more than one person (probably many more than one) by publicly codified norms for purposes of social governance. It’s just a solecism to say that a “law” applies to a single person as I’ve described this “law” above. And though Hart does not explicitly come out and rule out a person’s being a “law unto himself,” his account of the necessary and sufficient conditions of law makes reference to “the public,” which at least implicitly seems to rule out self-legislation.
Just to be clear: the right of self-defense described above is public in the (perhaps trivial) sense that it doesn’t apply exclusively to individuals as isolated monads.** As I’ve described it above, a right of self-defense is inherently the sort of thing one exercises against others. Being written, it can be advertised to others, and being advertised to others (and ex hypothesi, reasonable to boot), it can in principle be observed and accepted by those others. So a self-legislated right of self-defense is public in the preceding, admittedly limited sense.
But it’s not inherently public in the sense that Hart intends: my adopting rules X, Y, and Z of self-defense does not guarantee that anyone else will adhere to or accept those rules. So the right of self-defense only satisfies Hart’s criterion of legality in the specific case where I adopt primary and secondary rules that everyone else also happens (for whatever contingent reason) to accept and respect. It doesn’t satisfy his criterion in the case (or cases) where they don’t.
But this raises a further question. Hart allows for the possibility of degenerate cases of legality that approximate his paradigm cases while technically falling short of them (e.g., international law, “primitive” law, etc.) What about laws unto oneself–including the case in which the law that I “pass” is a law for me, and only for me? Maybe that doesn’t qualify as law in the paradigmatic sense, but still qualifies in some admittedly deviant or atypical but still non-metaphorical sense. Maybe self-legislation is the platypus of legality–a mammal, to be sure, just a seriously messed-up one. (Of course, it could just be the fool’s gold of legality–not gold at all, but easily mistaken for it, at least in the eyes of a certain kind of idiot.)
The plausibility of a “yes” answer to the preceding questions seems to me to vary somewhat with the plausibility of the conception of self-defense in question: the more plausible the conception of self-defense at issue, the more plausible it seems to regard the self-legislating agent as a legal jurisdiction of her own; the less plausible the conception, the less plausible the supposition.
You might still insist that it makes no sense to describe personal rules of self-defense as “laws,” no matter how plausible the norms in play, even if they’re self-consciously conceived of on Hart’s model as a union of primary and secondary rules with an explicit rule of recognition. Talk of “self-legislation” is either metaphor or Kantian-Rousseauan mumbo-jumbo. Nonsense, in short. As Miss Anscombe famously put it, legislation is just bullshit if the outcome is always 1-0 (I’m paraphrasing).
Maybe. But if talk of self-legislation is mumbo-jumbo, it’s not just newfangled mumbo-jumbo. It’s also old-fashioned mumbo-jumbo: you find it in Aristotle and in the New Testament–Nicomachean Ethics IV.8 and Romans 2:14-16. Granted, neither author is all that enthusiastic about the idea. But they don’t reject it, either.
Sticking with the newfangled, “law unto oneself”-talk is also Lockean mumbo-jumbo, since Locke insists that the right of self-defense really is a law: the State of Nature has a law of nature to govern it (Second Treatise, II.6), and the law of nature (which includes the right of self-defense), really is a law, at least for Locke. Locke goes out of his way to insist that we have “jurisdiction” over ourselves, which I admit is an odd thing to say, but is right there in the text (Locke, Second Treatise, II.4).
Of course, Locke’s law of nature isn’t literally self-legislated, but you can’t have everything. It’s still a sort of self-contained law involving a jurisdiction or regime of one. And Locke aside, the idea of self-legislation isn’t unprecedented. If Locke had lived a few decades past 1704 (when he died)–and if his French or German had been good enough–he’d have heard some of his contemporaries invoking self-legislation, and he’d have watched some of their contemporaries nodding in approval. They had no problem with it. So why should you?
You might think that the idea of self-legislation is (like its cousin, self-ownership) weird because it bifurcates the agent in problematic ways: the idea that we are literally legislator and legislatee is at least as weird as the idea that we are simultaneously owner and owned. But I guess my response to this is that weirdness is not an objection when it comes to human affairs. People are weird. As the Roman poet Terence famously put it (again, quoting from memory), “I am human; nothing weird is all that weird to me.” And as a Freudian (influenced by Plato, Aristotle, and Rush), I have no problem with agential bifurcation.
Well, enough of these musings. Or rather–you tell me: Is it objectionable to describe a self-codified right of self-defense as law? I’m the first person to admit that it does have some odd implications. For one thing, it entails, oddly, that when I fail to defend myself, I literally break the law, committing a legal infraction against myself. But maybe I do. It also entails that when people attack me (even in the absence of government or the rule of law in any conventional sense), they break the law (my law, the laws of my singular regime of one). But maybe they do.
It does have the nice implication that I can talk about “the starry heavens above and the moral law within” almost anywhere, without having to worry about issues of conventional legality. All I need is a potential attacker, and I’m set. It could just be me and Elon Musk on Mars. If he came at me, he’d be breaking the law. That seems right.
Anyway, I’m done making a mess of this issue. I had actually intended to post a completely different thought on Hart, but this is what came out. Unfortunate, I realize. There ought to be a law.
*Though a legal system can have a single rule of recognition, for ease of exposition, I follow Hart in referring to “rules of recognition” in the plural.
**I’m being a little disingenuous here. The right of self-defense typically doesn’t apply to a single person, and doesn’t apply to oneself in the description I’ve given of it in the post. But I secretly happen to think that a right of self-defense can, in certain atypical cases, apply to oneself: you can (in those odd cases) have a right to defend yourself against yourself (or have others defend you against you). Alas, discussion of such cases (chronic pain, insanity, suicide) would take us too far afield, and also ruin the quirky, jocular tone of my post by introducing somber topics that clash incongruously with it. So let’s save it for another, more depressing post.