After a hiatus of a few months, we’re back to discussing H.L.A Hart’s The Concept of Law in our MTSP Discussion Group, so I thought I’d throw out some ideas I’d had on the past few discussions on chapters 8 and 9 of the book, “Justice and Morality,” and “Law and Morals,” respectively. This post is on chapter 8. I’m hoping to revisit chapter 9 at some point.

HLA Hart devotes chapter 8.2 of The Concept of Law to an attempt to differentiate moral from legal rules, identifying four features essential to moral but not to legal rules: 

We shall later identify under the heads of ‘Importance’, ‘Immunity from deliberate change’, “Voluntary character of moral offenses’, and ‘The form of moral pressure’ four cardinal features which are constantly found together in those principles, rules, and standards of conduct which are most commonly accounted ‘moral’. These four features reflect different aspects of a characteristic and important function which such standards perform in social life or in the life of individuals. This alone would justify us in marking off whatever has these four features for separate consideration, and above all, for contrast and comparison with law (The Concept of Law, p. 168). 

The second of these, “immunity from deliberate change,” is described as follows: 

It is characteristic of a legal system that new legal rules can be introduced and old ones changed or repealed by deliberate enactment, even though some laws may be protected from change by a written constitution limiting the competence of the supreme legislature. By contrast moral rules or principles cannot be brought into being or changed or eliminated in this way. (Concept of Law, p. 175)

Hart tells a dry joke to illustrate the point:

For in this respect, though not others, any social tradition is like morals: tradition too is incapable of enactment or repeal by human fiat. The story, perhaps apocryphal, that the headmaster of a new English public school announced that, as from the beginning of the next term, it would be a tradition of the school that senior boys should wear a certain dress, depends for its comic effect wholly on the logical incompatibility of the notion of a tradition with that of deliberate enactment and choice (Concept of Law, p. 176). 

The Concept of Law was first published in 1961. Hart died in 1992. The book saw its second edition in 1994, and its third in 2012. Fast-forward two decades past the first edition of The Concept of Law, and rewind a decade before the second, to the year 1983. That year saw the nearly simultaneous publication of two classics of twentieth-century historiography on nationalism–Benedict Anderson’s Imagined Communities: Reflections on the Origin and Spread of Nationalism, and Eric Hobsbawm and Terence Ranger’s The Invention of Tradition, a collection of essays devoted to the same idea.  Both Anderson and Hobsbawm-Ranger et al were in turn powerfully influenced by Ernest Renan’s classic essay, “What Is a Nation?” (1882), itself a popularization of ideas expressed in Hegel, Herder, Kant, and others.

Anderson et al argue that nationalism involves the deliberate invention of the cultural norms associated with a given nation and its conception of nationalism. To the extent that these norms take the form of explicit rules (and many do), they were, on Anderson’s account, precisely the result of deliberate enactment or repeal by fiat. So the joke that Hart tells about the invented school tradition turns out to be the account that Anderson et al offer as a historically accurate account of the intellectual history of nationalism. Nationalism, on this view, made essential use of a conception of both tradition and morality that was described by nationalists as “traditional” and yet self-consciously the subject of deliberate enactment, often by the State. Contrary to Hart, there is no “logical incompatibility of the notion of a tradition with that of deliberate enactment and choice,” and nothing comical about suggesting their compatibility. That’s what nationalism is, and nationalism is no laughing matter.

By the early 1990s, Anderson-type accounts of nationalism had not only become well-accepted, but had generated the scholarly equivalent of a cottage industry. Virtually every respectable historiographical account of nationalism took for granted that nationalism in some way involved or relied on the “invention of tradition” or morality in just the sense that Hart thought it obvious to deny. Eugen Weber writes of the self-conscious, state-driven transformation of Peasants into Frenchmen (1976) in his book of that name. Rashid Khalidi writes of Palestinian identity in terms of the construction of national identity (2009). Anne McClintock’s description of Afrikaner nationalism is typical:

Afrikaner nationalism was a doctrine of crisis. After their defeat by the British, the bloodied remnants of the scattered Boer communities had to forge a new counterculture if they were to survive in the emergent capitalist state. From the outset, this counterculture had a clear class component. When the Boer generals and the British capitalists swore blood-brotherhood in the Union of 1910, the ragtag legion of ‘poor whites’ with few of no prospects, the modest clerks and shopkeepers, the small farmers and poor teachers, the intellectuals and petite bourgeoisie, all precarious in the new state, began to identify themselves as the vanguard of a new Afrikanerdom, the chosen emissaries of the national volk.

However, Afrikaners had no monolithic identity to begin with, no common historic purpose and no single unifying language. They were disunited, scattered people speaking a medley of High Dutch and local dialectics, with smatterings of the slave, Nguni, and Khoisan languages–scorned as the kombuistaal (kitchen-language) of house-servants, slaves and women. Afrikaners therefore had, quite literally, to invent themselves. The new, invented community of the volk required the conscious creation of a single print-language, a popular press and a literate populace. At the same time, the invention of tradition required a class of culture brokers and image-makers to do the inventing. (Anne McClintock, “‘No Longer in a Future Heaven’: Nationalism, Gender and Race,” Transition 51 [1991], pp. 271-72).

The logic here is something like this: the construction of tradition is a construction of national identity. The construction of national identity is the construction of a practical identity for members of the relevant nation. The construction of practical identity is a source of moral norms. If tradition is the ultimate source of these norms, and it is invented or constructed, it seems natural to infer that the norms themselves are. And so, contrary to Hart, we have a morality not “immune” to deliberate change, but constructed out of it.

Hart seems not to have noticed or paid much attention to what historians were saying about nationalism. Meanwhile, historians of nationalism seem likewise to have ignored what Hart was saying about justice and morality. In one way, this was to be expected: Anderson’s book postdates Hart’s by more than two decades, and Hart’s book bears no obvious relation to the study of nationalism. Still, the phenomenon of nationalism antedates 1961 by a long shot. And coming the other way around, you might think that what one English philosopher regards as a platitude about morality ought equally to be regarded as a platitude by other Anglophone academics in the humanities.

What’s striking, then, is how flatly Hart’s claims seem to contradict Anderson et al’s. Hart takes it as self-evident that both morality and tradition are immune to deliberate enactment. Anderson et al take it as self-evident that, as far as nationalism is concerned, tradition and by implication morality are precisely a matter of deliberate enactment. The antinomies of pure disciplinary insularity strike again. 

I don’t know whether Hart ever read Anderson or any of the rest of the post-Andersonian literature on nationalism. But suppose that he had. He could, I imagine, have had one of the following three reactions. He might have inferred that…

1. Nationalist tradition was indeed invented, just as Anderson et al had suggested, but precisely for that reason, none of the norms involved in the construction of nationalist identity were moral norms, whether expressed in the form of rules or not, and none were genuine traditions, even if regarded as traditions by those involved.
2. Nationalist traditions were in fact genuine traditions, and those traditions, when expressed in rules, were, on some occasions, at least, moral rules. But precisely for that reason, contrary to the claims of historians like Anderson et al, none of them was literally “invented.” “Invention” and “construction” are in this case solecisms. (More modestly put: none of those nationalist traditions/rules that were genuine traditions or genuine moral rules were invented or constructed, so that invention/construction was a solecism in every case where genuine traditions or moral norms were involved, even if aptly applied to other things.) 
3. There is a degenerate sense in which a genuine, full-fledged tradition or moral norm can be invented or constructed. Though logically possible, invented/constructed traditions or norms are not the standard or paradigm case of either thing. What makes such traditions or norms degenerate is the semi-comical self-deception (or not-very-comical disingenuousness) involved in treating them as traditions or norms. Though it makes no real sense for either moral norms or historical traditions to be conceived of as objects of deliberate enactment or fiat, this has nonetheless sometimes happened. People have either fooled themselves or fooled others into thinking that an invented tradition was a tradition, or an invented moral norm a genuine moral norm, and for whatever contingent historical reason, this incoherent idea has taken on a life of its own in a whole population to generate quasi-traditions and quasi-norms. The history of nationalism, alas, is one of these cases.

Continuing with (3): It’s an open question whether we regard these degenerate quasi-norms as authentic cases of tradition/morality, or not. (a) The more we insist on logical or conceptual grounds that morality/tradition are immune to deliberate change, the more it seems that “invented tradition” and “invented morality” are cases of pseudo-tradition and pseudo-morality, i.e., not tradition or morality at all. (b) By contrast, the more we relax Hart’s logical stricture, the more plausible it becomes to adopt a broader and more lenient view of tradition/morality that admits the possibility that both can be invented.  Nationalism, after all, is no fringe phenomenon. Given its prominence in modern history, any norm exemplified by nationalism is one that our concepts of tradition and morality have to accommodate, or be revised to accommodate.  

Hart could, without inconsistency, have adopted either (1) or (2). Option (3) presents more of a problem. Taking his claims literally, it seems open to him to adopt a version of (3a), but not (3b). If tradition and morality are logically incompatible with invention or construction, then either nationalist identity is irrelevant to both tradition and morality, or historians have gotten things wrong about the invention of nationalist tradition and morality. Either way, morality remains immune to deliberate change, regardless of what happens to be true of nationalism. 

This last position contrasts interestingly with the view Hart takes in chapter 9, where he denies the traditional natural law thesis that an unjust law is not a law. An unjust law, he insists, is still a law, no matter how unjust it is. But an invented moral norm or tradition is neither a bona fide moral norm nor an authentic tradition: the logic of our concepts rules out that conflation. Hart seems to have been aware of the fight he’d picked with adherents of natural law, but less aware of the fight he’d picked with historians of nationalism. His readers might profit from being aware of both at once.