And from the review noted in the preceding post, Simpson on Hart's
The Concept of Law -
Herbert's major contribution to the philosophy of law was certainly the concise and highly readable The Concept of Law, although it is one of those books that becomes more difficult the more often it is read. ... As is the way with notable books, it has spawned a very considerable secondary literature, and the academic career of Ronald Dworkin was launched by his self-presentation as Herbert's major critic.
Simpson goes on -
At the time when this book was written, the principal function of legal philosophy was to provide an answer to a very general and extremely puzzling question, "What is law?" This was not a practical question; those who asked it and spilled much ink in attempting to answer it were commonly well versed in the practicalities of operating a legal system — giving legal opinions, arguing legal cases in court, delivering court judgements, or whatever. It was a question of a conceptual nature, about meaning. Herbert argued that it was more useful to identify a number of distinguishable puzzles, or intellectual anxieties, that underlay the general question, and he thought there were three of them.
One was the relationship between law and force or coercion: is a legal system best understood as a system of instructions backed by coercive force? The second was the problematic distinction between law and ethics or morality — how, for example, does a legal obligation such as paying taxes differ from a moral or ethical obligation to pay taxes, if indeed there is such a thing? What is the connection between law and ethics, and is some kind of relationship necessary to the very existence of law? The third is less easy to state simply; to what extent is law a matter of rules? This in its turn generated a number of subsidiary issues. What is a rule? What do we mean when we say a rule, or a legal rule, exists? What does it mean to say that courts apply legal rules, and is it in any sense true that they do so? Since Herbert's time, the emphasis in western legal philosophy has been on the analysis of the process of adjudication, which closely relates to Herbert's third issue. Thus Dworkin’s legal theory is concerned with little else, and not even with adjudication in some general sense, but only with adjudication by the Supreme Court of the United States. But Herbert's The Concept of Law does not explicitly have a great deal to say on adjudication as such. It does, however, have a great deal to say on a further question that did not feature in the trilogy I have set out — what is meant when we say that a legal system exists? In what sense do laws form a system, and what is meant by existence when predicated on such a system? Can laws exist without forming part of a system?
Although Herbert set out to write a book on the concept of law, he ended up writing a book on the concept of a legal system.
In characterising reception Simpson comments that
The secondary literature is now immense, and the publication in 1998 of a fragmentary reply to his critics on which Herbert worked for many years has spawned a further secondary literature in the collection of essays published in 2001 as Hart's Postscript: Essays on the Postscript to The Concept of Law. In a sense it has been downhill all the way—downhill, that is, from the lucidity and elegance of Herbert’s writing to the unattractive elaborations of some of his critics and defenders, downhill from Herbert’s direct analysis of law and legal institutions to writings about what other people have said about what other people have written about law and legal institutions. In British military circles there was, in my time, a bawdy monologue, much recited in pubs, which took the form of a bestiary. One of the creatures featured in it was the Fu-Fu Fly, which was said to fly in ever diminishing circles until it finally vanished up its own bottom, from which secure if unsanitary location it looked out at the world with scorn and derision. That, leaving on one side scorn and derision, is more or less the present picture in relation to much of the secondary literature on The Concept of Law. ...
If you think philosophizing matters — and I have always wondered how the question of whether it matters could be answered, or indeed whether the answer matters one way or the other — then the principal merits of Herbert’s distinguished book do not lie in the solutions offered by him, but rather in the identification and analysis of the problems presented by his attempt to elucidate, as he put it, the concept of law.
