We summed up H.L.A. Hart’s standard criteria of legal validity in our previous post as follows: (a) external convergence, and (b) internal acceptance. That is, a norm is a legal norm when two essential conditions are met: most public officials must actually comply with the norm or follow it in practice, and such officials must subjectively perceive the norm as obligatory, or what Hart himself used to refer to as “the internal point of view.” Since this realist or positivist definition of law requires regularity of behavior and a certain mental attitude or psychological state of affairs, I also asked at the end of my previous post, How could we ever begin to test the truth value of such a subjective concept of law?
According to Professor Brian Leiter, whose superb seminars on legal realism we attended last month, a key piece of evidence in support of Hart’s influential view of law is the fact that there is “massive agreement” among most lawyers and judges about what the law is. Put another way, although disagreements about the law usually receive the lion’s share of our attention–think, by way of example, of all those highly controversial cases that go up to the U.S. Supreme Court and that are decided by a 5 to 4 margin–, such disagreements are, in fact, relatively rare and uncommon. During his legal realist seminars, for example, Professor Leiter would often compare the universe of all legal questions to a lopsided pyramid in order to visualize this important point about the ubiquity of legal agreement.
In brief, the bottom level or base of the pyramid includes all those possible legal consultations and legal disputes that enter a lawyer’s office. As Prof Leiter correctly notes in his excellent essay “Explaining Theoretical Disagreement,” published in The University of Chicago Law Review, Vol. 76 (2009), pp. 1215-1250: “most cases that are presented to lawyers never go any further than the lawyer’s office; … most cases that lawyers take do not result in formal litigation; … most cases that result in litigation settle by the end of discovery; … most cases that go to trial and verdict do not get appealed; and … most cases that get appealed do not get appealed to the highest court …” (p. 1227). So, why is legal agreement so pervasive and legal disagreement so rare? Precisely because of the regularity of the behavior of legal officials and (presumably) because of their internal acceptance of most legal norms, or in the words of Prof Leiter (p. 1228):
Legal professionals agree about what the law requires so often because, in a functioning legal system, what the law is is fixed by a discernible practice of officials who decide questions of legal validity by reference to criteria of legal validity on which they recognizably converge. Only as we approach the pinnacle of the pyramid do we approach those cases where the practice of officials breaks down, and the “law” is up for grabs.
For my part, I agree with Leiter that we should expect massive agreement about what the law is in a well-functioning legal system, and I also agree that such massive agreement is a direct result of the regularity of official behavior, but does the massive agreement thesis support the subjective part of Hart’s view of law? I am skeptical about that claim, and I will explain why in my next post.