I’m currently reading through your dissertation regarding Hart’s concept of law. Regarding his concept of pre-legal and legal communities, I noted some potential parallels with a Lockean understanding of the Social Contract. Sorry for the length of the email. I sought to share a short idea, but several more began arriving, and I thought you would find some interests given the topic of your dissertation, the contents of your course, and my interest in Social Contracts.
Between Locke and Hart, there is a parallel between:
- Locke’s understanding of (A) State of Nature, [Deficiencies–>Social Contract–>] (B) Society, (C) Government
- Hart’s understanding of (B) Pre-legal Society [Primary Rules, Deficiencies–>], (C) Legal Society [Secondary Rules]
- Their explanatory power regarding the American governmental experience.
I. ROLE OF DEFICIENCIES
First parallel of interest. For Locke, the deficiencies of the State of Nature results in individuals forming a Social Contract. Although the Laws of Nature are static and fixed upon God’s absolute principles as discovered by reason and revelation (‘inalienable rights’), such deficiencies includes “inefficient” and “uncertain elements.” The element of inefficiency includes the use of individual judicial and executive powers (which are given up when Social Contracts form a Society which Contracts a Government, and when Hart’s legal system is established by secondary rules).
In the State of Nature, persons ineffeciently use their individual powers to judge and punish other persons who violate their natural rights. This leads to an inefficient and unbalanced system where vengeance disproportions judgments and punishments (‘a life for an eye’). In addition, there is an uncertainty to the State of Nature. Because not all individuals will adhere to the ‘Golden Rule,’ an individual’s maintenance and security of liberties is uncertain, thus causing them to Contract socially with others to protect them (a toned down Hobbesian understanding, whereas the State of Nature is not equivalent to the State of War, but that there is an uncertainty when other individuals will initiate a State of War by attacking others inalienable rights).
The deficiencies in the State of Nature that lead individuals to create a Social Contract and thus form Society are similar to the deficiencies Hart notes in the Pre-Legal Society under Primary Rules (uncertainty, static character, and adjudication). Even the static character has somewhat of a shared role for Locke’s treatment on the need to tackle rules for changing societal circumstances (such as his introduction of money), that then leads to contracting governments.
Michael Curtis notes that in Locke’s Social contract, the produced Society is not to be mistaken as equivalent to a produced Government. The produced Society precedes and contracts a Government.
“The social contract was made for safe and peaceful living, and secure enjoyment of property. It was a contract made among equals to create a society, and then between the society created and the ruler.”
The first parallel is then found in deficiencies in the State of Nature and Hart’s Pre-Legal Society to form Locke’s Society and Hart’s Legal Society.
II. LOCKE’S SOCIAL CONTRACT AND HART’S LEGAL SOCIETY
In addition, a parallel is seen in the Hart’s formation of Secondary Rules which create a Legal System, and Locke’s movement from a Society to a Government. The introduction of secondary rules is the “heart of a legal system,” and when introduced to fix the inefficiencies of the pre-legal community, it produces rules that confer powers and limits (rule of recognition, rules of change, adjudication, etc).
This seems to supplement an understanding of Locke’s movement from Society to Government (post Social Contract). “The first stage is the social contract that forms society; the second stage is the political ‘contract’ that creates a common authority. The social contract, Locke argues, requires the unanimous consent of every party to the contract. The political ‘contract’ to form a government requires only a majority decision, and the subsequent actions of government are legitimate, says Locke, so long as they are based on the will of the majority,” (Nelson Brian). Interesting is the role of legitimacy and validity, which may parallel Hart as well.
The product of the Social Contract is a society living with a government. “Not to be confused with society . . . [government] exists merely as an agent and trustee of society.”
Hart and Locke then seem to supplement eachother somewhat. Locke supplements Hart by providing the preliminary stage prior to even (B) a Pre-legal society existing. Locke fills a gap that explains how this Pre-Legal society ever comes to exist (Social Contract, perhaps with the terms of this contract generating the Primary Rules). The Pre-Legal society and its Primary Rules are the product of individuals moving from (A) the State of Nature to (B) a Socially Contracted Society.
Hart seems to supplement Locke by then providing further details on how this (B) Pre-Legal Society produces (C) a Government. He does this by explaining the role of Primary and Secondary Rules, which together produce a legal society, and a legal society seems essential to calling anything a ‘government’.
III. LOCKE, HART, AMERICAN GOVERNMENT AND CONSTITUTIONALISM
This is furthered by an understanding of the role of a ‘Constitution’ (written or unwritten). Using the American political contribution of a Written Document, Locke’s Social Contract and Hart’s Primary/Secondary Rules seem to find a fusion. Jefferson was clearly influenced by Locke. The Declaration declares a revolution that produces a new (B) Society. The Society then produces a Constitution which then produces a (C) Government. In addition, when revolution was declared, it somewhat roughly shadows Hart’s Pre-Legal society, for the Secondary Rules were not formally established. When the Fathers framed the Constitution, we find the Secondary Rules formally set in the Written Document (various Articles of Powers). The (C) Constitution seems to match Locke’s (C) Socially Contracted Government, and Hart’s (C) Secondary Rules & Legal Society, for the powers and limits and rules were created. My understanding of Hart’s Rules is rather weak, but there seems something to it.
The American experience of Revolution and Constitution seem an excellent case study in how Locke’s Social Contract and Hart’s definition of a Legal Society combine in a very real way. Perhaps the similarities are not as fixed as I make them seem, but I cannot blame myself for seeing some similarities.
Both (A) producing (B), and (B) producing (C) are the result of deficiencies which seem somewhat related in nature and concern. In addition, Locke’s (A) seems to fill an explanatory gap for Hart’s (B), and Hart’s transition/addition of Primary and Secondary rules seems to fill an explanatory gap for Locke’s transition from (B) to (C). Both share similarities in deficiency and progression. Both are also complimentary. Both also fairly explain the American experiment (with greater parallels on the role religion and moral scrutiny of the law play in the American government and political theory).
Using Locke and Hart’s theoretical tools, we can also understand the American governmental experiment as bringing their (A) –> (B) –> (C) parallels into reality in the form of a real government (which itself contributes to Political Theory in providing a written Constitution). American Government surely gives a real face to both of them.
IV. PARALLELS WITH BAPTIST ECCLESIOLOGY?
The two thinkers also seem to have similarities in addition with parallels of Baptist ecclesiology.
- (A) Baptist churches are individuals who Covenant with one another to form a lower-case c church [they progress from a state of capital C universal Church [State of Nature parallel?], with membership to a local church as a result of some Social Contract/Social Covenant],
- (B) Covenanted Baptist individuals form the gospel society known as an autonomous ‘Church’ [Paralleled with Locke’s post-Social Contract, Society]
- (C) Covenanted Baptist churches produce church Constitutions and Bylaws to define their function and form [Similar to Locke’s constituted Government and Hart’s Legal Society, which all defer powers and rules necessary to defining themselves and their institutions.
- Deficiencies also led Churches to develop/produce these Constitutions/Bylaws, such as meeting changing circumstances, and establishing rules of change, recognition, and adjudication [see Baptist churches and ‘Roberts Rules,’ ‘Church Business Meetings,’ ‘Church Meeting Quorums,’ ‘Church’s requirements of Majority Votes,’ ‘Articles of Faith,’ ‘Requirements of Members,’ etc.].
Also, moral scrutiny of the Law for Hart is dependent on a Morality separate from the Law, which to Locke is found in Revelation and the Natural Rights of the State of Nature (which are somewhat separated yet linked by the Social Contract from the Society/Government). The Government or Law is to be scrutinized and conformed to the principles God objectively establishes in Nature, and reveals in Revelation. Baptist ecclesiology is similar in that our lower-case c local churches are to be spiritually scrutinized to conform to the principles God establishes for the universal Church he reveals in Christ Jesus and the Scriptures.
The moral & ecclesiological scrutiny of both seem dependent on similar objective and ‘external’ sources as well, which furthers a union of their ideas.
If anything it all seems rather interesting, and I couldn’t help but share my prelimary thoughts on it all. If my introductory understanding of Hart’s Legal Society and rules is incorrect, or if my parallels are unjustified, I would very much appreciate correction.