Laurence Claus's Law's Evolution and Human Understanding
In my remarks here, I will try to defend Claus’s iconoclastic tone by identifying the important difference between prediction theories of law and Hart’s. I start with a number of distinctions. By a prediction theory of law I mean a theory under which a statement about the law, such as “The Securities Exchange Act is valid law,” is a prediction of the behavior and attitudes of people in a community. In addition to offering this theory, Claus tacks on what I will call a prediction theory of lawmaking, under which the words uttered or written by lawmakers are themselves essentially predictions of people’s behavior and attitudes. The Securities Exchange Act, Claus argues, was a prediction on the part of Congress concerning what Americans would think and do. Besides being highly implausible, I argue that Claus’s prediction theory of lawmaking does not follow from the other positions that he takes in his book. Having set aside Claus’s prediction theory of lawmaking, I then distinguish Claus’s and the realists’ prediction theories of law from other jurisprudential positions that were targeted by Hart in Chapter 7 of The Concept of Law. That Hart rejected these other positions does not mean that he rejected prediction theories of law. I then briefly explore whether prediction theories of law are unlike Hart’s because they do not treat a rule of recognition as essential to law. Although this reading might account for some of Hart’s criticisms of the realists’ prediction theory, it cannot explain how Claus’s theory is different from Hart’s, for Claus’s theory also appears to rely upon the idea of a rule of recognition. I then discuss what I believe is the fundamental reason Hart rejected prediction theories. For Hart, it is essential to law that officials take the internal point of view, which means that they use internal legal statements. Under prediction theories, not only is the internal point of view not necessary for law, internal legal statements are morally suspect. I conclude by arguing that Claus was right to adopt an iconoclastic tone. By rejecting the internal point of view, his theory of law, like the realists’, presents an important challenge to traditional positivism.
Michael S. Green,
Prediction Theories of Law and the Internal Point of View,
San Diego L. Rev.
Available at: https://digital.sandiego.edu/sdlr/vol51/iss4/5