The Legal Entrenchment of Illegality
David Lyons
Boston University School of Law Working Paper 07-21
Abstract
Many legal theorists agree with Hart that the most basic norms of a legal system reflect the established practices and related attitudes of public officials – their “internal” view of the law. Unlawful conduct by officials receives little attention from theorists, perhaps because it is assumed that such conduct is unsystematic and exceptional. Legal theory may confront a problem, therefore, when official practices in an established legal system are clearly unlawful, open, and deeply entrenched.
Such practices were, for example, central to Jim Crow -- the system of racial stratification that was part of the American way of life for much the better part of a century. Relevant practices ranged widely, from the systematic failure to provide public facilities for blacks that were substantially equal to those provided for whites to official tolerance for lynchings that were publicly employed as a method of racial subjugation.
This paper considers two interpretations of Hart’s view that an official’s attitude towards the most basic norms of her legal system amounts to an “acceptance” of them and argues that the legal entrenchment of illegality can be reconciled with Hart’s later, more careful presentation of his theory. An official’s acceptance of the basic norms of her system can be far removed from moral approval. What is minimally required is that an official regard the basic norms.
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Suggested Citation:
Presented to the July 2007 conference on “The Legacy of H.L.A. Hart: Legal, Political, and Moral Philosophy.” A revised version will be included in a volume of papers from the conference to be published by Oxford University Press, probably in 2008.
David Lyons Contact Information
Boston University School of Law
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Email address: dbl@bu.edu
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