ISSN 1062-7421
Vol. 11 No. 12 (December 2001) pp. 596-597.

LAW AS A SOCIAL INSTITUTION by Hamish Ross. Oxford: Hart Publishing Co., 2001. 176 pp. Cloth $44.00. ISBN: 1-84113-230-6; Paper $20.00. ISBN: 1-84113-231-4.

Reviewed by John H. Bogart, Bendinger Crockett Peterson & Casey, Salt Lake City, UT. Email: jhb@bcpclaw.com.

LAW AS A SOCIAL INSTITUTION, the second volume in the Legal Theory Today series edited by John Gardner, is an intriguing and curious work. Ross is interested in the relationship between analytical philosophy of law and sociology, more particularly between the work of Weber and H. L. A. Hart. LAW AS A SOCIAL INSTITUTION focuses on "a few common strands of thought running through both Weber and Hart" (p. ix.) Ross's aim is to "tentatively point to ways in which - if Hart (say) had been more Weberian-the explanatory power of The Concept of Law might have been enhanced" (p. ix). This is done with, I think, a good deal of sympathy for both analytic philosophy and sociological theory.

The work is organized into eight chapters, each of modest length. Chapter 1 provides an overview of the general project and the context of exploration. Chapter 2 provides an introduction to the relevant portions of Weber's thought. Chapter 3 is an exposition of the central tenets of Hart's THE CONCEPT OF LAW, with some emphasis on the groundwork necessary to make understandable the critical analysis to follow. (So it focuses more on the sociological claims of THE CONCEPT OF LAW than philosophers typically notice.) Chapter 4 begins the real work of the book. There Ross gives an outline of the issues to be addressed in detail in the subsequent three chapters. The analysis is organized around three "Gordian Knots." The first Knot concerns the "problem of perspective." The problem, discussed in chapter 5, takes up the problems which arise from the perspective from which Hart's analysis of law is undertaken, or, alternatively, the perspective to which it is addressed. The second Knot focuses on the issue of whether Hart's theory is improperly or overly reductionist, i.e., treats law merely
as a system of rules and ignores thereby important normative content outside rules. The third Knot is concerned with whether Hart was insufficiently attentive to the relational nature of law and legal practice. In the final chapter, Ross offers some suggestions about a more productive relationship between analytical philosophy of law, especially positivism, and sociology.

Clearly the heart of the work lies in chapters 5, 6, and 7. It is here that THAT LAW AS A SOCIAL INSTITUTION is both most interesting and most odd, at least in terms of what I understood the project to be. In considering the first Gordian Knot (perspective), there is an extended and interesting discussion of the import of perspective on theory development. Although I thought the discussion ran a little too close to reporting views and arguments rather than making them, it worth attending to. My complaint about this chapter is that it spends too much time rehearsing views that do nothing to advance discussion. For example, there are pages on the charge that

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Hartian legal positivism is somehow socially or normatively conservative, a claim that fails even on its face. However, the interesting discussion of the need for separate theoretical consideration of different roles within a legal system in developing a general theory is worthwhile. Ross does not move the puzzle of whether a general theory is really possible once one accedes to significant sociological content to the theory.

Chapter 6 takes up the adequacy of rule based analysis of law and legal theory. The distinction that seems to be at the heart of the discussion is that a rule based approach omits or elides significant normative aspects of law as an institution and set of practices. I am entirely sure this Ross is right her, that there really is a problem here. The discussion here suffers from the space limitation-what was needed was a more thorough approach to the nature of rules and analysis as language. What Ross provides instead is a more sociologically oriented discussion that seemed to me not to quite engage the topic properly. It may be that I have simply misunderstood the project here, but it is difficult to see what normative content rules necessarily lack that would be added by consideration of external normative sources. More importantly, I think it is just wrong to suppose that the extra-rule sources are not accounted for in Hart's work.

I found Chapter 7 the most provocative of the chapters. The basic idea here is that there is insufficient attention in legal positivism to the relational aspects of law, and, necessarily, to legal practices. One version of this is a request that legal theory attend to the facts of legal practices. Theory needs to be much more informed by how people actually behave within a legal system, and much more informed about the relations of actors within a legal system. I think Hart is open to significant revision on this topic, and, indeed, most legal theorists would benefit from taking such charges more to heart. (An alternative version of the topic is as a call to consider rules of law in connection with the participants' actions.) There is a weakness in the discussion. Ross chooses this chapter for an extended discussion of Hohfeldian relations. Certainly there is more than surface plausibility to the discussion and its placement. I do not think that it is not out of place. Rather, the problem is that the discussion is too long and, I think, on close analysis, unnecessary. It would have been more profitably considered in connection with rules, I think.

Ross has written an interesting book. I think this is good contribution to legal theory. It has defects, but still well worth reading.

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Copyright 2001 by the author, John H. Bogart.