America’s Monuments Moment
Statues Topple as the Country Hurdles Toward a Precarious Precipice
In 1952, a law professor stood at a lectern at Oxford University, shuffled his papers, and delivered an esoteric lecture about legal theory. Besides a few students grinding through Michaelmas term, nobody really took notice.
However, by the time he published his book, The Concept of Law, a decade later, things had changed. One commentator noted that The Concept of Law was “the most successful work of analytical jurisprudence ever to appear in the common law world.” Another remarked that it had “awakened English jurisprudence from its comfortable slumbers.”
By all accounts, this Oxford professor, the son of a German tailor from East London, had fundamentally transformed legal philosophy. H.L.A. Hart is recognized today as one of the most important legal philosophers of the 20th century.
But what does Hart and his legal philosophy have to do with toppling monuments — and in the United States, no less? Quite a lot it seems.
More than a half a century after The Concept of Law, Americans took to the streets (amidst a global pandemic, no less) to engage in a national debate teetering, quite remarkably, on the very crux of what Hart had said in that Oxford lecture hall in 1952.
Truly ground-breaking theories are like that: they surface, time and again, in the contemporaneous just as they do in the historical. And what Hart contributed to legal philosophy was indeed ground-breaking.
Let’s Take a Step Back to Unpack.
Hart’s thinking changed our understanding of legal positivism in a foundational sense. Legal positivism, the prevailing legal theory underpinning most common law systems, is the theoretical bulwark buttressing ours here in the United States. It holds that laws are man-made rules and, notably, that there is no inherent or necessary connection between law and morality. No doubt, this will come as shocking — if not sacrilegious — news to some Americans today.
While empowering the institutional constructs of a liberal modern republic, legal positivism had always lacked that normative, foundational force that morality had furnished to classical legal systems from the Holy Roman Empire to divine-right kingdoms. The critique of legal positivism remained hard to shake: if not from morality, then whence does law come?
This is where Hart broke new ground. He endowed legal positivism with its most enduring deconstruction: that the concept of law is shaped by the living union of two compelling discourses: one discourse about the rules that govern behavior and a second discourse about the rules that make the rules that govern behavior.
Hart’s first discourse of law — the primary discourse — concerns those rules which govern our common social conduct. The prohibition against murder, for instance. These primary rules govern our behavior and impose punishment when not heeded: an imprisonment sentence for murder; damages for breaching a contract; a fine for speeding. This part is simple: it is the “law” as commonly understood.
But there is something more fundamental, explained Hart: a secondary discourse of law involving a dialogue more normative and constitutive in nature. Here dance the rules that confer the power to create the primary rules, to develop and change the primary rules and even to adjudicate and enforce the primary rules. For example, the sovereign power to establish legislature, to empower a regime for the enforcement of the primary rules, or to determine the relative weights of the penalties imposed.
This secondary discourse entails a teleology: it is where the judgments as to how the primary laws will steer civil society are made and fueled. In the framework of legal positivism, the second discourse is about the very soul of the laws themselves. Importantly, it is here that we find law’s normative power — the “should” and the “why” of the law, if you will.
It also turns out that, while everybody in society engages in the primary discourse, not everybody is invited to the secondary discourse dance. Terribly oversimplified, the few create the rules while all must suffer them.
Distilled in this way, it rings somewhat axiomatic. Truth does that. To Hart’s credit, however, actually articulating the concept of law in such positivist terms was no small accomplishment. The rubric brought immediate clarity to a number of common law conundrums — and it can do so today.
Now, Back to the Statues.
Thinking of law within Hart’s rubric is valuable to appreciating the possible impact of the American monuments moment. It allows us to consider analytically the cacophony of discordant voices permeating the political discourse. It reveals, rather alarmingly, the precarious edge at which we now stand.
When translating the dominant voices into Hart’s legal analytical terms, we can hear a debate that is fundamentally disjointed. With near religious zeal, Americans are actually speaking right past one another.
“It is against the law to deface a monument,” screams one, in a call to the primary rules. “The statue should not be here,” yells the other, beckoning the normative force of the secondary discourse.
For Hart, these are two very different conversations: a call to order, on the one hand — and a call to reorder, on the other. This dichotomy signals something absolutely crucial: we are approaching a normative watershed.
In fact, our country may be hurdling toward the most significant normative crossroads it has faced since the civil rights movement and, I believe strongly, the Constitutional Convention itself. Writ large, the monuments moment is a frontal challenge to the very foundation upon which sits the entire system of rules in this country. It is about Hart’s secondary discourse of law, the one about how things should be.
Perhaps, this is why the monuments issue cuts so painfully close to the bone for so many — and on so many different sides — at the same time.
The Right Response Is a Rethink
As government considers its response to the American monuments moment, it traditionally would have the choice to bend or to hold rigid. The latter indeed may be tempting for the “law and order” crowd.
However, an insistence upon the primary rules, a call to order, is meaningless when, in fact, it is the secondary discourse of law being drawn into question. A “law and order” solution may douse a flame, but it will not put out the fire.
Whether we choose to acknowledge it or not, American society has moved far beyond mere flare-ups — and in more ways than one. In this enduring environment, a binary “suppress or succumb” approach will have little lasting impact.
It may soon be time for government to drop the gloves altogether and rethink — by national convention if necessary — America’s constitutive secondary discourse. Without genuine consensus on that foundation, the rules governing the social order simply may not hold much longer.
In formally rethinking that foundation, we may indeed lose some statues of the great and/or treacherous men who founded this country. We may need to change the names of skate parks and traffic circles. We may even need to swallow the nostalgia we feel in the names of campus buildings and boulevards. Surely, there will be some price to pay in things.
However, by doing so, we just may have the chance to transform our American society— before it tears apart violently at the seams — into a new society built on the normative discourse, not of those men who lived here two centuries ago, but of those men and women who actually live here today.
If timely acknowledged and embraced, this transformation may very well be our country’s most dynamic, indeed enviable, achievement yet — a new pinnacle of American agility, resilience and even exceptionalism. Unfortunately for us, however, the opportunity is fading fast and, as we move deeper into the splintering fray, the unpalatable alternatives grow only increasingly existential.
