Law and Habits

Abstract

By focusing on the qualitative difference between the habits that are capable of generating a legal system and the habits that this system’s “division of normative labour” can facilitate, this paper throws new light on the concern at the root of Hart’s claim that law is inherently morally risky. Hart’s great insight in this respect has been muddled by his attempt to encapsulate the reflexive element inherent in the internal point of view in a (weak) notion of “acceptance”. This paper argues that the key risk inherent in the “division of normative labour” enabled by law’s institutional structure consists in the fostering of habits that have lost their adaptability and thus their ability to support legal practice.

Keywords: habit, law, normativity, moral risk, habituation, Hart, alienation