The Problem with Hart’s Habits. Elements of a Humean Conception of Social Obligation

Abstract

In a few powerful pages in chapter 4 of The Concept of Law, Herbert Hart demolishes a “Habits and threats” conception of legal obligation, by posing three main challenges: the “efficacy challenge”, the “compulsion challenge” and the “normativity challenge”. This “Habits and threats” theory, says Hart, is an Austinian conception of legal obligation but Hart’s arguments easily generalize to long-standing criticisms of a Humean conception of human agency and social motivation as well. The aim of this essay is to search for clues in Hume on ways to meet Hart’s challenges and provide a conception of “habits” which doesn’t fall prey to Hart’s devastating critique. Through a somewhat manipulative interpretation of Hume’s text, the essay proposes two tweaks to Hume’s general framework and finds that they perform well on the efficacy problem, and on the compulsion problem. They perform only decently on the normativity problem, but I shall find good news in that too.