While considerable work has been devoted to delineating the ways in which practices may give rise to legal norms, far less attention has been paid to the patterns of repeated behaviour that feed (and result from) such practices, for, as Shapiro puts it, ‘habits are not the … sort of things that can impose obligations’. This article first exposes the dualist presuppositions that underlie such a statement, then highlights both the conceptual and normative benefits that flow from developing a non-reductive naturalist understanding of the two-way relationship between law and habits. The article argues that such a naturalist account (for which Hart had clear intellectual affinities) is necessary to make sense of one of Hart’s key insights: because of the specificity of its institutional structure, an established legal system is conducive to a society that is ‘deplorably [and perilously] sheeplike’.
- ethical agency
- moral risk