Professor Allan Beever writes this book with lucidity, meticulousness and what is perhaps a rarer virtue in jurisprudential writings, a great sense of humour. The book is divided into three parts. Part I contains three chapters (the introductory chapter included) on the methodology of jurisprudence. This part opens with the bad news that “there is something seriously wrong with jurisprudence today” (p. xiv), explains why this is so (because we have been asking the wrong questions), identifies the culprit (legal positivists, and more specifically H.L.A. Hart), and finishes with what question we ought to ask (what Beever calls “the deep question for the philosophy of law”) to salvage jurisprudence from this unfortunate predicament (p. 27). The answer to this question is given in Part II, which both expounds John Searle's social philosophy and applies it to explaining the phenomenon of law as a social institution. Part III endeavours to reconstruct the discipline of jurisprudence by demonstrating how persistent debates between positivists and natural lawyers can be resolved (or dissolved) once we have learned of the right answer to the right question, with the concluding advice that “the whole war was a waste of time and the sooner we call it off the better” (p. 303).

Although I sympathise with some of Beever's methodological complaints in Part I and find many of his observations in Part II and Part III illuminating, the following review will be largely critical, for I think the book falls short of realising Beever's ambitious aim of transforming jurisprudence into a new discipline by appealing to Searle's social philosophy. I reach this conclusion on the basis of two reasons. First, Beever has not convincingly explained why the questions asked by Hart should be replaced – rather than complemented – by questions about the social ontology of law. Second, Beever has not successfully demonstrated that Searle's revelation of how speech acts carry deontology is fundamentally incompatible with Hartian legal positivism. Let me elaborate on each point in turn.

When reading Beever's introductory chapter, where he sends the message about mainstream jurisprudence being a broken tradition that needs an overhaul, it is hard not to recall that Hart thought exactly the same thing about mainstream jurisprudence in the 1940s and 1950s and also saw himself as trying to change the status quo. Indeed, one easily finds some resemblance between Hart's criticism and Beever's, such as that jurisprudence should be more philosophical and less self-isolated (see “Hart Interviewed: H.L.A. Hart in Conversation with David Sugarman” (2005) 32 Journal of Law and Society 276). It is therefore interesting to see that this time the blame is placed squarely on Hart and the legal positivism he maintained. Beever's reason for naming Hart as the culprit is a methodological one: Beever argues that Hart's strategy of replacing the ontological question “what is law?” with the three recurrent issues is unwarranted and by adopting this strategy Hart “presented himself as providing a theory of a kind that he never really tried to provide” (p. 7). Because Hart never asked the right questions, he never gave the right answers, and subsequent jurisprudential theories that engage with those questions and answers must be on the wrong track. What then, is the right track? Beever tells us that to understand the nature of law, “we have to understand human institutional reality and the law's place within it” (p. 10). More specifically, Beever phrases “the deep question for the philosophy of law” as “how law fits into the world described to us by physics, chemistry, biology and the like” (p. 27). According to Beever, it is Searle's social philosophy, not Hart's three recurrent issues, that enables us to answer this particular question and how it does so is explored in Part II of the book.

A few of Beever's criticisms of Hart strike me as problematic. For example, Hart certainly does not “[legislate] against providing any satisfactory answer” to the question “what is law?” in virtue of his objection to the definitional approach (p. 24), for Hart's answer is clearly encapsulated in his “two minimum conditions necessary and sufficient for the existence of a legal system” (The Concept of Law, 2nd ed. (New York 1994), 116). Beever's assertion (p. 149) that Hart's rejection of the command theory has the effect of unduly marginalising the notion of coercion is also puzzling, given Beever's apparent endorsement of the Fullerian observation that “positivism sees law as a top-down projection of power from legal officials to citizens” (p. 148). Setting these points aside, my main concern with Part I of the book is that Beever has not convincingly shown why his approach of tackling the question about the nature of law is the only correct approach – or at any rate a superior approach compared to Hart's – of conducting jurisprudence.

I wholeheartedly agree with Beever's suggestion that legal philosophers should engage more substantively with other areas of philosophy, and I see Beever's endeavour in Part II of the book as a laudable effort in this regard. However, it seems to me that Beever's Searlean project is not only compatible with, but also complementary to, Hart's project in The Concept of Law. To begin with, Beever's “deep question for the philosophy of law” (p. 27), like Hart's formulation of the three recurrent issues, is just one of the many approaches that one can employ in tackling the intractable question “what is law?” or “what is the nature of law?” The question itself does not dictate that there can be only one correct approach, and which approach one takes often depends on one's theoretical interest. Even if Beever is correct to assume that “[t]o understand law, we need to comprehend the genus or genera to which it belongs” (p. 10), there are apparently more than one genus that law belongs to. Law is a kind of social institution but also a kind of rules, so we need to comprehend what rules are, and that is precisely one of Hart's recurrent issues. Beever also says that the aim of his book is to analyse “the logical structure of law” (p. xvii), which is revealed in Beever's definition of law at the beginning of Chapter 8: “[l]aw is a collection of status functions … created by status function declarations [and] maintained by further status function declarations and by the use of status function indicators. These succeed only because they are met with collective recognition” (p. 121). Nothing in this definition contradicts the logical structure of law Hart was trying to reveal by defining the central instance of a legal system as the unification of primary and secondary rules. The two definitions are perfectly compatible with each other.

Now, there is one crucial point on which Beever's account does contradict Hart's, and this brings me to my second point of criticism, which concerns a substantive (rather than methodological) argument Beever has levelled against Hart. In this argument, Beever capitalises on an inconsistency in Hart's account of legal obligations: Hart's gunman argument shows that we are obligated (and not merely obliged) to φ only if the law provides deontic reasons (and not merely prudential reasons) for us to φ. Therefore, for law to create obligations rather than mere commands, it must generate deontic reasons for action in its subjects. Hart, however, has no explanation of how legal rules – which are ultimately constituted by the practices of legal officials – can generate deontic reasons for action, hence leaving a well-hidden lacuna in The Concept of Law. A viable explanation would be that law can generate deontic reasons because it generates, or purports to generate, moral reasons for action. Hart did not endorse this explanation because it would forge a necessary connection between law and morality. Instead, he espoused a kind of non-cognitivism about legal obligations, which claims that law can create obligations without generating deontic reasons for action. But this claim, as Beever indicates, is blatantly inconsistent with what Hart has established by his gunman argument. According to Beever, this challenge shows that positivism is indefensible, and no positivist has successfully explained law's deontic power while maintaining the strict separability between law and morality.

This argument by Beever is well-founded and adeptly executed in Chapter 11. I doubt that Beever has provided conclusive reasons to reject all the positivist responses to this challenge, though the positivists also disagree among themselves. Here I simply wish to point out that even if Beever succeeds in exposing the soft underbelly of legal positivism, it is a success that has no underpinning in Searle's social philosophy. Because Searle himself explicitly recognises that normative obligations created by social institutions need not be moral obligations (Speech Acts (New York 1969), 188–89), the application of Searle's theory to analysing law as a social institution will not undermine legal positivism. Indeed, it is likely to strengthen legal positivism, for positivists can now explain how the speech act of status function declarations, coupled with collective recognition, creates social institutions, including the institution of law (Beever provides precisely such an explanation in Part II). They can further explain why a social institution thus created has deontic power, and can hence impose obligations, over those who have committed themselves to observing the institution's constitutive rules, with the caveat that those obligations need not be moral obligations. Because legal officials have clearly committed themselves to observing the institution's constitutive rules, this explanation solves Beever's problem of legal deontology so far as legal officials are concerned and is consistent with Hart's recognition that legal officials must observe the secondary rules from the internal point of view.

The real problem – and the crux of the disagreement between Beever and the positivists – is the role of citizens in this picture. To borrow Beever's analogy, are citizens more like players in a game or are they more like passers-by? Our answer to this question will determine whether we think law necessarily provides deontic reasons for action for citizens. Matthew Kramer's view is that at least in some extreme circumstances citizens are just passers-by, so that duty-imposing laws for citizens are no more than commands backed up by threats, a view that echoes Hart's remark about the possibility for citizens to be sheep-like. Beever thinks this view simply revives the command theory, but he seems to ignore that the command theory, unlike Hartian positivism, pays no attention to law's ability to provide deontic reasons for legal officials.

There is obviously much more to be said about the dispute between Beever and the positivists than I can manage here, but it is a dispute that Searle's social philosophy does not and probably cannot help us to resolve. This brings me to a good place to wrap up this review with some final remarks: readers of this book will undoubtedly find that each part contains helpful elucidations, forceful arguments and original insights. However, they are unlikely to see how Searle's social philosophy, excellently presented by Beever in Part II, can free us from the old debates in the grand jurisprudential battle discussed in Part III. This is so particularly because throughout Part III – consisting more than half of the book's content – Beever is trying to defend one camp in the battle against the other, despite his avowal that this battle is a great waste of time. To borrow Beever's Freudian terminology (p. 264), it almost seems that he is consciously trying to move on from the battle while unconsciously joining the battle himself. Beever's sustained attacks on legal positivism are often vigorous and skilful. However, in deploying those attacks he draws only sparingly on Searle and adopts a methodology that is virtually indistinguishable from how jurisprudence has traditionally been practised, making good use of doctrinal legal materials (showcasing Beever's expertise in tort law), but ultimately letting the philosopher's own intuition do the decisive work. Beever hence demonstrates by his own practice that one can still make new contributions to the persistent jurisprudential debates, which Searle's social philosophy has not enabled us to either resolve or dissolve.