Jurisprudence Notes LLB PDF (1)

JURISPRUDENCE TOPICAL OUTLINES 1.

Legal Positivism

2.

Natural Law

3.

Feminist Jurisprudence

4.

Marxist Jurisprudence

5.

Sociological Jurisprudence

Meaning and introduction to Jurisprudence The word jurisprudence derives from the Latin term jurisprudentia, which means "the study, knowledge, or science of law." In the United States jurisprudence commonly means the philosophy of law. Legal philosophy has many aspects, but four of them are the most common. The first and the most prevalent form of jurisprudence seeks to analyze, explain, classify, and criticize entire bodies of law. Law school textbooks and legal encyclopedias represent this type of scholarship. The second type of jurisprudence compares and contrasts law with other fields of knowledge such as literature, economics, religion, and the social sciences. The third type of jurisprudence seeks to reveal the historical, moral, and cultural basis of a particular legal concept. The fourth body of jurisprudence focuses on finding the answer to such abstract questions as “What is law?” and “How do judges (properly) decide cases?” Apart from different types of jurisprudence, different schools of jurisprudence exist. Formalism, or conceptualism, treats law like math’s or science. Formalists believe that a judge identifies the relevant legal principles, applies them to the facts of a case, and logically deduces a rule that will govern the outcome of the dispute. In contrast, proponents of legal realism believe that most cases before courts present hard questions that judges must resolve by balancing the interests of the parties and ultimately drawing an arbitrary line on one side of the dispute. This line, realists maintain, is drawn according to the political, economic, and psychological inclinations of the judge. Some legal realists even believe that a judge is able to shape the outcome of the case based on personal biases. Apart from the realist-formalist dichotomy, there is the classic debate over the appropriate sources of law between positivist and natural law schools of thought. Positivists argue that there is no connection between law and morality and that the only sources of law are rules that have been expressly enacted by a governmental entity or court of law. Naturalists, or proponents of natural law, insist that the rules enacted by government are not the only sources of law. They argue that moral philosophy; religion, human reason and individual conscience are also integral parts of the law. There are no bright lines between different schools of jurisprudence. The legal philosophy of a particular legal scholar may consist of a combination of strains from many schools of legal thought. Some scholars think that it is more appropriate to think about jurisprudence as a continuum.

LEGAL POSITIVISM RESEARCH DONE FROM: http://plato.stanford.edu/entries/legal-positivism/

Legal positivism is the thesis that the existence and content of law depends on social facts and not on its merits. The English jurist John Austin (1790-1859) formulated it thus: “The existence of law is one thing; its merit and demerit another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry.” (1832, p. 157) The positivist thesis does not say that law's merits are unintelligible, unimportant, or peripheral to the philosophy of law. It says that they do not determine whether laws or legal systems exist. Whether a society has a legal system depends on the presence of certain structures of governance, not on the extent to which it satisfies ideals of justice, democracy, or the rule of law. What laws are in force in that system depends on what social standards its officials recognize as authoritative; for example, legislative enactments, judicial decisions, or social customs. The fact that a policy would be just, wise, efficient, or prudent is never sufficient reason for thinking that it is actually the law, and the fact that it is unjust, unwise, inefficient or imprudent is never sufficient reason for doubting it. According to positivism, law is a matter of what has been posited (ordered, decided, practiced, tolerated, etc.); as we might say in a more modern idiom, positivism is the view that law is a social construction. Austin thought the thesis “simple and glaring.” While it is probably the dominant view among analytically inclined philosophers of law, it is also the subject of competing interpretations together with persistent criticisms and misunderstandings. 1. Development and Influence Legal positivism has a long history and a broad influence. It has antecedents in ancient political philosophy and is discussed, and the term itself introduced, in mediaeval legal and political thought (see Finnis 1996). The modern doctrine, however, owes little to these forbears. Its most important roots lie in the conventionalist political philosophies of Hobbes and Hume, and its first full elaboration is due to Jeremy Bentham (1748-1832) whose account Austin adopted, modified, and popularized. For much of the next century an amalgam of their views, according to which law is the command of a sovereign backed by force, dominated legal positivism and English philosophical reflection about law. By the mid-twentieth century, however, this account had lost its influence among working legal philosophers. Its emphasis on legislative institutions was replaced by a focus on law-applying institutions such as courts, and its insistence of the role of coercive force gave way to theories emphasizing the systematic and normative character of law. The most important architects of this revised positivism are the Austrian jurist Hans Kelsen (1881-1973) and the two dominating figures in the analytic philosophy of law, H.L.A. Hart (1907-92) and Joseph Raz among whom there are clear lines of influence, but also important contrasts. Legal positivism's importance, however, is not confined to the philosophy of law. It can be seen throughout social theory, particularly in the works of Marx, Weber, and Durkheim, and also (though here unwittingly) among many lawyers, including the American “legal realists” and most contemporary feminist scholars. Although they disagree on many other points, these writers all acknowledge that law is essentially a matter of social fact. Some of them are, it is true, uncomfortable with the label “legal positivism” and therefore hope to escape it. Their discomfort is sometimes the product of confusion. Lawyers often use “positivist” abusively, to condemn a formalistic doctrine according to which law is always clear and, however pointless or wrong, is to be rigorously applied by officials and obeyed by subjects. It is doubtful that anyone ever held this view; but it is in any case false, it has nothing to do with legal positivism, and it is expressly rejected by all leading positivists. Among the philosophically literate another, more intelligible, misunderstanding may interfere. Legal positivism is here sometimes associated with the homonymic but independent doctrines of logical positivism (the meaning of a sentence is its mode of verification) or sociological positivism (social phenomena can be studied only through the methods of natural science). While there are historical connections, and also commonalities of temper, among these ideas, they are essentially different. The view that the existence of law depends on social facts does not rest on a particular semantic thesis, and it is compatible with a range of theories about how one investigates social facts, including non-naturalistic accounts. To say that the existence of law

depends on facts and not on its merits is a thesis about the relation among laws, facts, and merits, and not otherwise a thesis about the individual relata. Hence, most traditional “natural law” moral doctrines--including the belief in a universal, objective morality grounded in human nature--do not contradict legal positivism. The only influential positivist moral theories are the views that moral norms are valid only if they have a source in divine commands or in social conventions. Such theists and relativists apply to morality the constraints that legal positivists think hold for law. 2. The Existence and Sources of Law Every human society has some form of social order, some way of marking and encouraging approved behavior, deterring disapproved behavior, and resolving disputes. What then is distinctive of societies with legal systems and, within those societies, of their law? Before exploring some positivist answers, it bears emphasizing that these are not the only questions worth asking. While an understanding of the nature of law requires an account of what makes law distinctive, it also requires an understanding of what it has in common with other forms of social control. Some Marxists are positivists about the nature of law while insisting that its distinguishing characteristics matter less than its role in replicating and facilitating other forms of domination. (Though other Marxists disagree: see Pashukanis). They think that the specific nature of law casts little light on their primary concerns. But one can hardly know that in advance; it depends on what the nature of law actually is. According to Bentham and Austin, law is a phenomenon of large societies with a sovereign: a determinate person or group who have supreme and absolute de facto power -- they are obeyed by all or most others but do not themselves similarly obey anyone else. The laws in that society are a subset of the sovereign's commands: general orders that apply to classes of actions and people and that are backed up by threat of force or “sanction.” This imperatival theory is positivist, for it identifies the existence of legal systems with patterns of command and obedience that can be ascertained without considering whether the sovereign has a moral right to rule or whether his commands are meritorious. It has two other distinctive features. The theory is monistic: it represents all laws as having a single form, imposing obligations on their subjects, though not on the sovereign himself. The imperativalist acknowledges that ultimate legislative power may be self-limiting, or limited externally by what public opinion will tolerate, and also that legal systems contain provisions that are not imperatives (for example, permissions, definitions, and so on). But they regard these as part of the non-legal material that is necessary for, and part of, every legal system. (Austin is a bit more liberal on this point). The theory is also reductivist, for it maintains that the normative language used in describing and stating the law -- talk of authority, rights, obligations, and so on -- can all be analyzed without remainder in non-normative terms, ultimately as concatenations of statements about power and obedience. Imperatival theories are now without influence in legal philosophy (but see Ladenson and Morison). What survives of their outlook is the idea that legal theory must ultimately be rooted in some account of the political system, an insight that came to be shared by all major positivists save Kelsen. Their particular conception of a society under a sovereign commander, however, is friendless (except among Foucauldians, who strangely take this relic as the ideal-type of what they call “juridical” power). It is clear that in complex societies there may be no one who has all the attributes of sovereignty, for ultimate authority may be divided among organs and may itself be limited by law. Moreover, even when “sovereignty” is not being used in its legal sense it is nonetheless a normative concept. A legislator is one who has authority to make laws, and not merely someone with great social power, and it is doubtful that “habits of obedience” is a candidate reduction for explaining authority. Obedience is a normative concept. To distinguish it from coincidental compliance we need something like the idea of subjects being oriented to, or guided by, the commands. Explicating this will carry us far from the power-based notions with which classical positivism hoped to work. The

imperativalists' account of obligation is also subject to decisive objections (Hart, 1994, pp. 26-78; and Hacker). Treating all laws as commands conceals important differences in their social functions, in the ways they operate in practical reasoning, and in the sort of justifications to which they are liable. For instance, laws conferring the power to marry command nothing; they do not obligate people to marry, or even to marry according to the prescribed formalities. Nor is reductivism any more plausible here: we speak of legal obligations when there is no probability of sanctions being applied and when there is no provision for sanctions (as in the duty of the highest courts to apply the law). Moreover, we take the existence of legal obligations to be a reason for imposing sanctions, not merely a consequence of it. Hans Kelsen retains the imperativalists' monism but abandons their reductivism. On his view, law is characterized by a basic form and basic norm. The form of every law is that of a conditional order, directed at the courts, to apply sanctions if a certain behavior (the “delict”) is performed. On this view, law is an indirect system of guidance: it does not tell subjects what to do; it tells officials what to do to its subjects under certain conditions. Thus, what we ordinarily regard as the legal duty not to steal is for Kelsen merely a logical correlate of the primary norm which stipulates a sanction for stealing (1945, p. 61). The objections to imperatival monism apply also to this more sophisticated version: the reduction misses important facts, such as the point of having a prohibition on theft. (The courts are not indifferent between, on the one hand, people not stealing and, on the other, stealing and suffering the sanctions.) But in one respect the conditional sanction theory is in worse shape than is imperativalism, for it has no principled way to fix on the delict as the duty-defining condition of the sanction -- that is but one of a large number of relevant antecedent conditions, including the legal capacity of the offender, the jurisdiction of the judge, the constitutionality of the offense, and so forth. Which among all these is the content of a legal duty? Kelsen's most important contribution lies in his attack on reductivism and his doctrine of the “basic norm.” He maintains that law is normative and must understood as such. Might does not make right - not even legal right -- so the philosophy of law must explain the fact that law is taken to impose obligations on its subjects. Moreover, law is a normative system: “Law is not, as it is sometimes said, a rule. It is a set of rules having the kind of unity we understand by a system” (1945, p. 3). For the imperativalists, the unity of a legal system consists in the fact that all its laws are commanded by one sovereign. For Kelsen, it consists in the fact that they are all links in one chain of authority. For example, a by-law is legally valid because it is created by a corporation lawfully exercising the powers conferred on it by the legislature, which confers those powers in a manner provided by the constitution, which was itself created in a way provided by an earlier constitution. But what about the very first constitution, historically speaking? Its authority, says Kelsen, is “presupposed.” The condition for interpreting any legal norm as binding is that the first constitution is validated by the following “basic norm:” “the original constitution is to be obeyed.” Now, the basic norm cannot be a legal norm -- we cannot fully explain the bindingness of law by reference to more law. Nor can it be a social fact, for Kelsen maintains that the reason for the validity of a norm must always be another norm -- no ought from is. It follows, then, that a legal system must consist of norms all the way down. It bottoms in a hypothetical, transcendental norm that is the condition of the intelligibility of any (and all) other norms as binding. To “presuppose” this basic norm is not to endorse it as good or just -- resupposition is a cognitive stance only -- but it is, Kelsen thinks, the necessary precondition for a non-reductivist account of law as a normative system. There are many difficulties with this, not least of which is the fact that if we are willing to tolerate the basic norm as a solution it is not clear why we thought there was a problem in the first place. One cannot say both that the basic norm is the norm presupposing which validates all inferior norms and also that an inferior norm is part of the legal system only if it is connected by a chain of validity to the basic norm. We need a way into the circle. Moreover, it draws the boundaries of legal systems

incorrectly. The Canadian Constitution of 1982 was lawfully created by an Act of the U.K. Parliament, and on that basis Canadian law and English law should be parts of a single legal system, rooted in one basic norm: ‘The (first) U.K. constitution is to be obeyed.’ Yet no English law is binding in Canada, and a purported repeal of the Constitution Act by the U.K. would be without legal effect in Canada. If law cannot ultimately be grounded in force, or in law, or in a presupposed norm, on what does its authority rest? The most influential solution is now H.L.A. Hart's. His solution resembles Kelsen's in its emphasis on the normative foundations of legal systems, but Hart rejects Kelsen's transcendentalist, Kantian view of authority in favour of an empirical, Weberian one. For Hart, the authority of law is social. The ultimate criterion of validity in a legal system is neither a legal norm nor a presupposed norm, but a social rule that exists only because it is actually practiced. Law ultimately rests on custom: customs about who shall have the authority to decide disputes, what they shall treat as binding reasons for decision, i.e. as sources of law, and how customs may be changed. Of these three “secondary rules,” as Hart calls them, the source-determining rule of recognition is most important, for it specifies the ultimate criteria of validity in the legal system. It exists only because it is practiced by officials, and it is not only the recognition rule (or rules) that best explains their practice, it is rule to which they actually appeal in arguments about what standards they are bound to apply. Hart's account is therefore conventionalist (see Marmor, and Coleman, 2001): ultimate legal rules are social norms, although they are neither the product of express agreement nor even conventions in the Schelling-Lewis sense (see Green 1999). Thus for Hart too the legal system is norms all the way down, but at its root is a social norm that has the kind of normative force that customs have. It is a regularity of behavior towards which officials take “the internal point of view:” they use it as a standard for guiding and evaluating their own and others' behavior, and this use is displayed in their conduct and speech, including the resort to various forms of social pressure to support the rule and the ready application of normative terms such as “duty” and “obligation” when invoking it. It is an important feature of Hart's account that the rule of recognition is an official custom, and not a standard necessarily shared by the broader community. If the imperativalists' picture of the political system was pyramidal power, Hart's is more like Weber's rational bureaucracy. Law is normally a technical enterprise, characterized by a division of labour. Ordinary subjects' contribution to the existence of law may therefore amount to no more than passive compliance. Thus, Hart's necessary and sufficient conditions for the existence of a legal system are that “those rules of behavior which are valid according to the system's ultimate criteria of validity must be generally obeyed, and ... its rules of recognition specifying the criteria of legal validity and its rules of change and adjudication must be effectively accepted as common public standards of official behavior by its officials” (1994, p. 116). And this division of labour is not a normatively neutral fact about law; it is politically charged, for it sets up the possibility of law becoming remote from the life of a society, a hazard to which Hart is acutely alert (1994, p. 117; cf. Waldron). Although Hart introduces the rule of recognition through a speculative anthropology of how it might emerge in response to certain deficiencies in a customary social order, he is not committed to the view that law is a cultural achievement. To the contrary, the idea that legal order is always a good thing, and that societies without it are deficient, is a familiar element of many anti-positivist views, beginning with Henry Maine's criticism of Austin on the ground that his theory would not apply to certain Indian villages. The objection embraces the error it seeks to avoid. It imperialistically assumes that it is always a bad thing to lack law, and then makes a dazzling inference from ought to is: if it is good to have law, then each society must have it, and the concept of law must be adjusted to show that it does. If one thinks that law is a many splendored thing, one will be tempted by a very wide concept of law, for it would seem improper to charge others with missing out. Positivism

simply releases the harness. Law is a distinctive form of political order, not a moral achievement, and whether it is necessary or even useful depends entirely on its content and context. Societies without law may be perfectly adapted to their environments, missing nothing. A positivist account of the existence and content of law, along any of the above lines, offers a theory of the validity of law in one of the two main senses of that term (see Harris, pp. 107-111). Kelsen says that validity is the specific mode of existence of a norm. An invalid marriage is not a special kind of marriage having the property of invalidity; it is not a marriage at all. In this sense a valid law one that is systemically valid in the jurisdiction -- it is part of the legal system. This is the question that positivists answer by reference to social sources. It is distinct from the idea of validity as moral propriety, i.e. a sound justification for respecting the norm. For the positivist, this depends on its merits. One indication that these senses differ is that one may know that a society has a legal system, and know what its laws are, without having any idea whether they are morally justified. For example, one may know that the law of ancient Athens included the punishment of ostracism without knowing whether it was justified, because one does not know enough about its effects, about the social context, and so forth. No legal positivist argues that the systemic validity of law establishes its moral validity, i.e. that it should be obeyed by subjects or applied by judges. Even Hobbes, to whom this view is sometimes ascribed, required that law actually be able to keep the peace, failing which we owe it nothing. Bentham and Austin, as utilitarians, hold that such questions always turn on the consequences and both acknowledge that disobedience is therefore sometimes fully justified. Kelsen insists that “The science of law does not prescribe that one ought to obey the commands of the creator of the constitution” (1967, p. 204). Hart thinks that there is only a prima facie duty to obey, grounded in and thus limited by fairness -- so there is no obligation to unfair or pointless laws (Hart 1955). Raz goes further still, arguing that there isn't even a prima facie duty to obey the law, not even in a just state (Raz 1979, pp. 233-49). The peculiar accusation that positivists believe the law is always to be obeyed is without foundation. Hart's own view is that an overweening deference to law consorts more easily with theories that imbue it with moral ideals, permitting “an enormous overvaluation of the importance of the bare fact that a rule may be said to be a valid rule of law, as if this, once declared, was conclusive of the final moral question: ‘Ought this law to be obeyed?” (Hart 1958, p. 75). 3. Moral Principles and the Boundaries of Law The most influential criticisms of legal positivism all flow, in one way or another, from the suspicion that it fails to give morality its due. A theory that insists on the facticity of law seems to contribute little to our understanding that law has important functions in making human life go well, that the rule of law is a prized ideal, and that the language and practice of law is highly moralized. Accordingly, positivism's critics maintain that the most important features of law are not to be found in its source-based character, but in law's capacity to advance the common good, to secure human rights, or to govern with integrity. (It is a curious fact about anti-positivist theories that, while they all insist on the moral nature of law, without exception they take its moral nature to be something good. The idea that law might of its very nature be morally problematic does not seem to have occurred to them.) It is beyond doubt that moral and political considerations bear on legal philosophy. As Finnis says, the reasons we have for establishing, maintaining or reforming law include moral reasons, and these reasons therefore shape our legal concepts (p. 204). But which concepts? Once one concedes, as Finnis does, that the existence and content of law can be identified without recourse to moral argument, and that “human law is artefact and artifice; and not a conclusion from moral premises,”

(p. 205) the Thomistic apparatus he tries to resuscitate is largely irrelevant to the truth of legal positivism. This vitiates also Lon Fuller's criticisms of Hart (Fuller, 1958 and 1969). Apart from some confused claims about adjudication, Fuller has two main points. First, he thinks that it isn't enough for a legal system to rest on customary social rules, since law could not guide behavior without also being at least minimally clear, consistent, public, prospective and so on -- that is, without exhibiting to some degree those virtues collectively called “the rule of law.” It suffices to note that this is perfectly consistent with law being source-based. Even if moral properties were identical with, or supervened upon, these rule-of-law properties, they do so in virtue of their rule-like character, and not their law-like character. Whatever virtues inhere in or follow from clear, consistent, prospective, and open practices can be found not only in law but in all other social practices with those features, including custom and positive morality. And these virtues are minor: there is little to be said in favour of a clear, consistent, prospective, public and impartially administered system of racial segregation, for example. Fuller's second worry is that if law is a matter of fact, then we are without an explanation of the duty to obey. He gloatingly asks how “an amoral datum called law could have the peculiar quality of creating an obligation to obey it” (Fuller, 1958). One possibility he neglects is that it doesn't. The fact that law claims to obligate is, of course, a different matter and is susceptible to other explanations (Green 2001). But even if Fuller is right in his unargued assumption, the “peculiar quality” whose existence he doubts is a familiar feature of many moral practices. Compare promises: whether a society has a practice of promising, and what someone has promised to do, are matters of social fact. Yet promising creates moral obligations of performance or compensation. An “amoral datum” may indeed figure, together with other premises, in a sound argument to moral conclusions. While Finnis and Fuller's views are thus compatible with the positivist thesis, the same cannot be said of Ronald Dworkin's important works (Dworkin 1978 and 1986). Positivism's most significant critic rejects the theory on every conceivable level. He denies that there can be any general theory of the existence and content of law; he denies that local theories of particular legal systems can identify law without recourse to its merits, and he rejects the whole institutional focus of positivism. A theory of law is for Dworkin a theory of how cases ought to be decided and it begins, not with an account of political organization, but with an abstract ideal regulating the conditions under which governments may use coercive force over their subjects. Force must only be deployed, he claims, in accordance with principles laid down in advance. A society has a legal system only when, and to the extent that, it honors this ideal, and its law is the set of all considerations that the courts of such a soci ety would be morally justified in applying, whether or not those considerations are determined by any source. To identify the law of a given society we must engage in moral and political argument, for the law is whatever requirements are consistent with an interpretation of its legal practices (subject to a threshold condition of fit) that shows them to be best justified in light of the animating ideal. In addition to those philosophical considerations, Dworkin invokes two features of the phenomenology of judging, as he sees it. He finds deep controversy among lawyers and judges about how important cases should be decided, and he finds diversity in the considerations that they hold relevant to deciding them. The controversy suggests to him that law cannot rest on an official consensus, and the diversity suggests that there is no single social rule that validates all relevant reasons, moral and nonmoral, for judicial decisions. Dworkin's rich and complex arguments have attracted various lines of reply from positivists. One response denies the relevance of the phenomenological claims. Controversy is a matter of degree, and a consensus-defeating amount of it is not proved by the existence of adversarial argument in the high courts, or indeed in any courts. As important is the broad range of settled law that gives rise to few doubts and which guides social life outside the courtroom. As for the diversity argument, so far from being a refutation of positivism, this is an entailment of it. Positivism identifies law, not with all valid reasons for decision, but only with the source-based subset of them. It is no part of the

positivist claim that the rule of recognition tells us how to decide cases, or even tells us all the relevant reasons for decision. Positivists accept that moral, political or economic considerations are properly operative in some legal decisions, just as linguistic or logical ones are. Modus ponens holds in court as much as outside, but not because it was enacted by the legislature or decided by the judges, and the fact that there is no social rule that validates both modus ponens and also the Municipalities Act is true but irrelevant. The authority of principles of logic (or morality) is not something to be explained by legal philosophy; the authority of acts of Parliament must be; and accounting for the difference is a central task of the philosophy of law. Other positivists respond differently to Dworkin's phenomenological points, accepting their relevance but modifying the theory to accommodate them. So-called “inclusive positivists” (e.g., Waluchow (to whom the term is due), Coleman, Soper and Lyons) argue that the merit-based considerations may indeed be part of the law, if they are explicitly or implicitly made so by sourcebased considerations. For example, Canada's constitution explicitly authorizes for breach of Charter rights, “such remedy as the court considers appropriate and just in the circumstances.” In determining which remedies might be legally valid, judges are thus expressly told to take into account their morality. And judges may develop a settled practice of doing this whether or not it is required by any enactment; it may become customary practice in certain types of cases. Reference to moral principles may also be implicit in the web of judge-made law, for instance in the common law principle that no one should profit from his own wrongdoing. Such moral considerations, inclusivists claim, are part of the law because the sources make it so, and thus Dworkin is right that the existence and content of law turns on its merits, and wrong only in his explanation of this fact. Legal validity depends on morality, not because of the interpretative consequences of some ideal about how the government may use force, but because that is one of the things that may be customarily recognized as an ultimate determinant of legal validity. It is the sources that make the merits relevant. To understand and assess this response, some preliminary clarifications are needed. First, it is not plausible to hold that the merits are relevant to a judicial decision only when the sources make it so. It would be odd to think that justice is a reason for decision only because some source directs an official to decide justly. It is of the nature of justice that it properly bears on certain controversies. In legal decisions, especially important ones, moral and political considerations are present of their own authority; they do not need sources to propel them into action. On the contrary, we expect to see a sourceÑa statute, a decision, or a conventionÑwhen judges are constrained not to appeal directly to the merits. Second, the fact that there is moral language in judicial decisions does not establish the presence of moral tests for law, for sources come in various guises. What sounds like moral reasoning in the courts is sometimes really source-based reasoning. For example, when the Supreme Court of Canada says that a publication is criminally “obscene” only if it is harmful, it is not applying J.S. Mill's harm principle, for what that court means by “harmful” is that it is regarded by the community as degrading or intolerable. Those are source-based matters, not moral ones. This is just one of many appeals to positive morality, i.e. to the moral customs actually practiced by a given society, and no one denies that positive morality may be a source of law. Moreover, it is important to remember that law is dynamic and that even a decision that does apply morality itself becomes a source of law, in the first instance for the parties and possibly for others as well. Over time, by the doctrine of precedent where it exists or through the gradual emergence of an interpretative convention where it does not, this gives a factual edge to normative terms. Thus, if a court decides that money damages are in some instances not a “just remedy” then this fact will join with others in fixing what “justice” means for these purposes. This process may ultimately detach legal concepts from their moral analogs (thus, legal “murder” may require no intention to kill, legal “fault” no moral blameworthiness, an “equitable” remedy may be manifestly unfair, etc.)

Bearing in mind these complications, however, there undeniably remains a great deal of moral reasoning in adjudication. Courts are often called on to decide what would reasonable, fair, just, cruel, etc. by explicit or implicit requirement of statute or common law, or because this is the only proper or intelligible way to decide. Hart sees this as happening pre-eminently in hard cases in which, owing to the indeterminacy of legal rules or conflicts among them, judges are left with the discretion to make new law. “Discretion,” however, may be a potentially misleading term here. First, discretionary judgments are not arbitrary: they are guided by merit-based considerations, and they may also be guided by law even though not fully determined by it -- judges may be empowered to make certain decisions and yet under a legal duty to make them in a particular way, say, in conformity with the spirit of preexisting law or with certain moral principles (Raz 1994, pp. 238-53). Second, Hart's account might wrongly be taken to suggest that there are fundamentally two kinds of cases, easy ones and hard ones, distinguished by the sorts of reasoning appropriate to each. A more perspicuous way of putting it would be to say that there are two kinds of reasons that are operative in every case: source-based reasons and non-source-based reasons. Law application and law creation are continuous activities for, as Kelsen correctly argued, every legal decision is partly determined by law and partly underdetermined: “The higher norm cannot bind in every direction the act by which it is applied. There must always be more or less room for discretion, so that the higher norm in relation to the lower one can only have the character of a frame to be filled by this act” (1967, p. 349). This is a general truth about norms. There are infinitely many ways of complying with a command to “close the door” (quickly or slowly, with one's right hand or left, etc.) Thus, even an “easy case” will contain discretionary elements. Sometimes such residual discretion is of little importance; sometimes it is central; and a shift from marginal to major can happen in a flash with changes in social or technological circumstances. That is one of the reasons for rejecting a strict doctrine of separation of powers -- Austin called it a “childish fiction” -- according to which judges only apply and never make the law, and with it any literal interpretation of Dworkin's ideal that coercion be deployed only according to principles laid down in advance. It has to be said, however, that Hart himself does not consistently view legal references to morality as marking a zone of discretion. In a passing remark in the first edition of The Concept of Law, he writes, “In some legal systems, as in the United States, the ultimate criteria of legal validity explicitly incorporate principles of justice or substantive moral values …” (1994, p. 204). This thought sits uneasily with other doctrines of importance to his theory. For Hart also says that when judges exercise moral judgment in the penumbra of legal rules to suppose that their results were already part of existing law is “in effect, an invitation to revise our concept of what a legal rule is …” (1958, p. 72). The concept of a legal rule, that is, does not include all correctly reasoned elaborations or determinations of that rule. Later, however, Hart comes to see his remark about the U.S. constitution as foreshadowing inclusive positivism (“soft positivism,” as he calls it). Hart's reasons for this shift are obscure (Green 1996). He remained clear about how we should understand ordinary statutory interpretation, for instance, where the legislature has directed that an applicant should have a “reasonable time” or that a regulator may permit only a “fair price:” these grant a bounded discretion to decide the cases on their merits. Why then does Hart -- and even more insistently, Waluchow and Coleman -- come to regard constitutional adjudication differently? Is there any reason to think that a constitution permitting only a “just remedy” requires a different analysis than a statute permitting only a “fair rate?” One might hazard the following guess. Some of these philosophers think that constitutional law expresses the ultimate criteria of legal validity: because unjust remedies are constitutionally invalid and void ab initio, legally speaking they never existed (Waluchow). That being so, morality sometimes determines the existence or content of law. If this is the underlying intuition, it is misleading, for the rule of recognition is not to be found in constitutions. The rule of recognition is the ultimate criterion (or set of criteria) of legal validity. If one knows what the constitution of a

country is, one knows some of its law; but one may know what the rule of recognition is without knowing any of its laws. You may know that acts of the Bundestag are a source of law in Germany but not be able to name or interpret a single one of them. And constitutional law is itself subject to the ultimate criteria of systemic validity. Whether a statute, decision or convention is part of a country's constitution can only be determined by applying the rule of recognition. The provisions of the 14th Amendment to the U.S. constitution, for example, are not the rule of recognition in the U.S., for there is an intra-systemic answer to the question why that Amendment is valid law. The U.S. constitution, like that of all other countries, is law only because it was created in ways provided by law (through amendment or court decision) or in ways that came to be accepted as creating law (by constitutional convention and custom). Constitutional cases thus raise no philosophical issue not already present in ordinary statutory interpretation, where inclusive positivists seem content with the theory of judicial discretion. It is, of course, open to them to adopt a unified view and treat every explicit or implicit legal reference to morality -- in cases, statutes, constitutions, and customs -- as establishing moral tests for the existence of law. (Although at that point it is unclear how their view would differ from Dworkin's.) So we should consider the wider question: why not regard as law everything referred to by law? Exclusive positivists offer three main arguments for stopping at social sources. The first and most important is that it captures and systematizes distinctions we regularly make and that we have good reason to continue to make. We assign blame and responsibility differently when we think that a bad decision was mandated by the sources than we do when we think that it flowed from a judge's exercise of moral or political judgement. When considering who should be appointed to the judiciary, we are concerned not only with their acumenasjurists, but also with their morality and politics--and we take different things as evidence of these traits. These are deeply entrenched distinctions, and there is no reason to abandon them. The second reason for stopping at sources is that this is demonstrably consistent with key features of law's role in practical reasoning. The most important argument to this conclusion is due to Raz (1994, pp. 210-37). For a related argument see Shapiro. For criticism see Perry, Waluchow, Coleman 2001, and Himma.) Although law does not necessarily have legitimate authority, it lays claim to it, and can intelligibly do so only if it is the kind of thing that could have legitimate authority. It may fail, therefore, in certain ways only, for example, by being unjust, pointless, or ineffective. But law cannot fail to be a candidate authority, for it is constituted in that role by our political practices. According to Raz, practical authorities mediate between subjects and the ultimate reasons for which they should act. Authorities' directives should be based on such reasons, and they are justified only when compliance with the directives makes it more likely that people will comply with the underlying reasons that apply to them. But they can do that only if is possible to know what the directives require independent of appeal to those underlying reasons. Consider an example. Suppose we agree to resolve a dispute by consensus, but that after much discussion find ourselves in disagreement about whether some point is in fact part of the consensus view. It will do nothing to say that we should adopt it if it is indeed properly part of the consensus. On the other hand, we could agree to adopt it if it were endorsed by a majority vote, for we could determine the outcome of a vote without appeal to our ideas about what the consensus should be. Social sources can play this mediating role between persons and ultimate reasons, and because the nature of law is partly determined by its role in giving practical guidance, there is a theoretical reason for stopping at source-based considerations. The third argument challenges an underlying idea of inclusive positivism, what we might call the Midas Principle. “Just as everything King Midas touched turned into gold, everything to which law refers becomes law … ” (Kelsen 1967, p. 161). Kelsen thought that it followed from this principle that “It is … possible for the legal order, by obliging the law-creating organs to respect or apply

certain moral norms or political principles or opinions of experts to transform these norms, principles, or opinions into legal norms, and thus into sources of law” (Kelsen 1945, p. 132). (Though he regarded this transformation as effected by a sort of tacit legislation.) If sound, the Midas Principle holds in general and not only with respect to morality, as Kelsen makes clear. Suppose then that the Income Tax Act penalizes overdue accounts at 8% per annum. In a relevant case, an official can determine the content of a legal obligation only by calculating compound interest. Does this make mathematics part of the law? A contrary indication is that it is not subject to the rules of change in a legal system -- neither courts nor legislators can repeal or amend the law of commutativity. The same holds of other social norms, including the norms of foreign legal systems. A conflict-of-laws rule may direct a Canadian judge to apply Mexican law in a Canadian case. The conflicts rule is obviously part of the Canadian legal system. But the rule of Mexican law is not, for although Canadian officials can decide whether or not to apply it, they can neither change it nor repeal it, and best explanation for its existence and content makes no reference to Canadian society or its political system. In like manner, moral standards, logic, mathematics, principles of statistical inference, or English grammar, though all properly applied in cases, are not themselves the law, for legal organs have applicative but not creative power over them. The inclusivist thesis is actually groping towards an important, but different, truth. Law is an open normative system (Raz 1975, pp. 152-54): it adopts and enforces many other standards, including moral norms and the rules of social groups. There is no warrant for adopting the Midas Principle to explain how or why it does this.

4. Law and Its Merits It may clarify the philosophical stakes in legal positivism by comparing it to a number of other theses with which it is sometimes wrongly identified, and not only by its opponents. (See also Hart, 1958, Fuesser, and Schauer.) 4.1 The Fallibility Thesis Law does not necessarily satisfy the conditions by which it is appropriately assessed (Lyons 1984, p. 63, Hart 1994, pp. 185-6). Law should be just, but it may not be; it should promote the common good, but sometimes it doesn't; it should protect moral rights, but it may fail miserably. This we may call the moral fallibility thesis. The thesis is correct, but it is not the exclusive property of positivism. Aquinas accepts it, Fuller accepts it, Finnis accepts it, and Dworkin accepts it. Only a crude misunderstanding of ideas like Aquinas's claim that “an unjust law seems to be no law at all” might suggest the contrary. Law may have an essentially moral character and yet be morally deficient. Even if every law always does one kind of justice (formal justice; justice according to law), this does not entail that it does every kind of justice. Even if every law has a prima facie claim to be applied or obeyed, it does not follow that it has such a claim all things considered. The gap between these partial and conclusive judgments is all a natural law theory needs to accommodate the fallibility thesis. It is sometimes said that positivism gives a more secure grasp on the fallibility of law, for once we see that it is a social construction we will be less likely to accord it inappropriate deference and better prepared to engage in a clear-headed moral appraisal of the law. This claim has appealed to several positivists, including Bentham and Hart. But while this might follow from the truth of positivism, it cannot provide an argument for it. If law has an essentially moral character then it is obfuscating, not clarifying, to describe it as a source-based structure of governance. 4.2 The Separability Thesis

At one point, Hart identifies legal positivism with “the simple contention that it is no sense a necessary truth that laws reproduce or satisfy certain demands of morality, though in fact they have often done so” (1994, pp. 185-86). Many other philosophers, encouraged also by the title of Hart's famous essay, “Positivism and the Separation of Law and Morals,” (1958) treat the theory as the denial that there is a necessary connection between law and morality -- they must be in some sense “separable” even if not in fact separate (Coleman, 1982). The separability thesis is generally construed so as to tolerate any contingent connection between morality and law, provided only that it is conceivable that the connection might fail. Thus, the separability thesis is consistent with all of the following: (i) moral principles are part of the law; (ii) law is usually, or even always in fact, valuable; (iii) the best explanation for the content of a society's laws includes reference to the moral ideals current in that society; and (iv) a legal system cannot survive unless it is seen to be, and thus in some measure actually is, just. All four claims are counted by the separability thesis as contingent connections only; they do not hold of all possible legal systems -- they probably don't even hold of all historical legal systems. As merely contingent truths, it is imagined that they do not affect the concept of law itself. (This is a defective view of concept-formation, but we may ignore that for these purposes.) If we think of the positivist thesis this way, we might interpret the difference between exclusive and inclusive positivism in terms of the scope of the modal operator: (EP) It is necessarily the case that there is no connection between law and morality. (IP) It is not necessarily the case that there is a connection between law and morality. In reality, however, legal positivism is not to be identified with either thesis and each of them is false. There are many necessary “connections,” trivial and non-trivial, between law and morality. As John Gardner notes, legal positivism takes a position only one of them, it rejects any dependence of the existence of law on its merits (Gardner 2001). And with respect to this dependency relation, legal positivists are concerned with much more than the relationship between law and morality, for in the only sense in which they insist on a separation of law and morals they must insist also--and for the same reasons--on a separation of law and economics. To exclude this dependency relation, however, is to leave intact many other interesting possibilities. For instance, it is possible that moral value derives from the sheer existence of law (Raz 1990, 16570) If Hobbes is right, any order is better than chaos and in some circumstances order may be achievable only through positive law. Or perhaps in a Hegelian way every existing legal system expresses deliberate governance in a world otherwise dominated by chance; law is the spirit of the community come to self-consciousness. Notice that these claims are consistent with the fallibility thesis, for they do not deny that these supposedly good things might also bring evils, such as too much order or the will to power. Perhaps such derivative connections between law and morality are thought innocuous on the ground that they show more about human nature than they do about the nature of law. The same cannot be said of the following necessary connections between law and morality, each of which goes right to the heart of our concept of law: (1) Necessarily, law deals with moral matters. Kelsen writes, “Just as natural and positive law govern the same subject-matter, and relate, therefore, to the same norm-object, namely the mutual relationships of men -- so both also have in common the

universal form of this governance, namely obligation.” (Kelsen 1928, p. 34) This is a matter of the content of all legal systems. Where there is law there is also morality, and they regulate the same matters by analogous techniques. Of course to say that law deals with morality's subject matter is not to say that it does so well, and to say that all legal systems create obligations is not to endorse the duties so created. This is broader than Hart's “minimum content” thesis according to which there are basic rules governing violence, property, fidelity, and kinship that any legal system must encompass if it aims at the survival of social creatures like ourselves (Hart 1994, pp. 193-200). Hart regards this as a matter of “natural necessity” and in that measure is willing to qualify his endorsement of the separability thesis. But even a society that prefers national glory or the worship of gods to survival will charge its legal system with the same tasks its morality pursues, so the necessary content of law is not dependent, as Hart thinks it is, on assuming certain facts about human nature and certain aims of social existence. He fails to notice that if human nature and life were different, then morality would be too and if law had any role in that society, it would inevitably deal with morality's subject matter. Unlike the rules of a health club, law has broad scope and reaches to the most important things in any society, whatever they may be. Indeed, our most urgent political worries about law and its claims flow from just this capacity to regulate our most vital interests, and law's wide reach must figure in any argument about its legitimacy and its claim to obedience. (2) Necessarily, law makes moral claims on its subjects. The law tells us what we must do, not merely what it would be virtuous or advantageous to do, and it requires us to act without regard to our individual self-interest but in the interests of other individuals, or in the public interest more generally (except when law itself permits otherwise). That is to say, law purports to obligate us. But to make categorical demands that people should act in the interests of others is to make moral demands on them. These demands may be misguided or unjustified for law is fallible; they may be made in a spirit that is cynical or half-hearted; but they must be the kind of thing that can be offered as, and possibly taken as, obligation-imposing requirements. For this reason neither a regime of “stark imperatives” (see Kramer, pp. 83-9) nor a price system would be a system of law, for neither could even lay claim to obligate its subjects. As with many other social institutions, what law, though its officials, claims determines its character independent of the truth or validity of those claims. Popes, for example, claim apostolic succession from St. Peter. The fact that they claim this partly determines what it is to be a Pope, even if it is a fiction, and even the Pope himself doubts its truth. The nature of law is similarly shaped by the selfimage it adopts and projects to its subjects. To make moral demands on their compliance is to stake out a certain territory, to invite certain kinds of support and, possibly, opposition. It is precisely because law makes these claims that doctrines of legitimacy and political obligation take the shape and importance that they do.

(3) Necessarily, law is justice-apt. In view of the normative function of law in creating and enforcing obligations and rights, it always makes sense to ask whether law is just, and where it is found deficient to demand reform. Legal systems are therefore the kind of thing that is apt for appraisal as just or unjust. This is a very significant feature of law. Not all human practices are justice-apt. It makes no sense to ask whether a certain fugue is just or to demand that it become so. The musical standards of fugal excellence are preeminently internal -- a good fugue is a good example of its genre; it should be melodic, interesting, inventive etc. -- and the further we get from these internal standards the less secure evaluative judgments about it become. While some formalists flirt with similar ideas about law, this is in fact inconsistent with law's place amongst human practices. Even if law has internal standards

of merit -- virtues uniquely its own that inhere in its law-like character -- these cannot preclude or displace its assessment on independent criteria of justice. A fugue may be at its best when it has all the virtues of fugacity; but law is not best when it excels in legality; law must also be just. A society may therefore suffer not only from too little of the rule of law, but also from too much of it. This does not presuppose that justice is the only, or even the first, virtue of a legal system. It means that our concern for its justice as one of its virtues cannot be sidelined by any claim of the sort that law's purpose is to be law, to its most excellent degree. Law stands continuously exposed to demands for justification, and that too shapes its nature and role in our lives and culture. These three theses establish connections between law and morality that are both necessary and highly significant. Each of them is consistent with the positivist thesis that the existence and content of law depends on social facts, not on its merits. Each of them contributes to an understanding of the nature of law. The familiar idea that legal positivism insists on the separability of law and morality is therefore significantly mistaken. 4.3 The Neutrality Thesis The necessary content thesis and the justice-aptitude thesis together establish that law is not valueneutral. Although some lawyers regard this idea as a revelation (and others as provocation) it is in fact banal. The thought that law could be value neutral does not even rise to falsity -- it is simply incoherent. Law is a normative system, promoting certain values and repressing others. Law is not neutral between victim and murderer or between owner and thief. When people complain of the law's lack of neutrality, they are in fact voicing very different aspirations, such as the demand that it be fair, just, impartial, and so forth. A condition of law's achieving any of these ideals is that it is not neutral in either its aims or its effects. Positivism is however sometimes more credibly associated with the idea that legal philosophy is or should be value-neutral. Kelsen, for example, says, “the function of the science of law is not the evaluation of its subject, but its value-free description” (1967, p. 68) and Hart at one point described his work as “descriptive sociology” (1994, p. v). Since it is well known that there are convincing arguments for the ineliminability of values in the social sciences, those who have taken on board Quinian holisms, Kuhnian paradigms, or Foucauldian espistemes, may suppose that positivism should be rejected a priori, as promising something that no theory can deliver. There are complex questions here, but some advance may be made by noticing that Kelsen's alternatives are a false dichotomy. Legal positivism is indeed not an “evaluation of its subject”, i.e., an evaluation of the law. And to say that the existence of law depends on social facts does not commit one to thinking that it is a good thing that this is so. (Nor does it preclude it: see MacCormick and Campbell) Thus far Kelsen is on secure ground. But it does not follow that legal philosophy therefore offers a “value-free description” of its subject. There can be no such thing. Whatever the relation between facts and values, there is no doubt about the relationship between descriptions and values. Every description is value-laden. It selects and systematizes only a subset of the infinite number of facts about its subject. To describe law as resting on customary social rules is to omit many other truths about it including, for example, truths about its connection to the demand for paper or silk. Our warrant for doing this must rest on the view that the former facts are more important than the latter. In this way, all descriptions express choices about what is salient or significant, and these in turn cannot be understood without reference to values. So legal philosophy, even if not directly an evaluation of its subject is nonetheless “indirectly evaluative” (Dickson, 2001). Moreover, “law” itself is an anthropocentric subject, dependent not merely on our sensory embodiment but also, as its necessary connections to morality show, on our moral sense and capacities. Legal kinds such as courts, decisions, and rules will not appear in a purely physical

description of the universe and may not even appear in every social description. (This may limit the prospects for a “naturalized” jurisprudence; though for a spirited defense of the contrary view, see Leiter) It may seem, however, that legal positivism at least requires a stand on the so-called “fact-value” problem. There is no doubt that certain positivists, especially Kelsen, believe this to be so. In reality, positivism may cohabit with a range of views here -- value statements may be entailed by factual statements; values may supervene on facts; values may be kind of fact. Legal positivism requires only that it be in virtue of its facticity rather than its meritoriousness that something is law, and that we can describe that facticity without assessing its merits. In this regard, it is important to bear in mind that not every kind of evaluative statement would count among the merits of a given rule; its merits are only those values that could bear on its justification. Evaluative argument is, of course, central to the philosophy of law more generally. No legal philosopher can be only a legal positivist. A complete theory of law requires also an account of what kinds of things could possibly count as merits of law (must law be efficient or elegant as well as just?); of what role law should play in adjudication (should valid law always be applied?); of what claim law has on our obedience (is there a duty to obey?); and also of the pivotal questions of what laws we should have and whether we should have law at all. Legal positivism does not aspire to answer these questions, though its claim that the existence and content of law depends only on social facts does give them shape.

H.L.A. Hart, "Legal Positivism" from Positivism and the Separation of Law and Morals 71 HARV. L. REV. 593, 594-606 (1958 SOURCED FROM: http://www.kentlaw.edu/classes/rwarner/justice/syllabus/hpositiv.html Editor's Note: H.L.A. Hart was Professor of Jurisprudence in Oxford University from 1952 until 1968. He lectured and taught on many occasions in the United States, and his writings in legal philosophy have been extraordinarily influential.] At the close of the eighteenth century and the beginning of the nineteenth the most earnest thinkers in England about legal and social problems and the architects of great reforms were the great Utilitarians. Two of them, Bentham and Austin, constantly insisted on the need to distinguish, firmly and with the maximum of clarity, law as it is from law as it ought to be. This theme haunts their work, and they condemned the natural-law thinkers precisely because they had blurred this apparently simple but vital distinction. By contrast, at the present time in this country and to a lesser extent in England, this separation between law and morals is held to be superficial and wrong. Some critics have thought that it blinds men to the true nature of law and its roots in social life.(4) Others have thought it not only intellectually misleading but corrupting in practice, at its worst apt to weaken resistance to state tyranny or absolutism, and at its best apt to bring law into disrespect. The nonpejorative name "Legal Positivism," like most terms which are used as missiles in intellectual battles, has come to stand for a baffling multitude of different sins. One of them is the sin, real or alleged, of insisting, as Austin and Bentham did, on the separation of law as it is and law as it ought to be. How then has this reversal of the wheel come about? What are the theoretical errors in this distinction? Have the practical consequences of stressing the distinction as Bentham and Austin did been bad? Should we now reject it or keep it? In considering these questions we should recall the

social philosophy which went along with the Utilitarians' insistence on this distinction. They stood firmly but on their own utilitarian ground for all the principles of liberalism in law and government. No one has ever combined, with such even-minded sanity as the Utilitarians, the passion for reform with respect for law together with a due recognition of the need to control the abuse of power even when power is in the hands of reformers. One by one in Bentham's works you can identify the elements of the Rechtstaat and all the principles for the defense of which the terminology of natural law has in our day been revived. Here are liberty of speech, and of press, the right of association, the need that laws should be published and made widely known before they are enforced, the need to control administrative agencies, the insistence that there should be no criminal liability without fault, and the importance of the principle of legality, nulla poena sine lege. Some, I know, find the political and moral insight of the Utilitarians a very simple one, but we should not mistake this simplicity for superficiality nor forget how favorably their simplicities compare with the profundities of other thinkers. Take only one example: Bentham on slavery. He says the question at issue is not whether those who are held as slaves can reason, but simply whether they suffer. Does this not compare well with the discussion of the question in terms of whether or not there are some men whom Nature has fitted only to be the living instruments of others? We owe it to Bentham more than anyone else that we have stopped discussing this and similar questions of social policy in that form. So Bentham and Austin were not dry analysts fiddling with verbal distinctions while cities burned, but were the vanguard of a movement which laboured with passionate intensity and much success to bring about a better society and better laws. Why then did they insist on the separation of law as it is and law as it ought to be? What did they mean? Let us first see what they said. Austin formulated the doctrine: The existence of law is one thing; its merit or demerit is another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry. A law, which actually exists, is a law, though we happen to dislike it, or though it vary from the text, by which we regulate our approbation and disapprobation. This truth, when formally announced as an abstract proposition, is so simple and glaring that it seems idle to insist upon it. But simple and glaring as it is, when enunciated in abstract expressions, the enumeration of the instances in which it has been forgotten would fill a volume. Sir William Blackstone, for example, says in his "Commentaries," that the laws of God are superior in obligation to all other laws; that no human laws should be suffered to contradict them; that human laws are of no validity if contrary to them; and that all valid laws derive their force from that Divine original. Now, he may mean that all human laws ought to conform to the Divine laws. If this be his meaning, I assent to it without hesitation....Perhaps, again, he means that human lawgivers are themselves obliged by the Divine laws to fashion the laws which they impose by that ultimate standard, because if they do not, God will punish then. To this also entirely assent.... But the meaning of this passage of Blackstone, if it has a meaning, seems rather to be this: that no human law which conflicts with the Divine law is obligatory or binding; in other words, that no human law which conflicts with the Divine law is a law. Austin's protest against blurring the distinction between what law is and what it ought to be is quite general: it is a mistake, whatever our standard of what ought to be, whatever "the text by which we regulate our approbation or disapprobation." His examples, however, are always a confusion between law as it is and law as morality would require it to be. For him, it must be remembered, the fundamental principles of morality were God's commands, to which utility was an "index": besides this there was the actual accepted morality of a social group or "positive" morality.

Bentham insisted on this distinction without characterizing morality by reference to God but only, of course, by reference to the principles of utility. Both thinkers' prime reason for this insistence was to enable men to see steadily the precise issues posed by the existence of morally bad laws, and to understand the specific character of the authority of a legal order. Bentham's general recipe for life under the government of laws was simple: it was "to obey punctually; to censure freely." But Bentham was especially aware, as an anxious spectator of the French revolution, that this was not enough: the time might come in any society when the law's commands were so evil that the qu estion of resistance had to be faced, and it was then essential that the issues at stake at this point should neither be oversimplified nor obscured. Yet, this was precisely what the confusion between law and morals had done and Bentham found that the confusion had spread symmetrically in two different directions. On the one hand Bentham had in mind the anarchist who argues thus: "This ought not to be the law, therefore it is not and I am free not merely to censure but to disregard it." On the other hand he thought of the reactionary who argues: "This is the law, therefore it is what it ought to be," and thus stifles criticism at its birth. Both errors, Bentham thought, were to be found in Blackstone: there was his incautious statement that human laws were invalid if contrary to the law of God, and "that spirit of obsequious quietism that seems constitutional in our Author" which "will scarce ever let him recognise a difference" between what is and what ought to be. This indeed was for Bentham the occupational disease of lawyers: "In the eyes of lawyers not to speak of their dupes that is to say, as yet, the generality of non-lawyers the is and ought to be...were one and indivisible." There are therefore two dangers between which insistence on this distinction will help us to steer: the danger that law and its authority may be dissolved in man's conceptions of what law ought to be and the danger that the existing law may supplant morality as a final test of conduct and so escape criticism. In view of criticisms it is also important to distinguish several things that the Utilitarians did not mean by insisting on their separation of law and morals. They certainly accepted many of the things that might be called "the intersection of law and morals." First, they never denied that, as a matter of historical fact, the development of legal systems had been powerfully influenced by moral opinion, and, conversely, that moral standards had been profoundly influenced by law, so that the content of many legal rules mirrored moral rules or principles. It is not in fact always easy to trace this historical causal connection, but Bentham was certainly ready to admit its existence; so too Austin spoke of the "frequent coincidence"of positive law and morality and attributed the confusion of what law is with what law ought to be to this very fact. Secondly, neither Bentham nor his followers denied that by explicit legal provisions moral principles might at different points be brought into a legal system and form part of its rules, or that courts might be legally bound to decide in accordance with what they thought just or best. Bentham indeed recognized, as Austin did not, that even the supreme legislative power might be subjected to legal restraints by a constitution and would not have denied that moral principles, like those of the fifth amendment, might form the content of such legal constitutional restraints. Austin differed in thinking that restraints on the supreme legislative power could not have the force of law, but would remain merely political or moral checks; but of course he would have recognized that a statute, for example, might confer a delegated legislative power and restrict the area of its exercise by reference to moral principles. What both Bentham and Austin were anxious to assert were the following two simple things: first, in the absence of an expressed constitutional or legal provision, it could not follow from the mere fact that a rule violated standards of morality that it was not a rule of law; and, conversely, it could not follow from the mere fact that a rule was morally desirable that it was a rule of law.

The history of this simple doctrine in the nineteenth century is too long and too intricate to trace here. Let me summarize it by saying that after it was propounded to the world by Austin it dominated English jurisprudence and constitutes part of the framework of most of those curiously English and perhaps unsatisfactory productions the omnibus surveys of the whole field of jurisprudence. A succession of these were published after a full text of Austin's lectures finally appeared in 1861. In each of them the utilitarian separation of law and morals is treated as something that enables lawyers to attain a new clarity. Austin was said by one of his English successors, Amos, "to have delivered the law from the dead body of morality that still clung to it"; and even Maine, who was critical of Austin at many points, did not question this part of his doctrine. In the United States men like N. St. John Green, Gray, and Holmes considered that insistence on this distinction had enabled the understanding of law as a means of social control to get off to a fruitful new start; they welcomed it both as self-evident and as illuminating as a revealing tautology. This distinction is, of course, one of the main themes of Holmes' most famous essay "The Path of the Law," but the place it had in the estimation of these American writers is best seen in what Gray wrote at the turn of the century in The Nature and Sources of the Law. He said: The great gain in its fundamental conceptions which Jurisprudence made during the last century was the recognition of the truth that the Law of a State...is not an ideal, but something which actually exists....[I]t is not that which ought to be, but that which is. To fix this definitely in the Jurisprudence of the Common Law, is the feat that Austin accomplished. So much for the doctrine in the heyday of its success. Let us turn now to some of the criticisms. * * * There is, however, one major initial complexity by which criticism has been much confused. We must remember that the Utilitarians combined with their insistence on the separation of law and morals two other equally famous but distinct doctrines. One was the important truth that a purely analytical study of legal concepts, a study of the meaning of the distinctive vocabulary of the law, was as vital to our understanding of the nature of law as historical or sociological studies, though of course it could not supplant them. The other doctrine was the famous imperative theory of law that law is essentially a command. These three doctrines constitute the utilitarian tradition in jurisprudence; yet they are distinct doctrines. It is possible to endorse the separation between law and morals and to value analytical inquiries into the meaning of legal concepts and yet think it wrong to conceive of law as essentially a command. One source of great confusion in the criticism of the separation of law and morals was the belief that the falsity of any one of these three doctrines in the utilitarian tradition showed the other two to be false; what was worse was the failure to see that there were three quite separate doctrines in this tradition. The indiscriminate use of the label "positivism" to designate ambiguously each of these three separate doctrines (together with some others which the Utilitarians never professed) has perhaps confused the issue more than any other single factor. Some of the early American critics of the Austinian doctrine were, however, admirably clear on just this matter. Gray, for example, added at the end of the tribute to Austin, which I have already quoted, the words, "He may have been wrong in treating the Law of the State as being the command of the sovereign" and he touched shrewdly on many points where the command theory is defective. But other critics have been less clearheaded and have thought that the inadequacies of the command theory which gradually came to light were sufficient to demonstrate the falsity of the separation of law and morals. This was a mistake, but a natural one. To see how natural it was we must look a little more closely at the command idea. The famous theory that law is a command was a part of a wider and more ambitious claim. Austin said that the notion of a command was "the key to the sciences of jurisprudence and morals," and contemporary attempts to elucidate moral judgments in terms of "imperative" or "prescriptive" utterances echo this ambitious claim. But the command theory, viewed as an effort to identify even the quintessence of law, let alone the quintessence of morals, seems

breathtaking in its simplicity and quite inadequate. There is much, even in the simplest legal system, that is distorted if presented as a command. Yet the Utilitarians thought that the essence of a legal system could be conveyed if the notion of a command were supplemented by that of a habit of obedience. The simple scheme was this: What is a command? It is simply an expression by one person of the desire that another person should do or abstain from some action, accompanied by a threat of punishment which is likely to follow disobedience. Commands are laws if two conditions are satisfied: first, they must be general; second, they must be commanded by what (as both Bentham and Austin claimed) exists in every political society whatever its constitutional form, namely, a person or a group of persons who are in receipt of habitual obedience from most of the society but pay no such obedience to others. These persons are its sovereign. Thus law is the command of the uncommanded commanders of societythe creation of the legally untrammelled will of the sovereign who is by definition outside the law. It is easy to see that this account of a legal system is threadbare. One can also see why it might seem that its inadequacy is due to the omission of some essential connection with morality. The situation which the simple trilogy of command, sanction, and sovereign avails to describe, if you take these notions at all precisely, is like that of a gunman saying to his victim, "Give me your money or your life." The only difference is that in the case of a legal system the gunman says it to a large number of people who are accustomed to the racket and habitually surrender to it. Law surely is not the gunman situation writ large, and legal order is surely not to be thus simply identified with compulsion. This scheme, despite the points of obvious analogy between a statute and a command, omits some of the most characteristic elements of law. Let me cite a few. It is wrong to think of a legislature (and a fortiori an electorate) with a changing membership, as a group of persons habitually obeyed: this simple idea is suited only to a monarch sufficiently long-lived for a "habit" to grow up. Even if we waive this point, nothing which legislators do makes law unless they comply with fundamental accepted rules specifying the essential lawmaking procedures. This is true even in a system having a simple unitary constitution like the British. These fundamental accepted rules specifying what the legislature must do to legislate are not commands habitually obeyed, nor can they be expressed as habits of obedience to persons. They lie at the root of a legal system, and what is most missing in the utilitarian scheme is an analysis of what it is for a social group and its officials to accept such rules. This notion, not that of a command as Austin claimed, is the "key to the science of jurisprudence," or at least one of the keys. Again, Austin, in the case of the democracy, looked past the legislators to the electorate as "the sovereign" (or in England as part of it). He thought that in the United States the mass of the electors to the state and federal legislatures were the sovereign whose commands, given by their "agent" in the legislatures, were law. But on this footing the whole notion of the sovereign outside the law being "habitually obeyed" by the "bulk" of the population must go: for in this case the "bulk" obeys the bulk, that is, it obeys itself. Plainly the general acceptance of the authority of a lawmaking procedure, irrespective of the changing individuals [29]who operate it from time to time, can be only distorted by an analysis in terms of mass habitual obedience to certain persons who are by definition outside the law, just as the cognate but much simpler phenomenon of the general social acceptance of a rule, say of taking off the hat when entering a church, would be distorted if represented as habitual obedience by the mass to specific persons. Other critics dimly sensed a further and more important defect in the command theory, yet blurred the edge of an important criticism by assuming that the defect was due to the failure to insist upon some important connection between law and morals. This more radical defect is as follows. The picture that the command theory draws of life under law is essentially a simple relationship of the commander to the commanded, of superior to inferior, of top to bottom; the relationship is vertical between the commanders or authors of the law conceived of as essentially outside the law and those

who are commanded and subject to the law. In this picture no place, or only an accidental or subordinate place, is afforded for a distinction between types of legal rules which are in fact radically different. Some laws require men to act in certain ways or to abstain from acting whether they wish to or not. The criminal law consists largely of rules of this sort: like commands they are simply "obeyed" or "disobeyed." But other legal rules are presented to society in quite different ways and have quite different functions. They provide facilities more or less elaborate for individuals to create structures of rights and duties for the conduct of life within the coercive framework of the law. Such are the rules enabling individuals to make contracts, wills, and trusts, and generally to mould their legal relations with others. Such rules, unlike the criminal law, are not factors designed to obstruct wishes and choices of an antisocial sort. On the contrary, these rules provide facilities for the realization of wishes and choices. They do not say (like commands) "do this whether you wish it or not," but rather "if you wish to do this, here is the way to do it." Under these rules we exercise powers, make claims, and assert rights. These phrases mark off characteristic features of laws that confer rights and powers; they are laws which are, so to speak, put at the disposition of individuals in a way in which the criminal law is not. Much ingenuity has gone into the task of "reducing" laws of this second sort to some complex variant of laws of the first sort. The effort to show that laws conferring rights are "really" only conditional stipulations of sanctions to be exacted from the person ultimately under a legal duty characterizes much of Kelsen's work.(28) Yet to urge this is really just to exhibit dogmatic determination to suppress one aspect of the legal system in order to maintain the theory that stipulation of a sanction, like Austin's command, represents the quintessence of law. One might as well urge that the rules of baseball were "really" only complex conditional directions to the scorer and that this showed their real or "essential" nature. * * * * * * Rules that confer rights, though distinct from commands, need not be moral rules or coincide with them. Rights, after all, exist under the rules of cere-[30]monies, games, and in many other spheres regulated by rules which are irrelevant to the question of justice or what the law ought to be. Nor need rules which confer rights be just or morally good rules. The rights of a master over his slaves show us that. "Their merit or demerit," as Austin termed it, depends on how rights are distributed in society and over whom or what they are exercised. These critics indeed revealed the inadequacy of the simple notions of command and habit for the analysis of law; at many points it is apparent that the social acceptance of a rule or standard of authority (even if it is motivated only by fear or superstition or rests on inertia) must be brought into the analysis and cannot itself be reduced to the two simple terms. Yet nothing in this showed the utilitarian insistence on the distinction between the existence of law and its "merits" to be wrong. Notes 1. Hart's critique of the command theory of Austin, and the related theory of Hans Kelsen, focuses on the functional character of a command and its relation to the notion of a sovereign, rather than on the coercive power of the state that, according to the earlier theorists, was a crucial part of what made such commands law and distinguished them from other non-law directives. Why might the earlier positivists have cared so much about defining law so as to emphasize its coercive character? Does the use of state coercion raise special moral considerations? Does defining the law in terms of state coercion serve to isolate those considerations? See Dale Nance, Legal Theory and the Pivotal Role of the Concept of Coercion, 57 U. COLO. L. REV. 1 (1985). 2. If one concedes that the law as it is may diverge from law as it ought to be, then one needs terminology for referring to each idea. When we say, "The law requires X," we are ordinarily making a reference to the law "as it is." In these materials, we will generally have this reference in mind when using the word "law" without more. Yet it is frequently useful to refer to the other idea, the

"law as it ought to be." The ancient Greek philosopher Aristotle seems to have used the term "justice" for this idea, meaning that aspect of morality (or what Aristotle would call virtue) which ought to be reflected in the law. Yet it is arguable that, all things considered, the law should not always satisfy or enforce the demands of justice (Can you think of examples?), so the identification seems imprecise. The eighteenth century German philosopher Immanuel Kant seems to have used the term "right" to refer to that part of morality which should be reflected in the law. But similar problems arise, since one can imagine moral rights that ought not to be made legal rights. (Again, can you think of examples?) In order to avoid linguistic disputes, perhaps we should be content with a term like "ideal law" to refer to the law as it ought to be, recognizing that what is ideal may not be the same for all societies at all times; indeed, there may be no unique ideal law for any given society at any given time. In subsequent Parts of these materials, we will examine some of what can be said in characterizing ideal law, at least in American society. 3. Professor Hart clearly distinguishes between utilitarianism and legal positivism, even though these views were both held by people like Austin and Bentham. Whereas positivism is a theory about the nature of law, that is a legal theory, utilitarianism is one form of moral theory. As Hart notes, utilitarian arguments can be used, and have been used, to criticize existing law, to indicate in what respects extant law differs from the ideal. But utilitarianism is not the only such form of moral theory. In particular, it has been challenged as giving too little weight to the notion of individual rights. To generalize, three types of moral argument can be identified. First, there are consequentialist (also called teleological) modes of argument, such as utilitarianism, in which moral duty is derived entirely from the goodness or badness of the consequences of action. Second, there are nonconsequentialist (also called deontological) modes, such as some arguments from "natural rights," in which moral duty is derived in some way that does not depend on the appraisal of the material consequences of accepting the argument, but rather on the inherent rightness or wrongness of the conduct in question. ("One ought to honor one's promise, even if that doesn't produce the best possible consequences.") Much modern philosophical debate has addressed the question of the priority of these two modes of moral thought. Especially prominent have been hypotheticals specifically designed to generate a conflict in the prescriptions that may be derived from utilitarian and rights-based approaches. They are usually some variation on the theme of what to do when you are faced with a situation in which intentionally killing an innocent person will result in the saving of many others. For example: Suppose you are the driver of a trolley. The trolley rounds a bend, and there come into view ahead five track workmen, who have been repairing the track. The track goes through a bit of a valley at that point, and the sides are steep, so you must stop the trolley if you are to avoid running the five men down. You step on the brakes, but alas they don't work. Now you suddenly see a spur of track leading off to the right. You can turn the trolley onto it, and thus save the five men on the straight track ahead. Unfortunately,...there is one track workman on that spur of track. He can no more get off the track in time than the five can, so you will kill him if you turn the trolley onto him. Is it morally permissible [or required] for you to turn the trolley? Judith Jarvis Thomson, The Trolley Problem, 94 YALE L.J. 1395 (1985). Finally, there are what may be called "mixed" or "hybrid" modes of argument which try to combine the strengths of both consequentialist and nonconsequentialist analyses, allowing a place for each. For example, it has been suggested that the different modes of argument can be seen as different but complementary ways of checking and testing our moral intuitions against historically observed practices and conventions? See Randy Barnett, Foreword: Of Chickens and EggsThe Compatibility of Moral Rights and Consequentialist Analyses, 12 HARV. J.L. & PUB. POL'Y 611 (1989).

Which mode of argument do you find most acceptable, the consequentialist, the nonconsequentialist, or a mixture? It is all too easy to opt for the mixed mode; bear in mind that many philosophers have found consequentialism and deontology to be fundamentally incompatible. You will have many occasions to think about these issues in the following materials. 4. What does it mean for a judge to accept positivism? How might a judge reason about his or her responsibilities in deciding a case if the judge accepts positivism? How does Justice Story's opinion in Prigg illustrate the issues? Did Story employ any moral theory in deciding the case? If so, was it utilitarian, or deontological, or

HANS KELSEN The Pure Theory of Law SOURCED FROM: http://plato.stanford.edu/entries/legal-positivism/ The idea of a Pure Theory of Law was propounded by the formidable Austrian jurist and philosopher Hans Kelsen (1881-1973). (See bibliographical note) Kelsen began his long career as a legal theorist at the beginning of the 20 th century. The traditional legal philosophies at the time, were, Kelsen claimed, hopelessly contaminated with political ideology and moralizing on the one hand, or with attempts to reduce the law to natural or social sciences, on the other hand. He found both of these reductionist endeavors seriously flawed. Instead, Kelsen suggested a ‘pure’ theory of law which would avoid reductionism of any kind. The jurisprudence Kelsen propounded “characterizes itself as a ‘pure’ theory of law because it aims at cognition focused on the law alone” and this purity serves as its “basic methodological principle.” [PT1, 7] Note that this anti-reductionism is both methodological and substantive. Kelsen firmly believed that if the law is to be considered as a unique normative practice, methodological reductionism should be avoided entirely. But this approach is not only a matter of method. Reductionism should be avoided because the law is a unique phenomenon, quite separate from morality and nature. 1. The Basic Norm The law, according to Kelsen, is a system of norms. Norms are ‘ought’ statements, prescribing certain modes of conduct. Unlike moral norms, however, Kelsen maintained that legal norms are created by acts of will. They are products of deliberate human action. For instance, some people gather in a hall, speak, raise their hands, count them, and promulgate a string of words. These are actions and events taking place at a specific time and space. To say that what we have described here is the enactment of a law, is to interpret these actions and events by ascribing a normative significance to them. Kelsen, however, firmly believed in Hume's distinction between ‘is’ and ‘ought’, and in the impossibility of deriving ‘ought’ conclusions from factual premises alone. Thus Kelsen believed that the law, which is comprised of norms or ‘ought’ statements, cannot be reduced to those natural actions and events which give rise to it. The gathering, speaking and raising of hands, in itself, is not the law; legal norms are essentially ‘ought’ statements, and as such, they cannot be deduced from factual premises alone. How is it possible, then, to ascribe an ‘ought’ to those actions and events which purport to create legal norms? Kelsen's reply is enchantingly simple: we ascribe a legal ought to such norm-creating acts by, ultimately, presupposing it. Since ‘ought’ cannot be derived from ‘is’, and since legal norms are essentially ‘ought’ statements, there must be some kind of an ‘ought’ presupposition at the background, rendering the normativity of law intelligible.

As opposed to moral norms which, according to Kelsen, are typically deduced from other moral norms by syllogism (e.g., from general principles to more particular ones), legal norms are always created by acts of will. Such an act can only create law, however, if it is in accord with another ‘higher’ legal norm that authorizes its creation in that way. And the ‘higher’ legal norm, in turn, is valid only if it has been created in accordance with yet another, even ‘higher’ legal norm that authorizes its enactment. Ultimately, Kelsen argued, one must reach a point where the authorizing norm is no longer the product of an act of will, but is simply presupposed, and this is, what Kelsen called, the Basic Norm. More concretely, Kelsen maintained that in tracing back such a ‘chain of validity’ (to use Raz's terminology), one would reach a point where a ‘first’ historical constitution is the basic authorizing norm of the rest of the legal system, and the Basic Norm is the presupposition of the validity of that first constitution. Kelsen attributed two main explanatory functions to the Basic Norm: it explains both the unity of a legal system and the reasons for the legal validity of norms. [PT2, 193] Apparently, Kelsen believed that these two ideas are very closely related, since he seems to have maintained that the legal validity of a norm and its membership in a given legal system are basically the same thing. Furthermore, Kelsen argued that every two norms which derive their validity from a single Basic Norm necessarily belong to the same legal system and, vice versa, so that all legal norms of a given legal system derive their validity from one Basic Norm. It is widely acknowledged that Kelsen erred in these assumptions about the unity of legal systems. Generally speaking, in spite of the considerable interest in Kelsen's theory of legal systems and their unity that derives from a single Basic Norm, critics have shown that this aspect of Kelsen's theory is refutable. Although it is certainly true that the law always comes in systems, the unity of the system and its separation from other systems is almost never as neat as Kelsen assumed. [see Raz, ‘Kelsen's Theory of the Basic Norm’.] However, the role of the Basic Norm in explaining the normativity of law is crucially important. The presupposition of the Basic Norm as the condition of validity of legal norms marks Kelsen's theory as ‘pure’, and distinguishes it from other theories in the Legal Positivist tradition. Contemporary legal positivists have traditionally accounted for the normativity of law in terms of social facts: people tend to perceive of the legal norms in their community as valid because, ultimately, there are certain social conventions, or Rules of Recognition in H.L.A. Hart's terminology, that determine who is authorized to make law and how law making is to be done. But this is precisely the kind of reductionism that the Pure Theory strives to deny. Kelsen was convinced that any attempt to ground the law's normativity, namely, its ‘ought’ aspect, is doomed to failure if it is only based on facts, whether those facts are natural or social. Once again, to account for an ‘ought’ conclusion, one needs some ‘ought’ in the premises. Therefore, Kelsen thought, the normativity of law, as a genuine ‘ought’, must, ultimately, be presupposed. Common wisdom has it that in this kind of reasoning Kelsen self-consciously employs a Kantian Transcendental argument to establish the necessary presupposition of the Basic Norm. Thus the argument takes the following form: 1.

P.

2.

P is possible only if Q.

3.

Therefore, Q.

In Kelsen's case, P stands for the fact that legal norms are ‘ought’ statements, and Q is the presupposition of the Basic Norm. [PT2, 202]. Furthermore, commentators have pointed out that just as Kant's epistemology is an attempt to find the middle way between dogmatic Rationalism and skeptical Empiricism, Kelsen's pure theory of law is an attempt to find a middle way between

Natural Law's dogmatism, and Positivism's reduction of law to the social sciences. [See Paulson, Introduction] But it is worth keeping in mind that Kelsen's argument about the Basic Norm is an explicitly shallow form of Kantian epistemology. The Kantian categories and modes of perception are not optional; they form a deep, universal, and necessary feature of rational cognition. One should recall that it is Humean skepticism that Kant strove to answer. Kelsen, however, remains Humean through and through, Kantian influences notwithstanding. First, Kelsen was very skeptical about any objectivist moral theory, Kant's included. [PT1, 16; PT2, 63-65] Second, Kelsen does not claim that the presupposition of the Basic Norm is a necessary feature, or category, of rational cognition. The Basic Norm is an ‘ought’ presumption and, as such, optional. It is not necessary for anyone to accept the Basic Norm. The Basic Norm is necessarily presupposed only by those who accept the ‘ought’, namely, the normativity, of the law. Likewise, those who believe in the normativity of a religious order must presuppose a Basic Norm that ‘one ought to obey God's commands’. But in both cases, there is nothing in the nature of things which would compel any particular person to adopt such a normative perspective. Kelsen's argument does not rule out atheism or anarchism. However, even the anarchist, Kelsen maintained, must presuppose the Basic Norm if she is to account for the normativity of law. But again, this presupposition is only an intellectual tool, not a normative commitment, and as the latter, it is entirely optional. 2. The Normativity of Law This analogy between law and religion, on which Kelsen often dwells, is more limited than it first appears, however. The normativity of religion, like that of morality, does not depend on the actual obedience of their respective subjects. For those, for example, who presuppose the basic norm of Christianity, the latter would be valid even if there are no other Christians around. But this, as Kelsen explicitly admits, is not the case with law. The validity of a legal system partly, but crucially, depends on its actual practice: “A legal order is regarded as valid, if its norms are by and large effective (that is, actually applied and obeyed).” [PT2, 212] Furthermore, the actual content of the Basic Norm depends on its ‘effectiveness’. As Kelsen repeatedly argued, a successful revolution brings about a radical change in the content of the Basic Norm. Suppose, for example, that in a given legal system the Basic Norm is that the constitution enacted by Rex One is binding. At a certain point, a coup d'etat takes place and a republican government is successfully installed. At this point, Kelsen admits, “one presupposes a new basic norm, no longer the basic norm delegating law making authority to the monarch, but a basic norm delegating authority to the revolutionary government.” [PT1, 59]. This is very problematic, however, since it raises the suspicion that Kelsen has violated his own categorical injunction against deriving ‘ought’ from ‘is’. Kelsen was not unaware of the difficulty. In the first edition of the Pure Theory of Law, he suggests the solution to this problem by introducing international law as the source of validity for changes in the basic norms of municipal legal systems. It follows from the basic norm of international law, Kelsen maintains, that state sovereignty is determined by successful control over a given territory. Therefore, the changes in the basic norm which stem from successful revolutions can be accounted for in legalistic terms, relying on the dogmas of international law. [PT1, 61-62] The price Kelsen had to pay for this solution, however, is rather high: he was compelled to claim that all municipal legal systems derive their validity from international law, and this entails that there is only one Basic Norm in the entire world, namely, the Basic Norm of public international law. Although this solution is repeated in the second edition of the Pure Theory of Law [214-215], Kelsen presented it there with much more hesitation, perhaps just as an option which would make sense. It is not quite clear whether Kelsen really adhered to it. The hesitation is understandable; after all, the idea that municipal legal systems derive their legal validity from international law would strike most jurists and legal historians as rather fanciful and

anachronistic. (We should recall that the development of international law is a relatively recent phenomenon in the history of law.) So we are back to the question of how ‘pure’ Kelsen's theory really is, if it is conceded that the content of the Basic Norm is basically determined by social practice. The answer depends on how we construe the explanatory function of the Basic Norm: Neither Kelsen nor his critics seem to have been careful to distinguish between the role of the Basic Norm in answering the question of how we identify the law as such, and in answering the question of law's normativity. An answer to the question of what counts as law or as law creating acts in a given community cannot be detached from practice, namely, social conventions. The social conventions prevalent in any given community determine, ultimately, what counts as law in that community. (See the Nature of Law) On the other hand, Kelsen is right to insist that social conventions, by themselves, could not explain the ‘ought’ which is inherent in law as a normative system. Such an ‘ought’ cannot be constituted by the conventions. Social conventions can only determine what the practice is, and how one would go about in engaging in it; conventions cannot determine that one ought to engage in the practice. [see Marmor, Positive Law & Objective Values, 25-33] Consider, for example, the analogy of a structured game, like chess. What chess is, and how one should play the game, are determined by its constitutive rules or conventions. Those rules which constitute the game of chess, however, cannot provide anyone with a complete reason to play the game. The normativity of the game is conditional; it depends on a prior reason, or commitment, to play the game. We cannot say, for example, that one “ought to move the bishop diagonally” unless we assume that the agent wants to play chess. The fact that the rules of chess require the players to move the bishop diagonally is not, in itself, a reason for doing so, unless, again, it is assumed that it is chess that one wants to play. Now, it is precisely this kind of assumption that the Basic Norm is there to capture. Just as the normativity of chess could not be explained without presupposing, as it were, that the players want to engage in that particular game, so the normativity of law must be premised on the Basic Norm. Thus, it would seem that Kelsen's anti-reductionism is only partly successful. The explanatory role of the Basic Norm must be confined to the normativity of law. But in order to explain what counts as law and how law is identified and distinguished from other normative practices, the Basic Norms is not sufficient; one must refer to the social conventions which prevail in the relevant community. None of this means, however, that Kelsen's account of the normativity of law is unproblematic. There are two main problems that may be worth exploring. First, Kelsen has never made it quite clear whether he maintains that the ‘ought’ which is presupposed in the legal domain is the same kind of ‘ought’ which would be characteristic of morality or, indeed, any other normative domain. Kelsen seems to have faced a dilemma here which would not be easy to resolve. On the one hand, he wanted to avoid the mistake which he attributed to the Natural Law tradition of reducing the normativity of law to moral ‘ought’. Kelsen has repeatedly argued that Natural Law, which would reduce the legal ‘ought’ to moral ‘ought’ fails because it can only achieve an account of the normativity of law at the expense of missing its target: If the only notion of validity is a moral one, we are left with no room for the concept of legal validity. Natural Law, as Kelsen understood it, does not make any allowance for the possibility that a norm is legally valid but morally wrong. Would this imply, then, that the kind of ‘ought’ which is presupposed by the Basic Norm is somehow different from moral ‘ought’? And what would the difference consist in? One should bear in mind that Kelsen thought that the normativity of morality, like that of religion or any other normative domain, is also ‘presupposed’. So here is the dilemma: either Kelsen maintains that the legal ‘ought’ and moral ‘ought’ are two different kinds of ‘ought’ (which, I think, is the stance he adopted in his earlier writings), but then it would be very difficult to explain what the difference consists in, given that both kinds of ‘ought’ are simply presupposed; or else, Kelsen would have to maintain that the moral

and legal ‘ought’ are basically the same, in which case, he would be hard pressed to explain how he avoids the same kind of mistake which he attributed to the Natural Law tradition. Secondly, and perhaps this is part of the reason for the former confusion, Kelsen's account of the normativity of law is seriously impeded by his Humean skepticism about the objectivity of morality, justice, or any other evaluative scheme. The view one gets, especially from Kelsen's later writings, is that there are countless potential normative systems, like morality, law, religion, etc., that one can either accept or not just by presupposing their respective Basic Norms. But without any rational or objective grounding of such evaluative systems, the choice of any Basic Norm remains rather whimsical, devoid of any reason. It is difficult to understand how normativity can really be explained on the basis of such rationally groundless choices. Bibliography Note Kelsen's academic publications span over almost seven decades in which he published dozens of books and hundreds of articles. Only about a third of this vast literature has been translated to English. Kelsen's two most important books on the pure theory of law are the first edition of his Reine Rechtslehre, published in 1934, and recently translated to English under the title Introduction to the Problems of Legal Theory, (Paulson and Paulson trans.) Oxford 2002, and the second edition which Kelsen published in 1960, Pure Theory of Law, (Knight trans.), UC Berkeley press, 1967. The second edition is a considerably extended version of the first edition. These books are abbreviated in the test as PT1 and PT2 respectively. In addition, most of the themes in these two books also appear in Kelsen's General Theory of Law and State, (1945), (Wedberg trans.), Russell & Russell, NY 1961 and What is Justice?, UC Berkeley Press, 1957. Other relevant publications in English include ‘The Pure Theory of Law and Analytical Jurisprudence’, 55 Harvard L. Rev. (1941), 44, ‘Professor Stone and the Pure Theory of Law: A Reply’, (1965), 17 Stanford L. Rev. 1128, and ‘On the Pure Theory of Law’ (1966), 1 Israel L. Rev. 1. For a complete list of Kelsen's publications which have appeared in English see the Appendix to H. Kelsen, General Theory of Norms (M. Hartney trans.) Oxford, 1991, pp. 440-454. JOHN AUSTIN SOURCED FORM: http://plato.stanford.edu/entries/austin-john/ John Austin is considered by many to be the creator of the school of analytical jurisprudence, as well as, more specifically, the approach to law known as "legal positivism." Austin's particular command theory of law has been subject to pervasive criticism, but its simplicity gives it an evocative power that cannot be ignored. 1. Life John Austin's life (1790-1859) was filled with disappointment and unfulfilled expectations. His influential friends (who included Jeremy Bentham, James Mill, John Stuart Mill and Thomas Carlyle) were impressed by his intellect and his conversation, and predicted he would go far. However, in public dealings, Austin's nervous disposition, shaky health, tendency towards melancholy, and perfectionism combined to end quickly careers at the Bar, in academia, and in government service. (Hamburger 1985, 1992) Austin was born to a Suffolk merchant family, and served briefly in the military before beginning his legal training. He was called to the Bar in 1818, but he took on few cases, and quit the practice of law in 1825. Austin shortly thereafter obtained an appointment to the first Chair of Jurisprudence at the recently established University College London. He prepared for his lectures by study in Bonn,

and evidence of the influence of continental legal and political ideas can be found scattered throughout Austin's writings. Lectures from the course he gave were eventually published in 1832 as "Province of Jurisprudence Determined." (Austin 1995) However, attendance at his courses was small and getting smaller, and he gave his last lecture in 1833. A short-lived effort to give a similar course of lectures at the Inner Temple met the same result. Austin resigned his University College London Chair in 1835. He later briefly served on the Criminal Law Commission, and as a Royal Commissioner to Malta, but he never found either success or contentment. He did some occasional writing on political themes, but his plans for longer works never came to anything during his lifetime, due apparently to some combination of perfectionism, melancholy, and writer's block. His changing views on moral, political, and legal matters also apparently hindered both the publication of a revised edition of "Province of Jurisprudence Determined," and the completion of a longer project started when his views had been different. Much of whatever success Austin found during his life, and after, must be attributed to his wife Sarah, for her tireless support, both moral and economic (during the later years of their marriage, they lived primarily off her efforts as a translator and reviewer), and her work to publicize his writings after his death (including the publication of a more complete set of his Lectures on Jurisprudence) (Austin 1873). While Austin's work was influential in the decades after his death, its impact seemed to subside substantially by the beginning of the twentieth century. A significant portion of Austin's current reputation derives from H.L.A. Hart's use (1958, 1994) of Austin's theory as a foil for the explanation of Hart's own, more nuanced approach to legal theory. In recent decades some theorists have revisited Austin's work, offering new characterizations and defenses of his ideas (e.g., Morison 1982, Rumble 1985). 2. Analytical Jurisprudence and Legal Positivism Early in his career, Austin came under the influence of Jeremy Bentham, and Bentham's utilitarianism is evident (though with some differences) in the work for which Austin is best known today. On Austin's reading of utilitarianism, Divine will is equated with Utilitarian principles: "utility is the index to the law of God ... . To make a promise which general utility condemns, is an offense against the law of God" (Austin 1873: Lecture VI, p. 307; see also Austin 1995: Lecture II, p. 41). This particular reading of utilitarianism, however, has had little long-term influence, though it seems to have been the part of his work that received the most attention in his own day (Rumble 1995: p. xx). Austin early on shared many of the ideas of the Benthamite philosophical radicals; he was "a strong proponent of modern political economy, a believer in Hartleian metaphysics, and a most enthusiastic Malthusian." (Rumble 1985: pp. 16-17) Austin's importance to legal theory lies elsewhere -- his theorizing about law was novel at three different levels of generality. First, he was arguably the first writer to approach the theory of law analytically (as contrasted with approaches to law more grounded in history or sociology, or arguments about law which were secondary to more general moral and political theories). Analytical jurisprudence emphasizes the analysis of key concepts, including "law," "(legal) right," "(legal) duty," and "legal validity." Though analytical jurisprudence has been challenged by some in recent years (e.g., Leiter 1998), it remains the dominant approach to discussing the nature of law. Analytical jurisprudence, an approach to theorizing about law, has sometimes been confused with what the American legal realists (an influential group of theorists prominent in the early decades of the 20th century) called "legal formalism" -- a narrow approach to how judges should decide cases. The American legal realists saw Austin in particular, and analytical jurisprudence in general, as their

opponents in their critical and reform-minded efforts. In this, the realists were simply mistaken; unfortunately, it is a mistake that can still be found in some contemporary legal commentators. (There is some evidence that Austin's views later in his life may have moved away from analytical jurisprudence towards something more approximating the historical jurisprudence school. (Hamburger 1985: pp. 178-91)) Second, within analytical jurisprudence, Austin was the first systematic exponent of a view of law known as "legal positivism." Most of the important theoretical work on law prior to Austin had treated jurisprudence as though it were merely a branch of moral theory or political theory: asking how should the state govern? (and when were governments legitimate?), and under what circumstances did citizens have an obligation to obey the law? Austin specifically, and legal positivism generally, offered a quite different approach to law: as an object of "scientific" study, dominated neither by prescription nor by moral evaluation. Subtle jurisprudential questions aside, Austin's efforts to treat law systematically gained popularity in the late 19th century among English lawyers who wanted to approach their profession, and their professional training, in a more serious and rigorous manner (Cotterrell 1989: pp. 79-81). Legal positivism asserts (or assumes) that it is both possible and valuable to have a morally neutral descriptive (or "conceptual" -- though this is not a term Austin used) theory of law. (The main competitor to legal positivism, in Austin's day as in our own, has been natural law theory.) Legal positivism does not deny that moral and political criticism of legal systems are important, but insists that a descriptive or conceptual approach to law is valuable, both on its own terms and as a necessary prelude to criticism. There were theorists prior to Austin who arguably offered views similar to legal positivism or who at least foreshadowed legal positivism in some way. Among these would be Thomas Hobbes, with his amoral view of laws as the product of Leviathan (Hobbes 1996); David Hume, with his argument for separating "is" and "ought" (which worked as a sharp criticism for some forms of natural law theory, which purported to derive moral truths from statements about human nature) (Hume 2000); and Jeremy Bentham, with his attacks on judicial lawmaking and on those, like Sir William Blackstone, who justified such lawmaking with natural-law-like justifications (Bentham 1970, 1996). Austin's famous formulation of what could be called the "dogma" of legal positivism is as follows: The existence of law is one thing; its merit or demerit is another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry. A law, which actually exists, is a law, though we happen to dislike it, or though it vary from the text, by which we regulate our approbation and disapprobation. (Austin 1995: Lecture V, p. 157) Third, Austin's version of legal positivism, a "command theory of law" (which will be detailed in the next section) has also been influential. Austin's theory had similarities with the views developed by Jeremy Bentham, whose theory could also be characterized as a "command theory." However, Austen's work was more influential in this area, because Bentham's jurisprudential writings did not appear in an even-roughly systematic form until well after Austin's work had already been published. (Bentham 1970, 1996; Cotterrell 1989: pp. 52-53) 3. Austin's Views Austin's basic approach was to ascertain what can be said generally, but still with interest, about all laws. Austin's analysis can be seen as either a paradigm of, or a caricature of, analytical philosophy, in that his discussions are dryly full of distinctions, but are thin in argument. The modern reader is forced to fill in much of the meta-theoretical, justificatory work, as it cannot be found in the text. Where Austin does articulate his methodology and objective, it is a fairly traditional one: he

"endeavored to resolve a law (taken with the largest signification which can be given to that term properly) into the necessary and essential elements of which it is composed." (Austin 1995: Lecture V, p. 117) As to what is the core nature of law, Austin's answer is that laws ("properly so called") are commands of a sovereign. He clarifies the concept of positive law (that is, man-made law) by analyzing the constituent concepts of his definition, and by distinguishing law from other concepts that are similar: 

"Commands" involve an expressed wish that something be done, and "an evil" to be imposed if that wish is not complied with.

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Rules are general commands (applying generally to a class), as contrasted with specific or individual commands ("drink wine today" or "John Major must drink wine").

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Positive law consisted of those commands laid down by a sovereign (or its agents), to be contrasted to other law- givers, like God's general commands, and the general commands of an employer.

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The "sovereign" was defined as a person (or collection of persons) who receives habitual obedience from the bulk of the population, but who does not habitually obey any other (earthly) person or institution. Austin thought that all independent political societies, by their nature, have a sovereign.

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Positive law should also be contrasted with "laws by a close analogy" (which includes positive morality, laws of honor, international law, customary law, and constitutional law) and "laws by remote analogy" (e.g., the laws of physics). (Austin 1995: Lecture I).

Austin also wanted to include within "the province of jurisprudence" certain "exceptions," items which did not fit his criteria but should nonetheless be studied with other "laws properly so called": repealing laws, declarative laws, and "imperfect laws" - laws prescribing action but without sanctions (a concept Austin ascribes to "Roman [law] jurists"). (Austin 1995: Lecture I, p. 36) In the criteria set out above, Austin succeeded in delimiting law and legal rules from religion, morality, convention, and custom. However, also excluded from "the province of jurisprudence" were customary law (except to the extent that the sovereign had, directly or indirectly, adopted such customs as law), public international law, and parts of constitutional law. (These exclusions alone would make Austin's theory problematic for most modern readers.) Within Austin's approach, whether something is or is not "law" depends on which people have done what: the question turns on an empirical investigation, and it is a matter mostly of power, not of morality. Of course, Austin is not arguing that law should not be moral, nor is he implying that it rarely is. Austin is not playing the nihilist or the skeptic. He is merely pointing out that there is much that is law that is not moral, and what makes something law does nothing to guarantee its moral value. "The most pernicious laws, and therefore those which are most opposed to the will of God, have been and are continually enforced as laws by judicial tribunals." (Austin 1995: Lecture V, p. 158). In contrast to his mentor Bentham, Austin had no objection to judicial lawmaking, which Austin called "highly beneficial and even absolutely necessary." (Austin, 1995: Lecture V, p. 163) Nor did Austin find any difficulty incorporating judicial lawmaking into his command theory: he characterized that form of lawmaking, along with the occasional legal/judicial recognition of

customs by judges, as the "tacit commands" of the sovereign, the sovereign's affirming the "orders" by its acquiescence. (Austin 1995: Lecture 1, pp. 35-36). 4. Criticisms As many readers come to Austin's theory mostly through its criticism by other writers (prominently, that of H.L.A. Hart), the weaknesses of the theory are almost better known than the theory itself: 

In many societies, it is hard to identify a "sovereign" in Austin's sense of the word (a difficulty Austin himself experienced, when he was forced to describe the British "sovereign" awkwardly as the combination of the King, the House of Lords, and all the electors of the House of Commons). Additionally, a focus on a "sovereign" makes it difficult to explain the continuity of legal systems: a new ruler will not come in with the kind of "habit of obedience" that Austen sets as a criterion for a system's rule-maker. However, one could argue (see Harris 1977) that the sovereign is best understood as a constructive metaphor: that law should be viewed as if it reflected the view of a single will (a similar view, that law should be interpreted as if it derived from a single will, can be found in Ronald Dworkin's work (1986)).

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A "command" model seems to fit some aspects of law poorly (e.g., rules which grant powers to officials and to private citizens - of the latter, the rules for making wills, trusts, and contracts are examples), while excluding other matters (e.g., international law) which we are not inclined to exclude in the category "law."

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More generally, it seems more distorting than enlightening to reduce all law to one type. For example, rules that empower people to make wills and contracts perhaps can be recharacterized as part of a long chain of reasoning for eventually imposing a sanction (Austin spoke in this context of the sanction of "nullity") on those who fail to comply with the relevant provisions. However, such a re-characterization this misses the basic purpose of those sorts of laws - they are arguably about granting power and autonomy, not punishing wrongdoing.

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A theory which portrays law solely in terms of power fails to distinguish rules of terror from forms of governance sufficiently just that they are accepted as legitimate by their own citizens.

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(Austin was aware of some of these lines of attack, and had responses ready; it is another matter whether his responses were adequate.) It should also be noted that Austin's work shows a silence on questions of methodology, though this may be forgivable, given the early stage of jurisprudence. As discussed in an earlier section, in many ways, Austin was blazing a new path.

When H.L.A. Hart revived legal positivism in the middle of the 20 th century (Hart 1958, 1994), he did it by criticizing and building on Austin's theory: for example, Hart's theory did not try to reduce all laws to one kind of rule, but emphasized the varying types and functions of legal rules; and Hart's theory, grounded partly on the distinction between "obligation" and "being obliged," was built around the fact that some participants within legal systems "accepted" the legal rules as reasons for action, above and beyond the fear of sanctions. 5. A Revisionist View? Some modern commentators appreciate in Austin elements that were probably not foremost in his mind (or that of his contemporary readers). For example, one occasionally sees Austin portrayed as the first "realist": in contrast both to the theorists that came before Austin and to some modern

writers on law, Austin is seen as having a keener sense of the connection of law and power, and the importance of keeping that connection at the forefront of analysis. (cf. Cotterrell 1989: pp. 57-79) When circumstances seem to warrant a more critical, skeptical or cynical approach to law and government, Austin's equation of law and force will be attractive - however distant such a reading may be from Austin's own liberal-utilitarian views at the time of his writing, and his even more conservative political views later in his life. (Hamburger, 1985)

Natural Law The term 'natural law' is ambiguous. It refers to a type of moral theory, as well as to a type of legal theory, despite the fact that the core claims of the two kinds of theory are logically independent. According to natural law ethical theory, the moral standards that govern human behavior are, in some sense, objectively derived from the nature of human beings. According to natural law legal theory, the authority of at least some legal standards necessarily derives, at least in part, from considerations having to do with the moral merit of those standards. There are a number of different kinds of natural law theories of law, differing from each other with respect to the role that morality plays in determining the authority of legal norms.

Table of Contents 

I. Two Kinds of Natural Law Theory

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II. Conceptual Naturalism

o

II.1 The Project of Conceptual Jurisprudence

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II.2 Classical Natural Law Theory

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III. The Substantive Neo-Naturalism of John Finnis

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IV. The Procedural Naturalism of Lon L. Fuller

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Ronald Dworkin's "Third Theory"

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Sources

I. Two Kinds of Natural Law Theory At the outset, it is important to distinguish two kinds of theory that go by the name of natural law. The first is a theory of morality that is roughly characterized by the following theses. First, moral propositions have what is sometimes called objective standing in the sense that such propositions are the bearers of objective truth-value; that is, moral propositions can be objectively true or false. Though moral objectivism is sometimes equated with moral realism (see, e.g., Moore 1992, 190: "the truth of any moral proposition lies in its correspondence with a mind- and convention-independent moral reality"), the relationship between the two theories is controversial. Geoffrey Sayre-McCord (1988), for example, views moral objectivism as one species of moral realism, but not the only form; on Sayre-McCord's view, moral subjectivism and moral intersubjectivism are also forms of moral realism. Strictly speaking, then, natural law moral theory is committed only to the objectivity of moral norms. The second thesis constituting the core of natural law moral theory is the claim that standards of morality are in some sense derived from, or entailed by, the nature of the world and the nature of human beings. St. Thomas Aquinas, for example, identifies the rational nature of human beings as that which defines moral law: "the rule and measure of human acts is the reason, which is the first principle of human acts" (Aquinas, ST I-II, Q.90, A.I). On this common view, since human beings are by nature rational beings, it is morally appropriate that they should behave in a way that conforms to their rational nature. Thus, Aquinas derives the moral law from the nature of human beings (thus, "natural law"). But there is another kind of natural law theory having to do with the relationship of morality to law. According to natural law theory of law, there is no clean division between the notion of law and the notion of morality. Though there are different versions of natural law theory, all subscribe to the thesis that there are at least some laws that depend for their "authority" not on some pre-existing human convention, but on the logical relationship in which they stand to moral standards. Otherwise put, some norms are authoritative in virtue of their moral content, even when there is no convention that makes moral merit a criterion of legal validity. The idea that the concepts of law and morality intersect in some way is called the Overlap Thesis. As an empirical matter, many natural law moral theorists are also natural law legal theorists, but the two theories, strictly speaking, are logically independent. One can deny natural law theory of law but hold a natural law theory of morality. John Austin, the most influential of the early legal positivists, for example, denied the Overlap Thesis but held something that resembles a natural law ethical theory. Indeed, Austin explicitly endorsed the view that it is not necessarily true that the legal validity of a norm depends on whether its content conforms to morality. But while Austin thus denied the Overlap Thesis, he accepted an objectivist moral theory; indeed, Austin inherited his utilitarianism almost wholesale from J.S. Mill and Jeremy Bentham. Here it is worth noting that utilitarians sometimes seem to suggest that they derive their utilitarianism from certain facts about human nature; as Bentham once wrote, "nature has placed mankind under the governance of two sovereign masters, pain and pleasure. It is for them alone to point out what we ought to do, as well as to determine what we shall do. On the one hand the standard of right and wrong, on the other the chain of causes and effects, are fastened to their throne" (Bentham 1948, 1). Thus, a commitment to natural law theory of morality is consistent with the denial of natural law theory of law.

Conversely, one could, though this would be unusual, accept a natural law theory of law without holding a natural law theory of morality. One could, for example, hold that the conceptual point of law is, in part, to reproduce the demands of morality, but also hold a form of ethical subjectivism (or relativism). On this peculiar view, the conceptual point of law would be to enforce those standards that are morally valid in virtue of cultural consensus. For this reason, natural law theory of law is logically independent of natural law theory of morality. The remainder of this essay will be exclusively concerned with natural law theories of law. II. Conceptual Naturalism II.1 The Project of Conceptual Jurisprudence The principal objective of conceptual (or analytic) jurisprudence has traditionally been to provide an account of what distinguishes law as a system of norms from other systems of norms, such as ethical norms. As John Austin describes the project, conceptual jurisprudence seeks "the essence or nature which is common to all laws that are properly so called" (Austin 1995, 11). Accordingly, the task of conceptual jurisprudence is to provide a set of necessary and sufficient conditions for the existence of law that distinguishes law from non-law in every possible world. While this task is usually interpreted as an attempt to analyze the concepts of law and legal system, there is some confusion as to both the value and character of conceptual analysis in philosophy of law. As Brian Leiter (1998) points out, philosophy of law is one of the few philosophical disciplines that takes conceptual analysis as its principal concern; most other areas in philosophy have taken a naturalistic turn, incorporating the tools and methods of the sciences. To clarify the role of conceptual analysis in law, Brian Bix (1995) distinguishes a number of different purposes that can be served by conceptual claims: (1) to track linguistic usage; (2) to stipulate meanings; (3) to explain what is important or essential about a class of objects; and (4) to establish an evaluative test for the concept-word. Bix takes conceptual analysis in law to be primarily concerned with (3) and (4). In any event, conceptual analysis of law remains an important, if controversial, project in contemporary legal theory. Conceptual theories of law have traditionally been characterized in terms of their posture towards the Overlap Thesis. Thus, conceptual theories of law have traditionally been divided into two main categories: those like natural law legal theory that affirm there is a conceptual relation between law and morality and those like legal positivism that deny such a relation. II.2 Classical Natural Law Theory All forms of natural law theory subscribe to the Overlap Thesis, which asserts that there is some kind of non-conventional relation between law and morality. According to this view, then, the notion of law cannot be fully articulated without some reference to moral notions. Though the Overlap Thesis may seem unambiguous, there are a number of different ways in which it can be interpreted. The strongest construction of the Overlap Thesis forms the foundation for the classical naturalism of Aquinas and Blackstone. Aquinas distinguishes four kinds of law: (1) eternal law; (2) natural law; (3) human law; and (4) divine law. Eternal law is comprised of those laws that govern the nature of an eternal universe; as Susan Dimock (1999, 22) puts it, one can "think of eternal law as comprising all those scientific (physical, chemical, biological, psychological, etc.) 'laws' by which the universe is ordered." Divine law is concerned with those standards that must be satisfied by a human being to achieve eternal salvation. One cannot discover divine law by natural reason alone; the precepts of divine law are disclosed only through divine revelation.

The natural law is comprised of those precepts of the eternal law that govern the behavior of beings possessing reason and free will. The first precept of the natural law, according to Aquinas, is the somewhat vacuous imperative to do good and avoid evil. Here it is worth noting that Aquinas holds a natural law theory of morality: what is good and evil, according to Aquinas, is derived from the rational nature of human beings. Good and evil are thus both objective and universal. But Aquinas is also a natural law legal theorist. On his view, a human law (i.e., that which is promulgated by human beings) is valid only insofar as its content conforms to the content of the natural law; as Aquinas puts the point: "[E]very human law has just so much of the nature of law as is derived from the law of nature. But if in any point it deflects from the law of nature, it is no longer a law but a perversion of law" (ST I-II, Q.95, A.II). To paraphrase Augustine's famous remark, an unjust law is really no law at all. The idea that a norm that does not conform to the natural law cannot be legally valid is the defining thesis of conceptual naturalism. As William Blackstone describes the thesis, "This law of nature, being co-eval with mankind and dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe, in all countries, and at all times: no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force, and all their authority, mediately or immediately, from this original" (1979, 41). In this passage, Blackstone articulates the two claims that constitute the theoretical core of conceptual naturalism: 1) there can be no legally valid standards that conflict with the natural law; and 2) all valid laws derive what force and authority they have from the natural law. It should be noted that classical naturalism is consistent with allowing a substantial role to human beings in the manufacture of law. While the classical naturalist seems committed to the claim that the law necessarily incorporates all moral principles, this claim does not imply that the law is exhausted by the set of moral principles. There will still be coordination problems (e.g., which side of the road to drive on) that can be resolved in any number of ways consistent with the set of moral principles. Thus, the classical naturalist does not deny that human beings have considerable discretion in creating natural law. Rather she claims only that such discretion is necessarily limited by moral norms: legal norms that are promulgated by human beings are valid only if they are consistent with morality. Critics of conceptual naturalism have raised a number of objections to this view. First, it has often been pointed out that, contra Augustine, unjust laws are all-too- frequently enforced against persons. As Austin petulantly put the point: Now, to say that human laws which conflict with the Divine law are not binding, that is to say, are not laws, is to talk stark nonsense. The most pernicious laws, and therefore those which are most opposed to the will of God, have been and are continually enforced as laws by judicial tribunals. Suppose an act innocuous, or positively beneficial, be prohibited by the sovereign under the penalty of death; if I commit this act, I shall be tried and condemned, and if I object to the sentence, that it is contrary to the law of God, who has commanded that human lawgivers shall not prohibit acts which have no evil consequences, the Court of Justice will demonstrate the inconclusiveness of my reasoning by hanging me up, in pursuance of the law of which I have impugned the validity (Austin 1995, 158). Of course, as Brian Bix (1999) points out, the argument does little work for Austin because it is always possible for a court to enforce a law against a person that does not satisfy Austin's own theory of legal validity.

Another frequently expressed worry is that conceptual naturalism undermines the possibility of moral criticism of the law; inasmuch as conformity with natural law is a necessary condition for legal validity, all valid law is, by definition, morally just. Thus, on this line of reasoning, the legal validity of a norm necessarily entails its moral justice. As Jules Coleman and Jeffrey Murphy (1990, 18) put the point: The important things [conceptual naturalism] supposedly allows us to do (e.g., morally evaluate the law and determine our moral obligations with respect to the law) are actually rendered more difficult by its collapse of the distinction between morality and law. If we really want to think about the law from the moral point of view, it may obscure the task if we see law and morality as essentially linked in some way. Moral criticism and reform of law may be aided by an initial moral skepticism about the law. There are a couple of problems with this line of objection. First, conceptual naturalism does not foreclose criticism of those norms that are being enforced by a society as law. Insofar as it can plausibly be claimed that the content of a norm being enforced by society as law does not conform to the natural law, this is a legitimate ground of moral criticism: given that the norm being enforced by law is unjust, it follows, according to conceptual naturalism, that it is not legally valid. Thus, the state commits wrong by enforcing that norm against private citizens. Second, and more importantly, this line of objection seeks to criticize a conceptual theory of law by pointing to its practical implications ñ a strategy that seems to commit a category mistake. Conceptual jurisprudence assumes the existence of a core of social practices (constituting law) that requires a conceptual explanation. The project motivating conceptual jurisprudence, then, is to articulate the concept of law in a way that accounts for these pre-existing social practices. A conceptual theory of law can legitimately be criticized for its failure to adequately account for the pre-existing data, as it were; but it cannot legitimately be criticized for either its normative quality or its practical implications. A more interesting line of argument has recently been taken up by Brian Bix (1996). Following John Finnis (1980), Bix rejects the interpretation of Aquinas and Blackstone as conceptual naturalists, arguing instead that the claim that an unjust law is not a law should not be taken literally: A more reasonable interpretation of statements like "an unjust law is no law at all" is that unjust laws are not laws "in the fullest sense." As we might say of some professional, who had the necessary degrees and credentials, but seemed nonetheless to lack the necessary ability or judgment: "she's no lawyer" or "he's no doctor." This only indicates that we do not think that the title in this case carries with it all the implications it usually does. Similarly, to say that an unjust law is "not really law" may only be to point out that it does not carry the same moral force or offer the same reasons for action as laws consistent with "higher law" (Bix 1996, 226). Thus, Bix construes Aquinas and Blackstone as having views more similar to the neo- naturalism of John Finnis discussed below in Section III. Nevertheless, while a plausible case can be made in favor of Bix's view, the long history of construing Aquinas and Blackstone as conceptual naturalists, along with its pedagogical value in developing other theories of law, ensures that this practice is likely, for better or worse, to continue indefinitely. III. The Substantive Neo-Naturalism of John Finnis John Finnis takes himself to be explicating and developing the views of Aquinas and Blackstone. Like Bix, Finnis believes that the naturalism of Aquinas and Blackstone should not be construed as a

conceptual account of the existence conditions for law. According to Finnis, the classical naturalists were not concerned with giving a conceptual account of legal validity; rather they were concerned with explaining the moral force of law: "the principles of natural law explain the obligatory force (in the fullest sense of 'obligation') of positive laws, even when those laws cannot be deduced from those principles" (Finnis 1980, 23-24). On Finnis's view of the Overlap Thesis, the essential function of law is to provide a justification for state coercion (a view he shares with Ronald Dworkin). Accordingly, an unjust law can be legally valid, but it cannot provide an adequate justification for use of the state coercive power and is hence not obligatory in the fullest sense; thus, an unjust law fails to realize the moral ideals implicit in the concept of law. An unjust law, on this view, is legally binding, but is not fully law. Like classical naturalism, Finnis's naturalism is both an ethical theory and a theory of law. Finnis distinguishes a number of equally valuable basic goods: life, health, knowledge, play, friendship, religion, and aesthetic experience. Each of these goods, according to Finnis, has intrinsic value in the sense that it should, given human nature, be valued for its own sake and not merely for the sake of some other good it can assist in bringing about. Moreover, each of these goods is universal in the sense that it governs all human cultures at all times. The point of moral principles, on this view, is to give ethical structure to the pursuit of these basic goods; moral principles enable us to select among competing goods and to define what a human being can permissibly do in pursuit of a basic good. On Finnis's view, the conceptual point of law is to facilitate the common good by providing authoritative rules that solve coordination problems that arise in connection with the common pursuit of these basic goods. Thus, Finnis sums up his theory of law as follows: The term 'law' ... refer[s] primarily to rules made, in accordance with regulative legal rules, by a determinate and effective authority (itself identified and, standardly, constituted as an institution by legal rules) for a 'complete' community, and buttressed by sanctions in accordance with the ruleguided stipulations of adjudicative institutions, this ensemble of rules and institutions being directed to reasonably resolving any of the community's co-ordination problems (and to ratifying, tolerating, regulating, or overriding co-ordination solutions from any other institutions or sources of norms) for the common good of that community (Finnis 1980, 276). Again, it bears emphasizing that Finnis takes care to deny that there is any necessary moral test for legal validity: "one would simply be misunderstanding my conception of the nature and purpose of explanatory definitions of theoretical concepts if one supposed that my definition 'ruled out as nonlaws' laws which failed to meet, or meet fully, one or other of the elements of the definition" (Finnis 1980, 278). Nevertheless, Finnis believes that to the extent that a norm fails to satisfy these conditions, it likewise fails to fully manifest the nature of law and thereby fails to fully obligate the citizen-subject of the law. Unjust laws may obligate in a technical legal sense, on Finnis's view, but they may fail to provide moral reasons for action of the sort that it is the point of legal authority to provide. Thus, Finnis argues that "a ruler's use of authority is radically defective if he exploits his opportunities by making stipulations intended by him not for the common good but for his own or his friends' or party's or faction's advantage, or out of malice against some person or group" (Finnis 1980, 352). For the ultimate basis of a ruler's moral authority, on this view, "is the fact that he has the opportunity, and thus the responsibility, of furthering the common good by stipulating solutions to a community's co- ordination problems" (Finnis 1980, 351). Finnis's theory is certainly more plausible as a theory of law than the traditional interpretation of classical naturalism, but such plausibility comes, for better or worse, at the expense of naturalism's identity as a distinct theory of law. Indeed, it appears that Finnis's natural law theory is compatible

with naturalism's historical adversary, legal positivism, inasmuch as Finnis's view is compatible with a source-based theory of legal validity; laws that are technically valid in virtue of source but unjust do not, according to Finnis, fully obligate the citizen. Indeed, Finnis (1996) believes that Aquinas's classical naturalism fully affirms the notion that human laws are "posited." Back to Table of Contents IV. The Procedural Naturalism of Lon L. Fuller Like Finnis, Lon Fuller (1964) rejects the conceptual naturalist idea that there are necessary substantive moral constraints on the content of law. But Fuller, unlike Finnis, believes that law is necessarily subject to a procedural morality. On Fuller's view, human activity is necessarily goaloriented or purposive in the sense that people engage in a particular activity because it helps them to achieve some end. Insofar as human activity is essentially purposive, according to Fuller, particular human activities can be understood only in terms that make reference to their purposes and ends. Thus, since lawmaking is essentially purposive activity, it can be understood only in terms that explicitly acknowledge its essential values and purposes: The only formula that might be called a definition of law offered in these writings is by now thoroughly familiar: law is the enterprise of subjecting human conduct to the governance of rules. Unlike most modern theories of law, this view treats law as an activity and regards a legal system as the product of a sustained purposive effort (Fuller 1964, 106). To the extent that a definition of law can be given, then, it must include the idea that law's essential function is to "achieve social order through subjecting people's conduct to the guidance of general rules by which they may themselves orient their behavior" (Fuller 1965, 657). Fuller's functionalist conception of law implies that nothing can count as law unless it is capable of performing law's essential function of guiding behavior. And to be capable of performing this function, a system of rules must satisfy the following principles: (P1) the rules must be expressed in general terms; (P2) the rules must be publicly promulgated; (P3) the rules must be prospective in effect; (P4) the rules must be expressed in understandable terms; (P5) the rules must be consistent with one another; (P6) the rules must not require conduct beyond the powers of the affected parties; (P7) the rules must not be changed so frequently that the subject cannot rely on them; and (P8) the rules must be administered in a manner consistent with their wording. On Fuller's view, no system of rules that fails minimally to satisfy these principles of legality can achieve law's essential purpose of achieving social order through the use of rules that guide behavior. A system of rules that fails to satisfy (P2) or (P4), for example, cannot guide behavior because people will not be able to determine what the rules require. Accordingly, Fuller concludes that his eight principles are "internal" to law in the sense that they are built into the existence conditions for law.

These internal principles constitute a morality, according to Fuller, because law necessarily has positive moral value in two respects: (1) law conduces to a state of social order and (2) does so by respecting human autonomy because rules guide behavior. Since no system of rules can achieve these morally valuable objectives without minimally complying with the principles of legality, it follows, on Fuller's view, that they constitute a morality. Since these moral principles are built into the existence conditions for law, they are internal and hence represent a conceptual connection between law and morality. Thus, like the classical naturalists and unlike Finnis, Fuller subscribes to the strongest form of the Overlap Thesis, which makes him a conceptual naturalist. Nevertheless, Fuller's conceptual naturalism is fundamentally different from that of classical naturalism. First, Fuller rejects the classical naturalist view that there are necessary moral constraints on the content of law, holding instead that there are necessary moral constraints on the procedural mechanisms by which law is made and administered: "What I have called the internal morality of law is ... a procedural version of natural law ... [in the sense that it is] concerned, not with the substantive aims of legal rules, but with the ways in which a system of rules for governing human conduct must be constructed and administered if it is to be efficacious and at the same time remain what it purports to be" (Fuller 1964, 96- 97). Second, Fuller identifies the conceptual connection between law and morality at a higher level of abstraction than the classical naturalists. The classical naturalists view morality as providing substantive constraints on the content of individual laws; an unjust norm, on this view, is conceptually disqualified from being legally valid. In contrast, Fuller views morality as providing a constraint on the existence of a legal system: "A total failure in any one of these eight directions does not simply result in a bad system of law; it results in something that is not properly called a legal system at all" (Fuller 1964, 39). Fuller's procedural naturalism is vulnerable to a number of objections. H.L.A. Hart, for example, denies Fuller's claim that the principles of legality constitute an internal morality; according to Hart, Fuller confuses the notions of morality and efficacy: The author's insistence on classifying these principles of legality as a "morality" is a source of confusion both for him and his readers. The crucial objection to the designation of these principles of good legal craftsmanship as morality, in spite of the qualification "inner," is that it perpetrates a confusion between two notions that it is vital to hold apart: the notions of purposive activity and morality. Poisoning is no doubt a purposive activity, and reflections on its purpose may show that it has its internal principles. ("Avoid poisons however lethal if they cause the victim to vomit"....) But to call these principles of the poisoner's art "the morality of poisoning" would simply blur the distinction between the notion of efficiency for a purpose and those final judgments about activities and purposes with which morality in its various forms is concerned (Hart 1965, 1285-86). On Hart's view, all actions, including virtuous acts like lawmaking and impermissible acts like poisoning, have their own internal standards of efficacy. But insofar as such standards of efficacy conflict with morality, as they do in the case of poisoning, it follows that they are distinct from moral standards. Thus, while Hart concedes that something like Fuller's eight principles are built into the existence conditions for law, he concludes they do not constitute a conceptual connection between law and morality. Unfortunately, Hart overlooks the fact that most of Fuller's eight principles double as moral ideals of fairness. For example, public promulgation in understandable terms may be a necessary condition for efficacy, but it is also a moral ideal; it is morally objectionable for a state to enforce rules that have not been publicly promulgated in terms reasonably calculated to give notice of what is required. Similarly, we take it for granted that it is wrong for a state to enact retroactive rules, inconsistent

rules, and rules that require what is impossible. Poisoning may have its internal standards of efficacy, but such standards are distinguishable from the principles of legality in that they conflict with moral ideals. Nevertheless, Fuller's principles operate internally, not as moral ideals, but merely as principles of efficacy. As Fuller would likely acknowledge, the existence of a legal system is consistent with considerable divergence from the principles of legality. Legal standards, for example, are necessarily promulgated in general terms that inevitably give rise to problems of vagueness. And officials all too often fail to administer the laws in a fair and even-handed manner even in the best of legal systems. These divergences may always be prima facie objectionable, but they are inconsistent with a legal system only when they render a legal system incapable of performing its essential function of guiding behavior. Insofar as these principles are built into the existence conditions for law, it is because they operate as efficacy conditionsóand not because they function as moral ideals. Back to Table of Contents Ronald Dworkin's "Third Theory" Ronald Dworkin's so-called third theory of law is best understood as a response to legal positivism, which is essentially constituted by three theoretical commitments: the Social Fact Thesis, the Conventionality Thesis, and the Separability Thesis. The Social Fact Thesis asserts it is a necessary truth that legal validity is ultimately a function of certain kinds of social facts; the idea here is that what ultimately explains the validity of a law is the presence of certain social facts, especially formal promulgation by a legislature. The Conventionality Thesis emphasizes law's conventional nature, claiming that the social facts giving rise to legal validity are authoritative in virtue of a social convention. On this view, the criteria that determine whether or not any given norm counts as a legal norm are binding because of an implicit or explicit agreement among officials. Thus, for example, the U.S. Constitution is authoritative in virtue of the conventional fact that it was formally ratified by all fifty states. The Separability Thesis, at the most general level, simply denies naturalism's Overlap Thesis; according to the Separability Thesis, there is no conceptual overlap between the notions of law and morality. As Hart more narrowly construes it, the Separability Thesis is "just the simple contention that it is in no sense a necessary truth that laws reproduce or satisfy certain demands of morality, though in fact they have often done so" (Hart 1994, 185-186). Dworkin rejects positivism's Social Fact Thesis on the ground that there are some legal standards the authority of which cannot be explained in terms of social facts. In deciding hard cases, for example, judges often invoke moral principles that Dworkin believes do not derive their legal authority from the social criteria of legality contained in a rule of recognition (Dworkin 1977, p. 40). In Riggs v. Palmer, for example, the court considered the question of whether a murderer could take under the will of his victim. At the time the case was decided, neither the statutes nor the case law governing wills expressly prohibited a murderer from taking under his victim's will. Despite this, the court declined to award the defendant his gift under the will on the ground that it would be wrong to allow him to profit from such a grievous wrong. On Dworkin's view, the court decided the case by citing "the principle that no man may profit from his own wrong as a background standard against which to read the statute of wills and in this way justified a new interpretation of that statute" (Dworkin 1977, 29). On Dworkin's view, the Riggs court was not just reaching beyond the law to extralegal standards when it considered this principle. For the Riggs judges would "rightfully" have been criticized had

they failed to consider this principle; if it were merely an extralegal standard, there would be no rightful grounds to criticize a failure to consider it (Dworkin 1977, 35). Accordingly, Dworkin concludes that the best explanation for the propriety of such criticism is that principles are part of the law. Further, Dworkin maintains that the legal authority of standards like the Riggs principle cannot derive from promulgation in accordance with purely formal requirements: "[e]ven though principles draw support from the official acts of legal institutions, they do not have a simple or direct enough connection with these acts to frame that connection in terms of criteria specified by some ultimate master rule of recognition" (Dworkin 1977, 41). On Dworkin's view, the legal authority of the Riggs principle can be explained wholly in terms of its content. The Riggs principle was binding, in part, because it is a requirement of fundamental fairness that figures into the best moral justification for a society's legal practices considered as a whole. A moral principle is legally authoritative, according to Dworkin, insofar as it maximally conduces to the best moral justification for a society's legal practices considered as a whole. Dworkin believes that a legal principle maximally contributes to such a justification if and only if it satisfies two conditions: (1) the principle coheres with existing legal materials; and (2) the principle is the most morally attractive standard that satisfies (1). The correct legal principle is the one that makes the law the moral best it can be. Accordingly, on Dworkin's view, adjudication is and should be interpretive: [J]udges should decide hard cases by interpreting the political structure of their community in the following, perhaps special way: by trying to find the best justification they can find, in principles of political morality, for the structure as a whole, from the most profound constitutional rules and arrangements to the details of, for example, the private law of tort or contract (Dworkin 1982, 165). There are, thus, two elements of a successful interpretation. First, since an interpretation is successful insofar as it justifies the particular practices of a particular society, the interpretation must fit with those practices in the sense that it coheres with existing legal materials defining the practices. Second, since an interpretation provides a moral justification for those practices, it must present them in the best possible moral light. For this reason, Dworkin argues that a judge should strive to interpret a case in roughly the following way: A thoughtful judge might establish for himself, for example, a rough "threshold" of fit which any interpretation of data must meet in order to be "acceptable" on the dimension of fit, and then suppose that if more than one interpretation of some part of the law meets this threshold, the choice among these should be made, not through further and more precise comparisons between the two along that dimension, but by choosing the interpretation which is "substantively" better, that is, which better promotes the political ideals he thinks correct (Dworkin 1982, 171). As Dworkin conceives it, then, the judge must approach judicial decision-making as something that resembles an exercise in moral philosophy. Thus, for example, the judge must decide cases on the basis of those moral principles that "figure[] in the soundest theory of law that can be provided as a justification for the explicit substantive and institutional rules of the jurisdiction in question" (Dworkin 1977, 66). And this is a process, according to Dworkin, that "must carry the lawyer very deep into political and moral theory." Indeed, in later writings, Dworkin goes so far as to claim, somewhat implausibly, that

"any judge's opinion is itself a piece of legal philosophy, even when the philosophy is hidden and the visible argument is dominated by citation and lists of facts" (Dworkin 1986, 90). Dworkin believes his theory of judicial obligation is a consequence of what he calls the Rights Thesis, according to which judicial decisions always enforce pre-existing rights: "even when no settled rule disposes of the case, one party may nevertheless have a right to win. It remains the judge's duty, even in hard cases, to discover what the rights of the parties are, not to invent new rights retrospectively" (Dworkin 1977, 81). In "Hard Cases," Dworkin distinguishes between two kinds of legal argument. Arguments of policy "justify a political decision by showing that the decision advances or protects some collective goal of the community as a whole" (Dworkin 1977, 82). In contrast, arguments of principle "justify a political decision by showing that the decision respects or secures some individual or group right" (Dworkin 1977, 82). On Dworkin's view, while the legislature may legitimately enact laws that are justified by arguments of policy, courts may not pursue such arguments in deciding cases. For a consequentialist argument of policy can never provide an adequate justification for deciding in favor of one party's claim of right and against another party's claim of right. An appeal to a pre-existing right, according to Dworkin, can ultimately be justified only by an argument of principle. Thus, insofar as judicial decisions necessarily adjudicate claims of right, they must ultimately be based on the moral principles that figure into the best justification of the legal practices considered as a whole. Notice that Dworkin's views on legal principles and judicial obligation are inconsistent with all three of legal positivism's core commitments. Each contradicts the Conventionality Thesis insofar as judges are bound to interpret posited law in light of unposited moral principles. Each contradicts the Social Fact Thesis because these moral principles count as part of a community's law regardless of whether they have been formally promulgated. Most importantly, Dworkin's view contradicts the Separability Thesis in that it seems to imply that some norms are necessarily valid in virtue of their moral content. It is his denial of the Separability Thesis that places Dworkin in the naturalist camp.

An Overview of Natural Law Theory by Jonathan Dolhenty, Ph.D. Natural law theory is one of the most important theories in the philosophy of Classical Realism. It is also widely misunderstood by many who have either not taken the time to study it or have heard of it and dismissed it as a "medieval" relic. What I want to do here is merely sketch out a general presentation of natural law theory, with the hope that the reader will become interested enough to pursue further study of it. I will provide a link to more in-depth resources at the end of this essay. Before we get into an overview of the nature of natural law theory itself, let's take a brief look at some history. The concept of natural law has taken several forms. The idea began with the ancient Greeks' conception of a universe governed in every particular by an eternal, immutable law and in their distinction between what is just by nature and just by convention. Stoicism provided the most complete classical formulation of natural law. The Stoics argued that the universe is governed by reason, or rational principle; they further argued that all humans have reason within them and can therefore know and obey its law. Because human beings have the faculty of choice (a free will), they will not necessarily obey the law; if they act in accordance with reason, however, they will be "following nature."

Christian philosophers readily adapted Stoic natural law theory, identifying natural law with the law of God. For Thomas Aquinas, natural law is that part of the eternal law of God ("the reason of divine wisdom") which is knowable by human beings by means of their powers of reason. Human, or positive, law is the application of natural law to particular social circumstances. Like the Stoics, Aquinas believed that a positive law that violates natural law is not true law. With the secularization of society resulting from the Renaissance and Reformation, natural law theory found a new basis in human reason. The 17th-century Dutch jurist Hugo Grotius believed that humans by nature are not only reasonable but social. Thus the rules that are "natural" to them -- those dictated by reason alone are those which enable them to live in harmony with one another. From this argument, by the way, Grotius developed the first comprehensive theory of international law. Natural law theory eventually gave rise to a concept of "natural rights." John Locke argued that human beings in the state of nature are free and equal, yet insecure in their freedom. When they enter society they surrender only such rights as are necessary for their security and for the common good. Each individual retains fundamental prerogatives drawn from natural law relating to the integrity of person and property (natural rights). This natural rights theory provided a philosophical basis for both the American and French revolutions. Thomas Jefferson used the natural law theory to justify his trinity of "inalienable rights" which were stated in the United States Declaration of Independence. During the 19th century natural law theory lost influence as utilitarianism and Benthamism, positivism, materialism, and the historical school of jurisprudence became dominant. In the 20th century, however, natural law theory has received new attention, partly in reaction to the rise of totalitarianism and an increased interest in human rights throughout the world. With this contemporary interest in mind, let's now turn to our attention to the natural law theory as understood by the tradition of Classical Realism. What do we mean by "natural law"? In its simplest definition, natural law is that "unwritten law" that is more or less the same for everyone everywhere. To be more exact, natural law is the concept of a body of moral principles that is common to all humankind and, as generally posited, is recognizable by human reason alone. Natural law is therefore distinguished from -- and provides a standard for -positive law, the formal legal enactments of a particular society. Since law must always be some dictate of reason, natural law also will be some dictate of reason. In fact, it is law discovered by human reason. Our normal and natural grasp of the natural law is effected by reason, that is, by the thinking mind, and in this service reason is sometimes called "conscience." We, in all our human acts, inevitably see them in their relation to the natural law, and we mentally pronounce upon their agreement or disagreement with the natural law. Such a pronouncement may be called a "judgment of conscience." The "norm" of morality is the natural law as applied by conscience. Lastly, we can say that the natural law is the disposition of things as known by our human reason and to which we must conform ourselves if we are to realize our proper end or "good" as human beings. To sum it up, then, we can say that the natural law: 

is not made by human beings;



is based on the structure of reality itself;



is the same for all human beings and at all times;



is an unchanging rule or pattern which is there for human beings to discover;



is the naturally knowable moral law;



is a means by which human beings can rationally guide themselves to their good.

It is interesting to note that virtually everyone seems to have some knowledge of natural law even before such knowledge is codified and formalized. Even young children make an appeal to "fair play," demand that things be "fair and square," and older children and adults often apply the "golden rule." When doing so, they are spontaneously invoking the natural law. This is why many proponents of the natural law theory say it is the law which is "written upon the hearts of men." These are examples of what is called "connatural knowledge," that is, a knowledge which: 

follows on the "lived experience" of the truth;



is the living contact of the intellect with reality itself;



is not always given expression in concepts;



may be obscure to the knower;



is overlaid with elements from the affective or feeling side of man's nature.

Now, our reflection on our own conduct gives rise to the explicit formulation of the precepts of the natural law. We as human beings put our "commonsense" notions of natural law under "critical examination." In other words, our natural impulses toward "fair play," justice, and so on are subject to a rigorous investigation and rationalization. And our understanding of natural law becomes more precise as we consider and codify the principles or precepts of natural law. The primary precept of natural law will be the most basic principle about human action that can be formulated. Those readers familiar with Classical Realism will recall that there is an absolutely first and indemonstrable principle in the speculative order of things. That is, there is an absolutely basic, selfevident truth of reality upon which we build our entire metaphysics which serves as the foundation for our view of the ultimate structure of reality. This is the Principle of Contradiction, from which we derive other basic principles such as Identity and Excluded Middle. Strictly speaking, the Principle of Contradiction cannot be "proved." It must be accepted as an absolute "intuitive" or self-evident truth, the truth of which is shown by an analysis of the terms of the Principle and the impossibility of thinking the opposite. Natural law theory is of the "practical order" of things and the first principle of the practical order is a principle that directs human acts in all their operations, and it will be concerned with the "good," since we act in terms of what a least seems good to us. Therefore, the primary principle of the practical order -- the first precept of natural law -- is a formulation based upon the notion of the good and is stated in the following way: The "good" (according to reason) must be done, and evil (what is contrary to reason) must be avoided. The simplest statement of this precept is, of course, "Do good and avoid evil." Although we rarely express the precept of "Do good and avoid evil" explicitly (just as we rarely state the Principle of Contradiction explicitly in daily life), nevertheless we always act in terms of such a precept. This fact points to the fundamental truth of such a precept, and indicates how it expresses something "natural" to human beings. A human being naturally inclines to seek what appears good to reason, and naturally shrinks from what appears to be evil. Hence, the justification of speaking of this basic moral law as "natural" law.

Upon further reflection, we can distinguish, within natural law, primary and secondary precepts. The primary precepts will correspond to the order of natural inclinations in human beings. The most fundamental inclination of all, "Do good and avoid evil," will give rise to other primary precepts such as the natural inclination to self-preservation, to live in society, to avoid harm to others, and to know truths about the reality we live in and our own human nature. These primary precepts are unchangeable to the extent they concern the primary ends of the natural inclinations inherent in all human beings. The primary precepts are very general in their formulation. The secondary precepts, on the other hand, are more particular or specific and are concerned with things to which we are not inclined so immediately. Among these are such precepts as those regarding the education of children, and the stability of family life, and the demands of hospitality. On the negative side, we also have secondary precepts regarding the neglect of children, deliberate injury to others, and so on. Do we know everything about the natural law? This is a common question asked and a good one. The answer is a simple "No." The discovery of the natural law is a continuously unfolding enterprise. Just as it took human beings a long time to separate out and clarify the laws of physical nature, so too for the laws of moral nature. The passage of time and additional philosophical reflection always raises new issues in natural law theory. For instance, slavery was once accepted as normal and natural even by many who subscribed to natural law theory. We now know that slavery violates the natural law. Society once accepted judicial torture as being normal and natural. We now know that judicial slavery violates the natural law. And, personally, I am convinced that one day our society will "discover" that capital punishment violates natural law and we will abolish it. The obvious conclusion here is that our knowledge of natural law, particularly regarding its secondary precepts, is incomplete, and probably will always be incomplete. We, as civilized and rational human beings, will always be involved in a "critical examination" of our actions in the practical order. Out of this reflection will come new and refined "truths" regarding ethics and moral philosophy. In fact, I suspect that we are now in a time when the most important decisions we make as a society will be those in ethics and moral philosophy (think "bioethics" and "weapons of mass destruction"). This is one reason why I have no reservations about suggesting that all students in our institutions of higher education need a good dose of philosophical studies, especially, of course, in the tradition of Classical Realism. I hope you have some general knowledge of natural law theory as a result of this brief overview. Moreover, I hope I have interested you to seek more knowledge about this fascinating theory. If you want to learn more, I have suggested some resources which should help you in your investigation. See: Dr. Dolhenty's Recommended Bookshelf For Natural Law Theory.

NATURAL LAW In jurisprudence and political philosophy, a system of right or justice common to all humankind and derived from nature rather than from the rules of society, or positive law. The concept can be traced to Aristotle, who held that what was “just by nature” was not always the same as what was “just by law.” In one form or another, the existence of natural law was asserted by the Stoics (see Stoicism), Cicero, the Roman jurists, St. Paul, St. Augustine, Gratian, St. Thomas Aquinas, John Duns Scotus, William of Ockham, and Francisco Suárez. In the modern period, Hugo Grotius insisted on the validity of natural law even on the assumption that God does not exist, and Thomas Hobbes defined a law of nature as “a precept of general rule found out by reason, by which a

man is forbidden to do that which is destructive of his life.” Hobbes attempted to construct an edifice of law by rational deduction from a hypothetical “state of nature” and a social contract of consent between rulers and subjects. John Locke departed from Hobbes in describing the state of nature as an early society in which free and equal men observe the natural law. Jean-Jacques Rousseau postulated a savage who was virtuous in isolation and actuated by two principles “prior to reason”: selfpreservation and compassion. The authors of the U.S. Declaration of Independence refer only briefly to “the Laws of Nature” before citing equality and other “unalienable” rights as “self-evident.” The French Declaration of the Rights of Man and of the Citizen asserts liberty, property, security, and resistance to oppression as “imprescriptible natural rights.” Interest in the concept of natural law declined dramatically in the 19th century, partly as a result of skeptical attacks by Jeremy Bentham and other proponents of utilitarianism; it was revived in the mid-20th century in light of the crimes committed by the Nazi regime during World War II. Skepticism of natural law and natural rights remained strong, however, and later writers almost invariably talked of human rights rather than natural rights. STOICISM School of philosophy in Greco-Roman antiquity. Inspired by the teaching of Socrates and Diogenes of Sinope, Stoicism was founded at Athens by Zeno of Citium c. 300 BC and was influential throughout the Greco-Roman world until at least AD 200. It stressed duty and held that, through reason, mankind can come to regard the universe as governed by fate and, despite appearances, as fundamentally rational, and that, in regulating one's life, one can emulate the grandeur of the calm and order of the universe by learning to accept event s with a stern and tranquil mind and to achieve a lofty moral worth. Its teachings have been transmitted to later generations largely through the surviving books of Cicero and the Roman Stoics Seneca, Epictetus, and Marcus Aurelius. Jurisprudence may be divided into three branches: analytical, sociological, and theoretical. The analytical branch articulates axioms, defines terms, and prescribes the methods that best enable one to view the legal order as an internally consistent, logical system. The sociological branch examines the actual effects of the law within society and the influence of social phenomena on the substantive and procedural aspects of law. The theoretical branch evaluates and criticizes law in terms of the ideals or goals postulated for it. Thomas Hobbes Born April 5, 1588, Westport, Wiltshire, Eng. died Dec. 4, 1679, Hardwick Hall, Derbyshire English philosopher and political theorist. The son of a vicar who abandoned his family, Hobbes was raised by his uncle. After graduating from the University of Oxford he became a tutor and traveled with his pupil in Europe, where he engaged Galileo in philosophical discussions on the nature of motion. He later turned to political theory, but his support for absolutism put him SOCIAL CONTRACT Actual or hypothetical compact between the ruled and their rulers. The original inspiration for the notion may derive from the biblical covenant between God and Abraham, but it is most closely associated with the writings of Thomas Hobbes, John Locke, and

Jean-Jacques Rousseau. Hobbes argued that the absolute power of the sovereign is justified by a hypothetical social contract in which the people agree to obey him in all matters in return for a guarantee of peace and security, which they lack in the warlike “state of nature” posited to exist before the contract is made. Locke believed that rulers also were obliged to protect private property and the right to freedom of thought, speech, and worship. Rousseau held that in the state of nature people are unwarlike but also undeveloped in reasoning and morality; in surrendering their individual freedom, they acquire political liberty and civil rights within a system of laws based on the “general will” of the governed. The idea of the social contract influenced the shapers of the American Revolution and the French Revolution and the constitutions that followed them.

Thomas Hobbes and John Locke Thomas Hobbes and John Locke, where they agreed and disagreed concerning nature, natural law, and the nature of man in a state of war. Thomas Hobbes and John Locke were two main political philosophers during the seventeenth century. Hobbes is the well known author of Leviathan, and Locke is the author of An Essay Concerning Human Understanding. In their essays, both men address the characteristics of man, natural law, and the purpose and structure of government. The two men have very different opinions of the characteristics of man. Hobbes sees man as being evil, whereas Locke views man in a much more optimistic light. They both agree that all men are equal according to natural law. However, their ideas of natural law differ greatly. Hobbes sees natural law as a state of war in which every man is a enemy to every man. Locke on the other hand, sees natural law as a state of equality and freedom. Locke therefore believes that government is necessary in order to preserve natural law, and on the contrary, Hobbes sees government as necessary in order to control natural law. Hobbes and Locke see mankinds natural characteristics in two very different ways. Hobbes describes the life of man as solitary, poor, nasty, brutish, and short. He obviously does not think very highly man. He also says that it is hard for men to believe there be many so wise as themselves, expressing his discontent with how selfish men are. Conversely, Locke views mankinds natural characteristics much more optimistically. Locke sees men as being governed according to reason. He perceives men to be thinking, capable individuals that can coexist peacefully. Hobbes and Locke disagree on mankinds natural characteristics, but the degree of their disagreement grows much larger with respect to natural law. The main thing that Hobbes and Locke can seem to agree on, with respect to natural law, is that all men are equal in nature. For Hobbes, this equality exists in a state of war, in which every man has a right to every thing. He terms this state of war, a state of equality, because even the weakest has strength enough to kill the strongest. In Hobbess opinion, no one is superior, because they are all equal in their level of rottenness. Locke agrees that in natural law, no one is superior. However he writes, the state all men are naturally inis a state of perfect freedom equality and liberty, displaying his belief that men are sensible by nature, and can exist happily according to natural law, without the need for constant war. Locke does admit that war is sometimes necessary, but that one may only destroy a man who makes war upon him. In general, he believes that it is beneficial for humans to follow natural law. Since natural law is good, and not evil for Locke, it is therefore the role of government to preserve natural law. For Hobbes on the other hand, government must exist in order to control natural law. Hobbes reasons that people will abide by the laws the government sets, for fear of some evil consequence. Hobbes points out the selfish reasons for why man will follow government in order to

explain how government is able to work, with men being so naturally evil. Locke sees government, as merely a preservation of that which is already good. Locke believes that people are willing to unite under a form of government so as to preserve their lives, liberties and estates, or in other words, their property. Since natural law is already good, government not only preserves natural law, but also works to enhance it. The ideas presented by Hobbes and Locke are often in opposition. Hobbes tends to take a much more pessimistic stance; viewing men as evil, natural law as a state of war, and government as something that can wipe out natural law. Locke takes a much more optimistic stance; viewing men as free and equal and seeing government as only a preservation of the state they are naturally in. Despite the difference in their arguments, their ideas were revolutionary for their time. The interest they took in mans natural characteristics, natural law, and the role of government, provided inspiration for, and was the focus of many literary works throughout the Enlightenment. MARXIST JURISPRUDENCE TUTOR : CHRIS BEHRENS STUDENT: DAVID RISSTROM: 9106105 In the social production of their existence, men inevitably enter into definite relations, which are independent of their will, namely relations of production appropriate to a given stage in the development of their material forces of production. The totality of these relations constitute the economic structure of society, the real foundation, on which arises a legal and political superstructure and to which correspond definite forms of social consciousness. Karl Marx, Preface to A Contribution to the Critique of Political Economy, 521.1 Marxist jurisprudence posits that legal relations are determined by the economic base of particular kinds of society and modes of production. 2 Marxist thought’s primary focus rests on political economy and the corresponding power relations within society, providing the most extensive critique to date of liberal tradition on which many of our legal presuppositions are founded. To this end, this essay examines law, its structure, motivation and consequences for justice and rights from a Marxian jurisprudential perspective. MARXISM AND LAW Your ideas are but the outgrowth of the conditions of your bourgeois production and bourgeois property, just as your jurisprudence is but the will of your class made into a law for all, a will, whose essential character and direction are determined by the economical conditions of existence in your class. Karl Marx, The Communist Manifesto, 24. Law is not of central concern to Marxists jurisprudentialists, as law in the capitalist mode of production is seen as an instrument of class oppression perpetuated as a consequence of its particular historical, social and economic structures. Indeed, wishing to avoid liberal predisposition towards Marx, K., ‘Preface to A Contribution to the Critique of Political Economy’ in Karl Marx and Frederick Engels Selected Works, Moscow: Progress Press, 1989 521. 2 Balbus, I., ‘Commodity Form and Legal Form’ in Reasons, C., The Sociology of Law, Toronto: Butterworths, 1978 83. 1

legal fetishism, Marxists deny the degree of importance jurisprudence typically affords law in analyses of the composition and determination of social formations. 3 WHAT IS MARXISM? Marxist theories of political economy, expounded upon the notions of Karl Marx (1818-83) and Friedrich Engels (1820-95), consider law an instrument of class oppression that benefits the ruling class through oppression of the proletariat. The common law system of criminal and civil law, which protects personal and private property rights, as well as facilitating predicability in social life, is regarded as “no more than a system of coercion designed to protect bourgeois ownership of the means of production”. 4 Yet, despite Marx and Engels’ failure to develop a systematic approach to law 5, and claims of failure in Eastern Europe and the Soviet Union, Marxism’s materialist emphasis, particularly concerning the notion of alienation and its consequences as outlined by Ollman 6, assists its contemporary paucity. 7 HISTORICAL MATERIALISM Men have history because they must produce their life, and because they must produce it moreover in a certain way: this is determined by their physical organisation; their consciousness is determined in just the same way. Marx, The German Ideology, 49. The determinist relationship between the economic base and social superstructure, known as Historical Materialism, is first described in The German Ideology.8 Historic materialism contends that the catalyst behind societal evolution is materially determined, being predicated on contradictions between the forces and means of production. As “it is not consciousness that determines life, but life that determines consciousness” 9, law is a reflection of the economic base, rather than the reserve as liberals such as Dworkin would propose. Under increasing industrialisation Marx foresaw crystallisation of society into two classes; bourgeoisie and proletariat. These relations of production developed due to particular forces of production under the capitalist mode of production that coerced the bourgeoisie to extract surplus value as profit from the proletariat. Laws, as Marx detailed in Capital, as one element of the social superstructure, assisted in forcing down wages. 10

3

4 5 6 7 8

9 10

Collins, H., Marxism and Law, Oxford: Oxford University Press, 1987 98. Barry, N., An Introduction to Modern Political Theory, London: Macmillan, 1989 53. Cain, M., and Hunt, A., 1979, Marx and Engels on Law, London: Academic Press. Ollman, B.,1976, Alienation; Marx’s Conception of Man in Capitalist Society, Cambridge: Cambridge University Press. Collins, H., op cit., 10. Marx, K., and Engels, F., 1976, The German Ideology, Moscow: Progress Press. Marx, K., The German Ideology, Moscow: Progress Publishers, 1976 42. Marx, K., ‘Bloody Legislation against the Expropriated, from the end of the 15th. century: Forcing Down Wages by Acts of Parliament’ in Capital, 1986 686.

Collins characterises two Marxist approaches; crude materialism, in which law is simply a reflection of the economic base; and secondly, class instrumentalism; in which rules emerge because the ruling class want them to. 11 This distinction continues as an area of debate, as demonstrated by O'Malley’s attacks of Quinney and Chambliss’ crude materialist claim that law is a direct tool of powerful classes or groups, favouring the more interactionist, and less conflict premised theory of legislative change. 12 The Relative Autonomy Thesis is such a theory. Contemporary Marxists such as Marcuse, suggest mechanisms analogous to the Factory Acts and Vagrancy Acts remain instruments of the ruling class perpetuating conditions reinforcing this arrangement, especially in relation to the alienating nature of modern technological rationality. 13 BASE AND SUPERSTRUCTURE IN THE C APITALIST MODE OF PRODUCTION Much of our law, such as Contract, Property and Commercial Law, is predicated on the existence of the capitalist mode of production. As Marx’s major project was the critique of capitalism, irrespective of a belief in revolution, Marxism has a great deal to notify us of in our contemporary jurisprudence. Marxism postulates that in the social production of their existence, people, independent of their will, enter into definite relations of production appropriate to a given stage in the development of the materials forces of production. 14 Consequently the societal superstructure, including but not dominated by law, amongst other hegemonic devices, is determined by the economic base and the organisation of power in society. 15 Marxist jurisprudence concentrates on the relationship between law and particular historical, social and economic structures, seeing law, unlike liberal theory, as having no legitimate primacy. Frequently encountered legal rules and doctrine, argue Gramsci 16 and Althusser 17, establish modern liberal jurisprudential hegemony. 18 SCIENTIFIC SOCIALISM Marxist epistemology, with dialectic materialism as the centrepiece of Marxism’s scientific claim, proclaims in real life, where speculation ends, positive science; the representation of the practical activity, of the practical progress of development of men, begins. 19 Whilst Marx’s materialism does not refer to the assumption of a logically argued ontological position, Marx adopts an undoubtedly Realist position, in which ideas are the product of the human brain in sensory transaction with a knowable material world. 20

11 Collins, H., Marxism and Law, Oxford: Oxford University Press, 1987 24. 12 O’Malley, P., ‘Theories on Structure Versus Causal Determination’ in Tomasic (ed.) Legislation and Society in Australia, Allen and Unwin, 1980 140. 13 Marcuse, H., One-Dimensional Man, Boston: Beacon Press, 1968 xv. 14 Marx. K., Preface To ‘A Contribution to the Critique of Political Economy’ in Karl Marx and Friedrich Engels Selected Works, 1989 521. 15 Collins, H., op cit., 9. 16 Gramsci, A., Selections from the Prison Notebooks, London: Lawrence and Wishart. 1971 195. 17 Althusser, L., For Marx, London: New Left Books, 1977 114. 18 Collins, H., Marxism and Law, Oxford University Press, 1982 50. 19 Marx, K., The German Ideology, Moscow: Progress Publishers, 1976 38. 20 Giddens, A., Capitalism and Modern Social Theory: An Analysis of the writings of Marx, Durkheim and Weber, Cambridge: Cambridge University Press, 1971 21.

These claims contrast with those of natural lawyers such as Aquinas who believe religion should normatively guide law; those desiring utilitarian tendencies such as Austin and Bentham; or objective consistency as some positivists such as Hart, or perhaps integrity, as perhaps only Dworkin can fully endorse. Nevertheless, whilst debate as to the scientific credentials of Marxism continue, Collins claims Marxism’s desire for class reductionism to explain the dynamic interaction between man and nature risks misconstruing the diversity of social phenomena in order to confirm the ‘rigid systemic framework of historical materialism’. 21 LAW AND THE DICTATORSHIP OF THE PROLETARIAT Law, morality, religion, are to him so many bourgeois prejudices, behind which lurk in ambush as many bourgeois interests. Karl Marx, The Communist Manifesto, 18 Marxism saw development of the relations of production dialectically, as both inevitable, and creating hostility. Accelerated by increased class consciousness, as the contradictions of capitalism perforate the bourgeois hegemony, inevitable revolution and a dictatorship of the proletariat would facilitate “socialised production upon a predetermined plan.”22 Given the scientific nature of Historic Materialism, and upon recognising the role the state and its laws supply, the proletariat will seize political power and turn the means of production into state property 23, then according to Marxist jurisprudence, “As soon as there is no longer any class to be held in subjection; as soon as class rule and the individual struggle for existence … are removed, nothing more remains to be repressed.” 24 COMMUNISM AND THE END OF LAW The meaning of history, that man’s destiny lies in creation of a Communist society where “law will wither away” 25 , as men experience a higher stage of being amounting to the realisation of true freedom, will after transition through Socialism, be achieved. J USTICE AND R IGHTS Communism abolishes eternal truths, it abolishes all religion, and all morality, instead of constituting them on a new basis. Karl Marx, The Communist Manifesto, 24 Marxism argues there is no absolute concept of justice, justice being dependent on the requirements of a given mode of production. 26 Lukes claims Marx believes justice, “Does not provide a set of independent rational standards by which to measure social relations, but must itself always in turn be explained as arising from and controlling those relations”.27 Collins, H., op cit., 45. Engels, F., Socialism: Utopian and Scientific, Moscow: Progress Publishers: 1954 79. Ibid., 73. Ibid., 73. Marx, K., The German Ideology, Moscow Progress Press, 1976 51. 26 Wacks, R., Jurisprudence, London: Blackstone Press, 1987 175. 27 Lukes, S., Marxism, Morality and Justice’ in Parkinson, G., Marx and Marxisms, Cambridge: Cambridge University Press, 1982 197. 21

22 23 24 25

Marxism believes that rights are simply a bourgeois creation, and that justice is something only the rich can achieve in capitalist modes of production. Anatole France (1894) encapsulated this distinction between formal and substantive justice as entitlement, drawing attention to “the majestic egalitarianism of the law, which forbids rich and poor alike to sleep under bridges, to beg in the streets and to steal bread.” 28 Formal justice as entitlement therefore allows equal opportunity to the individual without any reference to the unequal ability to use it, with rights only being anti-socialist if individuals are taken to be “inherently and irredeemably self-interested.”29 Marxist dispute over how rights and justice will operate in practice are answered by the materialist proposition that the “distribution of burdens and benefits should not be taken in accordance with a book of rules, but in the light of the objectives of social policy.” 30 Campbell distinguishes between Socialist and Bourgeois Rights, arguing that an interest based theory of rights, rather than the contract based notions such as Pashukanis’ incorporated in his commodity exchange theory of law 31, allow protection of the individual 32, thereby negating the logical connection between rights and justice.33 IN SUMMARY Marxist jurisprudence and Marxist critiques of law provide invaluable challenges to our thinking as people under law in a liberal democratic society. This essay is only the briefest of introductions in a field rich with reflections concerning the assumptions we construct into our law. Whether you accept the claims of its doctrine, its influence on shaping the society we live in is more significant than most of us realise.

22.6 Rights Without Duties Hohfeld, a legal philosopher, emphasised the relationship between rights and duties and also the difference between right and privilege. Hohfeld emphasised that there cannot be a right without a duty. Right in one person presupposes a duty in another. The concept of a right without a duty is meaningless. Likewise he also distinguished between rights and privileges. A privilege is available on sufferance. It is a discretion vested in the person granting it. A right is an entitlement. On this analysis what are commonly called rights to employment, welfare, etc, are not rights. A right to employment is meaningless because there is no person who is under a duty to employ. Welfare is not a right. It is a privilege which is given to certain persons. Whether one agrees with this analysis or not, it is undeniable that at the commonsense level a right involves a duty in another person or institution. As an essential commonsense corollary, it must also involve an acceptance of that duty by the person who is subject to it. It is ironic in society today that while more and more people are demanding rights, fewer and fewer people are concerned about 28 Gamble, A., An Introduction to Modern Political and Social Thought, Hampshire: Macmillan, 1987 101. 29 Campbell, T., Justice, London: Macmillan, 1988 189. 30 Campbell, T., The Left and Rights, London: Routledge and Kegan Paul, 1983 33. 31 Warrington, R., ‘Pashukanis and the commodity form theory’ in Sugarman, D., Legality, Ideology and the State, London: Academic Press, 1983 43. 32 33

Campbell, T. 1983, op cit., 123. Ibid., 124.

duties, least of all those who are most vocal in the assertion of rights. Governments, the Human Rights Commission and many other government agencies provide doubtful leadership in this regard. They are educating people about their rights and are attempting to make more and more rights available with no reference to logic and commonsense. But they seem unconcerned about the need to educate people about duties and the importance of a sense of responsibility. A dangerous byproduct of the welfare state and the growth of government is a profound attitudinal change in society which makes people demand more and more and contribute less and less. This transformation of the social psyche has taken place imperceptibly to the point that it unconsciously pervades the entire society. The preoccupation with rights (particularly state created social and economic rights) has become an obsession. Although this is not an intrinsic evil, the pursuit of rights becomes self defeating when it is unaccompanied by the commitment to duties. The pressures exercised by interest groups have become the dominant feature of the modern era. These demands come not only from the poor and the underprivileged, but also from privileged academic, bureaucratic, social and business groups. At the same time there is a deafening silence on the question of individual responsibility. The interventionist welfare state has become a super patriarchal entity from which individual members have come to expect solutions to all problems. Rights are being demanded and duties forgotten. The Bible emphasises duties and responsibilities (not rights). The Ten Commandments are duties. Duties have been more important than rights in the Australian Achievement. The emphasis on rights to the near exclusion of duties and responsibilities in modern society is a challenge. There is a grave danger in the push towards legislative recognition of subjective (so-called) rights in response to the demands of politically influential pressure groups. A duty-centred society is preferable to a right-centred society. If individuals are concerned about their duties, responsibilities and obligations, they cannot but be concerned about the rights and freedoms of others. A right-centred society is one in which individuals assert their rights. They are encouraged by the Human Rights Commission and like Commonwealth and State bodies, to demand rights, with no consideration for the effect of those demands on other people, eg the right to protest and demonstrate conflicts with the right of pedestrians and motorists to use the public roads for the purpose for which roads are built. Governments and pressure groups which focus on rights, give no thought to how rights can operate in the absence of a climate in which the importance of duties is emphasised. There is no end to the so-called rights which can be demanded. A right-conscious society, in effect, recognises a few rights and neglects many others. The rights that are recognised are those which are demanded by the powerful, the aggressive and the nasty. There cannot be a right without a duty. An endless cacophony of demands by interest groups for rights has become a dominant feature of the modern Australian State (fed by legislation which encourages these demands). At the same time there is a deafening silence on the question of individual responsibility. The time has come to realise and to emphasise that rights, whether mater ial or political, depend on the discharge of duties. Wealth and prosperity are created by effort. Only continuing effort can sustain them. Western societies through effort have achieved a level of prosperity unparalleled in history.

History has continually demonstrated that the greatest of civilisations decline and fall when they succumb to indulgence at the expense of discipline and endeavour. The fate of Egyptian and Roman civilisations are prime examples. It is not too early for Western Civilization.