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JURISPRUDENCE
TOPICAL OUTLINES
- Legal Positivism
- Natural Law
- Feminist Jurisprudence
- Marxist Jurisprudence
- 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
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
(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 society 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 non- moral, 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 source- based 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.)
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
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 self- image 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 value- neutral. 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
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.
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
- 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).
- 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
