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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 maths 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 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
sourcea statute, a decision, or a conventionwhen 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, 165-
70) 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 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
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.

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").

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.

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.

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)).

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."

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 re-
characterized 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.

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.

(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


II. Conceptual Naturalism

o II.1 The Project of Conceptual Jurisprudence


o II.2 Classical Natural Law Theory

III. The Substantive Neo-Naturalism of John Finnis

IV. The Procedural Naturalism of Lon L. Fuller

Ronald Dworkin's "Third Theory"

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 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 rule-
guided 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 non-
laws' 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 goal-
oriented 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 conditionsand 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, self-
evident 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 Surez. 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: self-
preservation 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 thoughts 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

1 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.
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, Marxisms 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 Collins, H., Marxism and Law, Oxford: Oxford University Press, 1987 98.
4 Barry, N., An Introduction to Modern Political Theory, London: Macmillan, 1989 53.
5 Cain, M., and Hunt, A., 1979, Marx and Engels on Law, London: Academic Press.
6 Ollman, B.,1976, Alienation; Marxs Conception of Man in Capitalist Society, Cambridge:
Cambridge University Press.
7 Collins, H., op cit., 10.
8 Marx, K., and Engels, F., 1976, The German Ideology, Moscow: Progress Press.
9 Marx, K., The German Ideology, Moscow: Progress Publishers, 1976 42.
10 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'Malleys 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 Marxs 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 Marxisms 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 Marxs 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 OMalley, 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 Marxisms 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 mans 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

21 Collins, H., op cit., 45.


22 Engels, F., Socialism: Utopian and Scientific, Moscow: Progress Publishers: 1954 79.
23 Ibid., 73.
24 Ibid., 73.
25 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.
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 Campbell, T. 1983, op cit., 123.
33 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.

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