Definition of Law: Command of the Sovereign

Legal Positivism is a school of jurisprudence that holds that the existence and content of law depend on social facts, not on its merits. It emphasises the separation of law as it is (lex lata) from law as it ought to be (de lege ferenda) and is often contrasted with natural law theory.

The Analytical School, primarily associated with Jeremy Bentham and John Austin, is a prominent stream within legal positivism. It focuses on analysing the fundamental concepts of law and legal systems as they exist.

John Austin (1790-1859): The Province of Jurisprudence Determined (1832)

John Austin is considered the father of English Analytical Jurisprudence. He sought to define law precisely and distinguish it from other rules. His core theory, the Command Theory of Law, is a cornerstone of early legal positivism.

Austin defined law strictly as 'a rule laid down for the guidance of an intelligent being by an intelligent being having power over him'. He then narrowed this down to focus on positive law.

According to Austin, positive law is the command of the sovereign, backed by a sanction. This is the central tenet of his theory.

Law as a product of political authority

Austin viewed positive law as entirely a social fact, created by a political authority (the sovereign) in a particular society. Its validity derives solely from its source (the sovereign's command), not from any inherent moral content or connection to natural law principles. He explicitly separated law from morality; a law could be morally unjust but still be valid law if it was a command from the sovereign.

Sanction as an essential element

Austin argued that a command is effective as law only if it is backed by the threat of a sanction. A sanction is an evil or punishment that is likely to follow from disobedience to the command. This threat of punishment is what creates a duty to obey the law.

Thus, for Austin, law is essentially a system of commands, duties, and threatened punishments originating from a determinate political superior.

Components of Austin's Theory

Austin's command theory can be broken down into its core components: Sovereign, Command, Duty, and Sanction.

Sovereign

According to Austin, the sovereign is a determinate human superior who is habitually obeyed by the bulk of a given society, and who himself habitually obeys no other human superior.

• The sovereign is the ultimate source of law.

• His power is indivisible, illimitable, and supreme.

• In the English context, Austin identified the King-in-Parliament as the sovereign.

Command

A command is an expression of a wish or desire by a superior, coupled with the power to inflict an evil or suffering in case of disobedience. Not all commands are laws. Laws properly so-called are general commands issued by the sovereign.

Austin distinguished between laws properly so-called (commands of the sovereign) and laws improperly so-called (like laws of fashion, international law as it existed then, which lacked a sovereign enforcer).

Duty

A duty, in Austin's theory, is the obligation to obey the command of the sovereign. It is created by the likelihood of incurring the threatened sanction in case of disobedience. Duty is correlative to command; where there is a command, there is a duty to obey.

Sanction

A sanction is the evil or punishment attached to the command, which is imposed for disobedience. It is the motivational force behind obedience to the law. Without a threatened sanction, according to Austin, a command is not a law properly so-called.

Austin's theory thus presents a simple, stark model of law as hierarchical commands backed by force, issued by an ultimate political superior.

Classification of Law

Austin's definition of law led him to classify various rules and norms, distinguishing what he considered 'positive law' from other forms of rules.

Laws Properly So Called vs. Laws Improperly So Called:

Austin's main classification divides rules into:

• Laws Properly So Called: These are commands set by God to men (Divine Law) or commands set by men to men (Human Law).

• Laws Improperly So Called: Rules that do not involve a command relationship (e.g., laws of nature like gravity) or commands that are not issued by a sovereign in a political society (e.g., rules of clubs, international law).

Human Law (Positive Law, Positive Morality)

Austin further divided Human Law (commands set by men to men) into:

• Positive Law: These are laws set by political superiors to political inferiors. This is the subject matter of jurisprudence for Austin. Its distinguishing features are that it is a command, issued by a sovereign, and backed by a sanction. Examples: Acts of Parliament, judicial decisions (interpreted as commands). Positive law is separate from morality.

• Positive Morality: These are commands set by men to men, but not by political superiors. These include rules of clubs, ethical rules, rules of international law as it existed then (which Austin considered more like positive morality as it lacked a sovereign enforcer). These rules are based on opinion or sentiment, not sovereign command, and their enforcement is not through legal sanctions.

By this classification, Austin sought to delineate the specific domain of legal science – positive law – from other normative systems like divine law or positive morality.

Criticism of Austin's Theory

Despite its influence, Austin's command theory has faced significant criticism for its oversimplification of the nature of law and legal systems.

Criticism related to laws as commands, duties, and sanctions

• Not all laws are commands: Many laws are not in the form of commands. For example, laws that confer powers (e.g., law of contracts, law of property, laws relating to marriage, laws enabling public officials to act), laws creating rights, or purely procedural laws do not fit neatly into the command model.

• Sanction is not always essential: Not all laws are backed by sanctions. Power-conferring rules, for instance, do not impose duties backed by punishment; their invalidity results in a nullity, not a sanction. Moreover, people obey laws for various reasons (habit, morality, legitimacy) beyond the fear of punishment.

• Duty is not merely fear of sanction: Reducing duty solely to the likelihood of punishment ignores the internal aspect of rules, where people feel obligated to follow rules because they accept them as standards of behaviour, not just out of fear.

Criticism related to Sovereignty

• Sovereign is not always determinate or illimitable: In modern constitutional democracies, the sovereign is often the Constitution itself or 'the People', neither of which is a determinate human superior. Moreover, constitutional law limits the power of the legislature, contradicting Austin's idea of an illimitable sovereign. Federal systems also involve division of powers, challenging the idea of an indivisible sovereign.

• Habit of obedience is insufficient: Law continues even when the sovereign changes, which is not explained solely by a habit of obedience to the previous sovereign. Legal systems involve rules governing succession to sovereignty, which are not themselves commands of a sovereign.

Criticism related to the role of custom and morality

• Ignores the role of custom: Customary law (rules developed through long-standing practice and acceptance) existed before states and sovereigns and continues to be a source of law in many systems. Austin dismissed custom as law until it was adopted by the sovereign, failing to recognise its intrinsic legal character.

• Strict separation of law and morality is problematic: While conceptually distinct, law and morality are deeply interconnected in practice. Moral values influence law-making, law interpretation, and law enforcement. Extremely unjust laws may lose their legitimacy and effectiveness, blurring the line between law and what is considered merely brute force.

Austin's theory provides a simple starting point for understanding positive law but fails to capture the complexity, diversity, and normative nature of modern legal systems. Subsequent legal positivists, like Hart and Kelsen, developed more sophisticated theories to address these criticisms.

Concept of Law as Union of Primary and Secondary Rules

H.L.A. Hart (Herbert Lionel Adolphus Hart) is one of the most important legal philosophers of the 20th century. In his seminal work, 'The Concept of Law' (1961), he presented a sophisticated version of legal positivism, building upon and significantly critiquing Austin's command theory.

Hart viewed law as a system of social rules, fundamentally different from Austin's model of commands. His central concept is that a mature legal system is a union of primary and secondary rules.

Primary Rules: Duty-imposing

Primary rules are those that directly impose duties on individuals regarding their actions or forbearances. They tell people what they are obligated to do or not to do (e.g., rules of criminal law prohibiting theft, rules of tort law imposing duties of care).

In a simple society without a developed legal system, there might only be primary rules. However, such a system would suffer from certain defects:

• Uncertainty: It would be difficult to know what the rules are or their precise scope.

• Static Character: Rules could only be changed or adapted slowly.

• Inefficiency: There would be no organised way to settle disputes about the rules or their application.

Secondary Rules: Power-conferring

To remedy the defects of a system based solely on primary rules, secondary rules are necessary. Secondary rules are rules about rules. They do not impose duties directly but confer powers, public or private, to create, modify, or extinguish primary rules, or to determine their violation.

Hart identified three types of secondary rules:

1. Rule of Recognition: This is the most important secondary rule. It specifies the criteria for identifying what counts as valid law within a particular legal system. It provides the ultimate rule for determining the validity of primary rules. In a complex legal system, the rule of recognition might be complex, referring to criteria like legislative enactment, judicial precedent, constitutional provisions, etc. Its existence is a matter of social fact, evidenced by the practice of officials (judges, lawyers, administrators) in identifying and applying valid laws.

2. Rule of Change: These rules empower individuals or bodies (like legislatures) to introduce new primary rules, repeal old ones, or modify existing ones. They remedy the static character of a system based only on primary rules (e.g., rules governing the legislative process).

3. Rule of Adjudication: These rules confer power on individuals (like judges) to determine authoritatively whether a primary rule has been violated and to impose sanctions. They remedy the inefficiency of a system lacking formal mechanisms for dispute resolution (e.g., rules of evidence and procedure).

For Hart, a legal system exists when its officials accept and follow the secondary rules (particularly the rule of recognition) from an 'internal point of view' (i.e., seeing them as standards of behaviour and justification) and the bulk of the population obeys the primary rules.

This theory provided a more nuanced and accurate picture of legal systems than Austin's command theory, accounting for different types of laws and the internal aspect of rules.

Minimum Content of Natural Law

While advocating for the conceptual separation of law and morality (legal positivism), Hart acknowledged that any viable legal system must contain a certain minimum moral content. This he referred to as the minimum content of natural law.

The five truths about human nature

Hart argued that this minimum content is necessary because of certain universal truths about human nature and the conditions of life. He listed five such 'truisms' or facts:

1. Human vulnerability: Humans are vulnerable to physical attack. This necessitates rules restricting the use of violence.

2. Approximate equality: No single individual is so powerful as to dominate others without cooperation. This makes mutual forbearances necessary.

3. Limited altruism: Humans are neither angels nor devils. They are capable of both good and bad acts. Rules are needed to restrain harmful behaviour and ensure cooperation.

4. Limited resources: Resources are scarce, necessitating rules governing property and distribution.

5. Limited understanding and strength of will: Not all humans are rational or capable of self-control. This makes sanctions necessary as guarantees that those who would voluntarily submit to the rules are not sacrificed to those who would not.

These facts, combined with the human goal of survival, make a minimum set of rules protecting persons, property, and promises universally necessary for any system of social order to endure. Hart argued that these are not absolute moral dictates in a metaphysical sense, but necessary conditions for survival, making a minimum overlap between law and morality a reality, not a conceptual necessity for legal validity.

This concept showed that Hart's positivism was more open to considering the relationship between law and human nature than earlier positivist theories.

Distinction between Law and Morals

A core tenet of legal positivism, and specifically Hart's theory, is the distinction between law and morals. This is known as the separation thesis.

Separation Thesis

The separation thesis asserts that there is no necessary connection between law and morality. This means:

• The validity of a law does not depend on its moral content. A law can be morally unjust but still be legally valid if it has been enacted by the competent authority according to the correct procedure (as identified by the rule of recognition).

• Moral rules are not necessarily laws, and legal rules are not necessarily moral.

Hart argued for the conceptual separation of law and morality. He believed that understanding law requires analysing its structure as a system of rules and its basis in social practice (especially the acceptance of the rule of recognition by officials), independent of moral evaluation.

However, Hart acknowledged the many ways in which law and morality do interact in practice:

• Moral principles can influence the content of laws.

• Moral considerations can influence judicial interpretation of laws.

• Moral values can play a role in the criticism and reform of law.

• As discussed, there is a minimum content of natural law (an overlap based on survival goals).

Despite these interactions, Hart maintained that the definition and identification of law are distinct from its moral evaluation. This separation allows for clarity in understanding what the law is, even if one believes it is morally wrong. It also encourages a critical moral attitude towards law, as judging law requires a standard external to law itself.

Criticism of Hart's Theory

Despite its sophistication, Hart's theory has also faced criticism, notably from legal philosopher Ronald Dworkin.

Dworkin's Critique (Principles vs. Rules)

Ronald Dworkin (1931-2013) presented a major challenge to Hart's positivism in his work 'Taking Rights Seriously' (1977).

• Beyond Rules: Dworkin argued that legal systems are not composed solely of rules, as Hart suggested. Legal systems also include other standards, such as principles and policies.

• Principles vs. Rules: Rules operate in an all-or-nothing fashion (either they apply or they don't). Principles, on the other hand, have the dimension of weight or importance. They provide reasons for deciding a case, but they do not dictate a particular outcome in the way rules do. In hard cases (cases not clearly covered by existing rules), judges often rely on principles.

• The Argument from Hard Cases: Dworkin argued that in hard cases, judges do not exercise discretion by making new law (as Hart suggested), but rather they find the right answer by weighing competing principles already existing within the law. This process of 'finding' and applying principles shows that law is not exhausted by rules identifiable by the rule of recognition.

• No Separation of Law and Morality: Dworkin argued that principles often have a moral dimension. Since these principles are part of the law, the separation thesis (conceptual separation of law and morality) is false. Determining what the law is often requires moral reasoning.

Dworkin used famous cases like Riggs v. Palmer (where a murderer was denied inheritance despite a valid will, based on the principle that no one should profit from their own wrong) to argue that principles, which have a moral character, are integral to the legal system and constrain judicial decisions even when rules might suggest a different outcome.

Dworkin's critique led to extensive debates within legal philosophy about the nature of law, the role of judges, and the relationship between law and morality, prompting responses and refinements from positivists like Joseph Raz.

Concept of Law as a Normative Science

Hans Kelsen (1881-1973), an Austrian jurist and philosopher, is another highly influential figure in legal positivism. His 'Pure Theory of Law' (Reine Rechtslehre) aims to provide a rigorous and 'pure' description of law, free from any foreign elements like morality, sociology, or history.

Pure Theory:

Kelsen sought to identify the essential nature of law as a system of coercive norms. His theory is 'pure' because it seeks to isolate law from all non-legal disciplines and focus solely on the nature of legal norms and their structure within a legal system.

Law as a System of Norms:

For Kelsen, law is a system of norms. A norm is a rule that prescribes a certain behaviour and attaches a consequence (usually a sanction) to non-compliance. Legal norms are distinguished from other norms (e.g., moral norms) by their coercive character; they are backed by the threat of state-imposed sanctions.

Kelsen focused on the validity of norms. A norm is valid if it is authorised by a higher norm within the legal system. This leads to a hierarchical structure of legal norms.

Grounded Norm (Grundnorm)

The hierarchical structure of legal norms must ultimately rest on a basic, foundational norm that provides the basis for the validity of the entire legal system. Kelsen called this the 'Grundnorm' or Basic Norm.

• The Grundnorm is a hypothetical, presupposed norm. It is not a positive rule of law enacted by any authority. Rather, it is a transcendental-logical presupposition that one must make to understand the legal system as a valid, binding system of norms.

• In a country with a written constitution, the Grundnorm might be presupposed as "The Constitution is to be obeyed". However, the Grundnorm is not the Constitution itself, but the presupposition of its binding force.

• The Grundnorm's existence is presupposed when the legal system is by and large effective. The efficacy of the legal system (people generally obey it) provides a basis for presupposing the Grundnorm's validity.

Hierarchy of Norms

According to Kelsen, a legal system is a dynamic system of norms structured in a hierarchy, like a pyramid.

• At the apex is the Grundnorm.

• Below the Grundnorm is the Constitution, which derives its validity from the Grundnorm.

• Laws made by the Legislature derive their validity from the Constitution.

• Executive orders, regulations, and judicial decisions derive their validity from the laws made by the Legislature.

Each norm in the hierarchy is valid because it is authorised by a higher norm. The entire system is unified by the Grundnorm.

Kelsen's theory is sometimes called the 'normative theory' because it views law as a system of 'oughts' or norms, in contrast to descriptive theories like Austin's command theory.

Separation of Law and Morals

A central feature of Kelsen's Pure Theory is the strict separation of law and morals. Like other positivists, Kelsen argued that the validity of a legal norm does not depend on its moral content.

Strict Separation:

• Kelsen insisted that law and morality are separate normative systems.

• A legal norm is valid if it is part of a valid legal system, as identified by the hierarchical structure culminating in the Grundnorm. It is not valid because it is moral.

• An unjust law is still a valid law according to the legal system, although it may be evaluated as morally wrong.

• The science of law (jurisprudence) should only describe the structure and validity of legal norms as they are, without making moral judgments.

Kelsen believed that separating law from morality was essential for a pure and objective science of law, free from subjective moral evaluations.

Criticism of Kelsen's Theory

Kelsen's Pure Theory, while intellectually rigorous, has also faced criticisms:

Criticism related to the Grundnorm:

• Hypothetical Nature: The Grundnorm is a hypothetical presupposition, not a positive legal norm. Critics argue that basing the validity of an entire legal system on a hypothetical norm is problematic.

• Identifying the Grundnorm: In complex or revolutionary situations (e.g., coups, constitutional changes), identifying the Grundnorm and determining when one legal system has been replaced by another can be difficult and may involve factors beyond pure legal theory (like political or sociological efficacy).

• Vagueness: The Grundnorm is abstract and does not provide concrete criteria for identifying valid law in the way Hart's rule of recognition does (which refers to specific social facts like legislative practice).

Criticism related to the pureness of the theory:

• Exclusion of Morality: Critics argue that a complete exclusion of morality provides an impoverished understanding of law, ignoring the role of moral values in shaping, interpreting, and applying law.

• Exclusion of Social Facts: While Kelsen claims his theory is pure, the concept of 'efficacy' (which underlies the presupposition of the Grundnorm) is a social fact. Thus, the theory is not entirely free from non-legal elements.

• Sanction as Primary: By defining legal norms in terms of sanctions, Kelsen also faced criticism for overly focusing on the coercive aspect of law, similar to Austin.

Despite these criticisms, Kelsen's theory remains a significant contribution to legal positivism for its systematic and hierarchical view of legal norms and its rigorous attempt to define law based on its own internal structure.

HLA Hart's Concept of Law

H.L.A. Hart is a central figure in modern legal positivism, whose work provided a powerful alternative to earlier command theories and significantly shaped contemporary legal philosophy.

Key Contributions:

• Law as a System of Rules: Moving beyond Austin's command model to view law as fundamentally a system of social rules.

• Union of Primary and Secondary Rules: The identification of duty-imposing primary rules and power-conferring secondary rules as the key components of a legal system.

• Rule of Recognition: The concept of a master rule that provides the criteria for identifying valid law, based on the social practice of officials.

• Internal and External Aspects of Rules: Highlighting the difference between merely observing behaviour and accepting rules as standards (internal point of view).

• Minimum Content of Natural Law: Acknowledging a necessary overlap between law and certain basic moral principles based on human vulnerability and the goal of survival.

• Separation of Law and Morality: While acknowledging interactions, firmly maintaining the conceptual separation of law and moral evaluation.

Hart's theory is influential for its sociological grounding (rule of recognition as a social practice), its nuanced understanding of different types of laws, and its clear distinction between the existence of law and its moral merit. His work is a cornerstone for understanding contemporary legal positivism.

Hans Kelsen's Pure Theory of Law

Hans Kelsen represents a different, more abstract and normative approach within legal positivism, aiming for a scientifically 'pure' understanding of law.

Key Contributions:

• Law as a System of Coercive Norms: Defining law as a hierarchical system of 'oughts' or norms, distinguished by their coercive character.

• The Grundnorm (Basic Norm): The concept of a presupposed, hypothetical foundational norm that validates the entire legal system.

• Hierarchy of Norms: Viewing the legal system as a pyramid with norms deriving validity from higher norms.

• Strict Separation of Law and Morals: Insisting on the complete exclusion of moral or other non-legal elements from the science of law.

• Focus on Validity: Primarily concerned with the validity of legal norms within the system, independent of their effectiveness or moral content.

Kelsen's theory is significant for its logical consistency and its focus on the formal structure of legal systems. It provides a distinct analytical framework for understanding law as a self-contained normative system.

Joseph Raz: Authority and Legal Positivism

Joseph Raz (1939-2022) is another leading figure in contemporary legal positivism, who developed a sophisticated theory based on the concept of authority.

Key Contributions:

• Sources Thesis: Raz defended the sources thesis, arguing that the identification of valid law depends solely on its social sources (e.g., legislative enactment, judicial decision), without reference to its moral content. This is a form of Exclusive Legal Positivism, arguing that moral criteria are necessarily excluded from the grounds of legal validity.

• Authority: Raz argued that law necessarily claims legitimate authority over its subjects. For authority to be legitimate, its directives must be identifiable without relying on the very moral considerations that the authority is meant to settle ('pre-emptive' reason for action). This supports the sources thesis; if law's directives could only be identified by engaging in moral reasoning, law could not fulfil its function of guiding behaviour by providing authoritative, source-based rules.

• Law and Reason: Raz explored the relationship between law and practical reason, arguing that law provides reasons for action, specifically authoritative reasons that are meant to replace or exclude other reasons (including some moral reasons).

Raz's work built upon Hart's foundation, offering a powerful defence of legal positivism rooted in the concept of authority and its practical implications for identifying and obeying law. His emphasis on the authoritative nature of law reinforced the idea that law's validity is a matter of social fact, identifiable by its sources.

Together, the theories of Austin, Hart, Kelsen, and Raz represent the diverse landscape of legal positivism, each offering distinct insights into the nature and identification of law while sharing the core commitment to separating law from morality.