Jurisprudence UK

Jurisprudence and legal theory
Stephen Guest Adam Gearey James Penner Wayne Morrison
2004
LLB 2670005 BSc Accounting with Law/Law with Accounting 2770401 BSc Management with Law/Law with Management 2770401
This subject guide was prepared for the University of London External Programme by:
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Stephen Guest, BA, LLB, BLitt, PhD, Barrister, Inner Temple, Professor of Legal Philosophy, University College London. Dr Adam Gearey, Senior Lecturer in Law, Birkbeck College, University of London. James Penner, Reader in Law, London School of Economics. Dr Wayne Morrison, Director of the External Programme for Laws of the University of London and member of the Law School of Queen Mary College, University of London.
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Professor Guest took primary responsibility for Chapters 1, 2, 5, 6, 7, 10, 11 and 14, Dr Geary for Chapters 13, 16 and 17, Dr Penner for Chapters 4, 8 and 9, and Dr Morrison for Chapters 3, 12 and 15. This is one of a series of subject guides published by the University. We regret that owing to pressure of work the authors are unable to enter into any correspondence relating to, or arising from, the guide. If you have any comments on this subject guide, favourable or unfavourable, please use the form at the back of this guide.
Publications Office The External System University of London Stewart House 32 Russell Square London WC1B 5DN United Kingdom www.londonexternal.ac.uk Published by the University of London Press University of London 2004. Reformatted and reprinted 2010 Printed by Central Printing Service, University of London All rights reserved. No part of this work may be reproduced in any form, or by any means, without permission in writing from the publisher.
Jurisprudence and legal theory
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Contents
1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1.1 1.2 1.3
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 How to study jurisprudence . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Reading . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Preparing for an examination in jurisprudence . . . . . . . . . . . . . . . . . 5 Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2 The nature of jurisprudence . . . . . . . . . . . . . . . . . . . . . . .

2.2 2.3 2.4 2.1 What is jurisprudence? . . . . . . . . . . . . . . . . . . . . . . . . . . .
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11
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Methodology, analysis, theory and the idea of definition . . . . . . . . . . . 12 Theory and evaluation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 The interpretive approach . . . . . . . . . . . . . . . . . . . . . . . . . 14 Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
3 Imperative or command theories of law . . . . . . . . . . . . . . . . . 19

3.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 The birth and development of secular or positive theories of law: the case of Thomas Hobbes . . . . . . . . . . . . . . . . . . . . . . 21 John Austin . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
3.2 Jeremy Bentham . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 3.3 3.4 Appreciating Austins command theory . . . . . . . . . . . . . . . . . . . 43 Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
4 Classical and modern natural law theory . . . . . . . . . . . . . . . . 49

4.2 4.3 4.4 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 51 53 The natural law of Aquinas: structure . . . . . . . . . . . . . . . . . . . . 4.1 The rise of natural law in ancient Greece and Rome . . . . . . . . . . . . .
The natural law of Aquinas: legal reason, human law, and the obligation to obey the law . . . . . . . . . . . . . . . . . . . . . . . . . . 54 Modern natural law theory I: Finnis . . . . . . . . . . . . . . . . . . . . . 56
4.5 Modern natural law theory II: Fuller . . . . . . . . . . . . . . . . . . . . . 58 4.6 The continuing debate over the connection between law and morality . . . 59 Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
5 Introduction to the set book: Harts The Concept of Law . . . . . . . . . . . . . . . . . . . . . . . . 63

5.1 5.2 5.3 5.4 5.5 5.6 5.7 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64 Studying Hart . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definition and theory in The Concept of Law . . . . . . . . . . . . . . . . . The union of primary and secondary rules . . . . . . . . . . . . . . . . . 65 68 72 Harts aims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66 Criticism of the orders backed by threats (OBT) theory . . . . . . . . . . . 70 The less important chapters . . . . . . . . . . . . . . . . . . . . . . . . . 74 A return to the internal point of view . . . . . . . . . . . . . . . . . . . . 75 Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
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University of London External System
6 A master rule for law: Harts rule of recognition . . . . . . . . . . . . . 79

6.1 6.2 6.3 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80 Identifying the rule of recognition . . . . . . . . . . . . . . . . . . . . . . 81 Criticism of the rule of recognition . . . . . . . . . . . . . . . . . . . . . . 83 The Postscript . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85 Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
7 Harts defences against natural law and Fullers criticism . . . . . . . . 91

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92 7.1 Morality in the penumbra of law . . . . . . . . . . . . . . . . . . . . . . 93 7.2 The Nazi grudge informer and legal positivisms virtue of clarity . . . . . . . 94 7.3 The eight principles of the inner morality of law . . . . . . . . . . . . . . 96 Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
8 Raz on practical reason and the authority of law . . . . . . . . . . . . 99

8.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100 The paradox of authority and Razs service conception of authority . . . . 101 102 103
8.2 The normal justification thesis . . . . . . . . . . . . . . . . . . . . . . 8.3 Exclusionary reasons: the deliberative and executive phases of practical reason 8.5
8.4 The authority of law and the limits of law . . . . . . . . . . . . . . . . . . 105 The debate with soft positivists and Dworkin . . . . . . . . . . . . . . . . 107 Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
9 Practical reason and law . . . . . . . . . . . . . . . . . . . . . . . . 111

9.1 9.3 9.4 9.5 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112 What is a norm? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Hohfeldian characterisation of legal norms . . . . . . . . . . . . . . 113 118
9.2 Standard classifications of norms . . . . . . . . . . . . . . . . . . . . . . 115 Following rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120 The variety of hard cases . . . . . . . . . . . . . . . . . . . . . . . . . . 123 Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126
10 Kelsens theory of law . . . . . . . . . . . . . . . . . . . . . . . . .

127
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128 131
10.1 Background to Kelsens theory . . . . . . . . . . . . . . . . . . . . . . . 129 10.2 How Kelsen characterises law . . . . . . . . . . . . . . . . . . . . . . . 10.3 Legal revolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134 10.4 Criticisms of Kelsen . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136 Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141
11 The integrity and interpretation of law . . . . . . . . . . . . . . . . . 143

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144 11.1 The idea of interpretation . . . . . . . . . . . . . . . . . . . . . . . . . 145 11.2 Judge Hercules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147 11.3 Principles and policies . . . . . . . . . . . . . . . . . . . . . . . . . . . 148 11.4 Arguments of fit and substance . . . . . . . . . . . . . . . . . . . . . 148 11.5 Concepts and conceptions: law as an argumentative attitude . . . . . . . 150 11.6 The one right answer thesis . . . . . . . . . . . . . . . . . . . . . . . . 151 11.7 Evil legal systems . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153 11.8 Dworkin on Harts Postscript . . . . . . . . . . . . . . . . . . . . . . . . 154 Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158
Jurisprudence and legal theory 12 Social theory and law . . . . . . . . . . . . . . . . . . . . . . . . . . 159

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160 12.1 Thinking of law and society: encountering a case . . . . . . . . . . . . . . 161 12.2 Internal and external accounts, insiders and outsiders . . . . . . . . . . . 164 12.3 Durkheim and the consensus theory of law . . . . . . . . . . . . . . . . . 166 12.4 The rationalisation of the world: the analysis of Max Weber . . . . . . . . 170 12.5 The transformation of jurisprudence . . . . . . . . . . . . . . . . . . . . 174 Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 178
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13 Marx, Marxism and Marxist legal theory . . . . . . . . . . . . . . . . 179
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180
13.1 Marxs basic ideas of ideology, economy and society . . . . . . . . . . . . 181 13.2 The Marxist theory of the state . . . . . . . . . . . . . . . . . . . . . . . 185 13.3 Marxs theory of law in Das Kapital . . . . . . . . . . . . . . . . . . . . . 186 13.4 Soviet Marxism and the law . . . . . . . . . . . . . . . . . . . . . . . . 188 13.5 Setting Marx the right way up: Western Marxism . . . . . . . . . . . . . . 189 13.6 Marxism, law and international economy . . . . . . . . . . . . . . . . . 192 Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 195
14 Liberalism and law . . . . . . . . . . . . . . . . . . . . . . . . . . . 197

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 198 14.1 Utilitarianism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 199 14.2 Criticisms of utilitarianism . . . . . . . . . . . . . . . . . . . . . . . . . 200 14.3 Liberalism: liberty and equality . . . . . . . . . . . . . . . . . . . . . . . 201 14.4 Disagreements about morality: can they be resolved rationally? . . . . . . 202 14.5 Equality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203 14.6 The economic analysis of law . . . . . . . . . . . . . . . . . . . . . . . . 204 Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 207
15 Feminist legal theory . . . . . . . . . . . . . . . . . . . . . . . . . . 209

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 210 211 15.1 Deconstruction and reconstruction . . . . . . . . . . . . . . . . . . . .
15.2 A brief history of feminist legal theory . . . . . . . . . . . . . . . . . . . 216 15.3 Feminist views of the state . . . . . . . . . . . . . . . . . . . . . . . . . 217 15.4 The future of feminist legal theory . . . . . . . . . . . . . . . . . . . . . 221 Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 225
16 Critical legal studies . . . . . . . . . . . . . . . . . . . . . . . . . . 227

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 228 16.1 Introduction: what is CLS? . . . . . . . . . . . . . . . . . . . . . . . . . 229 16.2 Law and the fundamental contradiction . . . . . . . . . . . . . . . . . . 231 16.3 Law, politics and reification . . . . . . . . . . . . . . . . . . . . . . . . 233 16.4 American critical legal studies: success or failure? . . . . . . . . . . . . . 236 16.5 Postmodernity and critical legal studies . . . . . . . . . . . . . . . . . . 237 16.6 African critical legal studies . . . . . . . . . . . . . . . . . . . . . . . . 239 Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 243
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17 Critical race theory . . . . . . . . . . . . . . . . . . . . . . . . . . . 245

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 246 247 17.1 American critical race theory . . . . . . . . . . . . . . . . . . . . . . .
17.2 Law and race discrimination . . . . . . . . . . . . . . . . . . . . . . . . 248 17.3 Race, racism and ideology . . . . . . . . . . . . . . . . . . . . . . . . . 248 17.4 Critical race theory and British racism . . . . . . . . . . . . . . . . . . . 250 17.5 The official inquiries . . . . . . . . . . . . . . . . . . . . . . . . . . . . 253 17.6 Critical race theory and postcolonialism . . . . . . . . . . . . . . . . . . 255 Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 261
Feedback to activities . . . . . . . . . . . . . . . . . . . . . . . . . . . 263
1 Introduction
Contents
1.1 1.2 1.3 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 How to study jurisprudence . . . . . . . . . . . . . . . . . . . . . . . . 3 Reading . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Preparing for an examination in jurisprudence . . . . . . . . . . . . . . 5
Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
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Introduction
This subject guide has been written to show you how to lay a solid foundation of knowledge and critical understanding in Jurisprudence and Legal Theory. This will help prepare you, ultimately, for the examination. The guide is not intended as a primary source, or a textbook, and it would be a mistake to treat it this way. The best way to study is to commit yourself to a sustained reading and writing programme from the beginning of the first term. It is typical for an internal student at the University of London to spend two hours in seminars each week for Jurisprudence throughout the academic year and, in addition, the equivalent of further full days work in the library, reading and taking notes. In the two months before the examination, he or she would normally begin to formulate coherent thoughts in the subject by practising trial paragraphs, series of paragraphs, and finally essays. The activities and sample examination questions in this guide are designed to help you develop these skills. If you follow this pattern and, better, if you are able to let someone else read what you write and discuss it with you, you will place yourself in the best possible position for achieving an excellent mark in the examination. Jurisprudence can be enjoyable. The questions it deals with are very important and they constantly impinge upon the consciousness of all lawyers. You really can go a long way with this subject by a relaxed reading of a variety of jurisprudential writing.
Learning outcomes for this Introduction

By the end of this Introduction, and the relevant reading, you should be able to:
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state the intended learning outcomes of the module decide which books to buy and obtain them locate and distinguish the primary and secondary sources devise an appropriate structure for an examination question in Jurisprudence.
Essential reading for this chapter1
Freeman, M. (ed.) Lloyds Introduction to Jurisprudence. (London: Sweet & Maxwell, 2001) seventh edition [ISBN 0421690208]. Dworkin, R. Laws Empire. (Oxford: Hart Publishing, 1998). [ISBN 1841130419] Chapter 1. MacCormick, N. and W. Twining Legal Theory and Common Law in B. Simpson (ed.) Legal Theory and Legal History: Essays on the Common Law. (London: Hambledon Press, 1987) [ISBN 0907628834] Chapter 13. Hart, H. Essays in Jurisprudence and Philosophy. (Oxford: Clarendon Press, 1983) [ISBN 0198253877] Chapter 1: Definition and theory in jurisprudence (also in 70 Law Quarterly Review 37). Fuller, L. The Speluncean Explorers in Freeman, pp. 5163 (also in 62 Harvard Law Review 616) (see above).
Read these before you go on to Chapter 2.
Jurisprudence and legal theory 1 Introduction
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1.1 How to study jurisprudence

An initial problem in studying jurisprudence is the orientation of the subject. Come to it with an open mind and do not bother if at first it is not obvious why you should be studying it or what use it will be to in your future career. The answers to these questions will become clear to you during the year. If you study properly, you will gain a broad and flexible approach to legal questions of all sorts. Jurisprudence allows you to step back from the minutiae of what youre doing in the core subjects and speculate on more general, but equally pressing, questions of law. In popular language, you will learn how to think laterally. Teachers of jurisprudence well understand that for first-comers to the subject, the initial orientation can be hard going. They are also used to the enthusiasm that frequently develops later, and which remains for a very long time. We frequently meet former students, some now distinguished practising lawyers, who at alumni functions tell us that they would like to have spent more time studying jurisprudence. Our experience, too, is that this seemingly unpractical subject is not unpopular with practising lawyers. Dont be the unsuspecting interviewee who says I hated jurisprudence because it meant less time on commercial law, taxation, etc. because that can strike just the wrong note with a future employer. Flexibility and breadth in thinking and writing are both sought-after criteria of employability. You should note early on that facts are much less important in jurisprudence. It is the ideas that are important. True, the subject has facts, and case-law type subjects are not devoid of ideas. Nevertheless, there is a far greater proportion of abstract, theoretical material in jurisprudence, and the single most common problem is failure to appreciate this. Read Fullers The Case of the Speluncean Explorers for an enjoyable way to see how a relatively simple set of facts lends itself to vastly different approaches, each characterised by certain abstract ideas. That article, by the way, is used as the introductory reading in jurisprudence in law schools all over the world.
1.2 Reading
Essential reading
Freeman, M. (ed.) Lloyds Introduction to Jurisprudence. (London: Sweet & Maxwell, 2001) seventh edition [ISBN 0421690208]. Penner, J. et al. (eds) Jurisprudence and Legal Theory: Commentary and Materials. (London: Butterworths LexisNexis, 2002) [ISBN 0406946787]. Hart, H. The Concept of Law. (Oxford: Oxford University Press, 1994) second edition [ISBN 0198761228] THIS IS THE SET BOOK AND IT IS VITAL THAT YOU BUY IT.
Subsequently, we will refer to the essential reading texts simply by the authors name: Freeman, Hart etc.
Recommended texts
The following are books that could be usefully bought, but if they are readily available from a library, that is fine:
Dworkin, R. Laws Empire. (London: Fontana Paperbacks, 1986) [ISBN 0006860281]. Hart, H. Essays in Jurisprudence and Philosophy. (Oxford: Oxford University Press, 1983) [ISBN 0198253877]. Morrison, W. Jurisprudence: From the Greeks to Post-modernism. (London: Cavendish, 1997) [ISBN 1859411347]. Simmonds, N. Central Issues in Jurisprudence: Justice, Law and Rights. (London: Sweet & Maxwell, 2002) [ISBN 0421741201].
page 4 Useful further reading

Other works that you will find useful throughout the module are:
Berlin, I. Two concepts of liberty in Four Essays on Liberty. (Oxford: Oxford University Press, 1979) [ISBN 0192810340]. Cotterrell, R. The Politics of Jurisprudence. (London: Butterworths Law, 2003) second edition [ISBN 0406930554] Chapter on Bentham and Austin. Devlin, P. The Enforcement of Morals. (Oxford: Oxford University Press, 1965) [ISBN 0192850180]. Dworkin, R. Laws Empire. Chapters 1, 2 (particularly pp. 7686), 3, 5 (particularly pp. 16475), 6, 7, 8 and 10. Dworkin, R. Taking Rights Seriously. (London: Duckworth, 1977) [ISBN 0715611747] Chapters 4 and 5. Fuller, L. Positivism and fidelity to law a reply to Professor Hart (1958) Harvard L.R. 690 (extracts in Freeman, pp. 370373). Guest, S. Ronald Dworkin. (Edinburgh: Edinburgh University Press, 1997) second edition [ISBN 0748608052] Chapters 2, 3, 4, 7 and 8. Guest, S. (1988) Law Quarterly Review 155 (Review of Laws Empire). Hart, H. Essays in Jurisprudence and Philosophy. Essay 1 (particularly pp. 2135), Essay 2, Essay 3 and Essay 16. Hart, H. Law, Liberty and Morality. (Oxford: Oxford University Press, 1962) [ISBN 0192850172]. Hohfeld, W. Extracts in Freeman, pp. 510514. Rawls, J. A Theory of Justice. (Oxford: Oxford University Press, 1972) [ISBN 0198243685] pp. 2227, and pp. 4653. Raz, J. The purity of the pure theory (1981) in Freeman, pp. 32737. Simmonds, N. Central Issues in Jurisprudence. Chapters 1, 3, 5; pp. 5862 (including suggested reading); and Chapters 8 and 9, particularly pp. 13552, including reading. Waldron, J. Law. (London: Routledge, 1990) [ISBN 0415014271] Chapter 5. Williams, B. The idea of equality in P. Laslett and W. Runciman (eds) Philosophy, Politics and Society. (Oxford: Blackwell, 1962) [ISBN 0631048804] p.125.
1.2.1 How to read works in jurisprudence

Appreciate that the subject-matter is difficult. You will have to learn to read difficult to understand works. This means that you should slow down and contemplate everything carefully. It is not like reading a light novel! And for that matter, as you know, reading the reports of judicial decisions can be difficult. Each chapter of the set book, Harts The Concept of Law, requires several hours, sustained effort. Every so often, ask yourself what youve just read. Put your book down and write down, or speak aloud, what the writer has said. You will find that, if you can do it, you will remember having done it! The great jurists were straightforward people who spoke naturally and not in jargon. What they have in common is:
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sound moral perception the intellectual ability to range from the very abstract to the very practical.
The primary sources, it should go without saying, are the best. You must read some of Austin, Kelsen, Dworkin, Fuller and so on. Only in that way will what these people say become real to you. It is relatively easy for an examiner to spot whether you have or

have gleaned your knowledge of jurisprudence from a primary source. They remain the most important and fruitful of the texts that you should read. As far as secondary texts are concerned, Freeman and Penner have already been mentioned. An excellent overview intellectually is Simmonds Central Issues in Jurisprudence. Many find Dworkin very difficult to read, mainly because he is a more abstract thinker than most. But he is worth the effort. His most accessible work is his article The Model of Rules (it sometimes appears as Is Law a System of Rules?) now incorporated as Chapter 2 of Taking Rights Seriously. Chapter 1 of Laws Empire is also very readable. There is a secondary source for Dworkin in Guests Ronald Dworkin (1997).
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1.2.2 Learning outcomes for the module as a whole

Besides getting to know the syllabus, which is printed in the Regulations, you should regard the following learning outcomes as what the subject will produce if conscientiously and seriously followed. The assessment in the final examination will be based on your performance. By the time of the examination you should be able to:
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expound and criticise important ideas of selected jurists in the Anglo-American traditions demonstrate an ability to think in a more abstract or general fashion than is generally achieved in the study of specific areas of law demonstrate a willingness to question and think independently and to find out more demonstrate systematic reading demonstrate a thorough reading of Harts The Concept of Law, showing a sympathetic yet critical appreciation of the major arguments of that book.
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These outcomes are related. Reinforcement of what the examiners are looking for will be found by studying past examination papers in which you will spot the familiar forms of questions and format. How well you read around the subject is crucial to how well you do in the examination. The examiners do not want to read parroted pieces of information. Such answers will fail. Topic spotting will not do either. The present syllabus is short enough for all topics to be covered and for all of them to be approached in an intelligent and systematic way.
1.3 Preparing for an examination in jurisprudence

1.3.1 Content and orientation of your answer
Sample or model answers can be a disastrous way of teaching jurisprudence since they suggest that there is only one right way of answering a question. In fact if each reader displayed real imagination and ingenuity based on some knowledge, of course all the answers would receive firsts, and no two answers would be the same. But there are some pointers that can be given in the following example. This question appeared in the 2004 Home paper:
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Does utilitarianism provide solutions that we could adopt when we are considering what, morally, to do?
Content
Here is an example of the content that should be in the answer:
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A clear and reasonably detailed account has to be given of utilitarianism. You should see the subject guide Chapters 3 and 13 and you should return to what I am saying here again when you have mastered the reading in those two chapters. This account would have to be fair to utilitarianism as well as being fair to its critics. If, for example, you were a utilitarian, it will help your case to make the version of
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utilitarianism you accept as strong as possible and it will also help that you can handle the strongest criticisms that can be made of it. If you are a utilitarian, then probably the strongest form will be some form of rule utilitarianism, because that can most easily explain the status of moral and legal rights.
Orientation
What is also required is an orientation of your own. This means stating clearly whether you agree or not, giving reasons. Giving reasons is important because it is typical for candidates to say in an examination that they either agree or disagree with some proposition without saying why. In a courtroom, as a future lawyer, would you think it was acceptable, to your client, to the judge, simply to say I disagree with the argument on the other side? Of course not! So, you might say something like the following in this part of your answer:
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Critics of utilitarianism emphasise the strength of our moral intuition that people have rights the right, for example, not to be killed. They say that the existence of these rights defeats a utilitarian calculation that the greater good would be served by killing, as, for example, in cases where to remove feeding tubes from irreversibly comatose patients would conserve hospital beds and save money, or where to kill a drunk tramp (secretly, painlessly and unbeknown to him) would contribute to cutting petty crime. This argument is powerful because it focuses on the ultimate reason for preferring utilitarianism, namely, that it is people who are the recipients of acts directed at the public good and so suggests that utilitarianism is fundamentally confused. But there are two answers to this powerful objection. The first is that, because the rationality of the utilitarian doctrine lies in the fact that it describes practically all of our intuitions, it can lead us to better conclusions than our intuitions can in troublesome cases. The second is that we can say that there is a rule that we must not kill, under which irreversibly comatose people and tramps have rights to life, and observance of that rule in all cases in the long run leads to the greater good. These two solutions point in different directions. In my view, the second is to be preferred because that is more reconcilable with our intuitions than the first. It is difficult to be told, as Smart tells us, that on occasions we must not be morally squeamish about doing what utilitarianism requires for, after all, morality requires that we care, and must do so in every case. But rule utilitarianism reminds us that people have rights and so that intuition is satisfied and in terms of a theory which ultimately relies on our aiming for the morally good consequences for society.
We have emphasised the crucial moves in the argument in bold type.
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1.3.2 Structure of your answer

The following remarks concern the structure that should be in the answer.
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An opening paragraph, or set of paragraphs, which should have impact. This sets out what you are going to do clearly and succinctly and gets straight into it. As in the above argument on utilitarianism, the centre section should contain argument backing up your views. (You can share views with others, giving reasons; but merely parroting others is out.) The point is that these ideas must be yours and you must back them up. A summing up in which you draw your conclusion. This should not be a repetition but a neat summary of your view. This summary shows that your answer forms an argument in which you have set out to do something and that you have done it. You must tell the examiner that you are, or are not, a utilitarian!
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Finally, the following is designed to get you to see what would be very desirable in answering the question.
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A jurisprudence answer must show knowledge, independent thought and the ability to argue. In addition, it must show an ability to cross-reference to other ideas and writers. This last is essentially the ability to think abstractly. Note the reference to rule utilitarianism and to Smart in the above two paragraphs about utilitarianism. Use examples. It is always helpful to show your awareness that jurisprudential questions must be tested against real life. Note the reference to the irreversibly comatose patient and to the drunk tramp in the above.
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Reminder of learning outcomes

By this stage you should be able to:
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state the intended learning outcomes of the module decide which books to buy and obtain them locate and distinguish the primary and secondary sources devise an appropriate structure for an examination question in Jurisprudence.
Good luck! Stephen Guest, Adam Gearey, James Penner and Wayne Morrison. July 2004
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Reflect and review

Look through the points listed below. Are you ready to move on to the next chapter? Ready to move on = I am satisfied that I have sufficient understanding of the principles outlined in this chapter to enable me to go on to the next chapter. Need to revise first = There are one or two areas I am unsure about and need to revise before I go on to the next chapter. Need to study again = I found many or all of the principles outlined in this chapter very difficult and need to go over them again before I move on. Tick a box for each topic.
Ready to Need to Need to move on revise first study again I can state the intended learning outcomes of the module I can decide which books to buy and obtain them I can locate and distinguish the primary and secondary sources I can devise an appropriate structure for an examination question in Jurisprudence.
If you ticked need to revise first, which sections of the chapter are you going to revise?
Must revise 1.1 1.2 1.3 How to study jurisprudence Reading Preparing for an examination in jurisprudence Revision done
2 The nature of jurisprudence
Contents
2.1 2.2 2.3 2.4 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 What is jurisprudence? . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Methodology, analysis, theory and the idea of definition . . . . . . . . . 12 Theory and evaluation . . . . . . . . . . . . . . . . . . . . . . . . . . 13 The interpretive approach . . . . . . . . . . . . . . . . . . . . . . . . 14 Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
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Introduction
This chapter introduces you to the subject-matter of jurisprudence, and in particular to the different methods that jurists have used to produce their theories of law. The broad distinction very commonly used between two types of theory is that they are either descriptive of the subject-matter of law, in all its forms, or that they are normative or prescriptive about what the subject-matter of law ought to be. These two ideas the descriptive and the normative are very common in jurisprudential thought. In recent years in Anglo-American jurisprudence, they have been joined, largely through the work of Ronald Dworkin, by a third type of theory, an interpretive theory. All these ideas need to be explained.
Learning outcomes
By the end of this chapter and the relevant reading, you should be able to:
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distinguish, giving examples, between descriptive, normative and interpretive theorising indicate what some major problems of jurisprudence are discuss critically the point of defining law explain your own view of the relationship between theory and practice.
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Essential reading

Dworkin, R. Laws Empire. Chapters1 and 2. Freeman, M. (ed.) Introduction to Jurisprudence. Chapters 1 and 2. Hart, H. The Concept of Law. Preface and Chapters 1 and 2. Hart, H. Essays in Jurisprudence and Philosophy Essay 1, particularly pp. 2135 (this essay is Harts famous inaugural lecture at the University of Oxford, which he delivered in 1952), and Essay 3. Penner, J. (ed.) Jurisprudence and Legal Theory. Chapter 1. Case: Madzimbamuto v Lardner-Burke (see [l966] RLR 756; SA l968 (2) 284; and [l965] A.C. 645.
Jurisprudence and legal theory 2 The nature of jurisprudence
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2.1 What is jurisprudence?

Jurisprudence consists of the study of the nature of law and its related ideas. Many of the difficult problems are purely philosophical. The following are such problems, and you will be expected to develop your own views in relation to them. What is definition? What is a rule? What is law? What is morality? What is justice? What is a critical standpoint? But there are also interesting questions of political morality which impinge on your life. Examples are: Should the law enforce conventional morality? What is the relationship between freedom and equality? How should difficult legal cases be decided? Can equality take into account differences between sexes? Should judges be concerned with economic questions? What follows from a persons having a right to something? What is the justification, if any, for punishing people? Should hate speech be a criminal offence? Jurisprudence will help you formulate your convictions on these vital questions. There are, finally, interesting questions of sociology and history. The following are such questions. What generally shaped the law in Western societies? What were the main claims of the feminists? What major trends influenced law schools in the United States in the twentieth century? What are the effects of law? What events can be shaped by the adoption of laws? Is law of any sort naturally repressive or liberating? Jurisprudence is full of outstanding thinkers. Austin and Bentham both of whom, in their own ways could be claimed to be the founders of legal education at the University of London, thought law was about power. Hart and Kelsen thought it was imbued with authority although not moral authority as did Fuller of the Harvard Law School and as does Dworkin. Austin thought judges were deputy legislators. Dworkin thinks that judges only create law that is largely coherent with existing legal practice. Marxists think that law only serves the interests of the powerful and the rich. The critical legal scholars think law schools provide a veneer of respectability over chaos and conflict. Some jurists believe that courts enforce moral rights; others, such as Bentham, think that this idea is nonsense upon stilts. Or take Kelsen, the distinguished constitutional lawyer, international lawyer and jurist. One only has to observe many of the great constitutional cases fought in the highest courts in countries of present or former Commonwealth jurisdiction over the past 30 years to see the impact that Kelsen had. Indeed, the 1,000 pages of the 1965 decision of the Rhodesian General Division court of Madzimbamuto v Lardner-Burke (see [l966] RLR 756; SA l968 (2) 284; and [l965] AC 645) portray a formidable line-up of jurists whose ideas were marshalled both for and against the Rhodesian governments case. The example of the Nazi legal system, too, with its barbaric laws, has also raised real, live problems. Did Nazi bureaucrats really have a legal defence of any sort at all when they declared that they were just obeying orders? This was an acute problem at the famous Nuremberg war crimes trials which took place after the Second World War had ended. It continues to be a live issue.
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2.2 Methodology, analysis, theory and the idea of definition

Essential reading
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Dworkin, R. Laws Empire. You should read the whole of this as soon as possible; to start with it would be useful to follow up some of the references to interpretation in the index. Finnis, J. Natural Law and Natural Rights. (Oxford: Oxford University Press, 1980) [ISBN 0198761104] Chapter 1. Hart, H. Essays in Jurisprudence and Philosophy. Intro, pp. 16, especially pp. 56; and Essay 1 The Concept of Law. (second edition) Chapter 9. Raz, J. Ethics in the Public Domain. (Oxford: Oxford University Press, 1994) [ISBN 0198258372] Chapter 8: A problem about the nature of law.
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It is vital early on to get a feel for what the different jurists you study are trying to do. It is important to distinguish a descriptive theory loosely, one that describes things as they are, as a geographer might describe a continent, or a riverbed from a normative theory. This latter causes some difficulty at first, because of the unfamiliarity of the term. But it means a theory which says how people ought to or may behave (or must, or should, etc. youll get the idea). You should therefore be able to see why normativity and rule following are two closely related ideas. Laws are normative because they tell people how they ought to, or may, behave. And a moral theory like utilitarianism is a normative theory because it says that people ought to act in the interest of the general happiness. There are two important things to note. Examination candidates often misunderstand them:
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A theory can be descriptive and normative at the same time. This would be the case where a theorist said this is what law is like and this is how we ought to regard law. Some people have argued that the best way to read Hart is like this. The subject matter of a descriptive theory can be normative. A descriptive theory of law will often be like this, since the subject matter is at first sight normative. For example, we might describe part of the law of England by saying The law is (description) that people ought not (normativity) to obtain property by deception, according to s.15 of the Theft Act 1968.
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Hart, Dworkin, Raz and Finnis are very sensitive to these differences, but many other theorists are not.
Activity 2.1
Give five or six examples of descriptive and normative statements from science, art, literature, music, morals, law and politics. Contrast them, pointing out the significant differences. Start by indicating which of the following statements are descriptive and which normative: Picassos painting Guernica is 20 feet by 10 feet and is mostly black marks on white ; Guernica is one of the great works of art of the twentieth century. Further example: You have a lot to learn; You ought to get started. Are any of your examples also theoretical statements? What is a theoretical statement? Feedback: see end of guide.
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2.3 Theory and evaluation

Subtle awareness of the role of evaluation in theorising is displayed by Finnis in Chapter 1: Evaluation and the description of law of his Natural Law and Natural Rights. It is difficult to read but it is well worth it. What is interesting is his affirmation of the theoretical approach devised by Weber (see Chapter 12 of this subject guide):
that the evaluations of the theorist himself are an indispensable and decisive component in the selection or formation of any concepts for use in description of such aspects of human affairs as law or legal order.
Try to see what this means by considering the following comparison between two evaluative theories of what baldness is. If we can see differences here, it would seem that the case is clearly established for seeing differences in something like law. The trichologist, whose job it is to sell hairpieces and baldness cures, is only interested, qua baldness, in the inability to grow hair. His skinhead son, not interested in earning a living, thinks baldness is a style thing, one for which the ability to grow hair is necessary as it shows youth, vitality and sexual power. Dad and son might ask each other to revise their central conceptions of baldness (its where the money is, son; styles more important than money, Dad). It seems right to say, along with Finnis, that these differences in outlook cannot be resolved by reference to language.
Activity 2.2
Consider the trichologist and his skinhead son. This analogy seems powerful. How powerful is it really?
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Is there really a common concept of baldness that both of them share? Does it make sense to say that they differ in their conceptions of this concept? Would it matter if neither of them had never used the word concept in their lives before? What is a concept?
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Feedback: see end of guide. The approach to theorising Ive just outlined is much more prevalent now, although there is a school of jurists who think that proper philosophical analysis proceeds by way of descriptive accounts of the concepts that we already have. For example, Hart maintains that view in the Postscript to The Concept of Law, saying that there is a difference between the characterisation of a concept and what he calls its application (although he is a little obscure here). Other jurists, with Raz, take the view that law is a concept that can be characterised in a way that it is independent of adopting any evaluative point of view in Finniss sense. These jurists can therefore conclude that Dworkin is wrong to identify questions to do with the justification Harts application of particular legal decision with law as a whole. That is, legal theorists according to Raz should characterise and describe the concept of law independently of trying to say that it should serve a special purpose.
Harts methodology
For a real insight into what Hart thought methodology in jurisprudence was about, however, you should read Chapter 9 of The Concept of Law very carefully, making notes whenever you think Hart is making a methodological point. You will note that he spends much time debating the merits of choosing a wide conception of law over a narrow conception of law, this latter being the natural law conception. You might have noted in passing that he has moved from talk about the concept of law, to two rival conceptions. And then he makes the give-away remark, on p. 209, that Plainly we cannot grapple adequately with this issue if we see it as one concerning the proprieties of linguistic usage. Seen against the background of his whole approach in the first part of the book, where he refers to linguistic usage, for example, to distinguish the gunman situation from the legitimate taxman situation (the gunman merely obliges; the taxman imposes
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an obligation) this is a striking thing to say. Finally, Hart, in one of the most important paragraphs of his work, says that the main reason for identifying law independently of morality in other words, his justification for legal positivism is to preserve individual conscience from the demands of the state:
What surely is most needed in order to make men clear-sighted in confronting the official abuse of power, is that they should preserve the sense that the certification of something as legally valid is not conclusive of the question of obedience, and that, however great the aura of majesty or authority which the official system may have, its demands must in the end be submitted to a moral scrutiny. (p. 210)
You should note, too, Harts retrospective admission in the Preface to his Essays in Jurisprudence and Philosophy, at pp. 56, that it is a mistake to think that all questions can be solved with reference to the way we actually speak.
Summary
It seems possible that theories are produced with a motivation to further a practical interest. Finnis and Dworkin are clearly of this view, and it seems implicit at least by halfway through The Concept of Law and explicit in Chapter 9 of that book.
2.4 The interpretive approach

Essential reading

Dworkin, R. Laws Empire. Chapter 2 (Chapters 3 and 9 are also very useful). Dworkin, R. Taking Rights Seriously. Chapter13 and pp.13436 (useful on the distinction between concepts and conceptions). Guest, S. Ronald Dworkin. Chapter 2.
One way of taking up these questions about the role of evaluation in the discussion of concepts is to draw a distinction between concepts and conceptions. Concepts, we might say, are relatively loose and uncontroversially accepted sets of ideas, perhaps the sorts of thing dictionary definitions are, overall, concerned with. So a dictionary will tell us that law is to be distinguished from bicycle because people just uncontroversially accept that law has to do with rules, sanctions, courts, and so on, and bicycle has to do with pedalled vehicles, two wheels and so on. It only gets interesting when some theorist proposes a way of looking at the concept. Then we might say that he proposes a conception of it. So Fullers conception of law differs from, say, Webers conception, because Fuller thought law could only be characterised in a moral way, whereas Weber thought it could only be characterised, as Hart does in the earlier part of The Concept of Law, as value-free. It was through a distinction between concepts and conceptions, and dissatisfaction with the rigidity of the distinction between descriptive and normative accounts of law, that Dworkin introduced into his theory the methodology of the interpretive concept. Dworkin says that the essential idea in interpretation is making the best of something that it can be, and this very abstract idea is to be applied to the idea of law. A number of ways can be used to describe the idea of making the best of something. The quickest way to the idea is through the notion of a thing having point, for example. Ask yourself what the point of the thing you are interpreting is, the way you might ask yourself what is the point of the prohibition of vehicles in the park in the course of producing a legal argument about roller skates. But another metaphor is that of placing a thing in its best light, whereby we assume that the thing has some point and we examine it as thoroughly as we can to see what is the most sensible way of viewing it.
Note that Dworkin opts for the spelling interpretive rather than the more classically correct interpretative.
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Summing up
All these questions are deep questions of methodology in general, but you should think about them particularly in formulating your approach to jurisprudence. You should be aware of them since they will help you to steer your way through the various theories and adopt an attitude. If you can lift yourself in thinking about jurisprudence from merely saying what other people said to what I think, you have oriented yourself correctly. You should not be deterred by the eminence of these theorists, or by the apparent abstraction of these ideas. You should be able to say something of interest and sense to an examiner and thinking about these things will help your own approach to legal argument as a lawyer because it will make you think about the methodology you are employing yourself in constructing legal arguments.

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distinguish, giving examples, between descriptive, normative and interpretive theorising indicate what some major problems of jurisprudence are discuss critically the point of defining law explain your own view of the relationship between theory and practice.
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Sample examination questions

The following questions are about methodology. In each of them, the good candidate will provide some answer to the question of what the theorist is trying to do. Question 1 What lessons can we learn from Harts discussion of the Nazi grudge informer case? Question 2 Discuss the role of the rule of recognition in Harts theory of law. Does it achieve what he hopes? Question 3 How did Hart define legal positivism and what were his arguments for it?
Advice on answering the questions

Question 1 You should read Chapter 7 of the subject guide before trying to answer this. But the question requires you to think about why that particular case, discussed by Hart in some depth in Chapter 2 of Essays in Jurisprudence and Philosophy, and again in Chapter 9 of The Concept of Law, should have been decided as Hart says. Given that the better decision, in Harts view, would have been the one that was inspired by an acceptance of his own theory of law, a good candidate would consider whether Hart was judging his theory of law according to whether it would produce better judicial decision-making. If this is what Hart was doing, then it suggests he thought that moral judgment is what you judge legal theories by. Question 2 Besides describing and discussing what the rule of recognition is, you should show the examiner:
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that you cure the defect of uncertainty in a pre-legal world of primary rules alone; to achieve a distinction between empirical factual statements about the concordant practice of officials of the system and morally evaluative statements, etc.) and that there might be a difficulty in reconciling description of law with endorsing a desirable function of law and that you have a view about this.
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You will be interested to know that only a few candidates will discuss these final two points. Good marks in jurisprudence start here, and it is where jurisprudence starts to become interesting.
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Question 3 This would require special attention to:
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Harts method of linguistic analysis his construction of the secondary rules in response to the social defects of a regime of primary rules alone, since this looks practical rather than descriptive his arguments for the wider conception of law over the narrower conception of law in Chapter 9.
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Reflect and review

Ready to Need to Need to move on revise first study again I can distinguish, giving examples, between descriptive, normative and interpretive theorising I can indicate what some major problems of jurisprudence are I can discuss critically the point of defining law I can explain your own view of the relationship between theory and practice.
Must revise 2.1 2.2 2.3 2.4 What is jurisprudence? Methodology, analysis, theory and the idea of definition Theory and evaluation The interpretive approach Revision done
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Notes
3 Imperative or command theories of law
Contents
3.1 3.2 3.3 3.4

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 The birth and development of secular or positive theories of law: the case of Thomas Hobbes . . . . . . . . . . . . . . . . . . . . 21 Jeremy Bentham . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 John Austin . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 Appreciating Austins command theory . . . . . . . . . . . . . . . . . 43 Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
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Introduction
This chapter considers what can be regarded as the earliest modern legal theory in England the imperative or command theory of law, associated with Jeremy Bentham and John Austin. The theory is based in a conception of sovereignty derived from long traditions of political thought to which Thomas Hobbes was a chief contributor, but adapted in significant ways to what Bentham and Austin understood as the political, social and legal conditions of their times. The chapter will first consider the influence of Thomas Hobbes but most attention will be devoted to Austin since his influence on the general course of development of legal theory in the UK has been much greater than that of Bentham, while Hobbes has been strangely neglected. In reading the material, you are asked to note how Austins ideas differ from Hobbes or Benthams and also to note what each of these writers was reacting against. There are also a number of general questions to consider:
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What was it in earlier legal thought that they were so anxious to discard and deny? What was the role of utilitarian considerations in their theories? Hobbes is considered the father of English political liberalism, while Bentham is usually considered a liberal thinker. How far is this the case with Austin too? Can Austin be considered to offer in some sense an anti-liberal legal theory? What is Austins view of the nature of legal and political authority? Why did Austin (as Hobbes before him) consider that international law was not really law but a form of positive morality? Why did he consider constitutional law in a similar way? Are there fundamental problems both with the idea of law as a command and with the Austinian theory of sovereignty? How apt are Harts criticisms of the theory he claims to have discerned from Austin?
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In addition, you should reflect on the process of reading and understanding a writers words, particularly those from an earlier historical period. Should we construct a model based on their writings which we take to have trans-historical meaning, or should we seek to understand their theories in the social, economic and political conditions of their times?
Learning outcomes
By the end of this chapter and the relevant readings, you should be able to:
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adopt an effective approach to reading original extracts from key writers critically discuss the emergence of legal positivism and the core meaning of legal positivism discuss the advantages and disadvantages of a theory of law based on the idea of the commands of the sovereign analyse the social and political context in which Austin wrote and how Hart has interpreted his project.
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Essential reading
Penner, et al. Chapter 3: Debating with natural law: the emergence of legal positivism. Cotterrell, R. The Politics of Jurisprudence: a critical introduction to legal philosophy. (London: Butterworths Law, 2003) second edition [ISBN 0406930554] Chapter 3: Sovereign and subject: Austin and Bentham. Morrison, Chapter 9: John Austin and the misunderstood birth of Legal Positivism.
Jurisprudence and legal theory 3 Imperative or command theories of law
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Hobbes was born when on 5 April 1588 the news that the Spanish Armada had set sail shocked the heavily pregnant wife of his father, also called Thomas Hobbes, a rather disreputable and drunkard vicar of Westport, into labour. The new Thomas Hobbes was later to state: My mother dear did bring forth twins at once, both me, and fear. Philosophical liberalism was in a real sense founded upon this emotion, and upon Hobbes desire to preserve his earthly domain against the prospect of death. Most of Hobbes adult life was spent as tutor and secretary to the Cavendishes, Earls of Devonshire. Scholars have noted how the life experiences of Hobbes (as with John Locke) were exempt from the customary familial relationships; Hobbes lived a life more of contract than affection. Although he was courageous in the writing of unpopular ideas, Hobbes took pride in his efforts to escape any form of physical danger. As well as his self-imposed exile in France while the civil war raged in England, he regularly took large quantities of spirits and threw up to cleanse the system (although he despised drunkenness), played tennis, sang at the top of his voice to exercise his lungs and exorcise the spirits, and even washed regularly (a rather unusual habit at the time!). He gave up eating red meat in middle age ... And in an age not noted for the length of the average life expectancy, he lived to be 91. Hobbes believed that through knowledge of the real human condition we could prolong individual and social life. Understanding the role of law was crucial and here Hobbes developed the idea of law as convention, and society as an artefact ideas rather submerged in earlier writings.
Useful further reading

Freeman, Chapter 4: Bentham, Austin and classical positivism. Harris, J. W. Legal Philosophies. (London: Butterworths Law, 1997) [ISBN 0406507163] Chapter 3: The command theory of law. Davies, H. and D. Holdcroft Jurisprudence: Text and Commentary. (London: Butterworths Law, 1991) [ISBN 0406504288] Chapter 2: John Austin. Lloyd, D. (Lord Lloyd of Hampstead) The Idea of Law. (London: Penguin Books, 1991) [ISBN 0140138307] pp. 17090.
3.1 The birth and development of secular or positive theories of law: the case of Thomas Hobbes
3.1.1 Introduction
The work of Thomas Hobbes (15881679) constitutes the founding moment for the stream of political philosophy and political orientation we call liberalism. His work provides a transition from the medieval intellectual synthesis wherein God was seen as the creator of life and Gods presence was seen in the organisation and life flows of the earth to a more secular foundation for government. In many respects Hobbes is the real father of legal positivism, except that he was several hundred years ahead of his time. In his famous Leviathan (published in 1651, just after the English Civil War) Hobbes sought to convince his audience the countrys ruling elite of a new structure of legitimation for government. Or, to put it another way, he came up with a new way of describing the nature of government and justifying the need to obey it. This theory of legitimacy, or argument for why we (the subjects) should give it our obedience, was founded on a narrative or story of mankinds nature our position in the world that gave us an understanding of our basic problems of existence. We were meant to see ourselves as actors in this narrative and be led to agree that we would as rational creatures (calculating individuals) accept the need for a strong government. His legitimating idea for modernity was a social contract. In the midst of a social order facing the chaos of the English Civil War, Hobbes presented a new social ethic, that of individual self-assertion. The world was to become a site for individuals to follow their desires, to plan their personal and social projects, and to realise their power. Whatever the final power in the cosmos, it was certain, Hobbes stated, that as we are in charge of civil society, we could fashion a political instrument to allow us to pursue our ends, our interests. Expansion and progress were possible; but only if we could first create the framework of a stable social order: the first and greatest enemy was social chaos. We overcame this through calculation, the rational calculation of individual humans based on their experience and understanding of the human condition. When we read we are subjected to the rhetorical ploys of the writer. Hobbes is still seen as very important, in part because over the centuries since he wrote many people have considered that he captures certain key aspects of the human condition. In approaching his work, as with that of all the other writers covered in this module, we need to become aware of his foundational assumptions, the way he presents the facts, the often subtle way he leads the audience into his way of appreciating things, and then how they make their conclusions seem to flow logically and naturally from what proceeds. Hobbes gives a narrative of the natural condition of mankind, which, some think, he presented in such a way that almost any government would seem better than the solitary, poor, nasty, brutal and short life he gave pre-social-contract man. In this respect Hobbes is sometimes regarded as the father figure of totalitarian government and as presenting an unnecessarily pessimistic and solitary view of the human condition (also feminists do not like his images for he begins with an idea of solitary
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men, not of people living in families; feminists point out that humans do not begin life as individuals they begin life as dependent babies and are made into individuals by socialisation). Hobbes certainly highlights the necessity to obey strong government; he argues for a sovereign authority which wields supreme power, to save men from the evils of the state of nature in which mans essentially egoistical nature means that life is a war of all on all. Hobbes is also regarded as the first political philosopher who developed his theory on materialist foundations, which means he took a strictly scientific view of humans and their place in the world.
3.1.2 Reading a text Leviathan in context

We say that to study jurisprudence and legal theory you should read the original texts. Following are extracts from Leviathan. But of course simply to present the text is offputting and difficult to focus upon. What should you be looking for?
We can not reproduce the experience that Hobbes wanted to achieve from his intended audience. Imagine you are opening the text. The first thing that confronts you is an image. First the we that I am referring to is not the audience that Hobbes had in mind. In fact of course you and I are probably located in different parts of the globe. I (WM) am a white male of New Zealand background living in London; my frame of reference is inescapably global. Given the huge range of people who study law through the external system of the University of London, you may range in age from 21 to 70+, and be of almost any range of ethnicity, location and religious orientation.
Hobbes put this text together in the period 164851. His target audience was a very small group of people; in particular, members of the exiled Royal English Court in France and other leading individuals in England. What was the background to his writing? Hobbes wrote at the time of the passing of the superordinate authority of the Christian church, where religious authority, instead of being a binding force, had itself become a major source of conflict in Europe. What should replace the claims to loyalty of religious brotherhood (and religiously orientated Natural Law) or localised feudal relations? The Thirty Years War, the bitterest European conflict yet seen, had laid waste to much of central Europe and drastically reduced the German-speaking population,

among others. Few people thought globally as we mean it today; but, using our current language, the major blocs of that time appear as a divided European Christendom, with the strongest powers being the Chinese Empire, localised in its concerns, and the Islamic Ottoman Empire, somewhat at odds with Islamic Persia. For centuries Islam, not Christian Europe, had been the place of learning, providing a world civilisation, polyethnic, multiracial and spread across large sections of the globe. This was also a time when the great voyages of European discovery were merging into the imperialist projects that have fashioned much of the political and social contours of the modern world. Christian Spain finally destroyed the last Muslim (Moorish) enclave the Emirate of Granada in 1492, in the aftermath of which Columbus was allowed to sail in search of a new route to India. From that time, the ships and military power of Europeans entered into the wider realms of the globe, overwhelming cultures and peoples that could not withstand the onslaught, creating new social and territorial relations in a European image. Driving this world shift in power was an existential perspective on life itself. Hobbes postulated the basis of the social bond in place of dynasties, religious tradition or feudal ties as rational self-interest exercised by calculating individuals. As bearers of subjective rationality, individuals were depicted as forming the social order and giving their allegiance to a government, a sovereign, because it was in their rational self-interest to do so; thus the metaphor for the social bond he offered was contractual, not an image of traditional or feudal ties. The sovereign was now to have a particular territory, which many have rather loosely termed the nation-state you may note that the Treaty of Westphalia, usually referred to in international relations or political sociology as beginning the era of the nation state, had been concluded in 1648.
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Activity 3.1 Reading Hobbes

Read the extract from Leviathan that follows. You may find it difficult to begin with, as the English language has changed a good deal in the last 350 years. 1. Consider the picture of the human condition that Hobbes presents: do you find it realistic? 2. How apt is the idea of a social contract to found the legitimacy of modern government? 3. Should ensuring social survival be the basic aim of the law (note how this influences the minimum content of natural law argument used by H.L.A. Hart) or should the law help direct the conditions for human flourishing? Write notes on these questions as you proceed. No feedback provided.
Leviathan Extract 1: The introduction

NATURE (the Art whereby God hath made and governs the world) is by the Art of man, as in many other things, so in this also imitated, that it can make an Artificial Animal. For seeing life is but a motion of Limbs, the beginning whereof is in some principal part within; why may we not say that all Automata (Engines that move themselves by springs and wheels as doth a watch) have an artificial life? For what is the Heart, but a Spring, and the Nerves, but so many Strings; and the Joints, but so many Wheels, giving motion to the whole body such as was intended by the Artificer? Art goes yet further, imitating that rational and most excellent work of nature, Man. For by art is created that great LEVIATHAN called a COMMON-WEALTH, or STATE (in Latin, CIVITAS) which is but an Artificial Man; though of greater stature and strength than the Natural, for whose protection and defence it was intended; and in which the Sovereignty is an Artificial Soul, as giving life and motion to the whole body. The Magistrates, and other Officers of Judicature and Execution, artificial Joints; Reward and Punishment (by which fastened to the seat of the Sovereignty, every joint and member is moved to perform his duty) are the Nerves, that do the same in the body natural; the Wealth and Riches of all the particular members are, the Strength; Salus Populi (the peoples safety) its business; counselors, by whom all things needful for it to know, are suggested unto it, are the Memory; Equity and Laws, an artificial Reason and will; concord,
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health; sedition, sickness; and civil war, death. Lastly, the Pacts and Covenants, by which the parts of this body politic were at first made, set together, and united, resemble that Fiat, or the Let us make man, pronounced by God in the creation. To describe the nature of this artificial man, I will consider First, the Matter thereof, and the Artificer, both which is Man. Secondly, How, and by what Covenants it is made; what are the Rights and just Power or Authority of a Sovereign, and what it is that preserveth and dissolveth it. Thirdly, what is a Christian Common-wealth. Lastly, what is the Kingdom of Darkness. Concerning the first, there is a saying much usurped of late, that wisdom is acquired, not by reading of books, but of men. Consequently whereunto, those persons that for the most part can give no other proof of being wise, take great delight to show what they think they have read in men, by uncharitable censures of one another behind their backs. But there is another saying not of late understood, by which they might learn truly to read one another, if they would take the pains; and that is, Nosce te ipsum, Read thyself: which was not meant as it is now used to countenance either the barbarous state of men in power towards their inferiors; or to encourage men of low degree to a saucy behaviour towards their betters; but to teach us that for the similitude of the thoughts, and passions of one man, to the thoughts and passions of another. Whosoever looketh into himself and considereth what he doth, when he does think, opine, reason, hope, fear, etc., and upon what grounds, he shall thereby read and know what are the thoughts and passions of all other men, upon the like occasions. I say the similitude of passions, which are the same in all men, desire, fear, hope, etc.; not the similitude of objects of the passions, which are the things desired, feared, hoped, etc: for these the individual constitution and particular education do so vary, and they are so easy to be kept from our knowledge that the characters of mans heart, blotted and confounded as they are with dissembling, lying, counterfeiting, and erroneous doctrines, are legible only to him that searcheth hearts. And though by mens actions we do discover their design sometimes, yet to do it without comparing them with our own and distinguishing all circumstances by which the case may come to be altered, is to decipher without a key, and be for the most part deceived by too much trust or by too much diffidence; as he that reads is himself a good or evil man. But let one man read another by his actions never so perfectly, it serves him only with his acquaintance, which are but few. He that is to govern a whole Nation must read in himself not this or that particular man, but mankind: which though it be hard to do, harder than to learn any language or science; yet, when I shall have set down my own reading orderly and perspicuously, the pains left another will be one to consider, if he also finds not the same in himself. For this kind of doctrine admitteth no other demonstration... whatsoever is the object of any mans appetite or desire, that is it which he, for his part, calleth Good: And the object of his hate, and aversion, Evil; and of his contempt, Vile and Inconsiderable. For these words of Good, Evil, and Contemptible are ever used with relation to the person that useth them: There being nothing simply and absolutely so; nor any common Rule of Good and Evil, to be taken from the nature of the objects themselves; but from the person of the man (where there is no Common-wealth); or (in a Commonwealth), from the person that representeth it, or from an Arbitrator or Judge, whom men disagreeing shall by consent set up and make his sentence the Rule thereof
So much for the introduction, now for Hobbes narrative of the natural condition of mankind.
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Leviathan Extract 2: CHAPTER XIII

Of the NATURAL CONDITION of Mankind, as concerning their felicity, and Misery
Nature hath made men so equal in the faculties or body and mind as that though there be found one man sometimes manifestly stronger in body or of quicker mind than another; yet when all is reckoned together, the difference between man and man, is not so considerable as that one man can thereupon claim to himself any benefit, to which another may not pretend as well as he. For as to the strength of body, the weakest has strength enough to kill the strongest either by secret machination or by confederacy with others that are in the same danger with himself. And as to the faculties of the mind, (setting aside the arts grounded upon words, and especially that skill of proceeding upon general and infallible rules called Science; which very few have and but in few things; as being not a native faculty, born with us; nor attained (as Prudence), while we look after somewhat else). I find yet a greater equality amongst men than that of strength. For prudence is but experience; which equal time equally bestows on all men, in those things they equally apply themselves unto. That which may perhaps make such equality incredible is but a vain conceipt of ones own wisdom, which almost all men think they have in a greater degree than the Vulgar; that is, than all men but themselves and a few others, whom by fame or for concurring with themselves, they approve. For such is the nature of men that howsoever they may acknowledge many others to be more witty, or more eloquent or more learned; yet they will hardly believe there be many so wise as themselves: For they see their own wit at hand and other mens at a distance. But this proveth rather that men are in that point equal, than unequal. For there is not ordinarily a greater sign of the equal distribution of anything, than that every man is contended with his share. From this equality of ability, ariseth equality of hope in the attaining of our Ends. And therefore if any two men desire the same thing, which nevertheless they cannot both enjoy, they become enemies; and in the way to their end (which is principally their own conservation, and sometimes their delectation only), endeavour to destroy or subdue one another. And from hence it comes to pass that where an Invader hath no more to fear than another mans single power; if one plants, sows, builds, or possesses a convenient seat, others may probably be expected to come prepared with forces united to dispossess and deprive him not only of the fruit of his labour, but also of his life or liberty. And the Invader again is in the like danger of another. And from this diffidence of one another, there is no way for any man to secure himself so reasonably as Anticipation; that is, by force or wiles, to master the persons of all men he can, so long, till he sees no other power great enough to endanger him: And this is no more than his own conservation required, and is generally allowed. Also because there be some that taking pleasure in contemplating their own power in the acts of conquest, which they pursue farther than their security requires; if others, that otherwise would be glad to be at ease within modest bounds, should not by invasion increase their power, they would not be able, long time, by standing only on their defence, to subsist. And by consequence, such augmentation of dominion over men being necessary to a mans conservation, it ought to be allowed him. Again, men have no pleasure (but on the contrary a great deal of grief) in keeping company, where there is no power able to over-awe them all. For every man looketh that his companion should value him at the same rate he sets upon himself: And upon all sign of contempt, or undervaluing, naturally endeavours, as far as he dares (which amongst them that have no common power to keep them in quiet, is far enough to make them destroy each other), to extort a greater value from his contemners by dommage; and from others, by the example. So that in the nature of man, we find three principal causes of quarrel. First: Competition; Secondly: Diffidence; Thirdly: Glory. The first, maketh men invade for Gain; the second, for Safety; and the third, for Reputation. The first uses Violence to make themselves masters of other mens persons, wives, children, and chattel; the second, to defend them; the third, for trifles as a word, a smile, a different opinion, and any other sign of undervalue, either direct in their persons or by reflexion in their kindred, their friends, their nation, their profession or their name.

Felicity = happiness (from Latin felix = happy).
Desire the same thing: thing in a material sense, such as an object or asset. Convenient seat: attractive mansion or estate.
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Hereby it is manifest that during the time men live without a common power to keep them all in awe, they are in that condition which is called War; and such a war as is of every man against every man. For war consists not in battle only or the act of fighting; but in a tract of time, wherein the Will to contend by battle is sufficiently known and therefore the notion of Time is to be considered in the nature of war; as it is in the nature of weather. For as the nature of foul weather lies not in a shower or two of rain but in an inclination thereto of many days together, so the nature of war consists not in actual fighting but in the known disposition thereto, during all the time there is no assurance to the contrary. All other time is PEACE. Whatsoever therefore is consequent to a time of war, where every man is enemy to every man; the same is consequent to the time wherein men live without other security, than what their own strength and their own invention shall furnish them with. In such condition, there is no place for Industry because the fruit thereof is uncertain and consequently no culture of the earth; no navigation nor use of the commodities that may be imported by sea; no commodious building; no instruments of moving and removing such things as require much force; no knowledge of the face of the earth; no account of time; no arts; no letters; no society; and which is worst of all, continual fear and danger of violent death; And the life of man, solitary, poor, nasty, brutish, and short. It may seem strange to some man that has not well weighed these things that nature should thus dissociate and render men apt to invade and destroy one another: and he may therefore, not trusting to this inference made from the passions, desire perhaps to have the same confirmed by experience. Let him therefore consider with himself when taking a journey, he arms himself and seeks to go well accompanied; when going to sleep, he locks his doors; when even in his house he locks his chests; and this when he knows there be laws and public officers, armed, to revenge all injuries shall be done him; what opinion he has of his fellow subjects when he rides armed; of his fellow citizens when he locks his doors; and of his children and servants when he locks his chests. Does he not there as much accuse mankind by his actions, as I do by my words? But neither of us accuse mans nature in it. The Desires, and other passions of man are, in themselves, no sin. No more are the actions that proceed from those passions, till they know a law that forbids them: which till laws be made they cannot know, nor can any law be made till they have agreed upon the person that shall make it. It may, per adventure, be thought there was never such a time nor condition of war as this, and I believe it was never generally so, over all the world: but there are many places where they live so now. For the savage people in many places of America, except the government of small families, the concord whereof dependeth on natural lust, have no government at all; and live at this day in that brutish manner, as I said before. Howsoever, it may be perceived what manner of life where would be, where there were no common power to fear; by the manner of life, which men that have formerly lived under a peaceful government use to degenerate into, in a civil war. But though there had never been any time wherein particular men were in a condition of war one against another; yet in all times, kings, and persons of sovereign authority because of their independence, are in continual jealousies and in the state and posture of gladiators; having their weapons pointing, and their eyes fixed on one another; that is, their forts, garrisons, and guns upon the frontiers of their kingdoms; and continually spy upon their neighbours which is a posture of war. But because they uphold thereby, the industry of their subjects, there does not follow from it that misery which accompanies the liberty of particular men. To this war of every man against every man, this also is consequent; that nothing can be unjust. The notions of Right and Wrong, Justice and Injustice have there no place. Where there is no common power, there is no law: where no law, no injustice. Force, and fraud are in war, the two cardinal virtues. Justice and injustice are none of the faculties neither of the body nor mind. If they were, they might be in a man that were alone in the world as well as his senses and passions. They are qualities that relate to men in society, not in solitude. It is consequent also to the same condition, that there be no propriety, no dominion, no Mine and Thine distinct; but only that to be every mans that he can get; and for so long as he can keep it. And thus much for the ill condition, which man by mere nature is actually placed in; though with a possibility to come out of it, consisting partly in the passions, partly in his reason.
Solitary, poor, nasty, brutish, and short: these are perhaps the most famous words in the history of English political philosophy.
Per adventure = perhaps.

The passions that incline men to peace, are fear of death; desire of such things as are necessary to commodious living; and a hope by their industry to obtain them. And reason suggests convenient articles of peace, upon which men may be drawn to agreement. These articles are they, which otherwise are called the laws of nature: whereof I shall speak more particularly, in the two following chapters.
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In the subsequent chapters Hobbes sets up his key figure of the sovereign, who lays down the conditions for human flourishing, or individual pursuit of desire by a set of rules or commands which were laws. But note: Hobbes does not say that the sovereign makes laws because of power alone: law, properly, is the word of him that by right hath command over others (Leviathan, Chapter 15, emphasis added). Hobbes narrative of the human condition and the need for man to set up a common authority leads to the social contract which authorises the sovereign. Hobbes combated divided attention; he argued that people had come to obey too many factors and were swayed by various customs, traditions, religious beliefs, visible powers of their immediate secular rulers, feudal ties and numerous fears. Since these pulled in different directions, chaos resulted. Having given his narrative of the state of nature, Hobbes has us set up a sovereign, a mortal God out of our commonly agreeing to a social contract. The sovereign or as some more loosely call it, the state was to make possible the emergence of a new community, one of rational individuals agreeing upon a common power to set the rules of the social games of individualist pursuit of desire and rational self-interest.
3.1.3 Hobbes: context and influence

In Hobbes we have many of the basic characteristics of legal positivism. Law is something posited by man, it does not flow from Gods creation. Therefore the relationship between a legal enactment and morality is not straightforward. Does an enactment or decision by judges need to be moral for it to be accepted as valid law? Hobbes would appear to say no: it is a matter of sanctions, of the power to enforce the positively laid down legal statement (in his lifetime the great common law judge Sir Mathew Hale tried to defend the traditions of the common law against Hobbes by arguing, in part, that the common law contained accumulated wisdom, while the image of law as the commands of the sovereign would encourage ad hoc decisionmaking or grand political agendas. The power of legislative reason emerged really in the nineteenth century when Bentham and others saw in the law an instrument of rational rule, to be used by the political masters and guided by a secure ethical philosophy utility). Many commentators have put the Hobbesian problem as the basic question of social organisation in the modern era. As Stephen Collins puts it:
Hobbes understood that a world in flux was natural and that order must be created to restrain what was natural Society is no longer a transcendentally articulated reflection of something predefined, external, and beyond itself which orders existence hierarchically. It is now a nominal entity ordered by the sovereign state which is its own articulated representative [Forty years after the death of Queen Elizabeth I] order was coming to be understood not as natural, but as artificial, created by man, and manifestly political and social Order must be designed to restrain what appeared ubiquitous (that is flux) Order became a matter of power, and power and matter of will, force and calculation Fundamental to the entire reconceptualization of the idea of society was the belief that the commonwealth, as was order, was a human creation.
Collins, S. From Divine Cosmos to Sovereign State: An Intellectual History of Consciousness and the Idea of Order in Renaissance England (Oxford: Oxford University Press, 1989) [ISBN 019505458X] pp. 2829).
But how is the state going to rule? What should guide the state? This is the continuing problem of establishing a rational political philosophy. Note that Bentham and Austin after him thought they had found the answer in utilitarianism. The question was not so easily solved, however, and is a fertile ground for theorising.
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Activity 3.2
Reading a contemporary theorist: H.L.A. Hart In the extracts from Hobbes we have looked at his version of the natural condition of humanity. Hobbes presents a strictly materialist conception of mankind and then a narrative of the natural condition of man that served to found his political philosophy. H.L.A. Hart develops a modern version influenced by Hobbes (and also the eighteenth-century Scottish philosopher David Hume) in Chapter IX of the Concept of Law. Read Hart, The Concept of Law, Chapter IX, particularly pp. 193200, and make notes on the following questions as you do so: 1. How successful is Harts invocation of the minimum condition of natural law? 2. How convincing do you find his truisms? 3. To what extent does Hart simply follow Hobbes and where does he add to Hobbes narrative of the human condition? Feedback: you will find all the feedback you need in section 3.1.4 below.
3.1.4 Understanding Harts analysis of the human condition

Many have offered their own narratives of the basic human condition. An early version is in Platos dialogue Protagoras. Plato includes references to a god (Zeus, the principal god of the Greeks) and a lesser god (Hermes), which is not made by Hart. (The writing is deliberately allegorical, and the references to the then conventional gods were meant to be demythologised.)
Men lived at first in scattered groups They were devoured by wild beasts, since they were in all respects weaker They sought to protect themselves by coming together and building fortified cities; but when they began to gather in communities they could not help injuring one another in their ignorance of the arts of co-operative living. Zeus, therefore, fearing the total destruction of the race, sent Hermes to impart to men the qualities of respect for others and a sense of justice (Hermes asks whether justice and respect should be imparted unequally, like the skilled arts, or equally to all alike.) Equally (said Zeus). There could never be societies if only a few shared these virtues. Moreover, you must lay it down as my law that if anyone is found incapable of acquiring his share of these virtues he shall be put to death as a disease in society.
Do not read on until you have finished reading Harts chapter and making the notes for this activity.
By contrast to the way Hobbes is often read, Protagoras makes it quite clear that the story about primitive men coming together in a social contract is only a story. He is not implying for a moment that there ever actually was Hobbess nasty, brutish and short-lived savage (or a noble one, for that matter); whether he believed in the Homeric Gods is another matter. It is an orientating narrative, an intellectual device used to get a basis for further discussion. Note that Hart follows Protagoras and Hobbes putting the survival of human society as the necessary and basic aim: Our concern is with social arrangements for continued existence, not with those of a suicide club. He continues:
We wish to know whether, among these social arrangements, there are some which may be illuminating ranked as natural laws discoverable by reason, and what their relation is to human law and morality Reflection on some very obvious generalisations indeed truisms concerning human nature and the world in which men live, show that as long as these hold good, there are certain rules of conduct which any social organisation must contain if it is to be viable. Such rules do in fact constitute a common element in the law and conventional morality of all societies where these are distinguished as different forms of social control. With them are found, both in law and in morals, much that is peculiar to a particular society and much that may seem arbitrary and a mere matter of choice. Such universally recognised principles of conduct which have a basis in elementary truths concerning human beings, their natural environment, and their aims, may be considered the minimum content of Natural Law. (The Concept of Law, pp. 19293)

There are a number of interesting points in this passage: 1. Hart constantly (three times in this quotation) brackets law with (conventional) morality, meaning by morality here what Austin called positive morality. 2. Having indicated conventional morality logically he assumes that there is an unqualified Morality, and this Hart calls natural law, and it is the common content (i.e. a common factor) both of the various positive moralities and of the various systems of law. 3. Hart tells us that there is this common content, and tells us what it is; he also offers an explanation of how he knows what it is. (It is discoverable by reason.) 4. His explanation (or discovery) of the connection between the basic and necessary aim, the truisms and his conclusions is founded upon two fundamental principles, namely:
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that societies survive (they are not suicide clubs) that there are certain characteristic features of human beings as a species of organism on the earth, and certain features of our earthly environment, that we all share (the truisms).
5. H is conclusion, or justification of the necessity for rules, takes the form of a logical demonstration, such that, given those features of human beings and the environment, human society cannot survive unless human beings accept certain constraints on their behaviour. These constraints are what Hart terms minimum content of natural law. Given the truisms, certain restrains and rules are a necessary condition of the survival of human society. What of the so-called truisms themselves what is meant by calling them truisms? Three things: (1) they are true; (2) they are self-evidently true; but (3) they may be either so obvious that we simply take them for granted and do not see their significance, or they are not at first sight obvious; in both cases we need to state them clearly. The truisms which lead to Harts minimum content of natural law can be classified as biological, behavioural and environmental. Hart lists five, but only two of these lead to any particular content in morals; the other three lead to various other features of morality which may be called formal for the present. The two which lead to a specific content are human vulnerability and limited resources.
Human vulnerability
This exists in a dialectical relation with a complementary feature, namely destructive power: a human capacity and readiness to hurt. Thus the truism is that man is by nature capable of receiving, and of inflicting, serious bodily injury and death. This is said to be connected with the universally prevalent prohibitions on killing and injuring, except in closely specified circumstances. The necessity for the connection can be understood if we imagine a very different natural condition for man: if, for instance, we were heavily armour-plated, and so incapable of being damaged; or if we were immobile, like plants, and so incapable of wielding weapons or moving to attack. Rules against killing or maiming might still exist in these altered conditions, but they would no longer be necessary.
Limited resources
The fact that the basic necessities of life are always in short supply makes inevitable some form of property institution (not necessarily, of course, an individualist or capitalist property system), together with a set of rules governing the exchange of property, that is, contracts and promises. Again, the necessity of this can be understood by imagining natural conditions in which human beings never needed to labour to produce and conserve their resources in order to survive: if, for instance, they could extract their food from the air (like the Biblical lilies of the field).
page 30 The other three truisms

Harts other truisms do not lead to any particular content:
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Approximate equality (no man is enormously stronger than another) which makes generally acceptable a common system of mutual forbearances and compromise. (Morality does not operate between nations, just because nations are not even approximately equal; and it operates very imperfectly in political relations, for the same reason: as in the case of electoral promises.) Limited altruism (men are not devils, but neither are they angels) explains the necessity of restraints, and at the same time their possibility. Limited understanding and strength of will makes it necessary to apply sanctions, including here the informal sanctions of moral disapproval, as an artificial incentive to conformity for those whose own reason or self-control are insufficient.
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To evaluate Harts thesis of a minimum content to natural law, one must be careful to see just what it is claiming. In one respect it is quite modest, in another ambitious. It is modest in scope, because it is explicitly concerned only with what it calls the minimum content of morality; as far as we have seen, it seems to be restricted to rules governing matters of life and death, injury, property and contracts. Further, these rules are all prohibitive: there is no positive inducement to act in virtuous ways, only inhibitions against wrongdoing. Thirdly, only primary rules are dealt with; nothing is said about those special circumstances in which it may be permissible, or even mandatory, to destroy life, inflict bodily harm, deprive of possession or break a promise; and all or most of these things are generally sometimes held to be morally justifiable. The reasons for these limitations are fairly obvious. The first limitation the restricted range of topics is explained by the fact that only one basic aim that of survival is considered. (Even this concept was one of social, not individual, survival, as we see from the end of the quotation from Platos Protagoras. Perhaps the two are sufficiently close for us to downplay the distinction for these purposes.) So any moral rules which are not directly concerned with survival will not be covered. And this is exactly what we should expect after all, survival is the basic aim, because if this aim is not achieved, no others can be. Only survivors can be do-gooders. But it is quite open to the natural law theorist to introduce other, less basic aims, to explain other areas of moral control and still remain within the area of universally recognised principles, rather than regional variations. An obvious case would be the moral (and legal) controls on mating and procreation. It is noticeable that there are no sexual restraints in Harts list, even though such restraints are in fact universal in all societies. The reason why they are not in Harts list is because such things as sexual promiscuity, incest or adultery are not obviously incompatible with survival, as promiscuous killing would be. However, this may be a reflection of the limited sociology of Harts account in the Concept. Most anthropologists have put the incest prohibition at the foundation of natural morality. From Levi Strauss to the reflections of Freud, the prohibition is seen as the starting point of social organisation, trade and inter-group interaction.
Activity 3.3
At this stage, try drafting an answer to this past examination question: Hart says that all legal systems will contain a minimum content of morality. Why did he think it was necessary to concede this to the natural lawyers? Are his arguments for the minimum successful? Feedback: see end of guide.
Useful further reading on Hobbes
Morrison: Jurisprudence: from the Greeks to Post-modernity, Chapter 4: Thomas Hobbes and the origins of the imperative theory of law: or mana transformed into earthly power.
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3.2 Jeremy Bentham

If Hobbes had argued for the idea of legislative rationality the government taking responsibility for organising the nature of civil society and the structures of everyday interaction and using the law to do so Bentham assumed both that this was possible and that it was the responsibility and the duty of government. Jeremy Bentham was the son of a London attorney and was first educated at the elite Westminster School before being sent off at the age of 12! to Oxford University (Queens College) where he attended lectures on the English common law given by William Blackstone, a noted university teacher, lawyer, sometime MP and later judge. From 1763, he studied law at Lincolns Inn and was called to the Bar in 1772. Bentham later stated that he instantly recognised Blackstones mistakes in his lectures when Blackstone claimed that the common law reflected the liberties of the English subject and was founded upon ideas of natural rights; these Bentham called nonsense on stilts. Benthams major writings on law begin with criticism of the approach taken by Blackstone which Blackstone had published in his Commentaries on the Laws of England (first edition published 176569). Blackstone hoped the Commentaries would provide a map for studying the common law and whatever the criticisms of his logic he was correct as to the influence of his work: the Commentaries were a fantastically successful text going through over 40 editions, and were largely responsible for the USA remaining a common law country after independence in 1776. Bentham thought Blackstones analysis was deficient, as it portrayed the common law as growing organically, containing the wisdom of past decisions and not did not consider the social impact of the law nor did it offer an image of the law as an instrument of governmental power (he considered that Blackstone was an apologist for the status quo). Bentham was a reformer and to this end he differentiated the question of what the law was from the question of what the law ought to be. The ought part was answered by the key criterion of judging or as he put it, the sacred truth that the greatest happiness of the greatest number is the foundation of morals and legislation. Enlightened self-interest provided the key to understanding ethics, so that a person who always acted with a view to his own maximum satisfaction in the long run would always act rightly. In his Introduction to the Principles of Morals and Legislation (1789), Bentham strove to cut a new road through the wilds of jurisprudence so that the greatest happiness of the greatest number was to govern our judgment of every institution and action. You may also note that Bentham was the proponent of a total institution called the panopticon. This was to be an institution of perfect control and visibility; the inmate was to be constantly under the gaze of the overseer. To many this was the perfect emblem of the dangers of the modernist obsession with legislating, defining, structuring, segregating, classifying and recording. That the modern city of reason would end in a living prison would certainly not have been Benthams desire, but the reality of the holocaust and the great imprisonments of the Soviet Union, the re-education camps used elsewhere in the world testify to the dark side of the attempts to define chaos out of social life and define in order with the aim of creating a utopian society. The marriage of modern state power and the claim of acting in defence of the truth needs constant attention (as Weber argued: see Chapter 12). Jeremy Bentham, as he can be seen today.
In his later life a group of people around Bentham tried to create a university to adopt the utilitarian stance and provide a counter to Oxford and Cambridge. These Godless heathens of Gower street as one critic labelled them, were refused permission, although they founded University College London. In his will Bentham left his body to the institution, on condition that after it was publicly dissected and used for medical display; it would form an auto-icon to be permanently displayed.
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3.3 John Austin

3.3.1 Background
As a young man, John Austins family bought him a junior commission in the army and after five years service he began to study law in 1812. From 1818 to 1825 he practised, rather unsuccessfully, at the Chancery Bar. Austin was never a practical man but he impressed the circle of people (at the time viewed as philosophical radicals, in part for their programme of reform and their belief in utilitarianism) around Jeremy Bentham with his powers of rigorous analysis and his uncompromising intellectual honesty. In 1826, when University College London, was founded, he was appointed its first professor of jurisprudence; at the time legal education was almost entirely practical and it was not possible to pursue a university degree in English law. The common law had been the subject of the lectures of William Blackstone at Oxford, which had resulted in his massive Commentaries on the Law of England, but even as late as 1874 Dicey could give his inaugural lecture on the theme of was English law a fit subject for University education! To prepare for the classes Austin spent time in Germany studying Roman law and the work of German experts on modern civil law, whose ideas of classification and systematic analysis exerted an influence on him second only to that of Bentham. Both Austin and his wife Sarah were ardent utilitarians. While much younger, they were friends of Bentham and of James Mill, whose son John Stuart Mill was a student of Austin and later wrote a large review of the full set of lectures Sarah published after Austins death. The review argued that Austin achieved the application of utilitarianism to law and set out the path for legal reform. A key point for Austin is that to achieve legal reform (and reform of government and social institutions through law) one has to have a very clear understanding of the nature of law itself. The first task was to rid our understanding of law from the confusions and mysteries of the common law tradition. Austin tried to do this by putting positive law into a political framework, taken in considerable part from Hobbes: law was part of the political relations of sovereign and subject. Austins first lectures, in 1828, were attended by several distinguished men, but he failed to attract students and resigned his chair in 1832. In 1834, after delivering a shorter but equally unsuccessful version of his lectures, he abandoned the teaching of jurisprudence. He was appointed to the Criminal Law Commission in 1833 but, finding little support for his opinions, resigned in frustration after signing its first two reports. In 1836 he was appointed a commissioner on the affairs of Malta. The Austins then lived abroad, chiefly in Paris, until 1848 (when a revolution took place, and they lost most of their money through having to sell their house quickly), after which they settled in Surrey, where Austin became a much more conservative thinker; he died in 1859. Austin found little success during his life: recognition came afterwards, and in large part is owing to his wife Sarah who gave him great support, both moral and economic (during the later years of their marriage, they lived primarily from her labours as a translator and reviewer); she edited his notes to publish a more complete set of his Lectures On Jurisprudence (Austin, 1873). As for his style, read on
Lecture I
The matter of jurisprudence is positive law: law, simply and strictly so called: or law set by political superiors to political inferiors. But positive law (or law, simply and strictly so called) is often confounded with objects to which it is related by resemblance, and with objects to which it is related in the way of analogy: with objects which are also signified, properly and improperly, by the large and vague expression law. To obviate the difficulties springing from that confusion, I begin my projected Course with determining the province of jurisprudence, or with distinguishing the matter of jurisprudence from those various related objects: trying to define the subject of which I intend to treat before I endeavour to analyse its numerous and complicated parts. A law, in the most general and comprehensive acceptation in which the term, in its literal meaning, is employed may be said to be a rule laid down for the guidance of an intelligent being by an intelligent being having power over him. Under this definition are included

and without impropriety, several species. It is necessary to define accurately the line of demarcation which separates these species from one another, as much mistiness and The whole or a portion of the laws set by God to men is frequently styled the law of nature, or natural law: being, in truth, the only natural law of which it is possible to speak without a metaphor, or without a blending of objects which ought to be distinguished broadly. But, rejecting the appellation Law of Nature as ambiguous and misleading, I name those laws or rules, as considered collectively or in a mass, the Divine law, or the law of God. Laws set by men to men are of two leading or principal classes: classes which are often blended, although they differ extremely; and which, for that reason should be severed precisely and opposed distinctly and conspicuously. Of the laws or rules set by men to men, some are established by political superiors, sovereign and subject: by persons exercising supreme and subordinate government, in independent nations, or independent political societies. The aggregate of the rules thus established or some aggregate forming a portion of that aggregate, the term law, as used simply and strictly is exclusively applied. But, as contra-distinguished to natural law, or to the law of nature (meaning by those expressions, the law of God), the aggregate of the rules established by political superiors is frequently styled positive law, or law existing by position. As contra-distinguished to the rules which I style positive morality, and on which I shall touch immediately the aggregate of the rules, established by political superiors, may also be marked commodiously with the name of positive law. For the sake then of getting a name brief and distinctive at once, and agreeably to frequent usage, I style that aggregate of rules or any portion of that aggregate, positive law: though rules which are not established by political superiors, are also positive, or exist by position; if they be rules or laws in the proper signification of Closely analogous to human laws of this second class are a set of objects frequently but improperly termed laws, being rules set and enforced by mere opinion, that is, by the opinions or sentiments held or felt by an indeterminate body of men in regard to human conduct. Instances of such a use of the term law are the expressions The law of honour; The law set by fashion; and rules of this species constitute much of what is usually termed International law. The aggregate of human laws properly so called belonging to the second of the classes above mentioned, with the aggregate of objects improperly but by close analogy termed laws, I place together in a common class, and denote them by the term positive morality. The name morality severs them from positive law, while the epithet positive disjoins them from the law of God. And to the end of obviating confusion, it is necessary or expedient that they should be disjoined from the latter by that distinguishing epithet. For the name morality (or morals), when standing unqualified or alone, denotes indifferently either of the following objects, namely, positive morality as it is, or without regard to its merits; and positive morality as it would be, if it conformed to the law of God, and were therefore deserving of approbation. Besides the various sorts of rules which are included in the literal acceptation of the term law, and those which are by a close and striking analogy, though improperly, termed laws. There are numerous applications of the term law, which rest upon a slender analogy and are merely metaphorical or figurative. Such is the case when we talk of laws observed by the lower animals; of laws regulating the growth or decay of vegetables; of laws determining the movements of inanimate bodies or masses. For where intelligence is not, or where it is too bounded to take the name of reason and, therefore, is too bounded to conceive the purpose of a law, there is not the will, which law can work on or which duty can incite or restrain. Yet through these misapplications of a name, flagrant as the metaphor is, has the filed of jurisprudence and morals been deluged with muddy speculation. [Having] suggested the purpose of my attempt to determine the province of jurisprudence: to distinguish positive law, the appropriate matter of jurisprudence, from the various objects to which it is related by resemblance, and to which it is related nearly or remotely by a strong or slender analogy: I shall [now] state the essentials of a law or rule (taken with the largest signification which can be given to the term properly). Every law or rule (taken with the largest signification which can be given to the term properly) is a command. Or rather, laws or rules, properly so called, are a species of commands.
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Now, since the term command comprises the term law, the first is the simpler as well as the larger of the two. But, simple as it is, it admits of explanation. And, since it is the key to the sciences of jurisprudence and morals, its meaning should be analysed with precision. Accordingly, I shall endeavour, in the first instance, to analyse the meaning of command: an analysis which I fear will task the patience of my hearers but which they will bear with cheerfulness or, at least, with resignation, if they consider the difficulty of performing it. The elements of a science are precisely the parts of it which are explained least easily. Terms that are the largest and, therefore, the simplest of a series are without equivalent expressions into which we can resolve them concisely. And when we endeavour to define them or to translate them into terms which we suppose are better understood, we are forced upon awkward and tedious circumlocutions. If you express or intimate a wish that I shall do or forbear from some act, and if you will visit me with an evil in case I comply not with your wish, the expression or intimation of your wish is a command. A command is distinguished from other signification of desire, not by the style in which the desire is signified, but by the power and the purpose of the party commanding to inflict an evil or pain in case the desire be disregarded. If you cannot or will not harm me in case I comply not with your wish, the expression of your wish is not a command, although you utter your wish in imperative phrase. If you are able and willing to harm me in case I comply not with your wish, the expression of your wish amounts to a command, although you are prompted by a spirit of courtesy to utter it in the shape of a request. Preces erant, sed quibus contradici non posset. Such is the language of Tacitus, when speaking of a petition by the soldiery to a son and lieutenant of Vespasian. A command then is a signification of desire. But a command is distinguished from other signification of desire by this peculiarity: that the party to whom it is intended is liable to evil from the other, in case he complies not with the desire. Being liable to evil from you if I comply not with a wish, which you signify, I am bound or obliged by your command, or I lie under a duty to obey it. If, in spite of that evil in prospect, I comply not with the wish which you signify, I am said to disobey your command, or to violate the duty which it imposes. Command and duty are, therefore, correlative terms: the meaning denoted by each being implied or supposed by the other. Or (changing the expression) wherever a duty lies, a command has been signified; and wherever a command is signified, a duty is imposed. Concisely expressed, the meaning of the correlative expressions is this. He who will inflict an evil in case his desire be disregarded, utters a command by expressing or intimating his desire: He who is liable to the evil in case he disregard the desire, is bound or obliged by the command. The evil which will probably be incurred in case a command be disobeyed or (to use an equivalent expression) in case a duty be broken, is frequently called a sanction, or an enforcement of obedience. Or (varying the phrase) the command or the duty is said to be sanctioned or enforced by the chance of incurring the evil. Considered as thus abstracted from the command and the duty which it enforces, the evil to be incurred by disobedience is frequently styled a punishment. But, as punishments, strictly so called, are only a class of sanctions, the term is too narrow to express the meaning adequately. It appears from what has been premised that a law, properly so called, may be defined in the following manner. A law is a command which obliges a person or persons. But, as contra-distinguished or opposed to an occasional or particular command, a law is a command which obliges a person or persons, and obliges generally to acts or forbearances of a class. In language more popular but less distinct and precise, a law is a command which obliges a person or person to a course of conduct It appears from what he has been premised, that a law, properly so called, may be defined in the following manner.

A law is a command which obliges a person or persons. But, as contra-distinguished or opposed to an occasional or particular command, a law is a command which obliges a person or persons, and obliges generally to acts or forbearances of a class. In language more popular but less distinct and precise, a law is a command which obliges a person or persons to a course of conduct. Laws and other commands are said to proceed from superiors, and to bind or oblige inferiors. I will, therefore, analyse the meaning of those correlative expressions; and will try to strip them of a certain mystery, by which that simple meaning appears to be obscured. Superiority is often synonymous with precedence or excellence. We talk of superiors in rank; of superiors in wealth; of superiors in virtue: comparing certain persons with certain other persons; and meaning that the former precede or excel the latter in rank, in wealth, or in virtue. But, taken with the meaning wherein I here understand it, the term superiority signifies might: the power of affecting others with evil or pain, and of forcing them, through fear of that evil, to fashion their conduct to ones wishes. For example, God is emphatically the superior of man. For His power of affecting us with pain and of forcing us to comply with His will is unbounded and resistless. To a limited extent, the sovereign One or Number is the superior of the subject or citizen: the Master of the slave or servant, the Father of the child. In short, whoever can oblige another to comply with his wishes, is the superior of that other, so far as the ability reaches: The party who is obnoxious to the impending evil, being to that same extent, the inferior. The might or superiority of God, is simple or absolute. But in all or most cases of human superiority, the relation of superior and inferior, and the relation of inferior and superior, are reciprocal. Or (changing the expression) the party who is the superior as viewed from one aspect, is the inferior as viewed from another. For example, to an indefinite, though limited extent, the monarch is the superior of the governed: his power being commonly sufficient to enforce compliance with his will. But the governed, collectively or in mass, are also the superior of the monarch: who is checked in the abuse of his might by his fear of exciting their anger; and of rousing to active resistance the might which slumbers in the multitude. A member of a sovereign assembly is the superior of the judge: the judge being bound by the law which proceeds from that sovereign body. But, in his character of citizen or subject, he is the inferior of the judge: the judge being the minister of the law, and armed with the power of enforcing it. It appears, then, that the term superiority (like the terms duty and sanction) is implied by the term command. For superiority is the power of enforcing compliance with a wish: and the expression or intimation of a wish, with the power and the purpose of enforcing it, are the constituent elements of a command. That laws emanate from superiors is, therefore, an identical proposition. For the meaning, which it affects to impart, is contained in its subject. If I mark the peculiar source of a given law, or if I mark the peculiar source of laws of a given class, it is possible that I am saying something which may instruct the hearer. But to affirm of laws universally that they flow from superiors, or to affirm of laws universally that inferiors are bound to obey them, is the merest tautology and trifling. According to an opinion which I must notice incidentally here, though the subject to which it relates will be treated directly hereafter, customary laws must be excepted from the proposition that laws are a species of commands. By many of the admirers of customary laws (and especially of their German admirers), they are thought to oblige legally (independently of the sovereign or state), because the citizens or subjects have observed or kept them. Agreeably to this opinion, they are not the creatures of the sovereign or state, although the sovereign or state may abolish them
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at pleasure. Agreeably to this opinion, they are positive law (or law, strictly so called), inasmuch as they are enforced by the courts of justice: But, that notwithstanding, they exist as positive law by the spontaneous adoption of the governed, and not by position or establishment on the part of political superiors. Consequently, customary laws, considered as positive law, are not commands. And, consequently, customary laws, considered as positive law, are not laws or rules properly so called. An opinion less mysterious, but somewhat allied to this, is not uncommonly held by the adverse party: by the party which is strongly opposed to customary law; and to all law made judicially, or in the way of judicial legislation. According to the latter opinion, all judge-made law, established by subject judges, is purely the creature of the judges by whom it is established immediately. To impute it to the sovereign legislature, or to suppose that it speaks the will of the sovereign legislature, is one of the foolish or knavish fictions with which lawyers, in every age and nation, have perplexed and darkened the simplest and clearest truths. I think it will appear, on a moments reflection, that each of these opinions is groundless: that customary law is imperative, in the proper signification of the term; and that all judgemade law is the creature of the sovereign or state. At its origin, a custom is a rule of conduct which the governed observe spontaneously, or not in pursuance of a law set by a political superior. The custom is transmuted into positive law, when it is adopted as such by the courts of justice, and when the judicial decisions fashioned upon it are enforced by the power of the state. But before it is adopted by the courts, and clothed with the legal sanction, it is merely a rule of positive morality: a rule generally observed by the citizens or subjects; but deriving the only force, which it can be said to possess, from the general dis-approbation falling on those who transgress it. Now when judges transmute a custom into a legal rule (or make a legal rule not suggested by a custom), the legal rule which they establish is established by the sovereign legislature. A subordinate or subject judge is merely a minister. The portion of the sovereign power which lies at this disposition is merely delegated. The rules which he makes derive their legal force from authority given by the state: an authority which the state may confer expressly, but which it commonly imparts in the way of acquiescence. For, since the state may reverse the rules which he makes, and yet permit him to enforce them by the power of the political community, its sovereign will that his rules shall obtain as law is clearly evinced by its conduct, though not by its express declaration. The admirers of customary law love to trick out their idol with mysterious and imposing attributes. But to those who can see the difference between positive law and morality, there is nothing of mystery about it. Considered as rules of positive morality, customary laws arise from the consent of the governed, and not from the position or establishment of political superiors. But, considered as moral rules turned into positive laws, customary laws are established by the state: established by the state directly, when the customs are promulged in its statutes; established by the state circuitously, when the customs are adopted by its tribunals. The opinion of the party which abhors judge-made laws, springs from their inadequate conception of the nature of commands. Like other significations of desire, a command is express or tacit. If the desire be signified by words (written or spoken), the command is express. If the desire be signified by conduct (or by any signs of desire which are not words), the command is tacit. Now when customs are turned into legal rules by decisions of subject judges, the legal rules which emerge from the customs are tacit commands of the sovereign legislature. The state, which is able to abolish, permits its ministers to enforce them: and it, therefore, signifies its pleasure, by that its voluntary acquiescence, that they shall serve as a law to the governed. My present purpose is merely this: to prove that the positive law styled customary (and all positive law made judicially) is established by the state directly or circuitously, and, therefore, is imperative. I am far from disputing, that law made judicially (or in the way of improper legislation) and law made by statute (or in the properly legislative manner) are distinguished by weighty differences. I shall inquire, in future lectures, what those

differences are; and why subject judges, who are properly ministers of the law, have commonly shared with the sovereign in the business of making it. I assume then that the only laws which are not imperative, and which belong to the subject-matter of jurisprudence, are the following: 1) Declaratory laws, or laws explaining the import of existing positive law. 2) Laws abrogating or repealing existing positive law. 3) Imperfect laws, or laws of imperfect obligation (with the sense wherein the expression is used by the Roman jurists). But the space occupied in the science by these improper laws is comparatively narrow and insignificant. Accordingly, although I shall take them into account so often as I refer to them directly, I shall throw them out of account on other occasions. Or (changing the expression) I shall limit the term law to laws which are imperative, unless I extend it expressly to laws which are not
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Lecture V
Positive laws, or laws strictly so called, are established directly or immediately by authors of three kinds: by monarchs, or sovereign bodies, as supreme political superiors: by men in a state of subjection, as subordinate political superiors: by subjects, as private persons, in pursuance of legal rights. But every positive law, or every law strictly so called, is a direct or circuitous command of a monarch or sovereign number in the character of political superior: that is to say, a direct or circuitous command of a monarch or sovereign number to a person or persons in a state of subjection to its author. And being a command (and therefore flowing from a determinate source), every positive law is a law proper, or a law properly so called. Besides the human laws which I style positive law, there are human laws which I style positive morality, rules of positive morality, or positive moral rules. The generic character of laws of the class may be stated briefly in the following negative manner: No law belonging to the class is a direct or circuitous command of a monarch or sovereign number in the character of political superior. In other words, no law belonging to the class is a direct or circuitous command of a monarch or sovereign number to a person or persons in a state of subjection to its author. But of positive moral rules, some are laws proper, or laws properly so called: others are laws improper, or laws improperly so called. Some have all the essentials of an imperative law or rule: others are deficient in some of those essentials of an imperative law or rule: others are deficient in some of those essentials, and are styled laws or rules by an analogical extension of the term. The positive moral rules which are laws properly so called, are distinguished from other laws by the union of two marks: 1) They are imperative laws or rules set by men to men. 2) They are not set by men as political superiors, nor are they set by men as private persons, in pursuance of legal rights. Inasmuch as they bear the latter of these two marks, they are not commands of sovereigns in the character of political superiors. Consequently, they are not positive laws: they are not clothed with legal sanctions, nor do they oblige legally the persons to whom they are set. But being commands (and therefore being established by determinate individuals or bodies), they are laws properly so called: they are armed with sanctions, and impose duties, in the proper acceptation of the terms. The positive moral rules which are laws improperly so called, are laws set or imposed by general opinion: that is to say, by the general opinion of any class or any society of persons. For example, some are set or imposed by the general opinion of persons who are members of a profession or calling: others, by that of person who inhabit a town or province: others, by that of a nation or independent political society: others, by that of a larger society formed of various nations. A few species of the laws which are set by general opinion have gotten appropriate names For example, there are laws or rules imposed upon gentlemen by opinions current amongst gentlemen. And these are usually styled the rules of honour, or the laws or law of honour There are laws or rules imposed upon people of fashion by opinions current in the fashionable world. And these are usually styled the law set by fashion. There are laws
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which regard the conduct of independent political societies in their various relations to one another: Or rather, there are laws which regard the conduct of sovereigns or supreme governments in their various relations to one another. And laws or rules of this species, which are imposed upon nations or sovereigns by opinions current amongst nations, are usually styled the law of nations or international law. Now a law set or imposed by general opinion is a law improperly so called. It is styled a law or rule by an analogical extension of the term. When we speak of a law set by general opinion, we denote, by that expression, the following fact: Some indeterminate body or uncertain aggregate of person regards a kind of conduct with a sentiment of aversion or liking: Or (changing the expression) that indeterminate body opines unfavourably or favourably of a given kind of conduct. In consequence of that sentiment, or in consequence of that opinion, it is likely that they or some of them will be displeased with a party who shall pursue or not pursue conduct of that kind. And, in consequence of that displeasure, it is likely that some party (what party being undetermined) will visit the party provoking it with some evil or another. The body by whose opinion the law is said to be set, does not command, expressly or tacitly, that conduct of the given kind shall be forborne or pursued. For, since it is not a body precisely determined or certain, it cannot as a body express or intimate a wish. As a body, it cannot signify a wish by oral or written words, or by positive or negative department. The so called law or rule which its opinion is said to impose, is merely the sentiment which it feels, or is merely the opinion which it holds, in regard to a kind of conduct. In the foregoing analysis of a law set by general opinion, the meaning of the expression indeterminate body of persons is indicated rather than explained. To complete my analysis of a law set by general opinion (and to abridge that analysis of sovereignty which I shall place in my sixth lecture), I will here insert a concise exposition of the following pregnant distinction: namely, the distinction between a determinate, and an indeterminate body of single or individual persons If my exposition of the distinction shall appear obscure and crabbed, my hearers (I hope) will recollect that the distinction could hardly be expounded in lucid and flowing expressions. I will first describe the distinction in general or abstract terms, and will then exemplify and illustrate the general or abstract description. If a body of persons be determinate, all the persons who compose it are determined and assignable, or every person who belongs to it is determined and may be indicated. But determinate bodies are of two kinds. A determinate body of one of those kinds is distinguished by the following marks: (1) The body is composed of persons determined specifically or individually, or determined by characters or descriptions respectively appropriate to themselves. (2) Though every individual member must of necessity answer to many generic descriptions, every individual member is a member of the determinate body, not by reason of his answering to any generic description but by reason of his bearing his specific or appropriate character. A determinate body of the other of those kinds is distinguished by the following marks: (1) It comprises all the persons who belong to a given class, or who belong respectively to two or more of such classes. In other words, every person who answers to a given generic description, or to any of two or more given generic descriptions, is also a member of the determinate body. (2) Though every individual member is of necessity determined by a specific or appropriate character, every individual member is a member of the determinate body, not by reason of his answering to the given generic description. If a body be indeterminate, all the persons who compose it are not determined and assignable. Or (changing the expression) every person who belongs to it is not determined and therefore cannot be indicated For an indeterminate body consists of some of the persons who belong to another and larger aggregate. But how many of those persons are members of the indeterminate body, or which of those persons in particular are members of the indeterminate body, is not and cannot be known completely and exactly
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Lecture VI
I shall finish, in the present lecture, the purpose mentioned above, by explaining the marks or characters which distinguish positive laws, or laws strictly so called. And, in order to an explanation of the marks which distinguish positive laws, I shall analyse the expression sovereignty, the correlative expression subjection, and the inseparably connected expression independent political society. With the ends or final causes for which governments ought to exist, or with their different degrees of fitness to attain or approach those ends, I have no concern. I examine the notions of sovereignty and independent political society, in order that I may finish the purpose to which I have adverted above: in order that I may distinguish completely the appropriate province of jurisprudence from the regions which lie upon its confines, and by which it is encircled. It is necessary that I should examine those notions, in order that I may finish that purpose. For the essential difference of a positive law (or the difference that severs it from a law which is not a positive law) may be stated thus. Every positive law or every law simply and strictly so called, is set by a sovereign person, or a sovereign body of persons, to a member or members of the independent political society wherein that person or body is sovereign or supreme. Or (changing the expression) it is set by a monarch, or sovereign number, to a person or persons in a state of subjection to its author. Even though it sprung directly from another fountain or source, it is a positive law, or a law strictly so called, by the institution of that present sovereign in the character of political superior. Or (borrowing the language of Hobbes) the legislator is he, not by whose authority the law was first made, but by whose authority it continues to be a law. The superiority which is styled sovereignty, and the independent political society which sovereignty implies, is distinguished from other superiority, and from other society, by the following marks or characters: (1) The bulk of the given society are in a habit of obedience or submission to a determinate and common superior: let that common superior be a certain individual person, or a certain body or aggregate of individual person. (2) That certain individual, or that certain body of individuals is not in a habit of obedience to a determinate human superior. Laws (improperly so called) which opinion sets or imposes, may permanently affect the conduct of that certain individual or body. To express or tacit commands of other determinate parties, that certain individual or body may yield occasional submission. But there is no determinate person, or determinate aggregate of persons, to whose commands, express or tacit, that certain individual or body renders habitual obedience. Or the notions of sovereignty and independent political society may be expressed concisely thus If a determinate human superior, not in a habit of obedience to a like superior, receive habitual obedience from the bulk of a given society, that determinate superior is sovereign in that society, and the society (including the superior) is a society political and independent. To that determinate superior, the other members of the society are subject: or on that determinate superior, the other members of the society are dependent. The position of its other members towards that determinate superior, is a state of subjection, or a state of dependence. The mutual relation which subsists between that superior and them, may be styled the relation of sovereign and subject, or the relation of sovereignty and subjection. Hence it follows, that it is only through an ellipsis, or an abridged form of expression, that the society is styled independent. The party truly independent (independent, that is to say, of a determinate human superior), is not the society, but the sovereign portion of the society: that certain member of the society, or that certain body of its members, to whose commands, expressed or intimated, the generality or bulk of its members render habitual obedience. Upon that certain person, or certain body of persons, the other members of the society are dependent: or to that certain person or certain body of persons, the other members of the society are subject. By an independent political society, or an independent and sovereign nation, we mean a political society consisting of a sovereign and subjects, as opposed to a political society which is merely subordinate: that is to say, which is merely a limb or member of another political society, and which therefore consists entirely of persons in a state of subjection.
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In order that a given society may form a society political and independent, the two distinguishing marks which I have mentioned above must unite. The generality of the given society must be in the habit of obedience to a determinate and common superior: whilst that determinate person, or determinate body of persons must not be habitually obedient to a determinate person or body. It is the union of that positive, with this negative mark, which renders that certain superior sovereign or supreme, and which renders that given society (including that certain superior) a society political and independent. In order that a given society may form a society political and independent, the positive and negative marks which I have mentioned above must unite. The generality or bulk of its members must be in a habit of obedience to a certain and common superior: whilst that certain person, or certain body of persons, must not be habitually obedient to a certain person or body. But, in order that the bulk of its members may render obedience to a common superior, how many of its members, or what proportion of its members, must render obedience to one and the same superior? And, assuming that the bulk of its members render obedience to a common superior, how often must they render it, and how long must they render it, in order that that obedience may be habitual? Now since these questions cannot be answered precisely, the positive mark of sovereignty and independent political society is a fallible test of specific or particular cases. Note* on the prevailing tendency to confound what is with what ought to be law or morality, that is, first, to confound positive law with the science of legislation, and positive morality with deontology; and secondly, to confound positive law with positive morality, and both with legislation and deontology. 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 very 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. The evils which we are exposed to suffer from the hands of God as a consequence of disobeying His commands are the greatest evils to which we are obnoxious; the obligations which they impose are consequently paramount to those imposed by any other laws, and if human commands conflict with the Divine law, we ought to disobey the command which is enforced by the less powerful sanction; this is implied in the term ought: the proposition is identical, and therefore perfectly indisputable it is our interest to choose the smaller and more uncertain evil, in preference to the greater and surer. If this be Blackstones meaning, I assent to his proposition and have only to object to it, that it tells us just nothing. 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 of they do not, God will punish them. To this also I entirely assent: for if the index to the law of God be the principle of utility, that law embraces the whole of our voluntary actions in so far as motives applied from without are required to give them a direction conformable to the general happiness. 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, for a law without an obligation is a contradiction in terms. I suppose this to be his meaning, because when we say of any transaction that it is invalid or void, we mean that it is not binding: as, for example, if it be a contract, we mean that the political law will not lend its sanction to enforce the contract.

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. An exception, demurrer, or plea, founded on the law of God was never heard in a Court of Justice, from the creation of the world down to the present moment. But this abuse of language is not merely puerile, it is mischievous. When it is said that a law ought to be disobeyed, what is meant is that we are urged to disobey it by motives more cogent and compulsory than those by which it is itself sanctioned. If the laws of God are certain, the motives which they hold out to disobey any human command which is at variance with them are paramount to all others. But the laws of God are not always certain. All divines, at least all reasonable divines, admit that no scheme of duties perfectly complete and unambiguous was every imparted to us by revelation. As an index to the Divine will, utility is obviously insufficient. What appears pernicious to one person may appear beneficial to another. And as for the moral sense, innate practical principles, conscience, they are merely convenient cloaks for ignorance or sinister interest: they mean either that I have the law to which I object and cannot tell why, or that I hate the law, and that the cause of my hatred is one which I find it incommodious to avow. If I say openly, I hate the law, ergo, it is not binding and ought to be disobeyed, no one will listen to me; but by calling my hate my conscience or my moral sense, I urge the same argument in another and more plausible form: I seem to assign a reason for my dislike, when in truth I have only given it a sounding and specious name. In times of civil discord the mischief of this detestable abuse of language is apparent. In quiet times the dictates of utility are fortunately so obvious that the anarchical doctrine sleeps, and men habitually admit the validity of laws which they dislike. To prove by pertinent reasons that a law is pernicious is highly useful, because such process may lead to the abrogation of the pernicious law. To incite the public to resistance by determinate views of utility may be useful, for resistance, grounded on clear and definite prospects of good, is sometimes beneficial. But to proclaim generally that all laws which are pernicious or contrary to the will of God are void and not to be tolerated, is to preach anarchy, hostile and perilous as much to wise and benign rule as to stupid and galling tyranny.
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Austin always said that his work in The Province was merely prefatory to a much wider study of what he termed general jurisprudence: this was to be the exposition and analysis of the fundamental notions forming the framework of all mature legal systems. The main part of his full lectures (as said above, they were only published after his death in 1863) was given to an analysis of what he called pervading notions, such as those of right, duty, persons, status, delict and sources of law. Austin distinguished this general, or analytical, jurisprudence from the criticism of legal institutions, which he called the science of legislation; he viewed both the analytical and the critical exposition as important parts of legal education. He is largely remembered, however, for the analytical heritage and his critical exposition (largely influenced by notions of utility) is usually skated over.
Do Austins lectures seem rather dry stuff? It is important to read this material in conjunction with Roger Cotterrells Chapter 3: Sovereign and Subject: Austin and Bentham and Morrisons Chapter 4: Thomas Hobbes and the origins of the imperative theory of law: or mana transformed into earthly power to see the location and meaning of Austins project.
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3.3.2 Austin and utilitarianism

The young Austin once declared himself to be a disciple of Jeremy Bentham, and utilitarianism is a continuing clear theme (though Austin was a believer in God and made utility the index of Gods will or plan for creation, while Bentham was secular) in the work for which Austin is best known today. Austin interpreted utilitarianism so that 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 reading of utilitarianism has had no long-term influence, though in his nineteenthcentury review of Austins Lectures, John Stuart Mill was at pains to say that his work represented the application of utilitarianism to law and largely ignored the religious aspects. According to Rumble, most contemporaries saw Austin as a utilitarian and the young Austin certainly shared many of the ideas of the Benthamite philosophical radicals; namely notions of progress, rule through knowledge, political economy, as well as accepting the ideas of Thomas Malthus (see Rumble, 1985, pp. 1617; Morrison, 1997, Chapter 9). Austin made a lasting impact for at least two reasons.
1. Analytical jurisprudence
Austin argued for an analytical analysis of law (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 emphasises the analysis of key concepts, including law, (legal) right, (legal) duty, and legal validity. Analytical jurisprudence became the dominant approach in analysing the nature of law (see Cotterrell, 2003, for an explanation for this). However (and this is crucial to acknowledging what his project was to correct the misunder standing of many commentators), it is important to appreciate that in Austins hands analytical jurisprudence was only one part of an overall project. Many later writers have confused the aim of being analytical with the notion that this is all one has to say about law and thus that law is simply what you can formally reduce it to (this idea is sometimes called legal formalism, a narrow approach to understanding the role of law). It is a mistake to see either Austin in particular, or analytical jurisprudence in general, as opposing a critical and reform-minded effort to understand law and its social, political and economic effects. The approach to understanding law that is loosely grouped under the title legal realism, for example, argued that law could only be understood in terms of its practical effects (so for example, law was what the courts actually did). But realists tended to downplay doctrine and legal categories, seeing them as irrelevant. By contrast, Austin saw analytical jurisprudence as attaining clarity as to the categories and concepts of law, as for the morality of law, its effectiveness, its use and abuse, or its location in historical developmentthese were different questions (and clearly also important to understand how to use law as a technique of rational government!).
There is some evidence that Austins views later in his life may have moved away from analytical jurisprudence towards something more approximating the historical jurisprudence school. (Hamburger, 1985, pp. 17891).
2. Legal positivism
Austin tied his analytical method to a systematic exposition of a view of law known as legal positivism. Austin, as we have seen in looking at Hobbes, was not the first writer to say that the law of the legal system of a nation state should be seen as something posited by human judgments or processes, but 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 the state should govern (and when governments were legitimate), and under what circumstances citizens had an obligation to obey the law. For Austin, however, and for legal positivism generally, law should be an object of scientific study, the identification of something as law or legally valid was determined neither by prescription nor by moral evaluation; law was simply law, and its morality was another issue. Austins subsequent popularity among late nineteenth-century English lawyers stemmed in large part from their desire to approach their profession, and their professional training, in a more serious and rigorous manner (Cotterrell, 2003, pp. 7477).
The main competitor to legal positivism, in Austins day as in our own, has been natural law theory. Austin can also be seen as clarifying the study of the common law from the traditional ideas of timeless sources and other vague notions he considered mystifications.

Legal positivism asserts (or assumes) that it is both possible and valuable to have a morally neutral descriptive (or perhaps conceptual, to take Harts term) theory of law. It is always a simplification to generalise; however, it can be maintained that those who adhere to legal positivism do not deny that moral and political criticism of legal systems is important; instead they insist that a descriptive or conceptual approach to law is valuable, both on its own terms and as a necessary prelude to criticism. The similarities between Austin and Thomas Hobbes have been stressed, but 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), should also be mentioned as sharing in the intellectual framing of this division. The common theme to Hobbes, Hume, Bentham and Austin is the demand for clarity of conception and separation of different discursive realms.
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Summary
Today we remember Austin for his particular version of legal positivism, his command theory of law. However, it should be remembered that he clearly stated that his theory drew upon Hobbes and Bentham both of whose theories could also be characterised as command theory. Austins work was more influential in this area, partly because Benthams jurisprudential writings did not appear in even a roughly systematic form until well after Austins work had already been published (Bentham, 1970, 1996; Cotterrell, 2003, pp. 5253).
Remember Austins famous formulation of the distinction: 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)
3.4 Appreciating Austins command theory

Both the common law tradition and natural law theories gave an image of law as something that was not at the governments behest to use as the government desired. Instead law was other than governmental power. By contrast, Hobbes, Bentham and Austin identified (positive) law as the creation of government (the sovereign) and as part of governments instruments to achieve (rational, coherent and defendable) rule. There are always at least two things going on that we can learn from the writers we have looked at in this chapter. Take Austin: he tried to find out what can be said generally, while still capturing the basic form, about all laws and this was a necessary step for those interested in law (and power) to understand the nature of the instrument that could be used to shape relations in a modern society. Later commentators have concentrated upon his work as an example of analytical philosophy and have seen it either as a paradigm or a caricature of the analytical method. We have seen from the extracted sections that his lectures were dryly full of distinctions, but are thin in trans-historical argument. To some contemporary critics, his work is very limited and the modern reader is forced to fill in much of the meta-theoretical, justificatory work, which cannot be found in the text. But is this a problem of the text or of our historical appreciation? Austin wrote for an audience; his Lectures were simply that lectures and thus principally orientated to that purpose. Thus we may appreciate that where Austin articulated his methodology and objectives he gave them expressions drawing upon the accepted discourses of the times: he endeavoured 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, Lecture V, p. 117).
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Austin had been appointed the first professor of law at a body which was attempting to be called the University of London in 1828. This body, which is now University College London (the largest College of the Federal University of London), was founded on secular and utilitarian lines. It was opposed by many, including a rival Kings College founded in 1828. In this anonymous cartoon of the time, a clutch of bloated bishops, including the Archbishop of Canterbury, with the added weight of money and interest, are pitted against Brougham (waving the broom, the government minister supporting the proposal for the new university) and Bentham (clad in dressing gown), supported by Sense and Science. (Image: courtesy of the University of London). In another cartoon of the time, Kings College was represented as a huge palace with, however, very small windows, since no new light is required. Austin expressly stated his aim was to bring light to the chaos of legal thought.
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3.4.1 Austins analysis of law

As to what is the core nature of law, Austins answer is that laws (properly so called) are commands of a sovereign; they exist in a relationship of political superiority and political inferiority. He clarifies the concept of positive law (that is, man-made law) by analysing the constituent concepts of his definition, and by distinguishing law from other concepts that are similar:
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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.
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Positive law consisted of those commands laid down by a sovereign (or its agents), to be contrasted to other law-givers, such as Gods general commands, or 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 honour, international law, customary law, and constitutional law) and laws by remote analogy (e.g. the laws of physics) (Austin, 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. Within Austins 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 sceptic. 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)
These exclusions alone would make Austins theory problematic for most modern readers.
While Bentham was an opponent of judicial lawmaking, Austin had no objection to it, describing it as highly beneficial and even absolutely necessary (Austin, 1995: Lecture V, p. 163). Austin simply incorporated judicial lawmaking into his command theory: by characterising that form of lawmaking, along with the occasional legal/judicial recognition of customs by judges, as the tacit commands of the sovereign, with the sovereigns affirming the orders by its acquiescence (Austin, 1995: Lecture 1, pp. 3536).
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3.4.2 Criticisms of Austin

Many readers come to Austins theory mostly through the criticisms made of it by other writers (prominently, by Hart). As a result the weaknesses of the theory are almost better known than the theory itself (many answers to examination questions on the command theory or the work of John Austin are full of the criticisms but leave the examiner uncertain as to whether the student knows the theory about which he or she has just listed the criticisms!). Some of these criticisms only make sense when we apply an analytical critique to Austin; thus it is often claimed that in many societies, it is hard to identify a sovereign in Austins sense of the word (a difficulty Austin dismissed when discussing Mexico, for example, by saying it was a matter of factual analysis; but we may note that he had to describe the British sovereign rather awkwardly as the combination of the King, the House of Lords, and all the electors of the House of Commons). In other places Austin talked even more loosely about using sovereign powers. Putting the focus on a sovereign as the source of law 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 systems 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 Dworkins work (1986)). It is also a common criticism that 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 from 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-characterised 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-characterisation as this misses the basic purpose of those sorts of laws they are arguably about granting power and autonomy, not punishing wrongdoing. A powerful criticism is that 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.) Austin also did not go into a discussion of his methodology; he was rather concerned to get his message across to his audience. Austin, however, laid out the structure for modern legal positivism and when Hart revived legal positivism in the middle of the twentieth century (Hart, 1958, 1994), he did it by criticising and building on Austins theory. In some respects he followed the legal pluralism obvious from Austins first lecture: for example, Harts theory did not try to reduce all laws to one kind of rule, but emphasised the varying types and functions of legal rules. Moreover, he was still conscious of the varying relationships between individuals and the legal order, for his 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; others, however, obeyed because of sanctions or simply habit
Many of the current textbook references to Austin appear to accept the validity of Harts criticisms developed against a model of the imperative theory of law based on Harts reading of Austin and presented in the first four chapters of The Concept of Law. Both Cotterrell and Morrison, conversely, argue that Harts treatment may be analytically pleasurable, but is based on a abstracted model and not in keeping with an historical understanding of Austins project.
3.4.3 A contemporary view?

Austins work was highly fashionable in the late nineteenth century and for part of the twentieth. Then came a period of deprecation. Today he is reassessed. Put in his historical context, Austin can be seen as all too trusting of centralised power and his writing as a strange mixture of analyticism and realism. Certainly Austin kept the political nature of law and the connection of law and power at the centre of his analysis. When circumstances seem to warrant a more critical, sceptical or cynical approach to law and government, Austins equation of law and force will be attractive, as with Yntema, who simply stated in 1928 (at p. 476): The ideal of a government of law

and not of men is a dream. Such a reading may today be from Austins own mixture of liberal/conservative-utilitarian views at the time of his writing, and his even more conservative political views later in his life. In our contemporary times, as we see the failed states of Iraq and various other nations, the message of Hobbes that security comes before all else is treated as a common-place. Whether law could be used as a rational instrument of government is another matter.
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adopt an effective approach to reading original extracts from key writers critically discuss the emergence and core meaning of legal positivism discuss the advantages and disadvantages of a theory of law based on the idea of the commands of the sovereign analyse the social and political context in which Austin wrote and how Hart has interpreted his project.
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Question 1 Has Austins theory contributed to our understanding of law? Question 2 What are the advantages and disadvantages of seing law as a set of commands?
References
Austin, J. The Province of Jurisprudence Determined, 1832 (other editions, e.g. H.L.A. Hart, 1954, also 1995). Austin, J. Lectures on Jurisprudence or the Philosophy of Positive Law. Edited by Robert Cambell. 2 vols. (1863; fifth edition, 1885). Cotterrell, R. The Politics of Jurisprudence. (London: Butterworths Law, 2003) second edition. Dworkin, R. Laws Empire. (London: Fontana Paperbacks, 1986). Hamburger, L. and J. Hamburger Troubled Lives: John and Sara Austin. (Toronto: University of Toronto Press, 1985). Harris, J. Legal Philosophies. (London: Butterworths, 1997) second edition. Morrison, W. Jurisprudence: From the Greeks to Post-modernism. (London: Cavendish, 1997). Rumble, W. The Thought of John Austin: Jurisprudence, Colonial Reform and the British Constitution. (London: The Athlone Press, 1985). Yntema, H The Hornbook Method and the Conflict of Laws, Yale Law Journal 37, 1928.
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Reflect and review

Ready to Need to Need to move on revise first study again I can adopt an effective approach to reading original extracts from key writers I can critically discuss the emergence and core meaning of legal positivism I can discuss the advantages and disadvantages of a theory of law based on the idea of the commands of the sovereign I can analyse the social and political context in which Austin wrote and how Hart has interpreted his project.
Must revise 3.1 3.2 3.3 3.4 The birth and development of secular or positive theories of law: the case of Thomas Hobbes Jeremy Bentham John Austin Appreciating Austins command theory Revision done
4 Classical and modern natural law theory
Contents
4.1 4.2 4.3 4.4 4.5 4.6 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 The rise of natural law in ancient Greece and Rome . . . . . . . . . . . . 51 The natural law of Aquinas:structure . . . . . . . . . . . . . . . . . . . 53 The natural law of Aquinas: legal reason, human law, and the obligation to obey the law . . . . . . . . . . . . . . . . . . . . . . . . 54 Modern natural law theory I: Finnis . . . . . . . . . . . . . . . . . . . . 56 Modern natural law theory II: Fuller . . . . . . . . . . . . . . . . . . . . 58 The continuing debate over the connection between law and morality . 59 Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
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Introduction
From the time of the ancient Greeks up until the sixteenth or seventeenth centuries, there really was only one kind of legal theory natural law. The essence of this legal theory was that the law must be understood as a practical application of morality; hence law and morality are intimately connected. Accordingly, much of natural law theory sought to show how legal authorities such as princes, states, and so on, could lay down laws which reflected the true dictates of morality, and were, therefore, just. Why is natural law no longer the only theory of law? In a word, the answer is positivism. Legal positivists deny that the law is simply a matter of applied morality. Positivists note that many legal systems are wicked, and that what is really required by morality is controversial. For example, some people view a womans right to have an abortion as an essential human right, while others think of it as tantamount to a right to murder. Yet the law carries on, laying down rules for behaviour, even when the rules are immoral, or when no one can demonstrate to the satisfaction of all whether a rule is moral or not. What positivists conclude from this is that the law is a kind of social technology which regulates the behaviour of its subjects and resolves conflicts between them. The law has no necessary moral character. The philosophy of law, then, according to positivists, is the philosophy of a particular social institution, not a branch of moral or ethical philosophy. In working through this chapter, you must always bear in mind this positivist challenge, and ask yourself whether natural law theory is capable of responding to positivism whilst keeping its character as a plausible moral philosophy.
Learning outcomes
By the end of this chapter and the relevant readings you should be able to:
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describe the origins of natural law in ancient Greece and Rome and the basic ideas which inform the natural law tradition explain the natural law theory of Aquinas, in particular the relation of natural law to divine law and human law, and the importance of the distinction between specificatio and determinatio in the generation of law explain Finniss modern natural law theory, in particular his employment of the focal meaning or central case to determine the subject matter of legal theory, his reference to self-evident basic values, and his characterisation of practical reason explain in detail Fullers inner morality of law critically assess these various versions of natural law theory in light of the attack on natural law by legal positivists.
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Essential reading
Either of the following:

Penner et al., Chapter 2: The evolution of natural law, pp. 3590. Freeman, Chapter 3: Natural law, pp. 89198.
Jurisprudence and legal theory 4 Classical and modern natural law theory
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4.1 The rise of natural law in ancient Greece and Rome

The term natural law is misleading, for it sounds as if it denotes some kind of theory of the law, a natural one, whatever that is. It does not. Originally, natural law was a general moral theory which explained the nature of morality, not the nature of law per se. The basic idea was that man, using his reason, and possibly with the help of the revelation of the gods or God, could come to understand how he should act rightly in respect of his fellow man. This morality of reason and revelation was a morality which purported to take account of mans nature, hence the title natural. And because this combination of revelation and reason laid down rules for behaviour, the word law seemed appropriate, hence natural law. Natural law, then, is principally a theory of morality in general, not a theory of law. But part of the project of acting rightly, of course, was the project of rulers who laid down law for their subjects, and so the claims of natural law morality applied just as much to them as to individuals generally. So a part of natural law (obviously a very important part) explained what it was to rule and legislate and judge cases rightly; so part of natural law was the morality of law, narrowly construed as the laws passed by legislation and the legal system of courts, judges, and so on. Nowadays, natural law is generally taken to mean only that part of the original moral theory which explains the way that the law, narrowly construed, operates as part of the broader moral life of human beings. (As we shall see, however, the most important living natural lawyer, John Finnis, emphasises that the philosophy of law is continuous with general moral or ethical philosophy.) That narrowing of focus has to do with the way in which the nature of morality as explained by natural law theory was drawn upon to justify existing legal authorities. It has been argued that in small, close-knit, primitive societies, the inhabitants make no distinction between what is morally right and the way they think it right to do things. They do not stand outside their own practices, looking at them from an external standpoint to judge whether they are correct or not; rather, they just do what comes naturally, typically treating their rules as timeless and revealed and enforced by the gods. In short, they lack a critical perspective on the standards of behaviour they uphold. Whatever the truth of this quasi-anthropological assertion, it is clear that when different cultures come into contact and are forced to live with each other, a clash of customs will almost certainly occur. The philosophical tradition that began with Socrates, Plato, Aristotle, and the Stoics, and was carried via Rome throughout the West, was faced with this sort of conflict, as the different city states and empires sought to provide workable rules which might govern everyone within their jurisdictions. This philosophical tradition made one of its central questions How ought a man to live?, and the answer was sought not in the particular customs or practices of particular cultures, but in our common nature. The obvious advantage of this approach was that, if successful, all subjects of the state or empire could appreciate the resulting rule of behaviour as appropriate to each of them, rather than constituting the imposition of odd and foreign practices against which they would naturally rebel. Different philosophers adopted different ways of explaining the common nature of man which might deliver a common morality. Very briefly and roughly, Plato believed that those who were properly philosophically instructed might come to grasp perhaps always imperfectly the true form or idea of justice, and other absolute values. For Aristotle, it was essential to understand mans telos (goal, or purpose), which reflected his nature; in particular, Aristotle thought that man was social, political, and sought knowledge, and only when in a position to fulfil these aspects of his nature could men flourish and achieve the good life. The Stoics accorded primacy to mans reason by reason man could determine those precepts of right conduct which transcended particular cultures, and therefore were universally applicable. The law on the books that most directly resulted from this intellectual activity was the jus gentium, which started life as a second class legal order, a strippeddown Roman civil law which applied to foreigners, but which came to be regarded as a higher or superior legal order, in some sense akin to international law, a kind of common law of citizens which applied throughout the Roman Empire.
This passage uses man, his and he as they would have been used by earlier writers on natural law. Today we would want to emphasise that the human race is not exclusively male, and would probably say: The basic idea was that human beings, using their reason, and possibly with the help of the revelation of the gods or God, could come to understand how they should act rightly in respect of their fellow humans.
Stoics: an ancient Greek school of philosophers who believed, among other things, that the mind is a blank slate, upon which senseimpressions are inscribed. It may have a certain activity of its own, but this activity is confined exclusively to materials supplied by the physical organs of sense.
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The single most important theoretical issue which this philosophical tradition generated, and which forms the core issue of the natural law tradition today, is how this critical, universalistic perspective is properly to be employed to judge the laws of any particular society. In its most extreme form, one can adopt the Latin maxim lex injusta non est lex, i.e. an unjust law (unjust, that is, according to the principles of morality, i.e. natural law) does not count as a law, is not a law. Thus if the legislature passed a statute that required everyone to kill their first-born, then such a statute would not have the force of law at all. Notice this point very carefully: the claim is not that such a statute would provide a very wicked law, but that even though it was validly passed, the statute would provide no law at all, just because the content of the statute was so at odds with morality, i.e. with natural law. This most extreme version of the force of natural law theory has been a primary target of positivists; for the positivist, such a statute, assuming it was validly passed, would provide for a perfectly valid law, wicked though it was. One might be morally obliged to disobey such a law, but it would be a law just the same. In just this way, says the positivist, the dictates of morality can be distinguished from the dictates of the law. In the face of this criticism, very few natural lawyers defend the connection of morality and law as being quite so intimate as this. One of this chapters tasks is to critically examine the different ways in which natural law theorists explain the connection between law and morality. But notice straight away that you are not a natural lawyer simply because you believe you can criticise the law for being out of step with morality. Everyone believes that. It is a common exam mistake to state something silly along the lines that only natural lawyers judge the law by moral standards. This is nonsense. Legal positivists, in particular, are happy to criticise immoral laws. They simply do not deny that an immoral law is a law. The arch-positivist of the modern era, Jeremy Bentham, was a dedicated social reformer who forcefully attacked the laws of England throughout his life. In doing so, however, he attacked them as bad laws, and did not claim that they were non-laws because they were bad. The principal task of natural lawyers, since the rise of legal positivism, has been to show a more plausible connection between law and morality. This would need to be a more robust connection than simply saying that one can criticise the law for being immoral.
Self-assessment questions
1. What is natural law a theory of? 2. Why is natural law called natural law? 3. Why does natural law theory pay attention to the law of particular states? 4. What is the jus gentium, and why is it related to the rise of natural law? 5. What does lex injusta non est lex mean? Why is this statement regarded as an extreme expression of natural law?
Activity 4.1
Read either the excerpt from Cicero in Penner et al., pp. 4650, or the excerpt from Cicero in Freeman, pp. 140141, and answer the following: Cicero says: And it is not only justice and injustice that are distinguished naturally, but in general all honourable and disgraceful acts. For nature has given us shared conceptions and has so established them in our minds that honourable things are classed with virtue, disgraceful ones with vice. To think that these things are a mere matter of opinion, not fixed in nature, is the mark of a madman. He also says, And there will not be different laws at Rome and at Athens, or different laws now and in the future, but one eternal and unchangeable law will be valid for all nations and all times, and there will be one master and ruler, that is, God, over all of us, for he is the author of this law, its promulgator, and its enforcing judge. Whoever is disobedient
Cicero: Marcus Tullius Cicero, Roman statesman, orator and philosopher, 10643 BC.
is fleeing from himself and denying his human nature, and by reason of this very fact he will suffer the worst penalties, even if he escapes what is commonly considered punishment. Are all the ideas Cicero puts forward in these passages about the nature of natural law consistent with each other? Feedback: see end of guide.
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Summary
The natural law tradition arose as the application of a theory of morality which emphasised mans common moral nature to the legitimacy of states. The question of the legitimacy of states and their laws became politically important when empires sought to rule over different peoples with different customs, and so natural law seemed ideally placed to provide a universal standard of justice. Different natural law theories arose, however, which did not agree on what the universal basis of morality was; some emphasised human beings intellect or reason, others their purpose, others revelation of Gods will.

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describe the origins of natural law in ancient Greece and Rome and the basic ideas which inform the natural law tradition.
4.2 The natural law of Aquinas: structure

While the divine was considered by the ancients to be a source of understanding of morality, a brief review of the rough descriptions of Platos, Aristotles and the Stoics theories of natural law given above shows that God was not an obvious central figure in the equation. Following the Christianisation of the Roman Empire, however, a theory of morality could no longer make reference to Gods word solely as a rhetorical gesture. It took the genius of Thomas Aquinas to reconstruct the classical natural law tradition of the Greeks and Romans within Christian theology. The central idea is that the grace of God was held not to conflict with or abolish mans nature, but to perfect it, and in this way a Christianised version of natural law could be seen to continue or bring to fruition the natural law tradition. Aquinas modified Aristotles teleological perspective so that mans end was not only to live socially and seek knowledge, but to live in a Christian community in which one would come to know, and presumable adore, God. Most importantly, however, he described orders of law, eternal, divine, natural and human law, which purported to show the way in which human reason was able to appreciate what was good and godly according to Aquinas, man, by his reason, was able to participate in the moral order of nature designed by God. The orders of law were as follows: Eternal law: The whole universe is governed by divine providence or divine reason, which is the ultimate order imposed by the Creator. Natural law: Humans are special creatures in having a special relationship to divine wisdom or providence, in that since they possess reason and free will, they have a share in this divine wisdom themselves. This participation of man in the ordering of his affairs by reason is participation in the rational order ordained by God, and this is natural law. Human law: Human law consists of those particular rules and regulations that man, using his reason, deduces from the general precepts of natural law to deal with particular matters. For example, it is a natural law precept that crimes must be punished with a severity that corresponds with the seriousness of a crime, but it is necessary to specify the actual punishment that, say, a thief will receive under a particular legal system, and the use of reason to provide a punishment of, say, two years is the use of reason called human law. This might also be called positive law, as it is the actual law posited by legal institutions.
Aquinas: St Thomas Aquinas (12251274) Italianborn Christian (Catholic) theologian and philosopher.
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Finally, there is Divine law: This is the law that is revealed by God to man, more or less directly, through the provision of the ten commandments or through scripture more generally, or via the divinely inspired pronouncements of prophets or the Church fathers or the pope. Divine law most directly concerns man in his relation to God and achieving paradise; it lays down how man is to act in relation to God (in terms of the requirement to take part in rituals such as baptism and Holy Communion, and in forswearing other gods or idols, for example) and furthermore covers those matters of the soul which human institutions are unfit to regulate, such as evil thoughts, which are nevertheless of vital importance to a mans relationship with God. Though much of divine law would be Church or Canon Law, to the extent that religious law was also enforced by secular authorities like city states or princes (for example laws against usury or blasphemy or witchcraft), divine law could be instantiated in secular law as well. Furthermore, there is an overlap between this law of revelation and natural law, in such matters as are covered by, for example, the Ten Commandments, where the prohibitions against murder, theft, bearing false witness, and so on, are declared by divine law but can also be appreciated as natural law precepts as well.
Forswearing (from verb forswear) = agreeing to have nothing to do with.
1. According to Aquinas, what is mans telos? How does it differ from what Aristotle viewed as mans telos? 2. What are the different orders of law in Aquinass scheme? In what ways do they interact or overlap?
Activity 4.2
Consider the criminal law of rape, the law of wills, and the law of taxation. What order(s) of law under the Aquinean scheme do these belong to, and why? Feedback: see end of guide.
4.3 The natural law of Aquinas: legal reason, human law, and the obligation to obey the law
We have seen from the preceding that, according to Aquinas, law arises from mans participation, via his reason, in the divine wisdom of God. Sometimes human law is simply a deductive conclusion from the general precepts of natural law. But there is a second way in which human law is created in accordance with natural law, and Aquinas exploits the analogy of the architect to explain this. In order to build a house, one starts with the general idea of a house that it has rooms, doorways, windows and so on so that there are, as it were, natural law precepts or requirements of house building. However, the idea of a house does not tell the architect whether the doors must be two metres high, how many rooms and so on. The natural law precepts of house building will require that the doorways must be more than 30 cm high, for a doorway this low would not be functional. But no specific workable height is specified by the mere idea of a house; this specification needs to be done by the architect and, in the same way, while natural law requires that thieves be punished, the natural law does not specify what the particular punishment should be, so long as its severity corresponds in some sense or degree to the seriousness of theft. Aquinas rendered this distinction in Latin: what the natural law lays down or can be deduced from it by reason alone is specificatio, or specified. What man must practically decide about, compatibly with the natural law but not by deduction from it, such as the proper punishment for theft, is a matter of determinatio, determination within the boundaries set by natural law. Human law also has particular tasks and limits which natural law the general precepts of morality does not. While some subjects of the law are naturally inclined to be virtuous, others are of more evil or selfish disposition which we might perhaps all be in certain moods or times of our life. Thus the law must exert not only a guiding but a disciplinary force to deal with the latter sort of person. The human law must also
be general, applying to all subjects, though laws applying to children and perhaps others with limited rational capacity may justifiably differ. The human law cannot be a counsel of perfection; it should attend to the more serious matters of human conduct, and not try to prohibit every vice or insist on every virtue: its task is to ensure a framework of rules which provide for a human community that is capable of flourishing not to create heaven on earth. Furthermore, since humans are granted only limited reason and insight, human law cannot be treated merely as the laying down and enforcement of rules. There will always be exceptional cases in which a departure from the strict rule will be justified, and human judges must maintain and nurture this sense of equity in the face of the rules. Because the human law is a particularisation or determination of concrete rules and principles, which while they must be in keeping with the natural law, are not fully specified by it, the human law is mutable, and will be different in different times and places. Despite this mutable character, it is unwise, according to Aquinas, to change the human laws too often or too radically, even if within the confines of natural law, for custom is important, and the more laws change, the less legitimacy they appear to have; and consequently the proper coercive power of the law is diminished. The law should only be changed if the benefits clearly outweigh these drawbacks. According to Aquinas, a law only obliges in conscience to the extent that it is in keeping with the natural law. An unjust law has more the character of violence than of law. Yet Aquinas does not draw from this the conclusion that an unjust law is not a law it continues to partake of the character of law in its form, and in this sense participates in the order of law at least in this minimal way. One must always remember that the law is, from the moral point of view, a necessary human institution of communal practical reason. Every person has the duty to support, and to act so as to foster, conditions for its success. Thus the fact that a law is unjust does not provide one with an absolute licence to disobey it; one must take into account the consequences of ones obedience for the general project of law disobedience might, for example, generate a willingness amongst people to disobey the law for selfish reasons, or make it more difficult for just laws to be administered, and so on.
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1. What are the two ways in which the natural law is a source of human law? 2. Explain the difference between specificatio and determinatio. 3. What particular tasks and limitations does human law have? 4. What is Aquinass view on the moral obligation to obey the human law?
Activity 4.3
Read either the excerpt from Aquinas in Penner et al., pp. 5065, or the excerpt from Aquinas in Freeman, p.142146, and answer the following: What are the strengths and weaknesses of Aquinass theory of the law? Feedback: see end of guide.
Summary
Aquinas married Aristotles natural law theory with the Christian tradition to develop the most refined theory of natural law before the twentieth century, and his work is a fundamental reference point for all natural law theorists. Acquinass natural law theory shows man, because of his reason, to be a participant in divine wisdom, whose purpose is to live in a flourishing Christian community. Law is a necessary institution in such a community, and just laws will reflect directly (specificatio) or indirectly (determinatio) the universal morality of natural law.
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explain the natural law theory of Aquinas, in particular the relation of natural law to divine law and human law, and the importance of the distinction between specificatio and determinatio in the generation of law.
4.4 Modern natural law theory I: Finnis

Modern natural law theory is an attempt to sustain the natural law theorists project of exposing and emphasising the importance of the connections between law and morality, but which has had to face squarely the objections of legal positivists. John Finnis, the most important contemporary natural law theorist, was a student of H.L.A. Harts, and one of the strengths of his natural law theory is its respect for the insights of positivism. He ultimately concludes, however, that positivism is at best a partial, and at worst, a fundamentally flawed, theory of law.
You may also find it useful to read Harts introduction to the ideas of natural law in Chapter 8 of his Concept of Law.
4.4.1 Finniss ethical theory

Two major arguments against natural law theory must be addressed by any modern natural law theorist. The first is moral scepticism. Realists about morality believe that moral values and principles exist, and cognitivists about morality believe that humans can come to know what these moral values and principles are, so that statements about what is morally right can be judged to be true or false. Moral sceptics of various kinds deny either or both of these views. Emotivists of various kinds, for example, believe that what we call our moral beliefs are ultimately just expressions of our emotional attitudes. As an example of a modern positivist who clearly doubted that there were universally valid, objective moral norms that humans could know the truth of, one can cite Kelsen (see Chapter 10). Moral scepticism has itself been attacked as incoherent or nonsensical, but the debate remains a live one. Clearly, if moral scepticism is right, then natural law theory is hopeless, for there would be no objective moral standards that could connect with the law. You should remain aware of this issue, in part because it is a necessary backdrop for understanding Finniss moral theory, but more generally to understand the broader kind of philosophical challenge that a natural law theory might face. It is well beyond the scope of this course to study in detail the arguments of moral sceptics and their respondents. The second argument concerns the way in which we might know what morality requires. You may have heard of the fact/value distinction, which is akin to the distinction between description and prescription, or the factual and the normative. The fact/value distinction is the distinction between statements which describe some aspect of reality, e.g. Elizabeth II is Queen of England, and statements which evaluate some aspect of reality, or prescribe some behaviour, e.g. Killing the innocent is wrong or Do unto others as you would have them do unto you. The leading philosopher of the Scottish Enlightenment, David Hume (17111776), famously pointed out that one cannot validly infer or derive evaluative propositions from factual ones; the point is typically put thus, One cannot derive an ought from an is. Thus it is fallacious (though unfortunately not uncommon) for people to reason like this: Because of their biology, women can bear children; therefore, women ought to bear children, and it is morally good that they do so, and immoral for them to avoid having children. It is fallacious to reason from a description of women (that they have the capacity to bear children) to the moral principle that they ought to bear children. (G. E. Moore called this fallacy the naturalistic fallacy.) How does this bear on natural law theory? You will have noticed that one of the principal organising ideas of natural law theory is that it looks to the nature of man, or certain aspects of his nature, e.g. that he is social, or that he has reason, or that he can know God. These are all descriptions of man, albeit intended to be more or less ultimate descriptions of his essential nature. But from these characterisations of man, we are supposed to derive
moral principles by which man should guide his life. But this reasoning, as we have just seen, is fallacious. To say that man is rational is one thing; it is an entirely different matter to decide whether acting morally amounts to acting rationally. That God says to do so and so is one thing; it is another to decide whether one ought to obey God. The argument, then, is that the natural law tradition is founded on the fallacy of deriving ought from is, and it is not obvious how this argument can be countered. John Finnis tackles this issue head-on, denying that the natural law tradition (especially as it is represented by Aquinas) is founded on the derivation of ought from is. Rather, he says, natural law theory is founded on mans ability to grasp values directly, not inferring them from the facts of the world. According to Finnis, there are basic values that underlie the human appreciation of the value of any particular thing and all mans purposive activities. As presented in his first major work on the topic, Natural Law and Natural Rights, published in 1980, these values are life, knowledge, play, aesthetic experience, friendship, religion (not in the sense of any particular religion, but in the value of seeking to understand mans place in the universe), and practical reasonableness (the value of pursuing the other values in a reasonable fashion). These seven values are not inferred from facts about the world or man, but are appreciated directly by humans as valuing beings. While Finnis admits that there can be debates about the list of basic values, he is insistent that the basic values are irredeemably plural and incommensurable, that is, the good of one cannot be directly measured against the good of another on some common scale. Thus it is not the case that if one is presented an opportunity to play or enhance ones knowledge, one could detect that one had an opportunity to get seven units of play but only five units of knowledge, and so decide to play. Choosing to pursue one value rather than another is not a simple process of this kind. Furthermore, the seven basic values are not mere manifestations of some more basic or master value, such as pleasure, or utility.
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1. What is moral scepticism? Why does it undermine natural law theory? 2. What is the naturalistic fallacy? Why does it undermine natural law theory? 3. What is Finniss response to the claim that natural law derives ought from is? 4. What are the basic values that Finnis describes? Can they be reduced to some more fundamental value?
4.4.2 Finniss natural law theory of law and the criticism of positivism
The essential claim that Finnis makes about the law is that it is a social institution whose purpose is to regulate the affairs of people and thus contribute to the creation of a community in which all people can flourish, i.e. a community in which everyone can realise the seven different basic values. In this way, the law is a moral project. Therefore, in order to rightly describe the law, one must take the position of a person who examines the law with this person in mind (i.e. the practically reasonable person who grasps the seven basic values and the laws purpose in helping people to realise them). This provides a clear connection between moral philosophy and legal philosophy. Whether ones description of law is correct or not will (in part, but very significantly) depend upon whether ones moral views are correct, for ones moral views will inform the way in which one conceives of the project of law. In this way, Finnis denies that positivism provides a full or accurate picture of law. While Finnis welcomes the insights into the nature of law that have originated with positivists, in particular the positivism of H.L.A. Hart, he denies that these insights provide a sufficient theory of law.
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Activity 4.4
Read either the excerpts from Finnis in Penner et al., pp. 6871, or in Freeman, pp. 17880, and answer the following question: What does Finnis mean by the focal concept of law, and why does he not intend to explain our ordinary concept of law? Feedback: see end of guide.

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explain Finniss modern natural law theory, in particular his employment of the focal meaning or central case to determine the subject matter of legal theory, his reference to self-evident basic values, and his characterisation of practical reason.
4.5 Modern natural law theory II: Fuller

Unlike Finnis, Fuller did not aim to produce a morality of law on the basis of a general moral theory in keeping with the ancient natural law traditions; rather, he sought to explain the moral content in the idea of the rule of law, i.e. governance by rules and judicial institutions as opposed to other sorts of political decision-making or ordering, such as military command or bureaucratic administration. The morality he describes is morality as legality, meaning morally sound aspects of governing by rules. For this reason, Fuller is often credited with devising a procedural natural law theory, in that he does not focus on the substantive content of legal rules and assess them as to whether they are moral or not, but rather concerns himself with the requirements of just law-making and administration.
Activity 4.5
Read the excerpt from Fuller either in Penner et al., pp. 7483, or in Freeman, pp. 157171, and answer the following questions: a. What are the eight principles of the morality of law, according to Fuller? b. Do they, in your opinion, capture the morality of the law? c. What do you make of Harts criticism (Hart, H.L.A. Essays in Jurisprudence and Philosophy. (Oxford: Clarendon Press, 1983), p. 350) that Fullers principles of legality perpetrate a confusion between two notions 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, or Avoid poisons however lethal if their shape, color, or size, is likely to attract notice.) But to call these principles of the poisoners 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. Feedback: see end of guide.
Summary
Finniss natural law theory is based on the direct appreciation of self-evidently valuable basic goods the purpose of law is to provide conditions in which these goods can be realised. His theory is Aquinean in the sense that he follows Aquinass general theory as regards the specificatio/determinatio distinction and its general outlook on attitude subjects must take to unjust laws. Fullers natural law theory is concerned to vindicate the notion of legality or the rule of law, to provide a sense in which rule by law, as opposed to executive fiat or administration, is distinctive in a morally significant way.
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4.6 The continuing debate over the connection between law and morality
Although working through this chapter will provide you with the basic ideas which underlie natural law thought, the question of the connection between law and morality is a vast one, and perhaps in the Western philosophical tradition, the most important and deeply contested question there is. Thus you should bear in mind this question as you work through the succeeding chapters. Next you will study the legal philosophy of H.L.A. Hart, who, though a positivist, was always sensitive to the natural lawyers claims, and again and again addressed the different connections he saw between morality and law. Similarly, when you pass to the work of Ronald Dworkin, you will examine the work of a theorist, who, like natural lawyers, sees an intimate connection between morality and law, although from a quite different perspective. Dworkin believes that his theory refutes positivism, in part for its failure to account for the role moral theory plays when judges decide cases. There is, finally, a massive literature on this subject, and while we have looked at Finniss work in detail, there are also modern natural lawyers of different kinds, such as Michael Moore, who deserve attention if you want to read more widely.

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explain in detail Fullers inner morality of law critically assess these various versions of natural law theory in light of the attack on natural law by legal positivists.
Coleman, J. and Shapiro, S. (eds) Oxford Handbook of Jurisprudence and the Philosophy of Law. (Oxford: Oxford University Press, 2002) Chapter 1: (John Finnis), Natural law: the classical tradition, and Chapter 2: (Brian Bix), Natural law: the modern tradition. George, R. (ed.) Natural Law Theory: Contemporary essays. (Oxford: Clarendon Press, 1992) (which includes M. Moores, Law as a functional kind, at pp. 188242). Hart, H.L.A. The Concept of Law. (Oxford: Clarendon Press, 1994) (second edition) Chapter VIII, Justice and morality, and Chapter IX, Laws and morals. Hart, H.L.A. Essays in Jurisprudence and Philosophy. (Oxford, Clarendon Press, 1983) Chapter 2: Positivism and the separation of law and morals, and Chapter 16: Lon L. Fuller: The morality of law. Finnis, J. Natural Law and Natural Rights. (Oxford: Clarendon Press, 1980). Fuller, L. L. The Morality of Law. (revised edition) (New Haven: Yale University Press, 1969). Morrison, W. Jurisprudence from the Greeks to Post-modernism. (London: Cavendish, 1997) Chapter 2: Origins: Classical Greece and the idea of natural law, and Chapter 3: The laws of nature, mans power, and God: the synthesis of mediaeval Christendom. Shiner, R. Norm and Nature: Movements of legal thought. (Oxford: Clarendon Press, 1992).

Question 1 Why is natural law sometimes historically associated with revolutionary movements, and sometimes with social conservatism? Does this varying association detract from its plausibility as a theory of law? Question 2 Besides its undoubted relevance to the history of legal thought, does natural law theory matter any more?
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Question 1 This question concerns the way in which, under traditional natural law theory, natural law is regarded as a higher law by which positive law is to be judged. Since the natural law is the true dictate of morality, what any person regards as ultimately morally right will provide the content of the natural law, and this vantage point of criticism is available equally to the revolutionary and the conservative. Because of this, the content of natural law will be as controversial as morality is. In one respect, this is just as it should be, for if morality is controversial, so should the content of natural law be; but on the other hand, it does seem to detract from plausibility of natural laws claim that law is intimately connected to morality. For the law seems to be settled at any one time in a way that morality is not, and this would suggest that the connection, if any, is a weak one, and a positivist might claim, as Hart did, that any legal system need only give effect to a minimum content of natural law. In other words, the law must respect basic human nature in so far as it fosters human survival with laws against murder, theft, and so on; but beyond that, it is not determined by morality at all. Much can also be said here about Finniss and Fullers natural law positions. Finnis tries to render the connection between morality and law in a much more nuanced fashion, which aims to preserve natural laws critical perspective, while giving little comfort to the revolutionary who fails to see the inherent moral project of the law and would seek to overthrow legal structures per se. Similarly, the appeal of Fullers natural law theory, focusing as it does on process rather than content, would not oscillate so dramatically between reform and conservatism over time. Question 2 This question requires an exploration of the contemporary relevance of natural law theory, in particular the natural law theories of Finnis and Fuller, and of people like Moore and George, if you have read more widely. It demands an examination of whether natural law can withstand the central claim of positivism, that it illegitimately glorifies a social institution as necessarily moral, whereas it should be regarded as a human practice, a social technique, which can be put to good or bad ends. You might also consider whether the prevalent moral relativism of a secular age, or philosophical scepticism, has undermined natural law thinking. Finally, does natural law theorising avoid committing, in one way or another, the naturalistic fallacy? Notice how easily this fallacy can be committed Fullers description of the principles which make up the inner morality of law commits just this fallacy if Hart is correct in judging him to have mistakenly treated principles of effectiveness as principles of morality.
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Reflect and review

Ready to Need to Need to move on revise first study again I can describe the origins of natural law in ancient Greece and Rome and the basic ideas which inform the natural law tradition I can explain the natural law theory of Aquinas, in particular the relation of natural law to divine law and human law, and the importance of the distinction between specificatio and determinatio in the generation of law I can explain Finniss modern natural law theory, in particular his employment of the focal meaning or central case to determine the subject matter of legal theory, his reference to self-evident basic values, and his characterisation of practical reason I can explain in detail Fullers inner morality of law I can critically assess these various versions of natural law theory in light of the attack on natural law by legal positivists.
Must revise 4.1 4.2 4.3 The rise of natural law in ancient Greece and Rome The natural law of Aquinas: structure The natural law of Aquinas: legal reason, human law, and the obligation to obey the law Modern natural law theory I: Finnis Modern natural law theory II: Fuller The continuing debate over the connection between law and morality Revision done
4.4 4.5 4.6
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Notes
5 Introduction to the set book: Harts The Concept of Law
Contents
5.1 5.2 5.3 5.4 5.5 5.6 5.7 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64 Studying Hart . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 Harts aims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66 Definition and theory in The Concept of Law . . . . . . . . . . . . . . . . 68 Criticism of the orders backed by threats (OBT) theory . . . . . . . . . 70 The union of primary and secondary rules . . . . . . . . . . . . . . . . 72 The less important chapters . . . . . . . . . . . . . . . . . . . . . . . 74 A return to the internal point of view . . . . . . . . . . . . . . . . . . 75 Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
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Introduction
You will soon become aware that Harts work touches on many of the most significant questions about law. Whether or not you disagree with what he says, his work is an excellent starting point for getting deeper into jurisprudence. The immediate aim is to encourage you to obtain a very good working knowledge of a theory of law which is not only widely accepted, but which is very frequently the starting point for other significant theories of law. The way Hart produces his theory is also of great interest, since it is a very lawyerlike approach, one that pays very close attention to the subtleties in our use of language. For your interest, Professor Hart, who was the Professor of Jurisprudence at the University of Oxford from 1954 to 1969, personally taught many of the English and Commonwealth judges of the present time, and also ran a successful commercial law practice in Lincolns Inn. As an introduction, you should read a very helpful account of Harts life and work by Joseph Raz, H.L.A. Hart (19071992). Of particular importance, this overview includes a clear account of Harts views about definition and the purpose of the study of legal language, and his role and status as a philosopher of the linguistic school. Many judges, lawyers and academics consider that Harts major work, The Concept of Law, first published in 1961, provides an accurate account of how we should understand law. This work is without a doubt one of the few major contemporary classics in the field, setting the agenda for practically all the questions that are currently raised in jurisprudence. The book is rightly part of the literature of a proper study of law at a university level and the teachers on the University of London Jurisprudence module believe that because of its importance it should be required reading for all candidates taking the module. For that reason, The Concept of Law is the subject of a compulsory question in the examination each year, out of a choice of three. It is important, therefore, to read this prescribed text very carefully indeed. This chapter introduces Harts book and looks particularly at the development of his arguments from his initial discussion of the problem of definition, through his analysis of the idea of a rule, and how rules much better explain law than the idea of an order backed by threats implicit in Bentham and Austin, to his claiming that it is in the union of primary and secondary rules that the key to jurisprudence is to be found. The following chapter, Chapter 6, will examine the importance he attached to the role of his rule of recognition and in Chapter 7, Harts important defences of his theory against criticisms of the natural law school will be examined.
Learning outcomes
By the end of this chapter and the relevant reading, you should be able to:
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explain what Hart means by a simple definition explain the difference between an internal and an external point of view outline the main steps in Harts criticism of the orders backed by threats theory provide an analysis of the concept of a rule explain the major components of Harts union of primary and secondary rules outline what Hart meant by the rule of recognition. consider critically Harts construction of the secondary rules from a pre-legal society offer some comments on Perrys criticism of Harts methodology give a critical account of Harts views on theorising about law.
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Essential reading
Hart, H.L.A. The Concept of Law. (revised edition) Ed. Raz and Tulloch (1994). All chapters but particularly the Preface, Chapters 1 to 6, and Chapter 9. Hart, H.L.A. Essays in Jurisprudence and Philosophy. (1982) Chapter 1. Hart, H.L.A. Essays on Bentham. (Oxford: Clarendon Press, 1982) [ISBN 0198254687] Chapter 10.
Jurisprudence and legal theory 5 Introduction to the set book: Harts The Concept of Law

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Simmonds, N. Central Issues in Jurisprudence. Chapter 5. Dworkin, R. Taking Rights Seriously. Chapters 2 and 4. Finnis, J. Natural Law and Natural Rights. (Oxford: Oxford University Press, 1994) [ISBN 0198761104] Chapter 1. MacCormick, N. Legal Reasoning and Legal Theory. (Oxford: Oxford University Press, 1994) [ISBN 0198763840]. Raz, J. (1993) H.L.A. Hart 19071992, Utilitas Vol. 5 pp. 14656 (obtainable in philosophy sections of any university library). Perry, S. (1998) Harts Methodological Positivism in Legal Theory, extracts of which are in Freeman, M. (ed) Lloyds Introduction to Jurisprudence at pp. 45181.
5.1 Studying Hart

5.1.1 A short summary
Harts theory is a modern restatement of the theory of legal positivism first expounded in the nineteenth century by Jeremy Bentham and his disciple John Austin. Hart believed that the ideal model of law was that of a modern municipal legal system in which laws were to be identified according to the sources of law that judges accepted. Since what the judges accepted was a matter of empirical fact, it would not necessarily be the case that law had a moral content. Although this seems a relatively simple and, to many, an appealing idea, the route to this conclusion is a long one and this chapter is designed to make the journey easier.
5.1.2 How to read The Concept of Law

There are some chapters of Hart that warrant closer reading than others. The topic of definition and methodology is discussed by Hart in the Preface and Chapter 1. The criticisms that Hart makes of what he calls the orders backed by threats theory writ large, which is really an attack on Austins and Benthams command theory of law, are fully contained within Chapters 2, 3 and 4. The main thesis, that law consists of a union of primary and secondary rules, is contained in Chapters 5 and 6, and his all-important theory of the rule of recognition is also discussed at length in Chapter 6. Apart from these chapters, it is only Chapter 9 that you need to read very closely, since this is where Hart defends his thesis of legal positivism against possible attacks by natural lawyers. A discussion of Chapter 9, because it concerns such large topics, is left to Chapter 7 of this subject guide. However, I shall briefly summarise what is contained in the other chapters of The Concept of Law, all of which, I should emphasise, you need to read, since they all contribute something to understanding Harts overall thesis. However, it is also true that they need not be read to the same depth as the Preface, Chapters 1 to 6 and Chapter 9. Take the book bit by bit, making notes as you go. You will find it difficult at first, but you will get used to it. It is absolutely essential to do this early on in your studies, so that you get a flavour of what intellectually rigorous jurisprudence is about. One way of thinking about how you should go about reading Harts book is to think of each of its 10 chapters as equivalent to a large and difficult case you might have to know thoroughly in a common law subject. The secret is to break the work down into manageable parts. You should make careful notes on each chapter perhaps four or five pages of notes and then you should at a later stage go back to these notes and summarise them further. One of the advantages of The Concept of Law is that there are no wasted words, and each paragraph provides an argument in itself. An accumulation of note-taking and careful reading, pursued throughout the first and second terms of your study, will give you not only a wealth of ideas and argument, but the confidence and background for Harts work has great breadth as well as depth to write clearly and knowledgeably in the final examination.
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You will be expected to know in some detail the major theses contained in The Concept of Law, including Harts methodology; that is, the reasons why Hart argued for his conclusions in the way that he did. Since there are some doubts as to whether his methodology was clear for at times it seems that he is ambiguous in his arguments it is necessary to pay great attention to what he says early on in the work about the nature of definition. Once you have grasped Harts theory, you should become acquainted with the very well-known criticism of it by Ronald Dworkin contained in Chapter 2 of Dworkins Taking Rights Seriously (1977) in which Dworkin claimed that Harts theory gave an account of law as rules which could not take into account the controversial nature of legal argument. Hart was troubled intellectually by Dworkins criticisms and the Postscript is largely a result of his later thoughts about The Concept of Law in the light of these criticisms. (See Chapters 6 and 11 of this subject guide.)
5.1.3 Discussion groups

An excellent way to learn the prescribed text would be to find one or two other students who are studying it. The questions that follow each chapter summary that I provide below would be an ideal basis for a 11 hour discussion group. Students should take turns to introduce the question and give their answers to it, with a view to discussion. In this way you could get through, say, three or four questions, and since each of you would concentrate on one question, this would be an efficient way of sharing work. You will find that Harts work lends itself very well to discussion (there is absolutely no waffle in it) and that often it is only when you hear the argument being put orally that you really grasp what he is getting at. You will find that Harts ideas are powerful and that it is very difficult indeed to formulate criticisms against them. But try to do so! He is very consistent and intelligent in his thought; so trying to engage with his thoughts by attempting some criticism is an intellectual exercise that can only be of benefit to you. Do not attempt to answer the questions following each summary until you have read the relevant chapter of Hart. The questions are not there to test your understanding of my summaries. You will go very seriously wrong if you imagine that at this stage you can get away without reading The Concept of Law.
If you are not able to work with other students, simply spend some time thinking about these discussion questions and note down your responses.
Preparing for an hours peer-assisted learning on Hart

An ideal number of students would be three. Each should prepare one chapter of Hart with a view to giving a five- to ten-minute introduction no more to the other two students. (You will be surprised how little you can say in ten minutes.) This introduction should isolate about three or four main points to discuss.
5.2 Harts aims

Hart is clear about his aims in the early part of his work, particularly in the very short Preface. It follows that you should read it carefully. He expands on his aims in his discussion of the nature of definition in Chapter 1. It is common for the examination to have questions on the definitional methodological aspects of his thesis and the Preface and Chapter 1 should be taken together as a topic in their own right. An article to read in conjunction with Chapter 1 is Harts inaugural lecture The Definition and Scope of Jurisprudence, which predates the publication of The Concept of Law by nine years and contains some helpful and interesting comments, especially in the first part, although the argument is essentially that to be found in the Preface and Chapter 1 of his later book. It can be found as Chapter 1 of Harts Essays in Jurisprudence and Philosophy (1982).
Read the Preface now.
Jurisprudence and legal theory 5 Introduction to the set book: Harts The Concept of Law The Preface
Hart famously said it was his intention to produce what he described as an essay in descriptive sociology and this phrase has bedevilled both academics and examination candidates ever since he wrote his book. It is fairly clear that he intended to describe for us how we understand our shared concept of law, and he was going to do this by describing the social phenomenon of law. It is important to note two assumptions that he appears to make at this point. First, that there is a concept of law that we share, and second, that discovering this concept is a matter of description only. His project at first sight, at least seems to be in accordance with common sense. After all, we do seem to share a concept of law such that we know in some sense what we are all talking about when we talk about law, and it seems sensible that, to find out more about this concept, we need to describe in more detail what this concept is. Perhaps it is unfortunate that Hart used the word sociology since that word invites us to ask why we do not find in The Concept of Law anything that passes for standard sociological, empirical enquiry into legal systems. Hart also says in his Preface that he will pay great attention to the importance of examining language and the meaning of words, with the object of finding out what the social phenomenon of law is. He is clear, however, that his endeavour is not one of mere semantics, about the way we use words alone; instead he aims to give an account of law through the increased attention to legal-related language. In his lectures in Oxford in the 1950s, he used to draw an analogy with a captain on a ship who concentrates on focusing his telescope while his main object is to find land, since there is no other way to find out in which direction to steer his ship. Likewise, Hart says, it is only by focusing on legal language that we use that we can find out more about our real object: the social phenomenon of law to which the language refers. In other words, Harts aim is to pay attention to the language of the law although only to find out more about the social phenomenon itself. The third and final point that Hart emphasises in the Preface is the distinction between the internal and external points of view. He says that we cannot understand properly what a social practice such as rule-following, and hence law, is unless we can understand what the practice is like from the internal point of view, that is to say, from the point of view of someone who accepts that practice as a guide to conduct. The external point of view is manifested by someone who does not accept the practice in question. This point of Harts is very important for understanding his analysis of the concept of a rule, in his Chapter 4, and is important in general for appreciating what is involved over and above the mere recording of regularity of behaviour in explaining rule-governed human practices.
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The analysis of rule-following

Hart says that there are vital differences between merely habitual behaviour, that is, doing things as a rule, and rule-following, i.e. making it a rule to do something. He says that it is wrong to describe rule-governed behaviour as merely regular and habitual behaviour. Instead, there must be acceptance that the fact that people do things regularly is a reason or standard for behaving in that regular way. Statements which appeal to standards are to be contrasted with these external statements about the law, which do not signify that the speaker himself accepts them. In this sort of case, according to Hart, we do not say It is the law that... but instead we say such things as In the United Kingdom, they recognise as law.... Hart says that this is an external statement because it is the natural language of an external observer of the system who, without him or herself necessarily accepting its rule of recognition, states the fact that others accept it.
Colloquially, as a rule means usually, but not necessarily always, as in: When I go to London, as a rule I take the train.
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1. What are the three main points emphasised in Harts Preface? 2. What does it mean to describe law? 3. Is describing law analogous to describing, say, the geographical contours of an island? 4. What is sociology? 5. What is legal related language?
Questions for discussion

You may like to discuss these questions with tutors or fellow students. 1. Is the analogy with the captains focusing his telescope a good one? 2. What are the internal and external points of view? Is the following a manifestation of the internal point of view? A person who, while not accepting the rules of the Nazi legal system, recognises that clearly a lot of people once did. 3. Do you think that knowing whether people accept rules in their society is important? If so, why?
Summary
Hart aims to produce a descriptive theory of law by paying attention to legal-related language and to the internal attitude of people towards the law.
5.3 Definition and theory in The Concept of Law

Chapter 1
In this chapter, Hart isolates three questions of importance to be considered in jurisprudence:
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What is the difference between law and coercion? What is the relationship between legal and moral obligation? What does it mean to say that a social rule exists in a particular society?
In order to answer these three questions, he then sets up a method for understanding the concept of law by exploring the idea of definition. Consider his simple definition of a triangle as a three-sided rectilinear figure. Such a definition is very useful since it breaks down what a triangle is into simpler ideas and allows us to substitute threesided rectilinear figure wherever the word triangle is used. But he concludes that such a definition is not possible for law because of the existence of difficult cases, by which he means in particular international law and primitive law. International lawyers have long debated the vexed question of whether international law is really law since there is no world court, nor world legislature, nor an internationally agreed form of systematically applied sanctions against those states that do not follow international law. Similarly, the law of primitive tribes does not seem to share certain institutions, such as formally constituted courts and legislatures, that seem to be part of the concept of law. There does not seem to be a simple definition of law that could settle these questions once and for all. Hart therefore abandons the idea of a simple definition for law and adopts instead what can be described as a model of law, one against which the difficult cases of international and primitive law might be compared. The construction of this model of law occupies him for most of the rest of his book, and his conclusion (outlined in detail in Chapters 5 and 6 of The Concept of Law) is that the model of law is constituted by a central set of elements that describes a modern municipal legal system. By looking at the model (what he calls the union of primary and secondary rules) a comparison
can be made with the difficult cases of international and primitive law. Since the modern municipal legal system has courts, and has a legislature as well as involving the application of rules, it is then possible to say: international law is law to the extent that it shares similarities with this central case (e.g. it involves legal argument employing rules), and not law to the extent that it does not (e.g. there is no court of general jurisdiction). The same arguments can be advanced for primitive law. Hart returns to the question of the status of international law in his final chapter, Chapter 10, and so there is a return to the idea of definition in that chapter, too. The aim of Chapter 10, which is not essential to the main thesis of the book, is to demonstrate the breadth of his theory: Hart abandons simple definition in the early part of the book partly because of the existence of the phenomenon of international law, proceeds to construct a central set of elements in Chapters 5 and 6, and then returns to international law in the final chapter to show the extent of the similarities and dissimilarities with a modern municipal legal system.
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You may like to discuss these questions with tutors or fellow students. 1. What is simple about a simple definition? Would a triangle imposed on a sphere be as simply defined as Hart suggests? If not, why not? Although Hart abandons the idea of simple definition, is it clear that what he proposes instead is different in kind, rather than degree? After all, a triangle imposed on a sphere would in some respects be within the simple definition (if you looked at it twodimensionally) but in other respects not. 2. Austin thought that the difficult cases for law were international law and constitutional law (see Chapter 3 of this subject guide). Hart, on the other hand, thinks that international law and primitive law are difficult cases. Is there any reason for the difference between Austin and Hart here? 3. Why should Hart (and the history of jurisprudence) be concerned with the differences between law and coercion, and legal and moral obligation? These concerns seem focused more on questions of legitimacy and the limits of law, than on mere description. 4. By what criteria should one choose a central set of elements constituting law? Could one choose on other than descriptive grounds? For example, could one say that the morally best model of law would be that which served certain moral purposes? (John Finnis argues along these lines: see Chapter 4 of this guide.)

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explain what Hart means by a simple definition explain the difference between an internal and an external point of view.
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5.4 Criticism of the orders backed by threats (OBT) theory

In Chapters 2, 3 and 4, Hart provides a classic criticism of a theory he calls the orders backed by threats (OBT) theory of law, which is fairly closely based on Austins theory of law as the command of the sovereign (see Chapter 3 of this guide). The main criticism of the OBT theory is that it ignores the concept of rule-following because it concentrates on thinking of law as only a set of predictions of the likelihood of punishment from someone who gives an order, and this idea cannot explain what it means to follow a rule. If we cannot understand what it means to follow a rule, says Hart, then we cannot understand the important distinction between those rules that impose duties and those that confer powers, nor can we understand the important idea of sovereignty.
Chapter 2
In this chapter, Hart considers linguistic differences between orders and laws and this introduces the reader to what is often called the linguistic method or the method of linguistic philosophy. It is common for a student new to this subject to suppose that something rather strange is being done here, but this is not the case at all. All law students soon learn that there are standard uses of legal words, and that a large part of learning legal technique requires paying careful attention to words. For example, there is a very important difference in statutory language between the use of will and shall such that shall indicates a mandatory requirement. (My use of this example should spark other examples in your mind.) Hart just applies this technique to understanding not the meaning of particular laws, but of law in general. Famously, Hart in this chapter draws a linguistic distinction between our standard use of the term being obliged (that is, being coerced) to do something and being under an obligation (that is, being under a duty) to do something, saying that in the former case, no obligation was implied. This seems a reasonable remark to make since it allows us to distinguish between two cases that on the face of it are very similar: the case where a gunman points his gun at a bank teller and tells her to hand over cash, and the case where a tax inspector orders someone to pay a particular amount of money to the government. In the former case, we would have great difficulty in saying that the teller was under an obligation to hand the money over just because a gun was pointed at her head; but in the latter case, it is clear that the tax inspector has a legal right to make a demand, and that this creates an obligation on the part of the citizen to pay. Going from our actual use of language to understanding the differences in social conduct is therefore not at all dissimilar from what lawyers are doing all the time. It is important not to be bedevilled by the way this method of Harts is labelled linguistic philosophy; it is common enough and, indeed, the method was dominant in Oxford philosophy for at least a decade from the early 1950s.
The being obliged/being under a duty distinction depends on our interpreting obligation as a duty, that is, something that we ought to do, rather than something that we are forced to do. We may have an obligation to perform a duty such as doing jury service, but we are not forced to do so: we may find an excuse, or simply refuse, and accept the consequent penalties.
Activity 5.1
Of particular note in this chapter is the use made of Harts method of picking out distinctions in the meaning of words and then assuming that these words reflect significant differences in the phenomena of law. Select three examples of his using this method, and explain what, if anything, is brought out that is significant about our understanding of law. Feedback: see end of guide.

Would it be at all sensible, or legitimate, for Austin to reply to Hart, on learning of Harts drawing attention to a distinction in our language between being obliged to do something and being under an obligation, that he was not interested in distinctions that we in fact draw in our language, perhaps mistakenly, only in what is of importance to understanding law? Consider whether Austin could be read as encouraging us to stop thinking of legal obligation as anything more than just our
being obliged by the force of sanctions to do things that the legislature wants us to do. Read like this, Austins theory would have a lot of force to some people. Further, by commanding someone to do something, is it possible that we could thereby create a right, or a power in someone else? Think up examples.
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Chapter 3
In this chapter, Hart considers what law would be like if we took it as represented by the model, as he says, of orders backed by threats writ large, in other words, if we assumed that law really consisted of orders directed to us by the legal sovereign. He makes three main criticisms. First, the model of orders is much closer to the idea that all laws impose duties, as though all laws were really of the sort that we find most common in criminal law and tort. Quite apart from the difficulty that merely ordering a person to do something only obliges a person to do something, and does not impose a duty on them, Hart says that the model does not take into account the existence of rules that confer powers on people to do things. A large part of our laws does not require us to do things, but only declares that, if we want to achieve certain goals, such as make contracts, marry, form companies, acquire property, and so on, there are powerconferring rules that can facilitate our activities. Second, the idea of ordering a person to do something, ignores an important feature of law that it can just as easily and readily apply to those who make the laws; and so the model of orders as a top-down one, cannot adequately account for it. Finally, the model of law as orders implies that there is a time and place in which the law was created, when the order was made. But Hart again points out that with law it is not necessary in every case to be able to locate the time and place of the coming into force of the order. In the common law, for example, it is clear that it is possible to identify law without having to locate when, and from which body, it came into being. In particular, Hart points to the legal status of local custom. Such customs, if reasonable, and existing from time immemorial, are legally valid and enforceable, yet it is of the essence of customs that they arise over time and not as the result of a particular sovereign order.
1. List the main criticisms that Hart makes of the OBT theory. 2. What are the differences, if any, between Austins command theory, and the OBT theory? 3. Can power-conferring rules be recast as duty-imposing rules that are merely hypothetical, as Hart suggests? What are the disadvantages, if any, of seeing the law in this way? 4. Can the possibility that a will could be declared null and void have the same motivational force as a sanction? 5. What is it about custom that creates difficulties for the OBT? Is there any way of getting around the problem? (Hint: see what Austin says about tacit commands, in Chapter 3 of this guide.)
Chapter 4
Hart continues his criticism of the OBT theory by criticising the idea of legal sovereignty as brute force. Such an idea, he says, cannot cope with the problems of the continuity of sovereignty because it overlooks the part played by rules. A habit of obedience is fundamentally different from the important concept of rule-following, which includes the idea of standards against which conduct may be appraised. Therefore any idea that sovereignty can be identified as a person or group of persons (Austins description of the sovereign) that relied for its existence on the continued habits of obedience to it, would meet severe difficulties when there was a change of sovereignty. In such a case, the new sovereign would have to wait and see
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whether a habit of obedience occurred and at the very least there would be a period of uncertainty an interregnum. But, Hart says, if we use the idea of rule-following rather than a habit of obedience we can see that the rule-related idea of a right to sovereignty is possible, such that a succeeding sovereign (which he calls Rex II) gains the right to succession. The sovereign itself is constituted by rules, in any modern and sophisticated legal system, and so the appropriate people are seen as occupying offices of the sovereign rather than being the sovereign themselves. This is why, for example, in the United Kingdom, the sovereign is Crown-in-Parliament and is not a person or group of persons but a complex set of rules. Like a corporation, there is an existence without a specific body of persons, in the rule-created institution itself. In sum, the orders backed by threats model, where those orders issue from a determinate body of people, must fail because it ignores the corporate nature of the legal sovereign.
Discussion topic
If we refer to the OBT theory sovereign as a person or group of people we might not have difficulty in agreeing with Hart about the Rex I/Rex II scenario where we think of the sovereign as an individual person. But if the sovereign consists of a group of people we might think that the word group would independently characterise the sovereign, and so independently allow some form of legal continuity. What do you think? Assess the arguments for and against such a move. It would be useful to read Tony Honors article Groups, laws and obedience in Simpson, A.W.B. (ed.) Oxford Essays in Jurisprudence: Second Series (Oxford: Oxford University Press, 1973) [ISBN 0198253133].
Summary
Hart says that social rules involve a standard accepted by some members of a social group, and the idea of a rule is better at explaining the law than the hierarchical, one-off, nature of an order. Rules allowing for the distinction between legal duties and powers can account for the fact that laws apply to the institutions that make them, and explain why there are some laws that do not appear to have any particular origin, such as customary law.
5.5 The union of primary and secondary rules

Chapters 5 and 6 are the heart of The Concept of Law, and in them, having dealt with the problems of definition and the inadequacies of the OBT model, Hart sets out what he thinks are the central features of law.
Chapter 5
Here Hart creates his own model of law as opposed to the Austinian model. Law includes the idea of obligation and that idea implies the existence of strongly supported social rules. But law also includes, in addition to obligations, rules that confer powers, permitting people to do things, and this was one of Harts criticisms of the OBT theory. In this chapter, Hart produces a more direct argument to say why it is that the law consists also of power-conferring rules, and this argument generates reasons why the power-conferring rules are of different types. Hart imagines a society in which there are only duty-imposing rules and in which there are no powerconferring rules at all. He says that this would not be a truly legal society: it would only be pre-legal, because it would suffer from what he calls certain social defects. Such a society, he says, would be static, inefficient and would create undesirable uncertainty. It would be static because no-one would have the power to change the rules to suit changing social circumstances, and so the society would not be able to progress. It would be inefficient because no-one would have the power to adjudicate on disputes of law and fact, or have the power to enforce the law. It would be uncertain because no-one would have the power to identify what the law was in any disputed case.
To cure these defects, Hart constructs three power-conferring rules, which he now calls the secondary rules:
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First, there are the rules of change that introduce private and public powers of legislation and repeal and cure the defect of lack of progress (i.e. of being static). Second, he introduces the rules of adjudication and these cure the defect of inefficiency by introducing the courts and other institutions of law enforcement. Finally, there is the rule of recognition which, by conferring power on people to identify the law for certain through the institution of criteria of legal validity, cures the defect of uncertainty.
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The result of this construction from duty-imposing to power-conferring rules, creates Harts well-known union of primary and secondary rules which forms the central set of elements that constitutes law. From his criticism of the OBT theory (and implicitly of Austin and Bentham) he has analysed law in terms of rules, and in terms of a distinction between duty-imposing and power-conferring rules. From this he has created the idea of law as a set of rules instituting law as we know and see it around us, with its public legislature, its private power-conferring rules, which enable people to make wills and contracts, marry, etc., its courts and law enforcement institutions and, above all its criteria of recognising valid law through the rule of recognition. No wonder Hart thought that in the union of primary and secondary rules he had found the key to the science of jurisprudence.

In what sense do you think Hart uses the terms defect and cure? These terms connote disease! What is the defect of uncertainty? Is it a defect, for example, of the law of tort that it is very uncertain? Perhaps it is not so important that we know for sure whether we will obtain compensation in any given set of circumstances, but important only that we know that compensation is possible when there is negligently caused injury or damage. On the other hand, being certain about what the law requires seems important for the criminal law, and for property law.
Chapter 6
This consists of an examination in greater detail of the rule of recognition and its role in constitutional law. The rule of recognition is identified as a matter of empirical fact and this proposition is one of the most important in the whole book, for it is by his special means of identifying law that Hart establishes the positivistic nature of his thesis, in which law is to be seen as something independent from morality. In this chapter, Hart returns to the distinction he drew in his Preface, between the internal point of view and the external point of view, this time applying the idea to the point of view from which the rule of recognition is understood by the officials or judges of the system: the internal point of view refers to the point of view of the officials who accept the rule. In this chapter, Hart also defines what it means when we say that a legal system exists. He says there is a legal system in existence when (a) the rules issuing from it are by and large effective and (b) even if people in general need not accept the rules (that is, they need not adopt the internal point of view towards them), the officials do accept certain standards, through their acceptance of the rule of recognition as setting up the criteria of legal validity of the system. More will be said about the rule of recognition, which is the most difficult, and most significant, idea in The Concept of Law, in Chapter 6 of this guide.
Definition of the rule of recognition Hart says that The simplest form of remedy for the uncertainty of the regime of primary rules is the introduction of what we shall call a rule of recognition. This will specify some feature or features possession of which by a suggested rule is taken as a conclusive affirmative indication that it is a rule of the group to be supported by the social pressure it exerts. (The Concept of Law, p. 94)

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provide an analysis of the concept of a rule explain the major components of Harts union of primary and secondary rules consider critically Harts construction of the secondary rules from a pre-legal society outline what Hart meant by the rule of recognition.
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What is the relationship between what are called the sources of law and the rule of recognition? What use does the rule of recognition have in legal argument? (See also Chapter 6 of this guide.) Hart talks of the necessary conditions for a legal system. What do you think he means by necessary? Logically necessary? Is Roman law valid law according to his theory, even though it hasnt been enforced for a millennium?
Summary
Chapters 5 and 6 of the Concept of Law contain Harts central thesis that the central set of elements constituting law consists of the union of primary and secondary rules. These rules are the duty-imposing and power-conferring rules respectively, and the three power-conferring rules are the rules of change, adjudication and recognition. These rules set up legislatures, public and private powers of legislation, courts, and criteria of legal validity. In particular, the rule of recognition is accepted by the officials the judges of the system. To say that a legal system exists means that it is by and large effective, and at least the officials of the system accept a rule of recognition that identifies what is legally valid within the system.
5.6 The less important chapters

Chapter 7
This chapter is relatively little read but is a very important chapter in relation to Harts view of legal reasoning. He stresses the open-ended, unclear and ambiguous character of many legal rules and discusses his famous distinction between the core and penumbra of settled rules of the legal system. He attacks the view that law can be reduced to a set of propositions about what judges will do, and this constitutes a criticism by him of a school of jurisprudence in the United States that existed mostly in the first half of the twentieth century American legal realism. This school took the view that statements of law were no more than predictions of what judges and juries would do in any particular case, leading to a call for an examination of law beyond the stated rules and into the sociological conditions that surrounded law. Hart, naturally enough, given his analysis of rule-following as something distinct from the mere predictions of the likelihood of the application of a sanction, as the OBT theory seemed to require, is critical of the American realists lack of emphasis on the existence of standards of conduct against which actual conduct should be compared. Such normative standards, of course, are what Hart thought was essential to understanding law. His discussion of the various ways in which judges come to their decisions is very valuable, and this chapter can be read very profitably in connection with understanding how Hart might defend himself against Dworkins criticisms of Harts rule of recognition.
Chapter 8
This and the following chapter concern themselves with questions of morality that arise in relation to law. In Chapter 8, Hart considers why law and morality have so much to do with each other but nevertheless can be distinguished in the way his theory of legal positivism requires. The most valuable discussion is his brilliantly clear introduction to the idea and history of the development of doctrines of natural law. It is one of the best introductions anywhere into this difficult subject, and is very useful to read in conjunction with Chapter 4 of this subject guide. In particular, Hart distinguishes between that sort of justice that attaches to law (procedural justice, or justice according to law), and that justice that attaches to substantive law (or justice of the law). He says that it is the latter concept that is more important from the moral point of view.
Jurisprudence and legal theory 5 Introduction to the set book: Harts The Concept of Law Chapter 9
This is discussed separately in Chapter 7 of this subject guide.
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Chapter 10
This chapter has already been discussed. It is best understood as a kind of summing up of both Harts theory of definition in the form of the setting up of a central set of elements constituting law and how international law is to be understood in terms of his general thesis that law consists of a union of primary and secondary rules.
Summary
The chapters that you can afford to read in less depth are Chapters 7, 8 and 10. Chapter 7 is Harts account of legal reasoning, Chapter 8 is his classic introduction to natural law, and Chapter 10 is his discussion of the status of international law.
5.7 A return to the internal point of view

One of the central themes of The Concept of Law is the very important idea of the internal point of view. A way of understanding Hart, as well as a way of getting into a frame of mind where you can really try to criticise Harts very well thought-out theory, is constantly to ask yourself what the internal point of view is. In Harts terms, it means acceptance: the internal point of view means nothing more than that when a person has an internal point of view towards a set of rules, it means just that he or she accepts those rules. But the idea of acceptance is not unproblematic. Is there any room for investigation into why anyone would accept the rule of recognition, for example? The rule of recognition, as we have seen, is crucial to identifying the law for Hart, and at the same time, we see that the distinction between the external and internal points of view is similarly crucial. What if we felt inclined to say that judges who are required to adopt the internal point of view should only commit themselves by their judicial oath to criteria of legal validity that have some moral decency (e.g. a commitment of allegiance to the Nazi party would not be proper)? If we did think that, it would mean that we would not identify any rule as valid law unless it complied with a rule of recognition that embodied some moral decency (e.g. was democratic, say). This would entirely demolish Harts theory of legal positivism since it would have to hold that there was necessarily some connection between legal validity and moral decency.
5.7.1 Perry on Harts methodology

Stephen Perry has written an influential article on Harts methodology in which he takes the line that Harts theory cannot be purely neutral and descriptive, as Hart maintained in his Postscript. It is a difficult read, but well worth the effort. In Harts Methodological Positivism (extracts of which appear in Lloyds Introduction to Jurisprudence pp. 451481) Perry argues that there is a difficulty in Harts use of a descriptive-explanatory approach implicit in Harts Preface. Under this methodology, explanatory power is determined by meta-theoretical criteria such as predictive power, coherence, and an attempt at covering all the available phenomena. Hart, of course, appears to be attempting this, for example, when he self-describes The Concept of Law as an essay in descriptive sociology. Perry rejects this sort of method. He says that Hart instead relies on evaluative judgments in his choice of a central case of law. In other words, Hart privileges the modern municipal legal system, and so Harts claim to generality is lost. Further, a description could only explain why people regard themselves as under obligations, but not why they are under obligations. If the aim of a description is accuracy, then it should report inconsistencies and different views about what obligations people are under, but these too can only be understood by addressing the central question of whether people actually are under obligations. This requires moral argument, not just a description of how things are. Perry therefore concludes that an internal account is required to understand the normativity (the rule-governed nature) of law.
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Activity 5.2
a. What is the difference between being under an obligation and believing you are under an obligation? Is being under an obligation only a matter of feeling or belief? Think of examples where you are under an obligation but do not believe you are, and conversely, examples where you only believe you are under an obligation but are not actually so. b. Is there any reason why Hart should not privilege the modern municipal legal system? Think of three examples where the question of whether a person has an obligation to do something is controversial. c. Is Perry right to say that we cannot understand the rule-governed nature of law without an internal approach that would resolve controversial disputes? Feedback: see end of guide.
Summary
The internal point of view is the point of view of a person who accepts some standard for his own and/or others conduct such that we can say that conduct is rulegoverned. Difficulties arise over whether it is possible to say that mere acceptance is sufficient to explain rule-following adequately, since there will always be some controversy over what standard of conduct is to be applied.

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offer some comments on Perrys criticism of Harts methodology. give a critical account of Harts views on theorising about law.

Question 1 Explain the role of the rule of recognition in Harts theory. Question 2 Hart famously claims that The Concept of Law is an exercise in sociological description. What features of his theory support this claim?

Question 1 Start off by providing a definition of the rule of recognition (see Harts definition in the margin on p. 91 of this guide) and show the examiner that you are clear first about why Hart postulated the rule, and second about what the rule is supposed to do. The rule of recognition was designed to cure the defect of uncertainty in a legal system, and you should dwell for some time on what the uncertainty is, and why, in Harts view it amounted to a defect. For example, note that Hart thought that there were two ways that rules in a simple regime of primary rules could be uncertain. It could be that the status of some rule as a legal rule, as opposed to a religious rule, or a moral rule, is in doubt. Again, once the rule is identified as legal there might be some doubt as to its scope (for example, does the rule that prohibits vehicles from the park, prohibit roller-skates?). What is the rule supposed to do in addition to curing these defects? Hart thinks it has several roles, one of which is to turn a set of legal rules into a legal system; another of which is to array legal criteria in a hierarchy, from a supreme criterion of validity (in the UK, what Crown-in-Parliament enacts) to subordinate criteria (local custom, for example). This question also requires you to consider the central role that the rule of recognition plays in determining Harts legal positivism. It is through the rule of recognition, established as a matter of empirical fact about what judges do, that we find out what the law is, and so it is not necessary for us to make moral judgements in order to determine the validity of law. Once you have explained the role in some detail (more detail is required than I have indicated here) you could then profitably move on to consider criticisms of the rule.
As the rule of recognition is covered in detail in Chapter 6 of this guide, you may want to read section 6.1 before answering this question.
Question 2 This question requires discussion of Harts methodology. Sociological evidence is strikingly absent from The Concept of Law and you must confront the question of whether this matters, especially since Hart described his book as an essay in descriptive sociology. Can a description of a legal system adequately be provided in an examination of the way people, predominantly English lawyers, speak about the law? You should look at what Hart says about the relevance of linguistic analysis, and give examples. You should then form an opinion of your own. Clearly, we dont need sociological evidence to find out a great deal about a legal system. Harts analysis of rule-following is full of insights, yet sociological evidence doesnt seem relevant. You should consider how Hart builds up his concept of law out of the shortcomings of an imaginary regime of primary rules, and also how he justifies the same concept, in Chapter 9 of The Concept of Law, in its ability to settle certain sorts of problems (which we deal with in Chapter 6 of this subject guide).
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Reflect and review

Ready to Need to Need to move on revise first study again I can explain what Hart means by a simple definition I can explain the difference between an internal and an external point of view I can outline the main steps in Harts criticism of the orders backed by threats theory I can provide an analysis of the concept of a rule I can explain the major components of Harts union of primary and secondary rules
I can outline what Hart meant by the rule of recognition I can consider critically Harts construction of the secondary rules from a pre-legal society I can offer some comments on Perrys criticism of Harts methodology I can give a critical account of Harts views on theorising about law.
Must revise 5.1 5.2 5.3 5.4 5.5 5.6 5.7 Studying Hart Harts aims Definition and theory in The Concept of Law Criticism of the orders backed by threats (OBT) theory The union of primary and secondary rules The less important chapters A return to the internal point of view Revision done
6 A master rule for law: Harts rule of recognition
Contents
6.1 6.2 6.3 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80 Identifying the rule of recognition . . . . . . . . . . . . . . . . . . . . 81 Criticism of the rule of recognition . . . . . . . . . . . . . . . . . . . . 83 The Postscript . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85 Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
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Introduction
This chapter pays particular attention to what is probably the major focus of Harts theory: the set of criteria through which laws are identified. Hart is very specific about how we identify the rule of recognition, namely, that its existence is a question purely of empirical fact. It is therefore appropriate in this chapter to see what he says about legal method in his now well-known Postscript to The Concept of Law, because there he affirms that his aim all along in his work was just to give a factual account of law, one that did not import any moral judgment.
Learning outcomes
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describe the rule of recognition in detail describe what Hart calls the necessary and sufficient conditions of the existence of a legal system explain the significance of the rule of recognition for Hart for establishing his particular form of legal positivism discuss critically Harts claim that the rule of recognition is identified as a matter of fact outline the main arguments put by Dworkin in his criticism of the rule of recognition theory express your own opinion about the ultimate criteria of legal validity, supported by reasons describe in general terms the position that Hart takes in the Postscript give an account of the significance of the Postscript (a) for interpreting the main doctrines of The Concept of Law and (b) for understanding law generally.
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Essential reading

Hart, H. Postscript. Dworkin, R. Taking Rights Seriously. (London: Duckworth, 1978) [ISBN 0715611747] Chapter 2. Finnis, J. Natural Law and Natural Rights. (Oxford, Oxford University Press, 1980) [ISBN 0198761104] Chapter 1. Guest, S. Two strands in Harts The Concept of Law in Positivism Today. (Aldershot: Dartmouth, 1996) [ISBN 1855216892] p. 29. Hart, H. Essays in Jurisprudence and Philosophy. (Oxford: Oxford University Press, 1983) [ISBN 0198253885] pp. 6272 (on the core and the penumbra of legal rules). MacCormick, N. Legal Reasoning and Legal Theory. (Oxford: Oxford University Press, 1978) [ISBN 0198760809] Appendix, p. 275. Case: R. v Registrar of Births, ex parte Smith [1991] 2 QB 393; Riggs v Palmer 115 NY 506 (1889).
Jurisprudence and legal theory 6 A master rule for law: Harts rule of recognition
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6.1 Identifying the rule of recognition

Essential reading
Hart, pp. 94110, 14754, 24668, 29295.
While you are studying Hart, you should distinguish a narrower, professional question from the general question What is law? that Hart sets himself at the very beginning of The Concept of Law. This narrower question is What is the law? and it is narrower because it leads to a more precise specification of the issue on which knowledge of the law is required, and (most importantly) a specification of the legal system to which the question relates. Someone who asks, for example, What is the law concerning mortgages in England? will be disappointed by the reply that it is the union of primary and secondary rules (the answer to the general question), considering it to have no practical relevance. Harts reply would depend on his theory of legal validity. Briefly, his answer is that the law on a particular topic in a particular legal system is that which it is according to the rule of recognition in that system. We need, therefore, to examine more closely what Hart means by his rule, or rules, of recognition. Incidentally, if you are wondering whether there is only one rule of recognition, or whether there are several, the writer can confirm that he has asked Hart this very question. Harts reply was that there is no importance in the issue. We can loosely refer to several rules, such as, in the United Kingdom, What Crown-in-Parliament enacts is law, or What the common law courts decide is law and so on, or we can simply bundle them all together in one more complicated rule such as What Crown-in-Parliament enacts and what the common law courts decide and ... is law. Harts definition occurs on p. 94 of The Concept of Law. The rule of recognition is defined as specifying
some feature or features possession of which by a suggested rule is taken as a conclusive affirmative indication that it is a rule of the group to be supported by the social pressure it exerts.
6.1.1 The supreme criterion and the ultimate rule

A rule of recognition, therefore, is simply a rule whose function is to identify whether or not another rule is part of the legal system. Hart further distinguishes between what he calls a supreme criterion and an ultimate rule of recognition:
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The supreme criterion is part of the rule of recognition and is the part which dominates over the rest. So the supreme criterion in the United Kingdom legal system is Parliamentary enactment, and if the common law, or local or general custom, conflicts with Parliamentary enactment, that enactment prevails. The ultimate rule of the system is the rule of recognition itself because you cannot go back further than that. It is ultimate in the sense that Kelsens basic norm is, because we cannot trace validity back any further. So we can trace back the root of title or validity of a bylaw to an Act of Parliament but here, says Hart, we are brought to a stop in inquiries concerning validity.
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For a discussion of Kelsens basic norms see Chapter 10 of this guide.
Hart uses this distinction between a supreme criterion of validity and the ultimate rule of recognition to criticise Austins attempt to say that all law is the result of legislation (remember Austins theory of the tacit consent of the sovereign). He claims that this sort of confusion is caused by supposing that the supreme criterion of validity within the rule of recognition is the rule of recognition itself, that is, in the case of the United Kingdom, supposing that the only rule of recognition is: What Crown-in-Parliament enacts is law. The existence of the rule of recognition is a matter of empirical fact, to be determined by looking to the actual practice of the officials of the system. But Hart says that this does not mean that the rule of recognition is explicitly declared, saying that in the day-to-day life of a legal system its rule of recognition is very seldom expressly formulated as a rule and that for the most part the rule of recognition is not stated, but its existence is shown in the way in which particular rules are identified.
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Activity 6.1
As you read the text, ask yourself the following questions and note down your thoughts: a. What is the importance, if any, of the rule of recognition? b. What is the importance, if any, of a distinction between identifying law itself, as opposed to identifying particular laws of particular legal systems? c. Is Harts definition of a legal system convincing? d. Distinguish what Hart means by supreme criterion and ultimate rule. Feedback: see end of guide.
6.1.2 The definition of a legal system

The definition of a legal system (as opposed to law) is important for understanding the relationship between effectiveness and validity in Harts theory. He says that it is pointless to talk of legal validity unless the legal system is generally effective. The criteria for the existence of a legal system are that:
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The officials of the legal system must have the internal attitude towards the rule of recognition of the system, and it is not necessary (although it might be true) that private citizens have the internal attitude towards the rules. Hart says that what is crucial is that there should be a unified or shared official acceptance of the rule of recognition containing the systems criteria of validity. The valid legal rules of the system must generally be obeyed by both officials and the private citizens.
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Note that he says that sometimes there might be a point in talking as though a legal system was in existence, as when teaching a subject like Roman law. The Roman legal system is no longer effective, yet, he says, a vivid way of teaching it is to discuss the validity of the particular rules in that system as if the system were still effective. Nevertheless, because it is no longer effective, no-one thinks that Roman law is currently valid.
Summary
The rule of recognition answers the question what is the law of a particular system? It is found by recording the actual practice of judges and other officials of a legal system. It is the ultimate rule but it comprises both supreme and subordinate criteria of legal validity. The rule of recognition is also pivotal in defining what a legal system is.

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describe the rule of recognition in detail describe what Hart calls the necessary and sufficient conditions of the existence of a legal system explain the significance of the rule of recognition for Hart for establishing his particular form of legal positivism discuss critically Harts claim that the rule of recognition is identified as a matter of fact.
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6.2 Criticism of the rule of recognition

6.2.1 Finniss critique
You should note two important criticisms of Harts rule of recognition. One is Finniss criticism in Natural Law and Natural Rights Chapter 1. A shorter version is to be found in his Revolutions and Continuity of Law in the Oxford Essays in Jurisprudence: Second Series. His criticism is that Hart leaves insufficiently specified the sort of attitude towards the rule of recognition that the officials have. Finnis says that there are a number of attitudes that could be described by this phrase and that here he employs Harts own definitional technique (see section 5.3 of this subject guide) there must be a central set of elements that constitute an officials acceptance of the rule of recognition. Finniss own view, which is a complex variant of natural law, is that the central set of elements constituting an officials acceptance of a rule of recognition, is a moral acceptance of the rule. In this way, Finnis claims to have found a conceptual, logical link between validity and morality. A similar sort of criticism of the rule of recognition is to be found in the final Appendix to MacCormicks Legal Rights and Legal Reasoning. You might note, too, that there is a strong connection between Finniss thesis and Dworkins thesis that a proper legal theory must explain the moral force of law and that a proper interpretation of law requires us to make the best moral sense of our legal practices. The other criticism is Dworkins criticism in Chapter 2 of Taking Rights Seriously. You should read this in conjunction with Chapter 11 of this subject guide, particularly sections 11.2 and 11.3.
6.2.2 Dworkins criticism of the rule of recognition

Dworkins theory of judicial integrity is important and the difficulty is that, although he writes in the same rigorous intellectual mould of Bentham, Kelsen, Hart and so on, he is not a legal positivist. You have to be prepared for some very different ideas! The best start is to read Chapter 2 of his Taking Rights Seriously. Since Hart is the set book, this article is useful because it sums up in a very neat analysis what the rule of recognition is, before going on to give a very well-known and much argued about criticism of Harts theory. The argument in a nutshell is as follows. If we take Hart at face value (and why not?) the point of the rule of recognition, which we identify as a matter of empirical fact is to cure the defect of uncertainty in a society of primary rules alone. It follows that any rule purporting to be a rule of law, can be identified with certainty (by applying the test of identification of the rule of recognition). It follows that any rule purporting to be a rule of law that cannot be identified with certainty is not a rule of law at all. And so all hard cases, in other words all those cases in which it is controversial what the law is, and almost all those cases that come before appellate judges do not concern law at all. To take an example, if a statutory provision prohibits vehicles from a park, a purported rule of law that is relied on, say, by a prosecutor, that roller-skates are prohibited from the park (this is Harts example, incidentally, from Chapter 2 of his Essays in Jurisprudence and Philosophy), is not a rule of law at all, just because it is controversial. Dworkin says three things follow from this:
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the judge has to act as a legislator to make new law for the future on whether roller-skates are prohibited or not, and this is contrary to what we suppose the judicial role to be (judges are not elected to legislate) the judge characteristically then applies that law to the defendant, and so this would be retrospective legislation, which is unfair and not how we think judges act judges must continually be mis-describing what they are doing, because they talk as if they were finding the law, rather than legislating (and lawyers, law students, etc., also talk in this way). So, concludes Dworkin, there must be something wrong
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with the positivistic picture because it is useless when it comes to giving an account of legal argument. And since legal argument clearly plays a central role in all matters legal, positivism fails.
You need to get a firm grasp of what Dworkin is getting at in the idea of interpretation before you can criticise him. He argues that there is no descriptive sense of what a rule means independent of making an interpretation of that rule. It is very common to suppose that vehicles are prohibited from the park says something very clear. Certainly, Hart was of that opinion, and he usefully distinguished between the core meaning of a rule the uncontroversially clear meaning and the penumbra in which there is a degree of uncertainty about what the law requires (see Chapter 2 of Harts Essays in Jurisprudence and Philosophy). For understanding Dworkin two points need to borne in mind:
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Clear meanings are themselves only clear because of some interpretation. So in the above example, to say that these words prohibit, say, ten-ton trucks, is to apply some understanding of the point of the words in question, and understanding the idea of a right to prohibit, means seeing the author of those words in a particular light. After all, if you or I write on pieces of paper vehicles are prohibited from the park, this does not create a legal prohibition. So, to understand the words in a particular way is not merely to read them, but to interpret them, because we have assigned point to them. Unclear meanings really bring out the above. There is no answer to the question what does vehicles include? in advance of an actual example and an argument.
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Consider s.51 of the Adoption Act 1951. This section states:

If any person applies in the prescribed manner for his or her birth certificate, the RegistrarGeneral shall supply that person with the required certificate.
Now ask yourself what that statutory provision means. Does it apply to everyone? Does it place an absolute duty upon the Registrar of Births to supply a birth certificate to whomever applies for one in the correct manner? Or do you have to know the precise facts first? Now read R. v Registrar of Births, ex parte Smith [1991] 2 QB 393. Smith was a mentally disordered person who was in Broadmoor psychiatric hospital because he believed that his troubles were caused by his natural mother in placing him for adoption and he had tried to murder one person, and successfully murdered another, because in both cases he mistakenly thought his victims were his natural mother. He applied for his birth certificate in order to find out who she was and, of course, there was clearly evidence that he might cause serious harm to her. When you are faced with this situation it seems much more difficult to say that section 51 clearly gives him a right to his birth certificate, despite what the words say, because it is difficult to suppose that Parliament intended to place the natural mother at such risk. After all, Parliament had also declared the aiding, abetting, procuring and counselling of criminal offences to be illegal, and handing this birth certificate to Smith would have been like handing a gun and ammunition to someone who has made it clear that they intend to commit a crime (this would be a classic case of procuring a criminal offence).
Broadmoor is a secure psychiatric hospital situated about 70 km west of London.
Summary
Finnis criticises Harts rule of recognition for its over-emphasis on identification through empirical fact, raising the question whether some evaluative criteria are required; if a moral evaluation (that, for example, the rule of recognition must serve some moral function such as enabling us to lead our lives in a better way) is required, then there will be a necessary link between law and morality. Dworkin criticises the rule of recognition because it leaves judicial reasoning outside the realm of law. Since legal reasoning in hard cases is controversial, he says, the rule of recognition cannot adequately identify the law to be applied.
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outline the main arguments put by Dworkin in his criticism of the rule of recognition theory express your own opinion about the ultimate criteria of legal validity, supported by reasons.
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6.3 The Postscript

Essential reading

Hart, Postscript. Guest, S. Two strands in Harts The Concept of Law in Positivism Today (1996).
This chapter concentrates on the detail of the Postscript to The Concept of Law in which Hart counter-attacks Dworkins attack on legal positivism and his perceived attack on Harts method of legal theory.
6.3.1 Hart versus Dworkin

Hart affirms that his theory was intended to be both descriptive and general, in the sense that is not tied to any one particular legal system. By descriptive he says that he intended it to be morally neutral and with no justificatory aims. He says that this is a radically different enterprise from that envisaged by Dworkin which, he says, is in part evaluative and justificatory and addressed to a particular legal culture. Then he says that because of these differences, he and Dworkin are not in conflict (Finnis has maintained they are in conflict); it is just simply, so it seems, that they are each writing with different aims in mind. Further, Hart takes exception to Dworkins having labelled him as one of those linguistic theorists guilty of the semantic sting. Hart denies that he ever had such a theory and says that the charge confuses the meaning of a concept with the criteria for its application. He clearly means by this the distinction that Dworkin often makes between the elaboration of a concept and a conception, with the clear implication that he (Hart) thinks that his theory allows for the elaboration of a conception of law. This is interesting particularly in the way the first four chapters of The Concept of Law develop, for there one would certainly be led to believe that Harts aim was in fact to capture linguistic practices that are a plain fact about the world. However, it becomes clear by the end of the book, especially in the very important Chapter 9, that Hart is choosing between concepts (note the telling sentence in that chapter when he discusses the Nazi grudge informer case: plainly, we cannot grapple adequately with this issue if we see it as one concerning the proprieties of linguistic usage). Hart disagrees with Dworkin that the point or purpose of law or legal practice is to justify coercion: it certainly is not and never has been my view that law has this as its point or purpose (p. 248). He refers, for example, to his invocation of the pre-legal world and says that the proposed introduction of the secondary rules, of adjudication, of recognition and of change, was not intended to answer any question about the justification of the application of the coercive powers of the state. Hart still maintains the view that the Nazi-type legal system, while undeniably of moral wickedness, was nevertheless law since the various features it shares with other modern municipal legal systems are too great for a universal-descriptive legal theory to ignore. He points to Dworkins suggestion that such a legal system might be described as such in his pre-interpretive sense and then says that Dworkins concession there about the flexibility of legal language strengthens rather than weakens the positivists case:
The semantic sting criticism, to be found in Chapter 1 of Laws Empire, is that no adequate account of law can be based on a description solely of how people speak (the truth conditions of law linguistic practices).
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... it does little more than convey the message that while he insists that in a descriptive jurisprudence the law may be identified without reference to morality, things are otherwise for a justificatory interpretive jurisprudence according to which the identification of the law always involves a moral judgment as to what best justifies the settled law. (p. 271)
Consequently, in line with what Hart argues at first in his Postscript, that he is about universal description and Dworkin is about justification of state coercive powers, Hart rather reasonably concludes that, in characterising the Nazi legal system, he and Dworkin are really talking at cross purposes. You should think about the following problem with this account. To what extent can you make sense of a human practice without being a person who is (as it were) part of that practice? Let us take mathematics. Could you produce a descriptive account of mathematics (what mathematics is; what it can achieve; what sorts of problems it deals with; etc.) without yourself being a mathematician of some sort? It is easy to imagine that the more versed in mathematics a person is, the better account that person will give. Why? Because what is interesting about mathematics is what it is that people who are engaged it are doing who better to give an account, then, than someone engaged in mathematics? (Assuming they are capable of communicating it!) There is a quicker way to this point: could a person who was unable to do even the simplest arithmetical sums tell us anything at all about mathematics? Could a person who was stone-deaf give us an adequate description of what music is? Well, in the case of law, the more detached a person is (in Harts terms, the more external), the less rich the explanation will become. Imagine that you suddenly find yourself in the role of a Nazi judge. Nazism is contrary to your moral beliefs; how would you fare, do you think, in interpreting immoral laws? It might not just be hard to get yourself into the Nazi mind set, it might be impossible. What do you think? Does the analogy with engaging in mathematics work?
6.3.2 Principles and the rule of recognition

Hart also thinks that Dworkin is wrong to suppose that there is such a sharp distinction between rules and principles. Hart concedes there to be a difference in specificity and, perhaps weight. But he thinks Dworkin exaggerates the differences and refers to the Riggs v Palmer decision which Dworkin famously uses to show how principles decide cases (see Taking Rights Seriously, Chapter 2). Hart thinks this decision shows clearly not a clash between two principles but between a rule and a principle. Here you must make up your own mind. Hart just asserts that there was a clear rule of succession that a murderer could not inherit from the estate of the person he murdered; Dworkin denies that there was any such rule but that there was a general principle (outweighed in that case by another that no man should profit from his own wrong), that the clear words of a valid will should be closely adhered to. Hart thinks that while large theoretical differences exist between Dworkin and himself on this point, nevertheless they both share the view that there are certain basic facts of legislative history which each of them thinks limit the application of law by judges: ... his explanation of the judicial identification of the sources of law is substantially the same as mine (267). But the main difference, he says, lies in the fact that there are few legal systems outside the US and the UK in which legal reasoning takes the form of the all-embracing kind (holistic) that Dworkin says is involved in the idea of constructive interpretation.
Activities 6.26.3
6.2 6.3 Provide and compare examples of legal rules and legal principles. Read Riggs v Palmer. Was this a clash between a principle and a principle, or a rule and a principle? Try to come to a conclusion about what is the better way to explain the decision, giving reasons. In coming to your conclusion, make it clear what the principles are, and if you think a rule is involved, say what the rule is.
Feedback: see end of guide.
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6.3.3 Judicial discretion

Hart addresses the question of the difference between himself and Dworkin on the question of how best the unregulated cases (as Hart appears to call hard cases) should be resolved. His answer is straightforwardly assertive: he thinks that there are cases where judges exercise their judicial discretion by acting as judicial law-makers and he does not think that this poses a great threat to democracy. You must make up your own mind: see, for example, whether you agree with the following statement: ... the delegation of limited legislative powers to the executive is a familiar feature of modern democracies and such delegation to the judiciary seems a no greater menace to democracy (p. 275). I find this remark disappointing in drawing insufficient attention to the very great differences of role and function between the executive and the judiciary. The executive must govern the community as a whole but we dont think that judges are like that at all. We think that they should concern themselves with the merits of the dispute relating to the respective rights and duties of the parties before them. Hart also takes Dworkin to task for saying that it is a defect of legal positivism that it supposes that judicial discretion in unregulated cases is retrospective in effect (which Hart must concede happens if he allows for judicial law-making). He simply says that if there were law there in the cases, or the arguments, or whatever as Dworkin supposes, it wouldnt be retrospective, true, but a decision made by the judge would be just as surprising to the defendant as where the law is made by the judge (the positivist position). Consider the following defence of Dworkin. Surely, if we are to choose between two theories of adjudication, we must choose the one that says that, characteristically, the judge is punishing (or awarding compensation or whatever) for acts which at the time that they were done were against or within the law. The defendant who is surprised by a decision that is the result of retrospective legislation is worse off in this sense than the defendant who is surprised at a decision about the law existing at the time he did the act. It is a simple matter of the rule of law: no one should be punished, or whatever, unless there is a law which prohibited (or whatever) the act at the time that it was done. This principle is frequently referred to as the nulla poena sine lege principle (no punishment without law). We could remember in this connection that it was this principle which Hart so effectively invoked in the important Chapter 9 of The Concept of Law.
A possible insight into the issue of whether judges make or only apply the law is to suggest that they can do both: like a pianist playing a piece by Beethoven, but doing so creatively. (The score is always the same, but the performance is always different.)
Summary
In the Postscript, Hart repeats the line that is apparent in the early part of The Concept of Law, that is, that legal theory involves a descriptive account of the concept of law. He specifically denies that legal theory is interested in any questions of justification and distinguishes himself from Dworkin on this ground. He also reaffirms his belief that evil legal systems are as much law as moral legal systems.
Test your understanding of Harts positions by making brief summaries of: 1. the main line that Hart takes in his Postscript. 2. Harts views on: a. the nature of legal theory b. the idea of interpretation c. the relationship between the rule of recognition and principles d. the relationship between law and morality.
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describe in general terms the position that Hart takes in the Postscript give an account of the significance of the Postscript (a) for interpreting the main doctrines of The Concept of Law and (b) for understanding law generally.

Question 1 Explain the role of the rule of recognition in Harts theory. Question 2 ... the rule of recognition exists only as a complex, but normally concordant, practice of the courts, officials, and private persons in identifying the law by reference to certain criteria. Its existence is a matter of fact. (Hart, The Concept of Law). Discuss. Question 3 Dworkins theory is fundamentally a normative theory of law, offering guidance to the judge as to his judicial duty. Harts is a descriptive theory, offered to historians to enable a discriminating history of legal systems to be written. (Finnis) Discuss. Question 4 Judges are not elected and so they should not make law. Discuss. Question 5 How effective is Harts Postscript in meeting the objections of his various critics?

Question 1 This requires looking at the reasons Hart gives for the rule of recognition in terms of certainty (see section 5.5 of this guide). What defect was the rule of recognition supposed to cure? In Chapter 9 of The Concept of Law it is clear that Hart wants the law to be distinct from morality for a practical purpose of a perhaps different kind: he wants people to be able to see that the fact that some rule is legally valid is not conclusive of the question of obedience. So the rule of recognition, by defining law by reference to actual empirical facts, is pivotal in establishing Harts legal positivism. Questions 2 and 3 The focus of both of these questions is on the extent to which Harts theory, particularly the rule of recognition (because it identifies the laws of a legal system), is descriptive only. Obviously there are different emphases (in Question 2 it is more on the rule of recognition; in Question 3 is more on Harts linguistic-descriptive method) but each question is fundamentally about the same point. Both questions are relevant to a discussion of Dworkins discussion of interpretivism (see Chapter 11 of this subject guide). Question 4 This is pretty straightforward but a start would be Dworkins criticisms of the rule of recognition. Question 5 To prepare for this question you should read thoroughly the Postscript (best done towards the end of your years study in Jurisprudence, so that you have absorbed by this time other approaches to Jurisprudence). Only at that point should you consider whether his claims in the Postscript meet the criticisms (mainly Dworkins). You might particularly concentrate on the way Hart argues for legal positivism in his discussion of the Nazi informer case (and here you could refer to the debate he had with Fuller (see Chapter 7 of this guide).
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Reflect and review

Ready to Need to Need to move on revise first study again I can describe the rule of recognition in detail
I can describe what Hart calls the necessary and sufficient conditions of the existence of a legal system I can explain the significance of the rule of recognition for Hart for establishing his particular form of legal positivism I can discuss critically Harts claim that the rule of recognition is identified as a matter of fact I can outline the main arguments put by Dworkin in his criticism of the rule of recognition theory
I can express my own opinion about the ultimate criteria of legal validity, supported by reasons I can describe in general terms the position that Hart takes in the Postscript I can give an account of the significance of the Postscript (a) for interpreting the main doctrines of The Concept of Law and (b) for understanding law generally.
Must revise 6.1 6.2 6.3 Identifying the rule of recognition Criticism of the rule of recognition The Postscript Revision done
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Notes
7 Harts defences against natural law and Fullers criticism
Contents
7.1 7.2 7.3 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92 Morality in the penumbra of law . . . . . . . . . . . . . . . . . . . . . 93 The Nazi grudge informer and legal positivisms virtue of clarity . . . . . 94 The eight principles of the inner morality of law . . . . . . . . . . . . . 96 Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
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Introduction
This chapter introduces you to positivist defences against the idea that moral judgments are an integral part of the law. It is therefore a chapter closely connected to Chapter 4 and you should re-read that chapter.
Learning outcomes
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describe the main arguments of the Hart/Fuller debate describe the realist criticism of positivism discuss Harts methodology in Chapter 9 of The Concept of Law discuss the so-called grudge informer case appreciate the significance of Fullers eight principles of procedural justice.
Essential reading

Hart, Chapters 8 and 9. Finnis, J. Natural Law and Natural Rights. (Oxford: Oxford University Press, 1980) [ISBN 0198761104]. Fuller, L. Positivism and fidelity to law a reply to Professor Hart (1958) Harvard L.R. 630 (and see Freeman, pp. 36773 for extracts from both Hart and Fuller). Fuller, L. The Morality of Law. (New Haven: Yale University Press, 1970) [ISBN 0300010702]. Hart, H. Essays in Jurisprudence and Philosophy. Chapters 2 and 16.
Jurisprudence and legal theory 7 Harts defences against natural law and Fullers criticism
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7.1 Morality in the penumbra of law

Hart produces several defences of positivism against the charge that it is impossible for questions of legal validity not to be infiltrated by arguments about morality. (One argument, not dealt with here as it is more appropriately dealt with in the discussion of natural law in Chapter 4 of this subject guide, is what is known as the minimum content of natural law thesis).
Harts argument against legal realism

The first important defence to be discussed here concerns Harts argument against an American school of thought known as Legal Realism (see section 16.2 of this subject guide) which expressed a particular view about the nature of legal reasoning. It accused the positivists of being formalistic and of ignoring the facts of adjudication and judicial lawmaking. The jurists of this school said that the real law occurred in the courts, and that to insist upon a rigid distinction between law and morality as positivism does simply ignores what judges are doing when they come to their decisions. In these hard or difficult cases, where litigants argued opposing points of view as to how a judge should decide, the realists argued that there was a merger or intersection of law and morality. Hart says that it was a central insight of the realist school to draw attention to these hard cases. Harts famous example is that of a legal rule which forbids us to take a vehicle through the park. In the absence of judicial or statutory definitions of the word vehicle, such a rule plainly forbids a car, but does not plainly forbid or plainly permit bicycles, roller-skates, or toy cars, or even helicopters. But, as Hart says:
if we are to communicate with each other at all ... that a certain type of behaviour be regulated by rule, then the general words we use like vehicle must have some standard instance in which no doubts are felt about its application.
Hart says that there must be a core of settled meaning, as well as a penumbra of debatable cases which will share some similarities but not others with the core. He agrees that judicial decisions made in penumbral cases cannot be made as a matter of logical deduction, because a decision has to be made whether to classify the item as coming within the language of the enactment. Hart sides with the realists in their denunciation of formalistic, deductive reasoning in hard cases. But, he says, it does not follow from the fact that formalistic reasoning is wrong in these areas of the law, that judges do in fact, or ought, to decide morally. It is possible to make rational choices within the penumbra of rules in a legal system dedicated to evil aims. He gives the example of sentencing in criminal cases. Here there seem to be good grounds for saying that the judge must exercise moral judgment in coming to his or her decision, for example, the judgments that society should be protected from violence, that too much suffering should not be inflicted upon the victims, that efforts should be made to enable the defendant to reform himself, and so on. You should note the addendum to this argument. Hart suggests that we perhaps ought to be prepared, in the light of what the American realists say, to revise our conception of what a legal rule is. Perhaps we should, he says, include in the idea of a legal rule all the various aims and policies in the light of which all the penumbral cases are to be decided, simply because their aims have as much right to be called law as in the case of legal rules whose meaning is settled. We would then, he says, not talk of judges coming to decisions in penumbral cases as debating what the law ought to be and then deciding what the law should be for the future, but consider them as discovering what the law is by drawing out of the settled meaning of the legal rule, what is already latent in it. This gives us a view of judicial decision-making that was essentially the same as deciding what the settled meaning of a rule was, although involving a more complicated process of extrapolating the law from the settled meaning. Hart rejects this idea, however. Harts argument here, often overlooked, is useful to bear in mind when reading Dworkin on legal argument in hard cases (see Chapter 11 of this subject guide).
As you read the texts, consider whether there is a difference between what the law is, and the words that express it. It is a serious point that words, generally speaking, cant put you in prison, but law can! Take the case of Riggs v Palmer (see Chapter 6 of this subject guide, particularly sections 6.4.1 and 6.4.2, and Dworkins discussion of the case in Chapter 2 of Taking Rights Seriously. The beneficiary of the will murdered his grandfather to obtain the benefit of the will, since he thought his grandfather was about to disinherit him. Was there a core meaning of the will that said he was the beneficiary? In one sense there was. On the other hand, once we learn that he murdered the testator, doesnt it seem as though: we are no longer talking about the meanings of words, but the rights those words have a bearing upon, and the case is one that raises a penumbra of doubt?
A question to ponder The sign on the escalator to the London tube (underground railway) at Chancery Lane station instructs passengers that they must carry dogs on the escalators. Do people who dont carry dogs because they dont have any dogs act contrary to this instruction? If not, why not?
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Summary
Hart says the American realist insistence that morality intrudes into the law through judicial decision-making is mistaken because although it often does, it does not do so necessarily. Just as often, immoral aims can intrude into the law in precisely the same way.
7.2 The Nazi grudge informer and legal positivisms virtue of clarity
Essential reading

Hart, Chapter 9. Hart, H. Essays in Jurisprudence and Philosophy. Chapter 2.
The grudge informer case arises in well-known debate between Professor Hart and Professor Lon Fuller of the Harvard Law School in 1958. The debate is a classic of modern jurisprudence, Hart taking the positivist line and Fuller the anti-positivist natural law line. Hart takes on the criticism of positivism of a German jurist called Gustav Radbruch. The history of Radbruchs thought about law was that he was originally a positivist. After his experience of the Germany of the 1930s and during the war, his views radically changed and he became convinced that legal positivism was one of the factors that contributed to Nazi Germanys horrors. Among other things, he said, the German legal profession failed to protest against the enormity of certain laws they were expected to administer. In the light of this, Radbruch claimed that a law could not be legally valid until (a) it had passed the tests contained in the formal criteria of legal validity of the system, and, more importantly, (b) it did not contravene basic principles of morality. This doctrine meant that, according to Radbruch, every lawyer and judge should denounce statutes that contravened basic principles of morality not just as immoral, but as not having any legal character, that is, being legally invalid, and therefore irrelevant in working out what the legal position of any particular plaintiff or defendant was. A general argument was used in several West German criminal cases involving allegedly criminal acts of informing on other people during the Nazi period and thereby securing their punishment by the Nazis. The form of the defences to these alleged offences was that such actions were not illegal according to Nazi laws in force at the time they were done. Hart refers to one of these cases and you can see an account of it in (1951) 64 Harvard Law Review 1005. You should be clear about the decision and the facts in this case, because it is often completely misunderstood. The facts were that in 1944 the defendant denounced her husband to the Gestapo for having said something insulting about Hitler when the husband was home on leave from the German army. She had a grudge against him something such cases were not uncommon at the time. The husband was arrested and sentenced to death in accordance with a Nazi statute that made it illegal to make statements detrimental to the German government. In 1949, the wife was charged, in a West German Court, with having committed the offence of unlawfully depriving a person of his freedom which was a crime under the German Criminal Code of 1871, which had remained in force continuously since its enactment. (The Nazi statute that had made it illegal to make disparaging statements about the German government had been repealed by 1949.) The wife pleaded in defence that what she had done was lawful when she did it in 1944. That is, she had not unlawfully deprived her husband of freedom, because it was made lawful by the Nazi statutes in force then. When the case came to the appeal court, although the woman was allowed her appeal on other grounds, the court accepted the argument that the Nazi statute would not have been valid if it were so contrary to the sound conscience and sense of justice of all decent human beings. If
As you read the texts, ask yourself and make notes on the following questions: What are the assumed, or hypothetical, facts of the grudge informer case? (This is very important: see The Concept of Law p. 254, and the note relating to p. 204.) What is the nulla poena sine lege principle? Is it a moral, or a legal principle, or both? Why does Hart think that retroactive legislation is the better decision in the Nazi grudge informer case? What is the Radbruchean position? What does Harts response to the grudge informer case tell you about Harts methodology?
so, it would have followed that this statute did not make it lawful to deprive people of their freedom when they denounced Hitler, so that, at the time the defendant informed the Gestapo about her husbands remarks, she could have committed an offence under the German Criminal Code of 1871. This reasoning is along the lines proposed by Radbruch. The Nazi statute had met the formal tests laid down by the criteria of legal validity of the Nazi legal system, but was nevertheless not law because it contravened fundamental principles of morality. Hart is critical of the argument, which was apparently followed in a number of similar cases. His short criticism, to be found in Chapter 9 of The Concept of Law, is that this is too crude a way to deal with delicate and complex moral issues. The better way, he says, to deal with the problem of punishing the Nazi informers under the law would have been to do this by retrospective law declaring the Nazi statute to be invalid. Then the woman in this particular case would have been criminally liable not because when she did what she did it was illegal, but because a later statute made it illegal retrospectively. This way of looking at the problem of legally justifying punishing the woman, Hart says, brings to view the full nature of the moral issues involved. His suggested way of dealing with the matter brings another element into the equation of justification. This is that, although he thinks it was wrong to do what the woman did, he also thinks it wrong to punish a person when what they did was permitted by the state, that is, was lawful. The moral principle here, and one endorsed by many legal systems, is that of nulla poena sine lege (Latin for no punishment without law). The rationale of this principle is that if you are acting within the law at any one time then it should not be later declared that what you were doing was against the law. Make sure you understand that Hart is not saying that this principle can never be sacrificed to some other moral principle, but rather that a transgression of that principle is part of the equation, and must be taken into account in determining whether the woman should be punished. Hart says, for example,
Odious as retrospective criminal legislation and punishment may be, to have pursued it openly in this case would at least have had the merits of candour. It would have made plain that in punishing the woman a choice had to be made between two evils ...
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Harts arguments can be summed up in his own words. What follows are his moral reasons for preferring the wider, positivist conception of law that separates law from morality by declaring all rules formally identifiable by reference to the factual test of the rule of recognition. These quotations are also to be found in Chapter 9 of The Concept of Law:
What surely is most needed in order to make men clear sighted in confronting the official abuse of power, is that they should preserve the sense that the certification of something as legally valid is not conclusive of the question of obedience A concept of law which allows the invalidity of law to be distinguished from its immorality enables us to see the complexity and variety of these separate issues; whereas a narrow concept of law which denies legal validity to such rules may blind us to them.
It is important to note how this section in The Concept of Law gives insights into Harts approach, his methodology (see Chapter 2 of this subject guide). The title of his book The Concept of Law, and his Preface (in which he claims he is writing an essay on descriptive sociology), suggest he aims to describe. But this section indicates that, whether he is aware of it or not, he has other than descriptive grounds for choosing the wider conception of law over the narrow. Perhaps he should have called his book A Conception (or Theory) of Law. You should also be aware of the remainder of the Harvard Law Review debate, which continues on the theme of Harts minimum content of natural law. Also you should be aware of Fullers reply, well covered in the secondary sources, although well worth reading in the original if you can obtain a copy. His book The Morality of Law is not long, and provides insights and, above all, is readable. You should be aware of the internal and external aspects of what he terms the laws morality.
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Summary
According to positivism, the grudge informer acted legally but immorally. According to natural law, her immoral action did not afford her a legal defence. Hart says the positivist way of understanding the position is better because it rightly allows the grudge informer a defence. If that defence is morally weak in comparison with a moral requirement that she be punished, a retrospective law will be necessary to remove the defence altogether. The advantage of doing it this way will show that something the rule of law is being breached in doing what, overall, is morally right. This argument suggests that Hart thinks positivism must be justified by reference to its producing in practice morally better results than natural law. If so, that implies that there is a moral basis to his theory of positivism.
7.3 The eight principles of the inner morality of law

Essential reading
Fuller, L. The Morality of Law. (New Haven: Yale University Press, 1970) [ISBN 0300010702] 3344; 91151; 187242. Guest, S. Why the Law is Just [2000] Current Legal Problems 31. Hart, H. Essays in Jurisprudence and Philosophy. Chapters 2 and 16.
Harts well known criticism of Lon Fullers equally well known eight principles of the inner morality of law must be understood. These principles, which loosely describe requirements of procedural justice, were claimed by Fuller to ensure that a legal system would satisfy the demands of morality, to the extent that a legal system which adhered to all of the principles would explain the all important idea of fidelity to law. In other words, such a legal system would command obedience with moral justification. Fullers key idea is that evil aims lack a logic and coherence that moral aims have. Thus, paying attention to the coherence of the laws ensures their morality. To remind you of the eight principles of the inner morality of law; laws should:
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be promulgated not be retroactive be general be clear not be inconsistent not require the impossible be congruent (consistent) with official action be reasonably stable (that is, not change too frequently).
As you are doing the reading: constantly ask yourself if Hart is really understanding the spirit of Fullers theory. If you go through each of the eight (plus one) principles below, consider whether there is a moral principle underlying each one. For example, why should laws be general? Here is a suggested answer: if laws are general, then no person gets special treatment and so there is a principle of equality behind it. Try this with all of Fullers principles and then try to formulate a general principle that encompasses them all. Does that principle accord with any sense you have about the relationship between law and justice (see Guests article, Why the Law is Just)? Does it say anything about the proper relationship between the governors and the governed?
I have added a ninth article of my own, which takes the line that:
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in the end, law is a scheme of justice.
7.3.1 Harts rejoinder to Fuller

Essential reading
Hart, H. Essays in Jurisprudence and Philosophy. Chapter 16.
Harts criticism is that we could, equally, have eight principles of the inner morality of the poisoners art (use tasteless, odourless poison; use poisons that are fully eliminated from the victims body; etc.) Or we can improvise further. We can talk of the principles of the inner morality of Nazism, for example, or the principles of the
inner morality of chess. The point is that the idea of principles in themselves with the attendant explanation at a general level of what is to be achieved (racial cleansing as a means to an end, the end being to enable the German race to fulfil its destiny) and consistency is insufficient to establish the moral nature of such practices. The eight principles are, says Hart, compatible with great iniquity. What is unfortunate about Harts criticism is that it obscures Fullers point. This is that there is an important sense of legal justification that claims made in the name of law are morally serious. At the least, the person who makes a genuine claim for legal justification of an immoral, Nazi-type legal system, must believe that there is some moral force to his claim. At its best, we believe, that when we make some claim about our law our claim carries some moral force. It is not enough simply to deny this. At least some explanation is required for our belief that this is so if, in fact, we are wrong.
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uu uu uu uu uu
describe the main arguments of the Hart/Fuller debate explain the realist criticism of positivism discuss the so-called grudge informer case discuss Harts methodology in Chapter 9 of The Concept of Law appreciate the significance of Fullers eight principles of procedural justice.
1. What are the main arguments of the Hart/Fuller debate? 2. What is the realist criticism of positivism? 3. What is the connection between the hard cases and the core/penumbra distinction? 4. What was Radbruchs solution to Nazi laws? 5. What is the nulla poena sine lege principle? 6. Discuss Harts methodology in Chapter 9 of The Concept of Law.

Question 1 Is the law necessarily moral? Compare Fullers view (the internal morality of the law) to Harts (the minimum content of natural law). Question 2 What, if any, is the point of Harts Nazi grudge informer example?

Question 1 This is a general question about the relationship between law and morality, and so directly on the point of legal positivism and the methodology involved. You obviously need to be acquainted with the minimum content of natural law thesis of Hart and you should re-read Chapter 4 of this subject guide for that. But the question also requires an understanding of why Fuller advances his internal morality thesis, and so you need to try to get the sense of Fuller. This is best done by being as critical as you can of Harts criticisms discussed above. Does Harts minimum content of natural law theory have any moral point to it? This writer thinks not, but you must form your own view. Question 2 This question, fairly common in one form or another, requires you to consider the practical and moral reasons why Hart is so keen in the grudge informer case, to preserve the nulla poena sine lege principle. Obviously, the hypothetical facts of that case must be spelt out, and then a thorough and sympathetic understanding of what Hart says in the latter part of Chapter 9 is required. Harts argument is on the laboured side, and there is plenty of room for comment.
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Reflect and review

Ready to Need to Need to move on revise first study again I can describe the main arguments of the Hart/Fuller debate I can describe the realist criticism of positivism I can discuss Harts methodology in Chapter 9 of The Concept of Law I can discuss the so-called grudge informer case I can appreciate the significance of Fullers eight principles of procedural justice.
Must revise 7.1 7.2 7.3 Morality in the penumbra of law Revision done
The Nazi grudge informer and legal positivisms virtue of clarity The eight principles of the inner morality of law
8 Raz on practical reason and the authority of law
Contents
8.1 8.2 8.3 8.4 8.5 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
The paradox of authority and Razs service conception of authority . . 101 The normal justification thesis . . . . . . . . . . . . . . . . . . . . . 102 Exclusionary reasons: the deliberative and executive phases of practical reason . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
The authority of law and the limits of law . . . . . . . . . . . . . . . . 105 The debate with soft positivists and Dworkin . . . . . . . . . . . . . . 107 Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
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Introduction
You will recall from your study of Hart that one of the ways in which the law is not simply the gunman situation writ large is that the law is regarded as having authority over its subjects, while the gunman has no authority over his victims. Joseph Raz is probably Harts most important intellectual heir, and much of his work has been on the nature of authority and the authoritative character of law. This work has been revolutionary in political and moral philosophy as well as in the law, but in the law its particular importance owes to the fact that, according to Raz, once the authoritative nature of the law is appreciated, then the connections between morality and law can be drawn more clearly, and this serves to vindicate many positivist theses about the law, in particular Harts claim that judges exercise discretion in hard cases.
Learning outcomes
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explain the paradox of authority and why Razs service conception of authority seems to point the way to a solution of the paradox explain Razs normal justification thesis of authority, and say how authorities may be justified in issuing directives to their subjects, and how they may fail to justify authority over them say what an exclusionary reason is, and explain how it works as a device of practical reasoning using examples, explain how one can draw a distinction between the deliberative and executive phases of practical reason, and explain the force and scope of exclusionary reasons describe in step-by-step fashion how applying Razs theory of authority to the law results in the claim that the law cannot depend on moral truths, and that typical legal systems empower judges to exercise a discretion to make new law when the law makes reference to moral standards explain how, if Razs theory of the authority of the law is correct, soft positivism and Dworkins theory of law are undermined, and explain what possible responses soft positivists and Dworkin might make.
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Essential reading
Penner et al., Chapter 10: The current debate pp. 42772, or Freeman et al., Chapter 6: Modern trends in analytical and normative jurisprudence.
Jurisprudence and legal theory 8 Raz on practical reason and the authority of law
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8.1 The paradox of authority and Razs service conception of authority

8.1.1 The paradox of authority
Authorities claim the right to tell us what to do or believe. A practical authority, like the law, tells us what to do, e.g. stop at red lights. A theoretical authority, like a physicist, tells us what to believe, e.g. that the universe is expanding. Often authorities have a mixed role of telling us both what to believe and what to do, because, for obvious reasons, how we act will often turn on what we believe. Thus a medical doctor is both a theoretical and practical authority, in that if you are unwell he will tell you both what is wrong with you (what to believe) and what drugs to take (what to do). Religious authorities are also typically mixed authorities, telling you what to believe about your God and what he (or she) wants, and therefore guiding your action. The paradox of authority claims that following an authority is irrational, and goes like this: if the authority tells you the right thing to do/believe, then you should do/believe that anyway for the reasons which make it the right thing to do/believe. So the authoritys saying it is the right thing makes no difference. And if the authority tells you to do/believe something wrong, then you shouldnt follow the authority for that would lead you astray. The result is that authority seems to make no difference in any case: if the authority tells you the right thing, it is redundant, for what is right is right independently of anything the authority says, and if the authority tells you the wrong thing, then you should not listen to it. If this is right, then there is never a justification for following an authority. (People who accept this argument are called philosophical anarchists.)
8.1.2 The service conception of authority

The traditional solution to the paradox of political authority resorts to an idea about the legitimacy of power, but this solution is not very satisfactory in overcoming the paradox. The justification for political authority is thought to arise because, it is supposed (political anarchists would disagree with this), that things would be just much, much worse if there were no political authority at all. The most famous of these defences of political authority is that of Hobbes, who founded the legitimacy of the state on the supposed social contract by which men could escape the state of nature, the war of all against all. But even the legitimacy of democratic states, on this view, does not derive from the idea that the directives of democratic states are any less redundant when they tell us the right thing to do, and any less irrational to follow when they tell us the wrong thing to do. Although we may believe that democratic states are likely to get it right more often than autocratic states, the foundation of their legitimacy as authorities again turns on the idea that they are the least bad way of keeping social order, and perhaps of enhancing peoples life prospects. This is why these sorts of solutions are unsatisfactory; none touches the basic issue, which is the rationality of following authorities. Now, as an attentive reader, you might point out that the same sort of problem does not seem to attend the case of theoretical authorities. The reason you listen to a doctor is that he or she knows medicine and you dont. Thus the doctor has an understanding of the facts about your condition that you dont, and so it would seem perfectly rational for you to believe what he or she says about your condition. Indeed, it would be irrational of you to ignore the doctors advice, because you are serving your interests by learning what is wrong with you and how to deal with it. To ignore the doctor would be equivalent to ignoring what a medical textbook, which summarises centuries of laborious investigations by many people, says. Thus, if you are to act rationally in the case of your illness, you will have to rely on knowledge and understanding which you cannot acquire all by yourself. In this way, listening to the authority serves your interests in the only way your interests can be served, and to take advantage of the authority in this way is perfectly rational. This is the service conception of authority which Raz capitalises on to explain the rationality of following practical authorities like the law. For if the authority serves you by solving a problem that you are not able or likely to solve yourself then it is obviously not irrational to follow that authority, and this is so even if the authority sometimes gets it wrong, so long as it is likely to get it right more often than you are
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yourself.
8.2 The normal justification thesis

8.2.1 The balance of reasons
Normally, when we reason about what to do (reason practically), we look at all the reasons to act one way rather than another, and decide on the balance of reasons. I may be hungry, and theres a restaurant on the corner, which together indicate that I should get something to eat there, but on the other hand, the restaurant is expensive and I am skint this week, and furthermore I am trying to eat healthily, and the restaurant only serves various combinations of grease, starch, and ground meat. I weigh up these opposing reasons, and decide what to do. Of course this is a simplified example, but the model of practical reason seems impeccable. The essence of Razs theory of authority is that an authority serves you by helpfully mediating between you and the balance of reasons that apply to your situation.
Skint: slang word meaning having no money; there are numerous slang synonyms for this.
8.2.2 The normal justification thesis

A doctor mediates between you and the facts which medical science has revealed and which indicate how to handle your illness the doctor doesnt give you a short lesson in medicine, revealing all those facts to you (though a good doctor tells you what is wrong with you and gives you some idea of the nature of your condition); rather, he or she gives you a prescription. Similarly, a legislature considers all the reasons that apply in deciding, say, whether or not wills should be formalised by being written, signed and attested by two witnesses, and then passes a law one way or another, which everyone must now follow. An authority is legitimate when it actually serves you by mediating between you and the reasons that apply to you in this helpful way, and this is the normal justification thesis: an authority is justifiably an authority for you when you are more likely to act correctly on the balance of reasons that apply to you if you follow the directives of the authority than if you were to act on your own assessment of the balance of reasons.
Activity 8.1
It is clear how a theoretical authority like a doctor meets the normal justification thesis, for the doctors authority lies in his or her expertise. But the application of the thesis is not so straightforward in the case of the authority of the law. On what basis might the law be justifiably an authority over you? On the basis of expertise? On some other basis? One of the things the law is said by many theorists to do is to solve coordination problems by creating conventions, i.e. to lay down a common rule where no one particular rule is required but a common rule is, such as the rules requiring one to drive on the left side of the road in some countries, but on the right in others. What might give the law authority to criminalise rape and theft? To punish crimes like rape and theft? To make traffic regulations? To impose taxes? To require the wearing of safety belts? Make notes on these questions. Feedback: see end of guide.
Summary
The paradox of authority states that it is irrational for anyone to follow an authority, because what is right to do or believe is never determined by what an authority says. Razs normal justification thesis purports to dissolve the paradox, by pointing out that it is rational to follow an authority if the authority is in a better position than you to understand the reasons that apply to you, an obvious example being the case of a doctor and patient.
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8.2.3 The scope of authority

It is one of the features of Razs account of legitimate authority that the law does not have equally justified authority over all of its subjects in all areas of law. It would, for example, have no justified authority over a road safety expert regarding the wearing of safety belts. And it may have very little authority over any of us when it purports to lay down laws concerning sexual morality. Some view this as a defect of Razs account, for the law appears to claim equal authority over all in all areas that it regulates, and this would suggest that the legitimacy of an authority is an all-or-nothing proposition. But others find this aspect a virtue of Razs account. The law, by its nature, claims authority in all it does, but it is also generally believed that the law does not have equal authority in all the areas it chooses to regulate. For example, many people do not think the state has any authority to deny people pleasures that cause no harm to others, such as gambling, using prostitutes, or taking drugs, while perfectly accepting the laws authority to punish crime and regulate traffic.

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explain the paradox of authority and why Razs service conception of authority seems to point the way to a solution of the paradox explain Razs normal justification thesis of authority, and say how authorities may be justified in issuing directives to their subjects, and how they may fail to justify authority over them.
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8.3 Exclusionary reasons: the deliberative and executive phases of practical reason
The notion of authority fits into a broader, more general picture of practical reasoning which Raz constructs. The core element of that picture is the exclusionary reason. Recall that normally, when reasoning what to do, we act rationally if we decide on the balance of reasons. We have seen, however, that sometimes we should follow the directive of an authority rather than decide on the balance of reasons ourselves. When we do this, we take the authoritys directive as an exclusionary reason. By that, we mean that we follow the directive, not the balance of reasons as we have assessed it the authoritative directive is a reason for acting which excludes our acting on the balance of reasons directly.
8.3.1 Separating the deliberative and executive phases of practical reason

What exclusionary reasons do is provide a means to allocate the deliberative and executive phases of practical reason to different occasions or different people or both. The deliberative phase of practical reason is the consideration and weighing up of the reasons that bear on the issue, and coming to a decision about what to do. The executive phase is acting on the basis of that decision. Consider the procedures of a body like a student law society, deciding how much to subsidise tickets to its summer ball. Various factors are considered, such as how much money the society has, what other projects the money could be spent on, how many extra students a subsidised ticket price will attract, and so on, and decides on a subsidy, perhaps by majority vote. This decision ends the deliberative phase of the practical reasoning process. Now we pass to the executive phase: the various officers of the society organising the ball must now treat the issue of the subsidy as decided, and implement the societys decision. They must treat the societys decision as an exclusionary reason governing their behaviour; they must not re-consider all the factors that went into the decision and then act on what they themselves would decide. If they did that, the societys decision would have been pointless, for it would not, practically speaking, have decided anything. Exclusionary reasons work in the same way in respect of judicial decisions. Lawyers for the parties are entitled to make representations to the judge, but once the judge decides, the deliberative phase is over, and the parties must then act on what the judge orders, taking his decision as an exclusionary reason. If the parties were free to
Think of exclusionary reasons as a certain technique of practical reason which is employed in committee decisions, judicial decisions, and much else.
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act on what they thought was the right result in law, it would defeat the whole purpose of bringing the dispute to court. Similarly, when Parliament passes a law following debate, the law must henceforward be taken as an exclusionary reason for action by the subjects of the law. In this way, the separation of the deliberative and executive phases of practical reason and the issuing of exclusionary reasons provides for the coordination of behaviour by different people who share general goals and values but where it is unlikely that this coordination can be achieved by people acting on their own assessment of all the relevant facts.
Activity 8.2
How does the notion of an exclusionary reason explain the binding force of promises? Feedback: see end of guide.
8.3.2 The force and scope of exclusionary reasons

Authorities have the right to issue authoritative directives based upon their deliberation on the relevant facts. They are justified in doing so (often they are not not all de facto authorities are justified, or de jure, authorities) when their directives are more likely to reflect the balance of reasons than are their subjects deliberating on their own. But it is important to notice the nature of exclusionary reasons in order to understand their force and scope. In the first place, exclusionary reasons replace all the reasons that would otherwise be balanced in coming to a decision, because the exclusionary reason represents those reasons as the conclusion of a deliberation which took those reasons into account. Thus it is wrong to think that an authoritys directive is just another reason for a subject of the authority to add to the balance of reasons as he or she considers. That would be to double-count reasons the authoritative directive has already taken all the reasons into account, and so cant be added to them in any rational fashion by a further balancing exercise. This explains the peremptory force of exclusionary reasons they are meant alone to determine what is to be done. But exclusionary reasons concern action, not thinking. Nothing in the exclusionary reason stops a subject from considering the balance of reasons, or speaking about them, so long as the subject accepts that he or she is not entitled to act on those deliberations. This is clear in the way that politicians accept the authority of the law. Opposition parties often continue to criticise a law long after it has got onto the statute book, but they do not, typically, counsel the subjects of the law to break the law because they believe it is wrong. And when, rarely, they do so, it is regarded as defying the authority of the law, and this is taken extremely seriously. Finally, exclusionary reasons have scope. They only cover those reasons which were considered in the deliberative process. This is why the discovery of significant new evidence is grounds for upsetting a trial decision, though obviously it is no easy matter to decide what counts as significant. No trial could be determinative if its decision could be upset by pointing out insignificant or minor facts which were not brought to the courts attention. Similarly, exclusionary reasons are not exclusionary to the extent that the process of deliberation was somehow faulty, if, for example, the judge was drunk, or a clear error of reason is evident. (A clear error is not the same thing as a great error a clear error is one in which it is obvious that something has gone wrong, as, for example, if a judge applied a statute that had been repealed.)

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say what an exclusionary reason is, and explain how it works as a device of practical reasoning using examples, explain how one can draw a distinction between the deliberative and executive phases of practical reason, and explain the force and scope of exclusionary reasons.
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Summary
Practical reasoning can be broken down into two stages, the deliberative and the executive, i.e. the stage at which a decision is made what to do, and the stage at which that decision is implemented. Decision-making bodies like committees are authorities in that the results of their deliberations are taken as exclusionary reasons which are meant thereafter to govern the actions of those people subject to them. This analysis shows how authorities are an important kind of technique or device of practical reasoning in social contexts. The directives of authorities have the force of the balance of reasons their deliberations represent, and have a scope limited by those reasons. Directives lose their exclusionary force due to faults in the procedure by which they were arrived at.
8.4 The authority of law and the limits of law

As we have seen, Razs theory of authority and the normal justification thesis explain how the paradox of authority can be overcome, so that it can be rational to follow an authoritys directives. We have also looked at some of the bases upon which the law might claim to have authority, such as expertise, the ability to solve coordination problems by setting conventions, and so on. Now we must look at how this theory of the authoritative nature constrains what counts as a good theory of the law.
8.4.1 The law claims authority

You will recall from Chapter 4 that a theory of law must take into account how the officials and subjects of the law conceive the law, for the law is an intentional practice, and what people think theyre doing is part of what defines what theyre doing: explaining what chess is involves explaining that the players understand the moves as moves in a game, as opposed to, say, pushing oddly shaped figures around a chequered board to make pretty patterns. It is indisputable that the law claims authority, i.e. it claims the right to lay down rules which subjects of the law are expected to comply with, whether or not those subjects believe the law is just or unjust, wise or foolish. This claim is reflected every day in the practices of legislators, judges, lawyers and legal subjects. Under Razs theory of authority, this is a claim by the law to mediate between the balance of reasons and its subjects, by deliberating on the balance of reasons and laying down rules for its subjects to follow.
8.4.2 The limits of law

Because the law has this authoritative character, the law is limited by the bounds on what can constitute an authority. In particular, the law is a body of authoritative directions. Thus a law cannot serve as a law unless it can serve as an authoritative direction. From this apparently straightforward consequence of the authoritative nature of law, Raz draws a very significant conclusion what the law is on any particular point cannot depend upon moral arguments or what morality would dictate to be the right answer. The argument proceeds as follows: 1. In order for an authority to be an authority at all, it must be capable of mediating between the balance of reasons and its subjects. 2. The way an authority mediates in this way is to deliberate over the balance of reasons, and then lay down a directive (which can be more or less vague, e.g. a rule or a more general principle) which guides the behaviour of its subjects. 3. An authoritative directive does not work, i.e. cannot be authoritative, if it does tell the subjects what they are to do; in particular, it doesnt work if its effect is merely to make them weigh up the balance of reasons by themselves. So for example, when one is faced with a moral dilemma, such as whether to take up a career opportunity that will take one away from ones family a great deal, a moral directive to do the right thing is useless as an authoritative directive, because it doesnt
Different legal systems manifest different attitudes to, and procedures for dealing with, civil disobedience, but the when the law treats civil disobedience differently from normal criminal behaviour, it claims to decide this for itself this is an expression, not a self-denial, by the law of its supreme authority.
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provide any guidance to the subject as to what to actually do. It merely instructs the subject to weigh the balance of reasons. Authoritative directives must make a practical difference to their subjects.
4. With respect to the law, the law is only authoritative when it tells its subjects in more or less specific terms what to do. If a directive requires the subject to determine for himself what the law requires, then the law is not being authoritative, and such a directive would not count as law. It follows that a law which requires the subject to act according to what morality dictates is not authoritative, not really a legal directive, because morality is controversial and in order to sort out what this law is, the subject will have to weigh all the relevant considerations himself to determine what to do. 5. Nevertheless, there are directives of this kind in the body of law. The law may require its subjects to act fairly and reasonably in certain circumstances, or perhaps in a bill of rights, state that a law will be ineffective in so far as it violates the right to life, for example. Most commentators accept that determining what these directives demand will require resort to moral argument, and thus on Razs view these can not be authoritative demands imposing duties on subjects of the law to act in certain ways. How, then, are they to be understood as powerconferring laws? Irrespective of the form in which they are stated, what these laws authoritatively direct, or authoritatively accomplish, is to confer powers on judges to make orders based upon their understanding of what these moral requirements are, and if the system treats judicial decisions of higher courts as sources of law, then judges in these higher courts will lay down specific laws as a result of exercising this power to decide on the basis of the judges grasp of morality. 6. The basis of this argument is the truism that you cant do what you cant do. Try as it might, an authority cannot direct behaviour if the behaviour it wants to direct cannot be specified. The problem is not peculiar to the controversial nature of morality the law could be made to turn on whether Goldbachs conjecture (that every even number greater than 2 is the sum of two primes) is correct, or whether the universe is expanding, although its difficult to envisage such cases. Thus the problem is the general one of the laws making reference in its authoritative directives to issues or matters which can only be dealt with by further deliberation. Such directives necessarily fail to allow the subject to proceed to the executive phase of practical reason; in which case, they arent truly authoritative directives. The most such directives can do in a system of regulation such as the law is to empower judges to make actual orders in cases or, if they are entitled to make law, lay down actual, workable, directives, within the constraints of the power, e.g., so long as the order or new law is reasonably within the bounds of what is just and fair.
Activity 8.3
Read the excerpt from Raz in Penner et al., pp. 45765, or in Freeman, pp. 41229. Explain in your own words how Raz applies his theory of the authority to the law and concludes that judges have discretion. Can you think of any ways in which this conclusion might be challenged? Feedback: see end of guide.
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8.5 The debate with soft positivists and Dworkin

Soft positivism is the view that while the law need not ever incorporate moral criteria into the law, it can do so. Notice this claim is not Razs claim, that law can make reference to morality and so empower judges with a discretion to resolve cases; rather, it is the claim that the law incorporates what is morally right. Thus soft positivism is also sometimes called incorporationalism or inclusive legal positivism. It has clear affinities with the theory of Dworkin, though Dworkin believes that the law is always ultimately dependent on what is morally right, such that any apparent law might turn out not to direct the subjects in the way it apparently does, for it is always theoretically possible that a new legal argument drawing upon a superior Herculean moral/political theory of justice could show the law always to have been mistakenly understood in the past. If Raz is right about the authoritative nature of the law, then both these theories are thwarted for, according to Raz, the law cannot be authoritative in so far as the law is not specified to its subjects prior to their getting to court, and because morality is controversial, reference to morality ensures that the law is unspecified. In order to decide what to do, the subjects of the law must deliberate themselves and, furthermore, their conclusions must be uncertain, for there is no guarantee that the court will decide the same way. For these reasons, such laws can only be construed as conferrals of power on judges to decide cases based on their own views as to what is morally right. One might respond to this by taking very seriously the form in which laws are cast. The law typically directs its subjects to act justly or reasonably, and it would violate the sense of these laws to construe them as giving powers to judges. If this argument is taken up, it leads one to suspect that Razs theory of authority has gone wrong somewhere, and a critic should try to specify where. Recently Dworkin (in his article Thirty Years On, 2002) has attacked Razs theory of authority with the following argument: Raz is wrong to claim that in our ordinary understanding of authority, an authoritative directive cannot incorporate a moral standard, and that issuing such a directive would not make a practical difference to the behaviour of its subjects. For they would now be required to reflect carefully on the moral standard the law imposes before they act; thus the law would make a practical difference to their behaviour, and they would claim they were following the law when they acted on the basis of this reflection. Presumably Raz would reply in the following way: True, the directive in this case has made a practical difference, but not the right one. The law did not require its subjects to reflect on morality before acting, such that if they did so they would be regarded as complying with the law; rather, the law required them to act on the moral standard as correctly understood. There is nothing the subject can do to ensure that they comply with that. They are not relieved of liability if they prove that they reflected on the standard before acting, and so the practical difference in their behaviour is not matched by what the law tells them to do. Therefore to treat this law as an authoritative directive must be mistaken. As a conclusion, Razs general antipathy to the position of the soft positivists and Dworkin can be framed in this way: Raz thinks it is absurd to say that what the law is, i.e. what it is right now and what binds the subject of the law, may be something no one has ever thought of before, including the legislature and all the judges. It might be something completely unpredictable from the point of view of the legal subject. Yet this is what the soft positivists and Dworkin believe, for in tying what the law is to what the truth of morality is, the law is as open-ended as the ultimate moral truth is. It would be as absurd to say that the law right now might be what science may discover the ultimate truth of the universe to be. No one can direct their behaviour on this speculative basis, no matter in what way laws are framed. By pointing to the facility of judges to decide all cases before them, though constrained by moral and other values, Raz attempts to show how typical legal systems normally empower judges not only to apply the law, but to modify or expand it or otherwise make new law to meet particular cases.
For detail of Dworkins theories, and his ideal Judge Hercules, see Chapter 11 of this guide.
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Summary
For an authoritative directive to be valid, it must be possible to follow it according to its terms without having to resort to deliberating about the problem the directive was created to solve. According to Raz, laws which make reference to what morality requires are invalid as authoritative directives, for they require subjects of the law to solve the problem themselves, for they will themselves have to weigh up the moral reasons in play. Thus laws making reference to what morality requires can only be understood as directives empowering judges to give concrete orders in particular cases, or to create concrete laws, orders or laws which can be followed by people without further deliberation. Since it seems all legal systems contain laws of this kind, it follows that all legal systems empower judges to do this, which vindicates Harts claim that judges typically have the power to exercise their discretion to make law in certain cases.

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describe in step-by-step fashion how applying Razs theory of authority to the law results in the claim that the law cannot depend on moral truths, and that typical legal systems empower judges to exercise a discretion to make new law when the law makes reference to moral standards explain how, if Razs theory of the authority of the law is correct, soft positivism and Dworkins theory of law are undermined, and explain what possible responses soft positivists and Dworkin might make.
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Coleman, J. and Shapiro, S. (eds) Oxford Handbook of Jurisprudence and the Philosophy of Law. (Oxford: Oxford University Press, 2002) Chapter 3 (Andrei Marmor), Exclusive legal positivism, Chapter 4 (Kenneth Himma), Inclusive legal positivism, and Chapter 10 (Scott Shapiro), Authority. Dworkin, R. Thirty years on; a review of Jules Coleman, The Practice of Principle, 115 Harvard LR (2002), pp. 165587. Penner, J. E. Legal reasoning and the authority of law in Meyer, L. et al. (eds) Rights, Culture and the Law. (Oxford: Oxford University Press, 2003) [ISBN 0199248257] pp. 7197. Raz, J. The Authority of Law. (Oxford: Clarendon Press, 1979) [ISBN 0198254938] especially Chapter 1: Legitimate authority and Chapter 2: The claims of law. Raz, J. The Morality of Freedom. (Oxford: Clarendon Press, 1986) [ISBN 0198248075] Part I: The bounds of authority.

Question 1 Razs theory of authority completes Harts project, for it explains the importance of Harts secondary rules, in particular the rule of recognition, as devices of practical reasoning that makes the institution of law effective. Discuss. Question 2 What are the reasons for and against the claim that judges typically have a discretion to make new law in hard cases?

Question 1 This question requires a brief recapitulation of Harts theory of law, in particular as framed as the union of primary and secondary rules, and his explanation of the different rules of duty-imposing and power-conferring rules. This should be followed with an examination of how this fits with Razs theory of authority as a device of practical reason, showing how the analysis of practical reason into deliberative and executive phases illuminates the way legislatures and judges act, and how their directives can be taken as exclusionary reasons for action. As the question suggests, the rule of recognition should be given particular attention: contrasting with Harts
original claim that the rule of recognition is power-conferring, Raz claims it imposes a duty upon officials to identify laws of the system. Given the peculiar nature of the rule of recognition, as essentially a matter of fact but at the same time the chief rule of the legal system, the rule can be seen to embody, or be the clearest manifestation of, the claim to authority that the law makes, i.e. that it determines what shall be regarded as an authoritative directive applying to its subjects. Question 2 This will involve a discussion of Harts and Dworkins views, and the views of any theorist, like Coleman, who has argued in detail for the soft positivist position, and will require a weighing of these views against those of Raz. The general structure of Dworkins theory, including his reference to the rights thesis, the right answer thesis, and the role that moral and political theory plays in Hercules adjudicatory technique should be discussed. Razs theory of authority should be presented in outline, but his argument that judges typically have the power to make law where the law is unsettled should be presented in detail.
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Reflect and review

Ready to Need to Need to move on revise first study again I can explain the paradox of authority and why Razs service conception of authority seems to point the way to a solution of the paradox I can explain Razs normal justification thesis of authority, and say how authorities may be justified in issuing directives to their subjects, and how they may fail to justify authority over them I can say what an exclusionary reason is, and explain how it works as a device of practical reasoning I can, using examples, explain how one can draw a distinction between the deliberative and executive phases of practical reason, and explain the force and scope of exclusionary reasons I can describe in step-by-step fashion how applying Razs theory of authority to the law results in the claim that the law cannot depend on moral truths, and that typical legal systems empower judges to exercise a discretion to make new law when the law makes reference to moral standards I can explain how, if Razs theory of the authority of the law is correct, soft positivism and Dworkins theory of law are undermined, and explain what possible responses soft positivists and Dworkin might make.
Must revise 8.1 8.2 8.3 8.4 8.5 The paradox of authority and Razs service conception of authority The normal justification thesis Exclusionary reasons: the deliberative and executive phases of practical reason The authority of law and the limits of law The debate with soft positivists and Dworkin Revision done
9 Practical reason and law
Contents
9.1 9.2 9.3 9.4 9.5 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112
What is a norm? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113 Standard classifications of norms . . . . . . . . . . . . . . . . . . . . 115 The Hohfeldian characterisation of legal norms . . . . . . . . . . . . . 118 Following rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120 The variety of hard cases . . . . . . . . . . . . . . . . . . . . . . . . Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . 123 126
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Introduction
This is a nuts and bolts chapter, which is largely aimed at getting you to acquire a more sophisticated understanding of terms and ideas that you will already be very familiar with from your life in general and your legal study so far. While you no doubt use the words right and rule all the time, here we will look carefully at the way rights and rules work, and consider some of the philosophical puzzles to which they have given rise.
Learning outcomes
By the end of this chapter and the relevant reading you should be able to:
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explain what a norm is, and the way in which rules, rights, duties and powers are norms, drawing upon Razs theory of exclusionary reasons explain what the terms general and special, in personam and in rem mean when applied to norms explain the differences between the will or choice and interest theories of rights explain in outline the Hohfeldian concept of legal norms, in particular its emphasis on correlativity, and be able to explain each of the eight foundational elements and point out some of the theorys shortcomings explain Harts practice theory of rules and its deficiencies describe how trying to understand how we follow rules can give rise to a philosophical paradox, what rule scepticism is, and explain how Wittgensteins ideas might contribute to resolving these problems explain the classical notion of equity give examples of different sorts of hard cases, explain why they can give rise to theoretical difficulties, and suggest the different ways in which judges and lawyers can respond to them.
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Essential reading
Penner et al., Chapter 13: Hohfeld and the analysis of rights, pp. 595647, and Chapter 14: Legal reasoning pp. 649717. Freeman et al., Chapter 6: Modern trends in analytical and normative jurisprudence.
Jurisprudence and legal theory 9 Practical reason and law
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9.1 What is a norm?

A norm in the broadest sense is nothing more or less than a standard against which human behaviour or some other event is assessed. In statistics, one speaks about a norm as a central tendency in a data set, or of a normal distribution. In law and morality, however, norm has a more particular meaning: a norm is a standard with which we expect someone to comply and by which we judge someones behaviour in moral or legal terms. Thus norms have a dual aspect, though an internally related one, of both guiding behaviour and being used as a standard for judging behaviour.
As this section will draw upon what you learned in Chapter 8 on Razs theory of exclusionary reasons, it is best to review section 8.3 now.
9.1.1 Rules and orders

The most obvious cases of norms are rules and orders. Although the distinction is vague at the borderline, rules are usually conceived of as general directives that apply to more than one instance, such as the law requiring income earners to pay income tax. They are obviously normative, in that they guide the behaviour of subjects of the legal system, who are in turn judged by whether or not they comply with the rule. In contrast, orders are usually one-off norms that guide the behaviours of one or a defined set of persons on one occasion, as, for example, a judges order to a defendant to pay the plaintiff 1,000, or a lieutenants order to his platoon to charge the enemys position. In Razian terms, both rules and orders are to be taken as exclusionary reasons by the persons to whom they are directed.
9.1.2 Rights
Rights are norms expressed from the perspective of the individual. It is possible in some cases to translate a norm framed in terms of a right or power into a rule: for example, the right to life is easily treated as equivalent to a rule prohibiting killing. Yet the formulation of norms in terms of rights has a point, not only because it allows for simpler descriptions of the way particular norms guide behaviour and serve as standards for judging behaviour, but because rights frame norms in terms of the interests of individuals which justify the existence of those rights. Unlike rules, then, rights tend to name the interest or value which is the reason why the right exists, as in the right to life or free speech or to be paid 10 for services rendered under a specific contract. Rights are normative in an obvious way, in that rights correlate with duties. (We will look at the correlativity of rights with duties in greater detail, in section 9.3.) If I have a right, then someone must be under a duty to guide their behaviour in some respect of the interest the right names. Thus my right to life entails that others are under a duty to act taking into account my interest in life; typically, by not taking my life. Notice that because rights tend merely to name an interest, they rarely specify on their face the exact contours of the rightduty relationship that defines what the right really amounts to. The right to free speech is not a right to say anything you want at any time, for there are laws of secrecy and laws of defamation and laws against speech which incites racial hatred. Your right, then, does not extend to a correlative duty on the government to respect your speech when you break any of these laws, and so a right to free speech does not encompass a right to defame someone. In general then, we see the normativity of rights in terms of the normativity of their correlative duties. Indeed, this must be the case in terms of those rights which do not protect anything the right-holder might do, but rather a state or position hes in, such as being alive (the right to life) or being unharmed and unrestrained (the right to bodily security). You cannot exercise your right to life as you can your right to free speech. But in regard to those rights which can be exercised, rights to free speech or religion or assembly, and so on, which are all rights to liberties, rights can be normative in another way, in that they can be seen to establish a standard on the behaviour of the right-holder, which can guide his behaviour and by which he can be judged. Because rights are instituted to protect the interests of individuals, they entitle individuals to act in reference to their own interests. In particular, to return to Razian terms, they entitle (though they do not require) individuals to decide to act solely on the basis
Of course, there may be good moral as well as legal reasons for doing this can you think of any? Hint: consider the value of autonomy.
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of their own interests, rather than on a more general balance of reasons which takes into account the interests of others. This is particularly clear in the case of legal rights. On the balance of reasons, it might be immoral for you to post naked pictures of yourself on the internet, but nevertheless you have the legal right to do it. It is in this sense that exercising your rights can appear to be selfish or at least self-centred, and it also explains the idea of having a right to do wrong. In this sense, the normative impact of the institution of rights to liberties is to lower the standard by which people must act, and would otherwise be judged, from that of acting on the whole balance of reasons, to acting only on the balance of reasons that affect their own interests. As we have seen with the right to free speech, the existence of the right does not mean it is an unlimited right. Specific restrictions upon a right may be instituted for the very reason that an unlimited entitlement to act only on the basis of your own interests is incompatible with social order note that I did not say incompatible with the rights of others this is a common but mistaken formulation. We could all have equal rights to kill each other. The problem in such a situation is not that our rights are not equal, but that it would give rise to complete social disintegration. All systems of rights reflect some general sense of the limits that must be imposed on allowing individuals to act purely on their own sense of their own best interests, in order to preserve a working or, more hopefully, flourishing, social order.
9.1.3 Powers
A power is a normative capacity or ability to create, alter or abolish the norms (rights, rules, duties or other powers) that would otherwise apply to oneself or others. A legislature has the power to make new laws, or amend or abolish old ones. A judge has the power to make orders. Individuals have the power to enter into (and agree to terminate) contracts, make wills, and so on. Unlike rights, which can be to states of affairs such as being alive, powers are always powers to do something; powers are exercised. Powers are often confused with rights to liberties, but they are very different. One may have certain powers in respect of which one has no entitlement to consider ones own interests at all some powers are entirely governed by ones duties. A judge has the power to issue orders, but this power is governed entirely by the duties of the office. Of course, it is in one sense true to say that a judge has the right to make an order disposing of a case, but this is misleading if it suggests that the judge is able to do so because it reflects our concern for the interests of judges. The judge has the power as an essential aspect of his or her task as a judge to dispose of cases. And in this sense he or she has no right to make orders, but only a duty to do so when properly demanded in the present case. Think also of your power to write a cheque and so order your bank to pay money to someone. You may be under an obligation to exercise that power because of a judges Court Order. Powers must be distinguished from rights and duties because typically one has both rights and duties that apply to the exercise of ones powers. You have the general property right to dispose of what you own as you wish, a right which allows you to use your power to transfer title to property to anyone you wish. But if you use that power to transfer Blackacre so as to defeat the interest of your mortgagee, then you have breached your contractual duty with the mortgagee not to do so. The main normative importance of powers is that they identify actions which the law specifically makes effective to make positive changes in the norms that apply. The law favours the practice of individuals making contracts, wills, and marriages, of legislatures passing statutes, and of judges making decisions in cases, and so provides a recognisable means for doing so. There are, of course, other ways of giving rise to norms, which do not count as the exercise of powers. Some norms arise by operation of law, that is, the law regards certain norms as arising purely on the basis of certain facts. Thus when you beat someone up you will, by operation of law, now be liable to pay damages to compensate for the harm you caused. Tortious and criminal liability are the classic examples of norms arising by operation of law, though there are many others (constructive trusts, estoppels, loss of rights through passage of time by limitation acts, a duty to report
Blackacre: a conventional lawyers term for a hypothetical piece of land.

income to the Inland Revenue in the year it was earned if you earned income, and so on). The law does not give rise to rights to sue a tortfeasor for the reason that this would be a good technique by which tortfeasors could transfer money to their victims. Thus you do not have a power to transfer money to people by running them down with your car, and it would be perverse to look at running someone down as a novel way of conferring a benefit on them. You have a duty not to run people down, and their right to bring an action against you if you do is to provide for their compensation. Powers, then, are abilities to alter norms whose exercise the law in general favours and provides for.
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9.1.4 Duties
The normativity of duties is obvious. Duties are exclusionary reasons, in Razian terms. Notice that duties can correlate to rights, or can be imposed simply by rules for a host of reasons. Many of the duties we have under the law are not clearly associated with any particular rights. For example, duties under the road traffic laws can, in one sense, be thought of as correlating to the rights of others not to be injured, and while of course road safety is an important concern, these duties can also just be seen as the result of putting in place a reasonable scheme to facilitate traffic flow. The facilitation of traffic flow is in everyones interests, but we do not organise our thinking on this issue in terms of the publics or any particular persons right to a working road network.
1. What is a norm? 2. Explain the normativity of rules, rights, powers and duties. 3. In what respect are rights to liberties norms which suggest self-interestedness or selfishness? 4. Explain the difference between the normative effect of powers and the way in which norms may arise by operation of law.
Activity 9.1
Hart famously criticised Kelsens theory of law (the subject of Chapter 10 of this guide) in the following way: Kelsen regarded the basic form of law as a permission to officials (e.g. judges) to impose a sanction upon individuals when they committed a delict. He therefore held a sanction theory of law. But, argued Hart, on this basis, one cannot distinguish a tax from a fine. Look again at the distinction between norms arising by operation of law and the operation of powers, and try to explain Harts criticism. Feedback: see end of guide.
Delict: an infringement of a law. See also Latin in flagrante delicto = [caught] in the very act of committing an offence.
9.2 Standard classifications of norms

9.2.1 General and special norms
We can distinguish between norms which apply to everyone, and norms which have a much more restricted scope. Consider the right not to be killed in comparison to the right to be paid 10 under a contract. The first is a general right. Its origin lies in the recognition of such a right by the legal system, either in legislation or the common law, and it applies to all subjects of the legal system. Contractual rights, on the other hand, are special, in that they arise because of a specific transaction between legal subjects, and apply to particular, specifiable persons. Although the distinction is most often applied to rights, it can be used to distinguish all kinds of norms. For example, legislated legal rules are typically general, whereas court orders, specific directives that are given by judges and addressed to specific litigants, are special. The duty not to trespass on the property of others is general, whereas the duty owed to ones contractual partner to carry out some work under the contract is special. The power to make a will is general, but the power of an agent to enter into contracts or sell property on behalf of his principal is special.
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9.2.2 Norms in rem, norms in personam

In rem and in personam are Latin phrases which attempt to mark the distinction between norms that make essential reference to things and those that make essential reference to individuals. Property rules, rights, duties and powers respecting land or chattels are the most obvious example of norms in rem. Ones property right to a car, say, exists only so long as the car exists, and in ones legal relations to others in respect of ones property right it is in terms of the way they interact with ones car that is the essential aspect of the right: they are, for example, under a duty not to take, or damage, ones car. By contrast, rights in personam do not depend upon the existence of any particular thing. A duty to perform work under a contract is a right in personam. And where a norm in personam does make reference to a thing, the existence of the thing is not essential to the norms existence. A contractual duty to transfer 100 or a specific piece of property, say a piano, exists whether or not one has any money or has possession of the piano. The distinction between norms in rem and norms in personam is quite intuitive, though stating in precise terms what the difference is has troubled many theorists.
Activity 9.2
Give an example of: a. A general right in rem. b. A special right in rem. c. A general right in personam. d. A special right in personam. Feedback: see end of guide.
9.2.3 The choice or will versus the interest theory of rights

Hart made numerous contributions to jurisprudence, and in this chapter we will look at (a) his will or choice theory of legal rights and (b) his practice theory of rules (see section 9.4.1). According to Hart, a legal right is not equivalent to a benefit guaranteed by law. A right is power-like in that it is capable of exercise, and in consequence, legal rights may or may not be exercised by their bearers; their exercise turns on the decision or choice to do so by their bearers, and as such count as expressions of their bearers wills. This theory does have some intuitive resonance. We do speak of exercising our rights, and it does seem to explain examples such as the position of third party beneficiaries under a contract at common law. At common law, third parties may benefit from the performance of a contract, but are not regarded as having any right to enforce the contract, nor any right to their benefit under it, even though the benefit arises through the performance of a legal duty by a contracting party. Hart argues that this can be explained by distinguishing legal benefits from legal rights on the basis that the latter are enforced at the choice of the bearer. Despite the initial attractions of Harts theory, most theorists now follow MacCormick and Raz in preferring an interest theory of rights. As MacCormick famously pointed out, on Harts theory some of the most important legal rights, like the right to life, are not rights because their bearers cannot waive them: We are all accustomed to talking and thinking about some rights as inalieanable. But if the will theory is correct, the more they are inalienable, the less they are rights (see MacCormick, 1977). The will theory also cannot account for the rights of those who cannot enforce their rights on their own behalf, such as children, or animals, if animals have rights. According to the interest theory, a person has a right not when he has an exercisable power to enforce his will, but rather when an interest of his is protected by the imposition of a duty on another or others. Thus a right exists when both (1) an important interest is at stake, and (2) there is some appropriate relation between the interest bearer and another or others such that the latter should be under a duty to serve, or protect, or not act so as to harm, that interest. On this theory, a right is waivable when it is in the interest of the bearer that it should be, and this makes sense because it is not always the case that an individuals overall interest is served by

having each of the interests in respect of which he has a right enforced on every occasion. On the other hand, some interests, like the right to life, are never waivable for it is never in the bearers overall interests for this particular interest, in life, not to be enforced. (Or so the law presently thinks; those who believe in the legitimacy of euthanasia would describe situations in which this would not be so.) The position of the third party beneficiary under a contract is explained by the interest theory in this way; at common law, only the interests of the parties to the contract were regarded as important. A contracting party, A, could enforce a contract with the result that a third party, B, benefited, but the contract was regarded as being enforced for As interest (including As interest in seeing B benefited), but not for Bs interest. Bs benefit was just a side-effect of As interest being enforced, and so B was not regarded as having any rights under the contract.
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Summary
Norms are standards of behaviour with which we expect people to comply. Rules, rights, duties and powers are all examples of norms, though they are differently framed. Rights can be general, being held more or less by everyone, or special, being held only by specified individuals, and have broad scope, such as a right in rem, which binds, or governs the behaviour of, everyone, or in personam, which binds only a specified individual or individuals. The choice or will theory of rights counts as rights only those which can be exercised by a right-holder who can choose to exercise them or not. The interest theory of rights, which is probably more in favour today, treats the essence of a right that it is framed in terms of, and protects the interest of, the right-holder, whether the right-holder can exercise or waive the right or not.

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explain what a norm is, and the way in which rules, rights, duties and powers are norms, drawing upon Razs theory of exclusionary reasons explain what the terms general and special, in personam and in rem mean when applied to norms explain the differences between the will or choice and interest theories of rights.
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9.3 The Hohfeldian characterisation of legal norms

Hohfeld wrote early in the last century, and his characterisation of legal norms is a product of the times; he followed in the footsteps of such early American Legal Realists as Oliver Wendell Holmes, who tried to frame legal norms in terms of their actual force in litigation. He therefore developed a very court-centred explanation of legal norms. This had the following essential feature: legal rights, powers, liberties, and so on, must be shown to correlate with duties, liabilities and so on of various kinds. Roughly, if I have a right, someone must have a duty; if I have a power, someone else must have a liability (i.e. there must be someone whose legal rights or duties change when I exercise my power) and so on. This polar concept of legal norms reflects the typical two-party private law litigation format of plaintiff and defendant. What he came up with, as a result of this strong correlativity thesis, was a set of jural relations which explained the interrelationship of the basic legal conceptions in terms of correlatives and opposites. In the diagram of these basic legal conceptions (Figure 1), correlations run horizontally, whereas oppositions or contradictions run diagonally.
W. N. Hohfeld was professor of Jurisprudence at Yale University. His Fundamental Legal Conceptions as Applied in Judicial Reasoning was published in book form in 1919.
Right (claim right)
Duty
Liberty (privelige)
No-right
Power
Liability
Immunity
Disability
The first thing to notice is that all of those conceptions in the left-hand column are sometimes called rights. If one has a legal claim against Y, one can be said to have a right against Y. If one has a liberty, say the right to practice ones religion, then one may be said to have a right that Y (or any number of Ys) not interfere. A power to make a will is also sometimes called a right to make a will. And an immunity, such as an immunity not to be prosecuted in England because one is a diplomat of another country, can be said to be a right not to be prosecuted. Hohfeld was keen to distinguish one use of right from another.

The first sort of right, in the top left corner of the first square, right in the strict sense according to Hohfeld, is a claim right: the right of X to demand of Y, who is under a correlative duty, that Y should act in some way. A liberty (which Hohfeld idiosyncratically called a privilege) is a right to do something oneself: if X has a right to speak freely, or to enter contracts, or to vote, he has a liberty right, or just a liberty. Very importantly, notice that this sort of right does not correlate with any duties upon anyone else; on the Hohfeldian analysis it is an error to say that my right to assemble correlates with your duty not to break up my meetings. Rather, it correlates with your no-right that I not assemble; this awkward terminology is adapted from the notion that my liberty to assemble exists because you have no right that I dont. And heres where the notion of jural opposites comes in. A no-right is an opposite of a right, and a liberty an opposite of a duty, because:
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if you have no right that I not assemble, then you dont have a right that I dont assemble; this seems obvious enough, but it is important to realise that Hohfeld regarded a no-right as a genuine jural conception it is not just the absence of a right, but the opposite of a right and if I have no liberty to assemble, then I must have a duty not to assemble.
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The same working of correlatives and opposites applies mutatis mutandis to the second square of jural relations.
9.3.1 Problems with Hohfelds analysis

The point of Hohfelds analysis is to clarify the different normative relations that can exist and to provide a systematic set of terms which can be used to avoid confusion. In this respect the system can probably be regarded as a total failure. Almost no one in law or legal philosophy regularly or consistently employs Hohfeldian terminology, for several reasons. First of all, the system is extremely counter-intuitive and fiendishly difficult to operate correctly. For example, we regularly pair rights to do something (liberties in Hohfelds scheme) with duties on others not to interfere with us when we do that thing; thus we say that my right to assemble correlates with your duty not to break up my meetings; but this is impermissible on Hohfelds scheme, for liberties cannot correlate with duties. In Some Professorial Fallacies About Rights ((19723) 4 Adelaide LR 377), Finnis, while arguing that Hohfeldian analysis can be illuminating, also shows in various ways why people are prone to get into a muddle when using it. The second major problem is simply that it is not clear whether the analysis delivers a true representation of legal norms. Why should an analysis which is supposed to clear up confusions be so counter-intuitive and hard to work? This strongly suggests to some theorists that Hohfelds analysis is more like a dogma, a re-ordering of our beliefs about rights rather than a more precise description of them. Consider, for example, whether Hohfelds prohibition on a liberty right correlating with a duty makes sense on the interest theory of rights, described above. On the interest theory, my right to speak freely protects my interest in free speech, and correlates with your duty not to interfere with me when I speak. On the Hohfeldian scheme, we would have to declare this correlation of liberty right and duty a mistake. We would rather have to explain first that the primary jural conception that applies when I have the liberty to speak is that others have no-right that I dont. But one may well wonder what the point is of looking first to the interest of others in my speech when the interest protected is my interest in speaking without interference. Finally, Hohfeld holds the view that in the case of rights in rem, such as a right to Blackacre, the owner of Blackacre does not have a single right of property, which others are under a duty to respect (not to trespass, etc.), but rather that the owner has an individual right in personam against each other person in the legal system, and they are each under an individual duty in personam, not to trespass, etc. While this analysis purports to solve the problem of devising a workable distinction between norms in rem and norms in personam, it does so by abolishing the distinction. In doing so, it appears merely to generate other problems in understanding the nature of property rights and other rights in rem (see, for example, Penner 1997a, 1997b).
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Summary
Hohfelds scheme of jural correlative and opposites imposes an order on the different shades of meaning that accompany the term right, distinguishing claim rights from liberties, powers and immunities. It is not clear, however, that the scheme genuinely reflects the concepts as they operate in the law. In particular, it may not be justified to deny that liberty rights can correlate with duties.
Activity 9.3
Consider the following situation: Erica has an easement a right of way across Bens garden. She often slows her pace on her way to admire Bens flowers, which annoys Ben. One day Ben blocks Ericas access to her right of way, and Erica, in response, brings an action in court seeking an injunction requiring Ben to remove the obstruction, and damages. Describe as best you can the legal situation in terms of Hohfelds basic legal conceptions. Feedback: see page 152.
9.4 Following rules

Rules are one of the most important means by which people coordinate their activities. Complex activities with a particular value or point, such as games, or bureaucratic administration, essentially depend upon rules to function at all. Obviously the law too relies heavily upon rules to function. Indeed, prior to the humanist re-orientation of morality which occurred during the Renaissance and the Enlightenment, there was no rights-based way of looking at morality or law which would have served as the basis for legal reasoning. Rules, principles, orders, and so on, were the only tools upon which a legal system could draw. In Chapter 8 we looked at rules from the perspective of Razs theory, as exclusionary reasons, which reflect the balance of reasons that apply to a situation (or type of situation). The following of these rules constitutes the executive phase of practical reason, which comes after the deliberative phase, which results in laying down the rule. Here we look at two other perspectives on rules, Harts practice theory of rules, and the question of understanding what rules require us to do.
9.4.1 Rules as reasons and the practice theory of rules

As you may already appreciate from your study of Hart, rules play a central role in his theory. Hart emphasised that the following of a rule could not be treated merely as a behavioural regularity. It is a rule that we stop at red traffic lights, but not a rule that we go to the cinema every Friday, even if we go through red lights more frequently than we fail to go to the cinema Fridays. The difference, Hart pointed out, lay in our attitude towards them. There is social pressure to conform with rules, and we criticise people for breaking them, whereas no such similar pressure or criticism attends a failure to, say, go to the cinema each Friday. Thus, reasoned Hart, rules can be distinguished from mere behavioural regularities because rules are practices of a particular kind, practices which are attended by social pressure to conform and criticism when people deviate. Unfortunately, this practice theory of rules fails on several counts.
Activity 9.4
Read the excerpt from Raz in Penner et al., pp. 65355, and explain in your own words the three reasons Raz gives for rejecting the practice theory of rules. Feedback: see end of guide.
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9.4.2 Understanding and following rules: the influence of Wittgenstein

The question to be addressed here is, how do we know we are following a rule correctly, and how do we criticise others for failing to follow a rule? This might seem like a trivial question, but consider the following case. You and I sit down to play chess, as we have done many times in the past. But this time my behaviour seems strange to you, because I start moving the bishop as we formerly moved the knight, and I move the knight as I used to use the bishop. You ask me to stop that, and play by the rules. But I reply that I am. I say that these are the rules of chess: when you are under 25 years of age, one moves the knight and bishop as we did before, but when you are over 25, one moves them as I am now doing, and I turned 25 yesterday. How are you to respond to that? Heres the paradox of rule-following this example generates. There is nothing in our past behaviour which shows that this wasnt the rule we were following, because before today playing with the knight and the bishop in the former way was perfectly right under my understanding of the rule as well as yours. You might try to avoid the problem by reformulating the rules of chess to avoid this result, by offering a new interpretation of the rule, and so on, but as Wittgenstein demonstrated, this is hopeless, for one follows rules in interpreting formulations and interpretations, and I could just as easily avoid the intention that lies behind your reformulations by interpreting them as I wish (interpreting your words as having different meanings, and so on). Of course you could provide further interpretations of these interpretations, but that will just go on forever. Because of these sorts of considerations and all philosophers regard these points raised by Wittgenstein as points which have to be addressed some people become rule-sceptics, i.e. they dont believe that rules actually guide peoples behaviour. There have been legal theorists who are rule sceptics of various kinds, most notably some American Legal Realists and, more recently, some critical legal scholars (see Chapter 16). Certain American Legal Realists argued that judges are not really bound by rules, and that they could manipulate rules in such a way as to get the results that they thought provided the best result in the case. You should realise something of the plausibility of this perspective, for in reading legal cases you will have come across occasions where different judges interpret a statutory rule or a rule of the common law in very different ways, yet all claim that they are giving effect to the rule. The considerations above could provide a philosophical basis for pointing out that rules are flexible, and can be manipulated to generate the result one desires. However, we do notice that rules seem to have some effect, and rule sceptics generally try to show why the decisions of judges tend to be reasonably consistent even though this consistency cannot be put down to the constraint of following rules; critical legal scholars, for example, typically argue that whatever consistency there is in the case law can be attributed to the fact that lawyers and judges share the same ideological, i.e. socio-economic and political, outlook. They bring this shared outlook to the cases they decide, and it is because of that, they claim, the law has remained reasonably coherent. Wittgenstein, however, was no rule sceptic. He argued, rather, that following a rule did not consist in extending a string of past applications of the rule each time we apply the rule, nor in our following some bullet-proof formulation or interpretation of what the rule required. The philosophical details are quite complicated (and controversial) but the general approach is to point out that following a rule reflects something akin to an ability. To understand a rule and be able to follow it is primarily a matter of knowing how to do something, rather than knowing that this string of past cases exists, or knowing this or that formulation of the rule. We are capable of following rules and understanding what they require in a particular case because we share the same judgments about what counts as doing something in the same way, what counts as a relevant similarity and what counts as a relevant difference. On this knowing how view of rules, the paradox dissolves. The considerations that seem to make rule-following paradoxical arise because we are looking in the wrong place to see how we follow rules.
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Understanding rules this way, however, does not merely dissolve the paradox. It also tells us something about the nature of rules. In particular, it emphasises that rules are devices of practical reasoning, which are used to do things with a purpose in mind. Therefore, rules do not apply in every sort of circumstance that may arise. Rather, rules serve a purpose in those situations in which it makes sense to follow them. Rules are defeasible. Hart, who was aware of the work of Wittgenstein, also made this point, when he talked about rules having a core area of application, and a penumbra of uncertainty. Thus a rule which states, No vehicles in the park, applies perfectly well to bar cars and lorries from the park, which is the sort of traffic the makers of the rule had in mind when the rule was instituted. But it may not apply easily at all to other cases; the case of scooters, the case of emergency vehicles on the way to a rescue, the case of citizens who wish to mount a vintage car as a statue. Wittgenstein would say that it is part of a mistaken mythology of rules that they should self-apply in every possible circumstance. We apply rules, and we can see where their application is doubtful or problematic. (Note: accepting this point does not resolve the dispute between Hart and Dworkin in Harts favour, on the basis that Wittgenstein showed that there were gaps in the law, i.e. those areas where rules do not apply straightforwardly. For Dworkin does not claim that there is never uncertainty or doubtfulness in the application of legal rules, but rather that a judge may always determine a right answer in a case, not by showing the true meaning of any particular rule, but rather by showing that there is, in the principles and theoretical resources of the law, a true answer to the question, what is the law on this point?)
Defeasible: capable of being defeated, overturned or made void.
Penumbra: a less distinct region surrounding a core area. The word derives from the Latin word for shadow.
Summary
Harts practice theory of rules, by which a rule is said to exist where there is a practice of acting, deviation from which attracts criticism, is deficient for not being able to distinguish rules from generally accepted reasons, and for failing to reproduce the normativity of rules, which doesnt depend upon whether they are practised or not. Wittgensteins consideration of rule-following denies that rules are standards which are logically dictated by past precedents, or by unmisinterpretable formulations of what a rule requires; rather, we follow rules and understand deviations from a rule because we share a practical understanding of what counts as going on in the same way given the context and our purposes. Rules are defeasible in the sense, roughly, that they do not apply to cases which lie outside the context in which the rules achieve the practical purpose we intended.

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explain in outline the Hohfeldian concept of legal norms, in particular its emphasis on correlativity, and be able to explain each of the eight foundational elements and point out some of the theorys shortcomings explain Harts practice theory of rules and its deficiencies describe how trying to understand how we follow rules can give rise to a philosophical paradox, what rule scepticism is, and explain how Wittgensteins ideas might contribute to resolving these problems.
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9.5 The variety of hard cases

The purpose of this short section is merely to point out some of the different ways in which a system of rules, like the law, can generate cases which are difficult to decide. The commonplace that rules generate hard cases has been realised from antiquity; both Aristotle in ancient Greece, and Aquinas in the thirteenth century, understood this, and both articulated the classical notion of equity. This concept of equity (not to be confused with the English jurisdiction of the Court of Equity) holds that justice requires a departure from the rules in some cases. Justice according to the rules must be tempered with equity, to do perfect justice. Here then, are some different kinds of hard case:
1. Where the rules lead to an unjust or harsh result

This is the sort of case where the classical notion of equity most clearly applies. It is also the case where judges of the common law are most apt to argue that the differences in the case require them to make an exception to a common law rule or principle. On the other hand, such cases also give rise to the slogan hard cases make bad law. The slogan is a warning about creating ad hoc exceptions to the rules just because the result seems harsh. Sometimes it is just to leave people with the bad consequences that follow from applying the law; consider the ancient common law slogan, The law does not bend to protect fools. Otherwise the law might become so riddled with exceptions and be regarded as so susceptible to judicial modification that no one could say with certainty what the law required, and no one could plan his affairs taking account of the law.
2. Where the rules require a difficult judgment in their application

Often the law uses broad or abstract considerations, such as reasonableness, in framing its rules, and applying such considerations requires judgment, and it may be far from easy to decide many cases. Consider a case like Bolton v Stone [1951] AC 850, in which the question to be decided was whether a cricket club had unreasonably failed to address the risk of injury when a passer-by was struck by a cricket ball hit out of the ground, even though only six balls had been hit out of the ground in the last 30 years. Positivists sometimes mistakenly treat this sort of case as one where a judge must exercise his discretion to reach a decision, but this is not so. Rather, it is simply a very difficult case of judging whether the risk of injury was so low as to make it reasonable to do nothing, taking into account that if the risk occurred, as it did in this case, the injury was likely to be severe. There is simply no easy answer here.
3. Where the rules conflict

This happens fairly frequently in the law. Sometimes, the rules formally conflict, as where there are opposite rules arising from the decisions of different high courts. The law often provides means of dealing with conflicts of this kind. For example, there is the hierarchical structure of the courts, in which a House of Lords decision prevails over any conflicting decision given in a lower court; should a conflict be found in the rules provided in different statutes, the rule of the later statute prevails, and so on. Sometimes a court must merely judge which rule to be the more important. For example, in Midland Bank v Green [1981] AC 513 the court was asked to apply an equitable principle to read down the rules of a land registration statute, to prevent a person who knowingly entered into a transaction at an extreme undervalue from defeating someone elses interest in land. The principle was in clear conflict with the rule, and the judge did not merely say that a statutory rule always defeated a judgemade principle. Rather, he judged that the strict reading of the registration rule was necessary for the workability of the registration scheme as a whole. The rule was, in this context, simply more important than the principle. Much more common than these formal conflicts, where the different rules would dictate different decisions in the cases, are what might be called pragmatic conflicts between rules. These are cases where the rules of the system apply more or less straightforwardly to give a result, but appear to violate the general principle of justice than like cases should be decided
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alike. The rules, taken together, make the law look unprincipled and haphazard. Such a sense might in part have underlain the decision in Donaghue v Stevenson [1932] AC 562; it might have seemed to the majority that it was just too unjust to allow the purchaser of a bottle of ginger beer who was poisoned by it to recover from its manufacturer, but not the woman for whom he bought it.
4. Where two or more different rules could plausibly underlie a series of cases or a statutory provision
This is common. As we have seen in our look at Wittgensteins examination of rulefollowing, a set of past decisions cannot logically show that only one particular rule justified those decisions. In some cases, two or more rules with different purposes could plausibly account for the decisions. The same can be said for determining what rule a statutory rule formulation actually requires. Rule formulations can be interpreted in different ways. If you are a Hartian positivist, you may say that such cases may require the judge to develop the law, making new law. If you are a Dworkinian, you will argue that the body of law, properly theorised, will reveal which rule is correct.
5. Where the scope of the rule is uncertain

This difficulty typically arises in complex legal systems, often in the case of statutory provisions. Sometime statutes try to avoid this problem by defining terms such as property or person for the purposes of applying the statute only. But often it is difficult to know whether a court decision or a statutory provision concerning some legal concept or legal rule is meant to apply only in one area of law, or across all areas of law in which the concept or rule has application. So, for example, does a court decision that abstracting electricity without the consent of the electricity company constitutes theft mean that electricity is a new kind of property, to which all the rules, in particular the rules of private law, apply? Does a bill of rights which protects persons against unlawful search apply only to individuals, or also to companies, which are legal persons?
Activity 9.5
There has been much controversy as to whether corporations, as legal persons, can be criminally liable for murder or manslaughter. Assume you are a judge faced with the issue of whether a railway corporation can be criminally tried for the death of passengers in an accident caused by a broken rail, which resulted from the deliberate decision of the directors not to invest more money in track maintenance. What considerations would you bring to bear in making your decision? Feedback: see end of guide.
Hohfeld, W. Fundamental Legal Conceptions as Applied in Judicial Reasoning. Ed. Cook, W. W. (New Haven: Yale University Press, 1919) (originally published in 1913, 23 Yale LJ 16 and 1917, 26 Yale LJ 710). This book was re-issued in an expensive edition by Dartmouth Publishers, 2001. [ISBN 185521668X]. Raz, J. Practical Reason and Norms. (Oxford: Oxford University Press, 1999) [ISBN 0198268343]. Penner, J. E. The analysis of rights 10 Ratio Juris (1997a) 30015. Penner, J. E. The elements of a normative system, Chapter 2 of The Idea of Property in Law. (Oxford: Clarendon Press, 1997b) [ISBN 0198260296] pp. 731.
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References
MacCormick, N. Rights in legislation in Hacker, P.M.S. and Raz, J. (eds) Law, Morality and Society: Essays in Honour of H.L.A. Hart. (Oxford: Clarendon Press, 1977). Penner, J. The Idea of Property in Law. (Oxford: Clarendon Press, 1997a) pp. 2331. Penner, J. Hohfeldian use rights in property in Harris, J.W. (ed.) Property Problems: from genes to pension funds. (London: Kluwer, 1997b) p. 164.

The material you have looked at in this chapter is of value not only in its own right, but as a basis for thinking about the concepts and ideas that underpin the legal theories that have been presented in other chapters. It is therefore important that you return to this chapter when you review the theories of Austin and Bentham, Kelsen, Hart, Dworkin, and others. When you return to these questions you will be able to give richer answers than you are in a position to do now. Question 1 Any legal theory relies on a conception of fundamental norms. Discuss. Question 2 What is a right? Question 3 Once one understands the nature of rules, one is driven to the conclusion that law is more than a system of rules. Discuss.

Question 1 The law is a normative system, which generates its guidance by issuing rules and instituting rights, duties, and so on. Any theory of law must address the normativity of law, and so will typically explain the nature of rules and rights, duties, and so on, in a particular way. A good answer to this question might oppose command theories of law, with their characterisation of duties in terms of liabilities to sanctions, to theories such of that of Raz, who argues that norms must be explained as reasons of a particular kind, exclusionary reasons. You might also address the way in which different theories explain how the law deals with hard cases or conflicts of rules, opposing Harts to Dworkins theory for example, or consider Dworkins claim that his theory of law is right-based rather than duty-based, and how the role of Judge Hercules in his theory works to explain the nature of legal rights (see Chapter 8). Question 2 This is a simple question to make an essay plan for, but not an easy one to execute. You must, of course, consider Razs treatment of rights as exclusionary reasons, discuss the interest and will theories of rights, and address Hohfelds characterisation of rights. The difficulty is judging which aspects of these different perspectives on rights generate an improved understanding of rights, and which seem to make false claims about rights or which seem to obscure the nature of rights. This, alas, you must try to do yourself, but a good starting point is to consider cases or statutes with which you are familiar, and try to show how they can be explained using one or other theoretical perspective. As a comparison, you might also try to answer What is a duty? or What is a rule? Question 3 This question could be taken as directly addressing the HartDworkin debate, and that is perfectly acceptable. Pointing out some of features of the hard cases we have considered, one might point out that the limitations of rules require judges either to have a law-making power, or that judges must have recourse to considerations like moral and political philosophy to act effectively. A broader framing of the answer might address rule-scepticism, and consider whether the statement implicity adopts a rule-sceptical stance. Such an answer might draw in the theories of American Legal Realists, critical legal scholars and others, such as, perhaps, feminist legal theorists and critical race theorists. On this broader framing, one might consider more generally the claim that legal decisions are driven by ideology, not a calculus of rules, and here one might also consider Marxist theories of law. On any approach, it is necessary to discuss the nature of rules as described by Raz, Hart and Wittgenstein.
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Reflect and review

Ready to Need to Need to move on revise first study again I can explain what a norm is, and the way in which rules, rights, duties and powers are norms, drawing upon Razs theory of exclusionary reasons I can explain what the terms general and special, in personam and in rem mean when applied to norms I can explain the differences between the will or choice and interest theories of rights I can explain in outline the Hohfeldian concept of legal norms, in particular its emphasis on correlativity, and be able to explain each of the eight foundational elements and point out some of the theorys shortcomings I can explain Harts practice theory of rules and its deficiencies
I can describe how trying to understand how we follow rules can give rise to a philosophical paradox, what rule scepticism is, and explain how Wittgensteins ideas might contribute to resolving these problems I can explain the classical notion of equity
I can give examples of different sorts of hard cases, explain why they can give rise to theoretical difficulties, and suggest the different ways in which judges and lawyers can respond to them.
Must revise 9.1 9.2 9.3 9.4 9.5 What is a norm? Standard classifications of norms The Hohfeldian characterisation of legal norms Following rules The variety of hard cases Revision done
10 Kelsens theory of law
Contents
10.1 10.2 10.3 10.4 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Background to Kelsens theory . . . . . . . . . . . . . . . . . . . . . 128 129
How Kelsen characterises law . . . . . . . . . . . . . . . . . . . . . . 131 Legal revolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134
Criticisms of Kelsen . . . . . . . . . . . . . . . . . . . . . . . . . . . 136 Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . 141
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Introduction
This chapter introduces you to the influential theory of law of the Austrian lawyer and philosopher, Hans Kelsen (18811973). Although he was not of Anglo-American birth, the idea of the purity of his account of law, his views on legal structure and on the general form that all laws took, and his theory of legal validity, have all become part of the Anglo-American tradition of legal positivism (see Chapter 3 of this guide). Studying his theory gives us insight into this theory and, through careful comparison, into both the command theory and Harts theory. In particular, Harts rule of recognition has significant similarities with Kelsens famous Grundnorm. Useful insights into methodology arise from studying Kelsen, and many scholars are repelled by what they see as a formal, morally cold and over-descriptive account. Fans of Kelsen think that what he says about laws structure rightly emphasises how law is at its best, which is in being rigorously clear, guiding and independent of anything controversial, such as moral statements.
Grundnorm just means ground norm or foundation norm in German, and because it is a proper noun, in the German fashion, it takes a capital letter G.
Learning outcomes
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describe in detail each of the two major parts of Kelsens theory: law as a specific technique of social organisation and the theory of the Grundnorm explain the following Kelsenian terminology: Grundnorm, transcendental, epistemological, norm, ethical-political postulate compare and contrast Kelsens Grundnorm with Harts rule of recognition explain Kelsens theory of validity and its relationship to effectiveness explain Kelsens theory of revolution, applying that theory to some constitutional cases of illegal change of government explain Kelsens views on the unity of the legal system comment, using your own view, on the general usefulness of Kelsens theory.
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Essential reading
There is nothing like reading Kelsen himself. There are good extracts in Freeman. The best commentaries on Kelsen are by Hart, Raz and Harris.
Harris, J. W. Legal Philosophies. (London: Butterworths Law, 1997) second edition [ISBN 0406507163]. The chapter on Kelsen is a good start to understanding Kelsen. Davies, H. and Holdcroft, D. (eds) Jurisprudence: Text and Commentaries. (London: Butterworth, 1991) [ISBN 0406504288]; Chapter 5 contains the essential original works by Kelsen. Raz, J. The Concept of a Legal System. (Oxford: Oxford University Press, 1973) [ISBN 0198251890] Chapter 5. Raz, J. The Authority of Law. (Oxford: Oxford University Press, 1979) [ISBN 0198254938] Chapter 7 (also useful is Razs The purity of the pure theory, sufficiently extracted in Freeman at p. 308). Hart, H.L.A. Essays in Jurisprudence and Philosophy. (Oxford: Oxford University Press, 1983) [ISBN 0198253885] Chapters 14 and 15. You should read the comparison drawn by Hart between his rule of recognition and Kelsens Grundnorm at p. 292. Also, there is commentary in Penner et al. Chapter 5 and Wayne Morrisons Jurisprudence: from the Greeks to Post-modernism Chapter 12.
Jurisprudence and legal theory 10 Kelsens theory of law
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10.1 Background to Kelsens theory

10.1.1 The pure theory
Kelsens2 theory presents a consistent and coherent whole. He was a practising lawyer of great distinction, drafting the new Austrian Constitution in 1921, and writing the first detailed (and still authoritative) guide to the United Nations Charter. His theory is complex, and difficult to criticise, though it is subject to the criticisms that are directed at legal positivism in all its forms. Many of the criticisms in the secondary sources are fairly superficial, and sometimes they are clearly not based on what Kelsen said at all. Kelsens main works on legal theory are The Pure Theory of Law which was first published in German in 1934, and in English in 1960, and General Theory of Law and State, first published in 1945. There is considerable overlap between these works. Kelsens aim in producing what he called his pure theory was to enable us to think of law independently of any ideological content. Thus Kelsen would have objected to the statement Tory law is not law made by Arthur Scargill, leader of the National Union of Mineworkers, during the long and bitter miners strike in the UK in 198485, justifying breaches of recently enacted law relating to trade unions. He would have had similar objections to claims by the German Nazis that Jewish liberal law is not law. Among the key points to note in Kelsens ideas are these: 1. Kelsen says that the description of law, even although it is a set of oughtpropositions, is something different from saying what the law ought to be; that is, it is something different from prescribing the content of law. Kelsen draws a clear distinction between the content and the form of the law. So his view is that, although the description of law is a description of oughts, these certainly do not describe what the moral content of the law ought to be. So, in a well-known affirmation of the purity of his theory he defined his legal positivism in the following terms:
Legal norms may have any kind of content. There is no kind of human behaviour that, because of its nature, could not be made into a legal duty corresponding to a legal right.
You should read some Kelsen. The style is often a little unwieldy, but this is partly because much of his work is translated from German.
2. A norm, in Kelsens terms, is in essence action-directing, and should not be thought of only as imposing a duty, but also as including the idea of a permission or power, as where the norm permits or empowers the judge to do something. For example, the law may permit a judge, but does not place a duty on him or her, to impose a prison sentence up to a maximum defined by law. 3. Kelsen distinguishes between legal, moral and other norms. Moral norms are merely, in his view, propositions describing our subjective preferences for behaviour, and he is critical of natural lawyers who think that morality is something objective. Kelsen actually said that he thought that all of our moral judgments are irrational, because they could do no more than express our feelings or intuitions. In other words, and by his own admission, Kelsen is a moral relativist.
Activity 10.1
To remind yourself of important concepts that we dealt with in earlier chapters, write down a brief definition of legal positivism. Feedback: see end of guide.
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10.1.2 Mythology and obscurity in Kelsen

It is important to remove the mythology surrounding Kelsen. Although parts of his work such as his famous Grundnorm may be obscure, even these can be successfully demythologised. The rest of the difficulties are mostly due to his occasional use of technical terms of German philosophy. You can understand anything at all in Kelsen if you can understand the following. He said of his Grundnorm that since it [the Grundnorm] is only the transcendental-logical condition of this normative interpretation, it does not perform an ethical-political but an epistemological function. (This quotation comes from his The Pure Theory (1978) University of California Press ISBN 0520036921 at p. 218). See also section 10.2.3 below. The following should make it clearer and take the mythology out:
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transcendental means outside normative means a matter of rules performing an ethical-political function means for Kelsen making an evaluative statement of morality or politics epistemological (coming from epistemology, which means a theory of knowledge) means in this context making clear how we can know something.
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And so the Grundnorm is an assumption that stands outside the law that shows us how we can know what is law. Even at this early stage of this chapter you should be able to see what Kelsen is driving at. To use his example, the tax inspector acts in accordance with law because we ultimately assume that his acts have legal validity. We can contrast this case with that of the man with a gun raiding a bank. We make no such assumption that such an act is within the law. Another example is that to make sense of what we are doing, say, in a criminal law tutorial, we must have assumed that the Theft Act 1968, for example, is valid law. You have to admit that this is not a particularly difficult idea. Now have another look at how Kelsen expressed it. Apart from my point above about transcendental epistemological postulates, I suggest that you dont worry too much about words such as norm, either, since it just means rule. Kelsens terminology sometimes follows the philosophic tradition created by the great German philosopher Immanuel Kant and the ideas can be reasonably translated into clear English.
Activity 10.2
Define Grundnorm, using your own terms, as clearly as you can. No feedback provided.
Summary
Kelsen represents Continental legal positivism. He argued that law could be identified solely by its form and not its content, and so his theory, as he said, was pure. Furthermore, finding the law was matter of objectively describing a set of actiondirecting rules of behaviour, or norms, which would impose duties or confer powers on people. Morality, he said, was a matter of mere subjective opinion. Some of his language is difficult because of (a) its translation from German and (b) the technical terms used in German philosophy, but these can be easily decoded. The Grundnorm is, straightforwardly, an assumption that a set of laws is valid.
Continental = in the European rather than the English tradition. Whether England (Britain) is considered part of the Continent varies according to the context and the speaker.
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10.2 How Kelsen characterises law

10.2.1 The legal norm
It is important to note how Kelsen characterises law in general. It is necessary first to look at how Kelsen views the legal phenomena that he sets out to describe. His views are clearly laid out in the first chapter of General Theory of Law and State, the first sentence of which states that Law is an order of human behaviour which designates a specific technique of social organisation. By this he means that law is a mechanism for making people do things. Kelsen has views about the form this specific technique of social organisation takes. It is that the technique is essentially one of coercion, by the systematic use of sanctions, and is applied by agents or officials authorised by the legal order to apply sanctions. He says that these two attributes coercion and officialdom mark out what is unique about law and is what is common to all uses of the word law (when that word is used in connection with legal systems). This, he says, enables the word law to appear as the expression of a concept with a socially highly significant meaning. As a result he gives us a very specific characterisation of what a legal rule (in his jargon, legal norm) is. This is that a legal norm is a direction to an official to apply a sanction when certain circumstances arise. The key to the whole of Kelsens theory is to understand that law consists of directions to officials to apply sanctions. An immediate objection to this view would be that we do not ordinarily think of laws as being directed to the officials of a system. For example, we think of the criminal law as imposing duties upon citizens to do, or forbear from doing, certain kinds of things. Or we think of laws those governing the creation of wills, say as conferring powers upon citizens to make wills. Kelsens answer to this is simply that he is bringing to light something in the legal phenomena of which we are not normally aware, namely, that law is essentially a form of social control that proceeds by way of imposing duties or conferring powers upon officials to apply sanctions.
10.2.2 The delict

In fact, a citizen, according to Kelsen, does not strictly speaking have a norm directed at him or her at all. If a citizen does something which gives rise to the circumstances under which an official ought (or may) apply a sanction, that citizen has not done anything contrary to that norm, simply because it is directed at the officials. The citizen has instead committed what Kelsen calls, borrowing from Roman law, a delict. Kelsen say that if we take a law such as one shall not steal then everything contained in the meaning of that law is contained in the meaning of if somebody steals, he shall be punished. It is thus not necessary to refer to one shall not steal at all. Kelsen nevertheless says that it greatly facilitates matters if we do, although he emphasises that it is not a genuine legal norm. He says that he prefers to express the first norm, rather as the secondary norm, and the second norm the genuine legal norm as the primary norm. Thus, he says, only officials can genuinely break the law, because when we are speaking of the citizen we are only talking of him or her committing a delict, which is fulfilling the condition for the application of a sanction by an official. So, in one of the most famous statements of jurisprudence in the twentieth century, he says:
Law is the primary norm, which stipulates the sanction, and this norm is not contradicted by the delict of the subject, which, on the contrary, is the specific condition of the sanction.
Delict = an infraction of a law or rule. See also the Latin phrase in flagrante delicto, meaning in the act of committing an offence.
In sum, law applies to officials not to citizens. The citizen merely creates circumstances (e.g. commits theft) that trigger the legal power, or duty, of a judge to punish.
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10.2.3 The basic norm (Grundnorm)

Going up the chain of validity, or hierarchy, of law in order to find its root of title, we must at some point come to an end, says Kelsen. If we were to continue the process, then we would never be able to establish the validity of any norm, because we would have to go on to infinity. But, since we can in fact establish the validity of legal norms, then we must be able to get back to some ultimate norm that confers validity upon all other norms. This norm and it must be a norm, because only norms can confer validity on norms Kelsen calls the Grundnorm, or the basic norm. How do we come across it in practice? We get to it, says Kelsen, when we cannot, in principle, trace our chain of validity back any further. For example, if we try to trace the root of title of a bylaw, then we eventually get back to a point beyond which we can go no further, namely, to the point where we find that the bylaw was ultimately validated by Crown-in-Parliament. What is the reason for the validity of the enactments of Crown-in-Parliament? His answer is that this is just what we assume.
Kelsens argument here is a reductio ad absurdum: since we can do X, then the assumption that we go on to infinity is false.
10.2.4 Comparison of Kelsen with Austin

Activity 10.3
Write a brief summary of Austins theory (see Chapter 3). Try to get it down to its bare bones. Now divide up what you have written in terms of an answer to each of the following questions: a. What is law (for Austin)? b. What is the law of a particular legal system (for Austin)? No feedback provided. Kelsens theory is more plausible than Austins theory because the notion of a norm is much more like that of a rule than that of a command. You might consider, therefore, whether the following two advances are made on the command theory: a. the idea of a norm, imposing duties or conferring powers upon officials, replaces Austins crude idea of a predictable sanction with the psychological element of fear, which cannot distinguish the social phenomenon of being obliged from that of being under an obligation b. the source of validity of the norm rests, for Kelsen, not on the fact that its is issued by a habitually obeyed and determinate person or group of persons, but upon another norm.
A gold-mine of analysis of what we mean by legal system is Joseph Razs work The Concept of a Legal System. This book generally takes the line that legal system is not a lawyers concept, but a concept belonging more naturally to history or sociology. Do you agree?
10.2.5 Comparison of Kelsen with Hart

Kelsens basic norm is not identified as a matter of fact but is, rather, a presupposition that certain rules are valid. Kelsen explains the ultimate test of validity by saying that we, or possibly the legal scientist or jurist, presuppose laws to be valid. This leaves open the possibility of not presupposing the validity, say, of a revolutionary regime. We can simply decide not to interpret the laws of the new revolutionary regime as legally valid, whether or not they are effective, and whether or not they have general support. This cannot happen with Hart. In his view, if the officials of a legal system use a rule of recognition to identify valid law, then that is the test of validity of that particular system. The rule of recognition need not be presupposed to be valid. Hart thinks that is a waste of time. All we need do is to point to the rule of recognitions factual existence as a test of validity. We just say that it is in fact accepted as the test of validity by the officials of the United Kingdom legal system. In a sense the basic norm always has the same content. It is that the constitution should be obeyed or, in the Kelsenian way of expressing it, coercive acts ought to be applied in accordance with the constitution. On the other hand, Harts rule of recognition sets out the factual test of legal validity in any particular system, so it will differ in content from legal system to legal system.
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Consider these two general principles for understanding Kelsen: a. The basic norm is that (coercive) acts ought to be done (by officials) in accordance with the historically first constitution; it is not the fact of the first constitution. (You should be careful not to say that the constitution itself is the basic norm, because the constitution is a fact, not a norm. Rather, the basic norm is: acts ought to be done in accordance with the constitution.) b. Effectiveness is not a sufficient condition for the validity of a legal order, but it is a necessary condition.
Activity 10.4
Both of the propositions above are necessary for understanding Kelsens famous theory of legal revolution. Answer the following questions about them: 1. Give an example of an historically first constitution. 2. Give an example of an historically second constitution? How would it relate to the first? 3. Could an unwritten constitution ever be the historically first? 4. Why does Kelsen insist that the Grundnorm is not the same thing as the historically first constitution? 5. What is the difference between a sufficient and a necessary condition? (You can answer this question by using common sense examples, drawing upon the ordinary meanings of these terms.) 6. Could a legal system exist in any meaningful or useful sense even though it is no longer effective? (Think of Roman law.) No feedback provided.
Summary
Kelsen characterises law in a very idiosyncratic way. Law tells officials when and how they should apply sanctions, and so it is officials who disobey laws, not citizens, who only commit delicts. Kelsens theory of validity requires a chain of validity ultimately resting on a norm, the Grundnorm, that relies only on an assumption of validity. Kelsens theory of validity is thus different from Austins and Harts, since these two jurists pose criteria of legal validity that rest on facts, not assumptions. Nevertheless, Kelsen says that effectiveness, which is factually determined, is a necessary condition of the existence of a legal system.

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describe in detail each of the two major parts of Kelsens theory: law as a specific technique of social organisation and the theory of the Grundnorm explain the following Kelsenian terminology: Grundnorm, transcendental, epistemological, norm, ethical-political postulate compare and contrast Kelsens Grundnorm with Harts rule of recognition explain Kelsens theory of validity and its relationship to effectiveness.
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10.3 Legal revolution

10.3.1 Revolution and validity
This could be a full-scale bloody social revolution, perhaps with a period of civil war, or a simple and bloodless coup dtat whereby a new government, or an old government in a new guise, introduces a new constitution not in accordance with the previously existing one. Kelsens theory of revolution cannot be understood unless my second general principle for understanding Kelsens basic norm is understood. It is that the effectiveness of a legal system is a necessary condition for saying it is valid: Kelsen calls this the principle of legitimacy. When a revolution occurs, Kelsen says that all the old laws in force under the old regime lose their validity because the basic norm that validated them can no longer be presupposed because the old regime is no longer effective (see Kelsens General Theory of Law and State pp. 11721). Thus, he says :
A revolution...occurs whenever the legal order of a community is nullified and replaced by a new order in an illegitimate way, that is in a way not prescribed by the first order itself From a juristic point of view, the decisive criterion of a revolution is that the order in force is over-thrown and replaced by a new order in a way which the former had not itself anticipated. (General Theory, p. 117)
Be careful that you appreciate that Kelsens theory of revolution arises from his theory of the relationship between validity and effectiveness: the old laws are no longer effective; therefore, we cannot, logically, presuppose the existence of a basic norm (Grundnorm) that makes them valid. Equally, you should note that the new regime does not automatically have validity. It is effective, de facto, but that isnt sufficient to make us presuppose that a new basic norm exists. We actually have to assume the new basic norm, even if unconsciously. Note that Kelsen has to explain why it is that a lot of laws that exist under the old regime will appear to continue to exist under the new legal order. He does this by employing the idea of a tacit vesting of validity of the content of the old laws, by the new basic norm, if it is presupposed. Let us say that we presuppose the norms of the new order that is, the directions given to officials by the new revolutionary government to apply sanctions in certain circumstances to be valid. If we assume that certain of the old laws are valid, then Kelsen says we can only do so meaningfully by thinking of them as being validated by the new basic norm. So he says:
If laws which were introduced under the old constitution continue to be valid under the new constitution, this is possible only because validity has expressly or tacitly been vested in them by the new constitution the laws which, in the ordinary inaccurate parlance, continue to be valid are, from a juristic viewpoint, new laws whose import coincides with that of the old laws. They are not identical with the old laws, because the reason for their validity is different... Thus, it is never the constitution merely but always the entire legal order that is changed by a revolution. (General Theory, pp. 11718)
10.3.2 Kelsens theory of revolution applied in practice

There are several important cases in which significant reference is made to Kelsens theory of revolution. You are not expected to read them (one of them, Madzimabumoto, for example, is well over 1,000 pages long!) but you will be able to glean sufficient from the secondary sources what the main facts are. You should, however, be able to use the basic facts and basic decisions in them to work out for yourself whether Kelsen was properly described in these cases and whether Kelsens theory has any relevance at all to the proper resolution of these cases. Remember that the subject is Jurisprudence and not Constitutional Law, and if you were asked a question on Kelsen you should not

try to answer it case-law style. You only need be aware of the basic facts and the use that was made of Kelsen in the cases. The main case you should know is the first one, which was The State v Dosso PLD (Pakistan Legal Decisions) 1958 SC 533. This case is difficult to get hold of, and in London it only appears to be in the law library of the School of Oriental and African Studies. But the facts given below should be sufficient for your purposes. Some variation on these facts was repeated in all subsequent revolution cases. In 1958, the President of Pakistan, by simply issuing a Proclamation, declared the 1956 Constitution to be null and void, dismissed the Cabinet and dissolved Parliament. Shortly afterwards, he promulgated the Laws Continuance in Force Order which purported to validate all laws other than the 1956 Constitution. There were no other claims to power. The Chief Justice, Muhammad Munir, referred to Kelsens General Theory of Law and State and said (539):
If the revolution is successful in the sense that the persons assuming power under the change can successfully require the inhabitants of the country to conform to the new regime, then the revolution itself becomes a law-creating fact because thereafter its own legality is judged not by reference to the annulled constitution but by reference to its own success.
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Apply the second principle of understanding Kelsen and you see immediately that the Chief Justice is mistaken because he equates effectiveness (successfully requiring the inhabitants to conform) with validity ( becomes a law-creating fact ). A similar series of events arose eight years later in Uganda in Uganda v The Commissioner of Prisons, ex parte Matovu [1966] EA (East African Reports, also in SOAS) 5l4 and there was a similar decision. And again in Rhodesia, in Madzimbamuto v Lardner-Burke 1966 RLR (Rhodesian Law Reports) 756 it was almost the same, except that the judges said the revolution was not clearly effective and so they said the revolutionary government was illegal but that they would recognise that governments acts as enforceable on the grounds of what they called the principle of necessity since someone had to govern and an illegal government was better than no government at all. Eventually, in R v Ndhlovu SA 1968 (4) 5l5 (South African law reports), the Rhodesian courts accepted that the illegal government had become legal through effectiveness. The point in both Dosso and Uganda as far as Kelsens theory is concerned, is that each case decided a question of fact: did, in each case, the revolutionary government control? Each court referred to the doctrine of effectiveness in Kelsen as though, for Kelsen, the mere fact of effectiveness was sufficient for legal validation of the revolutionary governments acts. But this interpretation was contrary to what Kelsen actually said. Remember that he said that while effectiveness was necessary for validity, it was not sufficient, meaning that the mere fact of control was not enough.
Activity 10.5
Consider the following revolutionary scenarios, and decide what conclusions Kelsens theory of revolution would have for them: a. A rebel army seizes power and elects its commander Head of State. All opponents are killed. The commander of state rules by general decree for five years before being deposed. b. Rebels within government illegally depose the prime minister, and impose their own constitution. The balance of power is unclear for three months, until a majority of the judges clinch the matter by declaring the rebel constitution to be the valid constitution. A significant number of judges remain opposed. c. A former colony breaks away from an imperial power by declaring a constitution that is contrary to the constitution of the imperial power. The imperial power threatens sanctions, but nothing comes of it.
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d. After 80 years of communism, capitalism returns in State A. X, an heiress in A, offers up 120-year-old Government bonds for redemption. Feedback: see end of guide.
10.3.3 Harris on legal revolution

There is an interesting view taken by J. W. Harris on all this. In Legal Philosophies Harris says that the mere fact that a set of norms can be characterised in Kelsens form as a set of norms validated by a possible Grundnorm, provides suggestive force for a judge to make that decision. In his article When and why does the Grundnorm change? ([1971] Cambridge Law Journal, 125, at 132), Harris argues that Kelsens theory assumes that legal science is a socially useful activity. One argument against Harriss view is that this assumption might not be allowed within Kelsens theory. Kelsen might well have taken a strictly positivist line that recognising revolutionary governments is an impure political act and so legal science by design cannot make that move. To recognise such a government might have been to dress up an essentially political decision in legal garb, as several commentators said at the time. The alternative, favoured by Kelsen, is that where law is silent, it should be seen to be silent, so that it is crystal clear to all what is happening is politics, and not law.
10.3.4 Later cases on revolution

You could note later cases in which the Kelsenian principles have been expressly disapproved of. Perhaps the most important one is Jilani v The Government of Punjab PLD 1972 SC l39 in which the Pakistan Supreme Court overruled Dosso and said that Kelsens theory of legal revolution was merely a jurists proposition about law and did not authorise or lay down any legal norms, which were the daily concerns of judges, legal practitioners or administrators. For a similar comment you should note Lakanmi v A.G. (West) (1970) 5 Nigerian Law Quarterly l33 in the Nigerian Supreme Court.

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explain Kelsens theory of revolution, applying that theory to some constitutional cases of illegal change of government.
10.4 Criticisms of Kelsen

10.4.1 The unity of Kelsens theory
The unification of civil and criminal law
According to Kelsen, all laws are directed to officials, who are required to apply sanctions, and so no distinction is drawn between the criminal and civil law. He says on p. 50 of his General Theory of Law and State that ...the difference between civil and criminal sanction and, consequently, between civil and criminal law has only a relative character ... and on the next page, in spite of the difference which exists between the criminal and the civil sanction, the social technique is in both cases fundamentally the same. To use the one term or notion to link punishing a person for committing a murder with making a person pay damages is, as Kelsen said critically: to purchase the pleasing uniformity and pattern to which it reduces all laws, at too high a price.
All laws directed at officials

In practice laws dont seem to be primarily directed to officials. Kelsen realises this because he allows for the existence of a secondary, non-legal, norm directing citizens how to behave; remember he says (General Theory, p. 61) that One shall not steal; is contained in the norm if somebody steals, he shall be punished and then says Law is the primary norm, which stipulates the sanction. On the same page, he says: the

representation of law is greatly facilitated if we allow ourselves to assume also the existence of the first norm. But if it greatly facilitates the representation of law to talk of this first norm, why did Kelsen say it was not a true law?
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Activity 10.6
Write three or four paragraphs commenting on the two criticisms in section 10.4.1. You should consider carefully what possible advantages there could be in seeing law in these two unified ways. Feedback: see end of guide.
10.4.2 The idea of a legal system in Kelsens theory

We dont think of legal systems as changing every time there is an unconstitutional change. We dont believe that past laws continue by virtue of a tacit testing of their validity (this view is confirmed in Sallah v A.G. (1970) in Ghana, incidentally). The criticism here is that there is no logical relationship between legal systems, at least as we ordinarily think of them, and Kelsens legal orders, which are, simply, the sum total of all the laws authorised by one, unique, basic norm. For example:
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We can think of two legal systems (states) which are nevertheless dependent, in Kelsens theories, on one Grundnorm for their validity. The United Kingdom and New Zealand legal systems are separate and distinct legal systems yet the New Zealand legislature gained its legislative powers from the UK. We can think of one legal system where, nevertheless, according to Kelsens theory, there should be two. The law-making powers of the revolutionary Rhodesian legislature were not derived from the 1961 Constitution. But there seems no oddity or difficulty in just saying that there was an unconstitutional change of legislative powers within the one legal system, at least where, as in the Rhodesian case, the changes were initially very few.
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You should note that there are some unconstitutional changes that seem to change the whole identity of the legal system, such as, for example, the Bolshevik revolution of 1917. There, it would be difficult to say that the Tsarist legal system was the same one as the Communist one. Kelsens concept of law is really of the sum total of valid laws in a particular society and it is clear that this ignores questions unrelated to questions of validity, such as the history of laws, their purposes and the way that they relate to a particular societys culture and general way of living. In other words, while concentrating on laws themselves raises questions of validity, concentrating on legal systems raises questions rather of identity with particular societies, and the history of these societies.
Topic for discussion

The following question would be ideal for a short discussion among three or four Jurisprudence students: What is a legal system? Is the idea of a legal system a significant one? If so, is it significant to practical lawyers? When we think of the English legal system, we dont first think of questions of legal validity. It is more natural to think of the jury system, the Magna Carta, the notion of the fair trial or the Englishmans day in court, or the position of the Crown and its battle with Parliament over the centuries that is, with the way the system works as a whole. On the other hand, international lawyers need to be able to identify states, and it seems natural to equate states with legal systems. And, also, when we think of courts, we think of the question of what counts as legal jurisdiction, which is surely a question of validity. There is another set of questions, too, where we ask (as Fuller asked) whether it makes any sense at all to suppose that an inherently evil and wicked legal system (perhaps such as the Nazi legal system) really deserves to be called a legal system as it will lack, in Fullers terms, the moral aura and majesty that law should have.
A gold-mine of analysis of what we mean by legal system is Joseph Razs work The Concept of a Legal System. This book generally takes the line that legal system is not a lawyers concept, but a concept belonging more naturally to history or sociology. Do you agree?
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10.4.3 The possible redundancy of the Grundnorm

1. Could the Grundnorm help us to identify (i.e. distinguish between) legal systems? It does not do so if the points noted in section 10.4.2 above are correct. 2. Could the Grundnorm tell us what the valid laws of that legal system are? It might, because, as you will remember, all laws, after a root-of-title search, must be traced back to one Grundnorm. But this is a little general, since pointing to the Grundnorm of the United Kingdom, which is, coercive acts ought to be applied by officials in ways from time to time determined by custom, does not take us far. If we try to work the other way, from the laws themselves, we need some means of identifying first what the laws are. It is difficult to see how the Grundnorm helps in relation to identifying legal systems here. 3. Thirdly, perhaps the basic norm explains for us unlike Austins theory what it means to follow a rule. Remember that Kelsen thought that Austins theory wrongly derived oughts of law from the iss of the fact of habitual obedience to a sovereign. His answer was to invent the concept of a norm and to say that, since norms only exist in the world of norms, they must therefore only be validated by norms. This, of course, led him to postulate a hierarchy of norms which led him in turn, in order to avoid an infinite regression, to postulate a basic norm. Thus, the whole idea of the oughtness or normativity of law is bound up in the idea of the basic norm. Perhaps the basic norm is the ultimate justification: certainly Kelsen is led towards this by the root-of-title nature of his theory. That is, at the very end of any process of justifying criticising someones deviation from a norm, according to Kelsen you can justify it by pointing to an ultimate or basic norm that says that you ought to do this (i.e. apply coercive acts) in accordance with .... Razs article, Kelsens theory of the basic norm in Raz, The Authority of Law p. 122, is helpful for discussing this problem and for linking Hart and Kelsens work on validity. Raz says that Kelsens theory of the basic norm is a theory of justified normativity, that is, that ultimately any statement that any person makes about law must be in his own terms ultimately justified in terms of an assumption made by him that, legally, this thing ought to be done. Raz says that he sees no reason why we should accept this theory since we can more simply say that laws are normative because they consist of rules. These rules do not have any ultimate justification but are merely identified by the fact that some people say, judges and lawyers in fact identify them as laws: all we have to do in order to identify what the laws are is look to the social facts of what judges and lawyers do to identify them. Such a better theory, in order to explain how it is that legal rules arise, Raz calls a theory of social normativity and he says that Hart has such a theory. Hart makes the same point in The Concept of Law. There he says that no question of validity can arise about his rule of recognition because it is the test of what is valid. All that is necessary to do is to point to the fact that it exists. According to his theory that means to point to the factual existence of a social rule among the officials of a system which identifies what the valid rules of the system are. And, as Hart says:
To express this simple fact by saying darkly that its validity is assumed but cannot be demonstrated, is like saying that we assume, but can never demonstrate, that the standard metre bar in Paris which is the ultimate test of the correctness of all measurement of metres, is itself correct. (The Concept of Law, p. 109)
See Raz, J. The Authority of Law: Essays on Law and Morality. (Oxford: Oxford University Press, 1983) [ISBN 0198254938] p. 122.
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Activity 10.7
You will find it useful to read Razs article Kelsens theory of the basic norm before tackling this activity. a. What is the difference between social normativity and justified normativity? b. In Razs theory, who precisely is supposed to do the justification? Feedback: see end of guide.

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explain Kelsens views on the unity of the legal system comment, using your own view, on the general usefulness of Kelsens theory.

Question 1 Consider carefully Laskis famous dismissal of Kelsens theory as an exercise in logic with no application in real life. Do legal theorists have a social obligation? Question 2 Examine critically Kelsens theory of legal validity. Is the basic norm a fiction, as he once said it was?

Question 1 Harold Laski, the famous British historian, once said critically of Kelsens theory that it was an exercise in logic, not in life. All too often in answering a question like this, candidates do not consider what the question is getting at. Ignoring those candidates who think this is just an excuse to write all they know about Kelsen, it is not enough just to consider what the practical use of Kelsens theory is. You need to analyse a question like this. There are in fact three distinct questions here: 1. Is Kelsens theory of no application to real life? 2. Are theories of legal positivism in general of no application to real life? 3. Do legal theories have to have practical value to be successful? In questions like these, you will gain marks for making the examiner aware that you can unpick the various strands, as I have just begun to do. (There are other strands, too. For example, could a theorist perform a social obligation in producing something of no application in real life, as when a brilliant mathematician solves a very difficult problem which has no obvious application?) But whatever approach you take to these questions, it is necessary to give a short and accurate account of Kelsens theory. You should put the main focus on the purity aspect of Kelsens theory, since that is the bit that most people, following Laski, take to be more closely connected to logic than anything concerning real life. You might make a comment that logic does, of course, relate to real life. After all, it is logicians who are mainly responsible for the Boolean logic behind the computer language driving Gameboys and the robots in car factories, for example. But it would be wise to structure your answer around the three questions above. Q1 Examine whether Kelsens theory makes sense of some laws with which you are acquainted. Does the root-of-title theory of legal validity make some sense of aspects of the judicial review of administrative action? It seems to explain what we mean when we say someone has acted ultra vires, for example. Then it would be sensible to investigate what Kelsen means by ultimate validity and that would bring you naturally into a discussion of the Grundnorm. A reasonable conclusion might be that the idea of ultimate validity in Kelsen is too obscure to have application in real life. Q2 Here you need to broaden out. Legal positivism clearly offers a solution in revolution cases (and other cases, too) because it allows for a sharp distinction to be drawn between political and moral questions of allegiance to a revolutionary government and questions of legal validity. An account of how Kelsens theory
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works here, by referring to some of the constitutional cases in which his theory was mentioned, would be helpful, although there would be no need to dwell at great length on them. Perhaps some reference to the doctrine of necessity would suggest that legal systems can cope with such situations because there are principles of revolutionary legality (see Eekelaar, Principles of Revolutionary Legality in Simpson (ed.) Oxford Essays in Jurisprudence. Second series .(Oxford: Oxford University Press, 1973) that can bridge a gap of constitutional illegality. Q3 This question is a fundamental one about the methodology of legal theory and is difficult. But you could give a brief account of the criticisms made of legal positivism by the natural lawyers Fuller and Finnis and you could also mention Dworkins idea of interpretivism. Their general criticism is that any theory of law that attempts just to describe the legal phenomenon, assumes a picture of law and its relation to the world that is simply not true. These theorists think that reasoning about law requires that what we see to be law must be a result of our striving to see what would be the most socially useful way of viewing law. Fuller thinks it is in terms of compliance with certain procedural values, Finnis is concerned with problems of social co-ordination and Dworkin with seeing law as the assertion of individual rights. This third question is the most difficult, but it is only part of the more specific question about Kelsens theory, and so this section need not be very long (three or four paragraphs at most) but a succinct account of Kelsens methodology, with some comment, would certainly gain good marks. Question 2 This question divides into two parts. The essential bit of the first part is in the word critically. It requires a clear and accurate account of Kelsens theory of validity, and so there is no need to refer to his general characterisation of law as a specific technique of social organisation and, indeed, you would lose marks for doing so since it is irrelevant to the question asked. Then you should, of course, tell the examiner what it is about Kelsens theory that you find persuasive, and why, and/ or conversely what it is that you find unpersuasive and why. Dont fall into the trap of supposing that you are meant (by the word critically) to show the theorys failings. Critically means that you should adopt a particular attitude whereby you stand outside the theory and appraise it. It is not inconsistent with this attitude to find that Kelsens theory makes a lot of sense to you. (And, clearly, there is a lot of sense to Kelsens theory. It is not that different from Harts theory, for example.)
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Reflect and review

Ready to Need to Need to move on revise first study again I can describe in detail each of the two major parts of Kelsens theory: law as a specific technique of social organisation and the theory of the Grundnorm I can explain the following Kelsenian terminology: Grundnorm, transcendental, epistemological, norm, ethical-political postulate I can compare and contrast Kelsens Grundnorm with Harts rule of recognition I can explain Kelsens theory of validity and its relationship to effectiveness I can explain Kelsens theory of revolution, applying that theory to some constitutional cases of illegal change of government I can explain Kelsens views on the unity of the legal system I can comment, using my own view, on the general usefulness of Kelsens theory.
Must revise 10.1 10.2 10.3 10.4 Background to Kelsens theory How Kelsen characterises law Legal revolution Criticisms of Kelsen Revision done
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Notes
11 The integrity and interpretation of law
Contents
11.1 11.2 11.3 11.4 11.5 11.6 11.7 11.8 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The idea of interpretation . . . . . . . . . . . . . . . . . . . . . . . 144 145
Judge Hercules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147 Principles and policies . . . . . . . . . . . . . . . . . . . . . . . . . 148 Arguments of fit and substance . . . . . . . . . . . . . . . . . . . . 148 Concepts and conceptions: law as an argumentative attitude . . . . . . 150 The one right answer thesis . . . . . . . . . . . . . . . . . . . . . . 151 Evil legal systems . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153 Dworkin on Harts Postscript . . . . . . . . . . . . . . . . . . . . . . Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . 154 158
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Introduction
This chapter sets out the points over which candidates have in previous years had most difficulty. The important point with Dworkin is not to underestimate his subtlety and intellectual power. His theory directly contradicts legal positivism and he has spent much of his career attacking that theory, which he thinks cannot do justice to the power of legal argument. One of Dworkins problems is that nowadays legal positivism, as a theory of law, has an appeal arising from its simplicity. Dworkins theory of law has no master rule such as the Grundnorm or Harts rule of recognition or something like what the Sovereign commands, and this makes the theory hard. It is much easier, too, for someone to be told that the law is that which is identified by what the judges say than, as Dworkin says, by the best theory of what our existing legal practices justify. And legal positivism has a simple appeal in practice, too. We can argue both sides of the abortion debate from the moral point of view, but the legal debate is fairly simple. We just need to read what the Abortion Act 1967 says to learn that, whatever the moral position, in some circumstances, abortions are legally permissible. But simplicity is not the only criterion of a successful theory. Perhaps law is not so simple that a simple theory is possible. The moral of this is that throwaway lines in the examination such as Dworkin cannot be taken seriously because he says that there is only one right answer in all law cases and where would you find it?, which are all too common in the examination, are superficial. Dworkin is attacking the sort of theories which provide places which tell you what the law is, such as the Grundnorm or rules of recognition. Dworkin is difficult, but I should add, very rewarding.
Learning outcomes
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state the difference between the pre-interpretive, interpretive and postinterpretive stages of legal argument describe the role of Hercules as the ideal judge show the distinction between arguments of principle and arguments of policy show the distinction between arguments of fit and arguments of substance state the various interpretations of the House of Lords case of McLoughlin v OBrian explain and define integrity as a virtue of law and legal argument understand the conception of law as primarily about justifying legal arguments discuss Dworkins arguments against the social sources theory of law. explain the purely defensive nature of the one right answer thesis.
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Essential reading
Dworkin, R. Taking Rights Seriously. (London: Duckworth, 1978) [ISBN 0715611747] Chapters 4 and 5. Dworkin, R. Laws Empire. (Oxford: Hart Publishing, 1998) [ISBN 1841130419] particularly Chapters 3, 5 (especially pp. 16475), 6, 7, 8, 10. Guest, S. Ronald Dworkin. (Edinburgh: Edinburgh University Press, 1997) [ISBN 0748608052] Introduction.
Jurisprudence and legal theory 11 The integrity and interpretation of law
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11.1 The idea of interpretation

11.1.1 Dworkins definition of interpretation
It is best to begin with Dworkins statement that the essential idea in interpretation is making the best of something that it can be, and that this very abstract idea is to be applied to the idea of law. We can describe the idea of making the best of something in a number of ways. One way that Dworkin puts it is to say that we should place something in its best light, and assume that the thing has some point. We then examine it as thoroughly as we can to see what is the most sensible way of viewing it. Dworkin gives a good account by of his views on interpretation in Chapter 2 of Laws Empire. You will discover that he is primarily talking about constructive or artistic interpretation, and you should carefully distinguish this from scientific interpretation (which you can largely ignore) and conversational interpretation. The latter is important, since it is Dworkins criticism of the use of this form of interpretation for law that forms the backbone of his arguments about interpreting legislation. It is useful to start with Dworkins description of the simple social practice of courtesy. His account is intended to show that we adopt an interpretive attitude towards social practices, by which he means the attitude of looking for the point of the practice. Courtesy changes when interpretation, as he says, folds back into itself (see next section). He claims that the concept of interpretation is itself an interpretive concept and that the interpretation of social practices is:
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like artistic interpretation, which interprets the thing created by people as separate from them unlike scientific interpretation, which interprets things not created by people and unlike conversational interpretation, which interprets what people say (see Laws Empire pp. 42225).
Interpretive: this is Dworkins personal spelling; it is more usual to spell the word interpretative, but we will use Dworkins version here.
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In order to interpret a practice, Dworkin says, one must engage in it in a committed way. Otherwise it is only a report of various opinions that those engaging in the practice have. So interpreting a practice is the report of neither individual or group opinions.
11.1.2 Analytical attitudes

Dworkin says that we may understand a social practice in three analytical attitudes: the pre-interpretive, the interpretive and the post-interpretive. These important ideas can be described by the use of a simple example. Take the pre-interpretive attitude, first. Imagine a society in which there is a social practice requiring that men doff their hats to women. In this society, no attitude is struck towards the value of the rule. No point is ascribed to it. An interpretive step may now be described. We can now imagine that, after a while, people begin to ask questions about this practice of courtesy and what the reasons are for conforming to it. It is easy to imagine, too, that people will differ about their understanding of it and will argue among themselves about what the practice requires in particular cases. It is useful to refer here to games, such as cricket, in which a description of the rules can be distinguished from a discussion of its point. We may establish its point by asking questions like: Is it fun? Does it test skill? Is it competitive? Is it educational? Does it make money? On the other hand, when we want to know about how the different rules are interpreted we ask questions like: Does bowling include throwing? Or underarm bowling? and so on. Dworkin says there is a third, post-interpretive phase where interpretation folds back into itself and has the effect of changing the original rule. So, in our example, some people, perhaps through argument and discussion, will come to have an altered perception of the original hat-doffing rule and this altered perception will lead them to modify it. Imagine there arises a general agreement that the point of the hat-doffing
Doff: this old-fashioned word means to remove the hat as a courteous salute, for example when a man meets a woman.
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rule is that it is a mark of respect for women, because they are more moral or are responsible for bearing children, or whatever. There then might be a dispute about whether the rule should be extended, so that it also becomes a requirement to doff the hat to certain men in the society to whom respect was due say, those who were great jurists. Conversely, hat-doffing might be withdrawn from certain women who were considered not to deserve respect, such as prostitutes. These three phases of interpretation make it clear that Dworkin thinks there is a lot more to understanding a rule than merely describing it. You have, as it were, to get under the skin of the rule, and determine its point. When youve done that, you will discover that the point you ascribe to the rule will supply various principles of interpretation. Note the sceptical possibility in Dworkin that such principles could destroy the rule. Thus it is possible to imagine someone arguing that respect, properly understood, perhaps as equality of respect, was inconsistent with anything so deferential as hat-doffing, thinking that hat-doffing was a male form of curtseying, as if to the Queen. Such an argument could easily conclude by saying that the rule on hatdoffing should be abandoned. Dworkin calls this sort of argument internal scepticism (see Laws Empire, Chapter 2).
Activity 11.1
a. What does get to the point of something mean? Try to express this idea in at least three different ways, writing if necessary a paragraph to explain it, and using a least one example. b. Consider our understanding of the hat-doffing rule at the pre-interpretive phase. Is it possible to understand a rule if we dont know its point? No feedback provided.

There are various critics of Dworkins idea of interpretation. You will gain a lot (and be entertained) by reading anything that Stanley Fish has written on the subject. See his Doing What Comes Naturally (1989) Chapters 4 and 5. Perrys article Interpretation and methodology in legal theory is very good: and you should read something by Marmor. See the list of useful further reading on p. 187.
Summary
Dworkins methodology in legal theory is explicit. He thinks law consists of human practices and that the theorists job is to interpret them. Interpret means, to him, to make best sense of a practice so that we bring out its point; he calls this form of interpretation constructive or artistic interpretation as opposed to scientific interpretation which interprets things, and conversational interpretation which interprets what people mean. If a practice is placed in its best light, and no point to it can be discerned, this, to him, is the best argument for its abolition.

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state the difference between the pre-interpretive, interpretive and postinterpretive stages of legal argument.
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11.2 Judge Hercules

You should be particularly careful in understanding this part of Dworkins theory (see particularly, Chapter 4 of Taking Rights Seriously). Many people, in particular lawyers, who are introduced to Hercules in Dworkins article Hard Cases simply dismiss him by saying that no such judge ever existed. But why cannot we hypothesise the existence of an ideal judge, against whom we can measure bad or distorted legal arguments? Here a bad argument is one that, in the ideal world, a judge would not have made; a good argument is one that Judge Hercules would have made. It is necessary for Dworkin to posit an ideal judge because his theory is about law as an argumentative attitude. He has to provide a scheme of argument which, amongst other things, is sufficiently abstract to allow for controversial argument. The model of Hercules is intended to point the way to correct legal argument. It is not that there is a method which will come up with the right answer. If a problem is raised about whether there could be such a right answer, it is one about the objectivity of legal argument, not a criticism of the ideal model of Hercules. The key to what Hercules does is in the following idea:
If a judge accepts the settled practice of his legal system if he accepts, that is, the autonomy provided by its distinct constitutive and regulative rules then he must accept some general political theory that justifies these practices. (Dworkin: Taking Rights Seriously)
What does Hercules do when constructing the arguments in all the hard cases put before him? We can assume, says Dworkin, that he accepts most of the settled rules of his jurisdiction, rules which lay out for us what are the familiar characteristics of the law. For example, the constitutive and regulative rules that grant the legislature the powers of legislation give judges the powers of adjudication and the duty to follow previous cases, as well as all the settled rules of the various areas of law, such as tort, contract and so on. According to Dworkin, Hercules can produce theories underlying all these rules. Democracy, in some form, clearly underlies the legal jurisdictions of the United States and the United Kingdom. So we have there a basic justification for judicial coercion in accordance with what the legislature has required. But this is only the beginning. The justification for the common law doctrine of precedent lies in the idea of fairness, the idea of treating people in a consistent way. The justification for particular applications of statutes and the common law lies within more elaborately worked out theories, or reasons, such as (to give some examples at random):
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a theory of responsibility in the criminal law (and attendant theories about mens rea and the idea of recklessness) a theory of relevance in the law of evidence a theory of the division of capital and income in the law of taxation a theory of consideration in the law of contract.
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The list is huge and is familiar to anyone who has studied law for long enough.
Activity 11.2
Would it matter for Dworkins theory if no judge had ever existed with Hercules powers? Feedback: see page 190.

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describe the role of Hercules as the ideal judge.
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11.3 Principles and policies

Dworkin is well known for the distinction he drew between legal arguments of principle, which are arguments about a persons rights, and arguments of policy, which are arguments about community goals. The distinction is important to Dworkin:
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it is intended to be largely descriptive of the distinctions that in fact are drawn by lawyers it represents for him the line to be drawn between the legitimate jurisdictional activities of judges and the decisions of government as required by a properly understood democratic separation of legislative and judicial powers it represents his main assault on the most popularly understood version of utilitarianism.
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You should understand that principle and policy are terms of art for Dworkin. Technically, that means that he has stipulated his own particular meanings for them. He gives definitions for them in Chapters 2 and 4 of Taking Rights Seriously and in Laws Empire he accepts these definitions without modification. Policy causes difficulties for different reasons, none of which strikes at Dworkins thesis. Is the following such an absurd thing to say, however? Judges (and lawyers, and law students) know they should not decide, or argue, on the kinds of grounds that Dworkin calls policy grounds. They know that judges have a function specific to the litigants, and specific to determining the rights of those litigants. They know that the kinds of arguments relevant to making such determinations are different from those which aim at some goal independent of the litigants rights. For example, it is clear that a person has a right not to be assaulted, and it is also clear that she has no-right that the government pursue a goal of decreasing expenditure on defence.
You should read these chapters of Dworkin and make a note of his definitions.
11.4 Arguments of fit and substance

For Dworkin, legal argument in most hard cases will develop as the result of a tension between two dimensions of argument, one that argues towards a fit with what is accepted as settled law, the other that argues towards substantive issues of political morality. For example, a decision to allow damages for negligently caused injury fits the common law precedents, but where there are no precedents, a substantive argument one based on fairness, justice, reasonableness, etc. would be advanced for a particular decision. In a nutshell, fit means consistent with the settled law in both statutes and past cases. While it is the twin abstract injunctions to make the best sense of law and to treat people as equals that propel Dworkins legal and political philosophy, it is the distinction between substance and fit that forms the cutting edge, for him, of legal argument. It is necessary to follow Dworkins analysis of a case decided in the House of Lords, that of McLoughlin v OBrian (1983) 1 AC 410. In Dworkins view, substantive arguments (relating to the peoples right to be treated as equals) have to be selected to fit (the already existing case law). Mrs McLoughlin learned that her husband and children were involved in a car accident. She set out for the hospital some miles away, and when she got there she was told her daughter was dead and she saw that her husband and other children were seriously injured. She suffered severe shock and she sued, among others, the driver of the vehicle, whose negligence caused the accident. Dworkin says that Judge Hercules might begin by considering the following six possible interpretations of the case law: 1. Success (for the plaintiff) only where there is physical injury. [We can rule this out immediately because it does not fit the law of tort. It is clear from the case law that damages may be obtained for nervous shock.] 2. Success only where the emotional injury occurs at the accident, not later. [But, says Dworkin, this would just draw a morally arbitrary line.]
Morally arbitrary line: here Dworkin is attacking the idea that there is law plus moral principle. He thinks finding out what the law is, as opposed to what it ought to be, includes the relevant principle.

3. Success only where a practice of awarding someone like Mrs McLoughlin would be economically efficient. [This, Dworkin says, is a matter of government policy, and so is irrelevant to the question of the plaintiffs rights.] 4. Success only where the injury, whether physical or emotional, is the direct consequence of the accident. [He rules this interpretation out because it is contrary to fit, contradicting the clear case law, where there is a test of foreseeability which limits the liability of the person who causes the accident.] 5. Success only where the injury is foreseeable (by the defendants). 6. Success for foreseeable injury, except where an unfair financial burden is placed on the person who causes the accident. (By unfair, Dworkin means that the compensation would be disproportionately large compared with the moral blame in causing the accident.) According to Dworkin, 5 and 6 are the best contenders. To develop the analysis further:
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1 and 4 are ruled out because they contradict the requirement of fit. The claim that psychological trauma is not recoverable in a negligence action simply contradicts the line of decisions. Thus the claim does not fit the law. The same goes for the claim that Mrs McLoughlin cannot succeed because her injury was indirectly caused, since it is clear that many actions in negligence have succeeded where the injury was indirectly caused (most nervous shock cases, in fact). 2 is ruled out because it is an interpretation that relies on an arbitrary assertion that only people at the scene can recover. It is morally irrelevant to draw a distinction between what happened in the case and the same scenario occurring at the scene of the accident, since this was obviously in the aftermath of the accident (as the Court of Appeal said) and, of course, it was not as if Mrs McLoughlin was a stranger to the victims. 3 is ruled out because it relies on policy, not principle.
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Summary
Dworkin illustrates his interpretive method for judges. The method is ideal, that is to say, it is designed to illustrate what the best judging would be and so he employs the idea of an ideal judge, whom he calls Hercules. Judges should ideally not assume the role of the legislator as that is not right since judges, amongst other things, are not elected to represent the community; they must not, therefore, decide issues of policy because these aim at community goals. Their decisions should therefore fit the present law, and where there is controversy, they should resolve those controversies in favour of what treats people with equality of respect.

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show the distinction between arguments of principle and arguments of policy show the distinction between arguments of fit and arguments of substance state the various interpretations of the House of Lords case of McLoughlin v OBrian.
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11.5 Concepts and conceptions: law as an argumentative attitude

Dworkin argues that there are important contrasts between different levels of abstraction. A concept, he says, is something that can be described more or less without controversy. A concept is understood to be where agreement collects around discrete ideas that are uncontroversial employed in all interpretations (Laws Empire, p. 71). A conception is where the controversy latent in this abstraction is identified and taken up (same page). The conception is much more interesting in Dworkins view, because it represents what the interpreter brings to it, as an exercise of judgment.
Activity 11.3
Being as exact as you can, try to describe the concept of law, as Dworkin claims it to be, that is, absent of controversy. Again, in Dworkins terms, what is Kelsens conception of the concept, and what is Harts conception of the concept? Feedback: see end of guide.
11.5.1 Scepticism about interpretation

Dworkin then discusses scepticism about interpretation. A major challenge is that there is no right answer because we cannot ascribe truth to what are essentially non-provable matters of opinion. But, he says, there is no difference between saying My opinion is that slavery is wrong, slavery is wrong and that slavery is wrong is true. Only what he calls global internal scepticism threatens the enterprise of interpretation of law because external scepticism is disengaged. In Chapter 3 of Laws Empire, entitled Jurisprudence revisited, Dworkin famously declares that the point of law is to restrain governmental coercion. Coercion should only be used as licensed by individual rights flowing from past political decisions (cf. the rule of law, p. 93). There are three rival conceptions of law under this abstract banner:
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Global internal scepticism (see Laws Empire) means being sceptical about the point or purpose of law in general.
conventionalism, which enhances predictability and procedural fairness. When convention is spent, forward-looking grounds must be sought pragmatism, which is sceptical because it looks always to the future integrity, which secures equality among citizens and makes community more genuine.
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Dworkin concludes that the relationship between law and morals is not semantic but interpretive, arguing that, because we assume that the most general point of law is to establish a justifying connection between past political decisions and present coercion, the argument is just a debate among rival conceptions of law. He further considers whether Nazi law is law. His answer is that interpretations are directed towards particular cultures, and so we:
have no difficulty in understanding someone who does say that Nazi law was not really law, or was law in a degenerate sense, or was less than fully law. For he is not then using law in that sense; he is not making that sort of pre-interpretive judgment but a sceptical interpretive judgment that Nazi law lacked features crucial to flourishing legal systems whose rules and procedures do justify coercion. (pp. 103104.)
In other words, Dworkin thinks that Nazi law can be called law as long as we understand that Nazi law is not law in its fully developed sense, which includes a moral content.
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11.5.2 The argumentative attitude

A very abstract account of Dworkins approach to law is to think of his characterising a way of thinking about law that is fundamentally argumentative. Dworkin urges us not to think of law as nothing more than a huge quantity of rules. He urges us, rather, to think of law as an attitude of mind, that attitude being one of argumentativeness. This is an important and attractive feature of Dworkins work in legal philosophy. In the final chapter of Laws Empire, he says:
Law is not exhausted by any catalogue of rules or principles, each with its own dominion over some discrete theatre of behaviour. Nor by any roster of officials and their powers each over part of our lives. Laws empire is defined by attitude, not territory or power or process.
Exhausted: here the word means completed described, in the same sense as to do something exhaustively.
The sense Dworkin is getting at is the following. Observe some real, live, practicalminded lawyers at work. Arguments are what make or break their day. The invention of a new argument that makes sense, that works, is what an advocate thrives on, what a judge understands and very importantly what a law student studies.
Summary
Dworkins interpretive account of law, coupled with his use of a difference between conceptions and concepts, allows him to assess different candidates for law. He dismisses pragmatism because it doesnt make sense of rights, and conventionalism because it lacks an adequate account of community. He thinks integrity makes best sense: it accounts for rights, unites the community and allows a rich account of legal reasoning.

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understand the conception of law as primarily about justifying legal arguments.
11.6 The one right answer thesis

Essential reading

Dworkin, R. Taking Rights Seriously, Chapter 13. Dworkin, R. Laws Empire, pp. 7686. Cohen, M. Ronald Dworkin and Contemporary Jurisprudence. (London: Duckworth, 1984) [ISBN 071561813X] Chapter 8 and pp. 27578. Dworkin, R. Taking Rights Seriously, pp. 24853. Dworkin, R. On interpretation and objectivity in A Matter of Principle (1985) p. 1611.
This topic has to be treated carefully. Dworkin in fact never produced such a theory, as he believes that everyone thinks there are right answers to questions, even though they cant be proved to be right. You have to make up your own mind. But consider this: that most of what you assert, claim and argue consists of your stating what you believe to be true. Thus even when you deny the one right answer thesis, you are claiming that the following statement is true: there are no right answers. So you will always contradict yourself. You dont have to agree with Dworkin, but you must be fair to his point which is that most people act, talk, argue, speak, write, claim, assert, etc. (particularly lawyers, he adds) as if there were right answers even where there is no possible means of proving them to be right, or of satisfying all sides. Here are some common responses, none of which on close examination is any good in his view:
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To say something is true, or right, is just a matter of opinion.
Dworkin says the answer is yes, but presumably this is an opinion about whats true or right, and so this is perfectly consistent with there being a right or wrong of it.
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There arent true or right answers, only better answers, or best answers.
The answer to this, in a legal case, is that if the better arguments favour the defendant, why isnt the right answer that the defendant wins?
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There arent true or right answers when you cant prove them.
The answer to this (as stated above) is that anyone who says this doesnt think he or she can prove that there are only true or right answers when you can prove them. (This takes a bit of thinking; but just try to prove the truth or rightness of the first sentence of this bulleted paragraph.)
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If you ever say that what you say is true or right you are only doing it to persuade or convince people, but there is no real truth or rightness there.
But why would they ever be persuaded, or convinced, if they thought that what you said couldnt possibly be true, or right? And wouldnt you be more convincing if you really believed that what you said was true?
Activity 11.4
If you are not convinced by the view that there is a right answer for controversial questions, write down as many reasons as you can in favour of the view that there are no right answers in such situations. Feedback: see end of guide. After having answered the questions in the last sentence of the feedback, ask yourself whether murder is wrong because 100 per cent of people think it wrong. Is there any fundamental difference in meaning between the statement abortion is wrong and in my opinion, abortion is wrong? If there is, what is it? Is there a difference between a judgment, say, that abortion is wrong and a matter of taste, say, that Chablis goes well with trout? If so, what is the difference?
Chablis: a quality white wine from the Burgundy region of France.

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explain the purely defensive nature of the one right answer thesis.
Dworkin, R. Lifes Dominion. (London: HarperCollins, 1993) [ISBN 0006863094] pp. 207208. Waldron, J. The irrelevance of moral objectivity in George, R. P. (ed.) Natural Law Theory. (Oxford: Clarendon Press, 1992) [ISBN 0198248571] especially pp. 17678.
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11.7 Evil legal systems

Essential reading
Dworkin, Laws Empire, Chapter 3, particularly pp. 10113 and the notes at pp. 42930.
Dworkin distinguishes between what he calls the grounds of law and the force of law. The grounds of law are obtained by looking interpretively at the legal practices of some community from the point of view of a participator in those practices. It would be possible, from this standpoint, to work out how a judge in Nazi Germany might decide a case. We can call him Siegfried J. Imagine some horrific hard case under the Nuremberg laws, say, to do with sexual relations between a Jew and a true German national. We could take account of theories of racial superiority widely believed in Germany at the time to provide detailed arguments about which way the case should be decided. We could learn how to argue a case by learning the ground rules, as it were, of an evil legal system. To do this means accepting that evil law is still law. But to produce an argument from the grounds of law is not thereby to endorse it. A full-blooded political theory, according to Dworkin, requires an explanation not only of grounds, but also of the moral force of law. He adds that philosophies of law are usually unbalanced because they are usually only about the grounds of law. So, we can judge Nazi law from Siegfried Js point of view, in the sense that we can predict what he will do, in the same way as we might imagine how a magistrate, in Roman times, would decide a point of Roman law. Do not fall into traps here. Some critics, Hart notably, have supposed that Dworkin had merely created an amended, and confused, form of positivism. Thus, with some vehemence, Hart says (Essays on Bentham p. 151):
If all that can be said of the theory or set of principles underlying the system of explicit law is that it is morally the least odious of morally unacceptable principles that fit the explicit evil law this can provide no justification at all. To claim that it does would be like claiming that killing an innocent man without torturing him is morally justified to some degree because killing with torture would be morally worse.
The Nuremberg Laws on Citizenship and Race: on 30 September 1935 the Nazi regime in Germany brought into force these laws, which deprived Germans of Jewish origin of their citizenship rights and gave legal backing to discrimination against them.
Dworkins reply to this is difficult and involves several strands of argument. His main idea, I think, is an appeal to the fact that one problem of law is that we do have some duties, sometimes, to obey laws which we believe to be morally bad. Why? Because almost any structure of community power will have some moral force:
... the central power of the community has been administered through an articulate constitutional structure the citizens have been encouraged to obey and treat as a source of rights and duties, and that the citizens as a whole have in fact done so.
Is Dworkin a natural lawyer? If the question is whether Dworkin believes that making moral judgments is partly about determining whether the community has a right or duty to use its coercive powers, then he is a natural lawyer. If the question is whether he believes immoral legal systems are not law, then he is not a natural lawyer. If the question is whether he thinks that there is a natural answer out there, one which supplies objectivity to moral and legal argument, he certainly is not a natural lawyer.
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11.8 Dworkin on Harts Postscript

Dworkins general response is critical of Harts approach in the Postscript and his criticism mainly focuses on Harts statement there that:
My account is descriptive in that it is morally neutral and has no justificatory aims: it does not seek to justify or commend on moral or other grounds the forms and structures which appear in my general account of law
Dworkin says that this remark sums up legal positivism by affirming that moral judgments are not needed to identify law. Even though the law thus identified might have moral content, or may allow officials to incorporate their own moral judgments, this is what is common to all theories known as legal positivism. A noted representative of legal positivism is Harts student, Joseph Raz, together with a number of Razs own students. Dworkin says that Razs account of law that law is identified ultimately by reference to social sources is not supported by legal practice in the real world because, as you would expect Dworkin to say, lawyers characteristically debate substantive (that is evaluative and moral) claims of law. Lawyers clearly do, Dworkin says, argue for and against the claim, for example, that certain commercial practices are unfair and therefore contrary to law. But the social sources method for identifying law clearly tells lawyers that unfair practices are not contrary to law, because there is no social source a statute, or a judicial decision that prohibits them. In other words, the consequences of the social source theory are normative, for they direct a result impinging upon peoples interests; namely, they tell people that it is not contrary to law to engage in certain unfair practices. It is difficult to see how Raz could answer this argument, except by denying that lawyers argue about what the law is. In developing this point, Dworkin considers three senses in which legal theory might be descriptive.
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Legal theory may be semantically descriptive.
Dworkin says that Harts claim could be read semantically as a project to find what criteria of application of language rules lawyers would agree to be the rules they actually follow in speaking about laws prohibitions and permissions. But this project, he says, would fail because the semantic claim assumes that there are shared criteria for ascribing the law prohibits, requires, etc. and there simply are no shared criteria of application, for example, in the unfair commercial practices case.
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There may be a natural kind or type for law, as there are natural kinds in science, such as the DNA molecule, or tigers.
But, Dworkin says, Hart cannot be looking for the equivalent of a gene or tigerhood for law. It seems really odd to think of there being the equivalent of a DNA molecule, for example, for any evaluative proposition, say, such as liberty. And if there is no DNA for liberty, then it would seem that there is none for law, either.
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Hart may be engaging in empirical generalisation.
No, says Dworkin, Hart cannot have been making an empirical generalisation in the sense of making discoveries from empirical studies of the patterns and repetitions in collected data. In any case, if he were, this poses an initial stumbling block, since clearly neither Hart, nor any of his followers, has engaged in the amassing of such data. There is no empirical investigation in The Concept of Law. More importantly, if there were empirical generalisations they would fail to account for the empirical data constituted by lawyers characteristic behaviour in arguing for and against legal propositions.
Soft positivism
There are also the so-called soft positivists, such as Jules Coleman. They defend the social sources thesis for identifying law in the opposite direction from Raz, whose theory is sometimes known as hard or exclusive positivism. Their view engagingly

addresses the phenomenon of moral disagreement about which legal rules apply in particular circumstances by saying in general agreement with Harts remark that the social sources that identify the US Constitution incorporate moral standards you make a moral judgment to identify the rules identified by the social sources. In short, you resolve the unclarity apparent in the Eighth Amendments prohibition against cruel and unusual punishments by making a moral judgment as to what the social sources criterion requires. Dworkin says that this is vacuous because, first, it means only that judges should decide cases in the manner that judges should decide cases (which, in Laws Empire, he says collapses into integrity) and second, in any case, it supposes wrongly, for example in the United States, that there has to be a convention among judges that this is the way they should decide cases. To sum up these points, Dworkin says it is deeply unclear to him how Hart, or his followers, could:
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suppose that propositions about the sources thesis could be of a different logical character from ordinary propositions of law think that their project was descriptive.
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Activity 11.5
Consider soft positivism and Dworkins argument against it. Then check Harts famous definition of legal positivism on the first page of Chapter 9 of The Concept of Law and ask yourself whether soft positivism and that definition are reconcilable. No feedback provided.
Summary
Dworkin thinks there are right answers to legal and moral questions because that makes sense of the way lawyers and indeed all of us act and speak. Further, since evil and moral legal systems share common characteristics, it makes no sense to say that evil legal systems are not law, although evil legal systems will lack moral justification for coercive acts done in their name. It follows that Dworkin is not a natural lawyer, since he does not think that there is a natural morality that determines what law is, and he thinks that evil legal systems exist. But it doesnt follow from this that he is a positivist. In answer to Harts claim in the Postscript to The Concept of Law, and Razs claim that law is identified by a social source alone, Dworkin says that without a reference to what the point of identifying law with a social source is, it is impossible to find what that social source is. It couldnt be identified by the meanings of words, since we disagree about these; nor could it be identified as some sort of common element, like a DNA molecule, as there is clearly none for law; nor, finally, can Hart or Raz be making empirical generalisations because they offer no empirical evidence. Harts further claim that moral principles can be part of the law what is known as soft positivism would require, Dworkin says, making moral judgments in identifying the law, and so would be contrary to Harts definition of legal positivism.
These issues are discussed in greater depth in Dworkins article reviewing article of Colemans book The Practice of Principle: In Defense of a Pragmatist Approach to Legal Theory. (Oxford: Oxford University Press, 2001) [ISBN 0198298145] which appears in Volume 115 (2002) Harvard Law Review 1655. In particular, you will find Dworkins account of what he regards as mistaken interpretations of his work in his Appendix to this Review, entitled Points of personal privilege.

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discuss Dworkins arguments against the social sources theory of law.

Guest, S. Review of Laws Empire. (1988) Law Quarterly Review 155. Marmor, A. Interpretation and Legal Theory. (Oxford: Clarendon Press, 1992) [ISBN 0198256914] Chapters 3 and 4 (especially pp. 7384). Perry, S. Interpretation and methodology in legal theory in Marmor, A. (ed.) Law and Interpretation: Essays in Legal Philosophy. (Oxford: Clarendon Press, 1995) [ISBN 0198258755].
page 156

Cohen, M. (ed.) Ronald Dworkin and Contemporary Jurisprudence. (London: Duckworth, 1984) [ISBN 0715618172] Chapters 5, 6 and 9 (and see the replies by Dworkin at the back of this book to these three articles). MacCormick, D. N. Legal Reasoning and Legal Theory. (Oxford: Oxford University Press, 1978) [ISBN 0198760809] Chapters 4 and 11. Dworkin, R. A Matter of Principle. (Oxford: Oxford University Press, 1985) [ISBN 0674554604] Chapter 1. Fish, S. Doing What Comes Naturally. (Oxford: Clarendon Press, 1989) [ISBN 019812998X]. Waldron, J. Law and Disagreement. (Oxford: Oxford University Press, 2001) [ISBN 0199243034].

Question 1 What does Dworkin mean by integrity? How does integrity in legal decision-making serve the ends of justice? Question 2 Is there any sense in the idea that there are right answers to legal cases? Discuss with reference to a case that you think was wrongly decided. Question 3 What do you understand the difference to be between principle and policy? Can cases be decided solely on the ground of policy?

Question 1 Pay attention to the two separate questions here. The first asks straightforwardly for an explanation of Dworkins account of integrity, but the second is a more difficult question. Discuss the two senses of integrity that Dworkin uses: legislative integrity and then judicial integrity. It is easier to start by describing legislative integrity since you can then contrast justice and fairness with integrity (remember Dworkins derivation of integrity as a form of internal compromise between the requirements of justice in the ideal world and the requirements of fairness in the real world). Then it is a matter of showing that judicial integrity is the virtue that judges should have in interpreting law: they should make sense of the law by assuming that the law speaks with one voice. If you approach the question this way, you are in a position to comment on whether integrity in legal decision-making (in other words, judicial integrity) can serve the end of justice. The question is hard, as it is problematic in Dworkin what the precise relationship between justice and integrity is. At one stage in Laws Empire he appears to take the view that if integrity suggests a result that justice does not, judges may have to lie in order to bring about the right result. It is problematic to suppose that judges should sometimes lie. Waldron in his Law and Disagreement (see page 187) takes the view that integrity is a useful way of reconciling different conflicting views of justice. It is doubtful if Dworkin would like this since his view is presumably that only right perceptions of justice count, and so there should not be a reconciliation effected with anything that is unjust. Question 2 The marks for this question are in the second part. You should not attempt a question like this unless you can think of a wrongly decided case. There is an argument for being bold in an examination. Dont assume that you can only display your intelligence and knowledge by drawing upon prepared answers (indeed, this can be a recipe for disaster, where the examiner can discern you are merely parroting an essay you had previously written). Think of a case that was, in your view, wrongly decided. Say why you think so, and then consider the implications of what you say if you didnt think that what you said was true. It will be the way you handle this idea that will produce good marks for you. Here are some points to consider:
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What does it mean to say that the court got the law wrong when that courts decision is final? You could refer to the distinction Hart drew in Chapter 1 of his Essays in Jurisprudence and Philosophy (his inaugural lecture, entitled Definition and theory in jurisprudence) between a statement of the law made by a judge and one

made by anyone else.
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Is there any sense in which you could prove or demonstrate to the satisfaction of all that the court got the law wrong? By what means would you attempt to persuade, convince or otherwise bring round anyone who thought that the court was right in its judgment?
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Question 3 This question requires some subtlety in addressing the difference between how you understand policy arguments, and whether the way you understand them is the same as the way Dworkin understands them. Dworkins definitions of principle and policy are technical, which is to say they dont rely on the way these terms are ordinarily used. Much the best way of answering this sort of question is to use examples from decided cases. You can start with McLoughlin v OBrian since Dworkin uses that case, and it was a case where the Court of Appeal addressed the question whether courts, as opposed to Parliament, should decide on the ground of policy; but you will make a better case for the examiner that you have a good grasp of this area if you produce cases of your own.
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Reflect and review

Ready to Need to Need to move on revise first study again I can state the difference between the pre-interpretive, interpretive and post-interpretive stages of legal argument I can describe the role of Hercules as the ideal judge I can show the distinction between arguments of principle and arguments of policy I can show the distinction between arguments of fit and arguments of substance I can state the various interpretations of the House of Lords case of McLoughlin v OBrian I can explain and define integrity as a virtue of law and legal argument I can understand the conception of law as primarily about justifying legal arguments I can discuss Dworkins arguments against the social sources theory of law.
I can explain the purely defensive nature of the one right answer thesis.
Must Revision revise done 11.1 11.2 11.3 11.4 11.5 11.6 11.7 11.8 The idea of interpretation Judge Hercules Principles and policies Arguments of fit and substance Concepts and conceptions: law as an argumentative attitude The one right answer thesis Evil legal systems Dworkin on Harts Postscript
12 Social theory and law
Contents
12.1 12.2 12.3 12.4 12.5 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160
Thinking of law and society: encountering a case . . . . . . . . . . . . 161 Internal and external accounts, insiders and outsiders . . . . . . . . . 164 Durkheim and the consensus theory of law . . . . . . . . . . . . . . . 166 The rationalisation of the world: the analysis of Max Weber . . . . . . . 170 The transformation of jurisprudence . . . . . . . . . . . . . . . . . . 174 Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . 178
page 160
Introduction
It should be apparent that there is no single strand to contemporary legal theory, or jurisprudence. While the dominant tradition in modern Western society that this subject guide is concerned with has been a broadly liberal one originating with the breakaway from classical natural law theories with the prototype command theory of Thomas Hobbes and moving through the utilitarianism of Bentham, Austin and John Stuart Mill to the work of Kelsen, Hart, Ronald Dworkin and Joseph Raz many of the exciting insights today come from the incorporation of sociological perspectives. Those perspectives seek to find law as it really is in society rather than to deal with law on the terms that appear in the law books (whether those books are textbooks, case reports or doctrinal commentaries) or look to a philosophical analysis of law. It is, of course, impossible to do justice to the array of work being undertaken in legal theory in any one course, but the central theme of sociological accounts of law is that law can not be analysed on its own terms. Moreover, this approach says that traditional jurisprudence may be seen as an insiders view of law while social theoretical accounts are outsiders, or external accounts of the operation of law. This chapter will put the argument for conceiving of law in terms of social theory broadly, and then look in more detail at two of the founding fathers of sociology, Max Weber and Emile Durkheim. Further chapters will consider Karl Marx, critical legal studies, feminism and critical race theory, all of which can be seen as programmes that undercut the traditional canon of jurisprudence or, at least, add dangerous supplements.
Learning outcomes
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explain the difference between internal and external accounts of law (insiders and outsiders) identify the key concerns of social theoretical accounts of law describe the central ideas of Emile Durkheim and Max Weber explain how the ideas of Durkheim and Weber might be relevant to a contemporary analysis of the role of law in society.
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Essential reading

Penner, et al., Chapter 6: Classic social theory and law. Freeman, Chapter 7: Sociological jurisprudence and the sociology of law. Morrison, pp. 27590, on Weber.
Jurisprudence and legal theory 12 Social theory and law
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12.1 Thinking of law and society: encountering a case

In the example that follows, I ask what we can learn from the events surrounding the voyage of the slave ship Zong. This is one of the most infamous instances of cruelty on the so-called middle passage of the Atlantic slave trade, and the way in which this came before the English courts was equally controversial.
12.1.1 The voyage of the Zong

The facts are indisputable. The Zong was a slave ship owned by James Gregson and a number of others who were directors of a large Liverpool slaving company. In 1781 it travelled the triangle from Liverpool to West Africa and onwards with a cargo of slaves to the Caribbean, thence to return with a cargo of sugar for the English tea-houses. The Zong sailed from West Africa on 6 September with a cargo of 470 slaves bound for Jamaica. When it approached its destination some 12 weeks later more than 60 Africans and seven of the 17-man crew had died. The captain, Collingwood, had packed even more slaves on board than usual. Shyllon (1974) states that chained two by two, right leg and left leg, each slave had less room than a man in a coffin. The result was a high mortality level, for both black and white, but commentators consider it nothing like the catastrophic losses suffered by some other slave ships. The British ship the Hero, for example, once lost 360 slaves (over half of its cargo), while the Briton lost over half of its 375 slaves on one voyage. The main cause of death in the middle passage was generally a terrible dysentery that the sailors called the flux, though some slaves could be lost by being beaten to death or in the case of women, killed when resisting rape. Many slaves also tried to starve themselves to death as an act of resistance and had to be force-fed using mechanical devices that prised open their jaws. On 29 November Luke Collingwood called his officers together and put forward the suggestion that sick slaves should be jettisoned thrown overboard in order to secure the rapidly dwindling supplies of water and to allow the shipping company to claim their loss on insurance. In Walvins words (1992): It was, even in the age of the slave trade, a grotesque suggestion. Given the conditions, there were plenty of slaves who appeared sick. An abolitionist account reported that, in addition to the dead, a great many of the remaining slaves were sick of some severe disorders, and likely not to live long. Collingwood told his officers: if the slaves died a natural death, it would be the loss of the owners of the ship; but if they were thrown alive into the sea, it would be the loss of the underwriters. As a humane, though obviously specious, justification, he suggested that it would not be so cruel to throw the poor sick wretches into the sea, as to suffer them to linger out a few days, under the disorders with which they were afflicted. Of course, no such proposal was made to put an end to the suffering of sick crewmen. Charles MacInnes (1934) explains that such actions were not uncommon:
If the ship proved unseaworthy or if the food and water began to run short in consequence of an unduly prolonged voyage resulting from calms, adverse winds, or any other difficulties, a simple remedy lay at hand. A sufficient number of slaves would be thrown overboard.
The Atlantic slave trade was a highly profitable business between European ship owners and traders, north and south American and Caribbean traders and plantation owners and certain African tribal leaders. The middle passage was a term created in the eighteenth century by British sailors for the middle part of the triangle from England to Africa, Africa to America/ Caribbean, and America/ Caribbean back to England. The terrible conditions on the ships carrying slaves on the middle passage were such that the death rate for slaves was on average 168 per 1,000 slaves loaded in Africa.
You may like to read the novel created by Fred DAguiar Feeding the Ghosts (London, Chatto and Windus, 1997 [ISBN 0701166681]) loosely based on the Zong facts. DAguiar imaginatively recreates the voyage from the perspective of one of the captives.
A voyage with favourable trade winds from Senegambia to Barbados might take as little as three weeks, but a ship travelling from Guinea or Angola might be becalmed by lack of wind or be driven back by storms and take as long as three months.
What was the law? In that same year, a digest of insurance laws and practice was published in London on behalf of the Clarendon Press of Oxford. It stated:
The insurer takes upon him the risk of the loss, capture, and death of slaves, or any other unavoidable accident to them: but natural death is always understood to be excepted: by natural death is meant, not only when it happens by disease or sickness, but also when the captive destroys himself through despair, which often happens: but when slaves are killed or thrown into the sea in order to quell an insurrection on their part, then the insurers must answer. (John Weskett, A Complete Digest of the Laws, Theory and Practice of Insurance, 1781, p. 525)
So the law was clear! But was sickness alone a sufficient reason for drowning the slaves? Collingwoods excuse was that the ship was running short of water, due in part to his own navigational error that had mistaken Hispaniola for their destination, Jamaica. His
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argument was that to kill the sick slaves would mean that the healthy could be sustained on the dwindling supplies. Not to kill the slaves would be to jeopardise the safety and health of everyone on board. To the commentators, this is an unconvincing line of selfjustification not least because water was not rationed until after the killing of the slaves had begun and, secondly, because no attempt was made to put ashore to replenish supplies. Moreover, according to the sailors accounts, before all the sick slaves had been killed, there fell a plentiful rain, which was admitted to have continued a day or two. They collected six casks of water, which was full allowance for 11 days, or for 23 days at half allowance. When the Zong landed in Jamaica on 22 December, it had 420 gallons of water on board. It had left in its wake 131 drowned slaves. According to reports, some of the crew at first objected to the proposal to drown the slaves but Collingwood insisted, and the killings began. The crew selected those who were sick, and thought not likely to live. On 29 November, the first batch of 54, was pushed overboard. A day later 42 more were drowned, and on the third day 26 were thrown into the sea. And this act was done, it seems, in the sight of many of the unhappy slaves who were upon deck at the time. And such an effect had the sight on them, that apprehending a similar fate, and dreading, it would seem, the being fettered, ten more of them in despair jumped overboard, and were likewise drowned. One of the jettisoned slaves managed to catch on to a rope and climbed back safely on board. In Walvins words: A total of 131 slaves were coolly murdered from the deck of a Liverpool vessel, for no good reason save the economic calculations of Captain Luke Collingwood and the physical compliance of his crewmen. Walvin has no trouble calling this murder, but was it murder in the eyes of the law? Granville Sharp was a well-known individual living in London who had spent the best part of 20 years campaigning against the existence of slavery in England. He had already had a notable success in putting forward an escaped black slave for a writ preventing his masters, who had recaptured him, taking him away from England. That case, Sommersetts Case, has gone down in history as stopping slavery in England with a phrase usually noted as coming from Lord Mansfield that:
the air of England has long been too pure for a slave, and every man is free who breathes it. Every man who comes into England is entitled to the protection of English law, whatever oppression he may heretofore have suffered, and whatever may be the color of his skin. (Sommersetts Case, 1772, 20 State Trials, 1)
On 19 March 1783 Sharp was visited by Olaudah Equiano (sometimes called Gustavus Vassa), an African and former slave who was emerging as the most prominent spokesman for the black community living in London: Gustavus Vassa, Negro, called on me with an account of 130 [sic] Negroes being thrown alive into the sea, from on Board an English Slave Ship. The Zong affair was already before the courts some two weeks earlier, when the case of Gregson v Gilbert had been heard in the Guildhall in London. Gregson, on behalf of himself and the other ship owners, were claiming for the loss of their slaves (30 each) from their underwriters (Gilbert). The latter refused to pay, and the case was presented as a simple matter of maritime insurance. The jury in that trial sided with the ship owners, ordering the insurance company to pay compensation for the dead slaves. In a letter to the Morning Chronicle, an eyewitness at the trial wrote: The narrative seemed to make every one present shudder; and I waited with some impatience, expecting that the jury, by their foreman, would have applied to the Court for information how to bring the perpetrators of such a horrid deed to justice. Perhaps one way out was the suggestion that Captain Luke Collingwood by now safely dead was in a delirium, or a fit of lunacy when he gave the orders. Whatever the reason, the case retained its basic inhuman simplicity: a claim for insurance. Yet this correspondent was absolutely correct to argue in the newspaper that the Zong affair transcended the particularities of an argument about compensation:

That there should be bad men to do bad things in all large communities, must be expected: but a community makes the crime general, and provokes divine wrath, when it suffers any member to commit flagrant acts of villainy with impunity it is hardly possible for a state to thrive, where the perpetration of such complicated guilt, as the present, is not only suffered to go unpunished, but is allowed to glory in the infamy, and carries off the reward for it.
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Walvins language is clear and is worth reading for his invocation of the close ties between the law and the economic system:
The crime had been committed on board a British ship, and was so startling in the crudity and extent of its violence that it clearly shook observers. But where would the pursuit of criminality end if, let us say, the crew were arraigned for their crimes? Although the murder of African slaves was unusual, it was common enough in pursuit of slaves, in securing the safety of a slave ship, in defeating ship-board resistance to say nothing of the endemic violence which helped keep slavery in place throughout the American slave colonies. Slavery begat the slave trade, and the slave trade was, in origin, in conduct and in its very being, the crudest of violations, which encompassed, when necessary, the death of its victims. For the system to survive in its economic viability, some slaves had to pay the ultimate sacrifice. It took no great leap of the imagination to appreciate that the logic of pursuing the murderers of the slaves on the Zong would be the first tug which would unravel the entire garment of the slave system. And in some respects this is precisely what happened, for it was around the small band of men of sensibility, outraged by events on the Zong, that there developed the first powerful body of abolitionist feeling and action. The line of dissent from the Zong to the successful campaign for abolition was direct and unbroken, however protracted and uneven.
Granville Sharp tried to get together a body of like-minded men to pursue the prosecution of the Zong sailors. He was not to succeed. The Zong affair came to trial again on a matter of insurance for the underwriters refused to pay the compensation ordered, and the matter came before Lord Justice Mansfield sitting with two other judges in May 1783. The slave-owners, claiming the insurance on the slaves, were represented by none other than John Lee, the Solicitor-General. What was Lees professional and ethical interest in the case? He certainly seemed aware of the potential implications of the case. At the trial he turned towards Granville Sharp in the public gallery and argued that there was a person in court who intended to bring on a criminal prosecution for murder against the parties concerned: but it would be madness: the Blacks were property. Walvin describes the line he adopted as casually dismissive:
What is all this vast declaration of human beings thrown overboard? The question after all is, was it voluntary, or an act of necessity? This is a case of chattels or goods. It is really so: it is the case of throwing over goods; for to this purpose, and the purpose of the insurance, they are goods and property: whether right or wrong, we have nothing to do with it. This property the human creatures if you will have been thrown overboard: whether or not for the preservation of the rest, that is the real question.
Stated with such boldness, this seemed an outrageous claim; in essence it was, however, true. The slave system hinged on the concept of the slave as a thing: a chattel, a piece of property. It was a concept which from the first contained an obvious contradiction: how could a human being be a thing? But since law and economic practice had, from the early days of the Atlantic slave trade, accepted the chattel status of the slave, what objection could there be to the killing of chattel? Lord Mansfield himself accepted the point: they had no doubt (though it shocks one very much) that the case of the slaves was the same as if horses had been thrown overboard. Mansfield conceded the importance of the case and agreed to order a new trial. Walvin relates that at this point the historical trail goes cold since no one has found any evidence of a further trial being held or even identified the next legal step in the Zong affair. The owners of the Zong were not the last slave-ship owners to claim insurance for dead slaves. Granville Sharp continued his campaign and tried to persuade government officers to bring murder charges against those involved, telling Admiralty
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officials that he had been earnestly solicited and called upon by a poor Negro for my assistance, to avenge the blood of his murdered countrymen. Marshalling all the supporting evidence he could find, Sharp hoped to present an unanswerable case for a prosecution. But as Walvin concludes this section:
Again, he confronted that official silence and inactivity born of the realisation that any such action would corrode the system. Once an English court began to discuss murder and cruelty in the conduct of the slaving system, there was no knowing where the questions and the consequent material damage would end.
Activity 12.1
a. How do you react to the story of the Zong? b. What was the role of law in the above narrative? How can we grasp this? c. Can a formal account of law, or put another way, can an analysis of the above narrative in terms of legal categories tell us of the social reality of law? Can law be analysed on its own terms? d. Was the legal system operating justly, or is that an irrelevant concern? Was the legal system simply processing a case on the terms that were presented to it as the social context of the time allowed? Feedback: see end of guide. How are we to conceive of the relationship between law and the persons who are to be subjects of that law? Perhaps we may fee some sympathy for the realists who like Felix Cohen (1935) argued that:
legal concepts are supernatural entities which do not have a verifiable existence except to the eyes of faith. Rules of law, which refer to these concepts, are not descriptions of empirical social facts nor yet statements of moral ideals, but are rather theorems in an independent system. It follows that a legal argument can never be refuted by a moral principle nor by any empirical fact. Jurisprudence, as an autonomous system of legal concepts, rules and arguments is a special branch of the science of transcendental nonsense.
Although there was no further legal action Parliament was petitioned. It refused to intervene, accepting that only cargo was involved. The Quakers organised a general petition for the abolition of the slave trade but encountered the strong resistance of commercial interests. Four years later Granville Sharp joined with many others to form the Anti-Slave Trade Society. Today, this society continues to fight against modern forms of slavery and child trafficking that occur in many places around the world.
12.2 Internal and external accounts, insiders and outsiders

When considering the work of H. L. A. Hart in earlier chapters you will have encountered his argument for adopting an internal view of legal practice. To Hart only an insider to a practice can hope to adequately account for it and an understanding of the role of rules is crucial. A Martian, we were told, could never hope to understand the practice of stopping at red lights and going when the lights turn green. However, by way of contrast read Chapter 1 of Roger Cotterrells Politics of Jurisprudence. Cotterrell there contrasts what he calls normative legal theory (the philosophy of law) and empirical legal theory (the sociology of law), with normative legal theory of most use for practioners to give them orientating notions, concepts and ideals concerning the nature of their practices, while empirical legal theory sought to locate the actual practices in wider frameworks and tell the truth of their social effects, etc. Thus we can differentiate internal from external perspectives. Sociology is the attempt to have a science of society and all the processes, institutions and practices that operate within it. Thus we should not talk in the terms of the sociological canon of law and society, but of law in society. This would, of course, logically imply that sociology was a superior discourse to jurisprudence (at least a narrowly defined jurisprudence), in that its categories could explain jurisprudence itself. Therefore normative legal theory, the concepts of legal practioners and others, such as law teachers and jurisprudential scholars, would be treated as just one of the many forms of practical knowledge utilised in their specific areas of practice.

Consider how different the attempt to create a self-sustaining and self-enclosed jurisprudence is or more accurately perhaps, how different it appears to be. Because, as a proper contextual analysis of individual scholars usually demonstrates, most jurisprudential scholars (Austin and Kelsen would be good examples) were only too aware of the need to analyse and understand the role and effects of law in society; only their particular programme of work was restricted to a analytical analysis or, in Kelsens case, a normative reconstruction of laws essence. Yet consider the strange case of Hart, who even claimed that his major work could be seen as an essay in descriptive sociology and about which Harris once said if this was sociology it really was a sociology fit for a Martian! Harts methodology was in large part derived from the linguistic philosophy fashionable in the Oxford department of philosophy he worked in before taking the Chair in Jurisprudence. The philosophy department, under the direction of J. L. Austin, drew upon the work of the philosopher Wittgenstein and adopted a methodology whereby the analysis of concepts proceeded through the analysis of everyday language usage (such as in distinguishing between saying one was being obliged and one was under an obligation). This ordinary language analysis or linguistic philosophy (see Cotterrell, The Politics of Jurisprudence, Chapter 4, and Morrison, Jurisprudence, Chapter 13) did not of course attempt to answer the really big questions; it was always intended to be an orientation that dissolved philosophical issues into the categories and difficulties of everyday life. Moreover, from a sociological point of view it is nave to treat all accounts of social life as equally trustworthy. Sociology (at least in its empiricist tradition dating back to the methodological claims of the Scottish writer David Hume) proceeds from a first premise of scepticism or systematic doubt concerning the accounts of the people immersed in a practice. Sociologists wish to fit these into broader accounts. The sociologist is like the Martian in that the sociologist consciously adopts an external perspective and ideally the Martian sociologist may well have knowledge of transport systems in a variety of planets and would want to fit the practice of stopping at red light and going on green into a theory on the operation of transport systems in the Earth and throughout the known universe. If such is the case we can perhaps talk of different projects, contrasting jurisprudence, as the normative study of law, with sociology of law, as the empirical study of law.
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J. L. Austin: not to be confused with our John Austin (see Chapter 3), as whoever prepared the footnotes for Dworkins Laws Empire actually did!
Is a coherent sociology of law possible?

This question may appear perplexing to a person who has surveyed the field in light of the marked growth of the literature in this field in recent decades. Yet the sociology of law does not have a consensually validated definition of the subject matter and boundaries of this field. Is this good or bad? There is no dominant paradigm undergirding this field, as these three quotations demonstrate:
The sociology of law has as its task not only to register, formulate and verify the general interrelations existing between the law and other social factors (law could then be regarded as an independent or dependent variable), but also to try and build a general theory to explain social processes in which the law is involved and in this way link this discipline with the bulk of sociological knowledge. (Podgorecki, 1974, p. 33) The purpose of the sociology of law is nothing more nor less than the study of how actors achieve in concerted social action those activities which pertain to law. Law in the context of social action is the proper object of attention, not law generically defined and identifiable independently of routine social activity. (Grace and Wilkinson, 1978, p. 291) The sociology of law seeks to explain the nature of law in terms of the empirical conditions within which legal doctrine and institutions exist in particular societies or social conditions. As a study aimed at the explanation of social, phenomena through analysis of systematically organised empirical data it must concern itself centrally with understanding law as it is, rather than as it might or should be. (Cotterrell, 1984, p. 303)
Wittgenstein was said to have once described his ordinary language analysis (used by H.L.A. Hart) as follows: A fly is buzzing around in a bottle in such a way that it will exhaust itself and die. Your aim is to provide him with an analysis such as to calm him down and lead him out of the bottle to safety. But you can not tell him the meaning of the bottles existence nor how bottles fit into the overall pattern of the cosmos. That would be metaphysics By contrast some do want to know the meaning of the existence of law generally and how law fits into the overall pattern of the cosmos (and humankinds participation in it!)
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In fact there is a bewildering array of definitions: what then? Is it a good thing or a bad thing that there is such an array of definitions? However, at least one general, if vague, theme emerges, namely, that the field explores the relationship of law and social, political and economic contexts. A methodological problem is simply: does one want to work within legal traditions, take seriously legal categories of thought on their own terms, or move outside? Note the difference between the internal and the external, between the participant and the observer the difference between:
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accepting law as a normative phenomenon, where normative precepts or ideals statements of oughts are appropriate language and the world of facts, where statements of is are the proper expression.
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From a sociology of science perspective this diversity of views is not a serious deficiency. As in the case of other areas of specialisation in the social sciences, research continues on the assumption that the cumulation of knowledge will eventually point the way to a clarification of the subject matter.
There are others who appear to see law in negative terms, as required only by the failings of human society (anarchists, Marxists). They associate law and the operations of the legal system closely with coercive governmental structures which compel humans into artificial associations, where law distributes a structure of unearned benefits and enforces unjust relationships. Others, rejecting the coercive image of law, see it as an expression of societal ideals, as articulating principles and standards of human worth (human rights, etc.), and the legal system as providing an array of protective devices for citizens to use.
12.3 Durkheim and the consensus theory of law

In the next chapter you will be presented with the work of Karl Marx. In many sociology courses the usual opponent to Marx that students are presented with is Emile Durkheim. The holder of the first chair in sociology ever established, Durkheim is often taken as a classic insider the presenter of the consensus theory of law.
12.3.1 Durkheims idea of role differentiation

In an earlier chapter we considered Thomas Hobbes and his argument that the natural condition of humankind was that of a war of all on all. His solution was that we must combine to form a sovereign and sovereigns have power to order and provide discipline to society. In the later hands of the utilitarian individualists of Bentham and James Mill, collective identity seemed to be derived from order imposed on individuals in civil society. Durkheim, on the other hand, can be seen to argue that discipline and social solidarity are simply natural features, albeit in different forms, implicit in the idea of society itself and we must be able to come to know the conditions under which discipline and social solidarity operate by empirical analysis of social order and social interaction. In student texts, Durkheim is often treated in a simplistic form, being wheeled out to propose a division between the pre-modern and the modern a distinction between mechanical and organic forms of solidarity. Focusing primarily upon the relative differentiation of roles, Durkheim held that in a society marked by what he termed mechanical solidarity, every individual does many different types of tasks. This society has only a low level of technology and operates as a subsistence society. Little interchange of goods ensues. In a stratified subsistence economy there is little differentiation in lifestyle between chief and lesser members. Modernity, however, benefits from role-differentiation and specialisation, which leads in turn to the exchange of products a society characterised by a complex division of labour. This later form of society Durkheim characterises as held together by organic solidarity. Durkheim saw the division of labour not simply in terms of a more productive economic order but as ushering in a new type of moral life, which he called moral individualism.
As Durkheim put it in his Rules of the Sociological Method: The Principle which we espoused would create a sociology which sees in the spirit of discipline the essential condition of all common life, while at the same time founding it on reason and truth. (La Capra, 1972, pp. 22930)

Societies with marked role-differentiation have many more norms than do societies with smaller amounts of it, for norms create roles, and the greater the number of roles, the greater the number of norms. In such societies, roles become more complicated and sophisticated, and hence the norms become more complicated and sophisticated. Simpler societies have not only fewer norms, but less complicated ones as well. In his early work Durkheims rather limited system of ideal types can be seen to have cut down the complexity of any analysis of this situation. He separates juridical rules into two great classes, according as they have organised repressive sanction or only restitutive sanctions (1933, p. 69). Furthermore, Durkheim asserted that the only common characteristic of all crimes is they consist... in acts universally disapproved of by all members of each society (ibid., p. 73). This disapproval came out of the collective or common conscience of the society, which he defined as the totality of beliefs and sentiments common to average citizens of the same society, and which formed a determinate system which has its own life (ibid., p. 79). This same collective conscience is the source of repressive punishments: because they are found in all consciences, the infraction committed arouses in those who have evidence of it or who learn of its existence the same indignation. Everybody is attacked; consequently, everybody opposes the attack (ibid., p. 109). Hence Durkheim is able to propose that the relative strength of this reaction becomes a function of the solidarity of the collective conscience. The criminal law stems from the collective conscience:
thus we see what type of social solidarity penal law symbolises. Everybody knows that there is a social cohesion whose cause lies in a certain conformity of all particular consciences to a common type which is none other than the psychic type of society...the nature of the collective sentiments accounts for punishment... Moreover, we see anew that the power of reaction which is given over to government functionaries, once they have made their appearance, is only an emanation of what has been diffuse in society since its birth [i.e. the collective conscience]. (Division of Labour in Society, pp. 10405)
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This view is seen to be the basis for a whole tradition of consensus views of law which provide a foundation for the relationship of law and society for a large number of theorists. Friedmann (1964), for example, said:
The state of the criminal law continues to be as it should a decisive reflection of the social consciousness of a society. What kind of conduct an organised community considers, at a given point of time, sufficiently condemnable to impose official sanctions... is a barometer of the moral and social thinking of a community. (p. 143)
The division of labour appears to us otherwise than it does to the economists. For them, it essentially consists in greater production. For us, this greater production is only a repercussion of the phenomenon. If we specialise, it is not to produce more, but it is to enable us to live in new conditions of existence that have been made for us. (Durkheim, 1893/1933, p. 275)
Likewise M. Hart (not H. L. A. Hart) in 1958:

[Criminal laws] speak to members of the community, in other words, in the communitys behalf, with all the power and prestige of the community behind them.
The tradition to which Marx has given rise is presented in sharp contrast. For example, Reid in 1979 sums up the Marxist position thus:
the conflict theorists argue that the criminal law does not reflect custom but, rather, the desire of the ruling class to maintain its own interests at the expense of those being ruled.
Quinney could state in 1975:

contrary to popular belief, law is a tool of the ruling class providing the mechanism for forcefully (and sometimes violently) controlling the rest of the population.
Seen in such simplistic terms, the two concepts of consensus and conflict appear as a black-and-white division in which the two sides are so far apart that alternative world views are presented which are incapable of reconciliation. However, Durkheim is actually quite some distance away from suggesting that there is some easy consensus of norms and qualitative judgments in modern society. The determinist, positivistic, framework which Durkheim gave in his early work on suicide and the division of labour, where social control was explained largely in terms of external constraints, i.e. by social facts, must be seen in conjunction with his
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developing notion that social norms, far from being mechanically imposed on the individual by the actions of the surrounding society, came to be internalised in the personality of social actors. This process of internalisation is a process whereby society came, so to speak, to reside inside us, and thus became part of the individuals psyche through both informal and formal processes of socialisation. Thus the essence of social control for the mature Durkheim lay in the individuals sense of moral obligation to obey the rule, the voluntary acceptance of social duties, rather than in simple conformity to outside pressures. Durkheim appears to argue that the moral demands of society are part of the constitutive elements of the individual personality. Durkheim implicitly suggests this process is extremely problematic in modernity since it depends on the nature of the social structure and in particular the state of the division of labour. Thus in societies with a minimum division of labour, i.e. premodernity, essentially a similar process of socialisation is held to be experienced by all. But in societies of advanced division of labour, i.e. modernity, differential processes of socialisation are experienced. Therefore, the collective conscience becomes more difficult to achieve in modernity this is the hidden meaning of his laws of penal evolution, since Durkheim assumes that evaluations of conduct are intense only to the extent that they are shared, i.e. truly collective or uniform. Because of the supposed decline of the offence to the collective conscience that conduct in modernity causes (due to an increased division of labour) the intensity of punishment decreases (the change from repressive to restitutive sanctions). Is Durkheim right? Surely he is, at least in the fact that the collective conscience is much more problematic in the conditions of modernity conditions of the social order post-God and amidst a complex division of labour. This does not mean that law changes its penal element in the way that Durkheim envisages. Indeed, several empirical studies have claimed exactly the opposite result. Furthermore, Durkheim neglects the role of the modern state and the strength of repression which the technologies of surveillance and control give to central authority in diverse situations. He neglects also the role of elites in the power structures of complex societies and the structural ability of inhibitors of certain positions in the division of labour to ensure the lineage of their offspring in similar positions.
12.3.2 Themes and influences of Durkheim

All three of our classical social theorists, Marx, Weber and Durkheim, are grappling with the complexity of modernity and the social relations in which modern law will operate. Each can be seen to emphasise certain themes and downplay others. Durkheim places the growth of capitalism as just one of the dominant features of modernity. He also considers:
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the growth of industrial society and the increased division of labour urbanism liberal democracy the concrete role of abstract concepts such as norms and property rights the necessity for institutionalisation a functionalist account of social processes (note how this applies to punishment, which we will use as a case study, but also the interaction of identity and otherness) the human effects such as anomie, alienation for a sociological account the personal life is a site of social forces.
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Consider the widespread and commonsense nature of our modern functionalist accounts, for example, the American jurist Roscoe Pound (1942), who like Marx is concerned with happiness and with desire; his position, however, is a more mundane and pragmatic approach seeking to work through the institutions thrown up by modern society.

...we all want the earth. We all have a multiplicity of desires and demands which we seek to satisfy. There are very many of us but there is only one earth. The desires of each continually conflict with or overlap those of his neighbours. So there is, as one might say, a great task of social engineering. There is a task of making the goods of existence, the means of satisfying the demands and desires of men living together is a politically organised society, if they cannot satisfy all the claims that men make upon them, at least go round as far as possible. (pp. 6465)
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One account of the role of law can be as part of the transformative effects reshaping social relations in line with the functional needs of the complex forms of social structure. For example, while pre-modern and early modern society relied upon external differences, which are social in origin, such as hierarchies based upon skin colour or gender, Durkheim saw internal differences, such as genetic differences in capabilities or aptitudes, as becoming more important. Thus changing substantive forms and content of legal regulation can work to eliminate external inequalities. Thus we can see legislation attempting to aid increasing equality of opportunity and the structuring of a social order allocating wealth or power according to internal inequalities and the functional demands of occupation. Cotterrell (1999, p. 217) says the Durkheimean project contains certain methodological injunctions for the study of law:
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law is to be focused upon as something external to the individual, exerting coercion upon him (not necessarily violence or force) law is a social phenomenon that has in some important senses an existence independent of the human beings who create, interpret or apply it law must always be seen as a concrete historical phenomenon, to be understood empirically in its specific time and place.
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Law was thus an observable social fact, inevitably changing as part of the developmental structures of modernity. He gave it a central role in mediating disputes, of expressing a societys moral valuations. In general Durkheim downplays the importance of class concepts in favour of seeing conflict as a feature of the dysfunctional effects of industrialisation. The weakening, and occasional disappearance, of class scenarios and the ascendancy of the functionalist character of society has contributed enormously to the rearrangement and modernisation of traditional political patterns and programmes. The Durkheimean conception of society and social change critiqued and replaced the understanding of the state as a class agency with the demand for more sophisticated conceptions which presented more complex structures of social interaction. What of his legacy today? Consider part of the conclusion Roger Cotterrell draws in his Emile Durkheim: Law in a Moral Domain, (1999, pp. 22829):
Durkheims agenda remains a focus of optimism in a contemporary world that often forgets what an important product of history law is, if it is seriously and consistently informed of the values he tried to express as the cult of the individual. The worst legacy of Durkheims legal theory would be complacency about laws weaknesses and injustices, the adoption of a romantic moralism that cannot see laws blatant immoralities and cruelties, or its innumerable, mundane inadequacies as an agent of social solidarity. The best legacy would be to inspire critical analyses of law to explore in new ways how to make legal ideas and practices morally meaningful to the regulated; in other words, to help to change legal regulation and its environments so as to make Durkheims focal view of law seem less partial and more comprehensive as a perspective on legal reality in contemporary society.
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Summary
Durkheim, an almost exact contemporary of Marx, grappled with the problems of dramatic social transformation and the emergence of modern society. He downplayed the issues of economics and power in favour of a science of positive morals that was mildly optimistic. Durkheim believed that law was an index of underlying social forms, the forms of social solidarity. Thus we could study law to uncover the forms of moral regulation in society. Society was for him a moral phenomenon, social solidarity a normal state for social life and the action of law a index of that. For Durkheim law was an aspect of social morality. Law played a functional role in social life (this has led many commentators in later times to try and draw up a list of laws functions and social purposes and argue that law should be reformed and directed in such a way as they are achieved). Durkheims core belief was of the need to go beyond the common sense views of the layman and re-examine them to look for the social functions, roles and forces that give them true significance. Durkheims work influenced the development of a whole range of sociology, from conservative sociology, through managerialism, to the strain and control theories of criminology. For a long time his legacy was cast in terms of functionalism, that is that sociologists should develop a scientific explanation of human behaviours from the premises that any society is a functioning whole, resting on a consensus of morals and values. Today it is more his argument that we need to develop a new form of moral individualism that excites attention than his functionalism. The fact remains that he is along with Marx and Weber one of the founding fathers of modern social analysis.
12.4 The rationalisation of the world: the analysis of Max Weber

Max Webers (18641920) most famous theme is that modernity is crucially constituted by a growing rationalisation of the social world.
12.4.1 Weber and modernity

Modernity demands reasons for action as opposed to following custom and tradition. Do you consider yourself an emancipated modern individual? Do you consider that you are responsible for mapping out the course of your life? That in living your life you are going to follow your own chosen thoughts and life plans and not merely follow on expected paths which others, say family or social group, have mapped out for you? If we claim to be a true modern it appears central to our modern self-image as freed, truly modern, self-directing individuals, that we do not live in the customary and tradition-bound ways that people inhabited for the previous thousands of years. We do not follow traditions as if they were the natural form of life. We take ourselves away at a distance from the traditions and follow courses of action depending upon our choices we map out paths, choose rationally. What are the ends we want to achieve what are the appropriate means? Action becomes rational, efficient, anti-traditional. Central to modernity is the use of reason and the desire to assert control over the process and forms of the world. If we are to become, as the Enlightenment French philosopher Descartes claimed, the masters and possessors of the earth, then subjecting the processes of the world to rational (scientific) investigation and following reason to organise ourselves and our institutions appears to be the naturally enlightened way of operating. Although this appears to be the only route to success, rationality has a price. For if modernisation takes place though increasing rationalisation, what happens to those aspects of social life that cannot be thought of as truly rational? Do they become downgraded, to be cast away?
Webers contributions to a sociology of law are diverse and complex; they are also buried in his grand scheme of ideal types and the development of legal rationality in Western civilisation and the role of law in the origins and development of capitalism. Weber (1954, in Rheinstein, ed., p. 303) gave a thesis on evolutionary stages: The general development of law and procedure may be viewed as passing through the following stages: first, charismatic legal revelation through law prophets; second, empirical creation and finding of law by legal honoratiores; third, imposition of law by secular or theocratic powers; fourth and finally, systematic elaboration of law and professionalized administration of justice by persons who have received their legal training in a learned and formally logical manner.

Weber thought rationality would dominate in three ways:
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the control of the world through calculation (note the growth of the technological attitude the world becomes a problem to be solved with the correct technology) the systematisation of meaning and value into an overall consistent scheme the methodological living of daily life according to rules. Rationality means following a rule, or an abstract moral principle, rather than acting on impulse, randomness or emotionality. Rationality means building up a logically consistent pattern linking our thoughts and actions and following this pattern to its conclusion. It means consistency in linking our words and actions, our aims and like activities, creating an efficient ordering of means to ends.
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As a consequence Weber thought we faced an inevitable systematisation of belief, the elimination of logical inconsistencies, the disarming of the magical and mystical, the movement away from particular, or local, forms of thinking, to the more abstract or general. This entailed the reduction of all individual instances of experience and of thought, whatever their diversity, to the status of general classes. Moreover, rationalisation demanded that we purge our ways of thinking and acting of forms that could not be justified on the basis of their anticipated consequences, themselves rationally justified by more generally defined ends and rendered predictable by generally valid empirical laws. Rationalisation is the systematisation of belief; it is the systematisation of action. But it is the destruction, the stifling of a great deal of the human being. What happens to the non-rational aspects of humanity? Does the resonance go out of life? The tragedy? Are we doomed to live out formally effective lives with little magic or warm human contact? The commitment to reason as the mode of organising life takes on a meaning of itself this Weber calls formal rationality. The tribal person who believed in demons and Gods, who followed customs and traditions, may have been consistent in his thoughts, actions and beliefs, in that if we imagine ourselves inside his beliefs then he is behaving in a rationally consistent fashion; this rationality Weber calls substantive. Under substantive rationality there are certain things values which are simply accepted as true and fit a picture of the cosmos (world) so accepted. But we moderns argue that everything has to be subjected to the test of sceptical reason and if something cannot survive rational testing then we reject these beliefs while committing ourselves to reason itself. Rationality becomes something that dominates life. It does not matter what beliefs that we have substantially we must be rational.
12.4.2 The nation state and the rise of capitalism

The rise of modern rationality is closely linked to the development of capitalism as a mode of economic and social life and the rise of the nation state. One of the determining contexts for modern law is the growth in importance (and now possible decline) of the nation state. Like John Austin, Weber saw the state as a particular form of political association and was clear on the necessary linkage between the ability of the modern state to function and law. In his famous lecture Politics as a Vocation, Weber asks the question: but what is a political association from a sociological point of view? His answer:
Ultimately one can define the modern state sociologically only in terms of the specific means peculiar to it as to every political association, namely, the use of physical force. Every state is founded on force, said Trotsky. That is indeed right. If no social institution existed which knew the use of violence, then the concept of state would be eliminated, and a condition would emerge that could be described as anarchy in the specific sense of this word. Of course, force is certainly not the normal or the only means of the state nobody says that but force is a means specific to the state. Today the relation between the state and violence is an especially intimate one. In the past the most varied institutions have known the use of physical force as quite normal. Today, however, we have
Although Weber draws upon the Marxist Leon Trotsky for his definition of the state, this agreement does not commit Weber to the particular Marxist argument within which Trotskys view of the state is embedded. Weber highlights the centrality of force in identifying the state, while also pointing to the need for legitimacy, the exercise of a monopoly on force, and a territorial limit.
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to say that a state is a human community that (successfully) claims the monopoly of the legitimate use of physical force within a given territory. Note that territory is one of the characteristics of the state. Specifically, at the present time, the right to use physical force is ascribed to other institutions or to individuals only to the extent to which the state permits it. The state is considered the sole source of the right to use violence. Hence, politics for us means striving to share power or striving to influence the distribution of power, either among states or among groups within a state.
To give more of the flavour of Weber:

Like the political institutions historically preceding it, the state is a relation of men dominating men. A relation supported by means of legitimate (considered to be legitimate) violence. If the state is to exist, the dominated must obey the authority claim by the powers that be.
12.4.3 Obedience and authority

Weber was more interested in the question of when and why men obey and upon what inner justifications and what external means this domination rests. Let us consider for a moment the social context of Weber. He witnessed the unification of Germany under Bismarck and the emergence of the modern German state, founded in part at least upon the strength of Prussian hegemony. In his later life he saw the phenomenal growth of industrialisation in Germany, the failed attempt to create a German empire and the culmination of great power rivalry in the catastrophe of World War I. In many ways the social processes Weber witnessed in the latter part of the nineteenth century had been foreshadowed in the social processes which Austin and later Marx were to witness in the UK in the first half of the century. Weber is concerned with the maintenance of political authority. To maintain political authority, power based purely on physical force is unstable and ineffective. It is important to achieve domination, i.e. the probability that a command with a given specific content will be obeyed by a given group of persons. How does such obedience come about? Weber proposes a model of three ideal types of authority:
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You may like to consider how close this is to the position of John Austin.
Traditional authority which rests on an established belief in the sanctity of immemorial traditions and the legitimacy of the status of those exercising authority under them. This form of authority had dominated in the history of the world. Charismatic authority which rests on devotion to the specific and exceptional sanctity, heroism or exemplary character of an individual person, and of the normative patters or order revealed or ordained by him. This form was unstable and unpredictable. Rational legal authority which rests upon the rational grounds and a belief in the legality of patterns of normative rules and the right of those elevated to authority under such rules to issue commands. This form was coming to dominate modern western societies.
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Weber considered the growth of rational legal authority as the predominant aspect in that process he called the rationalisation of the modern world. Whereas for most of human existence the legitimacy of social systems had rested on traditional, magical or religious elements, modern society appeared to be founded on an authority which itself became rational; that is, it was understood as a calculated form of social structuring, enabling the functional integrity of a society or social organisation. This in turn, Weber thought, depends upon:
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A legal code which consists of legal norms which are established by agreement or by imposition but which are accepted on grounds of expediency or rational values or both. This has a claim to obedience of at least the crucial members of the corporate body and usually claims the obedience of all members of the society or organisation.

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A logically consistent system of abstract rules which are applied to particular cases. Thus social order exists within the limits laid down by legal precepts and following principles which are capable of generalised formulation. The typical person in authority occupying an office, which defines his or her responsibilities. That person who is an official, even the elected president of the state is also subject to the impersonal regulation of the law. The person obeying authority does so only by virtue of his or her membership of the corporate group (that is, not on any personal basis) and what is obeyed is the law (rather than the person in authority). Obedience is given to officials not as individuals but to the impersonal order they represent. An administrative staff (that is, a bureaucracy) is formally charged with looking after the interests of the corporate body within the limits of the law. The power of the state officials resides in their legal office not themselves.
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Activity 12.2
How far do these legitimising factors work this way in practice? If they work imperfectly, what does this suggest about the law? No feedback provided. Thus it is law, its precise demand and its administration, which encapsulates the element of calculation in rational legal authority. Weber considered that the emergence of the Western form of capitalism had given an immense stimulus to rationallegal authority and the calculative attitude. But what provides the substance to law? Webers analysis cannot tell us that. While we move within the confines of legal-rational domination the rationality involved is a formal rationality: a commitment to reason which leaves the content uncertain, flexible according to the presuppositions which we bring to bear. It cannot answer the question what will ensure the just or good society? If, however, we could agree a touchstone, a frame of reference, we could have a structure to make the system able to achieve the just or good society. Bentham and Austin thought that they had achieved the search for such a touchstone in utilitarianism; however, even with the work of J. S. Mill who refined utilitarianism with the additional principle of liberty, most have thought that only in the most general terms can the pursuit of happiness be cast in utilitarian terms. Weber considered that the emergence of the Western form of capitalism had given an immense stimulus to rational legal authority and the calculative attitude. The predictability of relationships and outcomes required for capitalist interaction was enabled by the formally rational structure of legal domination. In comparing Austin to Hart, for example, we can partly see that Austin stands in a social context which is experiencing the process of rationalisation which Weber detects and that close analysis of the work of Austin will demonstrate this, in particular a fuller understanding of what Austin perceived himself to be doing in creating the science of jurisprudence. Moreover, we can see the distance from Austin to H. L. A. Hart not in terms of Hart improving on Austins one-sided theory, i.e. in terms of legal theory correcting itself or working itself pure, but in terms of Hart inhabiting a social system where legal rational domination had been successfully achieved. Whereas for Austin this was still something to be achieved.
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12.4.4 Webers pessimistic mood

In the post-enlightenment Europe of the late seventeenth and eighteenth centuries the appeal to reason to rationality was often on behalf of the desire to be free. Freed from the bondage of false belief and the hierarchies of feudal society, humanity would enter into an age of enlightenment. Modernity should bring freedom the liberation from the restraints of substantive rationality, the necessity to believe X because that is what your social group or society socialised you into. Freed from illusion we can choose our values, develop new ones in the interaction with other individuals, cultures, ways of life in the variation of the world. This freedom of culture could mean the potentiality for a more varied and exciting world than anything previously in history. But Weber was pessimistic. Modernity was more likely to become a gloomy bureaucratic state where administered uniformity severely limited freedom. He talked of the iron cage of bureaucracy and rationality. Individuals were not likely to have the capacity to choose among the possible array of life chances, of values; instead a vast administered state would dominate. What would individuals do? Weber thought that their life would be dominated by their functional role, their public space outlined by the social rationality, and the only happiness would be in the anti-rational spaces. The individual would find solace in personal relationships, romantic love and escapist music, the experience of art, the cultivation of a limited private sphere, as worldly escapes from institutional routines. The only hope was that we could sustain a will not to be ruled like sheep but this was doubtful. His fears were proved right in the great disasters of fascism, Stalinism and Maoist communism, among others.
Summary
Webers thesis on rationalism has proved enduring. It denotes a new relationship of individuals to each other and to social authority. In the West Weber claimed that law was divided into a set of separate spheres: sacred and secular, private and public, civil and criminal. Occidental rationalism has resulted in the modern state which operates according to the precepts of a scientific jurisprudence, administered by professionally trained jurists (lawyers) and administrators according to the principles of rational legal administration. The emergence of capitalism and its corresponding structures of value and activity has been the most fateful force in our modern life. Moreover, in a disenchanted world the problem of trying to follow values comes to the fore: social life is split between values which are believed in on a personal level and reason which binds us in the great systems of capitalist administration we live and work within.
12.5 The transformation of jurisprudence

12.5.1 What is a critical study of law?
While most lecturers would today wish their students to take a critical approach to law, critical legal studies refers to a rather loose but meaningful label for a particular approach to legal studies. Perhaps something can be gauged by looking at a representative quotation (Horwitz, 1981):
By and large, the dominant tradition in Anglo-American legal scholarship today is unhistorical. It attempts to find universal rationalising principles... The underlying structure of the law class remains that of forcing the student to reconcile contradictions that cannot be reconciled. If you do well, then you become a professor and you demand it of your students and you continue to do it in your legal scholarship. The ideological tilt of current legal scholarship derives from this attempt to suppress the real contradictions in the world, to make the existing world seem to be necessary... to be part of the nature of things. It is history that comes to challenge this approach by showing that the rationalising principles of the mainstream scholars are historically contingent. Consequently, analytic scholarship is anti-historical: it regards history as subversive because it exposes the rationalising enterprise.

This call to an historical awareness is only one possible tactic. Critical legal studies (CLS) is a broad label encompassing a variety of subversive enterprises to traditional analytic scholarship. While traditional legal scholarship is viewed as desperately making sense of the world, of holding out law as a coherent and rational body of rules and principles, CLS uses a range of techniques to bring out underlying fissures, contradictions and tensions. Where traditional scholarship finds the guidance of rules and principles, CLS tells us of the inescapably political nature of life.
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12.5.2 Law as a living phenomenon

Jurisprudence is produced by people in social contexts striving to write about the truth of law. Whether conceptually, drawing out abstractions from what they encounter, or using narratives of their life experiences (as with feminists today), the writer looked at here worked in specific social, economic and historical contexts but tried to draw out general things about law. What does it mean to put the writer in context and how can this be conveyed in the stressful activity of writing the examinations? Take Marx: examiners tire of seeing statement such as Marx was depressed by what he saw in the Lancashire Cotton mills and.... The point is not whether Marx actually visited any cotton mills in Lancashire but that scholars have used the example of Lancashire almost as shorthand expression for the Industrial Revolution and the whole range of dramatic social changes that accompanied it. The reading room of the British Museum has as much claim to be the context of Marxs work as the cotton mills (see Figure 1).
As Eric Hobsbawm said in The Age of Revolution: What does the phrase the industrial revolution broke out mean? It means that some time in the 1780s, and for the first time in human history, the shackles were taken off the productive power of human societies which henceforth became capable of the constant, rapid and up to the present limitless multiplication of men, goods and services. (1962, p. 45)
Figure 1 The Reading Room of the British Museum as it was in Marxs time. There Marx read accounts from many other scholars and popular writers. The themes were the transformations of the social world and the Industrial Revolution The Industrial Revolution refers to the transformation of western economies (at first the British) from being based primarily upon agriculture to one based primarily upon manufacture. With this came a whole series of changes in the technology of production, e.g. new machines, and changes in the social relationships that surround the organisation of production, as well as the great expansion of urban life. The cotton industry was at the centre of the early industrial revolution. In Industry and Empire (1968) the historian Eric Hobsbawm put it like this:
Whoever says Industrial Revolution says cotton The British Industrial Revolution was by no means only cotton, or Lancashire or even textiles, and cotton lost it primacy within it after a couple of generations. Yet cotton was the pacemaker of industrial change, and the basis of the first regions which could not have existed but for industrialisation, and which expressed a new form of society, industrial capitalism. (p. 56)
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New machines meant that cotton could be weaved, rather than hand-spun, an advance but still small scale; but then came the spinning jenny, the water frame and the mule (all new devices that enable mechanised spinning of cotton to take place) that gave rise to huge cotton factories. For over 50 years cotton was king and even in the 1830s cotton products were over half of total British exports. The Lancashire cotton mills came to represent the new factory system. Hobsbawm again:
A new industrial system based on a new technology thus emerged with remarkable speed and ease among the rainy farms and villages of Lancashire It represented a new economic relationship between men, a new system of production, a new rhythm of life, a new society, a new historical era, and contemporaries were aware of it almost from the start. (1968, pp. 64, 65)
Not only was this part of a global network cotton was largely produced by slaves in the new world of the Americas, slaves that were transported from Africa but the technology soon spread globally (in recent years I have for example visited garment factories in Bangladesh and Thailand that share many of these features). What Marx was then trying to grasp was a new global framework and a division of labour that transformed peoples life experiences. The workers, particularly women and children in the early years of textile manufacture, were taken out of the familiar environment of the home and placed in the new impersonal factory. This imposed a regularity, a routine and a monotony that was quite unlike the pre-industrial ways of work. It gave rise to
such visions as working men narrowed and dehumanised into operatives or hands before being dispensed with altogether by completely self-acting (automated) machinery The factory with its logical flow of processes, each with a specialised machine tended by a specialised hand all linked together by the inhuman and constant pace of the engine and the discipline of mechanisation. (1969, p. 68)
To cope with the social effects came the two great progressive (at least in the sense of trying to take charge and organise this modernity) projects of modernity, namely classical liberalism (which stressed a central role for law and individualism) along with utilitarian rationalism, and utopian socialism (which rejected the dehumanising nature of capitalism although accepting industrialism as a inevitable part of the evolution of mankind). Against this was posed the reactionism of conservativism or fascism.

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explain the difference between internal and external accounts of law (insiders and outsiders) identify the key concerns of social theoretical accounts of law describe the central ideas of Emile Durkheim and Max Weber explain how the ideas of Durkheim and Weber might be relevant to a contemporary analysis of the role of law in society.
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Question 1 Discuss critically Webers contribution to our understanding of law. Question 2 Is a study of the sociology of law worthwhile? Answer this question with reference to either the works of Max Weber or the works of Emile Durkheim. Question 3 Karl Marx said nothing of relevance to a practising lawyer. Discuss. [Note: you will need to read Chapter 13 before attempting this question.]
References
Cohen, F. Transcendental nonsense and the functionalist approach, Columbia Law Review 34 (1935) p. 821. Cotterrell, R. The Sociology of Law: An Introduction. (London: Butterworths, 1984).
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Cotterrell, R. Emile Durkheim: Law in a Moral Domain. (Edinburgh: Edinburgh University Press, 1999). Durkheim, E. The Division of Labour in Society. (New York: Macmillan, 1933). [First published 1893.] Durkheim, E. Rules of the Sociological Method in La Capra, D. (ed.) Emile Durkheim: sociologist and philosopher. (Ithaca, NY: Cornell University Press, 1972) pp. 22930. Friedmann, W. Law in a Changing Society. (Harmondsworth: Penguin, 1964/1972). Grace, O. and P. Wilkinson Sociological Inquiry and Legal Phenomena. (New York: St Martins Press, 1978). Hart, M. The aims of the criminal law, Law and Contemporary Problems, 23 (1958) (3) pp. 401441. Hobsbawm, E. J. The Age of Revolution: Europe, 17891848. (London: Weidenfeld and Nicholson, 1962). Hobsbawm, E. J. Industry and Empire: economic history of Britain since 1750. (London: Weidenfeld and Nicholson, 1968). Horwitz, M. J. The historical contingency of the role of history, Yale Law Journal, 90 (1981). La Capra, D. (ed.) Emile Durkheim: sociologist and philosopher. (Ithaca, NY: Cornell University Press, 1972). Macinnes, C. England and Slavery. (London: Arrowsmith, 1934). Podgorecki, A. Law and Society. (London: Routledge , 1974). Pound, R. Social Control through Law. (New Haven: Yale University Press, 1942) [1996 edition Transaction Publishers]. Shyllon, F. O. Black Slaves in Britain. (Oxford: Oxford University Press, 1974) pp. 184209. Tattersfield, N. The Forgotten Trade: Comprising the Log of the Daniel and Henry of 1700 and Accounts of the Slave Trade from the Minor Ports of England, 16981725. (London: Jonathon Cape, 1991) pp. 14154. Walvin, J. Black Ivory: A History of British Slavery. (London: HarperCollins, 1992) pp. 1620. Weber, M. and M. Rheinstein (ed.) Max Weber on Law in Economy and Society. (Cambridge, Mass.: Harvard University Press, 1954).
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Reflect and review

Ready to Need to Need to move on revise first study again I can explain the difference between internal and external accounts of law (insiders and outsiders) I can identify the key concerns of social theoretical accounts of law I can describe the central ideas of Emile Durkheim and Max Weber I can explain how the ideas of Durkheim and Weber might be relevant to a contemporary analysis of the role of law in society.
Must revise 12.1 12.2 12.3 12.4 12.5 Thinking of law and society: encountering a case Internal and external accounts, insiders and outsiders Durkheim and the consensus theory of law The rationalisation of the world: the analysis of Max Weber The transformation of jurisprudence Revision done
13 Marx, Marxism and Marxist legal theory
Contents

13.1 13.2 13.3 13.4 13.5 13.6
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180 Marxs basic ideas of ideology, economy and society . . . . . . . . . . 181 The Marxist theory of the state . . . . . . . . . . . . . . . . . . . . . 185 Marxs theory of law in Das Kapital . . . . . . . . . . . . . . . . . . . 186
Soviet Marxism and the law . . . . . . . . . . . . . . . . . . . . . . . 188 Setting Marx the right way up: Western Marxism . . . . . . . . . . . . 189 Marxism, law and international economy . . . . . . . . . . . . . . . . 192 Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . 195
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Introduction
This chapter will provide an introduction to Marxist jurisprudence. Firstly, we will look at Karl Marxs ideas on law, economy and society, and see that they emerged from his criticisms of other philosophers. Then we will turn to scholars who work within a Marxist tradition, and see how these writers attempted to build a Marxist theory of law. In the latter part of the chapter, we will look at some more recent Marxist scholars who, it will be suggested, are developing a Marxist jurisprudence that is relevant to our times. Marx lived from 1818 to 1883.
Learning outcomes
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outline Marxs ideas of ideology, economy and society identify the philosophical tradition out of which Marxs thought emerges describe Marxs ideas of law and of the state describe the characteristics of Soviet jurisprudence explain the development of Marxs theories of ideology, economy and law by Louis Althusser indicate how Marxs thought might be relevant to a contemporary theory of international law.
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Essential reading
Douzinas, C. and Gearey, A. Critical Jurisprudence: a textbook. (Oxford: Hart, 2004) [ISBN 184113452X] Chapter on Marxist theories. Freeman, Chapter 12: Marxist theories of law and state. Morrison, Chapter 10: Karl Marx and the Marxist heritage for understanding law and society. Gearey, A. Law and Globalisation: war, rights and development. (forthcoming, 2004).
Jurisprudence and legal theory 13 Marx, Marxism and Marxist legal theory
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13.1 Marxs basic ideas of ideology, economy and society

In a sense, it is difficult to read Marx today, though you will usually find that his writings are more accessible than those, say, of Kelsen. His thought is seen to be largely discredited by the Soviet system in what was the USSR. With the fall of the Berlin Wall in 1989 and the collapse of communism, it appeared that the epoch of Marxism had come to an end. However, it is possible that these events actually allow us to start to read Marx properly for the first time. We need to appreciate that Marx was a philosopher, and his work is more important, and less simplistic, than what has been taken to be Marxism. Perhaps it is necessary to discount, from the beginning, Marxism as a political movement, and to stress that we are concerned with a way of thinking; and in particular a way of thinking about law. Furthermore, when editorials on the essentially correct nature of Marxs thinking of economy can appear in a heavyweight journal such as The Economist, we cannot afford to dismiss Marx as a discredited thinker of the century-before-last.
13.1.1 Marx and Hegel

Marx has to be read as a philosopher, whose ideas come out of his own re-reading of important philosophers. Marx was himself a scholar of jurisprudence; but he approached the theory of law in a particular way:
The first work which I undertook to dispel the doubts assailing me was a critical reexamination of the Hegelian philosophy of law My inquiry led me to the conclusion that neither legal relations nor political forms could be comprehended whether by themselves or on the basis of a so-called general development of the human mind, but that on the contrary they originate in the material conditions of life, the totality of which Hegel embraces within the term civil society; that is, the economy. [Preface to A Critique of Political Economy (1859)]
This passage introduces a number of key themes. Marx is relating the form of the law not to the development of the human mind, but to material conditions of life. We will return to these themes presently, but at this stage we can point out that this is rooted in Marxs criticisms of the German philosopher Hegel. To understand what Marx means, we must thus return to the text, and try to isolate what Marx means when he refers to the human mind, civil society and economy. For the moment, we can focus on the key idea. What is meant by the material conditions of life? This is stressed in the following extract, which is also an important provisional outline of some of Marxs key ideas.
I was led by my studies to the conclusion that legal relations as well as the forms of State could neither be understood by themselves, nor explained by the so called general progress of the human mind, but that they are rooted in the material conditions of life, which are summed up by Hegel after the fashion of the English and French writers of the eighteenth century under the name of civil society, and that the anatomy of civil society is to be found in political economy The general conclusion at which I arrived and which, once reached, continued to serve as the guiding thread in my studies may be briefly formulated as follows: In the social production which men carry on they enter into definite relations that are indispensable and independent of their will; these relations of production correspond to a definite state of development of the material powers of production. The totality of these relations of production constitute the economic structure of society the real foundation, on which legal and political superstructures arise and to which definite forms of social consciousness correspond. The mode of production of material life determines the general character of the social, political and spiritual processes of life. It is not the consciousness of men that determines their being, but, on the contrary, their social being determines their consciousness. [Preface to a Critique of Political Economy (1859)]
Perhaps the most important feature of this famous passage is that Marx presents law as part of a total picture of society. We can describe this total picture as a totality. It is necessary to see law as related to other social and political elements; in other words, to understand law, you have to look outside the law. But Marxs argument goes much further:
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At a certain stage of development, the material productive forces of society come into conflict with the existing relations of production or this merely expresses the same thing in legal terms with the property relations within the framework of which they have operated hitherto. From forms of development of the productive forces these relations turn into their fetters. Then begins an era of social revolution. The changes in the economic foundation lead sooner or later to the transformation of the whole immense superstructure. In studying such transformations it is always necessary to distinguish between the material transformation of the economic conditions of production, which can be determined with the precision of natural science, and the legal, political, religious, artistic or philosophic in short, ideological forms in which men become conscious of this conflict and fight it out. Just as one does not judge an individual by what he thinks about himself, so one cannot judge such a period of transformation by its consciousness, but, on the contrary, this consciousness must be explained from the contradictions of material life, from the conflict existing between the social forces of production and the relations of production. (ibid.)
The key to understanding society, and hence to understanding law, is to look to economy, and any given societys economic organisation. Marx uses a special term for his analysis of economy; he refers to the means of production. He is referring to the ways in which people make their living ways of producing social wealth. More fully, we could refer to means of production, distribution and exchange, to refer to all kinds of economic activity. Marx also makes a reference to the mode of production determining the general character of society: economic organisation is thus fundamental. To a certain extent this is accurate. If one looks at medieval society in western Europe, for example, one finds that modes of economic organisation did have an important effect. For instance, if wealth is bound up with land, then those with land are powerful. Those without land have to work for those with land: one does indeed find a rural peasantry who were legally tied to the land of their masters. Of course, there was also a merchant class; merchants had the social and financial power that comes from trade, and certainly did not have to sell their labour on the land. Marx argues that your sense of your self, or your view of the world, is determined by your material position in society. If you have to sell your labour to survive, your view of the world will be very different from that of a merchant or a lord. Marx refers to these material positions as class positions. More formally, class is determined by an individuals relationship to the means of production. Marx describes such ideas or beliefs about the world as ideologies. An ideology is a world view that contains assumptions about how the world works, what ones place is in the world, and how one views others. Thus, a peasants ideology will include a belief in deference to established authority, his lord and the Church; it may also include ideas about his or her relationship to family or community. The ideology of a peasant will be very different from that of a landowner. A landowners view of the world will be determined by the need to maintain his authority. Of course, this analysis is crude, but it is only meant to suggest the broad outline of Marxs ideas. The second important strand of Marxs idea of ideology is that it mystifies. Thus, a peasant will believe in the authority of the lord, but will not appreciate that this belief is ultimately based on no more than the lords wealth and power. If, as we will see, law has an ideological aspect, then it is used primarily to preserve or further the interests of a particular class. This is thus a very different approach from that of theorists who stress the laws social neutrality. To have a good grasp of Marxs theory of the law, it is necessary to see it in this context. Law is part of a social totality. Before we turn to the law, it is necessary to make sure that we understand these fundamentals of Marxs thought.
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1. What is a social totality? 2. What are the means of production? 3. What role does economy play in Marxs theory of social totality? 4. What is class? 5. What is Marxs basic insight into the nature of law? Lets now look in some more detail at Marxs understanding of the law. The following extract is an analysis by Bankowski and Mungham (1976) of a statement by Marx about the nature of jurisprudence or legal theory:
your jurisprudence is but the will of your class made into law for all (Marx, 1884). But, though it is this signature of a society, you cannot know a society by looking at its law. For that gives undue importance to the law, in that it assumes that law can be an object of study unconstituted by any theory. For us, however, law is an object of study only in so far as it is constituted by Marxist theory.
Lets try to develop these themes. Law as an object of study is to be constituted as an object of an expressly political theory; robbed of its autonomy, law is to appear in its nakedness as an instrument of class power. In other words, law is no longer the guardian of freedom, neutral and above direct political influence. Law is part of a social structure that is ultimately reducible to its economic organisation. This analysis follows the guiding thread of Marxs analysis announced in the Critique of Political Economy. Laws relationship to society is explained in the famous metaphor of the base and superstructure. At the base (or foundation, as Marx called it in the extracts above) is the mode of production, the organisation of the economy; all other social institutions can be understood by reference to this essential determinant. Any economy passes through a number of stages of organisation, and a pattern of development can be plotted with the same certainty that a natural science can describe the development of phenomena. So, according to Bankowski and Mungham, a philosophy of economy can provide the necessary insight into law. Although law may have its own particular form, its own discourses and practices, these can only be understood by reference to a more fundamental truth that remains beyond it, in economy. However, this view can be criticised: it is a restricted way of thinking about law. An attempt to produce a general jurisprudence thus degenerates into a reductive thinking. It is no wonder that this version of Marxism is seen by many to represent an intellectual dead-end. We need to ask further critical questions. Of course, there are many difficult issues here; but we could broadly sketch the contours of the problem. We need to return to Marxs own writing. We will see that Marx does attempt to think of law as part of a total picture of a society, but that this cannot just be related to economy in a simplistic way. We need to look at Marxs understanding of history, and then return to the issue of the relationships between law and economy.
Activity 13.1
What view of jurisprudence and law is provided by Bankowski and Mungham? No feedback provided.
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13.1.2 Marxs critical reading of Hegel

Marxs key writing on Hegel and law is his Contribution to a Critique of Hegels Philosophy of Law in Vol 3 of Marx and Engels: Collected Works (Moscow: Progress Publishers, 1975). The most basic problem with which Marx grapples in his critique is Hegels presentation of law as located in history and social experience. What intrigues Marx about Hegels thought is an element of his dialectical method that history develops through the resolution of contradictions. Law is given as an exemplar of this process:
in Hegels philosophy of law, civil law superseded equals morality, morality superseded equals the family, the family superseded equals civil society, civil society superseded equals world history.
Hegel argues that the state law comes out of the contradictions that exist in forms of social arrangement that pre-date the modern, secular state. Society only becomes modern and rational when it is ordered by law. This kind of thinking is important because it is not simplistic. To understand the law one has to place it within a complex historical and social totality.
Friedrich Hegel: Georg Wilhelm Friedrich Hegel 17701831, German philosopher. Of all the major Western philosophers, Hegel has gained the reputation of being the most impenetrable. He was a formidable critic of his predecessor Immanuel Kant, and a formative influence on Karl Marx. Through his influence on Marx, Hegels thought has changed the course of history. (Oxford Companion to Philosophy, 1995, p. 339)
Activity 13.2
Summarise Hegels view of law and society. No feedback provided. But what if Hegel was wrong? What if he did not understand that law, and indeed other social phenomena, can be traced to economic relationships? We need to look at a significant paragraph:
Under the patriarchal system, under the caste system, under the feudal and cooperative system, there was a division of labour in the whole of society according to fixed rules. Were these rules established by a legislator? No. Originally born of the conditions of material production, they were raised to the status of laws only much later.
In denying that law can be understood by reference to a legislator, there is, of course, a denial of the positivist theory of law. But we need to remember that this is also part of the critique of Hegel, and hence also part of the question of method. Law is born of the conditions of material production. To return to the critique of Hegelian method, this cannot be thought of as a progression of historical schemas; rather there is another possibility. Marx is not only critical of Hegels understanding of history. He is critical of the way in which Hegel confuses different historical forms. Lets trace this problem with reference to the law. Marx observes that the Hegelian state is held together by property. It is not the ethical life of the family, the life of love that is central to the state; there is something more: something that must preserve objectivity and continuity. Behind the form of law is private property. Marx is able to suggest an analogy between sovereignty and property: just as the state is expressed in its generality as the monarch, property is the supreme objectivity of the stateits supreme law (Critique, p. 108). However, not all states are built on private property. Consider Roman law. Here the roots of the law of private property are found in civil law. In contrast with German law, though, this civil law does not become the law of the state. Public power, furthermore, was not seen as resting on private power. Like property it is based on a fact: the sovereignty of empirical will (Critique, p. 110). Private property relationships were not the apotheosis of the state, but merely one set of relationships that composed the public bond. Law, then, is not of a piece. The law of the rational, Prussian absolute state (i.e. that with which Hegel was most familiar) is not that of the Roman Republic or Empire; nor indeed is it identical with the law of the early German communities. The point here is not so much that each of these modes of law relates directly to modes of production; although Marx does not deny this possibility. Rather, he says, the form of law is determined more broadly by historical and material circumstances. Marx goes on to criticise the Hegelian method, which reduces history to an ideal pattern or schema.
Marx also resists Hegels idea that law reaches its most perfect form in the Prussian state!
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Activity 13.3
a. Why is Marx critical of Hegels theory of history? b. What is Marxs view of legal history? Feedback: see end of guide. As a consequence of this it would be wrong to see Marxist legal theory as based on a schema that simply repeats this scheme and describes a movement from primitive law, through feudal law to an apotheosis in the capitalist form of law. One has to appreciate that what Marx is describing here is the way that capital can takes a juridical form that changes over time. Indeed, the definition of capital with which one of the sections of Marxs Paris Manuscripts (written in 1844) opens makes precisely this point: Even if capital itself does not merely amount to theft or fraud, it still requires the co-operation of the legislation to sanctify inheritance. The most important thing to grasp is that economy is a set of relationships that have to be seized as a dynamic totality. How does the state function within this totality?
Summary
Marx develops his thought based on a critique of Hegels ideas. These presented a broad picture of human history and development, and the mechanisms that Hegel believed drove history in progressive directions. Marx rejected Hegels idealism (particularly the view that the culmination of history was in the state of Prussia), and instead tried to locate social institutions such as the law within a materialist understanding of the social and economic context.
13.2 The Marxist theory of the state

For Marx, the state reflects a particular historical fact:
Through the emancipation of private property from the community, the State has become a separate entity, beside and outside civil society; but it is nothing more than the form of organisation which the bourgeois necessarily adopt both for internal and external purposes, for the mutual guarantee of their property and interests. The independence of the State is only found nowadays in those countries where the estates have not yet completely developed into classes, where the estates, done away with in more advanced countries, still have a part to play, and where there exists a mixture; countries, that is to say, in which no one section of the population can achieve dominance over the others. (The German Ideology, written 184546 but not published until 1932.)
What is the central factor in the modern form of the state? The state has fallen entirely into the hands of those who own property a class that Marx called the bourgeoisie. The bourgeoisie organises itself politically and takes control of the state. The state (and its institutions) therefore come to serve the interests of this property-owning class. How is this elaborated?
Since the State is the form in which the individuals of a ruling class assert their common interests, and in which the whole civil society of an epoch is epitomised, it follows that the State mediates in the formation of all common institutions and that the institutions receive a political form. Hence the illusion that law is based on the will, and indeed on the will divorced from its real basis on free will. Similarly, justice is in its turn reduced to the actual laws. (Marx, The German Ideology) Bourgeois, bourgeoisie: French words meaning literally dwellers in a town (bourg). Marx used bourgeois to refer more narrowly to the middle class who lived by investing their capital in manufacturing and commerce. They were a middle class because they were in between the aristocracy (owners of land) and the peasantry and proletariat (owners of nothing except their labour power).
page 186 How does law relate to the state?
Marx argues that the state rests in class interest. If a class controls the state, then those aspects of the state that are used to regulate society will reflect those interests. Thus, the law reflects the interests of the bourgeoisie; the prevailing ideas of justice and equality, likewise, will reflect those interests. How can this be demonstrated?
With modern peoples, where the feudal community was disintegrated by industry and trade, there began with the rise of private property and civil law a new phase, which was capable of further development. The very first town which carried on an extensive maritime trade in the Middle Ages, Amalfi, also developed maritime law. As soon as industry and trade developed private property further, first in Italy and later in other countries, the highly developed Roman civil law was immediately adopted again and raised to authority. When later the bourgeoisie had acquired so much power that the princes took up its interests in order to overthrow the feudal nobility by means of the bourgeoisie, there began in all countries in France in the sixteenth century the real development of law, which in all countries except England proceeded on the basis of the Roman Codex. In England, too, Roman legal principles had to be introduced to further the development of civil law (especially in the case of movable property). (It must not be forgotten that law has just as little an independent history as religion.)
This is a theory of the history of law as an expression of class power. The forms of law are not neutral and universal, but reflect the needs of a particular (ruling) class to achieve certain ends. This is both coherent with Marxs general thesis that we look to material history to understand the law, and with the notion that the state ultimately becomes the most rational and efficient way of achieving this end.
13.3 Marxs theory of law in Das Kapital

Marxs account of the operation of the capitalist mode of production in Kapital is seen as his most mature and complex work. We cannot consider in detail what is a major work of both philosophy and economy, but we can look at one of the sections where Marx does explicitly discuss the law, and ask how they fit into the ideas that we have outlined so far in this chapter. In volume 1 of Kapital, Marx analyses the way that legislation was used in the nineteenth century to regulate the length of the working day in factories in western Europe and the United States:
The passion of capital for an unlimited and reckless extension of the working-day, is first gratified in the industries earliest revolutionised by water-power, steam, and machinery, in those first creations of the modern mode of production, cotton, wool, flax, and silk spinning, and weaving. The changes in the material mode of production, and the corresponding changes in the social relations of the producers gave rise first to an extravagance beyond all bounds, and then in opposition to this, called forth a control on the part of Society which legally limits, regulates, and makes uniform the working-day and its pauses.
The first British factory legislation (the Health and Moral of Apprentices Act) appeared in 1802. This, like subsequent statutes, was restricted to the textile industry. Not until 1860 was any other industry legislated for (the Bleach and Dye Works Act).
In Marxs opinion, class interests lie behind the struggle for the regulation of the working day. This struggle is fought out between the representatives of capital, who want to increase their profits, and those who work in factories and mills, and whose labour is a major source of those profits. Technological changes bring about the promise of increased productivity. This leads, first of all, to changes in society in favour of the requirement to leave the working day unregulated; in other words, to allow factory and mill owners to determine how long a worker should work. There is then a call to regulate the time spent working through law.
Marx adds detail to this account of the regulation of the working day:
This control appears, therefore, during the first half of the nineteenth century simply as exceptional legislation. As soon as this primitive dominion of the new mode of production was conquered, it was found that, in the meantime, not only had many other branches of production been made to adopt the same factory system, but that manufactures with more or less obsolete methods, such as potteries, glass-making, &c., that old-fashioned handicrafts, like baking, and, finally, even that the so-called domestic industries, such as nail-making, had long since fallen as completely under capitalist exploitation as the factories themselves. Legislation was, therefore, compelled to gradually get rid of its exceptional character, or where, as in England, it proceeds after the manner of the Roman Casuists, to declare any house in which work was done to be a factory.
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What does this tell us about the law? Law attempts to keep pace with social and technological change. At first, attempts to regulate the working day are exceptional pieces of legislation. However, as the impact of the new technologies increases, and has a profound influence on forms of industries that had previously been differently organised, the law must respond to this fact as well. Thus the legal definition of factory has to be expanded to cover any house in which work was done. This allows an insight into the form of law. Legal definitions are driven, in part, by the requirement that law should regulate the world of economy. Marx draws the following conclusion:
The creation of a normal working-day is, therefore, the product of a protracted civil war, more or less dissembled, between the capitalist class and the working-class.
What does this tell us about the ability of the law to achieve social justice? Marx seems to be cynical about laws role. Any achievement of the regulation of the working day is driven not by the law, but the way in which the organised working class uses the law. This is entirely coherent with Marxs general theory of the law. If what is central is the relation to the means of production, then social change can only be achieved by those who are universally exploited, joining together. This is the civil war: it goes beyond trade unionism. Marx seems to be suggesting that the only way in which social justice will be achieved is to sweep away an economic order, and hence an order of the state and of law. Social justice is achieved through revolution.
Summary
Marxs complex work of social and economic theory, Das Kapital (to give it its original German title) contains a theory of law. Law is determined by the economic interests that it serves. Marx seems to suggest that if those exploited by the economic system were able to organise themselves, they may be able to use law in their interests. However, social justice could only be achieved through a transformation of the economy.

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outline Marxs ideas of ideology, economy and society identify the philosophical tradition out of which Marxs thought emerges describe Marxs ideas of law and of the state.
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13.4 Soviet Marxism and the law

The Russian revolution of 1917 is one of the key points in the development of Marxist thought, and hence also in the Marxist theory of the law. If we accept that 1917 was indeed a successful socialist revolution, then the ultimate fate of the Soviet Union must suggest that there was something badly wrong in the way that Marxs thought was understood and applied. This is the next problem with which we will grapple. We will look briefly at Soviet writers, and examine whether or not the revolution does achieve social justice, and a new form of law.
13.4.1 Lenin and the state

What is the fate of the state?
We have already said above, and shall show more fully later, that the theory of Marx and Engels of the inevitability of a violent revolution refers to the bourgeois state. The latter cannot be superseded by the proletarian state (the dictatorship of the proletariat) through the process of withering away, but, as a general rule, only through a violent revolution. (Lenin, The State and Revolution)
In this extract, Lenin is referring to a particular development of the Marxist notion of the state. If it follows from Marxist theory that the state is the agent of the ruling classes, then the revolution must destroy the state, and put in its place a socialist state. This is only one element in a complete re-working of society. Remember, this is an argument about social justice. Law cannot achieve equality and justice unless it is linked to an economic order that ensures communal ownership of the means of production. Bourgeois law will only ever reflect private property ownership; i.e. it must reflect the fact that social order is based on the private ownership of the means of production. Lenin goes on to argue that:
And so, in the first phase of communist society (usually called socialism) bourgeois law is not abolished in its entirety, but only in part, only in proportion to the economic revolution so far attained, i.e., only in respect of the means of production. Bourgeois law recognises them [the means of production] as the private property of individuals. Socialism converts them into common property. To that extent and to that extent alone bourgeois law disappears. (ibid.)
This is a practical argument. Bourgeois law is swept away to the extent that it relates to private ownership. But this is a gradualist approach. In the first phase of the achieved utopia, other forms of bourgeois law may remain.
13.4.2 Evgeny Pashukanis

We are not concerned in this chapter so much with the practical work of reconstruction that Lenin and the Bolsheviks achieved. We are more concerned with the theory of law that they promulgated. In keeping with this argument, we turn to one of the most celebrated Soviet writers on law: Evgeny Pashukanis. Pashukanis legal theory reflects the fact that there had been a successful overthrow of the old government, and a socialist system was being put in place. This makes his work very different from that of Marx himself, who was offering a theory or philosophy of law prior to any successful socialist revolution. What are Pashukanis main themes? Like Lenin, Pashukanis argues that with the triumph of the planned economy and the destruction of private property, law will cease to have a function. However, Pashukanis is also providing a history and philosophy of bourgeois law, and it is in this sense that he goes further than Lenin. Law is derived from the form of private property. To extend this argument would mean that the legal form is seen as reaching its most developed state in a certain historic epoch: with the rise of bourgeois capitalism. Capitalism presupposes a market, where goods can be freely exchanged. This contrasts with feudalism. Pashukanis argues that in medieval times, the relationship of subservience and dominance is not legally articulated: the slave is totally subservient to
his master. In the capitalist epoch, economic relations are mediated through particular economic forms, the contract for example:
the economic relation of exchange must be present for the legal relation of contracts and purchase to be able to arise. Political power, can with the aid of laws, regulate, alter, condition and concretise the form and content of this legal transaction in the most diverse manner. The law can determine in great detail what may be bought and sold, how, under what conditions and by whom. (Pashukanis, A General Theory of Law)
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If bourgeois law is linked to the regulation of the market, how should law operate in a society that has rejected the market? The failure to answer this question is the great failure of Soviet Marxism. Indeed, the Soviet state became a monolithic body. Law served to regulate and enforce the states dictats, rather than providing any real limits on the states power to plane and shape economy and society. Lets consider this point a little further. Pashukanis critique was:
fraught with theoretical and political problems. Since Pashukanis saw law as based on exchange relations and since he equated capitalism simply with the generalisation of exchange (rather than with exploitative relations of production which derive from the exchange of labour power), he could only conclude that all exchange was capitalist exchange and all law was bourgeois law. The result was a one-sided critique which excluded the possibility of socialist legality and neglected any question of democratising and socialising the law. This played into the hands of the evolving Stalinist regime, which deployed his theory of the primacy of technical regulation under socialism to justify the power of the bureaucracy and its disregard for legal constraints. (Sol Picciotto and Robert Fine, On Marxist critiques of law The Critical Lawyers Handbook. See http://www.nclg.org. uk/files/book1/contents.htm)
Activity 13.4
What criticisms can be made of Pashukanis work? Feedback: see end of guide.
13.5 Setting Marx the right way up: Western Marxism

13.5.1 Marxist critiques of Soviet Marxism
The demise of the socialist dream in Soviet Russia should not be seen as exhausting the Marxist project. We can refer to a later phase of Marxism that was as critical of Western societies as it was of state socialism. Fine and Picciotto argue that:
The revival of Marxism in Western Europe in the 1960s and 1970s was a reaction against the failures both of a Stalinism, which supported the dogmas and tyrannies of state socialism, and of complacent liberalism, which ignored or tolerated the inequalities and oppressions of capitalism. Consequently Marxist critiques of law and the state have had a twofold dynamic, focusing on the limits both of bourgeois freedom in systems based on private property, and of sociaIist freedom in systems based on state property.
Perhaps the most interesting and relevant contemporary forms of Marxism are developed by French, German and Italian writers, attempting to update Marxs insights to describe modern, Western capitalism. We will look at the work of the French Marxist philosopher, Louis Althusser (191890). Althusser poses the question: Is there a different way of reading Marx? To achieve this we would have to return to the central contribution of Marxs theory: an account of economy. Perhaps Marxs account of economy has been misunderstood. Marx was careful to point out that superstructural development cannot be plotted in the same way as economic change. In other words, one cannot make a simple link between economic forms like capitalism or feudalism and forms of law. There is a differential development between base and superstructure. What does this mean? At any given moment there will be a complex relationship between the economic system and the other institutions that compose the social structure.
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13.5.2 How can one begin to re-read Marx?

The key is to turn to the theory of economy that Marx presents. Marx is not arguing that a given mode of economic production will necessarily produce a given legal form. It is necessary to think in terms of the base and the superstructure developing in different ways. To develop these ideas, we will turn to the writings of Louis Althusser in the seminal text Reading Kapital. Althusser builds on Marx. At the heart of Althussers system is the economic, or the mode (or relations) of production. Althussers thinking moves from the economic through to a positing of the entire social totality; thus to describe the social totality is to define the economic, just as defining the economic will allow a positing of the social totality. For example, a feudal means of production will result in a society that is organised feudally; a capitalist mode of production a capitalist society.
Activity 13.5
a. In what ways are Marxists critical of both Western liberalism and Soviet communism? b. What criticisms of the law are made by Fine and Picciotto? c. In what ways does Althussers work build on Marxs basic theory? Feedback: see end of guide. This approach would be entirely coherent with the basic tenets of Marxist theory as outlined above. It displays both the strengths and weaknesses of the Marxist account. It can present a total image of a social structure: a way of thinking the relationships between various aspects of society; it also carries the risk that one looks to economy to understand society. In Reading Kapital, Althusser is suggesting that it is too simplistic to describe the inherently complex set of relationships and inter-relationships that characterise social being in terms of isolated instances: even dividing up the social into economy, law and culture imposes a crude analytical device that posits definable and isolatable instances parts of a complex whole, that can be divided off from each other and labelled by the observer. Furthermore, the very idea that the social can be modelled on the basis of a whole a coherent assembly in which the parts fit together is also too simplistic. However, one needs to remember that this is an analytical language. We must not abandon Althusser too soon. How can we think about the law, the legal instance in this complex conjugation? Can we build a model of complexity, or, does it fall back into a crude distinction between base and superstructure? Althusser makes a distinction between production, or economy, and the legal-political and ideological superstructure (Reading Kapital, p. 177). In each of these instances, law and economy, we would have to find a differentiation; a complexity. In other words, a combination of law and economy would characterise economy, just as it would law. Sure enough, in economic production, there is a distinction between the objects of production, such as land, and the instruments of production. Agents of production (human beings, that is) are split into direct agents, whose labour is directly used in production, and another group who own the means of production, but do not labour in it directly. Economic formations are thus defined by the result of different combinations that are at once economic and legal. Following Althussers theory, we could see law as essential to the structuring of economy, and economy as therefore inseparable from law. We would thus be able to produce an account of the law that can take into consideration the laws specific form, whilst allowing that this form also enters into relationships with economic concepts and practices.
Jurisprudence and legal theory 13 Marx, Marxism and Marxist legal theory What are the key elements of Althussers re-reading of Marx?
Althusser is breaking down the distinction between base and superstructure, to produce a theory of the economic determination of the social as one of complex conjugation. Alongside this re-thinking of economy, we can see Althusser producing a new theory of ideology. As we have seen, the Marxist tradition understands the state as an instrument of the ruling class. The instruments at its disposal are not just the repressive institutions such as the police, and, in emergencies, the army. A full list of the state apparatus is open-ended, but would include: the Government, the Administration, the Army, the Police, the Court [and] the Prisons. Merely as a point of clarification at this stage, it is arguable that these repressive state apparatuses (RSAs) do not all operate through physical repression, even though this may be true in the last instance. Administration, for instance, works through bureaucratic structures that regulate and distribute resources. Moreover, it is a commonplace of political theory that rule through physical repression alone is inefficient, and encourages resistance. Accounting for the law through violence, though, is not enough. Clearly the modern state does not justify itself through its control over the monopoly of violence. Capitalism is a social formation that must reproduce the conditions of its own production (Althusser, 1984). That is to say that both the productive forces and the relations of production must renew themselves. This is a global operation that laces together the various sectors of the economy. It also produces the double requirement of ideology, which must reproduce the skills necessary to work, manage and coordinate and, at the same time, reproduce subjection to the ruling order.
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In what ways does Althusser build a new theory of law and ideology?
Althusser argues that law is central to the creation and continuation of ideology. He characterises law as an ideological state apparatus (ISA). ISAs are far more subtle than the repressive apparatus of the state (RSAs) that we considered above. They actually create the world in which we live. This is a real development of Marxs theory of ideology. Instead of the notion that ideology is a veil that separates the real from the unreal, it becomes the very point or a hinge that connects the subject to the real world. Ideology is thus a way of describing the mechanism through which the subject is inserted into a given material reality. In its most extended form, it is a materialist theory of the subject as made by material circumstance. Thus subjective states are not to be seen as essences, ideas or spiritual substances, but the very complexes that attach the subject to an external world; in a sense the private, inner world of the separate self disappears. Consciousness, freely formed, and belief are thus the points when the subject is the least free, when the subject is inscribed into material practices. Of course, these material practices relate finally to the reproduction of the means of production. So we are created by our relationship to the means of production. What Althusser is suggesting is that your sense of self is ultimately explicable by the role you play in the economy. Law lends support to this creation of the self. Law positions us as buyers or sellers of goods, criminals, fiduciaries, husbands and wives. In other words, you arent what you think you are. You are to the extent that law and economy allow you to be!
Activity 13.6
What are Althussers ISAs and how do they operate? Feedback: see end of guide.
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Summary
Althusser produces a sophisticated re-reading of Marx that relates social being to economy in a more subtle way than was implied by Marxs rather deterministic notion that the economic base drives the social and ideological superstructure.
13.6 Marxism, law and international economy

One of the most interesting contemporary readings of Marx comes from the work of those scholars who are trying to understand the operation of law and global economy. In some senses, the focus of study shifts from questions of class and the nation state, to issues of global governance. Perhaps Althussers notion of ideology can help us understand how people are positioned in networks of global exchange, and new identities are created. In other words, maybe ideology plays a part in determining those selves who are positioned as economic migrants or managers, bankers or refugees. Moreover, perhaps world trade and the law that regulates world markets, for instance, can be understood in terms of the perpetuation of relationships of dominance and subservience between developing and developed nations We can make a distinction between developed metropole and undeveloped satellites. This division is based on a global division of labour, a requirement that production is for the market. To borrow the language of Baran (1957, p. 142) the unilateral transfers of wealth from the colonised nations to those of Western Europe can be seen as a primary reason why intense industrial development in First World nations was accompanied by the traumatic dislocation of agricultural societies forced to service the requirements of their colonial masters. This interference in the process of capital accumulation could be seen as having a serious impact on the development of the colonised territories (Kiely, 1995, pp. 4047). A total critique of the very terms in which the global framework operates can be found in Wallersteins (1974) world systems theory. The underpinnings of the disequilibria in world economy can be related to the interaction of certain key factors. World economy can be seen as a product of the geographical expansion of Western power from the sixteenth century onwards. This process is coupled with a zoning of the world; a specialisation of different areas in the production of materials and labour for manufacture. In turn, this zoning relates to interactions between colonial expansion and economic development along capitalist lines. The process is accompanied by an institutional logic that locates the development of strong states at the centre of economic networks that can ensure the ongoing transfer of resources to the developed economies. How can we read this into the law? We could look at international trade law. Conventional accounts present the efforts of governments and international organisations to bring some order into the chaos of international trade (Jackson, 1999, p. 2). Indeed, the American desire to create a regime based on free trade and nondiscrimination remains one of the principles underlying GATT (Dam, 1970). The defenders of this approach raise the argument that trade tends towards the most rational organisation of resources, and the legal regulation helps to achieve this end. However, could we not see international trade and trade law as a historical phenomenon, as bound up with the creation of the nation state, colonialism and the post-colonial? We need to appreciate a power dynamic that runs through the operation of trade and financial systems. WTO figures show that between 1990 and 2002, although developing nations may have maintained their share of world trade, they have remained on the margins of the world trade system as a whole. How has this persistent problem been approached? Development was put firmly on the agenda in 1999 with the failure of the Seattle Ministerial Conference (amid large-scale protest demonstrations) to agree another round of talks. Seattle led to another questioning of the ability of the WTO to co-ordinate world trade; in particular the consensus-orientated approach was criticised by developing nations.
For instance, although export earnings have grown (2002 showed a 4% growth to US$38 billion), imports have still exceeded exports (2002 showed an increase of 3%). See Cancun Press Briefing at http://web.worldbank.org/ WBSITE/EXTERNAL/NEWS/co ntentMDK:20126037~menu PK:34465~pagePK:640030 15~piPK:64003012~theSite PK:4607,00.html
The WTOs own version of affairs contrasts this stalemate with the breakthrough that was achieved at the next ministerial meeting in Doha, 2001, with the publication of the Doha Development Agenda (DDA). This document stressed the need for developing nations to achieve greater access to world markets, and initiated a work programme to push forward the development initiative. The WTO acknowledged the particular vulnerability of least-developed countries and the special structural difficulties they face in the global economy. Can these problems be resolved by law? It would be possible to argue that the law should not be concerned with issues of international social justice, but has a narrower role as a formal tool to regulate world markets. Might it be possible to suggest then, that if those markets operate to the benefit of certain parts of the world, and to the marginalisation others, then the Marxist insight into the nature of capital is still relevant? Moreover, the basic Marxist jurisprudential insight remains accurate. To understand the law, you must look to the economic forms that underlie the law: to understand globalised law, one has to understand the global market.
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Activity 13.7
To what extent is a Marxist approach to trade law useful? Feedback: see end of guide.
Conclusion: If you tolerate this, your children will be next

Iraq since being conquered in 2003 has been opened to private companies and investors. The reconstruction of Iraq is particularly attractive to private companies, offering many more opportunities than those that existed in the aftermath of the 1991 Gulf War. The countrys oil revenues, and the projected return of skilled Iraqis from exile abroad, make for enticing construction and development prospects. Contracts for the reconstruction of Iraq are estimated to be worth $100 billion (though in practice, during 2004 nearly half of the funds earmarked for reconstruction were being spent on security for the contractors involved). European companies were placing pressure on their governments to make their cases to the American administration, and the International Herald Tribune reported a corporate scramble that extended to corporate scouts operating with military forces in Iraq. Corporate scouts are reserve officers, who, whilst fulfilling military functions, identify business opportunities. Marxism as an outdated nineteenth-century theory that can tell us nothing about our world? Think about it.
If you tolerate this, your children will be next: originally a Republican slogan from 193639 Spanish Civil War; latterly a pop song by the radical British group Manic Street Preachers.

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describe the characteristics of Soviet jurisprudence explain the development of Marxs theories of ideology, economy and law by Louis Althusser indicate how Marxs thought might be relevant to a contemporary theory of international law.
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One particular issue is the control of the communications industry. It is alleged that Vodaphone has been making overtures, but the differences in telecommunications technology between Europe and the US strongly suggest that this share of the market will be awarded to US companies.
References

Althusser, L. Essays on Ideology. (London: Verso, 1984). Bankowski, Z. and G. Mungham Images of Law. (London: Routledge, 1976). Baran, P. The Political Economy of Growth. (New York: Monthly Review Press, 1957). Bottomore, T. and P. Goode Readings in Marxist Sociology. (Oxford: Oxford University Press, 1983).
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Dam, K. W. The GATT: Law and International Economic Organization. (Chicago: University of Chicago Press, 1970). Jackson, J. H. The Jurisprudence of GATT and the WTO: Insights into treaty law and economic relations. (Cambridge: Cambridge University Press, 1999). Kiely, R. Sociology and Development: The impasse and beyond. (London: Routledge, 1995). Wallerstein, I. The Modern World System: Capitalist Agriculture and the Origins of the European World-economy in the Sixteenth Century Vol. 1. (New York: Academic Press, 1974).
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Reflect and review

Ready to Need to Need to move on revise first study again I can outline Marxs ideas of ideology, economy and society I can identify the philosophical tradition out of which Marxs thought emerges I can describe Marxs ideas of law and of the state I can describe the characteristics of Soviet jurisprudence I can explain the development of Marxs theories of ideology, economy and law by Louis Althusser I can indicate how Marxs thought might be relevant to a contemporary theory of international law.
Must revise 13.1 13.2 13.3 13.4 13.5 13.6 Marxs basic ideas of ideology, economy and society The Marxist theory of the state Marxs theory of law in Das Kapital Soviet Marxism and the law Setting Marx the right way up: Western Marxism Marxism, law and international economy Revision done
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Notes
14 Liberalism and law
Contents
14.1 14.2 14.3 14.4 14.5 14.6 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 198
Utilitarianism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 199 Criticisms of utilitarianism . . . . . . . . . . . . . . . . . . . . . . . 200
Liberalism: liberty and equality . . . . . . . . . . . . . . . . . . . . . 201 Disagreements about morality: can they be resolved rationally? . . . . 202 Equality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203 The economic analysis of law . . . . . . . . . . . . . . . . . . . . . . 204 Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . 207
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Introduction
This chapter introduces you to the general topic of what liberalism is, and how ideas of liberalism interact with law. It begins by looking at the modern versions of utilitarianism, in particular rule-utilitarianism, and its criticisms, and so it builds on the reading that you will have done for Chapter 3 of this subject guide, since the origins of utilitarianism are to be found in the works of Jeremy Bentham. Utilitarianism is a liberal doctrine. It aims at happiness, or in more modern terms, preference satisfaction or welfare, and this idea fundamentally gains its power from its emphasis on liberty. In turn, since one persons liberty is another persons lack of freedom, a moral principle of equality can be uncovered, that regulates each persons relationship with each other. This relationship particularly comes out in the idea of the marketplace, where we expect people in the ideal world to be as far as possible free to bargain without the constraints created by inequalities of bargaining power. The idea was taken up in the 1970s, most famously by the Chicago School of Law, and its doctrines became known simply as the Chicago School. Also discussed in this chapter is the idea that moral disagreements can sometimes be resolved by rational means.
Learning outcomes
explain modern utilitarianism outline your attitude towards the idea of liberty describe Lord Devlins, Harts and Mills views on liberty discuss the idea that the criminal law should be used to enforce morality comment on the nature of moral disagreement comment on the importance of moral equality discuss critically the economic analysis of law.
Essential reading
Dworkin, R. Taking Rights Seriously. (London: Duckworth, 1978) [ISBN 0715611747] Chapter 9 (generally on reverse discrimination but particularly his distinction between treating people as equals and equal treatment) and Chapter 10 (particularly the section The concept of a moral position). Dworkin, R. A Matter of Principle. (Oxford: Clarendon Press, 1985) [ISBN 0198255748] Chapters 12 and 13 (the classic criticisms of the Chicago school). Fletcher, G. Basic Concepts of Legal Thought. (Oxford: Oxford University Press, 1996) [ISBN 0195083369]. See the final part, Morality in the law, particularly Chapter 10. This provides an excellent account of the economic concepts in frequent use. Glover, J. Causing Death and Saving Lives. (London: Penguin, 1990) [ISBN 0140134794] Chapter 2. Harris, J. Legal Philosophies. (London: Butterworths, 1997) second edition [ISBN 0406507163] pp. 4247 (and see the very useful reading list on p. 48). Mill, J. On Liberty. (1859) (many editions are available, and the famous harm principle, which you should know, is widely described on the Internet; you should type Mills harm principle into your search engine). Raz, J. The Morality of Freedom. (Oxford: Oxford University Press, 1986) [ISBN 0198247729] Chapters 4, 14 and 15 (particularly Chapter 15, for a re-interpretation of Mills harm principle).
Jurisprudence and legal theory 14 Liberalism and law
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14.1 Utilitarianism
Essential reading
Simmonds, N. Central Issues in Jurisprudence: Justice, Law and Rights. (London: Sweet & Maxwell, 2002) [ISBN 0421741201] Chapter 1. Rawls, J. A Theory of Justice. (Oxford: Oxford University Press, 1999) [ISBN 019825055X] pp. 2227 and 4653. Smart, J. J. C. and B. Williams Utilitarianism: For and Against. (Cambridge: Cambridge University Press,1977). [ISBN 052109822X] This is most comprehensive a long but very useful read. The Williams reply is difficult but is regarded by many as the classic attack on utilitarianism.
This section looks at the modern discussion of utilitarianism, so the topic arises as a natural progression from Chapter 3 of this guide. Utilitarianism is a moral theory, first written widely about by Jeremy Bentham, who is often acknowledged as the father of English Jurisprudence. It is therefore included in the syllabus partly for historical reasons. But utilitarianism has had an enormous effect on English (and Commonwealth) practical life. Note, in particular, its effect on the growth of liberalism (each man to count as one, no one to count for more than one) and economics. It is difficult for law to get right away from addressing moral questions, and utilitarianism, in its various forms, is widely accepted. The extract from Rawls will set you on the right path. Some Jurisprudence students really get into utilitarianism, because it is a good way of working out what your own ideas are. It is, in fact, the easiest and most fruitful way to begin to discover what moral philosophy is about. Some of the best answers ever given in a Jurisprudence examination have been on utilitarianism. One of the things that has marked out the answers is a display of reasoned commitment to a view, thus satisfying one of the most important objectives of your study: to adopt a critical approach. It would be a serious mistake to suppose that utilitarianism ended with Bentham: there are modern variants. You should also be aware that a common complaint by committed utilitarians is that critics of the idea (often called, as you will discover, the deontologists) misunderstand how subtle utilitarianism can be. So, make sure that in writing examination answers you are strictly fair to the account of utilitarianism you give. If you fail to provide a good model of utilitarianism to criticise (if you are so minded) then your arguments will seem much weaker because you will be open to the criticism that you missed the point. An example of a strengthened version of utilitarianism, designed to forestall objections based on the idea that people have rights, is rule utilitarianism, invented, incidentally by lawyers wishing to explain legal rights in utilitarian terms. (See the examination example on utilitarianism in the introductory chapter to this guide.)
1. What is the difference between act and rule utilitarianism? 2. What is preference utilitarianism?
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14.2 Criticisms of utilitarianism

There are many criticisms and it will be instructive to list the main lines of thought, which you should follow up in your reading:
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utilitarianism relies too much on describing peoples actually existing desires and so is insufficiently aspirational to be a good moral theory (i.e. it is philistine) utilitarianism relies on the consequences of an act, rather than an acts inherent rightness (i.e. it ignores peoples rights see the tramp example below) utilitarianisms implicit idea of maximisation mistakenly assumes peoples different values to be commensurable (e.g. it can equate poetry with drinking beer).
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A clear and comprehensive account of arguments both for and against utilitarianism is to be found in the Smart and Williams debate, Professor Smart taking the proutilitarian line and Professor Williams taking a famous anti-utilitarian line. It is a difficult read, but a candidate who is aiming for the best marks will read this book from cover to cover. It is readily available and is not so long (but the Williams half is tough-going). Consider the following example. You come across a tramp unconscious through drugs. You recognise him as someone youve treated as a doctor and you know that he has not long to live, has no dependents and suffers severe depression. You are a utilitarian (perhaps you have read Chapter 3 of this subject guide) and so you think you know your duty. You inject the tramp with 1s worth of a sleeping drug, sufficient to kill him. What is the upside? The tramp suffers no pain, and no more depression. You are happier, as you feel you have done your utilitarian duty. No-one finds out and so no-one feels threatened (you do this secretly, and it easy to do, as the tramp was in an alley). The evidence is that the tramp, if he had not been killed, would have continued living for another six months committing various petty crimes, and so a stop has been brought to these. The tramps burial is cheap, and no more social security expenditure or hospital expenditure is needed for him. Now consider the following questions. It is important that you know where you stand on all this, so try to form a view:
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Even if everyone is better off, including the tramp, was the killing justified? If it was not justified, why not? Could it be that it is justified, but we feel irrational squeamish feelings (see Williams, above) that we should learn to suppress because this was the right act? Would a rule utilitarian approach produce a better result? Why?
If you think that the answer may come from the perspective of the tramp, you have identified a central weakness of utilitarianism: it cannot take the individual perspective into account.
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Summary
Utilitarianism judges acts by their outcomes for the general good. Sometimes it takes a rule-oriented approach, allowing that people should be treated in certain sorts of ways because, although the short-term outcome is not for the general good, the longterm outcome is. The major criticism of utilitarianism is that it ignores the perspective of the individual. This perspective is generally characterised in terms of rights. So even if the general good were enhanced by the unconsented-to killing of an individual, this would not be sufficient to overcome our feelings that this would be wrong.
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14.3 Liberalism: liberty and equality

Essential reading
Devlin, P. The Enforcement of Morals. (Oxford: Oxford University Press, 1965) [ISBN 0192850180] Chapters 1, 5 and 7. Hart, H. Essays in Jurisprudence and Philosophy. (Oxford: Oxford University Press, 1983) [ISBN 0198253885] Chapter 11. Hart, H. Law, Liberty and Morality. (Oxford: Oxford University Press, 1963) [ISBN 0192850172]. Mill, J. On Liberty. (Cambridge: Cambridge University Press, 1989) [ISBN 0521370159] Chapters 1 and 4.
The development and acceptance of the twin ideals of liberty and equality have been a hallmark of the last 500 years. Do not be put off by the apparently wide scope of this topic, as there is also great scope for original contribution by you. Try to form your own opinion on these matters. In all probability you will find that you have one already and your reading will help you to refine your ideas. Do not be afraid to exercise your imagination.
Liberty: the HartDevlin debate

Lord Devlins view is that morality is that which the ordinary man on the Clapham omnibus thinks, and those moral views that man has for which he has very strong feelings of indignation are, just for that reason, enforceable by criminal sanction. Hart does not think that the ordinary mans reactions are a criterion of moral rightness, nor does he think that doing wrong is strong ground for criminal sanction. Rather, he takes the line of John Stuart Mill that society should only prevent people from doing those things that interfere with the freedom of others, thus extending Mills idea of harm to others to interfering with the freedom of others. Constantly test yourself as you read, in order to find out what you think of the quality of the debate between Devlin and Hart. Do you agree with Devlin? If so, why? And do you agree with Hart? If so, why? You cannot agree with both. One way to compare the two jurists is to think up an example where there are no obvious harmful social consequences of a persons conduct, but where you are inclined to think that the behaviour is, nevertheless, immoral in some way. The usual sort of case is where the conduct displays lack of self-discipline (e.g. extreme laziness, the taking of hard drugs), or is disrespectful to people, or to life (e.g. hate speech, or some motivations for abortion), or is indulgent (e.g. laziness again, or obsession with pornography) or tasteless (again, pornography). Should any of this conduct be criminally punishable by the community? Why? You should constantly keep in mind the different variables. What is the precise duty, if any, of the community? Should it extend to criminal punishment for these activities, as opposed to education or remonstration? Should it have any say? Is homosexual conduct tasteless or abhorrent? Should people be required to conform externally to a code of conduct they genuinely and honestly do not believe in?
Test yourself by trying to work out what is: 1. Devlins position on each of the above questions 2. Harts positions on the questions 3. Your own position.
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14.4 Disagreements about morality: can they be resolved rationally?

Essential reading
Dworkin, R. Taking Rights Seriously. (London: Duckworth, 1978) [ISBN 0715611747] Chapter 10 (particularly the section entitled The concept of a moral position). Glover, J. Causing Death and Saving Lives. (London: Penguin, 1990) [ISBN 0140134794] Chapter 2. Also see the reading on the one right answer thesis in Chapter 11.
Both Dworkin and Glover discuss the nature of moral reasoning. They are easy to read, not long, and full of examples. Ronald Dworkin outlines what he calls the concept of a moral position. He takes up the point, arising from the HartDevlin debate (see previous section), that the ordinary mans reactions can be irrational, or prejudiced, or lacking in evidence, or a mere gut reaction, or just repeating (parroting) the views of others. None of this amounts to even to having a wrong moral point of view but rather to not even being in the position of saying that this a moral view at all. Jonathan Glover takes a similar line. He says that moral disagreement can be factual (e.g. laws cause misery) or non-factual (taking human life is wrong full stop). He says that in resolving disagreement in morals, we can go back to ultimate axioms, although these can often be blurred or incoherent (e.g. that homosexuality is unnatural), or logically inadequate (e.g. animals dont suffer because theyre not rational), and they can just be logically inconsistent (e.g. the person who says that taking human life is always wrong, but says he believes in the just war). What comes out of these two articles is a thesis that arguing about morality is not just arguing about matters of purely subjective opinion but about matters that can be debated rationally. Not every view that someone puts forward as a valid moral view, however strongly that person feels about it, is a moral view. People can be mistaken, and have wrong beliefs, if their views fail to reach a certain threshold of rationality.
Activity 14.1
Consider the truth of the following statements, held by someone or other at some time, and write one sentence as to why you think it is true or false:
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homosexuality is wrong because my parents told me homosexuality is wrong because the Bible says so homosexuality is wrong because it causes earthquakes (apparently the Emperor Justinian believed this) wearing clothes is unnatural pornography causes mental harm capital punishment is justified because it stops people committing crimes.
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No feedback provided.
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14.5 Equality
Essential reading
Raz, J. The Morality of Freedom. (Oxford: Oxford University Press, 1986) [ISBN 0198247729] Chapter 4. Williams, B. The idea of equality in Laslett and Runciman (eds) Philosophy, Politics and Society. (Oxford: Blackwell, 1962) [ISBN 0631048804] p.125 (a famous and classic introduction to the idea of equality).
Bernard Williams argues that equality has a special meaning in morality to strike at unjustified statuses and hierarchies. One of the reasons we approve of equality of opportunity is that we think that everyone, because of their common humanity, should have the same sorts of chances in life, even though some do not, perhaps cannot, take them up. But there are problems with the idea. Some people are for more freedom and less equality. They say they oppose equality because it is uneconomic and stifles human endeavour, enterprise and creativity, having in mind equality as it was interpreted in the former Soviet bloc countries. Others say we should have more equality and less freedom, and these people are usually for more state support and intervention, particularly in the real marketplace. The enemy for these people is the society in which those who are capable of exercising freedom come out on top. Not everyone can exercise freedom to the same extent. But healthy and intelligent people, who have let us say an entrepreneurial spirit, may take freedom away from others by manipulation and exploitation. You should consider where you stand on all this. But it is useful to have some tools at your disposal. One is that you should note a famous difficulty with the idea of equality, which is that it is claimed to be an empty ideal. Note first the comparative nature of equality. Someone is equal to someone else; someone is unequal to someone else. It requires a judgment about the extent to which one state of affairs matches up to, or compares with, another. Obviously, the idea of comparing human beings with one another is, in many respects, absurd and that is one reason why so many have rejected the idea altogether. That was why Jeremy Bentham, in his work Anarchical Fallacies (1796), said that if we really were to regard people as equal:
The madman has as good a right to confine anybody else, as anybody else has to confine him. The idiot has as much right to govern everybody, as anybody has to govern him. (See Waldron, J. Nonsense Upon Stilts. (London: Methuen, 1987) [ISBN 0 416 91890 5] pp. 29ff and particularly p. 42.)
You should consider the following questions as you read the material on equality. What, if anything, are people equal in? Equality is a comparative idea, comparing at least two things. What is the comparison between when it comes to judging people equally? Is there a difference between treating a person as an equal and treating two people equally? If there is, what significance, if any, does the difference have? Is there a relationship between a moral principle of equality and the maxim of the New Testament that you should do unto others as you would they do unto you? If people should be treated as equals, what follows about the distribution of wealth? Does it mean that each person is entitled to the same-sized share?
A reasonable answer to Benthams remark is that what is common to all people is their humanity everyone is a human being and it is that in respect of which each person is equal. But it then seems possible, as a number of philosophers have argued (see Raz, The Morality of Freedom, Chapter 4), to drop the equality idea from this and just say that all people should be treated as human beings.
Summary
Perhaps, if you want to hold onto equality, equality should be seen as a quality of our acts towards others, measured in how we treat them and not by the amount that people are equalised. If the focus is turned this way, it is possible to see that equality might be implied in the common sort of complaint that goes Im a person, too, or Try to see it from my point of view, or Be fair to me.
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14.6 The economic analysis of law

Essential reading
Dworkin, R. A Matter of Principle. (Oxford: Clarendon Press, 1985) [ISBN 0198255748] Chapters 12 and 13 (the classic criticisms of the Chicago school). Fletcher, G. Basic Concepts of Legal Thought. (Oxford: Oxford University Press, 1996) [ISBN 0195083369]. See the final part, Morality in the law, particularly Chapter 10. This provides an excellent account of the economic concepts in frequent use. Fried, C. Right and Wrong. (Cambridge, Mass.: Harvard University Press, 1978) [ISBN 0674769058] Chapter 4. Guest, S. Ronald Dworkin. (Edinburgh: Edinburgh University Press, 1997) second edition [ISBN 0748608052] Chapter 9. Harris, J. Legal Philosophies. (London: Butterworths, 1997) second edition [ISBN 0406507163] pp. 4247 (and see the very useful reading list on p. 48). Nozick, R. Anarchy, State and Utopia. (New York: Basic Books, 1971) [ISBN 0465097200] pp. 5787 and 160164 (and see Simmonds, Chapter 3). Posner, R. The Economics of Justice. (Cambridge, Mass.: Harvard University Press, 1981) [ISBN 0674235258] Chapter 14.
The economic analysis of law is a way of looking at utilitarianism, and the intermeshing of the ideas of liberty and equality. Ask yourself: what is attractive about the ideal market? Much of it derives from the attraction of that most basic tool of economists the Pareto criterion of economic success. The Pareto criterion says that when we make a bargain with another, so that at least one of us is better off and neither is worse off, that must produce a better state of affairs. A major attraction of the idea of the free market is that the parties are at liberty to bargain as they like and that is why the outcomes seem fair. But obviously, it is easy to argue that the outcome is only fair if the input into the conditions for the original bargain is fair, too. Here is where equality comes in. There has to be equality of bargaining position for the market to be fair and, note, this principle of equality seems to underlie the familiar requirements in the law of contract of lack of monopoly, duress, misrepresentation and fraud. The Pareto criterion is therefore different from the criterion of cost-benefit. That criterion measures only in terms of wealth something quite different from wellbeing, or happiness and it allows one, or even both, parties to emerge much worse off. Cost-benefit analysis has its place as a useful tool for both individuals and companies in the rational allocation of scarce resources. But it is altogether a different matter to apply the analysis wholesale to a community, for people are then treated, not as having their own individual points of view, but on the basis of the average behaviour they exhibit in groups. Acquaintance with this topic will allow you something concrete to anchor much of the discussion about freedom and equality, since these two very abstract ideas are integral to the key idea within the economic analysis of law the market. Incidentally, Posner these days tends to suggest that what he said earlier could in large part be discounted in favour of his pragmatic approach. There are two things to say about this. First, the originality and force of his seminal papers (see Chapters 14 of his The Economics of Justice) stand on their own as of historical and intellectual importance. Many people followed, and still follow, what he said there. Right or wrong, it is undeniably powerful and so it is worth studying. Once you have grasped what each side of the debate is saying, you need to look at some practical examples of how economic analysis can be put into practice. It is clear that proponents of either side of the debate do not differ on the question of whether economic thinking in general is relevant to legal reasoning thinkers on both sides clearly do think that economic thinking is relevant. They differ, instead, on the
The best way into this very interesting subject, which unites legal reasoning directly with positions in political philosophy, is to read the overview readings, Harris and Fletcher, first. The Fletcher is particularly good, but it is easier if the Harris is read first. Then test yourself by making sure you understand: the Pareto criterion the KaldorHicks criterion the Coase theorem the ideal market and the differences between welfare, wealth and currency. This will then give you the basics. Dont be put off by the technical terms because, once you are used to them, you find the subject doesnt get any harder. This is a most rewarding subject to get into it and my experience is that some students find it the most rewarding part of the module. This is where it all comes together, they say.

character of the economic reasoning employed. Posner and his followers are out-andout utilitarians, whereas Fried, Dworkin and others think that utilitarian accounts of judicial reasoning misunderstand the central role that our rights as individuals play in legal argument. This subject is, too, an extremely useful way of preparing yourself for the contemporary debates concerning utilitarianism, and how utilitarian demands can conflict with at least some fundamental rights.
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Analysing the economists

You may like to consider the following questions:
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What do economists mean when they talk of the ideal market? Is Fried right to say that the idea of a person is presupposed in market calculations? Is Posners theory anything other than utilitarianism with all its warts? (Dworkin). Compare the Pareto criterion with the KaldorHicks criterion. What are the similarities and the dissimilarities? Which one is more to use the economists phrase ethically attractive?
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Activity 14.2
From your reading: a. Explain the Pareto criterion b. Explain the Coase theorem c. Compare these with the KaldorHicks criterion. Feedback: see end of guide.
Summing up the Chicago School

Combine Coase with KaldorHicks, add the requirement that judges act to make the most efficient decisions, and you have Richard Posners theory of judicial reasoning.
Summary
The Chicago School analyses law in terms of its cost-effectiveness, measured by the KaldorHicks criterion rather than the Pareto criterion. Because the criterion of a good judicial decision is that it maximises economic efficiency, it is a form of utilitarianism, and so arguments about rights are relevant to criticising it. One useful line of criticism is that rights seem to enter the line of judicial reasoning before the measurement of outcomes. That is, if legal rights are only allocated to individuals when the outcomes are known, what sense can be given to the rights implied in a contract (say) since such rights must be determinable independently of whether the contract is efficient or not.

explain modern utilitarianism outline your attitude towards the idea of liberty describe Lord Devlins, Harts and Mills views on liberty discuss the idea that the criminal law should be used to enforce morality comment on the nature of moral disagreement comment on the importance of moral equality discuss critically the economic analysis of law.
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Question 1 Are the values of equality and freedom opposed to utilitarian values? Question 2 Does utilitarianism provide solutions that we could adopt when we are considering what, morally, to do? Question 3 What difficulties, if any, are there in the idea that people should act to increase the happiness of the greatest number of people? Question 4 Are there justifications for the state enforcing conventional morality through (a) the criminal law or (b) the civil law? Question 5 Discuss critically Posners theory of adjudication by way of wealth maximisation.

Question 1 The success in answering this sort of question lies in showing that you have adopted a stance towards utilitarianism. If you have a view about whether utilitarianism is right or wrong, then using the tramp example that I give above should guide you to the positions that the question is asking you to evaluate. Do you treat the tramp as an equal (whatever that means) when you inject him without his consent? Note the relationship between consent and freedom, too. Question 2 This is pleasingly straightforward on the surface (in a sense, it is obvious that utilitarianism provides solutions that we could adopt), but it is really asking you whether you think that the sorts of solution that utilitarianism commends are ones that commend themselves to you. Again, the question is trying to elicit your views about the doctrine. An excellent way to answer the question would be to consider whether you should suppress your feelings about the consequences of some act (the killing of the tramp, for example) and try not to be squeamish as Williams says. This raises the question of the relationship between a theory of what morally we ought to do (utilitarianism is one such theory) and our intuitive reactions to what that theory proposes we do. Question 3 This is straightforward, and requires you to engage in a critical account of utilitarianism. Again, the expression of your own view is crucial. Question 4 This requires a discussion of Mills principle, and the HartDevlin debate, which is reasonably straightforward. However, it requires some independent thinking about the civil law (because, of course, the context of the HartDevlin debate was a criminal law concerning homosexual activity). But there is no great difficulty here (although I suspect many candidates would shy away from this question because of this aspect). It just means a bit of independent thought. What is the difference between the criminal and the civil law? One could argue that provided, say, enough people disliked an activity then it would be possible to outlaw non-conventional conduct through legislation. But it would not follow that the only way to outlaw the conduct would be through the criminal law. For example, homosexuals would not be fined, or put in prison, but homosexual partners could be denied the rights of married people, or prevented from applying for certain types of jobs. Would this sort of approach be any more acceptable than outlawing homosexual conduct by means of the criminal law? It is difficult to see how. Question 5 Discuss critically does not mean criticise. Rather, it means weigh up the pros and cons of the theory. And so you could answer this question very well by considering the arguments against Posners theory of wealth maximisation and then answering them one by one. The best criticism of the Posnerian theory is in Dworkins article in A Matter of Principle entitled Is Wealth a Value? It is difficult and long, but there is sufficient criticism in the first few pages for you to see the general line he takes, which is that wealth maximisation is just another name for utilitarianism and, as Dworkin says, all its warts.
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Reflect and review

Ready to Need to Need to move on revise first study again I can explain modern utilitarianism I can outline my attitude towards the idea of liberty I can describe Lord Devlins, Harts and Mills views on liberty I can discuss the idea that the criminal law should be used to enforce morality I can comment on the nature of moral disagreement I can comment on the importance of moral equality I can discuss critically the economic analysis of law
Must revise 14.1 14.2 14.3 14.4 14.5 14.6 Utilitarianism Criticisms of utilitarianism Liberalism: liberty and equality Revision done
Disagreements about morality: can they be resolved rationally? Equality The economic analysis of law
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Notes
15 Feminist legal theory
Contents
15.1 15.2 15.3 15.4 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 210
Deconstruction and reconstruction . . . . . . . . . . . . . . . . . . . 211 A brief history of feminist legal theory . . . . . . . . . . . . . . . . . 216
Feminist views of the state . . . . . . . . . . . . . . . . . . . . . . . 217 The future of feminist legal theory . . . . . . . . . . . . . . . . . . . Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . 221 225
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Introduction
Feminist theory has made a vibrant and controversial entry into academic writing in the field of law. The scholarship in this area has developed into a large body of literature which can defy organisation in its wide-ranging scope and complexity. Feminist theorising in legal scholarship draws widely from feminist theory in other disciplines literature, semiotics, sociology, political science and history to name a few. It intersects extensively with other types of critical theory, most notably that of critical race theory, and gay and lesbian legal studies. A note by way of caution: feminism has been described as a movement with many projects; there is not just one feminist view on everything, so not just one feminist legal theory. However, arguably feminist legal scholars have certain similar concerns. For example, they:
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show how law defines what is male/female/masculine and feminine, reinforcing the position of men and women in society to mens advantage analyse how the differences between women and men should or should not be reflected in legal rules, institutions and structures place the lives of real women at the centre of their scholarship often stress ideals of womens self-determination and freedom: for women to be treated as fully human. This draws upon themes of liberalism and we can ask if this is this a critique of liberalism or a better realisation of liberalism. are usually eager to bring change and transformation to society, including the legal system, to improve peoples lives.
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Domination, emancipation and the meaning of humanity are central ideas. Feminism involves a project of redefining the relationship between the individual and society. There is certainly a great diversity of scholarship with, however, several identifiable common themes.
Learning outcomes
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identify central themes in feminist jurisprudence discuss the work of several key scholars give an account of the history of theorising in this area apply feminist scholarship to certain key examples of legal practice.
Feminist scholarship is a discursive practice operating to resist and subvert the commonplace assumptions of the common sense ideas of womens roles which are taken as the products of dominant masculine culture. Moreover, feminism is a form of praxis. Feminist writers acknowledge the necessary connection between being a woman, writing as a woman, and existing continually inside oppressive masculine practices, but they assert the right to develop specifically critical perspectives in the name of affirming and changing for the better the position of women (and by implication coming to a deeper appreciation of the nature of humanity). The very term feminist jurisprudence may be a misnomer, for if jurisprudence is conceived as inherently structured according to masculine forms, the writing which goes under the banner of feminist jurisprudence is a critique written elsewhere than traditional jurisprudence.
Essential reading
There is a large range of feminist literature and several collections of essays which focus upon particular aspects of contemporary legal structure. Much of the literature originated in the USA or Western Europe. We do not, of course, wish to confine you to those sources alone, as the issues must be of global concern.
Jackson, E. and Lacey, N. Introducing feminist legal theory, Chapter 16 of Penner et al., Chapter 16. Of the textbooks expected to be available, see the readings in the sixth edition of Lloyds Introduction to Jurisprudence, Chapter 13, Feminist Jurisprudence. Make sure you have studied at least two writers in depth. Katherine T. Bartlett (Feminist Legal Methods) and Catherine MacKinnion (Towards a Feminist Theory of the State) are popular choices. Morrison, Chapter 17: Understanding Feminist Jurisprudence. Davies, M. Asking the Law Question. (Sydney: Lawbook Co., 2002) second edition [ISBN 0455218110] Chapter 6: Feminisms.
Jurisprudence and legal theory 15 Feminist legal theory

As reflecting an excellent commentary on the intersection of liberalism and social justice for women, see:
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Nussbaum, M. C. Sex and Social Justice. (Oxford: Oxford University Press, 1999) [ISBN 0195112105] in particular Chapter 1: Women and cultural universal and Chapter 2: The feminist critique of liberalism.
For a book-length introduction see:
Barnett, H. Introduction to Feminist Jurisprudence. (London: Cavendish, 1998) [ISBN 1859412378]. Barnett, H. Sourcebook on Feminist Jurisprudence. (London: Cavendish, 1997) [ISBN 1859411134]. This is both a source book and commentary upon the current debates within feminist legal theory.
15.1 Deconstruction and reconstruction

15.1.1 Some feminist issues with law
The wave of feminism that developed in the 1960s and 1970s was (rightly) concerned to demolish the myths of universality in concepts of political and legal theory. This involved analysing the classic works of the European past and demonstrating their patriarchal character (one may argue that this work also needs to be done for the nonWestern past as well). This was of course often a negative or deconstructive process, and many have felt that it would be a harder task to reconstruct concepts in political and legal theory in a new way that was relevant not only to the freedom and inclusion of women, but that also forwarded emancipation and equality for all. Concepts such as power, freedom, authority, privacy, democracy and citizenship are to be rethought and feminist writers brought in concepts not traditionally part of the liberal canon of political and legal theory for example, care. But a lasting question may be: is a postpatriarchal society conceptually imaginable and practically feasible? Some tactics in the writing include the following:
Tactic 1 Highlighting womens injuries and actual harm

Although a centre of focus has been on the prevalence of rape and the treatment of rape victims, rape is not viewed as an isolated phenomenon but as the most prominent example of activities which maintain women in a subjugated position and which have been largely overlooked by the legal system. As West (1987) puts it:
Just as womens work is not recognized or compensated by the market culture, womens injuries are often not recognized or compensated as injuries by the legal culture. The dismissal of womens gender-specific suffering comes in various forms, but the outcome is always the same: womens suffering for one reason or another is outside the scope of legal redress. Thus, womens distinctive gender-specific injuries are now or have in the recent past been variously dismissed as trivial (sexual harassment on the street); consensual (sexual harassment on the job); humorous (non-violent marital rape); participatory, subconsciously wanted, or self-induced (father/daughter incest); natural or biological, and therefore inevitable (childbirth); sporadic, and conceptually continuous with gender neutral pain (rape, viewed as a crime or violence); deserved or private (domestic violence); non-existent (pornography); incomprehensible (unpleasant and unwanted consensual sex) or legally predetermined (marital rape, in states with the marital exemption). (p. 118)
Rape and sexual violence (which we must note can extend to boys and men as well as girls and women) bring bodies, boundaries, violence and power in devastating combinations (Pettman, 1996, p. 101). Moreover, we must question the relationship between private and localised violences and the violence invoked in the name of the state, community or nation.
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Tactic 2 A critique of the epistemology of jurisprudence and the relationship of jurisprudence to the wider philosophical themes of Western society.
The assertion is that within traditional jurisprudence some writers claimed the title of objective science for generalisations which actually have been assertions from the masculine mode of thought. Some feminist scholars claim that such prevailing positions are not actually objective but only limited and biased; hence any perspectives arrived at are only partial. Instead all scholars must recognise the embeddedness of their own assumptions within a specific historical context. The following extract from Bottomley is illustrative:
By drawing on other disciplines we are now asking if not only the practice of law silences womens aspirations and needs, and conversely privileges those of men, but whether the very construction not only of the legal discourse, but representations of the discourse in the academy (the construction of our understanding and knowledge of law), is the product of patriarchal relations at the root of our society. (in Brophy and Smart (eds), 1987, p. 12)
All forms of dualism are questioned by feminism, since women have generally been the lesser regarded other within sets of dualistically defined relationships. In general, Western philosophy is seen as constructed out of sets of binary oppositions (including public|private; reason|emotion; light|darkness; and male|female), one side of which is privileged over the other. Thus women have been seen as the irrational, the emotional and the unreliable, and confined to the private sphere of the family while the male the rational enters the world of politics and law (see Olsen, 1990).
Tactic 3 Asking the woman question, which is tied up with the critique of abstract masculinity as the organising force of social thought.
This argument holds that the ideals of Western rationality, notably the rule of law but including scientific thought, distort and leave partial our understanding of nature and social relations. These ideals devalue contextual modes of thought and emotional components of reason. The issues that have dominated the task of governing and deciding upon new legislation have been issues that have most concerned men, the potentiality for an alternative womans perspective has been systematically ignored. Thus we find it argued that modernity has privileged male thought on ethics as superior morally to feminine modes of understanding. Carol Gilligan (1982), for example, takes aim at Kohlbergs theory of stages of moral reasoning (which had portrayed an increasing scale of complexity of ethical rationality with the peak being a contractual norm where justice is an obligation to contract which requires impartiality in administering the law and the rights of individuals to equal treatment under the law). In Kohlbergs scheme the cognitive basis of moral reasoning is a developing ability to take elements out of concrete situations and the particular acts of persons, to abstract from experienced context so as to create formal qualities, especially reciprocity, and to develop impartial and universal criteria. Gilligan argues that women can never reach the highest level of Kohlbergs categories but will continually display a relational bias focusing on interpersonal recognition; therefore women will always appear irrational. Conversely, Gilligan argues that the feminine perspective views morality around the poles of selfishness versus responsibility, compassion versus autonomy, and defines adulthood in terms of nurture and care rather than strict adherence to principle. The claim is that maleness is the organising form of what is accepted as the normal and that most forms of equality legislation are not vehicles for a true equality between men and women but rely upon making women as men. Throughout society the male is the central reference point; as MacKinnon (1987, p. 14) puts it: The promise that qualified women can have access to whatever men as a gender have assess to, is the promise of liberal equality. But MacKinnon asks:
Why does maleness provide an original entitlement, not questioned on the basis of its gender, so that it is women women who want to make a case of unequal treatment in
As OBrien (1981) p. 5 puts it: What women need to do, to put it in the simplest way, is to be able to demonstrate that male domination and the male-steam though that buttresses and justifies it are both, in some sense, prejudiced by the very fact that they are masculine. One way of doing this, or at least starting to do it, is to consider male philosophy as an ideology of male supremacy.

a world men have made in their image who have to show in effect that they are men in every relevant respect, unfortunately mistaken for women on the basis of an accident of birth? (Ibid., p. 37)
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Tactic 4 Listening to voices which have been excluded from the meta-narratives of modernity, specifically those of women but also those of ethnic minorities.
This silence on women projects the female as the place of patriarchys Other, identified with the dark and discredited side of every polarity, as body to mind, nature to culture, night to day... madness to reason (Connor, 1989, p. 229). This approach is clear in the form of much of feminist writing, which deliberately seeks to escape the traditional forms of clear, logical writing in the name of being true to real experience. The writing of black American law professor Patricia J. Williams, for example, uses reflections on personal experiences as the focus for exposing general themes. As she explains her writing:
I am interested in the way in which legal language flattens and confines in absolutes the complexity of meaning inherent in any given problem; I am trying to challenge the usual limits of commercial discourse by using an intentionally double-voiced and relational, rather than a traditionally black-letter, vocabulary. For example, I am a commercial lawyer as well as a teacher of contract and property law. I am also black and female, a status that one of my former employers described as being at oxymoronic odds with that of a commercial lawyer... On the one hand my writing has been staked out as the exclusive property of constitutional law, contract, African-American history, feminist jurisprudence, political science, and rhetoric. At the same time, my work has been described as a sophisticated frontal assault on laissez-faires most sacred sanctums, as new-age performance art, and as anecdotal individualism. In other words, to speak as black, female, and commercial lawyer has rendered me simultaneously universal, trendy, and marginal. (Williams, 1991, pp. 67).
Tactic 5 A critique of essentialist, functional categories and dichotomies (public/ private, mothering/fathering functions, reproduction, biology/culture, fixed gender identities and so on).
This line posits a multiplicity of subject positions, not just the unitary notions of woman, or female gender identity, treating gender as one relevant strand among others, attending also to class, race, ethnicity, age and sexual orientation (Fraser and Nicholson, 1988, p. 391).
Activity 15.1
Understanding the idea of subject position. The following extract comes from the beginning of a book written by the black feminist law professor, Patricia J. Williams (1991). Read it and then answer these questions: a. What is subject position and why does Patricia Williams appear to consider it fundamental in her analysis of the law? b. What difficulties can you see in following through the logic of subject position or stand-point theory?
Diary of a law professor

Since subject position is everything in my analysis of the law, you deserve to know that its a bad morning. I am very depressed. It always takes a while to sort out whats wrong, but it usually starts with some kind of perfectly irrational thought such as: I hate being a lawyer. This particular morning Im sitting up in bed reading about redhibitory vices. A redhibitory vice is a defect in merchandise which, if existing at the time of purchase, gives rise to a claim allowing the buyer to return the thing and get back part or all of the purchase price. The case Im reading is an 1835 decision from Louisiana, involving the redhibitory vice of craziness.
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The plaintiff alleged that he purchased of the defendant a slave named Kate, for which he paid $500, and two or three days after it was discovered the slave was crazy, and ran away, and that the vices were known to the defendant It was contended [by the seller] that Kate was not crazy but only stupid, and stupidity is not madness; but on the contrary, an apparent defect, against which the defendant did not warrant The code had declared that a sale may be avoided on account of any vice or defect, which renders the thing either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed the buyer would not have purchased with a knowledge of the vice. We are satisfied that the slave in question was wholly, and perhaps worse than, useless. As I said, this is the sort of morning when I hate being a lawyer, a teacher, and just about everything else in my life. Its all I can do to feed the cats. I let my hair stream wildly and the eyes roll back in my head. So you should know that this is one of those mornings when I refuse to compose myself properly; you should know you are dealing with someone who is writing this in an old terry bathrobe with little fringes of blue and white tassels dangling from the hem, trying to decide if she is stupid or crazy. Feedback: see end of guide. In her text Williams continues to weave together personal narrative and commentary on social reality. She tells of images from the television she turns on for inspiration; images which inform her that conditions are bad, very bad, all over the world . Williams seeks to upset the feeling that a major American economist John Kenneth Galbraith (1992) has called the culture of contentment, whereby those who are in the superclass mostly those in work who share in the increase in prosperity of the Western economy close their eyes to the suffering of the exploited and construct intellectual systems to avoid feeling socially responsible. Her attack is also on what critical legal scholars call reification (the ability of the legal system as we see with the story of the Zong to only consider social issues when they have been turned into objects of legal discourse and fitted into the concepts allowed by legal doctrine). What sort of process is it when courts can talk of a person only in the language of redhibitory vices? How does this discussion of a woman, Kate, boil down to whether or not the buyer can get his money back which in turn depends on whether the court finds her stupid or crazy? Williams plays on this, asking us to ponder if Williams herself is either stupid or crazy for getting upset.
See Chapter 12 for an account of the trials relating to the slaveship Zong.
Activity 15.2
What is meant by raising the woman question and consciousness raising? Feedback: see end of guide.
15.1.2 Critiquing a pivotal event: the French Revolution

Many writers hold out the French Revolution of 1789 as the crucial expression of modern liberal rights and law. Compared with 200 years ago, we are told, our position is dramatically better and our freedoms today are a product of the changes which have created modern society. Important writers, such as Anthony Giddens, claim that to understand our contemporary position we have to see it:
in the context of changes that have created the modern world. We live in an age of massive social transformation. In the space of only something like two centuries a sweeping set of social changes, which have hastened rather than lessened their pace today, have occurred. These changes, emanating originally from western Europe, are now global in their impact. They have all but totally dissolved the forms of social organisation in which humankind had lived for thousands of years of its previous history. Their core is to be found in what some described as the two great revolutions of eighteenth and nineteenth-century Europe. The first is the French Revolution of 1789 both a specific

set of events and a symbol of political transformations in our era. For the 1789 revolution was quite different from rebellions of previous times. Peasants had sometimes rebelled against their feudal masters, for example, but generally in an attempt to remove specific individuals from power, or to secure reductions in prices or taxes. In the French Revolution (to which we can bracket, with some reservations, the anti-colonial revolution in North America in 1776) for the first time in history there took place the overall dissolution of a social order by a movement guided by purely secular ideals universal liberty and equality. (Giddens, 1984, p. 4)
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Anthony Arblaster joins in this labelling of the importance of the French Revolution, seeing it as the moment that ensured that the ideals of Liberalism became part of modern social realities.
The American and French Revolutions transformed the historical power and prospects of liberalism. Without the French Revolution the liberal and radical ideals of the Enlightenment would have remained essentially ideas, circulating among the progressive intelligentsia, but without any substantial influence on political life... Within a few short years the French Revolution translated liberal ideas of liberal equality and individual rights into political realities, and it showed how such a transformation could take place through popular revolution based among the great masses of those who had always been politically excluded. It was the French Revolution which made the freedom of nations and the freedom of individuals into real and central issues in the politics not only of Europe, but of a wider world. And it was the French Revolution which ensured that political democracy also became a major issue. (Arblaster, 1984, p. 204)
The French Revolution displays all the ambiguities of the recourse to knowledge of the natural condition of humans in that while we view it as an expression of the natural rights of mankind and the sanctity of the individual, the position of women was very different. This can be seen in a number of key positions taken by the revolution.
Creation of divorce laws

The law of 20 September 1792 (one of the last acts of the Legislative Assembly) gave mothers equal rights with fathers in control over children after divorce; in marriage, however, the mothers rights were still subordinate to the fathers. Divorce followed from the declaration that marriage was a civil contract and therefore could be broken in particular situations. With the government of Napoleon Bonaparte came a reaction: under the Napoleonic civil code the wife is obligated to live with the husband and follow him everywhere (Article 214, quoted in Desanti, 1992). Any advances made in the revolution were reversed after the restoration of the monarchy in 1815 but the revolution became the model for divorce movements. For example, the nineteenthcentury French feminist, Flora Tristan (180344), through her writings takes the revolution as an unfinished project which she saw as the duty of thinking people of the nineteenth century to take further. She recounts a journey she made to Peru, a voyage of self-discovery and desire to rebuild the ideals of the revolution. Her writing recounts the stark reality of slavery, the slave trade of blacks and the condition of women slaves. In one section she relates seeing two black women condemned to death for infanticide and feeling the gaze of one of them which seemed to say to me: I let my child die because I knew he would not be free like you; I preferred him dead to enslaved. (Quoted in Desanti, 1992, p. 279)
Changing the inheritance laws

The equality of the parties under the divorce law reflected the notions of contract and the emphasis on the equality of individuals under contracts led the legislators to equalise inheritance for boys and girls.
Avoidance of granting equal status of women in political affairs

Under the revolution, women could not vote or hold any office. Many of the republican leaders insisted that womens nature made them unsuitable for public affairs. Thus it was claimed nature insisted that womens role was in the home: women were the possessors of virtue and must instil this in the children. Men and women were simply
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different by nature: men were stronger and women bear children; as a consequence men have a political life to lead and women must fulfil the private virtues. If women were to become involved in the exercise of political rights, the rationality of debates would not be understood by them; instead their emotions would be inflamed and chaos would result (see Sewell, 1988). The Marquis de Sade (whose name subsequently has been taken as the champion of pornography and sadism) turns this argument on its head by insisting that nature determines that women are completely sexual creatures whose sexuality should be available for all men (see Hunt, 1992). According to de Sade, the equal rights of men ensure that a woman should be the property of no one man but available for all. De Sades work shows how many of the thoughts of the revolutionaries and their use of nature could give rise to other conclusions. Perhaps one impact of the French Revolution was that it brought out many of the deepest fears about woman and the fate of the family when religion and the old order were broken down. Thus women had to be controlled since they represented the stability of the family; ultimately the public sphere could be the area of liberal rights but women were suited for the home and the strength of the family relied upon male rule. The patriarchy (which is not talked about in the liberal thought which Giddens and Arblaster two men identify) which pre-existed the revolution exists long after it. To feminists the continuing strength of patriarchy allows the freedoms of the public area to grow in a distorted way. The feminists Joan Scott and Carol Pateman have argued that the feminist project cannot be fulfilled in terms of liberal political theory and that in the French Revolution an early form of feminist thought was posed in critical opposition to liberal political theory which has set the terms of political discussion. For Lynn Hunt the very concept of political life meant rational, public and universal, and women were defined as naturally subject, irrational, emotional, interested in the particular and hence outside of politics (Hunt, 1992, p. 202).
Activity 15.3
What does consciousness raising mean? Take the above example it concerned the reviewing of a famous historical event, usually seen as fundamental to modern freedoms. Instead of being a wonderful achievement for human emancipation and a icon for liberty it contained gender divisions and a refashioning of hierarchies, not equality. Consciousness raising and asking the women question require you to look behind the grand promises of progress and ask how women are really benefiting from these measures. Feedback: This is not a matter for precise feedback but rather a matter of doing.
Summary
A great deal of social life is divided along gender lines. Feminism calls this into question and feminist jurisprudence rigorously analyses the role of law in supporting the gender division and hierarchy. Feminist theories of patriarchy challenge the nature of power expressed in the private and public division of labour and social activities. Feminist praxis strives for change for women, at the local, national and global level.
15.2 A brief history of feminist legal theory

Enlightenment feminists, like Mary Wollstonecraft, writing at the time of the French Revolution, asserted that women, like men, possessed the innate capacity for reason. Such feminists argued that womens capacity for rational thought had been suppressed by their upbringing, since they were forced into a frivolous, girly type of socialisation process, either being discouraged from developing, or at least not encouraged to develop, their intellectual faculties, and provided with an inadequate education. Women had then been prevented from engaging in public life, through an emphasis on supposed womanly private domestic responsibilities, and been denied the opportunities to engage in political processes. Such a situation was lamentable, said enlightenment feminists, but was hopeful because it could be changed by a different socialisation of the two sexes effectively providing both boys and girls/

men and women with similar upbringing/conditions/opportunities. The rhetoric of liberalism (of equality, freedom, the rights of man) and particularly J. S. Mills work specifically discusses the unfairness of the subjection of women, and could be used by feminists to argue for womens rights. Mid-nineteenth to early twentieth-century suffragettes who aimed for the vote and to give rights to women are sometimes seen as the first wave of feminism. Women gained the vote and obtained much formal equality before the law that is, if men have certain rights and can do certain things, women should be able to as well. Women should be equally protected by the law and the law should apply to all men and women equally by giving them equal treatment. The modern (1960s and onwards) womens liberation movement, often known as the second wave of feminism, emerged out of the civil rights and often more radical movements in the 1960s seeking freedom and equality for women particularly in areas of employed work outside the home, reproductive rights and freedom over their own bodies and sexuality. Many of these activists were female lawyers or legally trained, and many lawyers developed feminisms general view of treating women as equals or allowing women to be free, into the legal world in universities and in legal practice. A variety of legal scholars working in different areas with diverse perspectives and concerns began to focus on feminist issues or on how the law impacted on the lives of women; how it relates to women; whether it in fact treats men and women as equals. Lacey (1994) suggests that the first feminist movement was a Liberalist concern arguing for equality which sought to have the same status and protections given to women as males enjoyed under the law. However, this encountered the problem of the male standard and the second period was one of asserting difference, or trying to get the law to treat men and women as equal, but different. This risked returning to the arguments of natural subordination, hence a third period is more reflective and constantly asks the woman question. It seeks to fully understand the role of gender in constituting legal and social relations, and conversely, the role of legal relations in constituting gender.
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15.3 Feminist views of the state

We will look briefly at four influential views: the liberal, the Marxist, the radical feminist and the poststructuralist or postmodernist.
15.3.1 The liberal view

The principal aim of the liberal view of law is to uphold the rule of law: that is, that all people are equal before the law: the law is seen as neutral and impartial amongst persons. It is irrelevant what sex or gender you are (also what colour, ethnicity, etc.). The aim of much early second wave legal feminism was to show how women were not treated equally. Like Wollstonecrafts, these arguments stress that girls or women should be given the same rights to education and opportunities as boys/men. The use of law is therefore a potentially vital tool to show how law is not living up to its own standards of justice and fairness and equality for over half of the population by failing to give women equal rights; and then to use law, through interpretation or new legislation, to reform existing law. Using this approach, sometimes called the sameness approach (i.e. treat men and women the same), it was better to view gender or sex differences as legally irrelevant give women the same rights and entitlements as men; give women equal treatment; dispense justice even-handedly; try to live up to the ideal of neutrality between persons. However, as this approach was analysed, cracks appeared: many saw it as women having to become like men becoming equal meant movement in a one-way direction towards the male standard, trying to live up to public standards and systems and laws already created by men for men.
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Such an approach was criticised for removing or continuing to prevent the inclusion of the feminine from the law (except for stereotypes of womanly images in the law). Was it reinforcing existing biases against womens experiences? Wouldnt it always be more difficult for women to live up to the standards if they were standards made in the male image? And anyway, how could this approach help in areas where men either cant or usually dont feature e.g. pregnancy, abortion, sexual violence? Criticisms of the sameness approach came from various places in particular from ethic of care or cultural feminist legal theories and radical legal feminists.
15.3.2 The ethic of care

This approach argues that there are genuine, somehow relevant, differences between men and women, which should be celebrated. Women have their own moral perceptions which are either more valid, or at least as valid, as mens. Much of this work comes from a development of the work of Carol Gilligan (a psychologist), who identified two distinct moral codes that correspond to gender when she carried out research on various groups of girls/boys/men/women. Her work provides counter-arguments to previous research by Lawrence Kohlberg, who identified five stages of moral development with impartial thought being the highest. His research appears to show that women never got higher than stage 3. On the basis of her new findings, Gilligan then argues in her book In a Different Voice (1982) for a reevaluation of the feminine. The two moral codes or voices are: 1. Feminine mode based on caring the maintenance of relationships, a web of communications and networks; concern for the particular needs of others in their particular contexts. This is the ethic of care. Gilligan (1982, p. 23) argued that women placed greater emphasis on context and the concrete effects of their decisions on other people:
The elusive mystery of womens development lies in the recognition of the continuing importance of attachment in the human life cycle. Womens part in mans cycle is to protect this recognition while the developmental litany [that is the doctrine whereby higher modes of moral reasoning entail greater abstraction ed.] intones the celebration of separation, autonomy, individuation and natural rights.
b. Masculine mode: objective, impartial, impersonal, unemotional, thinking of obligations, justice, rights and rules. That is, the generally idealised form of the legal and political system. This is the ethic of justice. As Gilligan summarises it (1982, 1920) Kohlbergs developmental psychology rests on a concept of justice rooted in a rights conception of morality, which is geared to arriving at an objectively fair or just resolution to moral dilemmas upon which all rational persons could agree. But what are the consequences? In Critique, Norm and Utopia, Seyla Benhabib (1986, p. 342) writes:
This results in a corresponding inability to treat human needs, desires, and emotions in any other way than by abstracting away from them and by condemning them to silence Institutional justice is thus seen as representing a higher stage of moral development than interpersonal responsibility, care, love, and solidarity; the respect for rights and duties is regarded as prior to care and concern about anothers needs: moral obligation precedes moral affect; the mind, we may summarize, is the sovereign of the body, and reason, the judge of inner nature.
Thus traditionally
philosophers have created a body mind distinction. As the contemporary European theorist Jurgen Habermas (1982, p. 221) states: reason has no body, cannot suffer, and also arouses no passion. The reasoning subject then, is somehow disembodied and individuated.
Instead of the ethic of care being repressed and undervalued, it was argued that it ought to be heard together with the male voice which is historically dominant. The feminine voice is just as rational and potentially public in scope, it is not just for use in the home, etc.

Many queried Gilligans findings how could a small sample be translated into a world view of the way men and women think? Even if accurate on that front, some are more concerned as to why women may care more than men and why they appear to value relationships more. Is it because of the different socialisation processes in boys and girls; is it for psychological reasons relating to identification with your primary carer in early life usually the mother i.e. do girls gain their identify by a connection of similarity with their mothers while boys gain their identity as a separation or difference from their mothers? Or is it because of womens biology are women somehow more connected to other life because of their reproductive capacity? In legal feminism this is an uncommon stance to take but Robin Wests work (1987) illustrates it well, arguing that women crave intimacy, and connection with others, rather than the separation and autonomy that are one of the main values in liberal legal theory. As such, women are severely disadvantaged by liberal legal jurisprudence and a feminist jurisprudence needs to be developed. West has argued that women are not individuals first because they are not separate from other individuals. Instead they are connected to other human life, and she specifies particular recurrent experiences in womens lives when this happens. The additional recommended reading for this chapter provides further insights on this.
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15.3.3 Radical feminism

Some feminists have argued in a very different way that women may care more than men because that image or construction of women suits men or patriarchy (i.e. the system of male oppression of women) better. In legal feminism, the main advocate of this view is Catharine MacKinnon, who says that such differences between men and women are hierarchically socially constructed to best suit men and to keep women oppressed. She has famously compared feminism with Marxism in that sexuality in its relation to feminism is analogous to the relations between work and Marxism i.e. that which is most ones own, is that most taken away (alienated) by the social construction of a false identity. The gender system itself is a power system, unequally structured to suit men. Laws supposed neutrality only reinforces this inequality. However, law can be used as a tool to empower women to change both their circumstances and the legal system itself. A lot of MacKinnons work looks at pornography, which she sees as exploitative and degrading of women. MacKinnon dislikes the sameness and difference approaches as she believes that both try to make women live up to standards set by men. Affirming difference means affirming powerlessness. However, many saw MacKinnons theory as flawed as it presents women as passive victims, actually created and positioned by men or the patriarchal structure. Indeed, many feminists viewed both this approach and the ethic of care/cultural feminist or difference approach as producing a common standard for all women in the same way that feminists had originally criticised the common standard women had to achieve for being a male standard, now it was criticised as producing one feminist standard for women.
As Adrienne Rich (1977) argues in response to her reading of the mind body distinction that has relegated womens reasoning to the status of the naturally irrational: Female biology the diffuse, intense sensuality radiating out from clitoris, breasts, uterus, vagina; the lunar cycles of menstruation; the gestation and fruition of life which can take place in the female body has far more radical implications than we have yet come to appreciate We must touch the unity and resonance of our physicality, our bond with the natural order, the corporeal ground of our intelligence. (p. 21)
15.3.4 Black and ethnic minority feminists

Some black and ethnic minority feminists criticised an over-emphasis of gender classification rather at the expense of other social factors like race. They criticised certain feminists for being blind to the diversity amongst women, including class, geographical, cultural and racial differences, and for failing to show how these interact with gender. Since the 1980s there have appeared many publications looking to integrate issues of race, ethnicity and nationality into feminist theory (e.g. Hooks, 1990). Looking to de- or post-colonisation literature they have questioned whether Western thought, including feminist thought, is able to engage in a critique of Western forms of domination.
For example MacKinnon argues that in the USA almost 50 per cent of all women are raped or are the victims of attempted rape sometime in their lives (MacKinnon, 1989, p. 176). She states that notions of consent and choice are invoked to conceal force and that the notion of consent is often invoked in rape trials as a way of legitimating what has in reality been an act of force. For MacKinnon rape is the defining paradigm of sexuality, but force is pervasive in many areas of gender relations.
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As Mariana Valverde puts it (1986, p. 198), Western-based notions of patriarchy have obscured the conflicts of interest between the women who pick coffee beans for fifty cents a day in Brazil and the white American feminists who sips coffee as she writes about women in general. Another perspective relates how the confinement of women in domestic circumstances in the modern family overlooks the role of the racial ethnic domestic help. As Glenn (1991, p. 193) tells it: a definition of womanhood exclusively in terms of domesticity never applied to racial ethnic women The maternal and reproductive role of racial ethnic women were ignored in favour of their role as workers. The lack of consideration for their domestic functions is poignantly revealed in the testimony of black domestic who were expected to leave their children and home cares behind while devoting full time to the care of the white employers home and family. At the same time, the work of black American feminists in particular stresses the importance again of asserting rights, of creating a sense of self-determination: often when people are socially powerless, their freedom starting with that in their own heads and then the sharing of their views with others through story-telling in itself leads to a sense of empowerment. Now postmodernists and cultural relativists have claimed that any attempt to find a universal truth or standard of justice for women (or for anyone or anything else) was going to fail not only was it undesirable, because it could be seen as neocolonial or evidence of some sort of new imperialism, it was also impossible to do. They argue that any so-called quest for a universal feminist jurisprudence is unattractive and even potentially dangerous. If women are somehow all the same, this is totalising. If the message was that woman has a socially constructed false consciousness with a real essence that is to be uncovered somewhere within her, this fixes identities and is potentially reactionary. So postmodernist feminists criticise this so-called essentialism that they see in much feminist work. This development has in turn been criticised for weakening feminist politics because feminism as a political movement depends on notions of womens inequality/ oppression requiring some type of unified notion of what woman as an identity means. It also poses problems for any radical political theory which might try to suggest certain ways of life or being are better than others. If each claim to truth is valid, who is to say which is better? This potentially disintegrates into nihilistic relativism.
Summary
Feminism contributes to an analysis of human agency and the human condition in which emphasis is placed on how human actors seek to come to terms with their immediate circumstances and problems, the way in which the legal order and social structure circumscribe their possibilities for action, and denote their identities, and how in turn social identity is reproduced by the resulting activity. Central to feminist tactics is deconstructing the discourses of male common sense and attempting to create a new language of possibility. Here feminists grapple with the tensions between the particular and the universal, the concrete and the abstract. Each of these dualisms forms a different basis for making claims in different periods of the history of feminism. We can see universalism in the movement from the suffragists to contemporary liberal feminism, which stresses the extension of general rights to women; while another movement, that particularly expressed in cultural feminism, claimed a unique and particular subject-position for women. Others seek to integrate other axes of subject-formation, such as class, race, ethnicity and sexual orientation.
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15.4 The future of feminist legal theory

Within Western feminism, very recent work has argued for a return to progressive political programmes as feminism has always been about pointing out injustices, the wrongness of the violation or exploitation of women. This is particularly important in the human rights field and at an international level. Human rights law rests on the notion that all individuals regardless of where they live, their sex, gender or colour or race, etc. are equally entitled to rights simply because they are human. It has been argued that violations of mens human rights better fit the model of human rights violations which have been based on male experiences of what a violation is. So the more feminised victims become, the less likely it is that international human rights will be found to be violated. But women need to be sure that their rights not to be violated are upheld including not being sold or deceived into slavery or being treated as sex objects; to have economic security and a voice in public life; to have control over their own bodies. Viewed in this way, feminism is part and parcel of human rights discourse; women should be treated as equals. It seems that the liberal emphasis on rights, freedom and equality is again being revisited by many feminists. There is a recognition that there is still a need, or now even more than ever, for change, transforming links between theory and practice and at least some type of universal truth perhaps at the most mundane or common level, a global acceptance that treating women as less human than men is wrong. This may of course be of benefit to men also!

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identify central themes in feminist jurisprudence discuss the work of several key scholars give an account of the history of theorising in this area apply feminist scholarship to certain key examples of legal practice.

Question 1 Feminist scholars cannot escape from the dominant masculine assumptions they purport to reject. Discuss. Question 2 Traditional jurisprudence has been the thoughts of men reflecting on a legal system built by men for men, it is only the ideology of the masculine. Does this claim have any validity? Question 3 Does the law systematically discriminate against women? Question 4 Women are different from men, but the extent to which such differences have legal relevance is not always clear. (Giorgio Monti) Are there general arguments to support the notion that a feminist legal theory is possible?
Advice on answering question 1

Of course there is plenty of material to assert: yes, they can! However, a really good answer may take us in part into criticisms of feminist schemes; for example, the claim that feminist writings are often caught in a reflexive circle. In other words, in offering critiques of the truth of the existing state of affairs, what guarantee of truth can they offer? Take MacKinnon. Given that she defines our present situation and modes of thought as inescapably imbued with masculine domination, how can her analysis escape the grip of this domination and actually create unbiased or true new ideals? Drucilla Cornell (1991) identifies this as the problem of false consciousness in the writing of MacKinnon:
For MacKinnon, what women desire now under patriarchy is by definition false consciousness. So we think that we want love and intimacy? For MacKinnon, we only think that way because thats how they want and need us to think so that we will continue to
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be available to them. Womens expressed desire is only an ideology... Because we think we want love and intimacy, we put up with them in a way we would not otherwise. We learn to accept our gender identity as the one who gets fucked because that is what we must learn to desire in order to surviveno matter what I or any other woman says or writes about the legitimacy, and indeed value, of love, we do so only to the degree that we are deluded and, in spite of ourselves, complicit in our degradation. Once we are convinced that in reality we are just being fucked, we will cease to value what they supposedly desire that we desire. (p. 133)
In this there is no way out, there is no level of the other other than desires, thoughts, modes of intellectual development which they, i.e. the structures of masculinity, have allowed. Women are wrapped in the desire/power of men, their reality silence; therefore, how can women, and MacKinnon, break from that silence? Moreover, in the process of pointing out the partiality of modern social theories and legal perspectives feminists have frequently employed generalising categories like masculinity and femininity in problematic ways. While demanding a situational critique of previous theory, feminists often talk as if their own theory could escape such a self-critique. A reductionism in locating the cause of womens oppression, such as production, sexuality, child rearing or language, is sometimes apparent. Susan Brownmiller, Susan Griffin and Andrea Dworkin, for example, locate the biological roots of patriarchy in mans capacity to rape. Thus male power is ultimately reduced to coercion but this reduction is at the expense of acknowledging complex cultural elements which require more diverse forms of analysis. While rejecting universalist forms the critique often becomes itself universalist: take MacKinnons (1989) analysis of the state:
However autonomous of class the liberal state may appear, it is not autonomous of sex. Male power is systemic. Coercive, legitimated and epistemic, it is the regime.
Additional examination questions

Question 5 What consequences for legal practice does a feminist jurisprudence entail? Question 6 Assess critically the contribution to legal thought of any two feminist scholars. Question 7 Discuss at least two contributions that you consider feminism has made to jurisprudence. Question 8 Is there such a subject as feminist jurisprudence, or is feminist jurisprudence merely what feminist lawyers point out is illiberal in the law?
References/useful further reading

Arblaster, A. The Rise and Decline of Western Liberalism. (Oxford: Blackwell, 1984). Bartlett, K. T. and R. Kennedy (eds) Feminist Legal Theory: Readings in Law and Gender. (Boulder: Westview Press, 1991). Benhabib, S. Critique, Norm and Utopia. (New York: Columbia University Press, 1986). Brophy, J. and C. Smart Women-In-Law: Explorations in Law, Family and Sexuality. (London: Routledge, 1985). Cornell, D. Beyond Accommodation: Ethical Feminism, Sexual Difference and Utopian Possibility. (London: Routledge, 1991). Desanti, D. Flora Tristan: rebel daughter of the revolution in Melzer, S. E. and L. W. Rabine (eds) Rebel Daughters: Women and the French Revolution. (Oxford: Oxford University Press, 1992) p. 277.
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Fraser, N. and L. Nicholson Social criticism without philosophy: an encounter between feminism and postmodernism, Communication, 10/3, 4, (1988) pp. 34594. Giddens, A. The Constitution of Society: Outline of a Theory of Structuration. (Berkeley: University of California Press, 1984). Gilligan, C. In A Different Voice: Psychological Theory and Womens Development. (Cambridge, Mass.: Harvard University Press, 1982). Glenn, E. N. Racial ethnic womens labour: the intersection of race, gender, and class oppression in R.L Blumberg (ed.) Gender, Family and Economy. (London: Sage, 1991) pp. 173201. Graycar, R. (ed.) Dissenting Opinions: Feminist Explorations in Law and Society. (Sydney: Allen & Unwin, 1990). Habermas, J. Reply to my critics in Thompson, J. and D. Held (eds) Habermas: Critical Debates. (Cambridge, Mass.: MIT Press, 1982). Hooks, Bell Yearning: Race, Gender and Cultural Politics. (Toronto: Between the Lines, 1990). Hunt, L. The Family Romance of the French Revolution. (London: Routledge, 1992) Chapter 5: Sades family politics. James, S. and S. Palmer (eds) Visible Women: Essays on Feminist Legal Theory and Political Philosophy. (Oxford: Hart Publishing, 2002). Kohlberg, L. The Philosophy of Moral Development. (San Francisco: HarperCollins, 1981). Lacey, N. Feminist legal theory: beyond neutrality, Current Legal Problems (1994). MacKinnon, C. A. Feminism, Marxism, method, and the state: an agenda for theory, Signs Vol 7, no. 3 (1982), pp. 51544. MacKinnon, C. A. Feminism, Marxism, Method, and the State: Towards Feminist Jurisprudence, Signs, Vol 8, no. 2 (1983), pp. 63558. MacKinnon, C. A. Feminism Unmodified: Discourses on Life and Law. (Cambridge, Mass.: Harvard University Press, 1987). MacKinnon, C. A. Toward a Feminist Theory of the State. (Cambridge Mass.: Harvard University Press, 1989). OBrien, M. The Politics of Reproduction. (London: Routledge, 1981). Olsen, F. The sex of law in Kairys, D. (ed.) The Politics of law (New York, Random House, 1990) second edition; also Feminism and critical legal theory: an American perspective (1990) 18 International Journal of the Sociology of Law. Pettman, J. J. Worlding Women: feminist international politics. (London: Routledge, 1996). Rich, A. Of Woman Born: Motherhood As Experience and Institution. (Toronto: Bantam Books, 1977). Scales, A. C. The emergence of feminist jurisprudence: an essay, Yale Law Journal, vol. 95 (1986), pp. 13731403. Sewell, W. Activity, passivity, and the revolutionary concept of citizenship in Lucas, C. (ed.) The French Revolution and the Creation of Modern Political Culture. (Oxford: Pergamon Press, 1988). Smart, C. Feminism and the Power of Law. (London: Routledge, 1989). Smart, C. Feminist jurisprudence in Fitzpatrick, P. et al. (eds) Dangerous Supplements: Resistance and Renewal in Jurisprudence. (London: Pluto Press, 1991). Valverde, M. Sex, Power and Pleasure. (Toronto: Womens Press of Canada, 1986).
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West, R. The difference in womens hedonic lives: a phenomenological critique of feminist legal theory, Wisconsin Womens Law Journal (1987). West, R. Jurisprudence and Gender, University of Chicago Law Review, Vol 55, No. 1 (1988), pp. 172. Williams, P. J. The Alchemy of Race and Rights: diary of a law professor. (Cambridge, Mass.: Harvard University Press, 1991).
Useful websites
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www.rdg.ac.uk/law/femlegalnet www.eoc.org.uk www.cre.gov.uk www.womensaid.org.uk www.amnesty.org.uk www.justice.org.uk www.jfw.org.uk www.fawcettsociety.org.uk www.cwasu.org www.catwinternational.org www.womens-unit.gov.uk www.newr.bham.ac.uk
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Reflect and review

Ready to Need to Need to move on revise first study again I can identify central themes in feminist jurisprudence I can discuss the work of several key scholars I can give an account of the history of theorising in this area I can apply feminist scholarship to certain key examples of legal practice.
Must revise 15.1 15.2 15.3 15.4 Deconstruction and reconstruction A brief history of feminist legal theory Feminist views of the state The future of feminist legal theory Revision done
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Notes
16 Critical legal studies
Contents
16.1 16.2 16.3 16.4 16.5 16.6 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 228 Introduction: what is CLS? . . . . . . . . . . . . . . . . . . . . . . . Law and the fundamental contradiction . . . . . . . . . . . . . . . . 229 231
Law, politics and reification . . . . . . . . . . . . . . . . . . . . . . . 233 American critical legal studies: success or failure? . . . . . . . . . . . Postmodernity and critical legal studies . . . . . . . . . . . . . . . . 236 237
African critical legal studies . . . . . . . . . . . . . . . . . . . . . . . 239 Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . 243
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Introduction
This chapter provides an introduction to critical legal studies. This form of jurisprudence has its origins in America, as a development of Legal Realism. It is marked by a desire to present a critique of the law that draws on political and social theory. We will see that the original ideas of American CLS scholars were developed by being linked to the notion of postmodernism. This provided a reinvigoration, and a re-orientation of CLS themes and ideas. Finally, we will see that South African legal scholars are turning to the inheritance of CLS in order to provide a critique of the old apartheid regime, and an understanding of law in the new South Africa.
Learning outcomes
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outline the main features of American critical legal studies demonstrate an understanding of postmodernist conceptions of law explain how CLS thought has been adapted by South African scholars.
Essential reading
Douzinas, C. and Gearey, A. Critical Jurisprudence. (London: Hart, due to be published June 2005.) Freeman, Chapter 13: Critical legal studies. Morrison, Chapter 16: Scepticism, suspicion and the Critical Legal Studies movement.
Jurisprudence and legal theory 16 Critical legal studies
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16.1 Introduction: what is CLS?

16.1.1 Some perspectives
How can we think about the relationship of critical legal studies (CLS) to the other jurisprudential traditions and approaches that we have examined? Lets examine the way that CLS relates to other jurisprudences. We might also ask whether these understandings of CLS also tell us something about the distinctive features of CLS thinking about the law. Here are some recent perspectives.
a. Cotterell (2003)
CLS can be seen as radical sceptical realism wholly rejecting traditional forms of legal doctrinal analysis as pointless and mystificatory.
The references can be found in the list at the end of this chapter.
b. Duxbury (2001)
For the proponent of critical legal studies, post realist jurisprudence has been characterised by complacency and closure, by a belief that controversial legal questions regarding for example...the meaning of the values embodied in the legal processhave been answered satisfactorily and definitively.
c. Yale Law Journal (1984)

Those of us associated with Critical Legal Studies believe that law is not apolitical and objective: Lawyers, judges, and scholars make highly controversial political choices, but the ideology of legal reasoning to make our institutions appear natural and our rules appear neutral. [The Yale Law Journal, Volume 94, No. 1, Nov 1984, 5].
d. Boyle (1992)
Much CLS [work] has the basic message, things could be otherwise.
Activity 16.1
To what distinctive features of CLS thought do these extracts draw our attention? Feedback: see end of guide. There are a number of issues that we should consider in a little more depth.
16.1.2 The origins of CLS

We also need to return to the issue of American Realism. We have said and indeed most textbooks present this argument that CLS is a development of American Legal Realism. Can we briefly sketch out the links between these two philosophies? American Realism is difficult to define, but the term is usually seen as making reference to certain presuppositions about the nature of law that were immensely influential in America throughout the 1930s and 1940s. These ideas can be traced to the writings of various figures, of whom the most influential were perhaps Oliver Wendell Holmes, Karl Llewellyn and Jerome Frank. If there was a major theme in realism, it was a reaction against the tenets of formalism. In jurisprudence formalism describes an approach that seeks to isolate and classify laws unique organising principles. For instance, formalism discovers first principles in the resolution of a dispute between two private individuals, a plaintiff and a defendant. Central concepts, such as harm, duty, right and causation, are the grammar used to articulate this relationship as a fundamental point of reference that can account for law at both a procedural and doctrinal level. Realism moves away from the formalist approach to the autonomy and coherence of law. It seeks the insights of sociology and psychology, to argue that understanding the law means looking at legal processes within their social and behavioural context. We can relate this point back to the idea of scepticism dealt with above. Realism is sceptical about a narrow normative analysis of law. It would prefer to focus upon the law-maker, and to see judicial legislation as a reality. Legal decisions are profoundly influenced by the preferences
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and value choices of decision-makers. Extending this position would suggest that a legal decision reflects a particular political decision, rather than the working out of a coherent legal order. In Cotterrells summary:
law is a matter of people doing the jobs of government, resolving or containing disputes, allocating benefits or detriments and channelling state power to achieve specific purposes (p. 177)
CLS is a radical extension of these themes. Applying the sociological insights of realism as a way of accounting for the emergence of CLS, it could be argued that one has to remember that it came out of the social dislocations that America was experiencing in the 1960s and 1970s:
For the early crits., contradiction and dissonance are not simply ideas, but routine experiences. Authority has demonstrated in concrete, practical and unequivocal ways that it cannot be trusted. And for this generation, there would be a lasting ambivalence towards authority. Authority would be something to resist, renounce and, paradoxically, to assume as well. (Schlag, 1999)
Schlag is pointing out that the themes that will mark CLS come out of a particular historical experience. CLS scholars come from a generation that found themselves protesting against the Vietnam War, informed by the social revolutions of the 1960s. In nations that have not experienced this same cultural pattern, this experience is hard to understand, but it can be associated with a challenge to traditional authorities, and the coming into being of a sub-culture or a counter-culture that challenged the dominant assumptions about the role of politics and ways of living. CLS as a form of legal studies comes about because a generation of scholars who found themselves in this mileu, turned their attention to the form of law, the way that law was taught, and the way that law was theorised. They were asking the question: should law simply be seen as a profession, or should it be placed back in touch with radical ideas about the social world? CLS has its origins in this American experience, but CLS cannot be reduced to this context. This chapter will demonstrate that CLS can be thought of as a tradition that develops out of America, and is invigorated by different ideas and by the need to think about the law in different geographical and historical circumstances.
16.1.3 What is critical about critical legal studies?

Perhaps the most important question that we need to answer in introducing CLS is the meaning of the word critical. Most of the jurisprudences that we have examined in this subject guide ask critical questions of the law. For instance, the positivist philosopher Jeremy Bentham argues that the there is a censorial or critical aspect to positivist jurisprudence; he attacks William Blackstone for being too deferential to the law and its organisation. If CLS is to be distinguished from these other philosophies, in what sense is it critical? Arguably, it attempts to be critical in a radical sense. Radical criticism attempts to identify deep-seated problems with law and the legal order. It does not seek to argue that individual laws could be reformed or made more efficient: rather it sees the law as profoundly flawed. Reform will not solve these problems. The law itself is compromised. During the course of this chapter, we will try and identify the deep-seated problems that CLS identifies. But, for the moment, we need to think in more detail about the critical nature of CLS. Critical work is difficult to achieve. Indeed, CLS sets itself a difficult task. Critical work, by definition, must maintain a sceptical distance from the idea that the justifications of the system by its apologists are entirely adequate. However, the fate of the critical or external account may be simply irrelevance. Critique may simply be rejected as too extreme; a failure to engage with the systems own modus operandi. Critique has to operate in a way in which the system can itself understand. At the same time, there is the danger that if critique compromises its claims, it loses its edge; it becomes simply another apologetic for the systems ability to benignly reform itself.

Writers on CLS have made a distinction between the negative, critical or trashing aspects of this kind of scholarship; and a transformative or utopian element. It is this latter aspect which we were introduced to by extract (d) above. CLS scholars have tended to look at laws role in society, and argue that both law and society need to be politically transformed. They have seen endemic social tensions that characterise institutions as offering this potential for transformation. The extent to which this endemic tension can be manipulated to disturb the assumptions and limits of the context can be investigated. Institutions such as law create social hierarchies that are difficult to change and appear resistant to any interpretations or activities that might disrupt or redefine their modus operandi. There are prejudices and perspectives inherent to institutions that impose limits on perceptions that would otherwise be open to question. However, even entrenched contexts generate disputes that threaten disruption, what Roberto Unger (1984) calls an endless stream of petty conflicts that may escalate at any moment into more fundamental context-threatening disputes. (p. 5) So, although a particular context could be powerful enough to mandate a normative vision of the social world, it could never be said that it was unchallengeable.
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Summary
We have focused so far on the origins and nature of CLS. We have seen that it develops out of a school of jurisprudence called American Realism; effectively linking the insights of realism to a left-leaning political critique. However, we have also suggested that CLS is a tradition, and should not be seen as limited to this context. We have tried to engage with the critical nature of CLS. The criticisms of the law provided by CLS are profound. It is not so much a reformist approach to the law, as an attempt to suggest that the very structure of law has not been accurately defined by conventional jurisprudence.
16.2 Law and the fundamental contradiction

16.2.1 Kennedy and Blackstone
In this section we will look in more detail at the way in which CLS understood the nature of the law. We will look at one of the key texts of CLS: Duncan Kennedys article The structure of Blackstones Commentaries (1979). Our first question: why does Kennedy choose to write about the eighteenth-century text by William Blackstone, The Commentaries on the Laws of England? (17651769):
Blackstonepublished his treatise in England between 1765 and 1769 andis the only systematic attempt that has been made to present a theory of the whole common law systemit has had much (or more) influence on American legal thought as it has had on British Everything that I will have to say flows froma premise about legal thinking the activity of categorising, analysing and explaining legal rules has a double motive. On the one hand, it is an effort to discover the conditions of social justice. On the other, it is an effort to deny the truth of our painfully contradictory feelings about the actual state of relations between persons in our social world[legal thinking is] an attempt to mystify both dominators and dominated by convincing them of the naturalness, the freedom and the rationality of a condition of bondage. (pp. 20910; quotation modified).
Activity 16.2
a. Outline Duncan Kennedys reasons for studying William Blackstone. b. What is Kennedys premise that informs his study? Feedback: see end of guide.
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It would seem, then, that the notion of contradiction is essential to Kennedys argument. Lets study this in more detail. Kennedy goes on to oppose the idea of the fundamental contradiction to Blackstones concept of the coherence of common law. The fundamental contradiction describes a fundamental flaw in society; a flaw that the law cannot overcome. Moreover, it remains hidden or disguised (p. 213) in legal thinking. We can consider this in more detail. Kennedy argues that:
Most participants in American legal culture believe that the goal of individual freedom is at the same time dependent on and incompatible with the communal coercive action that is necessary to achieve it. Others are necessary if we are to become persons at all they provide us the stuff of our selves and protect us in crucial ways against destruction But at the same time that it forms and protects us, the universe of others threatens us with annihilationthe [problem] is that the abolition of these illegitimate structures, the fashioning of an unalienated collective existence, appears to imply such a massive increase of collective control over our lives that it would defeat its purpose (212 Buffalo Law Review, 28 (1979) pp. 20921)
This describes the troubled nature of social life: relations with others are both necessary and incompatible with our freedom. The contradiction, then, reflects deepseated conflicts about the organisation of social life; a tension between liberalism and private ownership, with associated beliefs in a non-interventionist state, and communitarianism, with its belief in collective ownership and more active state. Locked in a struggle that cannot be solved, both positions circle around the same problem. The altruist attack on liberalism has purchase to the extent that it prevents the generation of concepts that can found a notion of rules that justify political order; liberal criticisms of the collectivist tradition are also damaging, as they show that fundamental problems about human nature and perception have not been adequately resolved (Blackstone, 1774). This names a condition of thought; there can be no stepping outside of the contradiction. Moreover, there can be no balancing (Blackstone, 1775) of the rival claims in a way that conventional legal reasoning describes. Is there a way out of this dilemma? We can only proceed by action. We make commitments, and pursue them. This takes us to the theory of judicial interpretation.
Activity 16.3
What is the fundamental contradiction? Feedback: see end of guide.
16.2.2 The critical judge; CLS and legal reasoning

Lets try and follow Duncan Kennedys argument in a second important essay (Freedom and constraint in adjudication: a critical phenomenology (Journal of Legal Education, 1986, 36 pp. 51862). We will see that it builds on the arguments that we have just been studying. Kennedy argues that the law can be manipulated by lawyers and judges towards ends that they consider appropriate. In this essay, Kennedy tries to show how an interventionist judge can use the law to achieve political ends. The essay imagines a case where a bus company has applied to a federal court to obtain an injunction against striking drivers who have staged a sit-in protest at the companys employing of non-unionised, strike-breaking labour. Duncan Kennedy imagines that he is the judge; he wants to refuse the injunction because his personal politics demands that he supports the workers cause. How does the law appear, if we accept that the judge approaches it as a means to an end?
Resistance or opposition is the characteristic of the law when I anticipate it as a constraint on how I want to come out I am suggesting that one of the ways in which we experience lawis as a medium in which one pursues a project, rather than as something that tells us what we have to do. (p. 526)

The judges own personal politics makes him sympathetic to the union members. He is aware, though, that the law is bent against union members in a case such as this. The law thus appears as a kind of substance that must he worked and shaped in such a way that the workers case can be successful. It is a question of an individuals engagement with the law; with how this persons own prejudices illuminate a sense of restraint and possibility. Kennedy argues that the judge must ask a number of strategic questions about how he is to achieve his desired end. It may be possible to refuse the injunction, but how would that be perceived if there was an appeal? How would this aid the workers cause? If the judge thinks that these approaches will not resolve the case, the legal issue itself can be reinterpreted. The case could be recast as a First Amendment prior restraint issue. Granting the injunction would be an illegitimate interference with the rights of free speech of those protesting. Effectively, this would show that an operation of the means of production could be limited in the interests of a more compelling constitutional guarantee.
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Activity 16.4
What conclusions could we draw about the nature of the law from Kennedys argument? Feedback: see end of guide.
Summary
In looking at the arguments of Duncan Kennedy, we have seen that his key notions are the fundamental contradiction, and the idea that the law is not a neutral or coherent set of principles. The activist judge can re-interpret the law in such a way as to achieve the outcome of a case that he or she desires. This is, of course, somewhat different to jurisprudences that would stress that there are right answers in the law that reflect the laws founding principles or order. It would also be critical of the laws neutrality. The law appears as a means towards a political end. Kennedys suggestion is that if left-leaning judges do not use the law to push forward their agenda, then their political opponents will do so. This clearly connects back to certain realist themes about law as a means of achieving policy, but here places it in an explicitly left-wing context.
16.3 Law, politics and reification

The CLS critique of legal reasoning does not only address itself to judicial reasoning in cases. Other CLS writers are critical of the way in which legal reasoning abstracts events from the real world, and turns them into legal problems to be solved by lawyers. Peter Gabel has argued that legal reasoning abstracts from the concrete social world. What follows is a summary of his argument in Reification in legal reasoning (Research in Law and Sociology (1980) 3 pp. 2551.
16.3.1 The ideas of Peter Gabel

When the judge pronounces a judgment, he can be seen as performing the following operation. Legal reasoning applies scientific reason to the social world: through inductive reasoning individual situations are subsumed under a general, abstract rule. For this process to work, diverse situations must be included under general rules so that the law can be applied to them as examples of a legal wrong; this presupposes certain cultural assumptions that allow situations to be appreciated as similar or dissimilar in the first place. These contingent relations are then effectively seen as examples of the rule, their dissimilarity neutralised. The world becomes frozen in its existing realities. These realities are then appreciated as what the world is. This assertion covers up the sense of illegitimacy that people feel when they think about the social and economic system. The law effectively denies that the world could be otherwise; but precisely because the world is constructed, it can be made again through conscious activity. We might call this condition one of the reification of the social world.
Theories of social construction tend to claim that the social world is not a given, but that its meaning is constructed through various processes. This tends to be linked to theories of ideology that stress that it is the ideas or interests of those with economic and political power that determine the shape of the social world.
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Activity 16.5
a. Can we link Gabels arguments to those of Duncan Kennedy? b. What is reification? Feedback: see page 286. Gabels work uses philosophy and psychological ideas to account for the hold of the law over the social world. Gabel argues that people continue to think and act within reified social relationships because reification conceals a deeper and more troublesome void. This absence of connectedness is so profound that it would be traumatic to think it. Reification thus operates as a psychic gratification that holds back a deeper, more terrifying absence. The social response is to imagine that social experience is one of harmonious co-existence under the protection of the law. The law gives a comforting sense of community. Indeed, in a time when other socially powerful ideas of community appear to be in crisis, law can give the sense that community can be articulated and defended. However, this is an inauthentic notion of community. Laws sense of community is already reified. Group feeling re-presented through legal categories is disconnected from any more fundamental emotional grounding. What is the problem with the sense of community offered by the law? Gabel argues that the law cannot provide a meaningful sense of community for people. This builds on his arguments about reification. If law has become reified, then people cannot relate to each other through legal terms like rights. Gabel seems to be suggesting that there is a need for people to develop authentic ways of being together, that do not make use of the law. These are strange ideas. Are CLS writers any more precise? In a later piece, based on an exchange with Duncan Kennedy, both writers attempted to be more precise. They came up with the term: intersubjective zap (Roll Over Beethoven, Stanford Law Review, 36:1 January 1984). This describes the intense moment when people perceive that there is a possibility of their coming together. Clearly, life exists not as a thought-out political doctrine, but as a provocation, a utopian urge for a better world. What does this mean? Life is essentially the space of self-creation linked to the energy of a counter movement and the insistence that the world could be different. CLS revealed where life could be found. In one notorious example, it was the time before the teacher came into class; in another, the moment of authentic exchange between bank clerks when management were not looking. What can we make of this approach to the law? One criticism would be that it is no good to simply criticise the law: it is necessary to come up with new ideas about how society is organised. In the next section, we shall look at another scholar linked to the CLS movement, Roberto Unger, and see that his criticisms of law have led to a concrete idea of how a different form of law could be organised.
Activity 16.6
How does Gabel conceive of social life? What are the problems with his account? No feedback provided.
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16.3.2 Roberto Unger: law and politics

In this section we will examine Ungers arguments in a long work entitled Politics; subtitled a work in constructive social theory. We will focus on one of the books that makes up this broader project: Passion (Unger, 1984). In what way is Passion a work of social theory? How can we connect it to the themes that we have studied above? Passion can be read as an approach to one of the key themes in liberal legal, political and social theory. It attempts to reverse the traditional privilege of liberal legal theory on the importance of the individual, and endeavours to think in terms of solidarity. Passion affirms that the self cannot be conceived as the centre of the world as it must exist alongside others. Just as others can appear to overwhelm the self, the self can make disproportionate demands on the other. The tension between these two imperatives is the central problematic of social life. This certainly seems to build on Kennedys idea of the fundamental contradiction. Moreover, it links with Gabels ideas about the need to develop un-reified forms of community. Individuals have to live in circumstances of mutual trust. How can this be achieved? This would take us to Ungers reading of the law. He returns to an idea that he developed in an earlier work: expanded doctrine. Expanded doctrine is a critique of a formalism that proposes law as a coherent body of rules that are devoid of politics (Unger, 1986). The Critical Legal Studies Movement argues that doctrine must become enlarged to allow a more thorough linkage between law and politics. In Politics, it is linked to a new idea: the notion of negative capability. Negative capability needs to be carefully explained. It is drawn from the work of the English poet John Keats. In reflecting on his poetry, Keats made a distinction between sensation and thought. This has been interpreted as suggesting a division between logic and the imagination. The most profound truths, the holiness of the hearts affections, can only be apprehended through a form of imaginative engagement. What Keats calls consequitive reasoning (Bates, 1939), the ability to identify, represent and classify, can operate in some important senses. It can measure and describe the world, it can establish mathematical relationships but it lacks the synthetic insight of imagination. Only imagination can see into the heart of things. A further distinction makes reasoning a passive way of ordering, and imagination an active, creative force.
Activity 16.7
What is negative capability, and how does it relate to Ungers ideas about expanded doctrine? Feedback: see page 286. What changes in legal forms does Unger propose? Lets look at transformed rights. Transformed rights have to be distinguished from the limiting connection with the protection of settled property relations. They can be conceptualised as immunity rights, destabilisation rights and solidarity rights. Although these new rights would not entirely replace property rights, they would contribute to the relocation of power in the community and the disruption of monopolies. Destabilisation rights would accompany immunity rights. The former would protect individuals or groups against applications of governmental power and against any form of exclusion from public decision-making. Immunity rights would also guarantee an adequate amount of welfare protection. Destabilisation rights would be dedicated to the breaking down of hierarchies of power. Alongside destabilisation rights, solidarity rights would give legal form to social relations of reliance and trust. This last group of rights covers a wide field that includes all aspects of inter-dependence and could be built up from principles already existing in the law of fiduciary relations, the contractual doctrines of reliance and the notion of good faith. Popular empowerment would also demand a redistribution of resources. This could take the form of an appropriation of resources by those excluded from the present commercial and financial sources of power. One key proposal is a capital fund on which individuals and groups could make claims.
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Activity 16.8
Outline Ungers proposals for a new order of legal rights. Feedback: see page 286.
Summary
We have examined the way in which CLS scholars have approached issues of law and politics. Although Gabel is critical of existing forms of social organisation, he does not provide any detailed account of how social order is to be transformed. Unger shares Gabels sense that society needs to be re-organised so as to give greater effect to the ability of people to live together in conditions of equity and mutual trust. He presents a notion of rights to show that there are concrete ways in which this vision could be realised.
16.4 American critical legal studies: success or failure?

We need to weigh up CLS. But how can we do this? What criteria of success or failure can we apply? A famous article argued that there was a question that killed critical legal studies (Fischl, 1992). The question is: what replaces the law? The sense of this was that if the law was not swept away, then CLS did fail. However, this may be a misunderstanding. CLS arguments could be interpreted as suggesting that lawyers need to practise law differently, rather than that the law should be swept away. The lawyer needs to be imagined as a kind of culture hero who is involved in struggle as a means of changing both the intimate and public conditions of social existence. To accept the vocation of the lawyer is not merely to enter a job. As Unger argues, the lawyer accepts theideal: you affirm your worth, in part, by attempting to change some aspect of society and culture. It may be that this can be linked to a real insight into the nature of the law. The legal text does not appear as a repository of immemorial truths, but as a site in which ideological disputes can be fought out; the text itself carries radically inconsistent ideas that can be creatively worked at to elaborate accounts of human association. Rather than CLS being classed as a failure, we could turn the argument around. The failure lies with formalist interpretations of the law. Formalism cannot explain how law is necessarily bound up with political dispute. Another legacy of CLS may be that it makes for a broader, cultural study of law. As has been pointed out, this perhaps misses the point: the point of critical legal scholarship is that the law is far better understood as a significant aspect of the complex interplay between our culture and our structures of thought. (Fischl, 1992, pp. 779829). We now need to look at the way in which CLS themes were taken up by other scholars. In other words, CLS is not just about American law!
Summary
It is hard to say whether CLS is a success or a failure, because the criteria to assess success and failure are unclear. It is perhaps more useful to see CLS as part of an ongoing philosophy of law.
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16.5 Postmodernity and critical legal studies

It would be wrong to associate CLS only with American scholarship: we need to look at other developments of the tradition.
16.5.1 Postmodern jurisprudence

CLS as practised and developed in Britain bears a certain family resemblance to its American cousin. However, British CLS defines itself against a jurisprudential orthodoxy, and the American critical legal tradition. There was a first wave that was primarily Marxist in its orientation. It did produce some vital texts. But reflection upon, and anxiety towards, the critical tradition itself tended to become pronounced somewhat later on. One could account for this in both the perceived historical failure of the Marxism in the revolutions of 1989, and also in the chaos and insight wrought by the first reception of postmodernist thought. Although it was perhaps somewhat late arriving in legal theory, as opposed to cultural or literary studies, the reception of postmodernism produced a flowering of critical thought. To get the best sense of the revision and revival of CLS themes, we will turn to postmodern jurisprudence.
Jurisprudence goes postmodern in order to retain and redraw its old commitments to plural and open forms of reason(s) and communities. (Douzinas et al., 1993)
What is postmodernism? This is a difficult question to answer, but as far as legal theory is concerned, the sense of the quotation above is that postmodernism returns to old ideas, and reinvents them. We can look at ideas of justice and rights:
The persistence of the gap between humanity and (legal) rights or between the utopian moment in human rights and law indicates that their force and rebelliousness may be related to a metaphysical or redemptive urge which lay dormant, but which has acquired renewed significance in postmodernity. Following the end of the most atrocious century, it is too late in history to return to the concepts of human nature and free will of classical liberalism. The universalism of rights and the historicism of cultural relativism share with Western philosophy and ethics a common characteristic: they reduce the distance between self and other and return the different to the same. (Douzinas and Gearey, 2004)
The British Critical Legal Conference first met in 1984. Although not by any means exclusively Marxist, there was a sense in which Marx was important. to their approach. There is a sizeable literature generated by scholars directly or indirectly connected to the conference; more latterly it has also produced Bob Fines Democracy and the Rule of Law, Alan Norries Crime, Reason, History and others. See also the Pluto Press series Dangerous Supplements. See Bankowski and Mungham, Images of Law, for an earlier text.
The idea of rights must be rescued from their distortion and developed in a utopian direction. Take, for example, the idea of the citizen. From the perspective of bourgeois philosophy, the progress of the law is marked by the political community where government is limited by the rights of the citizen. When this notion is attached to some form of modified market liberalism, one has a crude description of the world view that has presently achieved almost worldwide dominance. For those who are uncomfortable with the real inequalities that exist alongside this supposed triumph of political and economic reason, the notion of the rights of the citizen do not need to be jettisoned completely. There is a need for a purgation of the idea, a purification of what the term can mean. Rights are not necessarily to be co-opted into the protection of profits in the new world order. Consider the right to work. That most international covenants and treaties do not include, or fight shy of its inclusion, suggests that the law can generate ideas that could potentially limit the extent of exploitation. But, this is not the main point in terms of the redefinition of the idea of rights. As suggested above, the language and ideology of rights are not closed; there is sufficient slippage in the definitional terms for them to be put to work in different and more creative ways. This needs to be linked back to some notion of human freedom; in other words, freedom needs to carry a meaning that is not the one ascribed to it by conservative ideologues. Postmodern jurisprudence searches for a different foundation for human rights:
In the universal community of reason, which acts as the horizon for the realisation of the law, the other the alien, the third and unrepresentable is turned into the same, the critical distance between self and other is reduced and the experience of value of moral conscience is grounded solely on the representation of the other by the knowing and willing ego. The alternative is the others exclusion, banning or forgetting. But the other who approaches me is singular and unique; she cannot be reduced to being solely an instance of the universal concept of the ego, nor can she be subsumed as a case or example under
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a general rule or norm. The law of modernity based on the selfs right and the subjects empire is strangely immoral as it tries to assimilate and exclude the other. The other side of the universal legal subject, of equality and autonomy, of laws formalism and its imperative, is the necessary inequality and the lack of autonomy of the alien and the enemy of nation. (Douzinas et al., 1993).
This extract can be read as a critique of a certain form of thinking, or reason, that has characterised the tradition of Western law. This form of thinking always reduces the other to the same. Whatever is alien, or seen as eccentric to reason, is not accepted as such, but re-interpreted in the terms of reason. Thus, the human rights tradition tends to accord people rights, or even legal status, on the basis that the rights holder is like the traditional legal subject: in other words a rational, heterosexual property-owning male. If one stands outside of this classification, then one is treated less favourably by the law. This can be exemplified in many different ways. A couple of examples must suffice. Consider, first of all, the relatively late date at which women received the vote in Western nations. In legal doctrine, as well, women have been problematic. In land law, for instance, a wife still has no real right to her husbands property; merely a personal claim against her husband. Other questions could be asked: does the doctrine of provocation in criminal law really take into account the pattern of domestic abuse that women suffer? Such a critique could also apply to the nebulous place of refugees within Western law.
Activity 16.9
How does postmodern jurisprudence link together rights and justice? Feedback: see end of guide. So, postmodern jurisprudence is about redefining the themes and subject of legal theory. One of the great announcements that initiated the postmodern project was announcement of the death of a kind of jurisprudence: there was no longer a need to answer the great question what is law?. Not only had the traditional debate stagnated into a jaded pedagogy of theory (Languages of Law, 1) or bogged down into a kind of armed peace between various warring jurisprudential factions, but, and more importantly, these great questions represented the end point of a particular mode of inquiry.
16.5.2 Goodrich and the question of rhetoric

In the work of Peter Goodrich, rhetoric is understood in the widest of senses. It is not just an analysis of textual figures as a means to creating persuasive arguments. Rhetoric is a conception of tradition as the perpetuation of certain ways of using language. To define law as rhetoric in this way would be to re-affirm the various histories of the legal institution. These traditions can be traced back to religious mythologies. In this interpretation rhetoric is a hermeneutics that transmits the past to the present. Hermeneutics derives from the name of the Greek god Hermes, whose task was to carry messages between the gods and the mortals. Rhetoric as hermeneutics is the transmission of immemorial truths that define the community that holds them dear. One can appreciate how this logic of meaning displays an essential connection between methods of interpretation in both mythology and law. Goodrichs contention is that it also underlies Christian theology, and hence feeds into the common law tradition. Modern legal interpretation can be seen as a secularisation of sacred techniques. Thus, the truths of law enshrined in the casebooks and the statutes are interpreted in a way that borrows directly from the Christian ways of reading scripture. Authority is associated with the past, and its record in authoritative texts. Rhetoric is thus a defence of the faith, an apologia for a truth that needs to be preserved. The original meaning has to be recovered and preserved so that continuity can be established between the past and the present. Authority is established through the creation of a canon of texts. The texts themselves are carefully guarded, and licensed ways of interpretation are devised so that commentaries are built up which
Scripture = the Christian Bible.

keep alive the essential meaning of authority. Although this form of rhetoric is central to the institution of law, it does not exhaust the possibilities that rhetoric offers. Rhetoric does not necessarily have to be connected to a recovery of the past, towards a preservation of authorities. There is within the philosophy of rhetoric an approach that celebrates the freedom of the interpreter. When the rhetorician speaks, she or he does so in front of a particular audience with the particular objective of persuading the hearers of the truth of the case that is being presented. Contrary to a philosophy of interpretation that argues that meaning is always immanent to a text, preserved and ready to pass on, rhetoric always deals with the contingent; with scenes of argument and disputation. Its claims to truth are specific and context based. No single context could determine all the claims that could be made of a particular text. Like Gabel and Unger, Goodrich attempts to address the question of law as that which provides a sense of belonging. We can usefully ask three questions of our own here: 1. What is rhetoric? Why is it useful for a study of law? Goodrichs early work presented forensic rhetorical practice as involving a use of commonplaces (loci communes or topoi) that fit with audience expectation and hence narrativise the legal fact pattern or argument being presented in terms familiar to the audience. 2. How does Goodrich approach the question of history? Legal doctrine is understood as the narrative of the social, telling stories of the lineage of persons and the genealogy of groups. Building on the psychoanalytical studies of the French legal historian Pierre Legendre, Goodrich (1995) traces the structures of legal institutions, affective objects and identificatory images in the narrative of legality or lawful sociality as such. This genealogical method does not trace a coherent line of development from the past to the present. Past contradictions are not resolved through the inexorable workings of history. Genealogy interprets history as a series of accidents; the present is only one of a number of radically contingent possibilities. Law as an institution is blind to the possibilities that lie within it. 3. What relevance does psychoanalysis have for a study of law? You may like to formulate your own ideas on this question.
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Summary
We have seen that in turning to postmodernism, certain CLS themes have been revisited and developed somewhat differently. In particular, we have seen that the theory of rights and justice has been re-thought around the notion of the otherness; ideas of history and rhetoric have also been deployed to understand how law creates forms of language and a social world.
16.6 African critical legal studies

Critical legal studies has been taken up by South African scholars to look into both laws complicity with apartheid, and the possibility of creating a new legal order. South African CLS is concerned with the question of how a new beginning is possible. It confronts the exhaustion or intellectual bankruptcy of what had passed for the legal philosophy of the old apartheid order. One of the most important topics has been the Truth and Reconciliation Commission (TRC), and the issues of community that it raises. Certain discourses have always sought to speak for the community. Law, in this sense, has always been an account of the community under law through its articulation of sovereignty. Of course, law or jurisprudential reflections on sovereignty are not the exclusive articulations of community. One could equally find it in modernist sociology, where the consensual or conflictual underpinnings of human community provide an orientation to study. Likewise, political discourse seeks to talk of community in terms of power and authority. Hobbes Leviathan, rethought in different ways in the
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liberal tradition, Rousseaus or even Mandelas notion of the people, or other African traditions, are variations on this essential theme. Community cannot be thought on the basis of the inclusion into a collectivity that is represented by a party or a president. Law needs to be de-link from sovereignty. Can law be associated, instead, with sharing, a relationship of specifics that cannot be turned into a generality? Karin Van Marle (2000) has studied accounts of the South African Truth and Reconciliation Commission, and asked questions about the nature of the truth that the Commission was trying to discover:
She is sitting behind a microphone, dressed in her beret or kopdoek and her Sunday best. Everybody recognises her. Truth has become Woman. Her voice distorted behind her rough hand, her undermined Man as the source of truth. And yet nobody knows her. (Krog cited in Van Marle)
She, the truth, sits behind the microphone: she addresses us from a long way off. A great deal could be said about the conjunction between the voice, truth and memory, but we will take as our essential problematic that of Van Marles: how is it possible to talk about the TRC now, from our present? This is a generational question. It clearly raises issues somewhat different from the need to respond to the TRC in the moments of its operation. Any discourse about the TRC is problematic, as it can never respond to the pain of those who spoke before the commission. Van Marles work prompts us to see that the essential question is how it is possible to talk about the TRC, how a notion of public discourse or public life can configure itself. The truth remains fractured and complex: perhaps it is impossible to say that anyone or any institution speaks the truth. The new South Africa must take this fractured and complex truth as a foundation for democracy; a way of holding together a plural community without reducing it to a single law, a single voice or a single truth. Van Marles work moves towards a notion of literature as the only form capable of carrying both a respect, and a criticism of the TRC; but also a notion of the ongoing nature of reconciliation, the very idea of a work in progress. Drawing on notions of narrative as patchwork or jigsaw puzzle, her concern is with a thinking process that is not necessarily end-directed, that can compose and recompose pieces differently. Of course, this is motivated: the need is to push forward the legacy of the TRC, but not to this or that certain end. The key term is perhaps a thinking of openness, or in a slightly different metaphor, an ability to think in terms of uncertainty and doubt.
See Karin Van Marle The literary imagination, recollective imagination and justice, 2000 15 SAPR/ PL, 137
Activity 16.10
Why have South African scholars turned to CLS? Feedback: see end of guide. The work of South African scholars shows that CLS continues to develop, and to address the law in different jurisdictions and contexts.
Summary and conclusions

We might be able to offer some provisional conclusions about CLS as jurisprudence. The injunction placed upon the critical legal interpreter is to find the spaces where doctrine stumbles, where legal principles can become shaped to fit social realities, rather than simply repeating a legal logic. This call to arms stressed the inseparability of legal theory, legal practice and political vision. The ideology of professionalism can too easily provide a smokescreen that obscures both difficult individual choices and wider concerns about the role of law itself. The lawyer as technician, as supporter and apologist of the status quo applying objective and determinate rules to the facts of social disputes, can no longer be sustained.
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uu uu uu
outline the main features of American critical legal studies demonstrate an understanding of postmodernist conceptions of law explain how CLS thought has been adapted by South African scholars.
References
Bates, W. J. Negative Capability. (Cambridge, Mass.: Harvard University Press, 1939) p. 25. Boyle, J. D. A. Critical Legal Studies. (Aldershot: Dartmouth, 1992). Cotterrell, R. The Politics of Jurisprudence. (London: Butterworths, 2003) second edition, p. 202. Douzinas, C., R. Warrington and S. McVeigh Postmodern Jurisprudence: the law of the text in the text of the law. (London: Routledge, 1993). Duxbury, N. Patterns of American Jurisprudence. (Oxford: Clarendon Press, 1995) p. 424. Fischl, R. M. The question that killed critical legal studies (1992) 17 Law and Social Inquiry, pp. 779829. Goodrich, P. Oedipus lex: psychoanalysis, history, law. (Berkeley; London: University of California Press, 1995). Kennedy, D. The structure of Blackstones Commentaries (1979) The Buffalo Law Review 28, 7. Schlag, P. US CLS, Law and Critique, Vol 10 No. 3 1999, 201. Unger R. M. Passion. (New York: Free Press, 1984). Unger, R. M. The Critical Legal Studies Movement. (Cambridge, Mass.: Harvard University Press, 1986) p. 565.
Sample examination question

Although critical legal studies has its roots in American scholarship, it can be seen as an evolving jurisprudential tradition. Discuss.
Advice on answering the question

This is a difficult question, because it demands that one thinks about such terms as jurisprudence and tradition. Any answer should resist merely repeating notes or a model answer. The question splits into at least three concerns: to what extent is CLS a jurisprudence?; to what extent does it have its roots in American scholarship?; and can we consider CLS to be an evolving tradition? To what extent is CLS a jurisprudence? It certainly is, in part, a philosophy of law; but it seeks to connect legal studies with political thinking and political activism. In this sense it remains to the margins of the jurisprudential mainstream, if this is conceptualised as a form of disinterested attempt to define and categorise the law. So, if we can accept that CLS is a political jurisprudence, how do we deal with the other parts of the question? It is true that CLS can be traced back to the work of the American realist scholars. American CLS writers like Duncan Kennedy acknowledge their debt to these figures. However, if one acknowledges that CLS represents a radical tradition of thought, to what extent could it be comfortable with the idea of becoming a tradition? More conservative modes of thought, that tend to stress the superiority of the past over the present, are much more adapted to deploy the idea of a tradition. The work of the present work is more or less acceptable to the extent that it repeats the truths that
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have been articulated in the past. Radical thought must presumably resist the hold of the past and of tradition. How is it possible to think about the social world in a creative way if one must constantly repeat past truths? To some extent, then, more recent manifestations of CLS have tended to depart from American CLS. The turn towards postmodern jurisprudence and to theories of rhetoric show to some extent how critical scholars are seeking inspiration from alternative sources. These tend to be rooted in European philosophical work. In the case of African CLS, though, this is rooted in a political context entirely different from that of Europe or North America. In this sense, then, perhaps CLS is evolving rather than necessarily looking back to founding fathers as the source of immemorial insights. We could suggest that if CLS is a tradition, it is uneasy with the way in which this might limit the ways in which it could continue to develop as a radical account of the social and political world of the law.
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Reflect and review

Ready to Need to Need to move on revise first study again I can outline the main features of American critical legal studies I can demonstrate an understanding of postmodernist conceptions of law I can explain how CLS thought has been adapted by South African scholars.
Must revise 16.1 16.2 16.3 16.4 16.5 16.6 Introduction: what is CLS? Law and the fundamental contradiction Law, politics and reification American critical legal studies: success or failure? Postmodernity and critical legal studies African critical legal studies Revision done
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Notes
17 Critical race theory
Contents
17.1 17.2 17.3 17.4 17.5 17.6 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 246 American critical race theory . . . . . . . . . . . . . . . . . . . . . . 247 Law and race discrimination . . . . . . . . . . . . . . . . . . . . . . 248 Race, racism and ideology . . . . . . . . . . . . . . . . . . . . . . . Critical race theory and British racism . . . . . . . . . . . . . . . . . The official inquiries . . . . . . . . . . . . . . . . . . . . . . . . . . Critical race theory and postcolonialism . . . . . . . . . . . . . . . . Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . 248 250 253 255 261
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Introduction
Critical race theory (CRT) grew up in America as a response to the failure of the anti-discrimination laws to achieve any real sense of social advantage for the black community. CRT emerges as an engagement with the civil liberties struggle and its aftermath. However, CRT can also be seen as a way of thinking about the law that is not limited to the American experience, and which addresses laws involvement with racism. This chapter brings together these two senses of CRT. We will go on to look at the experiences of law and racism in post-war Britain suffered by citizens of the new Commonwealth. The focus will be on those citizens who came to Britain from Africa and the Caribbean. In a final section of the chapter we will look at postcolonialism, and examine its links with CRT.
Learning outcomes
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outline the American origins of critical race theory give an overview of the civil liberties struggle in the United States explain the notions of race and ideology describe the basic elements of a critical race response to British law and racism explain what is meant by a postcolonial jurisprudence. Douzinas and Gearey, Critical Jurisprudence. (Oxford: Hart Publishing, 2004). Freeman, Chapter 16: Critical race theory.
Essential reading

Jurisprudence and legal theory 17 Critical race theory
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17.1 American critical race theory

17.1.1 The historical perspective
One of the foremost American CRT scholars has written that the black peoples struggle is as old as this nation, making race and racism essential to the definition of America as a nation. There are many possible perspectives on this claim, but we will concentrate on the experience of African Americans and the issue of slavery. Indeed, it would appear that the very recognition and perpetuation of slavery was a compromise that allowed the foundation of American Constitutional government (Bell, 1995). Repeatedly, from the drafting of the Independence Constitution in 1787 to include the preservation of slavery, to the HayesTilden Compromise of 1877, the right to property has been raised above that of black freedom. History teaches a lesson about the law: blacks seem uniquely burdened with the obligation to repeat history, whether or not they learned its lessons (Bell, p. 7). From the end of the civil war until the present, a pattern can be traced which shows that any black advance is effectively crushed by a white backlash, and the historic racism which means that black rights will always be compromised to other economic or social interests. Thus, the experience of the first reconstruction, the time from the end of the American Civil War to 1877, is repeated in the fate of the civil rights movement. In the former, formal equality is stated in law, but the economic and social dispossession still suffered renders these legal rights symbolic. The litigation engaged in by the National Association for the Advancement of Colored People (NAACP) is accused of becoming too fixated with symbolic advances. At root, the problem of discrimination is that of the inequitable distribution of social and economic power; rules only reflect ways in which these distributions can be preserved. One cannot ignore the political base (Bell, 1995 p. 18). Bells view is that insofar as a prompting can be taken from this history, to move forward we must understand that America is inherently racist. Although litigation will not alter its ingrained structures, hope rests in the struggle itself:
We must realise, as our slave forebears did, that the struggle for freedom is, at bottom, a manifestation of our humanity which survives and grows stronger through resistance to oppression.
Not only does the failure of the civil liberties struggle reflect a weighting of history against the cause, Bell says, but it rests upon a fundamental misunderstanding of the nature of law. In the call for a racial realism, there is an alignment of the struggle with a need for a new thinking about law that repeats the gesture of the legal realists against the jurisprudence of the old order. Thus, just as the legal realists had shown that law could not be thought of as formal rules and principles, but that the political preference of judges had immense importance in the outcome of cases, there was no such thing as neutral principles. Bell indicates how critical race theory could make use of such insights. Consider Regents of the University of California v Bakke. The court had to decide on the legality of an affirmative action programme that would allow black candidates to enter the University of Californias medical school. Employing a very narrow definition of equality, which ignored the social and economic causes of disadvantage, the court held that no white students could be refused entrance to give preference to black candidates:
Bakke serves as an example of how formalists can use abstract concepts, such as equality, to mask choices and value judgements. (Critical Race Theory, p. 304)
The HayesTilden Compromise (also called the Compromise of 1877) was an alleged deal struck between Republican leaders and Democrats of the House to get Republican Rutherford B. Hayes elected to the presidency. In return, Hayes would end Reconstruction and end military rule in the South, which had been instituted to help improve the position of the newly emancipated black slaves, following the Civil War of 186164. The end of military rule in the South meant that there was no one to keep white racists in check. This was a major defeat for black Americans and led to slow social reforms and increased racism in the South that would remain until the Civil Rights movement of the 1960s. Hayes was awarded the presidency by a majority of one in the Electoral College.
Activity 17.1
a. How does CRT come out of a historical experience? b. Why are CRT scholars sceptical of the civil liberties movement? c. How can a formalist approach to law obscure the social and economic factors that lie behind discrimination? Feedback: see end of guide.
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17.2 Law and race discrimination

CRT poses a fundamental question. Can the law understand racial discrimination? In one definition produced by a critical scholar, discrimination is positional. What does this mean? Discrimination describes the inter-relating and structured disadvantages in education, work, access to justice, housing and health care, and the associated withering of ones self-image that accompanies such marginalisation and exploitation. The law tends to be blind to such a reality. Litigating on a civil liberties issue, say desegregation of schools, tends to re-create this problem in terms of an act of violation of antidiscrimination principles that can be remedied; it neutralises the inappropriate conduct of the perpetrator. But is this sufficient? Litigating civil liberties issues arguably atomises and individualises discrimination into a series of disputes, and avoids the more structured sense in which discrimination results from an inter-relation of disadvantage. Notions of causation and fault are, of course, central to this conception. The effect of these notions is to remove any sense of collective responsibility for discrimination. Would it be possible for the law to move to an appreciation of the positional nature of discrimination? There are problems. Such a shift would be challenging not only to the legal construction of responsibility as individual fault, but risks antagonising a majority who are reluctant or unwilling to perceive their own complicity in discrimination. Given this problematic reality, antidiscrimination law has attempted to find ways of breaking out of its formal restraints, while trying to display an adherence to the form of the law.
Activity 17.2
a. What are the problems associated with litigating discrimination issues? b. Would it be possible for the law to move to an understanding of positional nature of discrimination? Feedback: see end of guide.
Summary
The roots of critical race theory lie in the experience of Afro-Americans in the USA, from their original status as slaves, though emancipation and the disappointments that followed it, and onto the civil rights struggles of the twentieth century. The legacy of racism persists, and there are clear limitations in the laws approach to discrimination.

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outline the American origins of critical race theory give an overview of the civil liberties struggle in the United States.
17.3 Race, racism and ideology

CRT develops a theory of legal ideology as intrinsically linked to race. CRT borrows from CLS when it describes anti-discrimination law itself as constructed on its own tensions, but it also offers a critique of the theories of ideology that CLS scholars put forward. This both builds on and redefines some earlier theories of legal ideology. Theories of ideology are important, but the term must not be overburdened, or allowed to become an interpretative key that, by unlocking everything, explains nothing. Ideology describes a way in which the material conditions of life are perceived and refracted. Ideologies reflect, but are not completely composed by, the dominant and socially powerful beliefs, ideas, understandings and practices. It is helpful to think in terms of ideological instances: different elements of society have different ideologies, which interface and conflict with other ideological aspects. Thus, there is a sense in

which the law will interface with certain notions in, for example, economics, even if at one level this is denied in the name of laws autonomy by one school of thought, or, to show the complexity of ideology, affirmed as a necessary linkage by another. Ideologies are not, however, of a piece; they are internally fractured and riven. This sense of tension and conflict was important to CLS accounts of legal ideology. The work of Gabel and Kennedy takes as its starting point the notion that law is an ideological distortion of the world. Ideas/practices of law have to be examined to see how they interface with wider social, economic and political concerns. The basic CLS take was that legal reform can never transform a social order, because the law is already implicated in the power structures that the reformers are attempting to change. In the face of this challenge, CLS scholarship made use of a technique called trashing that was meant to reveal the problems that lay under the surface of the law, and could be shown to compromise its claims to universality and objectivity. But, it is not as if the CLS approach can immediately be adopted by CRT scholars. The central problem is that CLS accounts completely ignore the importance of race in ideology. Ideology, as expressed through race consciousness (Critical race theory, p. 112) impacts on black subordination, but also on the white hierarchy and their identity with elite interests. Consider the frequent failure of anti-discrimination law to achieve substantive change. One reason could conceivably be that the necessary redistributions of wealth are prevented by a white perception that they would thus lose out to black interests. There is, in other words, something that unites whites across boundaries of class or gender, and that is race. Ideology, in this sense, operates to create a hegemony of interests. More broadly, this other group helps to legitimise the identity of the hegemonic group. For example, it is interesting that the trade unions that were primarily composed of immigrant white workers, excluded black workers as a means of displaying their compatibility with the mainstream of American society. This process is ongoing, dynamic, and changes its arguments over time. The removal of the more obvious aspects of discrimination does not mean that this hegemony has been broken, and that discrimination will disappear. One example of this is the way in which civil liberties advances are re-inscripted at a cultural level that plays back into wider debates about policy and culture. The black failure to adapt to the supposed norms of white behaviour hard work and discipline had to be made up by the positive discrimination programmes and affirmative action. Any further demands for special treatment show the continued failure of the black community to match up to social standards, and hence shows their inferiority and the partisan and one-sided nature of antidiscrimination law. The question remains: if anti-discrimination law is ideologically compromised, must it be abandoned? Such an approach would lose sight of the transformative potential that the law offers. There is a sense in which litigation and doctrinal development in civil liberties law can make meaningful interventions in social institutions. It would be hopelessly utopian to imagine that there was a way of proceeding that was not somehow compromised. Besides, the very powerlessness that makes it necessary to rely on anti-discrimination law means that it is not possible to stand aside from the dominant discourse and produce an effective way of framing demands and taking action. Ideologically, litigation showed that the state could not afford to be colourblind, that the rhetoric of racial neutrality hid and perpetuated discrimination. Quite apart from the debate about the extent to which there have been changes in social status, then, use of the law has served to de-legitimise discrimination at an ideological level. Given ideological transformation, though, this struggle to de-legitimise is ongoing and has to be fought at all the levels at which ideology operates including the jurisprudential. Whether or not one would accept that this jurisprudential struggle is being won in the American scholarship, the question becomes in this chapter: how must a critical race jurisprudence adapt itself to a different jurisdiction and a different history of racism? Furthermore, if one accepts the globalisation thesis, then a jurisprudence of resistance must be able to adapt itself to context, and to retain the sense in which it is a form of international intellectual movement.
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Activity 17.3
a. What is ideology? Why is a theory of ideology important to CRT? b. Why is the law still important as a way of fighting discrimination? Feedback: see end of guide.
Summary
This section has presented the relationship of critical race theory to critical legal studies, and also examined the importance of a theory of ideology for an understanding of race. CLS is sceptical that legal reform can ever transform a social order, but the law does retain a transformative potential; for example, anti-discrimination laws, whatever their shortcoming, have served to de-legitimise discrimination, and this process is continuing.
17.4 Critical race theory and British racism

British CRT scholars have also approached racism as a historical problem. We are concerned here with the post-war situation. As Gilroy writes, the contemporary perception of the problem was not so much the volume of black settlement but rather its character and effects, specifically the threat to legal institutions (Gilroy, 1995, p. 86). Immigration is perceived as a sense of actual threat to English constitutional values. This very perception of immigration as a threat, rather than an opportunity to create a different history, a different institutional response, is the failure of English law when faced with racism. Law fails to create a legal notion of race, of what is shared in common by communities of Britishness. Perhaps a more progressive operation of the law could have been, and could still be, possible one that makes use of a shared notion of the Commonwealth citizen. Although this concept reflects the process of de-colonisation, by this very token it also carries within it a history of the colonisation that created the Empire in the first place. There can be, therefore, no sense in which the law comes with clean hands to the problem of race.
17.4.1 Race, racism and British Law: a short history

In the post-war period, despite differences of political ideology, there has been a broad consensus about the need to stem immigration. A useful starting point is the 1962 Commonwealth Immigrants Act, passed in the context of reducing immigration through issuing employment vouchers. Underlying the Act was a notion of belonging that was defined as having a link with Britain either through being born in the country or having a passport issued there. At a symbolic level, this perhaps indicates the withdrawal from Empire and the Commonwealth that some commentators have seen as a factor in immigration legislation (Holmes, 1988: the policy that lay behind the 1948 British Nationality Act, which was rooted in a sense of obligation towards Commonwealth citizens, was being increasingly eclipsed by an emphasis on Britains role in Europe). The 1962 Act has been described as the blueprint for a regime of racial control, although there is also a sense in which it draws on earlier policy decisions (Solomos, 1993). While the government was concerned about the social problems that resulted from coloured immigrants settling in Britain, they were less concerned about white immigrants from the old dominions (Gilroy, p. 173). One of the failures of the Act was that it could not allow this distinction to be made, other than through acts of overt discrimination:
Operating the 1962Act at these dual levels reinforced the differentiation of communities of Britishness: the imperial, familial community consisting of white-skinned Britons was privileged and protected from the letter of immigration law, while the political community of Britishness consisting of black-skinned Britons was subjected to increasingly tight regulation.

A change from a Conservative to a Labour government (in 1966) did not produce any concrete shift in the direction of the law. The aim of the second Commonwealth Immigrants Act 1968 (which followed the loss of a Labour Parliamentary seat to a man who campaigned on an openly racist platform on the slogan if you want a nigger for a neighbour, vote Labour) was to create an even tighter legal definition of British nationality. At one point the Home Secretarys proposals for increased powers for immigration officers effectively redefined immigrant British subjects as aliens (a broader perspective on this process is that the notions of alien and foreigner are predicated on the entire history of the nation state) although these proposals did not move beyond the White Paper. At the level at which these debates were conducted, in the press and in Parliament, there was also the worrying continuation that turned both settled coloured peoples and immigrants into suspect communities, whose presence was problematic and troublesome for the majority. It is no wonder, therefore, that the passage of the Race Relations Act in 1965, although in some ways a recognition of the problem of discrimination, was severely hampered. It was very much dictated by the concerns of the white majority, as opposed to a true intervention to help those who were the victims of discrimination. The Race Relations Act will be considered in more depth presently, but it would not be going too far at this point to suggest that the Act perpetuated the idea of communities of Britishness (see Gilroy, p. 176; for a more radical account of the thinking behind the Act, which sees the state as acting on behalf of capitalists interests, see Sivandan, 1982). This weighting towards separate, and not particularly equal, spheres undercut any official commitment to ideas and practices of neutrality or integration. In its most extreme form the discourse of the right-wing National Front or British National Party can be seen as the logical extension of, rather than any great departure from, the official government discourse on the need to police race. The colonial background of the legislation is also starkly apparent in the background to the 1968 Commonwealth Immigrants Act. One of the reasons for the passage of the act was the need to restrict the entrance to the country of Kenyans of Asian background. As the law stood, Commonwealth citizens who had a parent or grandparent born, adopted, registered or naturalised in the UK had an automatic right of entrance. This group of people were facing discrimination in Kenya. They had originally been assisted in moving to Kenya in by the British, to fulfil various functions that the British believed Africans were incapable of. The British government failed to recognise this history; rather, once again, it was subordinated to the demands of the present, and a convenient forgetfulness. Later, in 1972, there was a similar concern, albeit under a different legislative regime, with Ugandan Asians. It is suggested that the reasons for allowing this group to enter the UK was not associated with any language of rights or legal entitlements, but with necessity and the need to bear a historical burden (Gilroy, p. 182). This logic works itself through into the 1971 Immigration Act. Largely informed by the separate spheres concept of nationality, it gave legislative form to overtly discriminatory practices that had long been in operation, by dividing British subjects into patrials and non-patrials, non-patrials being so deprived of rights of settlement and to work as to be virtually aliens (Gilroy, p. 181). Fryer (1984) states that this Act, when it came into effect in 1973, virtually ended all primary immigration. As well as increasing the power of immigration officers and the police to detain immigrants, it came into force in a context of increasing violence against black communities. The practical upshot of this definition also meant that patrials were almost completely white. In effect this meant that the law created and sustained a distinction between a biological notion of nationality, which was privileged, and a political notion, which included mostly coloured peoples, that was denigrated. Despite the language of the 1976 Race Relations Act, and the developing case law, then, the operative terms of the law were racist in the most crude of senses. Reflecting continuing public concerns with the swamping of the nation, the 1981 British Nationality Act provides a further attempt to classify and control. The definition of nationality was divided into British Citizenship, British Dependent Territories Citizenship and British Overseas Citizenship. These classifications and the hierarchy of rights they reflected were predicated on notions of descendance and familiarity, that themselves depended on
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a grounding notion of Britishness exclusive to any broader notion of belonging in the Commonwealth. Linking immigration law with race relations legislation allows these themes to be pursued.
Activity 17.4
How has British law responded to immigration in the post-1945 period? Feedback: see end of guide.
17.4.2 The Race Relations Acts

Anti-discrimination legislation takes three phases: the 1965 Race Relations Act, expanded by the 1968 Act, and redefined by the 1976 Act (and more recently the 2000 Act). Similar themes run through all three Acts. Despite making for some important changes, the Acts themselves are largely compromised, and leave racism largely intact. The 1965 Race Relations Act was passed by a Labour government with a small majority and on the eve of a general election. It was a rather limited measure, creating a criminal offence of incitement to racial hatred and an overseeing body, the Race Relations Board, which lacked basic powers to call for witnesses and documents. The emphasis was on conciliation; only if conciliation failed could the Board refer the case to the Attorney General, who may or may not chose to litigate. Interestingly, proposals for an administrative body to implement the Act in the public interest, rather than relying on conventional legal processes, were rejected. Arguably the nature of the Act was profoundly affected by political compromises that were necessary to achieve the necessary Parliamentary support (McCrudden et al., 1991). Political exigencies combined with wider ideological failures to make it an Act without teeth. The Race Relations Board, with its emphasis on conciliation was perceived by those in whose favour the Act was meant to be operating, as stressing that they were aliens who had to be reconciled with British society. The demand was for rights that would make them the same as other citizens (Fryer, 1984). The context of the 1965 Race Relations Act has been analysed by Miles and Phizacklea (1987, p. 57). They see Roy Hattersleys statement, made as an MP for Sparkbrook, Birmingham in 1965, as symptomatic of the ideology of the Act: Without integration, limitation is inexcusable; without limitation, integration is impossible. These words suggest that the 1965 Act was explicitly linked to a broader perception of the problem as one of a coloured immigrant population that had to be both controlled at the point of entry to the country and in their ongoing settlement and integration. In the face of the evidence of widespread and violent racism (McIntosh and Smith, 1975; Luthra, 1997, p. 173, states that the first official acknowledgement was in 1981 in a report by the Home Office, Racial Attacks), it seems peculiar that the Board should privilege this aspect of the law. It makes it seem as if the problem is accountable for in terms of a few bad apples an argument that frequently re-appears in the rhetoric of law and race, and which is finally discredited, at an official level, in the Macpherson Report with its description of endemic, institutionalised racism. To see the law as unequivocal declaration of public policy (Lester and Bindman, 1972, p. 29) adds to this argument a blindness to the tensions of the law. If this was, in turn, a second influential argument in the foundations for the 1968 Act, it might indicate that the lawmakers remained ignorant of the dynamics of the law.
Activity 17.5
To what extent were the 1965 and 1968 Race Relations Acts successful in countering racism? Feedback: see end of guide. Reasons for the failures of the Race Relations Acts can be discovered in the very arguments that were put forward by the Race Relations Board in 1967 arguing for an extension of the earlier Act. For instance, it argued that the law gives support for those who do not wish to discriminate, but who feel compelled to do so by public pressure.

Although the 1976 Act widened the scope of anti-discrimination law still further, there were still glaring omissions, such as the exclusion of the police from the provisions of the Act. From a contemporary perspective, this omission can be used as a lens to focus the criticisms of the Act. One of the major advances on the face of the Act was the widening of the concept of discrimination. Indirect discrimination was far broader than direct discrimination, and arguably went some way to acknowledging the social reality of racisms operation. Acts of discrimination were often not obvious and direct, but took place at a more sophisticated and covert level. The kind of discrimination envisaged was the imposition of a condition which on the face of it was colour-blind, but, in its application, occasioned discrimination. As commentators have suggested, this concept of indirect discrimination falls far short of any meaningful idea of institutional discrimination (Hepple, 1992, p. 25). As we shall see, the Lawrence Inquiry privileged this understanding of racism as an institutional manifestation. They offered the following definition of institutional racism:
The collective failure of an organisation to provide an appropriate and professional service to people because of their colour, culture or ethnic origin. It can be seen or detected in processes, attitude and behaviour which amount to discrimination through unwitting prejudice, ignorance, thoughtlessness and racist stereotyping which disadvantage minority ethnic people. (Macpherson, Lawrence Inquiry, 6:34)
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This provides a far more useful definition than the 1976 Act as an attempt to describe the dynamics of racist behaviour. It draws attention to the informal networks, the unofficial, but influential social interactions where a cultures racism coheres.
Summary
We have been examining British racism, and the response of British law to this problem. The period since 1945 has seen substantial black and South Asian immigration into Britain, the response to which has been a rise in racism and the simultaneous passing of a series of laws designed to reduce immigration (whose intent was plainly discriminatory) and other laws purporting to outlaw discrimination against racial/ethnic minorities legally present in Britain. The various Race Relations Acts, however, have proved ineffective at removing indirect discrimination.
17.5 The official inquiries

The first report into the investigation of the Stephen Lawrence murder, the Kent Report, found no evidence that racism had significantly contributed to the failures to make arrests. Admittedly, the Kent Report addressed complaints against individual officers, and did not have a remit to research wider issues, but this in turn reflects the constitution of the problem.
Stephen Lawrence, a young
17.5.1 The Scarman Report 1981

We have to go back to Lord Scarmans Report into the Brixton Disorder in 1981, to put in context the reaction of British state institutions to racism. Lord Scarman rejected the allegation that British institutions were systematically involved in racial discrimination. Racism was not seen to operate at the level of conscious policy or public decision-making. If either individuals or institutions discriminated on racial grounds, then the explanation was that of unwitting racism (Lawrence Inquiry, 6:7). Thus, the Metropolitan Police were not racist; apparent prejudice at an operational level was to be explained by errors of judgementlack of imagination and flexibility (Lawrence Inquiry, 6:8). At the level of everyday policing, occasional racism could be explained as the immaturity of certain officers. Despite this individualising of racism, there was indeed an acknowledgement that the problem was wider and more structural. This acknowledgement, though, appears as an explanation as to why individual officers, who may not be racist, may come to behave in racist ways. Because of racial stereotyping, officers facing a rising tide of street crime may lapse into unthinking
black student, was murdered by a gang of racist white youths while waiting at a bus stop in Eltham, SouthEast London, on 22 April 1993. No-one has ever been successfully prosecuted for this crime.
Brixton is an area of South London which has a relatively high black population.
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assumptions (Lawrence Inquiry, 6:10). It is not as if Lord Scarman is dismissive of racism. Where unwitting racism has been proved, it warrants remedy; moreover, racism is the cause of social tension that cannot be allowed to fester and destroy good order. However, the legacy of the Scarman Report is an understanding of racism that distracts attention from its invasive, systematic or institutional nature, and tends to see it as unconscious or unwitting acts of individuals.
17.5.2 The Lawrence Inquiry

The limitations of Lord Scarmans definition of racism were given in evidence to the Lawrence Inquiry as descriptions of how both the Political Complaints Authority and the police appreciated the issue of discrimination. It was described as the problem of rotten apples who let the side down (Lawrence Inquiry, 6:14) and could be countered by both selection and disciplinary procedures that would weed out the racists. Despite Scarmans emphasis on the need to combat racism, his report tended to be used to support the argument that racial discrimination was not a widespread problem in policing. Equally at fault was the traditional way of doing things. There are many aspects to this ideology. Overarching is the reluctance to come to terms with the need to police a multi-racial society. For a police force that is attached to a notion of unarmed and consensual policing, such a refusal to move with the times is profoundly damaging. The consensus that is policed reflects not broader contemporary social mores, but the need to preserve certain values that are seen as under challenge. Practices and procedures become ingrained and difficult to change. Most worryingly, the culture of policing does not encourage a critical self-understanding that would make prejudice easier to identify and to challenge. As the Lawrence Inquiry was told, it may be that these attitudes are prevalent throughout British society. Such a concern was obviously outside the Inquirys terms of reference. The problem is that of a general phenomenon. As institutional racism it expresses itself not only in the failures of the Lawrence murder investigation, but also in the disparity in the numbers of black people stopped and searched by police (Lawrence Inquiry, 6:45) and the under-reporting of racial incidents (Lawrence Inquiry, 6:45) and the inability of the police to take the issue seriously at the level of training. (The report by Her Majestys Inspector of Constabulary, Winning the Race, showed that before 1998, not a single officer had received training in racism awareness.) It is perhaps no more than a local expression of a wider disease. It is this collective organisation failure (Lawrence Inquiry, 6:22) that has been described as institutional racism. Interestingly, the report itself refers back to a text by two Black American activists from the 1960s, Stokely Carmichael and Charles V. Hamilton, to develop this definition. Racism must be seen as operating within the most respected forces and as a combination of both active and pervasive racist attitudes; underlying these is a belief in black inferiority. Also present in the evidence are assumptions about black lawlessness that have their own particular history. The association of blacks (and particularly black youths) with criminality, and more broadly, black communities with their difference from accepted national mores, are concerns that have a long pedigree and show the involvement of law and media. In the response of Sir Harold Scott, the Commissioner of Londons police, this criminality was best dealt with by repatriation, themes that were taken up by the press and other publications which also dwelled upon the difficult conditions experienced by black immigrants in housing provision, to depict images of the difference of West Indians, but also Pakistanis and (white) Irish people from the native English. If the Lawrence Inquiry brings anything to light it is that these attitudes are no longer acceptable. In the words of Sir John Woodcock, the Chief Inspector of Constabulary in 1992, the Inquiry reveals a wider cultural failure. Thus in its recommendation for tacking white English racism, there is a need for, in the words of the Reverend David Wise, a radical transformation involving not only the police but all levels of society. The Inquiry becomes the point at which a previously radical critique enters within official discourse. Again, with reference to the words of Sir John Woodcock, the police remain a nineteenth-century institution, a mechanism set up to protect the affluent

from what the Victorians described as the dangerous classes (Lawrence Inquiry, 6:61). This suggests that the problem is one that has to be seen, most broadly, as one of inclusion within a rethought democratic structure.
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Summary
This part of the chapter has looked at the official responses to racism in law and policing. The persistence of racism among white Britons was brought into sharp focus by the murder of Stephen Lawrence, a crime which the police failed to solve. Early inquiries largely exonerated the police from blame, but the Macpherson Inquiry, which charged the police (among others) with institutional racism, had an enormous effect.
Test your understanding by making summary notes for yourself on the following questions: 1. Describe the concept of indirect discrimination provided by the 1976 Act. 2. What were the principal findings of the Scarman Report, and what was their impact? 3. What is institutional racism? No feedback provided.

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explain the notions of race and ideology describe the basic elements of a critical race response to British law and racism.
17.6 Critical race theory and postcolonialism

CRT and postcolonialism are related approaches. Whereas CRT takes the notion of race as its focus, postcolonialism, as its title suggests, is concerned with a historical period: the end of colonialism. This is not to suggest that CRT is not concerned with history, or that postcolonialism is not concerned with race. However, whereas CRT comes out of the American experience, postcolonialism tends to address the end of the European empires in Africa, Asia and other parts of the world.
17.6.1 What was colonialism?

As one scholar writes:
[h]owever it may have been legitimised in ideological terms, it was by definition foreign rule. Its primary task was to make this rule effective, to assure its long duration, to end or neutralise opposition, and to make possible European activity in the colony (von Albertini, 1982, p. 488)
What marks colonialism is thus economic exploitation and racism; a sharp separation between the rulers and the ruled. It would be wrong to reduce the dynamic of colonialism to a cross-cultural and temporal template. Understanding the diversity of the forms of the colonial also demands that the role of the law is accorded a similar complexity. Following recent scholarship, it is possible to suggest a broadly tripartite typology. Although this is somewhat simplistic, it does allow one both to generalise about the law, and to observe a cultural specificity. The three phases can be broadly represented as beginning with the first attempts to exploit the resources and manpower of South America and Africa by European powers. This moves into a later phase in the nineteenth century, where direct appropriation began to be replaced by a regime of treatise and trading agreements, although much outright appropriation of territories still took place. The third movement is that of the more formal colonial rule of the later 1900s; this latter phase could also be seen as concluded, or redefined, by the withdrawal from empire and the independence of the new African states. What
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also cuts across this typology is the different developments of law and colonialism that reflect the various traditions and experiments in government of the colonial powers. However, although the law is a vehicle for the legitimisation of European rule, it is also a site of struggle and resistance. In the moment of independence, law is used to define national identity. We will consider its dynamic in the text of the Nigerian lawyer and patriot Obafemi Awolowo:
When Britain decided to annex the territories that now constitute Nigeria, her motives were to advance her economic interests, to gain strategic military positions, and to enhance her political prestige. In order to secure these things it was imperative that the people, after having been subjugated, should be pacified. Order and law must be maintained. Commerce does not flourish in a turbulent country, nor can military posts be maintained in a state of efficiency where the inhabitants are not amenable to orderly government. (Awolowo, 1957, p. 58)
Awolowos tract is both a blueprint for a system of national and local government, a discourse on the countrys past and an imaginative engagement with its future. Nigeria is a country that will be brought into being by the law, but a law that has not, as yet, been stated. At Awolowos moment of writing, one could not talk of Nigeria as an independent nation. It was still a convenient division of land, a line drawn on a map by Sir Charles Goldie, an administrative organisation to better allow the exploitation of its resources, a collection of diverse peoples whose only common language was English. At the same time, Awolowo is invoking constitutional values and linking them to his imagination of Nigeria; simultaneously doing homage to a common law tradition and accusing it of failing, of being unable to live up to its rhetoric. Linked to this is the claim about economy:
[E]very year Nigeria pays to British investors an interest of 750,000 on her national debt Slavery continues in a more subtle but equally exploitative form. Not just in the servicing of the national debt, but in the ninety-nine years, during which the Mining Royalty Agreement will last, Nigeria will pay millions of pounds to the British owners of the United Africa Company Ltd. (Awolowo, 1957, p. 20)
Here we have a knotting of themes. To be independent is to make a claim to legal and economic sovereignty. Sovereignty is a claim to a law that can recognise and give shape to the people in whose interests economy will operate. Awolowo accuses the colonial power of depriving Nigeria of these essential supports of nationhood. Understanding the tensions that were to bedevil the newly independent nation means thinking in terms of the poisonous legacy of colonialism. Indeed, the Nigerian independence constitution was in many ways a problematic and flawed document. However, these flaws must be seen alongside a great democratic potential and commitment to human rights and the rule of law that are also a feature of Awolowos vision. We will see that the potential of the constitution is one way in which Nigerian jurists have continued to respond to the political and economic paralysis of the nation. To build this argument we first need to examine the conjunction of failures in the political, constitutional and economic structures of the nation.
Activity 17.6
a. What was colonialism? b. What is postcolonialism? Feedback: see end of guide.
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17.6.2 Postcolonialism and the philosophy of law

Historically, there is an alliance between jurisprudence and colonialism. Tropes of progress, difference and identity can be read as animating the jurisprudential tradition. Although perhaps less central to the canon now, works such as Henry Maines Ancient Law (2002) show clearly the sense in which jurisprudence was informed by the anthropological, philosophical and historical suppositions of the human sciences. More importantly, the distinction between the savage and the civilised can be glimpsed within the still central line of legal thinking that runs from Hobbes to Hart. English jurisprudence is confronted with a problematic question by an insight into its core mythology. It is as if this whole tradition fixes disorder outside of law in the eruptions and disruptions of untamed nature or barely contained human passion against which an ordering law is intrinsically set (Fitzpatrick, 1992, p. 81).
Law and the savage

What we find here is the creation of a Western, European identity, created in opposition to all those features which it is not (Fitzpatrick, p. 65). This function is performed by the idea of the pre-modern savage, identified with an undifferentiated natural world and a worldview that is mythological, unscientific and fantastic. Cast out from the world of culture, the savage as an object of nature is destined to become something that reason will act upon, civilise and reform and above all to be made subject to reasons sovereign power. It is not difficult to see how these philosophical presuppositions fed into the mindset informing the establishment and perpetuation of both slavery and the colonial project. In both cases, the colonised and exploited territories were seen as materials for the West: either in the direct purchase of slaves, or the founding of colonial orders in the newly discovered or conquered territories. It is pointed out that already by the 1800s, the West had brought nearly a third of the world into its sphere of exploitation (Fitzpatrick, p. 65). We can trace this opposition of law to savagery through the foundations of jurisprudence. Thomas Hobbes proclamation of the Leviathan, the mortal god who will preserve the order of the community, can be seen as a definitional moment in jurisprudence. Hobbes vision of the chaotic state of nature, where man turns against his brother in a war of all against all, is directly informed by the structuring separation of savage nature from organised and regulated culture. Law, as grounded by the covenant that founds the power of the Leviathan as supreme sovereign, is the line of separation, the bulwark that protects from a return to anarchy. Only when law guarantees social peace can the commonwealth come together; political community is thus predicated by subordination to a superior power. Although written much later than Leviathan, John Austins The Province of Jurisprudence Determined takes shape in the same mythological space. Austins definition of law as the command of the sovereign to which political inferiors owe habitual obedience is itself determined by Hobbes Leviathan. Underlying Austins jurisprudence are the same assumptions about the desirability of law as a protection from the disorder of savage nature. Society could not possibly cohere without this line of demarcation. Consider the following example of the necessity of law in Austins text. A solitary savage could not be a social man, because he would not appreciate the necessity for communal living, and hence government: The savage mind is unfurnished with certain notions essential for society (Fitzpatrick, p. 79). Most interestingly, Austin makes a link between this savage state of nature and the unruly and restless poor, who do not appreciate the need for the law. These foundational Enlightenment ideas are themselves refined and adapted over time. Our concern here is with the incremental development of the sciences of man. Studying the way in which the world was classified and defined, one can trace a slow movement towards modes of understanding that stress ideas of progress and development, that build on the more spatially and hierarchically orientated ways of thinking that had characterised the early Enlightenment. In the new sciences of man, in particular anthropology and racial science, one can find the development and increasing sophistication of the colonial project. The continuity of this project, despite these changes in modes of thought, can be seen in the essential operation of the new sciences.
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They operated with classificatory schemas that sought to find identity in the negation of difference (Fitzpatrick, p. 93). Fortified by a sense of progress, of the need to civilise those who were savage, the colonial powers increasingly expressed their identity in the denigration of those who they perceived to be unlike themselves, peoples who had to be subjected to progress (Fitzpatrick, p. 70). Consider the work of those such as Robert Knox or Herbert Spencer, who drew on Charles Darwin to create accounts of the superiority of the white race. The position of the latter is the outcome of a long history of struggle, and there is a reflex of these attitudes in the words and the work of the colonial administrators. Fitzpatrick quotes Fitzjames Stephens, who wrote that English law is in fact the sum and substance of what we have to teach them. It is so to speak the gospel of the English, and it is a compulsory gospel which admits of no dissent and no disobedience. (p. 107).
Tracing these themes in contemporary jurisprudence

We can trace these concerns through Harts Concept of Law. Harts thesis tries to describe the most basic social functions that underlie any notion of law. Unless law has a minimum moral content men, as they are, would have no reason [for] obeying voluntarily any rules. It is in justifying this particular minimal content of law that Hart employs a theory of human nature drawn from Hobbes. Here again is the vision of savage society as that which is unregulated, anarchic and merely awaits the coming of rational legal order. A stereotyped and racist understanding of primitive law is clearly a development of this position. Modern law is, in this vision, of course, marked by its flexibility and progress. It can be distinguished from the primitive by a rule of recognition that allows the system of rules to be changed by identifying a criterion that both marks rules and allows them to be changed. Primitive law is inflexible and rigid; impossible to change. What if this line of legal reasoning, rather than returning to the essential, to a past that is the key to understanding the present, merely repeats the presents own concern with what man is? Instead of a justification for the law which is universally applicable, Harts version of human nature might simply present a version of man that modern law has made; a product of modernist, secular culture which is then read back as the origin of law: a frozen moment, incapable of thinking beyond the limits it has imposed for itself.
Here is a fairly abysmal list of traits that are said to be characteristic of the human: the minimum purpose of the law is survival. Men are marked by a human vulnerability which makes the prohibition of killing perhaps the most necessary link between law and morality. The approximate equality of men makes necessary a mutual forbearance and compromise which is again basic to both normative systems. It is, moreover, the need to improve these restraints that necessitates the move to formal systems of law. What also determines the human is a limited altruism; man is neither angel nor devil, but somewhere between, and it is this problematic quality that again makes for rules which restrain the more aggressive aspects of human character.
Summary and conclusion

CRT can be seen as an intellectual movement that studies the response of the law to racism. Although its historical roots are in the response of American scholars to the problem of slavery and black oppression in the United States, it can be seen as a broader account of the way in which law responds to racism in other jurisdictions. CRT is critical of the way in which law has either ignored the problem of race, or responded in a less than adequate manner. In this sense, CRT is interested more broadly in racism as a social and political problem. We have also seen that the associated intellectual tradition of postcolonialism is also concerned with the historical problem of the way in which race, law and colonialism intersect. Postcolonial jurisprudence seeks to create an account of the issue of race in legal philosophy; and suggests that we should read classic jurisprudential texts with an eye on their silences or evasions on the issue of race. In this section we have seen that there are certain overlays between CRT and postcolonialism. There are, however, also differences of emphasis. Whereas the former grows out of concern with race and racism in the USA, the latter has been more focused on issues of European colonialism and its aftermath.
Test your understanding by making summary notes for yourself on the following questions: 1. In what sense does jurisprudence make use of a notion of the savage? 2. How does science creates classificatory schemas that define objects of knowledge? How do these classifications relate to colonialism? No feedback provided.
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uu
explain what is meant by a postcolonial jurisprudence.
References

Awolowo, O. The Path to Nigerian Freedom. (London: Faber, 1957, 1966). Bell, D. A. Racial realism in Crenshaw, K. et al. (eds) Critical Race Theory: the key writings that formed the movement. (New York: The New Press, 1995). Crenshaw, K. Race, reform and retrenchment in Crenshaw, K. et al. (eds) Critical Race Theory: the key writings that formed the movement. (New York: The New Press, 1995). Fitzpatrick, P. The Mythology of Modern Law. (London: Routledge, 1992). Freeman, A. D. Legitimising discrimination through anti-discrimination law in Crenshaw, K. et al. (eds) Critical Race Theory: the key writings that formed the movement. (New York: The New Press, 1995). Fryer, P. Staying Power; the history of black people in Britain. (London: Pluto Press, 1984). Gilroy, P. There Aint no Black in the Union Jack. (London: Routledge, 1995). Guillaumin, C. Racism, Sexism, Power and Ideology. (London: Routledge, 1995). Hepple, R. Have twenty-five years of Race Relations Acts in Britain been a failure? in Hepple, R. and E. M. Szyszczak (eds) Discrimination: the Limits of the Law. (London: Mansell, 1992). Holmes, C. John Bulls Island: Immigration and British Society, 18711971. (London: Macmillan, 1988). Jenkins, R. and J. Solomos (eds) Racism and Equal Opportunity Policies in the 1980s. (Cambridge: Cambridge University Press, 1989). Juss, S. S. Immigration, Nationality and Citizenship. (London: Thomson Learning, 1993). Lester, A. and G. Bindman Race and Law in Great Britain. (London: Penguin, 1972). Lustgarten, L. and J. Edwards Racial inequality and the limits of the law in Braham, P., A. Rattansi and R. Skellington. (eds) Racism and Anti-Racism. (London: Sage, 1992). Luthra, M. Britains Black Population: Social Change, Public Policy and Agenda. (Aldershot: Arena, 1997). Macpherson, Sir W. Inquiry into the matters arising from the death of Stephen Lawrence (the Lawrence Inquiry). For full text see: http://www.archive.officialdocuments.co.uk/document/cm42/4262/sli-00.htm. Maine, H. J. S. Ancient Law. (New Brunswick, NJ: Transaction Books, 2002). McCrudden, C. et al. Racial Justice at Work: Enforcement of the Race Relations Act 1976 in Employment. (London: Policy Studies Institute, 1991) p. 9. McIntosh, N. and Smith, D. J. The Extent of Racial Discrimination. (London, Political and Economic Planning, 1974). Miles, R. and A. Phizaklea White Mans Country. (London: Pluto Press, 1987). Packenham, T. The Scramble for Africa. (London: Weidenfeld & Nicolson, 1991). Sivandan, A. A Different Hunger: Writings on Black Resistance. (London: Pluto Press, 1982). Small, S. Radicalized Barriers: Black experience in the United States and England in the 1980s. (London: Routledge, 1994).
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Solomos, J. Race and Racism in Britain. (London: St Martins Press, 1993). Taguieff, P-A. La Force du Prjug: Essai sur le racisme et ses doubles. (Paris: Editions la Dcouverte, 1988). Available in English as The Force of Prejudice: Racism and its Doubles. (University of Minnesota Press, 2001). Von Albertini, R. European Colonial Rule 18801940: The Impact of the West on India, Southeast Asia, and Africa. (Oxford: Greenwood Press, 1982).
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Reflect and review

Ready to Need to Need to move on revise first study again I can outline the American origins of critical race theory I can give an overview of the civil liberties struggle in the United States I can explain the notions of race and ideology I can describe the basic elements of a critical race response to British law and racism I can explain what is meant by a postcolonial jurisprudence.
Must revise 17.1 17.2 17.3 17.4 17.5 17.6 American critical race theory Law and race discrimination Race, racism and ideology Critical race theory and British racism The official inquirie Critical race theory and postcolonialism Revision done
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Notes
Feedback to activities
Contents

Chapter 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 265 Chapter 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 265 Chapter 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 266 Chapter 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 269 Chapter 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 269 Chapter 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 270 Chapter 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 270 Chapter 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 271 Chapter 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Chapter 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Chapter 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Chapter 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Chapter 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Chapter 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Chapter 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Chapter 17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 273 275 276 276 277 278 278 281
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Jurisprudence and legal theory Feedback to activities
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Chapter 2
Activity 2.1
Here as elsewhere in jurisprudence, there is always room for disagreement. In the example of Picassos Guernica the statement that the painting is a certain size is clearly descriptive. It is also reasonable clear that Guernica is one of the great works of art is not descriptive because there are many people (such as those who think that abstract art is not really art) who do not think that Guernica is great at all. What sort of statement is it? Does it say what people ought to do and so is normative? In one sense it does. When you say something is good, you are commending it to other people and encouraging them to think in the same way. A more usual expression would be to say that the statement about Guernica is an evaluative statement. But if you adopted a theory that said all great art is that which is accepted as great art by a majority of people (not a very good theory in my view) and if you then said Guernica is great art, then it is certainly possible to argue that what you say is just description: it just describes the fact that a majority of people have accepted Guernica to be a great work of art. How does this relate to law? Lord Diplock was famous for taking what is known as the literal approach to statutory interpretation. When he said that the words plainly meant he took himself to be simply describing the law (that other judges did not find the meaning of the words so plain did not appear to bother him). But, it seems reasonable to say, he adopted a theoretical account of what he as a judge was supposed to do: when the plain meaning of a statute pointed in one direction, even if the result would have been odd, he assumed he had a duty to apply the statute so understood. At times, Lord Diplock would talk of the importance of applying Parliamentary sovereignty (he expressed it from time to time in the form of a warning to judges not to usurp the Parliamentary function). And so we have a theoretical and also a normative statement about the relationship between the judiciary and the legislature (judges must not usurp the Parliamentary function) and a descriptive statement (this is what the plain meaning of the statute is). Chapter 1 of Laws Empire is helpful in showing these differences in its discussion of three cases.
Activity 2.2
I think that the analogy works very well to show that our views about things are shaped by our practical interests. There is a thing there, a state of baldness which is neutral between the different attitudes towards it, but it only gets interesting when the father and son disagree about that thing. Isnt it reasonable to assume that arguments about law are like this?
Chapter 3
Activity 3.1
Activity 3.2
Activity 3.3
This is a good example of an examination question which has a core subject matter that comes from one section of the module but in which to answer the question properly you need to draw upon your understanding gained from the module as a whole. You need to understand what sort of claims were made in the name of natural law and the aim of the positivist project. How far do you agree with the student who commented towards the end of their answer:
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Living in a Muslim country where parts of our law are Sharia laws that come from the Quran [sic], I find it difficult to accept Harts theory of the minimum content of law, and like Finnis, I feel that his theory is too minimal. The overlaps in law and morals stated are too little. Since some of our laws are divined from religious sources which not only states laws but also gives guidance on moral conduct, there is a lot of overlap between laws and morals and a lot of laws can be said to have a moral content. Even though the five truisms given by Hart are true for my society and I can relate to them, there are many others that are ignored by Hart and not covered in his theory
Here is yet another from the same batch of scripts:

Reading about the minimal content of natural law as a woman in a Muslim society I find the emphasis on a shared minimum the only realistic answer for interacting between cultures and different social groups. I am a sincere Muslim but when I read the Quran I can not often see all the rules imposed on Woman that male interpreters claim are there
I think that the Prophets were concerned to give both a minimum and then guidance for the times they appeared. I understand that there have been others in the English history that have said similar things to Hart Hobbes, Hume and Adam Smith (?) and there are many who say that one has to include more Fuller and Finnis (?). So we see the same thing. Do we accept the minimum or are we told what to accept to become the bigger thing? The better Muslim, the better Christian the flourishing legal order But when we put all the rules in and say that all these rules are backed by true morals then we get a powerful group imposing their image on us. It is better if we can agree on a minimum and then leave it up to each group to voluntarily accept the more rules, that way different groups can live side by side
Chapter 4
Activity 4.1
Notice the two very different sources of natural law (i.e. our understanding of morality in these passages): first, our shared reason our shared conceptions given us by nature by which we all classify things in the same way, evil with evil, good with good, and so on; but secondly, God, the author of the natural law. Is it not possible for our reason to conflict with what we learn from the revelation of Gods will? This tension between reason and revelation was a source of doubt throughout the Renaissance: was the moral law as revealed by God good just because God willed it, or was it willed by God because it was good? Grotius famously denied that right conduct was good just because God willed it, holding that natural law would be valid even if God didnt exist. One of the questions these passages raise is this: does the natural law tradition provide a plausible theory of morality in the first place? After all, for a natural law theory to move on fruitfully to consider the moral character of the law, it must be sound in its fundamentals. But have you any faith that morality can be successfully derived from mans reason alone, or from revelation, or from some combination of the two? A utilitarian would adamantly oppose this sort of characterisation of morality. So does natural law theorys claim that law and morality are at some level connected depend upon the sort of theory of morality you espouse?
Renaissance: (French for rebirth) the upsurge of cultural, philosophical and cultural life that spread from Italy to the rest of Europe beginning in the fourteenth century. It was triggered by the rediscovery of classical Greek, Islamic and Roman texts.
Grotius: Hugo Grotius, Dutch legal scholar, 15831645.
Activity 4.2
Assuming that forcible assault and sexual intercourse among citizens is universally regarded as wrong (which, on the anthropological evidence, is a fair assumption), laws prohibiting rape can be seen to reflect the basic precepts of natural law, a prohibition which is universally understood by all with reason. However, various passages in the Bible also testify to the wrongness of rape, and so one can also conclude that the evil of rape is revealed to us by God, and thus forms part of the divine law as well. Note however that the particular legal requirements for criminal conviction, such as the rules regarding mens rea and consent, the rules on evidence, and the punishments imposed, are matters of human law. These specific rules are not spelled out by the divine law or natural law. The law of wills is an interesting case, for if the law of wills is the law which concerns looking after ones dependents on ones death, then this

might be seen to draw upon both scripture and natural law. It is interesting to note that the law of wills was, in England and elsewhere, originally part of the canon law jurisdiction. Of course, the particular formalities, requirements, and much else in the law of wills, are clearly determined by human beings and form part of the human law. Almost all of the law of taxation, although it might in very abstract terms, draws upon the divine law and natural law as the law which concerns and specifies our obligations to support our fellow man and provide resources for public goods which underpin a flourishing community seems clearly to fall within the province of human law.
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Activity 4.3
This is very similar to a general examination question focusing on Aquinas. Aquinas is justly famous for taking the ancient natural law tradition and Christianising it in a way that provides genuine insights into the nature of the relations between law and morality that many people find compelling. In the first place, notice how his theory of the connection between law and morality is often portrayed as indirect, but in such a way that this indirect connection is nonetheless quite robust. For example, his characterisation of the orders of eternal, natural and human law emphasises the rational and guiding functions of order and law, so that human law seems naturally to fit within a larger structure. His distinction between specificatio and determinatio, and his emphasis on the latter as the way in which much human law is created, makes the supreme morality of natural law a constraint upon human law. This seems much more plausible than treating human law as somehow directly ordained by morality. You should also note the various tasks which must be accomplished by the human law, and the limitations on what it can do, that Aquinas points out, once again explicating the indirect relation of human law to natural law. On the other hand, the theory is unavoidably complicated by Aquinass religious purposes, his sourcing of law in divine wisdom, and his characterisation of the eternal law. These cannot be regarded as credible features of a theory of law in a secular age. Furthermore, it is arguable that Aquinas talks around, rather than giving a straight answer to, the central question of our moral obligation to follow the law whether the particular rule in question is just or not. Look at the formulations he gives of the way that human law partakes of the order of eternal law, and of the way law obliges in conscience. Could not the guidance he provides about disobeying the law not equally be provided by a positivist: do what is morally right when the law says so, just because it is morally right; conversely, you have no obligation to obey the law if it is morally wrong, but obviously you should take into account the consequences of disobeying the law if that will cause more harm, morally speaking, than obeying, as when it might lead to civil unrest and violence, for example?
Activity 4.4
The focal concept of law that Finnis describes is a theoretically narrowed, multifaceted conception of law as the rules and institutions which flow from working out of the requirements of practical reasonableness in its quest to provide a community in which the basic values can be realised. It is not the ordinary concept of law, which is much more diffuse, and which allows law to be used of the anthropologists primitive legal culture, or to be used of the rules of a tyrants coercive regime or the rules of the Mafia. Finnis is claiming to provide the best concept of law for the theoretical purposes of understanding law. The difficulty with this view is that it looks too stipulative, that is, Finnis decides upon his theoretical approach to law, one in the natural law mould, and then argues that the concept of law which differs from the ordinary concept of law is most suited to explaining law; but the sceptic might claim that having at the outset found value in the natural law tradition, Finnis just matches his concept of law to it. The point here is that we are not generally free to choose how we will define our concepts, whatever our theories of the things the concept represents. Our ordinary concept of law is what it is because it reflects what we all share in terms of what counts as law and what doesnt; and no one is entitled simply to say that our ordinary concept of law is too diffuse or mistaken.
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The positivist would respond that our ordinary concept of law, which treats wicked legal systems of law as legal systems nevertheless, and wicked laws as laws despite their wickedness, is the concept of law we must explain. It does no good to tailor a concept to match our moral interests, as Finnis arguably does here, for that is simply to change the subject of the inquiry; by doing so, the positivist will respond, Finnis fails to address the phenomenon of law as it is understood by people generally. This sort of criticism cannot be blunted by appealing to the norms of reason of natural science, for example by saying that for the purposes of physics, it doesnt matter what our ordinary concept of, say, mass, is, for physics is sound when it gets the nature of mass right, not because there is some kind of social acceptance of the physicists theory of mass. The positivist would respond by saying that in the case of social institutions like the law, part of what makes them what they are is what people understand them to be, for institutions like law are made up of intentional human practices, ways of behaving, and so one cannot ignore the concept of the participants themselves in the practice when examining what the practice actually is. Bear these points in mind when you look at H.L.A. Harts theory of law.
Activity 4.5
According to Fuller, in order for the law to acquire the value of legality, the law must (1) operate by general rules, which (2) must be published to the subjects of the law, and (3) must operate prospectively rather than retrospectively, and (4) which are reasonably clear and intelligible, and (5) which are not contradictory, and (6) which do not change so often and radically so as to make it impossible for a subject of the law to follow the law, and (7) do not require the impossible of the subjects of the law, and finally (8) must be administered in accordance with their meaning and purpose. Notice that these requirements of legal morality, which Fuller sometimes refers to as the inner morality of the law, are explained in terms of eight ways in which the law can fail to be made or administered in a just way. This might lead one to question whether these eight principles fully capture the morality of law, for they are all about avoiding doing wrong rather than achieving any valuable purposes. Even in procedural terms, it might be argued that Fuller does not capture obvious moral principles. Consider the two principles of natural justice which deeply inform administrative law; audi alteram partem (hear the other party the principle that a decision is not fair if both parties to a dispute are not given fair opportunity to present facts and make representations as to the law), and the principle that a tribunal must not be biased, i.e. that the decision-maker cannot have any interest in the proceedings or be related to either party so as to bring him or her into a conflict of interest. Are these not obvious principles of legality? Can they easily be fitted into Fullers eight principles? Harts criticism is famous, and at first glance seems decisive, for it does indeed look as if Fullers principles of legality are principles of effective law-making, not morality, which could be turned either to wicked or good purposes. The Nazis would have needed to follow Fullers principles if they wanted to succeed in using the law to get their subjects to do what they wanted. There is, however, a possible response to this, though it is questionable whether it vindicates Fullers view as a natural law view. It might be said that retrospective legislation, legislation setting impossible tasks, or a failure to observe the audi alteram partem rule, are not just matters of ineffectiveness, but are obvious instance of unfairness, and thus immoral. While this seems right, it does not seem to establish a necessary connection between law and morality. All it seems to establish is that if you have a legal system in operation, then there are new and different ways of acting immorally than there would be if there was no legal system in place. So the existence of different social institutions, like law, the family, marriage or schools, give rise to new and different occasions of wrong-doing. If there were no examinations there could be no cheating in exams; if there were no authors or books there could be no cases of plagiarism. But this doesnt establish that taking examinations is a moral enterprise, or that writing books is. Similarly, the fact that the law provides new and different occasions for acting wrongfully does not seem to establish any necessary connection between law and morality.
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Chapter 5
Activity 5.1
The famous example is the difference between being obliged and being under an obligation and you should think and comment on three other examples. This distinction is one that Hart discerns in the language. He then says that, characteristically, being obliged applies to situations, such as the gunman demanding money from the bank teller. Here, he says, there is only physical coercion. But a situation where there is an obligation to do what is demanded would be where a tax inspector makes a legitimate demand. Hart then argues that we characteristically associate naked coercion with a lawlessness and that the tax inspector and the citizen relationship is one governed by law. So, he concludes, an insight into our use of language gives us an insight into the legal system.
Activity 5.2
a. This requires the use of imagination: can you be under an obligation to someone (say, to carry out your promise to them to go and see them) when, unbeknown to you, they have died? Would you then feel you had an obligation when, in fact, you hadnt? b. Some international lawyers say that international law is more important than state law. How could Hart counter their views with his primary/secondary rule thesis that places the modern municipal legal system at the centre of his theory? c. This question goes to the heart of Harts methodology. It asks you to consider what having an internal attitude to law means. For example, could our internal attitudes be settled by reference to a question of fact about what other people accept? If not, how, as Perry asks, could we resolve differences between us about what legal obligations there are?
Chapter 6
Activity 6.1
Read what John Finnis has to say in his Natural Law and Natural Rights Chapter 1 pp. 69. Finnis says that Hart constantly appeals to the practical point of the components of his theory. What practical point(s) do you think the rule of recognition serve(s)? You should refer back to section 5.4 of this subject guide. The point of reading this is to encourage you to consider whether reference to actual facts is an easy thing to do. Facts come in all guises, and to find out what some facts are it is necessary to do something more than just record what is the case. Harts reference to function suggests that the task of merely recording facts will require evaluation of some sort. What is the function of law? is not a question that can easily be answered by reference to actual facts.
Activity 6.2
Distinguish rules from principles as Dworkin does. Then try to provide and compare your own examples of legal rules and principles. Are you convinced that there is a distinction? Or that, if there is a distinction, it is of any importance?
Activity 6.3
The distinction is important to Dworkin since the application of principles requires a judgment of value, which will often be controversial among judges, and since the rule of recognition is defined as a matter of fact about what judges uncontroversially recognise, principles must be identified in some other way. In Smith it seems difficult to suppose that the words of the statute really said, in an all or nothing sense, that Smith had a right to knowledge that would enable him seriously to injure a person. But take Dworkins example of the speed-limit traffic rule. He says that it applies in an all-or-nothing sense in that you are either driving over 30 mph or you are not. What
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about a person who drives at 50 mph because he is taking his wife to hospital as she needs urgent assistance? How should we view the situation if a judge, as a judge might well, decided that the husband had not broken the law because he had the defence of necessity? Do we say the rule is that no-one can drive over 30 mph but a judge has discretion to waive the rule in accordance with a general principle of necessity, or do we say that a proper understanding of the rule is that necessity is implied into its meaning? Dworkin thinks that the latter kind of understanding is what is important as it preserves the idea that the judge is not acting as a legislator.
Chapter 7
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Chapter 8
Activity 8.1
The first thing to notice is that there is not a sharp line between conventional explanations of the law and expertise-based explanations. Requiring the wearing of seat-belts looks like a classic expertise-based law. The state has scientific and other resources to assess whether the wearing of safety-belts reduces death and injury in road accidents, and can plausibly be said to be in a better position to guide the subjects of the law on this issue than the subjects themselves. Again, traffic regulations are largely conventional (we could devise a different workable set) but may also be based on expert understanding of traffic flows, driving behaviour, etc. But treating either convention or expertise as the ground for authority looks less compelling in the case of creating the crimes of rape and theft, for we dont treat these rules as simply conventional, but demanded by morality, and as to special knowledge, we believe that every normal person can be presumed to understand that these are wrong. However, one might notice that the law creates technical definitions of rape and theft, specifying the elements of mens rea and actus reus, for example, and this can be looked at as the laying down of conventions, the purpose of which is to provide more precise guidance to judges and juries to ensure the fair application of the law; this might draw upon the expertise of the law in framing workable legal definitions. The authority of the law to punish might derive from a different source. While criminals deserve punishment, arguably this should not be left to victims or those close to them or citizens generally because the punishments inflicted may be too haphazard or excessive, because of the strength of emotions. Taxation might be regarded as a case of a solution to a kind of coordination problem. Assume that all citizens have a moral obligation to contribute a fair share of their wealth to the state in order for its functions to be performed. It would be unfeasible if everyone was left to decide how much each of them should individually contribute; in particular, a fair result would be unlikely. So the law has authority to set a workable set of rules which achieves this results better than citizens left to their own devices would be able to do. In The Morality of Freedom (p. 75) Raz suggests five bases for legitimate authority: (1) wisdom or expertise; (2) the authority has a steadier will, is less likely to be biased or impetuous (consider the punishment case); (3) individuals should follow an indirect strategy of doing what they should, and this strategy is provided by following the authority (consider the obligation to help the poor this might be better done through taxation and social services than by people acting on their own); (4) deciding for oneself may be too costly or inefficient or cause anxiety (this would seem to apply to the case of trying to deal with ones own severe illness); and (5) the solution of coordination problems, broadly construed, by the provision of conventions (e.g. the road traffic case).
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Activity 8.2
When you promise, you treat the promise as an exclusionary reason guiding your future behaviour. You first deliberate about whether to make the promise, but once you make the promise to another person, you enter the executive phase of practical reason, taking the promise as an exclusionary reason which alone will guide your behaviour. Afterwards, you are not entitled to breach the promise simply because you change your mind and dont think making it was a good idea any more. Clearly, the separation of the deliberative and executive phases of practical reason accomplishes a different task here than in the case of the judicial decision or the committee decision, because as promiser you are the sole participant in both phases, and so the purpose is not to coordinate the activities of different people in the obvious way that these do. But in another sense, the exclusionary reason of a promise does coordinate the activities of people, by allowing a practice of promising to develop, by which people can count on others to do the things they said they would and coordinate their activities in that way. If a person who promised you something was free to reassess whether they would carry out the promise when the time came to keep it, you would not be able to plan with certainty on their doing so, and so you would, in response, have to plan in the face of uncertainty. Think how different the world would be if no one could expect others to keep their commitments.
Activity 8.3
In describing how Raz applies his theory, it is important to say how the central features of his account of authority the service conception of authority; the way authorities mediate between their subjects and the balance of reasons that apply to them; the normal justification thesis; the distinction between the deliberative and executive phases of practical reason and the nature, force and scope of exclusionary reasons all fit together to explain the nature of law. It must be acknowledged that Razs theory is very tightly argued, so that if you find his account of authority illuminating, then you will find his account of the authoritative nature of the law illuminating. You might challenge the account of authority itself, say by preferring one of the more traditional power-based accounts of authority. Or you might deny that morality is as controversial as he seems to think, so that directives making reference to morality really do make a practical difference. Note, however, that Raz only says that to the extent a directive is controversial it is not law. This might be clear in some cases and not others, but in recognising this Raz does no more than describe another case where a rule is not authoritative, in the same way that Hart said that the law runs out, as it were, where a statute using a vague word like vehicle is sought to be applied to a difficult case, such as roller-skates; there Hart, just like Raz, would say that a judge has a power to exercise his or her discretion to resolve the case.) You should also consider a variant of this argument, which Dworkin makes, and which is given in section 8.5 of this guide.
Chapter 9
Activity 9.1
The point to explain here is the difference in the normative intention lying behind rules which give rise to taxes and those that give rise to fines. If, like Kelsen, you only look at rules from the perspective of if A does this, the court may impose such and such a sanction, e.g. the payment of 100, then you cannot distinguish the case where the law imposes a 100 fine on A for driving above the speed limit from the case where the law demands 100 in tax because A earns 500 of income. In both cases it looks like the law is punishing A. But of course this is not true. In the first case, a true case of a sanction, A is fined 100 because he breached a duty not to speed. In the second case, however, A breached no duty by earning income. The intended normative impact of the taxing rule is not to discourage A from earning money, imposing upon A a duty not to earn money. Rather, the liability to tax arises by operation of law as part of a system for raising revenue. The example points out that the normative impact of a rule cannot be determined just by looking at the consequences which flow from its
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operation, any more than one can treat the liability to pay damages for a tort as a consequence of the exercise of a power to benefit someone by injuring them. In both cases one can only make sense of the norms in question by looking at the standards of behaviour the law intends to institute.
Activity 9.2
a. The right to life, in the sense of a right not to be killed, is the standard example. It is general in that everyone has this right, and in rem in that a right to life binds every other subject of the legal system. b. The standard example here is a right to property, in the sense of your right of ownership in Blackacre. It is a special right, in that only one person has it (or several specified people in the case of co-ownership), and it binds every one else, as every one else has the duty not to trespass. c. This is the difficult category, for the obvious reason that we normally think of rights in personam, like rights under a contract, or arising by operation of law when you negligently injure someone, as arising because a transaction of some kind has taken place between the people involved, in which case the right would be special. But Penner suggests a right to vote and a right to the care of [ones] parents (Penner, The Idea of Property in Law, p. 21) and these seem to fit the bill, because simply by being born and alive one must have parents, and simply by attaining the age of 18 one acquires the right to vote, but both rights are in personam, the first against each of ones parents, the second against whatever officials are in charge of conducting elections. (Note: these rights are defeasible, because one or both of ones parents may be dead, or one might be elevated to the House of Lords. But that doesnt mean they are not general rights.) d. This is straightforward. Contractual rights, rights following from a court order, and so on, are all special, arising because of a particular transaction, and in personam, applying only to the parties involved.
Activity 9.3
Ben, as owner of the garden, has a right against all others that they do not trespass in his garden, and all others have a correlative duty not to trespass. He has the liberty to grow flowers (and to do all manner of other things) in his garden, for everyone else has no-right that he not. As owner, he has the power to grant easements, and everyone else in the world each has a corresponding liability to be granted an easement (notice the strange use of liability in this context one normally doesnt think of oneself as liable to be given something, though the English language supports this usage). Erica has been granted an easement by Ben or a previous owner; her situation can be described in several ways. Ben would normally have the right that Erica not pass across his garden, as he would against all subjects of the legal system, but Ericas easement changes this. In the absence of the easement, Ben would have the power to bring a trespass action against Erica, and she would be liable to respond in court, but Erica can be said, in comparison with all others, to have an immunity from prosecution, and Ben to have the corresponding disability to bring an action against her. In terms of rights and duties, Erica has the liberty to pass through Bens garden, and he has a no-right that she doesnt; Erica also has the right that Ben not impede her use of the rightof-way, and he the correlative duty not to do so, a duty he breaches when he blocks her access. (He has no legal reason for doing this, for though it annoys Ben, Ben has no-right that Erica not look at his flowers, and so she has a liberty to do so.) On Bens breach of his duty, Erica has a power to bring an action against him, and Ben a liability to respond in court. Vis--vis the court, Erica has a right to bring an action, and the court a duty to hear her complaint, whereas the court has a right that Ben appear in reply (and Ben the correlative duty to appear) and a power to award an injunction and damages, and Ben the correlative liability. (Actually, things are more complicated than this, for Ben may not be under a duty to appear, but only under a conditional liability, in the sense that if he does not appear, the court has the power to make an award against him in his absence.)

Having worked through all this in Hohfeldian terms, does it appear to you that your understanding of the legal situation has been clarified, or enhanced?
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Activity 9.4
The first criticism is that rules are not practices; i.e. a rule can exist even though no one practices it. Indeed, people often begin acting in a certain way because they become convinced there is a rule they ought to follow. Thus a rule can exist before it is practised. The second criticism is that the practice theory does not distinguish following a rule from acting on generally accepted reasons, a criticism famously made by Warnock in the cricket example which Raz quotes. There is pressure on a cricket team captain to alter the field setting when a slow bowler is replaced by a fast one, and he is criticised if he fails to do so. But there is no rule that a captain should move his fielders to different positions; it is merely generally accepted that this is the right way to captain the team in this circumstance. Finally, the mere existence of a practice does not entail that people ought to conform to the practice. Rules are oughts, in the sense that if there is a rule that applies to one, one appreciates that one ought to follow it. But just because there is a practice of acting in one way, whether attended by social pressure or not, does not mean one ought to follow the practice. So again, rules are not equivalent to practices.
Activity 9.5
The question is whether a corporation can be liable as a legal person for a crime. From the Wittgensteinian perspective, it is hopeless to think that the fact that a corporation is a legal person answers the question, since because the criminal law applies to the conduct of individuals, we normally do not think of corporations as having the attributes of persons which makes criminally prosecuting them sensible: for example, it is difficult to know what to do with the requirement of mens rea for criminal liability, for corporations do not have minds or intentions, or at least, if they do, not in the same way as individuals do. Nevertheless, one might argue that the criminal liability of corporations in such a case might serve some of the functions of criminal law, such as deterrence, or the expression of strong social disapproval. If you are a Hartian, then you would regard a judge as having to exercise best judgment in such a case, weighing up the different purposes that criminal liability would serve, and considering the possible drawbacks. A Dworkinian would regard it as necessary for the judge to make his or her decision appear to put the law in its best light, fitting the decision within a broader theory of the underlying values of the legal system.
Chapter 10
Activity 10.1
Hart defines legal positivism, as we saw in Chapter 6, as an account of law in which it is not necessary to make a moral judgment in identifying law. Kelsen takes exactly the same line. We do not need to make a judgment of morality about the content of law to work out what the law requires. There is initial sense in this idea. We can identify that the Abortion Act 1967 is law merely by showing that it is an Act of Parliament, and this appears not to require any moral judgment at all. The question whether the Act is morally right to permit abortions in particular circumstances is an entirely different question. Questions to put to yourself:
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Is it true that we can identify that something is law, merely because it takes the particular form of a statute? Do we make a moral judgment when we say that is an Act of Parliament?
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Consider what Kelsen means when he says that we can describe a set of oughtpropositions. He thinks we can describe a set of rules, which independently tell people what to do. At first sight, this seems OK. After all, we can describe the rules of chess and they tell people what they ought to do to play chess. In fact, the analogy with chess is helpful, since Hart used an analogy with games on many occasions in The Concept of Law: you can describe the rules of a game without making any judgment about the morality of the game. Well, can you? What if there were a game of torturing people, with its own set of rules saying what those playing the game ought to do in order to play it. If you are not willing to call this a real game, is it because you think that in any human activity there is implicit some reference to a morally good human purpose? If so, you might start rethinking your position if you are convinced by legal positivism.
Activities 10.210.4
Activity 10.5
In (a) ask yourself at what point has effectiveness ceased, and what is the implication for validity. In (b) at what point, and why, would a new Grundnorm come into being? This problem requires you to consider the position of the judges and the difficult and obscure question of who assumes the Grundnorm? Part (c) raises a question about the identity of legal systems; if there is only one Grundnorm for each legal system, what if a new state is created? Is there automatically a new Grundnorm that gives it legal status? Part (d) asks a question that is the mirror image of (c): can a legal system revive after a return to the old state before the revolution took place (think of the RussiaUSSR Russia historical change)?
Activity 10.6
Try to suggest your own ideas. For example, when you consider how technical some laws are (e.g. Law of Property Act 1925), perhaps it is reasonable to suppose that law is a matter for technically skilled officials, about how to conduct their business, rather than a matter for private citizens. Or, you might consider whether a distinction can be made between civil and criminal law and still remain within the Kelsenian framework.
Activity 10.7
Social normativity, according to Raz, explains rule-following by stating that the standards are social, meaning that we identify them by referring to actually accepted standards. Justified normativity, also according to Raz, explains rule-following by stating that the standards are inherently justified, whether or not there is a social practice. Consider the following two ways of arguing. Killing animals is wrong: (a) because it is actually accepted by people to be wrong; and/or (b) because it violates animal rights. Here (a) depends on social facts (peoples acceptance) but (b) does not, since a vegetarian could maintain her stance even though most people disagreed with her. (Can you think of two other examples where what most people accept is different from what is right?) There are several possibilities. Is it the legal scientist who describes the law? If so, in what sense is his or her description also a justification? It is very difficult to see how just describing what the law is at the same time justifies it. On the other hand, in Harts theory, the rule of recognition is discovered by straightforwardly engaging in an empirical description of what judges and officials in fact recognise as law, and Hart, at any rate, was happy enough with this as a justification of a statement of what you or I ought to do according to law. But maybe it is you the individual who accepts the Grundnorm and so justifies it? But that suggests that the law can exist for one person

but not another just by the process of accepting, like a sort of private justifying, which seems odd. Clearly, though, justified cannot mean morally justified in Kelsens terms because he specifically rules out morality here (otherwise his theory is not pure and so not one of legal positivism). Is there a point of view from which the law is not morally justified, but is publicly justified? It is difficult to think of one, unless we just read Kelsen as Hartian, but this seems impossible since Kelsen is insistent, as Hart was not, that the law was not to be equated with any description of social fact: there had to be, through the Grundnorm, a transcendental assumption of validity.
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Chapter 11
Activity 11.1
Activity 11.2
The question is testing whether you appreciate that Hercules is an ideal judge. He need not therefore exist, in the same sense that the ideal economic market does not exist. On the other hand, both ideal ways of judging and the perfect market exist in the sense that they are present always, guiding judges and economists to better decisions. For example, you cant have a market imperfection, such as a monopoly, unless you have some idea of a perfect market in mind. See the summary after section 11.4.
Activity 11.3
We can differ in our conceptions of something and it is reasonable to think that we differ in our perceptions of a concept of that thing. Positivists have a positivistic conception of the concept of law; natural lawyers have a natural law conception. Indeed, Hart talks in Chapter 9 of The Concept of Law of wider and narrower conceptions of law. What, then, is the concept of which differing conceptions differ? Here is another way of looking at the matter: what is common to what Dworkin, Hart and Kelsen think about law? There is something there, to do with rules, officials, central coercive power. Dworkins point is that conceptions are controversial, but concepts are relatively not. To test what he says, try to think what elements of law would be constant to all differing views of it.
Activity 11.4
Here are several thoughts that you should take into account:
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Can we ever be certain of anything? Do lawyers think that there are right answers to the points of law they argue in court? What would the consequence be if there were no right answers to the question whether abortion was right? Is there a right answer to the question is murder wrong? If there is, what argument makes it certain, if any? If 100 per cent of people thought that Nazism was right, or that abortion was wrong, or that slavery was justified (including the slaves themselves), would that be a sufficient reason for saying that slavery was right?
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Activity 11.5
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Chapter 12
Activity 12.1
On the face of it this is a story full of violence, but law makes the violence invisible. The categories of the law remove the human violence and engage in concepts. Thus we are told that law makes its decisions rationally, that it is autonomous and in that way law maintains its judgment while remaining aloof and unstained by the deeds themselves. But the sociology of law refuses to accept that law has an autonomy; instead it is a social practice embedded in social structures, whether cultural, political or economic. In this case we can tell stories putting the case of the Zong in various political, cultural contexts, we can put it in an economic context thus the legal order reinforced and made possible the slave system. We can see that the legal system filtered out from the social process the case that it recognised. This case became recognised as one of insurance law. Thus questions of law are often really the questions that the system has allowed to be asked. It can be said that law can answer any questions, but they must be questions that have been rewritten and repositioned in legal language, in legal procedures and thus a legal determination made possible. But if this is the case, then we must ask:
uu
What is insurance law and what is its relation to social processes and different groups in society? What is commercial law? What sort of ethical position should a judge adopt when deciding a case of commercial law? What is the connection between a legal case and justice? Does the answer depend on the subject position of the person who is asking the question and the perspective that he or she adopts?
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Activity 12.2
Chapter 13
Activity 13.1
Activity 13.2
Activity 13.3
Marx is critical of Hegel because his philosophy reduces history to a pattern Marx is tying to create a more nuanced theory of the social world. A phenomenon like law can be understood in its material of historical context; but this does not mean that history has any eventual pattern or meaning.
Activity 13.4
As Pashukanis argued that all exchange was capitalist exchange, he came to the conclusion that all law was bourgeois law. The consequence of this argument is a onesided critique which excluded the possibility of socialist legality and neglected any question of democratising and socialising the law. These criticisms are more broadly criticisms of the Soviet system. Pashukanis legal theory played into the hands of the Stalinist regime, which deployed his theory of the primacy of technical regulation under socialism to justify the power of the bureaucracy and its disregard for legal constraints.
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Activity 13.5
a. Criticisms are aimed at the Stalinist Soviet regime, which had turned into tyranny, and complacent liberalism, which had itself failed to resolve the exploitations of a capitalist mode of production. Fine and Picciotto are arguing, then, that the Western political order is responsible for political oppression despite the fact that it subscribes to democracy. b. They build on the views of Karl Renner to suggest that the formal equality and neutrality of the law hide the fact that it continues to serve the interests of those who hold economic power. This is to re-affirm a faith in socialism, but to connect this with an idea of the rule of law: the rule of law could only be fully realised under socialism, since under capitalism it is distorted and corrupted by private interests. The rule of law now means that state institutions must be democratised, and that legal regulation must continue into the private sphere to ensure the nationalisation of industry, but also by welfare legislation on employment, social security and child protection. c. Althusser argues that there is no simple relationship between economic base and social superstructure. Rather, there could be differential relations between base and superstructure. For example, a capitalist economy may still retain feudal legal mechanisms (the trust, for instance).
Activity 13.6
The ideological state apparatus is defined as a form of power operating in the interests of the state. The very plurality of the ISAs makes them distinguishable from the more fixed and located RSAs. The ISAs also infest the private realm to a far greater extent. The ISAs, despite their plurality, are organised beneath the ruling ideology. Although this ideology itself may not be unified, the ruling class could be an alliance of different classes; this insistence is the homology of economic determination in the last instance.
Activity 13.7
It depends on what useful means! Clearly, if one is only concerned with elaborating the structure of trade law, and arguing it is coherent and able to regulate world trade, then Marxism, as a critique of a capitalist organisation of world economy, is not particularly useful. However, if one wants to understand trade law in a critical way, then one might find Marxism useful. Rather than accepting that trade law can be accounted for in arguments about efficient use or regulation of resources, a Marxist account might argue that trade law is unable to regulate the inequalities that exist in the world market place. To be understood, trade law must be related to the creation and sustenance of world markets in such terms as primarily benefit the developed world.
Chapter 14
Activity 14.1
Activity 14.2
a. Briefly, the Pareto criterion, much in use by economists, says that welfare is increased when, as between two parties to a bargain, neither is worse off and at least one is better off. b. The Coase theorem says that, in the ideal costless world, people would bargain to produce the most efficient result. It therefore suggests that, in the real world of costs, market intervention could achieve a more efficient result, and so justifies that intervention in ideal market terms.
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c. The KaldorHicks criterion of the measurement of efficiency does so in terms of money and allows one party to be worse off if sufficient money is generated that could in principle only for no money payment to the worse off is envisaged compensate the worse off.
Chapter 15
Activity 15.1
It should be relatively easy to understand the idea of subject position as the basis for feminist theorising. Feminist jurisprudence is therefore best conceived as the output of women consciously positioning themselves as feminists seeking to represent their experiences and reflections and attempting to express the lived meaning of the feminine in a dominant masculine culture where law is clearly relied upon as a crucial regulatory and structuring mechanism. What are the consequences of this? Some theorists have suggested that feminist subject-position or stand-point theories lead into postmodernism, as once the premise of a distinct feminist, or a black, etc., standpoint from which to comprehend the world is accepted, it is only a small step to arguing that there are a myriad of positions and therefore knowledges, none of which is to be accepted as the master knowedge. The postmodernist idea represents a break with one project of the Enlightenment, namely that there exists a certain foundation for knowledge which should be uncovered and by reference to which it is possible to array and structure all the other knowledge claims. Perhaps, as some have suggested, the trick is to achieve a feminism, or black, position that speaks from that experience to address issues that transcend the particular aspects of that experience.
Activity 15.2
One theme of feminist concerns generally is undercutting our common-sense, takenfor-granted views of the world and the place of women in it. In feminist accounts of legal theory this sometimes takes the form of re-inserting the gender issue into accounts of modernity and political progress, which otherwise present the present as if it were a wonderful advancement on the repressions of the past. As an example, section 15.1.2 considers some aspects of the French Revolution.
Activity 15.3
Chapter 16
Activity 16.1
A number of themes emerge. First of all, there is in (a) and (b) the idea that CLS represents a continuation of realism, or a school of thought called American Legal Realism. We will look in a little more detail at this issue in a moment. But, it is important to realise that CLS has its own antecedents and its own intellectual heritage. At the same time, it represents both a break with previous schools of jurisprudence and an extension or radicalisation of realism. These themes are also present in (a) and (b). In other words, CLS scholars begin to ask a different set of questions about the law. This theme runs through (a), (b) and (c). Another common theme identifies the nature of the questions that CLS scholars are asking. As we know from previous chapters, law is seen as a coherent body of rules. CLS scholars are reluctant to agree with this position. They are sceptical of the idea that law is coherent. Rather, they argue that the law is bound up with value choices. We can see, particularly in the last extract, the rejection of the idea that rules of law are neutral. Law is in fact a form of politics that disguises its political nature. The final extract also draws attention to the way in which CLS opened questions about the values that operate within law. This extract draws

attention to an important feature of CLS: its belief that the law could be changed. Presently, we will see how this has associated CLS with left-wing or progressive politics.
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Activity 16.2
a. Although a long way from contemporary liberal legal theory, Blackstone is important as a model for American lawyers because he provides an influential attempt to describe the coherence of the common law. If one wants to attack this position, then it is sensible to start with such an influential figure. Later in the essay, Kennedy goes on to argue that Blackstone provided a model for the dissemination of professional knowledge, and provides a foundational idea for American law resting upon a notion of method, as defined by the rule of law, and of the rights of persons. b. Kennedy starts from the argument that law is trapped in a contradiction. Law attempts to achieve social justice; but at the same time, it has to mediate our relations with other people. In the latter sense, Kennedy seems to imply that the law must be coercive. Coercion and the need to achieve social justice are the tasks that the law must fulfil at the same time. Kennedy also suggests that this is hidden from those in whose interests law operates, and those who law oppresses. He seems to be suggesting that this is misleading because it makes law seem part of the status quo, and thus incapable of change; rather than one way in which society has been organised.
Activity 16.3
The fundamental contradiction can be seen as related to the fact that we depend upon others for the realisation of our social life, and yet others are also a threat. Law must organise society to allow us to exist with others, and realise our lives; yet it must also be coercive, and sustain social order. It is as if this basic problem has been forgotten in an account of law that simply stresses that law is a means of resolving disputes through neutral courts and supposedly coherent bodies of law. The problem of social life is inherently a political issue, and should be dealt with as such: in other words, it is a question of how society is organised. Kennedy argues that it is simply misleading to think that law has resolved this problem. One should be sceptical of the nature of law for this very reason.
Activity 16.4
To a more conventional jurisprudence, which stresses laws neutrality, or even essentially principled nature, Kennedys exercise would appear monstrous. The judges job is to apply the rules without prejudice. The point, of course, is to show that this is not a realistic model. Interpretation, although constrained in some ways, is also open to the personal desires of the judge. More precisely, the piece shows the manipulation of the rules grey area to the extent that it can influence the way in which the dispute is perceived, and hence resolved.
Activity 16.5
a. Gabel and Kennedy appear to be discussing similar features of legal reasoning. They share the idea that legal reasoning is mystificatory. However, whereas Kennedy tends to think in terms of the fundamental contradiction, Gabel argues that legal reasoning operates so as to make institutions and arrangements in society seem unalterable and impossible to change. b. Reification can be described as the situation where the inherently fluid and changeable relationships between people appear frozen into certain institutional forms, and hence incapable of change. It derives from the Latin word for a thing (res). One way of putting it into different words, might be to see it as thingification: what should be living and subject to change, appears to be static and immovable.
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Social life is reified and disconnected. The law represents some way of organising society, but offers false hope, because it cannot resolve the profound sense of alienation that people experience in society. At the same time, there are instances when one momentarily grasps the possibility that one can connect with someone else in a moment of empathy and shared understanding. This is possibly the moment of the intersubjective zap. In other words, even within the reified social world, one can see that there are possibilities. The problem is that Gabel does not really elaborate how a less alienated society is achievable.
Activity 16.6
Activity 16.7
Negative capability is an idea that builds on that of expanded doctrine. The latter was an attempt to argue that legal doctrine needed to be placed in contact with other fields of social and political theory. Negative capability is a call to imagination. If one accepts Ungers ideas about the need for social solidarity, then one could see negative capability as the ability to imagine transformed social relationships.
Activity 16.8
Transformed rights are conceptualised as immunity rights, destabilisation rights and solidarity rights. Destabilisation rights would accompany immunity rights. The former would protect individuals or groups against applications of governmental power and against any form of exclusion from public decision-making. Immunity rights would also guarantee an adequate amount of welfare protection. Destabilisation rights would be dedicated to the breaking down of hierarchies of power. Alongside destabilisation rights, solidarity rights would give legal form to social relations of reliance and trust. Unger argues that this developed notion of rights would offer a greater chance for a form of social organisation where equality is achieved through the breaking down of inequitable holdings of wealth and rigid hierarchies.
Activity 16.9
Rights are to be rethought, and not necessarily co-opted into the protection of profits in the new world order. Rights can be used to protect the essential dignity of the human being, but this may mean looking outside the traditional catalogue of rights to social and economic rights, like the right to work. How can this be linked with a theory of justice? Justice is based on the notion that the other should not be reduced to the same; the other must be understood in her essential otherness. Justice must therefore be based on a principle of difference, that acknowledges the dignity of specific others. This is a theory of justice that would be critical of utilitarian approaches that believe that there is a universal calculus for approaching the idea of justice. Justice always demands a specific response.
Activity 16.10
South African scholars have turned to CLS to provide a critique of the apartheid legal order. They are sceptical of the idea that law can provide a community of South Africans, and are searching for a way of thinking about society in a way that does not reduce to the differences of those who make up society to a single identity. In so doing they have added to the CLS thematic, by providing a study of the TRC that sees it as marking the transition from the old to the new South Africa, and suggesting that much needs to be done to create an equitable and fair society.

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Chapter 17
Activity 17.1
a. CRT is rooted in the experience of slavery. From the drafting of the constitution in 1787 to include the preservation of slavery, to the HayesTilden Compromise of 1877, the right to property has been raised above that of black freedom. Even though it is claimed that the American Civil War was fought to free the slaves, the post-war reconstruction did not end racial discrimination. CRT also comes out of the civil liberties struggles of the 1960s. b. CRT scholars are sceptical because, despite the fact that the movement did achieve certain advances, it had too much faith in progress; and did not alter the fundamental reasons for discrimination in the United States. Moreover, by concentrating on fighting test cases, the fundamental structures of racism were left in place. We will examine this theme in more detail below. c. In Bakke, the court employed a very narrow definition of equality, and refused to take account of the social and economic causes of disadvantage. The court held that no white students could be refused entrance in preference to black candidates.
Activity 17.2
a. If discrimination is positional, litigating individual cases tends to individualise discrimination into a series of disputes, and avoids the more structured sense in which discrimination results from an inter-relation of disadvantage. Consider notions of causation and fault, for instance. The effect of these notions is to remove any sense of collective responsibility for discrimination, by focusing on the construction of the discrimination event that is being heard by the court. b. There are problems. Such a shift would be challenging not only to the legal construction of responsibility as individual fault, but risks antagonising a majority who are reluctant or unwilling to perceive their own complicity in discrimination.
Activity 17.3
a. Ideology describes a way in which the material conditions of life are perceived and refracted by the dominant and socially powerful beliefs, ideas, understandings and practices. CRT builds on CLS accounts of ideology. However, the central problem is that CLS accounts completely ignore the importance of race in ideology. For CRT, ideology, is expressed through race consciousness and impacts upon both black subordination, and the white hierarchy and their identity with elite interests. In other words, something unites whites across boundaries of class or gender, and that is race. Ideology, in this sense, operates to create a hegemony of interests. This process is ongoing, dynamic and changes its arguments over time. The removal of the more obvious aspects of discrimination does not mean that this hegemony has been broken, and that discrimination will disappear. b. We must not lose sight of the transformative potential of the law. Civil liberties law can make meaningful interventions in social institutions. Moreover, the use of the law has served to de-legitimise discrimination at an ideological level.
Activity 17.4
The primary response was the perceived need to stem immigration. The 1962 Commonwealth Immigrants Act attempted to reduce immigration through issuing employment vouchers. Underlying the Act was the notion of belonging that was defined as having a link with Britain either through being born in the country or having a passport issued there. The motives behind the second Commonwealth Immigration Act 1968 was an attempt to create an even tighter legal definition of British nationality. The 1971 Immigration Act was largely informed by the separate spheres concept of nationality. It gave legislative form to overtly discriminatory practices that had long been in operation, by dividing British subjects into patrials and non-patrials, non-
page 282
patrials being so deprived of rights of settlement and to work as to be virtually aliens. The 1981 British Nationality Act provides a further attempt to control immigration. The definition of nationality was divided into British Citizenship, British Dependent Territories Citizenship and British Overseas Citizenship. These classifications and the hierarchy of rights they reflected were predicated on notions of descendance and familiarity, that themselves depended on a grounding notion of Britishness exclusive to any broader notion of belonging in the Commonwealth.
Activity 17.5
The 1965 Act was a limited measure, creating a criminal offence of incitement to racial hatred and an overseeing body, the Race Relations Board, which lacked basic powers to call for witnesses and documents. The emphasis was on conciliation; only if conciliation failed could the Board refer the case to the Attorney General who may or may not chose to litigate. The 1968 Act extended the provisions of the 1965 Act. It made discrimination in housing and employment subject to civil remedies. Discrimination was defined as less favourable treatment on the grounds of colour, race or ethnic or national origins. The Race Relation Boards conciliatory role remained, but the Board was now empowered to litigate cases in the county court (McCrudden et al., 1991). Created alongside the Board was a new body, the Community Relations Commission, that was to sponsor harmonious community relations. There was a slightly different procedure for employment discrimination cases that stressed that they should be resolved by the employer/union bodies. Only if a relevant body did not exist, or a case was appealed, would the Board become involved). The 1968 Act was as flawed as its predecessor: as most of it was orientated towards individual forms of behaviour it failed to generate resources needed to implement effective programmes (Small, 1994, p. 165).
Activity 17.6
a. We can modify Von Albertinis definition. Colonialism was foreign rule. In order to be effective, it was necessary to end or neutralise opposition, and to make possible European activity in the colony. The three phases of colonialism can be broadly represented as beginning with the first attempts to exploit the resources and manpower of Africa by European powers. This phase moves into a later phase in the nineteenth century, where direct appropriation was replaced by a regime of treatise and trading agreements. The third movement is that of the more formal colonial rule of the later 1900s; this latter phase could also be seen as concluded, or redefined, by the withdrawal from empire and the independence of the new African states. b. Although the law is a vehicle for the legitimisation of European rule, it is also became the site of struggle and resistance. In the moment of independence, law is used to define national identity. As an independent nation must be claim its own legal and political sovereignty, law becomes necessary to the definition of the post-colonial identity of the new nation states after the withdrawal of the colonial power.

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Jurisprudence and legal theory

Stephen Guest Adam Gearey James Penner Wayne Morrison

Jurisprudence and legal theory

2 The nature of jurisprudence . . . . . . . . . . . . . . . . . . . . . . .

3 Imperative or command theories of law . . . . . . . . . . . . . . . . . 19

4 Classical and modern natural law theory . . . . . . . . . . . . . . . . 49

5 Introduction to the set book: Harts The Concept of Law . . . . . . . . . . . . . . . . . . . . . . . . 63

University of London External System

6 A master rule for law: Harts rule of recognition . . . . . . . . . . . . . 79

7 Harts defences against natural law and Fullers criticism . . . . . . . . 91

8 Raz on practical reason and the authority of law . . . . . . . . . . . . 99

9 Practical reason and law . . . . . . . . . . . . . . . . . . . . . . . . 111

10 Kelsens theory of law . . . . . . . . . . . . . . . . . . . . . . . . .

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128 131

11 The integrity and interpretation of law . . . . . . . . . . . . . . . . . 143

Jurisprudence and legal theory 12 Social theory and law . . . . . . . . . . . . . . . . . . . . . . . . . . 159

13 Marx, Marxism and Marxist legal theory . . . . . . . . . . . . . . . . 179

14 Liberalism and law . . . . . . . . . . . . . . . . . . . . . . . . . . . 197

15 Feminist legal theory . . . . . . . . . . . . . . . . . . . . . . . . . . 209

16 Critical legal studies . . . . . . . . . . . . . . . . . . . . . . . . . . 227

University of London External System

17 Critical race theory . . . . . . . . . . . . . . . . . . . . . . . . . . . 245

Feedback to activities . . . . . . . . . . . . . . . . . . . . . . . . . . . 263

Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

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Learning outcomes for this Introduction

Essential reading for this chapter1

Read these before you go on to Chapter 2.

Jurisprudence and legal theory 1 Introduction

1.1 How to study jurisprudence

page 4 Useful further reading

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1.2.1 How to read works in jurisprudence

Jurisprudence and legal theory 1 Introduction

1.2.2 Learning outcomes for the module as a whole

1.3 Preparing for an examination in jurisprudence

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We have emphasised the crucial moves in the argument in bold type.

Jurisprudence and legal theory 1 Introduction

1.3.2 Structure of your answer

Reminder of learning outcomes

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Reflect and review

2 The nature of jurisprudence

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Jurisprudence and legal theory 2 The nature of jurisprudence

2.1 What is jurisprudence?

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2.2 Methodology, analysis, theory and the idea of definition

Jurisprudence and legal theory 2 The nature of jurisprudence

2.3 Theory and evaluation

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2.4 The interpretive approach

Jurisprudence and legal theory 2 The nature of jurisprudence

Reminder of learning outcomes

Sample examination questions

Advice on answering the questions

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Jurisprudence and legal theory 2 The nature of jurisprudence

Reflect and review

University of London External System

3 Imperative or command theories of law

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