JURISPRUDENCE

TOPICAL OUTLINES

1. Legal Positivism

2. Natural Law

3. Feminist Jurisprudence

4. Marxist Jurisprudence

5. Sociological Jurisprudence

Meaning and introduction to Jurisprudence

The word jurisprudence derives from the Latin term juris prudentia, which means "the

study, knowledge, or science of law." In the United States jurisprudence commonly

means the philosophy of law. Legal philosophy has many aspects, but four of them are

the most common. The first and the most prevalent form of jurisprudence seeks to

analyse, explain, classify, and criticize entire bodies of law. Law school textbooks and

legal encyclopedias represent this type of scholarship. The second type of jurisprudence

compares and contrasts law with other fields of knowledge such as literature, economics,

religion, and the social sciences. The third type of jurisprudence seeks to reveal the

historical, moral, and cultural basis of a particular legal concept. The fourth body of

jurisprudence focuses on finding the answer to such abstract questions as What is law?

How do judges (properly) decide cases?

Apart from different types of jurisprudence, different schools of jurisprudence exist.

Formalism , or conceptualism, treats law like math or science. Formalists believe that a

judge identifies the relevant legal principles, applies them to the facts of a case, and

logically deduces a rule  that will govern the outcome of the dispute. In contrast,

proponents of legal realism believe that most cases before courts  present hard questions

that judges must resolve by  balancing  the interests of the parties and ultimately

drawing an arbitrary line on one side of the dispute. This line, realists maintain, is drawn

according to the political, economic, and psychological inclinations of the judge. Some

legal realists even believe that a judge is able to shape the outcome of the case based on

personal biases.

Apart from the realist-formalist dichotomy, there is the classic debate over the

appropriate sources of law between positivist and natural law schools of thought.

Positivists argue that there is no connection between law and morality and that the

only sources of law are rules that have been expressly enacted by a governmental entity

or court of law.  Naturalists, or proponents of natural law, insist that the rules enacted

by government are not the only sources of law. They argue that moral philosophy;

religion, human reason and individual conscience are also integral parts of the law.

There are no bright lines between different schools of jurisprudence. The legal

philosophy of a particular legal scholar may consist of a combination of strains from

many schools of legal thought. Some scholars think that it is more appropriate to think

about jurisprudence as a continuum.

LEGAL POSITIVISM

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

Legal positivism is the thesis that the existence and content of law depends on social facts

and not on its merits. The English jurist John Austin (1790-1859) formulated it thus:

“The existence of law is one thing; its merit and demerit another. Whether it be or be not

is one enquiry; whether it be or be not conformable to an assumed standard, is a different

enquiry.” (1832, p. 157) The positivist thesis does not say that law's merits are

unintelligible, unimportant, or peripheral to the philosophy of law. It says that they do not

determine whether laws or legal systems exist. Whether a society has a legal system

depends on the presence of certain structures of governance, not on the extent to which it

satisfies ideals of justice, democracy, or the rule of law. What laws are in force in that

system depends on what social standards its officials recognize as authoritative; for

example, legislative enactments, judicial decisions, or social customs. The fact that a

policy would be just, wise, efficient, or prudent is never sufficient reason for thinking that

it is actually the law, and the fact that it is unjust, unwise, inefficient or imprudent is

never sufficient reason for doubting it. According to positivism, law is a matter of what

has been posited (ordered, decided, practiced, tolerated, etc.); as we might say in a more

modern idiom, positivism is the view that law is a social construction. Austin thought the

thesis “simple and glaring.” While it is probably the dominant view among analytically

inclined philosophers of law, it is also the subject of competing interpretations together

with persistent criticisms and misunderstandings.

1. Development and Influence

Legal positivism has a long history and a broad influence. It has antecedents in ancient

political philosophy and is discussed, and the term itself introduced, in mediaeval legal

and political thought (see Finnis 1996). The modern doctrine, however, owes little to

these forbears. Its most important roots lie in the conventionalist political philosophies of

Hobbes and Hume, and its first full elaboration is due to Jeremy Bentham (1748-1832)

whose account Austin adopted, modified, and popularized. For much of the next century

an amalgam of their views, according to which law is the command of a sovereign

backed by force, dominated legal positivism and English philosophical reflection about

law. By the mid-twentieth century, however, this account had lost its influence among

working legal philosophers. Its emphasis on legislative institutions was replaced by a

focus on law-applying institutions such as courts, and its insistence of the role of coercive

force gave way to theories emphasizing the systematic and normative character of law.

The most important architects of this revised positivism are the Austrian jurist Hans

Kelsen (1881-1973) and the two dominating figures in the analytic philosophy of law,

H.L.A. Hart (1907-92) and Joseph Raz among whom there are clear lines of influence,

but also important contrasts. Legal positivism's importance, however, is not confined to

the philosophy of law. It can be seen throughout social theory, particularly in the works

of Marx, Weber, and Durkheim, and also (though here unwittingly) among many

lawyers, including the American “legal realists” and most contemporary feminist

scholars. Although they disagree on many other points, these writers all acknowledge that

law is essentially a matter of social fact. Some of them are, it is true, uncomfortable with

the label “legal positivism” and therefore hope to escape it. Their discomfort is

sometimes the product of confusion. Lawyers often use “positivist” abusively, to

condemn a formalistic doctrine according to which law is always clear and, however

pointless or wrong, is to be rigorously applied by officials and obeyed by subjects. It is

doubtful that anyone ever held this view; but it is in any case false, it has nothing to do

with legal positivism, and it is expressly rejected by all leading positivists. Among the

philosophically literate another, more intelligible, misunderstanding may interfere. Legal

positivism is here sometimes associated with the homonymic but independent doctrines

of logical positivism (the meaning of a sentence is its mode of verification) or

sociological positivism (social phenomena can be studied only through the methods of

natural science). While there are historical connections, and also commonalities of

temper, among these ideas, they are essentially different. The view that the existence of

law depends on social facts does not rest on a particular semantic thesis, and it is

compatible with a range of theories about how one investigates social facts, including

non-naturalistic accounts. To say that the existence of law depends on facts and not on its

merits is a thesis about the relation among laws, facts, and merits, and not otherwise a

thesis about the individual relata. Hence, most traditional “natural law” moral doctrines--

including the belief in a universal, objective morality grounded in human nature--do not

contradict legal positivism. The only influential positivist moral theories are the views

that moral norms are valid only if they have a source in divine commands or in social

conventions. Such theists and relativists apply to morality the constraints that legal

positivists think hold for law.

2. The Existence and Sources of Law

Every human society has some form of social order, some way of marking and

encouraging approved behavior, deterring disapproved behavior, and resolving disputes.

What then is distinctive of societies with legal systems and, within those societies, of

their law? Before exploring some positivist answers, it bears emphasizing that these are

not the only questions worth asking. While an understanding of the nature of law requires

an account of what makes law distinctive, it also requires an understanding of what it has

in common with other forms of social control. Some Marxists are positivists about the

nature of law while insisting that its distinguishing characteristics matter less than its role

in replicating and facilitating other forms of domination. (Though other Marxists

disagree: see Pashukanis). They think that the specific nature of law casts little light on

their primary concerns. But one can hardly know that in advance; it depends on what the

nature of law actually is.

According to Bentham and Austin, law is a phenomenon of large societies with a

sovereign: a determinate person or group who have supreme and absolute de facto power

-- they are obeyed by all or most others but do not themselves similarly obey anyone else.

The laws in that society are a subset of the sovereign's commands: general orders that

apply to classes of actions and people and that are backed up by threat of force or

“sanction.” This imperatival theory is positivist, for it identifies the existence of legal

systems with patterns of command and obedience that can be ascertained without

considering whether the sovereign has a moral right to rule or whether his commands are

meritorious. It has two other distinctive features. The theory is monistic: it represents all

laws as having a single form, imposing obligations on their subjects, though not on the

sovereign himself. The imperativalist acknowledges that ultimate legislative power may

be self-limiting, or limited externally by what public opinion will tolerate, and also that

legal systems contain provisions that are not imperatives (for example, permissions,

definitions, and so on). But they regard these as part of the non-legal material that is

necessary for, and part of, every legal system. (Austin is a bit more liberal on this point).

The theory is also reductivist, for it maintains that the normative language used in

describing and stating the law -- talk of authority, rights, obligations, and so on -- can all

be analyzed without remainder in non-normative terms, ultimately as concatenations of

statements about power and obedience.

Imperatival theories are now without influence in legal philosophy (but see Ladenson and

Morison). What survives of their outlook is the idea that legal theory must ultimately be

rooted in some account of the political system, an insight that came to be shared by all

major positivists save Kelsen. Their particular conception of a society under a sovereign

commander, however, is friendless (except among Foucauldians, who strangely take this

relic as the ideal-type of what they call “juridical” power). It is clear that in complex

societies there may be no one who has all the attributes of sovereignty, for ultimate

authority may be divided among organs and may itself be limited by law. Moreover, even

when “sovereignty” is not being used in its legal sense it is nonetheless a normative

concept. A legislator is one who has authority to make laws, and not merely someone

with great social power, and it is doubtful that “habits of obedience” is a candidate

reduction for explaining authority. Obedience is a normative concept. To distinguish it

from coincidental compliance we need something like the idea of subjects being oriented

to, or guided by, the commands. Explicating this will carry us far from the power-based

notions with which classical positivism hoped to work. The imperativalists' account of

obligation is also subject to decisive objections (Hart, 1994, pp. 26-78; and Hacker).

Treating all laws as commands conceals important differences in their social functions, in

the ways they operate in practical reasoning, and in the sort of justifications to which they

are liable. For instance, laws conferring the power to marry command nothing; they do

not obligate people to marry, or even to marry according to the prescribed formalities.

Nor is reductivism any more plausible here: we speak of legal obligations when there is

no probability of sanctions being applied and when there is no provision for sanctions (as

in the duty of the highest courts to apply the law). Moreover, we take the existence of

legal obligations to be a reason for imposing sanctions, not merely a consequence of it.

Hans Kelsen retains the imperativalists' monism but abandons their reductivism. On his

view, law is characterized by a basic form and basic norm. The form of every law is that

of a conditional order, directed at the courts, to apply sanctions if a certain behavior (the

“delict”) is performed. On this view, law is an indirect system of guidance: it does not tell

subjects what to do; it tells officials what to do to its subjects under certain conditions.

Thus, what we ordinarily regard as the legal duty not to steal is for Kelsen merely a

logical correlate of the primary norm which stipulates a sanction for stealing (1945, p.

61). The objections to imperatival monism apply also to this more sophisticated version:

the reduction misses important facts, such as the point of having a prohibition on theft.

(The courts are not indifferent between, on the one hand, people not stealing and, on the

other, stealing and suffering the sanctions.) But in one respect the conditional sanction

theory is in worse shape than is imperativalism, for it has no principled way to fix on the

delict as the duty-defining condition of the sanction -- that is but one of a large number of

relevant antecedent conditions, including the legal capacity of the offender, the

jurisdiction of the judge, the constitutionality of the offense, and so forth. Which among

all these is the content of a legal duty?

Kelsen's most important contribution lies in his attack on reductivism and his doctrine of

the “basic norm.” He maintains that law is normative and must understood as such. Might

does not make right -- not even legal right -- so the philosophy of law must explain the

fact that law is taken to impose obligations on its subjects. Moreover, law is a normative

system: “Law is not, as it is sometimes said, a rule. It is a set of rules having the kind of

unity we understand by a system” (1945, p. 3). For the imperativalists, the unity of a legal

system consists in the fact that all its laws are commanded by one sovereign. For Kelsen,

it consists in the fact that they are all links in one chain of authority. For example, a by-

law is legally valid because it is created by a corporation lawfully exercising the powers

conferred on it by the legislature, which confers those powers in a manner provided by

the constitution, which was itself created in a way provided by an earlier constitution. But

what about the very first constitution, historically speaking? Its authority, says Kelsen, is

“presupposed.” The condition for interpreting any legal norm as binding is that the first

constitution is validated by the following “basic norm:” “the original constitution is to be

obeyed.” Now, the basic norm cannot be a legal norm -- we cannot fully explain the

bindingness of law by reference to more law. Nor can it be a social fact, for Kelsen

maintains that the reason for the validity of a norm must always be another norm -- no

ought from is. It follows, then, that a legal system must consist of norms all the way

down. It bottoms in a hypothetical, transcendental norm that is the condition of the

intelligibility of any (and all) other norms as binding. To “presuppose” this basic norm is

not to endorse it as good or just -- resupposition is a cognitive stance only -- but it is,

Kelsen thinks, the necessary precondition for a non-reductivist account of law as a

normative system.

There are many difficulties with this, not least of which is the fact that if we are willing to

tolerate the basic norm as a solution it is not clear why we thought there was a problem in

the first place. One cannot say both that the basic norm is the norm presupposing which

validates all inferior norms and also that an inferior norm is part of the legal system only

if it is connected by a chain of validity to the basic norm. We need a way into the circle.

Moreover, it draws the boundaries of legal systems incorrectly. The Canadian

Constitution of 1982 was lawfully created by an Act of the U.K. Parliament, and on that

basis Canadian law and English law should be parts of a single legal system, rooted in

one basic norm: ‘The (first) U.K. constitution is to be obeyed.’ Yet no English law is

binding in Canada, and a purported repeal of the Constitution Act by the U.K. would be

without legal effect in Canada.

If law cannot ultimately be grounded in force, or in law, or in a presupposed norm, on

what does its authority rest? The most influential solution is now H.L.A. Hart's. His

solution resembles Kelsen's in its emphasis on the normative foundations of legal

systems, but Hart rejects Kelsen's transcendentalist, Kantian view of authority in favour

of an empirical, Weberian one. For Hart, the authority of law is social. The ultimate

criterion of validity in a legal system is neither a legal norm nor a presupposed norm, but

a social rule that exists only because it is actually practiced. Law ultimately rests on

custom: customs about who shall have the authority to decide disputes, what they shall

treat as binding reasons for decision, i.e. as sources of law, and how customs may be

changed. Of these three “secondary rules,” as Hart calls them, the source-determining

rule of recognition is most important, for it specifies the ultimate criteria of validity in the

legal system. It exists only because it is practiced by officials, and it is not only the

recognition rule (or rules) that best explains their practice, it is rule to which they actually

appeal in arguments about what standards they are bound to apply. Hart's account is

therefore conventionalist (see Marmor, and Coleman, 2001): ultimate legal rules are

social norms, although they are neither the product of express agreement nor even

conventions in the Schelling-Lewis sense (see Green 1999). Thus for Hart too the legal

system is norms all the way down, but at its root is a social norm that has the kind of

normative force that customs have. It is a regularity of behavior towards which officials

take “the internal point of view:” they use it as a standard for guiding and evaluating their

own and others' behavior, and this use is displayed in their conduct and speech, including

the resort to various forms of social pressure to support the rule and the ready application

of normative terms such as “duty” and “obligation” when invoking it.

It is an important feature of Hart's account that the rule of recognition is an official

custom, and not a standard necessarily shared by the broader community. If the

imperativalists' picture of the political system was pyramidal power, Hart's is more like

Weber's rational bureaucracy. Law is normally a technical enterprise, characterized by a

division of labour. Ordinary subjects' contribution to the existence of law may therefore

amount to no more than passive compliance. Thus, Hart's necessary and sufficient

conditions for the existence of a legal system are that “those rules of behavior which are

valid according to the system's ultimate criteria of validity must be generally obeyed,

and ... its rules of recognition specifying the criteria of legal validity and its rules of

change and adjudication must be effectively accepted as common public standards of

official behavior by its officials” (1994, p. 116). And this division of labour is not a

normatively neutral fact about law; it is politically charged, for it sets up the possibility of

law becoming remote from the life of a society, a hazard to which Hart is acutely alert

(1994, p. 117; cf. Waldron).

Although Hart introduces the rule of recognition through a speculative anthropology of

how it might emerge in response to certain deficiencies in a customary social order, he is

not committed to the view that law is a cultural achievement. To the contrary, the idea

that legal order is always a good thing, and that societies without it are deficient, is a

familiar element of many anti-positivist views, beginning with Henry Maine's criticism

of Austin on the ground that his theory would not apply to certain Indian villages. The

objection embraces the error it seeks to avoid. It imperialistically assumes that it is

always a bad thing to lack law, and then makes a dazzling inference from ought to is: if it

is good to have law, then each society must have it, and the concept of law must be

adjusted to show that it does. If one thinks that law is a many splendored thing, one will

be tempted by a very wide concept of law, for it would seem improper to charge others

with missing out. Positivism simply releases the harness. Law is a distinctive form of

political order, not a moral achievement, and whether it is necessary or even useful

depends entirely on its content and context. Societies without law may be perfectly

adapted to their environments, missing nothing.

A positivist account of the existence and content of law, along any of the above lines,

offers a theory of the validity of law in one of the two main senses of that term (see

Harris, pp. 107-111). Kelsen says that validity is the specific mode of existence of a

norm. An invalid marriage is not a special kind of marriage having the property of

invalidity; it is not a marriage at all. In this sense a valid law one that is systemically valid

in the jurisdiction -- it is part of the legal system. This is the question that positivists

answer by reference to social sources. It is distinct from the idea of validity as moral

propriety, i.e. a sound justification for respecting the norm. For the positivist, this

depends on its merits. One indication that these senses differ is that one may know that a

society has a legal system, and know what its laws are, without having any idea whether

they are morally justified. For example, one may know that the law of ancient Athens

included the punishment of ostracism without knowing whether it was justified, because

one does not know enough about its effects, about the social context, and so forth.

No legal positivist argues that the systemic validity of law establishes its moral validity,

i.e. that it should be obeyed by subjects or applied by judges. Even Hobbes, to whom this

view is sometimes ascribed, required that law actually be able to keep the peace, failing

which we owe it nothing. Bentham and Austin, as utilitarians, hold that such questions

always turn on the consequences and both acknowledge that disobedience is therefore

sometimes fully justified. Kelsen insists that “The science of law does not prescribe that

one ought to obey the commands of the creator of the constitution” (1967, p. 204). Hart

thinks that there is only a prima facie duty to obey, grounded in and thus limited by

fairness -- so there is no obligation to unfair or pointless laws (Hart 1955). Raz goes

further still, arguing that there isn't even a prima facie duty to obey the law, not even in a

just state (Raz 1979, pp. 233-49). The peculiar accusation that positivists believe the law

is always to be obeyed is without foundation. Hart's own view is that an overweening

deference to law consorts more easily with theories that imbue it with moral ideals,

permitting “an enormous overvaluation of the importance of the bare fact that a rule may

be said to be a valid rule of law, as if this, once declared, was conclusive of the final

moral question: ‘Ought this law to be obeyed?” (Hart 1958, p. 75).

3. Moral Principles and the Boundaries of Law

The most influential criticisms of legal positivism all flow, in one way or another, from

the suspicion that it fails to give morality its due. A theory that insists on the facticity of

law seems to contribute little to our understanding that law has important functions in

making human life go well, that the rule of law is a prized ideal, and that the language

and practice of law is highly moralized. Accordingly, positivism's critics maintain that

the most important features of law are not to be found in its source-based character, but in

law's capacity to advance the common good, to secure human rights, or to govern with

integrity. (It is a curious fact about anti-positivist theories that, while they all insist on the

moral nature of law, without exception they take its moral nature to be something good.

The idea that law might of its very nature be morally problematic does not seem to have

occurred to them.)

It is beyond doubt that moral and political considerations bear on legal philosophy. As

Finnis says, the reasons we have for establishing, maintaining or reforming law include

moral reasons, and these reasons therefore shape our legal concepts (p. 204). But which

concepts? Once one concedes, as Finnis does, that the existence and content of law can

be identified without recourse to moral argument, and that “human law is artefact and

artifice; and not a conclusion from moral premises,” (p. 205) the Thomistic apparatus he

tries to resuscitate is largely irrelevant to the truth of legal positivism. This vitiates also

Lon Fuller's criticisms of Hart (Fuller, 1958 and 1969). Apart from some confused claims

about adjudication, Fuller has two main points. First, he thinks that it isn't enough for a

legal system to rest on customary social rules, since law could not guide behavior without

also being at least minimally clear, consistent, public, prospective and so on -- that is,

without exhibiting to some degree those virtues collectively called “the rule of law.” It

suffices to note that this is perfectly consistent with law being source-based. Even if

moral properties were identical with, or supervened upon, these rule-of-law properties,

they do so in virtue of their rule-like character, and not their law-like character. Whatever

virtues inhere in or follow from clear, consistent, prospective, and open practices can be

found not only in law but in all other social practices with those features, including

custom and positive morality. And these virtues are minor: there is little to be said in

favour of a clear, consistent, prospective, public and impartially administered system of

racial segregation, for example. Fuller's second worry is that if law is a matter of fact,

then we are without an explanation of the duty to obey. He gloatingly asks how “an

amoral datum called law could have the peculiar quality of creating an obligation to obey

it” (Fuller, 1958). One possibility he neglects is that it doesn't. The fact that law claims to

obligate is, of course, a different matter and is susceptible to other explanations (Green

2001). But even if Fuller is right in his unargued assumption, the “peculiar quality”

whose existence he doubts is a familiar feature of many moral practices. Compare

promises: whether a society has a practice of promising, and what someone has promised

to do, are matters of social fact. Yet promising creates moral obligations of performance

or compensation. An “amoral datum” may indeed figure, together with other premises, in

a sound argument to moral conclusions.

While Finnis and Fuller's views are thus compatible with the positivist thesis, the same

cannot be said of Ronald Dworkin's important works (Dworkin 1978 and 1986).

Positivism's most significant critic rejects the theory on every conceivable level. He

denies that there can be any general theory of the existence and content of law; he denies

that local theories of particular legal systems can identify law without recourse to its

merits, and he rejects the whole institutional focus of positivism. A theory of law is for

Dworkin a theory of how cases ought to be decided and it begins, not with an account of

political organization, but with an abstract ideal regulating the conditions under which

governments may use coercive force over their subjects. Force must only be deployed, he

claims, in accordance with principles laid down in advance. A society has a legal system

only when, and to the extent that, it honors this ideal, and its law is the set of all

considerations that the courts of such a society would be morally justified in applying,

whether or not those considerations are determined by any source. To identify the law of

a given society we must engage in moral and political argument, for the law is whatever

requirements are consistent with an interpretation of its legal practices (subject to a

threshold condition of fit) that shows them to be best justified in light of the animating

ideal. In addition to those philosophical considerations, Dworkin invokes two features of

the phenomenology of judging, as he sees it. He finds deep controversy among lawyers

and judges about how important cases should be decided, and he finds diversity in the

considerations that they hold relevant to deciding them. The controversy suggests to him

that law cannot rest on an official consensus, and the diversity suggests that there is no

single social rule that validates all relevant reasons, moral and non-moral, for judicial

decisions.

Dworkin's rich and complex arguments have attracted various lines of reply from

positivists. One response denies the relevance of the phenomenological claims.

Controversy is a matter of degree, and a consensus-defeating amount of it is not proved

by the existence of adversarial argument in the high courts, or indeed in any courts. As

important is the broad range of settled law that gives rise to few doubts and which guides

social life outside the courtroom. As for the diversity argument, so far from being a

refutation of positivism, this is an entailment of it. Positivism identifies law, not with all

valid reasons for decision, but only with the source-based subset of them. It is no part of

the positivist claim that the rule of recognition tells us how to decide cases, or even tells

us all the relevant reasons for decision. Positivists accept that moral, political or

economic considerations are properly operative in some legal decisions, just as linguistic

or logical ones are. Modus ponens holds in court as much as outside, but not because it

was enacted by the legislature or decided by the judges, and the fact that there is no social

rule that validates both modus ponens and also the Municipalities Act is true but

irrelevant. The authority of principles of logic (or morality) is not something to be

explained by legal philosophy; the authority of acts of Parliament must be; and

accounting for the difference is a central task of the philosophy of law.

Other positivists respond differently to Dworkin's phenomenological points, accepting

their relevance but modifying the theory to accommodate them. So-called “inclusive

positivists” (e.g., Waluchow (to whom the term is due), Coleman, Soper and Lyons)

argue that the merit-based considerations may indeed be part of the law, if they are

explicitly or implicitly made so by source-based considerations. For example, Canada's

constitution explicitly authorizes for breach of Charter rights, “such remedy as the court

considers appropriate and just in the circumstances.” In determining which remedies

might be legally valid, judges are thus expressly told to take into account their morality.

And judges may develop a settled practice of doing this whether or not it is required by

any enactment; it may become customary practice in certain types of cases. Reference to

moral principles may also be implicit in the web of judge-made law, for instance in the

common law principle that no one should profit from his own wrongdoing. Such moral

considerations, inclusivists claim, are part of the law because the sources make it so, and

thus Dworkin is right that the existence and content of law turns on its merits, and wrong

only in his explanation of this fact. Legal validity depends on morality, not because of the

interpretative consequences of some ideal about how the government may use force, but

because that is one of the things that may be customarily recognized as an ultimate

determinant of legal validity. It is the sources that make the merits relevant.

To understand and assess this response, some preliminary clarifications are needed. First,

it is not plausible to hold that the merits are relevant to a judicial decision only when the

sources make it so. It would be odd to think that justice is a reason for decision only

because some source directs an official to decide justly. It is of the nature of justice that it

properly bears on certain controversies. In legal decisions, especially important ones,

moral and political considerations are present of their own authority; they do not need

sources to propel them into action. On the contrary, we expect to see a sourceÑa statute, a

decision, or a conventionÑwhen judges are constrained not to appeal directly to the

merits. Second, the fact that there is moral language in judicial decisions does not

establish the presence of moral tests for law, for sources come in various guises. What

sounds like moral reasoning in the courts is sometimes really source-based reasoning. For

example, when the Supreme Court of Canada says that a publication is criminally

“obscene” only if it is harmful, it is not applying J.S. Mill's harm principle, for what that

court means by “harmful” is that it is regarded by the community as degrading or

intolerable. Those are source-based matters, not moral ones. This is just one of many

appeals to positive morality, i.e. to the moral customs actually practiced by a given

society, and no one denies that positive morality may be a source of law. Moreover, it is

important to remember that law is dynamic and that even a decision that does apply

morality itself becomes a source of law, in the first instance for the parties and possibly

for others as well. Over time, by the doctrine of precedent where it exists or through the

gradual emergence of an interpretative convention where it does not, this gives a factual

edge to normative terms. Thus, if a court decides that money damages are in some

instances not a “just remedy” then this fact will join with others in fixing what “justice”

means for these purposes. This process may ultimately detach legal concepts from their

moral analogs (thus, legal “murder” may require no intention to kill, legal “fault” no

moral blameworthiness, an “equitable” remedy may be manifestly unfair, etc.)

Bearing in mind these complications, however, there undeniably remains a great deal of

moral reasoning in adjudication. Courts are often called on to decide what would

reasonable, fair, just, cruel, etc. by explicit or implicit requirement of statute or common

law, or because this is the only proper or intelligible way to decide. Hart sees this as

happening pre-eminently in hard cases in which, owing to the indeterminacy of legal

rules or conflicts among them, judges are left with the discretion to make new law.

“Discretion,” however, may be a potentially misleading term here. First, discretionary

judgments are not arbitrary: they are guided by merit-based considerations, and they may

also be guided by law even though not fully determined by it -- judges may be

empowered to make certain decisions and yet under a legal duty to make them in a

particular way, say, in conformity with the spirit of preexisting law or with certain moral

principles (Raz 1994, pp. 238-53). Second, Hart's account might wrongly be taken to

suggest that there are fundamentally two kinds of cases, easy ones and hard ones,

distinguished by the sorts of reasoning appropriate to each. A more perspicuous way of

putting it would be to say that there are two kinds of reasons that are operative in every

case: source-based reasons and non-source-based reasons. Law application and law

creation are continuous activities for, as Kelsen correctly argued, every legal decision is

partly determined by law and partly underdetermined: “The higher norm cannot bind in

every direction the act by which it is applied. There must always be more or less room for

discretion, so that the higher norm in relation to the lower one can only have the character

of a frame to be filled by this act” (1967, p. 349). This is a general truth about norms.

There are infinitely many ways of complying with a command to “close the door”

(quickly or slowly, with one's right hand or left, etc.) Thus, even an “easy case” will

contain discretionary elements. Sometimes such residual discretion is of little importance;

sometimes it is central; and a shift from marginal to major can happen in a flash with

changes in social or technological circumstances. That is one of the reasons for rejecting

a strict doctrine of separation of powers -- Austin called it a “childish fiction” --

according to which judges only apply and never make the law, and with it any literal

interpretation of Dworkin's ideal that coercion be deployed only according to principles

laid down in advance.

It has to be said, however, that Hart himself does not consistently view legal references to

morality as marking a zone of discretion. In a passing remark in the first edition of The

Concept of Law, he writes, “In some legal systems, as in the United States, the ultimate

criteria of legal validity explicitly incorporate principles of justice or substantive moral

values …” (1994, p. 204). This thought sits uneasily with other doctrines of importance

to his theory. For Hart also says that when judges exercise moral judgment in the

penumbra of legal rules to suppose that their results were already part of existing law is

“in effect, an invitation to revise our concept of what a legal rule is …” (1958, p. 72). The

concept of a legal rule, that is, does not include all correctly reasoned elaborations or

determinations of that rule. Later, however, Hart comes to see his remark about the U.S.

constitution as foreshadowing inclusive positivism (“soft positivism,” as he calls it).

Hart's reasons for this shift are obscure (Green 1996). He remained clear about how we

should understand ordinary statutory interpretation, for instance, where the legislature has

directed that an applicant should have a “reasonable time” or that a regulator may permit

only a “fair price:” these grant a bounded discretion to decide the cases on their merits.

Why then does Hart -- and even more insistently, Waluchow and Coleman -- come to

regard constitutional adjudication differently? Is there any reason to think that a

constitution permitting only a “just remedy” requires a different analysis than a statute

permitting only a “fair rate?”

One might hazard the following guess. Some of these philosophers think that

constitutional law expresses the ultimate criteria of legal validity: because unjust

remedies are constitutionally invalid and void ab initio, legally speaking they never

existed (Waluchow). That being so, morality sometimes determines the existence or

content of law. If this is the underlying intuition, it is misleading, for the rule of

recognition is not to be found in constitutions. The rule of recognition is the ultimate

criterion (or set of criteria) of legal validity. If one knows what the constitution of a

country is, one knows some of its law; but one may know what the rule of recognition is

without knowing any of its laws. You may know that acts of the Bundestag are a source

of law in Germany but not be able to name or interpret a single one of them. And

constitutional law is itself subject to the ultimate criteria of systemic validity. Whether a

statute, decision or convention is part of a country's constitution can only be determined

by applying the rule of recognition. The provisions of the 14th Amendment to the U.S.

constitution, for example, are not the rule of recognition in the U.S., for there is an intra-

systemic answer to the question why that Amendment is valid law. The U.S. constitution,

like that of all other countries, is law only because it was created in ways provided by law

(through amendment or court decision) or in ways that came to be accepted as creating

law (by constitutional convention and custom). Constitutional cases thus raise no

philosophical issue not already present in ordinary statutory interpretation, where

inclusive positivists seem content with the theory of judicial discretion. It is, of course,

open to them to adopt a unified view and treat every explicit or implicit legal reference to

morality -- in cases, statutes, constitutions, and customs -- as establishing moral tests for

the existence of law. (Although at that point it is unclear how their view would differ

from Dworkin's.) So we should consider the wider question: why not regard as law

everything referred to by law?

Exclusive positivists offer three main arguments for stopping at social sources. The first

and most important is that it captures and systematizes distinctions we regularly make

and that we have good reason to continue to make. We assign blame and responsibility

differently when we think that a bad decision was mandated by the sources than we do

when we think that it flowed from a judge's exercise of moral or political judgement.

When considering who should be appointed to the judiciary, we are concerned not only

with their acumen as jurists, but also with their morality and politics--and we take

different things as evidence of these traits. These are deeply entrenched distinctions, and

there is no reason to abandon them.

The second reason for stopping at sources is that this is demonstrably consistent with key

features of law's role in practical reasoning. The most important argument to this

conclusion is due to Raz (1994, pp. 210-37). For a related argument see Shapiro. For

criticism see Perry, Waluchow, Coleman 2001, and Himma.) Although law does not

necessarily have legitimate authority, it lays claim to it, and can intelligibly do so only if

it is the kind of thing that could have legitimate authority. It may fail, therefore, in certain

ways only, for example, by being unjust, pointless, or ineffective. But law cannot fail to

be a candidate authority, for it is constituted in that role by our political practices.

According to Raz, practical authorities mediate between subjects and the ultimate reasons

for which they should act. Authorities' directives should be based on such reasons, and

they are justified only when compliance with the directives makes it more likely that

people will comply with the underlying reasons that apply to them. But they can do that

only if is possible to know what the directives require independent of appeal to those

underlying reasons. Consider an example. Suppose we agree to resolve a dispute by

consensus, but that after much discussion find ourselves in disagreement about whether

some point is in fact part of the consensus view. It will do nothing to say that we should

adopt it if it is indeed properly part of the consensus. On the other hand, we could agree

to adopt it if it were endorsed by a majority vote, for we could determine the outcome of

a vote without appeal to our ideas about what the consensus should be. Social sources can

play this mediating role between persons and ultimate reasons, and because the nature of

law is partly determined by its role in giving practical guidance, there is a theoretical

reason for stopping at source-based considerations.

The third argument challenges an underlying idea of inclusive positivism, what we might

call the Midas Principle. “Just as everything King Midas touched turned into gold,

everything to which law refers becomes law … ” (Kelsen 1967, p. 161). Kelsen thought

that it followed from this principle that “It is … possible for the legal order, by obliging

the law-creating organs to respect or apply certain moral norms or political principles or

opinions of experts to transform these norms, principles, or opinions into legal norms,

and thus into sources of law” (Kelsen 1945, p. 132). (Though he regarded this

transformation as effected by a sort of tacit legislation.) If sound, the Midas Principle

holds in general and not only with respect to morality, as Kelsen makes clear. Suppose

then that the Income Tax Act penalizes overdue accounts at 8% per annum. In a relevant

case, an official can determine the content of a legal obligation only by calculating

compound interest. Does this make mathematics part of the law? A contrary indication is

that it is not subject to the rules of change in a legal system -- neither courts nor

legislators can repeal or amend the law of commutativity. The same holds of other social

norms, including the norms of foreign legal systems. A conflict-of-laws rule may direct a

Canadian judge to apply Mexican law in a Canadian case. The conflicts rule is obviously

part of the Canadian legal system. But the rule of Mexican law is not, for although

Canadian officials can decide whether or not to apply it, they can neither change it nor

repeal it, and best explanation for its existence and content makes no reference to

Canadian society or its political system. In like manner, moral standards, logic,

mathematics, principles of statistical inference, or English grammar, though all properly

applied in cases, are not themselves the law, for legal organs have applicative but not

creative power over them. The inclusivist thesis is actually groping towards an important,

but different, truth. Law is an open normative system (Raz 1975, pp. 152-54): it adopts

and enforces many other standards, including moral norms and the rules of social groups.

There is no warrant for adopting the Midas Principle to explain how or why it does this.

4. Law and Its Merits

It may clarify the philosophical stakes in legal positivism by comparing it to a number of

other theses with which it is sometimes wrongly identified, and not only by its opponents.

(See also Hart, 1958, Fuesser, and Schauer.)

4.1 The Fallibility Thesis

Law does not necessarily satisfy the conditions by which it is appropriately assessed

(Lyons 1984, p. 63, Hart 1994, pp. 185-6). Law should be just, but it may not be; it

should promote the common good, but sometimes it doesn't; it should protect moral

rights, but it may fail miserably. This we may call the moral fallibility thesis. The thesis

is correct, but it is not the exclusive property of positivism. Aquinas accepts it, Fuller

accepts it, Finnis accepts it, and Dworkin accepts it. Only a crude misunderstanding of

ideas like Aquinas's claim that “an unjust law seems to be no law at all” might suggest

the contrary. Law may have an essentially moral character and yet be morally deficient.

Even if every law always does one kind of justice (formal justice; justice according to

law), this does not entail that it does every kind of justice. Even if every law has a prima

facie claim to be applied or obeyed, it does not follow that it has such a claim all things

considered. The gap between these partial and conclusive judgments is all a natural law

theory needs to accommodate the fallibility thesis. It is sometimes said that positivism

gives a more secure grasp on the fallibility of law, for once we see that it is a social

construction we will be less likely to accord it inappropriate deference and better

prepared to engage in a clear-headed moral appraisal of the law. This claim has appealed

to several positivists, including Bentham and Hart. But while this might follow from the

truth of positivism, it cannot provide an argument for it. If law has an essentially moral

character then it is obfuscating, not clarifying, to describe it as a source-based structure of

governance.

4.2 The Separability Thesis

At one point, Hart identifies legal positivism with “the simple contention that it is no

sense a necessary truth that laws reproduce or satisfy certain demands of morality, though

in fact they have often done so” (1994, pp. 185-86). Many other philosophers,

encouraged also by the title of Hart's famous essay, “Positivism and the Separation of

Law and Morals,” (1958) treat the theory as the denial that there is a necessary

connection between law and morality -- they must be in some sense “separable” even if

not in fact separate (Coleman, 1982). The separability thesis is generally construed so as

to tolerate any contingent connection between morality and law, provided only that it is

conceivable that the connection might fail. Thus, the separability thesis is consistent with

all of the following: (i) moral principles are part of the law; (ii) law is usually, or even

always in fact, valuable; (iii) the best explanation for the content of a society's laws

includes reference to the moral ideals current in that society; and (iv) a legal system

cannot survive unless it is seen to be, and thus in some measure actually is, just. All four

claims are counted by the separability thesis as contingent connections only; they do not

hold of all possible legal systems -- they probably don't even hold of all historical legal

systems. As merely contingent truths, it is imagined that they do not affect the concept of

law itself. (This is a defective view of concept-formation, but we may ignore that for

these purposes.) If we think of the positivist thesis this way, we might interpret the

difference between exclusive and inclusive positivism in terms of the scope of the modal

operator:

(EP) It is necessarily the case that there is no connection between law and

morality.

(IP) It is not necessarily the case that there is a connection between law

and morality.

In reality, however, legal positivism is not to be identified with either thesis and each of

them is false. There are many necessary “connections,” trivial and non-trivial, between

law and morality. As John Gardner notes, legal positivism takes a position only one of

them, it rejects any dependence of the existence of law on its merits (Gardner 2001). And

with respect to this dependency relation, legal positivists are concerned with much more

than the relationship between law and morality, for in the only sense in which they insist

on a separation of law and morals they must insist also--and for the same reasons--on a

separation of law and economics.

To exclude this dependency relation, however, is to leave intact many other interesting

possibilities. For instance, it is possible that moral value derives from the sheer existence

of law (Raz 1990, 165-70) If Hobbes is right, any order is better than chaos and in some

circumstances order may be achievable only through positive law. Or perhaps in a

Hegelian way every existing legal system expresses deliberate governance in a world

otherwise dominated by chance; law is the spirit of the community come to self-

consciousness. Notice that these claims are consistent with the fallibility thesis, for they

do not deny that these supposedly good things might also bring evils, such as too much

order or the will to power. Perhaps such derivative connections between law and morality

are thought innocuous on the ground that they show more about human nature than they

do about the nature of law. The same cannot be said of the following necessary

connections between law and morality, each of which goes right to the heart of our

concept of law:

(1) Necessarily, law deals with moral matters.

Kelsen writes, “Just as natural and positive law govern the same subject-matter, and

relate, therefore, to the same norm-object, namely the mutual relationships of men -- so

both also have in common the universal form of this governance, namely obligation.”

(Kelsen 1928, p. 34) This is a matter of the content of all legal systems. Where there is

law there is also morality, and they regulate the same matters by analogous techniques.

Of course to say that law deals with morality's subject matter is not to say that it does so

well, and to say that all legal systems create obligations is not to endorse the duties so

created. This is broader than Hart's “minimum content” thesis according to which there

are basic rules governing violence, property, fidelity, and kinship that any legal system

must encompass if it aims at the survival of social creatures like ourselves (Hart 1994, pp.

193-200). Hart regards this as a matter of “natural necessity” and in that measure is

willing to qualify his endorsement of the separability thesis. But even a society that

prefers national glory or the worship of gods to survival will charge its legal system with

the same tasks its morality pursues, so the necessary content of law is not dependent, as

Hart thinks it is, on assuming certain facts about human nature and certain aims of social

existence. He fails to notice that if human nature and life were different, then morality

would be too and if law had any role in that society, it would inevitably deal with

morality's subject matter. Unlike the rules of a health club, law has broad scope and

reaches to the most important things in any society, whatever they may be. Indeed, our

most urgent political worries about law and its claims flow from just this capacity to

regulate our most vital interests, and law's wide reach must figure in any argument about

its legitimacy and its claim to obedience.

(2) Necessarily, law makes moral claims on its subjects.

The law tells us what we must do, not merely what it would be virtuous or advantageous

to do, and it requires us to act without regard to our individual self-interest but in the

interests of other individuals, or in the public interest more generally (except when law

itself permits otherwise). That is to say, law purports to obligate us. But to make

categorical demands that people should act in the interests of others is to make moral

demands on them. These demands may be misguided or unjustified for law is fallible;

they may be made in a spirit that is cynical or half-hearted; but they must be the kind of

thing that can be offered as, and possibly taken as, obligation-imposing requirements. For

this reason neither a regime of “stark imperatives” (see Kramer, pp. 83-9) nor a price

system would be a system of law, for neither could even lay claim to obligate its subjects.

As with many other social institutions, what law, though its officials, claims determines

its character independent of the truth or validity of those claims. Popes, for example,

claim apostolic succession from St. Peter. The fact that they claim this partly determines

what it is to be a Pope, even if it is a fiction, and even the Pope himself doubts its truth.

The nature of law is similarly shaped by the self-image it adopts and projects to its

subjects. To make moral demands on their compliance is to stake out a certain territory,

to invite certain kinds of support and, possibly, opposition. It is precisely because law

makes these claims that doctrines of legitimacy and political obligation take the shape

and importance that they do.

(3) Necessarily, law is justice-apt.

In view of the normative function of law in creating and enforcing obligations and rights,

it always makes sense to ask whether law is just, and where it is found deficient to

demand reform. Legal systems are therefore the kind of thing that is apt for appraisal as

just or unjust. This is a very significant feature of law. Not all human practices are

justice-apt. It makes no sense to ask whether a certain fugue is just or to demand that it

become so. The musical standards of fugal excellence are preeminently internal -- a good

fugue is a good example of its genre; it should be melodic, interesting, inventive etc. --

and the further we get from these internal standards the less secure evaluative judgments

about it become. While some formalists flirt with similar ideas about law, this is in fact

inconsistent with law's place amongst human practices. Even if law has internal standards

of merit -- virtues uniquely its own that inhere in its law-like character -- these cannot

preclude or displace its assessment on independent criteria of justice. A fugue may be at

its best when it has all the virtues of fugacity; but law is not best when it excels in

legality; law must also be just. A society may therefore suffer not only from too little of

the rule of law, but also from too much of it. This does not presuppose that justice is the

only, or even the first, virtue of a legal system. It means that our concern for its justice as

one of its virtues cannot be sidelined by any claim of the sort that law's purpose is to be

law, to its most excellent degree. Law stands continuously exposed to demands for

justification, and that too shapes its nature and role in our lives and culture.

These three theses establish connections between law and morality that are both

necessary and highly significant. Each of them is consistent with the positivist thesis that

the existence and content of law depends on social facts, not on its merits. Each of them

contributes to an understanding of the nature of law. The familiar idea that legal

positivism insists on the separability of law and morality is therefore significantly

mistaken.

4.3 The Neutrality Thesis

The necessary content thesis and the justice-aptitude thesis together establish that law is

not value-neutral. Although some lawyers regard this idea as a revelation (and others as

provocation) it is in fact banal. The thought that law could be value neutral does not even

rise to falsity -- it is simply incoherent. Law is a normative system, promoting certain

values and repressing others. Law is not neutral between victim and murderer or between

owner and thief. When people complain of the law's lack of neutrality, they are in fact

voicing very different aspirations, such as the demand that it be fair, just, impartial, and

so forth. A condition of law's achieving any of these ideals is that it is not neutral in either

its aims or its effects.

Positivism is however sometimes more credibly associated with the idea that legal

philosophy is or should be value-neutral. Kelsen, for example, says, “the function of the

science of law is not the evaluation of its subject, but its value-free description” (1967, p.

68) and Hart at one point described his work as “descriptive sociology” (1994, p. v).

Since it is well known that there are convincing arguments for the ineliminability of

values in the social sciences, those who have taken on board Quinian holisms, Kuhnian

paradigms, or Foucauldian espistemes, may suppose that positivism should be rejected a

priori, as promising something that no theory can deliver.

There are complex questions here, but some advance may be made by noticing that

Kelsen's alternatives are a false dichotomy. Legal positivism is indeed not an “evaluation

of its subject”, i.e., an evaluation of the law. And to say that the existence of law depends

on social facts does not commit one to thinking that it is a good thing that this is so. (Nor

does it preclude it: see MacCormick and Campbell) Thus far Kelsen is on secure ground.

But it does not follow that legal philosophy therefore offers a “value-free description” of

its subject. There can be no such thing. Whatever the relation between facts and values,

there is no doubt about the relationship between descriptions and values. Every

description is value-laden. It selects and systematizes only a subset of the infinite number

of facts about its subject. To describe law as resting on customary social rules is to omit

many other truths about it including, for example, truths about its connection to the

demand for paper or silk. Our warrant for doing this must rest on the view that the former

facts are more important than the latter. In this way, all descriptions express choices

about what is salient or significant, and these in turn cannot be understood without

reference to values. So legal philosophy, even if not directly an evaluation of its subject is

nonetheless “indirectly evaluative” (Dickson, 2001). Moreover, “law” itself is an

anthropocentric subject, dependent not merely on our sensory embodiment but also, as its

necessary connections to morality show, on our moral sense and capacities. Legal kinds

such as courts, decisions, and rules will not appear in a purely physical description of the

universe and may not even appear in every social description. (This may limit the

prospects for a “naturalized” jurisprudence; though for a spirited defense of the contrary

view, see Leiter)

It may seem, however, that legal positivism at least requires a stand on the so-called

“fact-value” problem. There is no doubt that certain positivists, especially Kelsen, believe

this to be so. In reality, positivism may cohabit with a range of views here -- value

statements may be entailed by factual statements; values may supervene on facts; values

may be kind of fact. Legal positivism requires only that it be in virtue of its facticity

rather than its meritoriousness that something is law, and that we can describe that

facticity without assessing its merits. In this regard, it is important to bear in mind that

not every kind of evaluative statement would count among the merits of a given rule; its

merits are only those values that could bear on its justification.

Evaluative argument is, of course, central to the philosophy of law more generally. No

legal philosopher can be only a legal positivist. A complete theory of law requires also an

account of what kinds of things could possibly count as merits of law (must law be

efficient or elegant as well as just?); of what role law should play in adjudication (should

valid law always be applied?); of what claim law has on our obedience (is there a duty to

obey?); and also of the pivotal questions of what laws we should have and whether we

should have law at all. Legal positivism does not aspire to answer these questions, though

its claim that the existence and content of law depends only on social facts does give

them shape.

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Copyright © 2003

Leslie Green

lgreen@mail.law.utexa

s.edu

West Africa Review (2001)

ISSN: 1525-4488

CHOOSING A LEGAL THEORY ON CULTURAL GROUNDS: AN AFRICAN

CASE FOR LEGAL POSITIVISM

Jare Oladosu

Introduction

If there are two or more legal theories or philosophies to choose from, what

sort of considerations might induce one to prefer one to the other(s)? The

standard answer to this question is that for the choice to be a reasonable one,

it must be based on an estimate of theoretical advantage or moral benefits or

both. In other words, the choice must be based on the judgment that one of

the theories is superior to the other(s), in the way in which it would advance

and clarify our theoretical inquiries on the nature of law, or in the way in

which it would advance and clarify our moral deliberations about the law, or,

in the way in which it would do both.1 Neither of these two considerations is

peculiar to the domain of legal theory. The adoption or rejection of theories

on conceptual and\or on pragmatic grounds is an integral part of the

enterprise of theory construction in all aspects of science; moral

consideration is the essence of practical reasoning; legal theory is just an

aspect of practical reasoning.

In the mainstream Anglo-Saxon legal theory, the debate on the

choice of a legal theory has revolved largely around these two broad

considerations – theoretical or moral advantage or both.2 While this

debate rages on, some African writers on legal theory have

introduced a new and potentially interesting dimension to the

discourse. These writers claim to have based their preference for one

legal theory, and their opposition to another, on what we may simply

refer to as cultural grounds. Without exception, these African

commentators claim to have reached the conclusion that the positivist

legal theory is unsuitable for the African (especially the Nigerian)

legal system, and they have subsequently proceeded to advocate the

adoption of the natural law theory.3

To the extent that legal positivism claims to be a universally valid

and applicable theory, no doubt, its credibility would be substantially

diminished, if it can be shown to be either incapable of providing an

adequate description of, or of responding adequately to, the peculiar

jurisprudential experiences and needs of certain cultures, or, to be

peculiarly susceptible to morally undesirable consequences, when put

into practice in certain cultural milieu. That legal positivism is

defective in both of these ways, when applied in the African socio-

political environment, is precisely what these writers are individually

out to demonstrate.

In this paper, I propose to examine the arguments variously advanced

by these African writers to support their culture-based rejection of

the positivist creed in legal theory. I will argue that creative and

interesting as these criticisms of the positivist theory may be, they are

philosophically unacceptable. As against the near universal advocacy

in favour of the natural law doctrine (legal positivism’s conceptual

archrival) by the Nigerian writers, I shall sketch the outlines of a

positive case for the adoption of legal positivism by the legal systems

of modern African states.

In the remainder of this paper, I proceed as follows. I will undertake

some conceptual clarifications in section one. Here, I analyze what is

involved in the choice or adoption of a legal theory. How might a

legal system be said to have adopted a legal theory? In section two, I

will explicate the salient tenets of the positivist legal theory. What

major changes have taken place in the development of the theory,

from its classic statements in the writings of Jeremy Bentham and his

disciple, John Austin, in the first half of the nineteenth century? How

have the African commentators tended to interpret the theory? I will

subject the arguments adduced by these writers for the rejection of

legal positivism to critical examination in part three. My conclusion

will be that most of these arguments are either incomplete, irrelevant,

or otherwise philosophically unsound. Finally, in the constructive

part four, I present the outlines of an argument for the adoption of the

positivist theory by our legal systems in modern day Africa.

Conceptual Clarification

There are two distinct (possibly complementary) ways in which a

legal theory could be said to have been adopted by a legal system. In

the first sense – say, with particular reference to legal positivism – a

situation could prevail in which the positivist philosophy exerts an

indirect, although possibly profound or even dominant intellectual

influence on the practices and discourse in a legal system, through

the works of leading jurists and legal scholars. In other words,

influential jurists and scholars operating in a legal system might

consider legal positivism the soundest theory of law. Such jurists and

scholars may then reflect the positivist principles and teachings in

their works, either as practicing lawyers, judges, or legal

theoreticians. A situation might develop where jurists and legal

scholars of positivist persuasion constitute a significant majority or,

otherwise wield significant influence on the system’s institutions and

practices. This may be due to the strategic importance of the

positions they occupy in the scheme of things (e.g., offices that

attract high visibility, like a Supreme Court justiceship, a justice

ministership, or even deans or prominent professors of pace-setting

law schools). The general orientation of the legal system in which

they operate might then become identifiably positivistic. When that

happens, I would consider legal positivism to have been indirectly

adopted by the legal system in question.4

The second sense in which a legal theory – again, say, legal

positivism – could be said to have been adopted by a legal system is,

paradoxically, more and less direct than the case in the first sense. It

might come about in the following way. If a legal system’s rule of

recognition5 does not contain any provision, either expressly stated or

implied, making the satisfaction of some moral standard or another a

requirement for the legal validity of individual rules of law, such that

a legal rule properly enacted, i.e., enacted in accordance with the

system’s norms and regulations for law-making, but which is morally

deficient one way or the other, would still be considered a valid law

of the system, then I would consider legal positivism to have been

adopted by the legal system in question.6

This way of adopting legal positivism would be more direct than the

first in the sense that the criteria of legal validity as contained in the

system’s rule of recognition would be binding on all judges and other

officials in the system, whose business it is to interpret and apply the

laws, irrespective of their personal views on the appropriate

relationship between the twin social institutions of law and morality.

On the other hand, this manner of adopting legal positivism would be

less direct than the first mode of adoption, to the extent that adopting

legal positivism in this way need not be the product of an internalised

intellectual deliberation, or conscious philosophical commitment by

any of the system’s officials, or norm-subjects. In other words, a

legal system could adopt legal positivism in this second sense, even

where no jurist or scholar in it could be said to be a legal positivist in

the first sense. The adoption of legal positivism in the second sense

might be based on no more than the pragmatic consideration that the

theory augurs well for the efficient administration of the law.

It is only in this second sense of adoption that the Nigerian writers

could plausibly consider legal positivism to have been adopted by the

legal systems of modern African states, when they report that legal

positivism is the dominant legal theory in contemporary Africa.7

Taken in the first sense of the indirect but dominant influence of

philosophically committed jurists and scholars, I should doubt

whether there is enough exposure to the legal positivist philosophy or

any other philosophical creed for that matter by African jurists and

practicing lawyers, to leave such deep intellectual impression on their

thought processes as would enable them to consciously reflect the

tenets of such a theory in their work.

The curricula in African law schools and faculties usually consist

almost exclusively of what Karl Lewellyn once described as bread-

and-butter courses8 . Given this common emphasis on technical legal

training, often considered to be of immediate practical utility to a

developing society, it is only to be expected that there would be but

the barest degree of exposure for lawyers in training, to the tenets of

the philosophies and fundamental assumptions which underlie the

practical matters that constitute the contents of law school

instruction.

I hasten to note here however, that this practicing lawyer’s attitude to

philosophical questions is by no means peculiar to African legal

practitioners; philosophically sophisticated lawyers tend to be the

exceptions even in the so-called highly developed legal systems. The

typical lawyer’s cynicism about “deep theory” is captured eloquently

by Dicey.

Jurisprudence” [Dicey observes] is a word which

stinks in the nostrils of a practising barrister. A jurist

is, they constantly find, a professor whose claim to

dogmatize on law in general lies in the fact that he has

made himself master of no one legal system in

particular, whilst his boasted science consists in the

enunciation of platitudes which, if they ought, as he

insists, to be law everywhere, cannot in fact be shown

to be law anywhere.9

Stig Stromholm’s observations on the respective jurisprudential

traditions of ancient Greece, and the Roman Empire are rather apt

here. According to Stromholm, if what prevailed in ancient Greece

could be described as philosophy without law, i.e., all theory no

technique, then what prevailed in the Roman Empire should be

described as law without philosophy, i.e., all technique no theory.10

My contention is that in many African legal systems too, what we

have is law without philosophy; as it was in the Roman Empire, all

technique, little or no basic theory.

Legal Positivism

The positivist theory of law has had a checkered career. In almost

two centuries of its modern development, it has metamorphosed

through different phases of changes, refinements, and creative

modifications. I shall state, in very broad outlines, the salient

elements of three of the more prominent versions of the theory. The

goal of this exposition is to enable us isolate the common elements in

all of these versions, and to get to the irreducible minimum properties

of a positivist conception of law. Against this common core of the

positivist doctrine, I shall compare the interpretations of it to be

found in the works of its African critics.

Imperativist Positivism

The classic statement of a positivist account of the nature of law is to

be found in John Austin’s much analysed imperativist theory – the

notorious command theory of law. Positive law which, in Austin’s

view, is law properly and strictly so called (and which is the only

appropriate matter of scientific jurisprudence), is the command of a

sovereign.11 A sovereign, says Austin, is a determinate person or

group of persons12 who is rendered habitual obedience - but who does

not render any such obedience to any one - by the bulk of the

population of a politically independent society.13 As for the notion of

a command, Austin analysed it into three elements:14

1. a wish conceived by a rational being that another rational

being shall do or forebear from doing;

2. an evil, or, in current parlance, a sanction, to proceed from

the commander and to be incurred by the commanded party,

in case the latter fails to comply with the wish expressed by

the former;

3. intimation of the wish, by words or other signs.

On Austin’s model of legal positivism, law is made when a sovereign

issues a command.

In summary, the principal features of Austin’s theory are these.

1. The source of the law is in social fact.

2. Law derives from the sovereign’s express or tacit commands.

3. Sanction is an indispensable aspect of the law. In other

words, it is Austin’s view that a sanctionless law is

something of a contradiction in terms. This has to be so,

given the centrality of the element of sanction in Austin’s

analysis of the notion of command.

4. There is no necessary connection between law and morality.

Or, to express the idea in a more positive form, law and

morality are conceptually separable. This separability thesis

would prove to be the most enduring element of Austinian

positivism. Austin himself was uncompromising on the

validity of the separability thesis. His famous battle cry is the

ringing maxim:

The existence of a law is one thing, its [moral] merit

or demerit is another. Whether it be or be not is one

enquiry; whether it be or be not conformable to an

assumed [moral] 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.15

Legal Realism

The realist version of legal positivism is the product of the American

realist movement of the 1920s and 1930s. The movement was so

named because most of its leading exponents were legal scholars and

jurists based in North America, specifically in the United States.16

The realists conceive the law as consisting in the predictions of the

decisions (and sundry pronouncements) of law courts, in cases

brought before them for adjudication. As Justice Holmes famously

put it, “the prophecies of what the courts will do indeed, and nothing

more pretentious, are what I mean by the law”.17 Individual members

of the realist movement qualify this basic proposition in different

ways. But these three features of the theory are fairly constant.

1. Law is a social fact; the law, as the realists are wont to say, is

not a brooding omnipresent in the sky.

2. The source of the law is judicial decision. Law, in other

words, is the end product of the process of adjudication.

3. Law and morality are conceptually separable – the

separability thesis.

Normative Legal Positivism

The most current version of the positivist theory is the normative

positivist analysis of the nature of law. This version of legal

positivism has its best expositions in the respective writings of

Herbert Hart,18 and Hans Kelsen.19 The normative positivist analysis

of the concept of law was developed in reaction to the unsatisfactory

state of the debate in jurisprudence at about the middle of this

century. Having apprehended the unproductive reductionist

tendencies in classical legal positivism of the Austinian kind and

theological natural law of the Thomist and Blackstonian variety

respectively, the normative positivist seeks to forge a middle path

between the two extreme positions. The goal of normative positivism

is to construct a legal theory that is basically positivistic in

conception, but which would be sufficiently flexible conceptually to

also account for the normativity of the law.20

For my purposes here, I state the outlines of H.L.A. Hart’s version of

normative positivism. According to Hart, the beginning of wisdom in

the effort to develop an adequate theory of law is to learn to conceive

the law as a form of social rules21 . Hart’s theory of law could be

summarized in the following three propositions.

1. Law is a social fact.

2. The paradigm exemplification of the law consists in the

union of primary and secondary “social rules.”22

3. Law and morality are conceptually separable.

Professor Hart’s articulation of the substance of the

separability thesis is very instructive. According to

Hart, the import of the separability thesis is, “the

simple contention that it is in no sense a necessary

truth that laws reproduce or satisfy certain demands of

morality, though in fact they have often done so.”23

Elsewhere Hart analyses the content of the separability thesis into

two disarmingly simple claims:

First, in the absence of an expressed constitutional or

legal provision, it could not follow from the mere fact

that a rule violated standards of morality that it was

not a rule of law; and [second] conversely, it could not

follow from the mere fact that a rule was morally

desirable that it was a rule of law.24

A quick review of the three versions of the positivist theory stated

thus far shows that only two theses seem to be common to all of

them, namely, the social fact thesis, and the separability thesis. The

import of the social fact thesis is the claim that the existence of the

law is purely a matter of social fact. The sources of the law are

invariably to be sought in the inner workings of concrete social

institutions. The variations between the different versions of the

theory are explainable in terms of the differences in the specific

social institutions each identifies as the source of the law, i.e.,

whether it be in the expression of the will of a monarch, or in the

enactment of a modern parliament, or in the decisions of a law court,

or in the complex interplay of social rules of some form.

Most self-confessed positivists and sympathetic commentators would

most probably agree that these two theses constitute the irreducible

core of the positivist creed. There may, however, be slight

disagreements on which of the two theses to accord logical priority.

Kent Greenawalt, for example, is of the opinion that the social fact

thesis is logically prior to the separability thesis. In his view:

if one had to settle on a central aspect of legal

positivism, as a general approach to legal theory that

has existed over time, one would focus on the premise

that law is in some important sense a social fact or set

of social facts. Suppositions about the connections

between law and morality and about the nature of

judicial decisions follow from that.25

Similarly, in his topical essay, “Classical Legal Positivism at

Nuremberg”,26 Stanley L. Paulson claims that “classical legal

positivism rests on two fundamental doctrines, the command doctrine

and the doctrine of absolute sovereignty.”27 This means, again, that

the separability thesis is a derivative of those “two fundamental

doctrines”.

These observations about the logical priority of the social fact thesis

are most likely correct. But for analytical purposes it may be more

helpful to reverse the order of things, since all legal positivists are

equally committed to the separability thesis, and since there are

important disagreements among positivists in regard to the

determination of the content of the social fact thesis.

Let us take the separability thesis as a “negative” principle, it asserts

what the law need not be. I suggest that we make this “negative”

principle serve as the indispensable stump of the positivist account of

the nature of law. Different versions of the theory may then be

obtained by grafting onto this conceptual stump a variety of different

“positive” theses. Austin’s imperativist brand of legal positivism,

Hart’s normative positivist analysis of the concept of law, and the

predictivist account developed by the American realists, are three of

the well-known examples of such derivable versions of legal

positivism. In the first, the “positive” thesis that law is the command

of a habitually obeyed, legally illimitable sovereign is grafted onto

the separability thesis. In the second, the “positive” thesis that law is

invariably to be conceived as the union of some form of social rules

is grafted onto the separability thesis. In the third, the “positive”

thesis that law is to be distilled from the decisions reached by courts

in matters brought before them is grafted onto the separability thesis.

A rich possibility exists for theorists to graft other logically

compatible “positive” theses onto the separability thesis, to derive yet

other versions of legal positivism.

The African Critics’ Understanding of Legal Positivism

Against this background of a theory that has undergone profound

changes in the course of its checkered evolution, and the rich

possibility which, as I have suggested, exists even now to construct

new variations of it, the understanding of the tenets of legal

positivism displayed by many of its African critics is grossly

inadequate. For many of these commentators28 , it is as if the

development of the positivist theory had remained frozen at the point

of Austin’s expositions, in 1832.29

For example, F. U. Okafor, a leading Nigerian critic of the theory,

claims to understand legal positivism as “a theory which recognizes

as valid laws only such enforceable norms as are enacted or

established by the instrument of the state.”30 The consequence of this

conception of law, Okafor claims, is that for the positivist, “only

statute laws are laws indeed, by the mere fact that they have been

posited by an appropriate political authority.”31 In the face of these

conceptual restrictions, Okafor contends, the legal positivist is led to

exclude from the province of jurisprudence, “such fundamental

questions as,’ what are the essence of law?’, ‘why is the citizen

obliged to obey the law?’, ’what is the nature of a just and unjust

law?’, ‘is what is legally wrong also morally wrong?’.”32

In the same vein, Justice Akinola Aguda, easily one of Africa’s

leading jurists, conceives the various versions of legal positivism as

“theories of the omnipotence of the sovereign.”33 The Rev. Dr. N. S.

S. Iwe has a similar understanding of the tenets of the positivist

theory of law:

By legal positivism, [Iwe writes,] we mean essentially

that attitude of mind and spirit which regards as valid

laws only such enforceable norms formally enacted or

established by the appropriate official political organ.

Here only Municipal laws (or Statute Laws) are laws

for they have been formally so posited by the

authority. Once a given norm or proposal has formally

and successfully gone through the technical

procedures, of legislation, it automatically acquires

the force of law, independently of all other

considerations moral, teleological and practical. This

is the stand of legal positivism and its school of

supporters.34

The sole concern of legal positivism, Iwe continues:

is with the law as ‘it is’ and as ‘laid down’ not with

what it ought to be. The separation of ethics and

jurisprudence is complete in legal positivism. The

legal ’is’ is all that counts. The legal ‘ought’ is of no

consequence and relevance in positivist jurisprudence.

The formal stamp of technical legality on a given

norm – not its ethical contents and qualification – is

the criterion of legal validity.35

Taken in its current stage of development and sophistication – and

this is the sense in which any serious-minded contemporary

commentator ought to take it- the interpretations of the positivist

doctrine that we have been quoting from the African writers are

grotesque caricatures. But it is these caricatures that many of these

writers claim to be theoretically inadequate and practically harmful

to the peculiar circumstances of African legal systems. In the next

section, I will examine, under two broad headings, some of the

arguments that these critics adduce in support of their negative

conclusions on legal positivism.

THE ONTOLOGICAL ARGUMENT AGAINST LEGAL

POSITIVISM

Although one finds passing allusions to this line of thinking in the

works of other African critics of legal positivism, the clearest

articulation of the ontological argument for the rejection of legal

positivism was developed by Dr. F.U. Okafor.36 The argument is

based on what he considers to be the unique characteristics of

African ontology and, by extension, the unique characteristics of the

social institutions that evolved from that ontology. In order to

understand the traditional jurisprudence of Africa, Okafor claims, we

must first understand the salient features of African ontology. As he

puts it, “the African legal tradition is a direct outcome of African

ontology.”37 By “African ontology”, Okafor seems to mean nothing

more than the African folk cosmology – the traditional African view

of the universal order, and man’s place in it. As Okafor understands

it, “the morphology of African ‘reality’, their concept of ‘existence’,

shows that there is an intimate ontological relationship between

beings.”38 In other words, African traditional worldview recognizes

that there is “active interaction.a kind of intersubjective

communion”, among the various entities that constitute the universe.

The hierarchy of beings, or as he would prefer to label these entities,

“forces”, range, in a descending order of might and importance, from

the divine force, to terrestrial and celestial forces, to human forces,

terminating with vegetable and mineral forces.39 The place of man is

right at the vortex of this cosmic order; to survive, man must

harmonise his own being (or force) with the reality of the other

forces that engulf him.40

From this “ontological” base, there developed, according to Okafor,

unique social and political ideas and institutions in Africa. As regards

the evolution of the institution of law in Africa, with which we are

here primarily concerned, Okafor submits that: “From the ontological

relationship among forces, divine and human, animate and inanimate,

and from the fact of the interaction of these forces arise a practical

recognition of two main sources of law – divine and human.”41 On

this model of the traditional African legal system, there is only one

vital criterion of legal validity, namely, that the purported law be

intended by its maker (whether the lawmaker be God or man) to

contribute to the maintenance of the harmony among the various

ontological forces. Hence, “the province of African jurisprudence

is .large enough to include divine laws, positive laws, customary

laws, and any other kinds of laws, provided such laws are intended

for the promotion and preservation of the vital force.”42

From this conception of the nature of law, certain cardinal features of

traditional African legal system are said to emerge. The first is that

African laws are not the commands of any sovereign. In the

traditional African political system, Okafor had earlier reported, there

would have been no sovereigns to issue such commands in the first

place. “The African political culture”, he claims, “recognises only

leaders and not rulers, seniors but not superiors.”43

The second characteristic of the traditional African legal system is

the conspicuous lack of emphasis on enforceability. This is due,

again, to the absence of centralised authorities – symbolized, for

example, by the Austinian sovereign – to supervise the enforcement

of the laws of traditional African society. In view of the absence of a

law-enforcing central authority, the African (in traditional times)

endeavoured to observe law and order because of his ontological and

moral conviction that a breach of the law would upset the ontological

order44 . And, it was the general belief of course, that to upset the

ontological order was to provoke calamitous reprisals to fall, not only

upon one’s own head, but also upon the whole community of which

one is a member.

The third salient characteristic of the traditional African legal system

is the belief in the existence of a necessary connection between law

and morality. Or, as Okafor puts it, there was the belief “[that] there

cannot be any separation of morality and legality in the African legal

experience.”45 Again, the explanation for this belief in the conceptual

union of law and morality goes back, ultimately, to the ontological

undercurrent of the jurisprudence of traditional Africa. “It is because

African positive laws have ontological foundations that they have

ipso facto a moral foundation, for in African ethical thought, what is

considered ontologically good will therefore be accounted ethically

good; and at length be assessed as juridically just.”46 In view of this

jurisprudential heritage, Okafor’s conclusion is that the African legal

system must reject legal positivism in all its ramifications. This, as he

says, is because, “the legal positivists tenets and their corollaries are

in complete opposition to the African ontology and African

jurisprudence that depends on it.”47

The opposition of the positivist philosophy to African jurisprudence

is manifested in several ways. First, legal positivism, says Okafor,

conceives law as the commands of a sovereign ruler, issued to his

obedient subjects. This is clearly opposed to the tenets of African

jurisprudence, by the terms of which the existence of such a

sovereign ruler is denied, and where laws are reportedly conceived as

the ordinances of reason. Second, legal positivism is said to posit

enforceability as a necessary condition for the existence of law. But

African jurisprudence denies the necessity of enforceability. Third,

and most important, legal positivism denies that there is a necessary

connection between the validity of a rule of positive law and the

satisfaction of some presumed standards of morality. On the

contrary, African jurisprudence is said to affirm that there is a

necessary connection between morality and the validity of positive

law.

It is easy to guess Okafor’s conclusion from all this: there can be no

room for the positivist creed, as far as the development of the African

legal system is concerned. Okafor counsels that “in the African world

serious efforts must be made to ensure that our laws, statutory or

customary, take due cognizance of African ontology. Only a law with

such ontological foundation would be a law of the people for the

people.”48

Okafor’s submission is very interesting, at times even fascinating.

Surely he has taken the discourse to hitherto unsuspected realms. I

should doubt, however, whether what is left of Okafor’s case against

legal positivism would stand up to critical scrutiny, once the

argument is stripped of the exotic but largely illusory garb of

“African ontology”. Indeed, I will argue that Okafor’s argument

against legal positivism is flawed on all counts: his description of the

traditional jurisprudence of Africa does not correspond to anything in

reality; his interpretation of the legal positivist doctrine – which he

sets the so called African jurisprudence up against – is clearly out of

vogue, outdated perhaps by more than one and a half centuries. I start

with Okafor’s exposition of legal positivism.

Okafor’s understanding of legal positivism goes no further than the

account developed in John Austin’s The Province of Jurisprudence

Determined, a monograph, as we have established above, first

published in 1832. The positivist movement in legal theory has, of

course, undergone major transformations since Austin’s time. The

transformations have been especially profound in the works of

modern normative positivists. As a result of these transformations, it

is no longer true – assuming that it once ever was true – that the

positivist theory offers a model on which only duly enacted statutes

may qualify as valid laws. On the model of modern legal positivism,

customary laws, positive international laws, and conventional

constitutional law – whatever that may mean – may now qualify as

valid laws of a municipal legal system, i.e., provided that such norms

are so identified by the system’s rule of recognition. By the same

token, all those questions which Okafor considers to be fundamental,

“’what are the essence of law?’, ‘why is the citizen obliged to obey

the law?’, ‘what is the nature of a just and unjust law?’, ‘is what is

legally wrong also morally wrong?’”, now fall squarely within the

province of positivist jurisprudence. In fact, neither Austin nor

Bentham, nor any other positivist of note has ever canvassed the

exclusion of these questions from the province of jurisprudence. By

limiting the survey of what he touts as “the genesis and development

of legal positivism”49 to its most reductionistic form in the writings of

John Austin, Okafor’s exposition can be said to exhibit what Olufemi

Taiwo has described as “a serious deficiency in scholarship.”50

Let us turn our critical attention to Okafor’s description of the

traditional jurisprudence of Africa. My contention is that there is no

one such thing; there has never been one such thing. Here again,

Taiwo has said much that needs to be said about the fictional

character of Okafor’s portrayal of a philosophy of law indigenous to

the whole of Africa, quite eloquently. Simply put, the African

continent has always been too culturally diverse and heterogeneous

for anything remotely approximating to a dominant legal philosophy,

identifiable with the whole continent, to have emerged. As Taiwo

rightly observed, “to collapse all of Africa’s diverse socio-political

and legal traditions into one, which prevailed over all the areas, is to

mistake the common occupation of a geographical continuum for

social consensus.”51

There is a second and equally significant sense in which Okafor’s

descriptions fail to capture the current realities of African socio-

political ideas and institutions: it ignores the fact of centuries of

exposure by African societies to profound cultural influences from

other lands. Surely it would be difficult to ascertain what remains as

the culturally pure and unadulterated African in a social or political

idea or institution in a typical modern African society, once we

reckon with how such an idea or institution must have been shaped in

some way, by the “corrupting” influences of European colonialism,

and before European colonialism, by the “corrupting” influences of

Arabo- Islamic cultures.

Of course no one wants to suggest that these cultural influences have

been mono- directional, Arab to Africa, or, Europe to Africa. What

we here refute is the suggestion by Okafor and the other purveyors of

this naïve cultural irredentism, that if we can only search long

enough in our cultural archives we will somehow uncover some

elements of our cultural past that have been left pure and untainted

by alien influences.

Okafor’s mistake, in the first instance, is to have generalized from

the socio- political set up of his own native Igbo society, in Eastern

Nigeria, to the whole of Africa. But whereas ethnographic accounts

confirm that the social and political arrangement of traditional Igbo

society was based on the age-grade system, thus indicating that the

Igbo society of old might indeed have recognized “only leaders and

not rulers, seniors but not superiors”, there are likewise conclusive

historical records to confirm that in other parts of the continent, kings

and emperors reigned, whose law-making powers and competence

rivaled those of any monarch in Medieval Europe.

Also to be noted, on a second count, is the historical fact that the

social and political structure of indigenous Igbo society has since

been profoundly altered, thanks to the activities of the colonizing

British authorities, who created the institution of paramount rulers—

the so called Warrant Chiefs—in Igboland. The purpose then was to

replicate the economic successes and administrative efficiency of

indirect rule, which the British had employed in Northern and

Western Nigeria, societies where large kingdoms and empires had

long evolved, complete with sophisticated political systems. As a

result of that (entirely self-serving) innovation by the British, Eastern

Nigeria of today can boast of a whole range of paramount rulers.

Okafor’s description is, therefore, not only a monument to hasty

generalisation, it is also anachronistic, that is, even if we restrict its

scope to Igbo society.

For our purposes here, there would seem to be no use in subjecting

this argument to further scrutiny. Its defects are obvious. To set up

what must amount to a caricature of legal positivism – as the doctrine

has been developed in recent decades – against the model of some

mythical African jurisprudence, has as much credibility as the

activities of an agent, who, having first toiled very hard to erect a

strawman proceeds at once to attack it vigorously.

But before I conclude this examination of Okafor’s ontological

argument for the rejection of legal positivism, there is one important

though unstated assumption in the argument that deserves to be

closely examined. That assumption would be philosophically

significant – if it turns out to be true – even if the objections that I

have been raising against the other premises of the argument are

sound and conclusive. The assumption is that the African ontology

and the traditional African legal philosophy that is based on it

describe the model of a world that is worth “returning” to. We shall

notice that the mere fact—assuming it is a fact—that the legal

positivist creed is in “complete opposition” to the tenets of African

jurisprudence would not, in itself, constitute a sufficient reason for

rejecting legal positivism. What would amount to a sufficient reason

for that purpose is a conjunction of that supposed fact with the truth

of another proposition, namely, that the African conception of law is

a better theory of the nature of law. Supposedly, in Okafor’s view,

that would be because African jurisprudence is predicated on the

soundest ontological theory, or an ontological theory that is, at least,

superior to its presumed counterpart from the western world.

Let us look then more closely into the structure and contents of the

“traditional African world”, which in my view, would seem to

correspond to Okafor’s description of the African ontology. For even

if it is the case, as I have argued, that the portrait fails to capture

anything real, and even if it is the case, as I have argued, that

Okafor’s interpretation of legal positivism is an outdated caricature,

his description of the African ontology and the resultant African

jurisprudence may yet present the picture of an ideal condition which

is superior to what would amount to a true representation of legal

positivism. And in that case, of course, that ideal condition would be

worth striving to attain.

The picture that seems, in my view, to emerge from Okafor’s

descriptions is that of a very simple social order, with all but the

barest rudiments of political organization. Scientifically, this has to

be an utterly simple world: chances are that in that world,

explanations, no matter how mundane or common-place the

phenomenon being explained, would invariably implicate the

personal dispositions of some god, ancestral spirit, or one of a myriad

of other supernatural agents.

In such a world and given its aboriginal conception of law, it should

not surprise us if we are told that the law of gravity readily qualifies

for inclusion in the province of jurisprudence (surely the law of

gravity contributes to the maintenance of harmony among the various

life forces), whereas many a law that we may design to regulate

modern commerce might fail to make it into the province of

jurisprudence. This is, after all, a world in which morality and

religion are conceived to be inseparable, and where no law is to be

considered valid unless religion and morality sanction it. It would be

a world, in short, in which as far as legal conceptions go, the

institutions of morality, religion, and law are conceived as woven

into an inseparable, tangled mesh. Even Austin’s crude imperativism

would be far superior to that jurisprudence.

Clearly, an ontology like that and the social and political ideas and

institutions that might sprout from it do not present the modern

African, or, for that matter, any one from any part of the modern

world, with the model of an ideal world worth striving to attain. Nor

should we be surprised at our abhorrence at what we conjecture

might be the state of that world. To the extent that the portrait

corresponds to any reality at all, it can only correspond to a state of

the rudimentary social order in which humanity once existed, not

only on the continent of Africa but in all parts of the globe, when

earthly civilization was at its earliest infancy. Having transcended

that condition for millennia, for the vast majority of human

communities in all parts of the contemporary world, the only

surviving evidences of such a past are marks on the walls of ancient

caves. This is no less the case for African societies. Indeed, had

someone, not “a native son” like Okafor or myself, but say, a foreign

social scientist, presented us with that picture of an Africa in some

immediate past (say, a hundred or two hundred years before the onset

of colonialism), we would all, quite rightfully, have protested

vigorously. We would have countered his descriptions with

overwhelming historical evidence, confirming that great empires had

existed and flourished all over the continent, for thousands of years

before the advent of colonialism. Now suppose that not content with

presenting his unflattery descriptions as mere conjectural

reconstruction, our foreign social scientist informs us that he had also

reached the normative conclusion that it would be better for the

modern African to organize his society on the model of that simple

past. Smelling the dirty hands of racism at work, and feeling gravely

insulted, we Africans would, no doubt, have called for his head.

Okafor’s idea of “the African ontology” belongs, I suppose, within

the genre of ethno-philosophy. In general the ethno-philosophy

project has not done too well; some would rate it an outright

conceptual flop. Ethno-legal-philosophy is not likely to fare any

better. This pessimistic conclusion on the viability of ethno-

philosophy as a general methodology, and ethno-legal-philosophy in

particular should, however, not be misconstrued as indicating a

wholesale rejection of all attempts to probe into, and as far as

possible, to reconstruct the past. My position is not borne out of any

form of naïve triumphalist modernism. By no means do I advocate an

unqualified celebration of everything new and modern, nor do I want

to suggest that Africa should ignore her past. Quite apart from the

fact that history will not be so wantonly ignored for long, I do

strongly believe that there may be a lot of valuable socio- political

ideas from Africa’s past, which when carefully extricated from the

debris of ancient superstitions, can profitably be appropriated for

modern use.

To take a concrete example, Dr. T. O. Elias has shown, quite

persuasively, why a preoccupation with imprisonment as a way of

dispensing criminal justice may not sit well with African customary

legal practice. Elias points out that to the extent that “punishment of

the offender and a corresponding satisfaction of the offended are two

distinct questions that must be faced if real justice is to be

achieved,”52 then pre-colonial African customary legal practices may

have struck a more useful balance between these two requirements of

justice.

While viewing the matter of punishment of offenders with grim

seriousness, African customary legal practices have tended to put an

equal or greater emphasis on the side of the need for restitution.

From the point of view of the kinsmen of a victim of manslaughter, it

is equally, if not more important, that the murderer be made to pay

them “blood- money”, before he is sent to jail or executed. Hence the

African under the colonial legal system was understandably appalled

when offenders were “merely” imprisoned by the colonial

authorities, without anything said or done about the need to make

restitution to victims or to a victim’s family:

When a person has been found guilty of, for example,

manslaughter of another and is thrown into gaol

without at the same time being made to pay the blood-

money to his victim’s surviving relations as required

by customary law, not only such deprived relatives

but also the general public are infuriated by the

procedure. Imprisonment benefits the British

Government by thus providing it with another servant,

while it does nothing to assuage the personal grief or

satisfy the legal expectations of the bereaved family.53

This perceived need to take the matter of restitution as seriously as

we take society’s need for punishment suggests, in my view, that

there is an urgent need to take a closer look at the procedures for the

administration of criminal justice as presently constituted in the legal

systems of modern African states. In view of the apparent lack of

sufficient awareness of the requirements of the different forms of

laws under which an injured party may seek remedy by the majority

of the citizens of African states, it may be desirable to mitigate the

rigid distinction, inherited from colonial legal systems, between civil

and criminal procedures.

We must, however, append a couple of caveats to all of this. The

validity of Dr. Elias’s observations concerning the customary

emphasis on some form of restitution, e.g., payment of blood-money,

is most likely limited to certain regions of the African continent, and

even in those regions, true only of certain historical points in time.

This takes nothing away from Elias’s otherwise excellent, pioneering

study of African customary law. He cannot have claimed, without

concrete empirical evidence, that payment of blood-money (or any

other form of restitution for that matter) was a practice universally

engaged in by all traditional African societies. Nor can he claim, in

the face of what seem to be strong evidence to the contrary, that the

average Yoruba man at the commencement of the twenty-first

century nurses a sense of loss at not being paid blood-money, as

vividly as his ancestors might once have done.

Second, there is all the evidence to show that Africans under colonial

rule were not alone in been “piqued”, as Dr. Elias put it, by the

relative indifference of the British criminal justice system at that

time, to the need to extract restitution from offenders in addition to,

or, as a way of punishing them. Reform-minded philosophers and

social critics, led by Jeremy Bentham54 had directed critical attention

to this unsatisfactory aspect of the British legal system, as early as

the beginning of the nineteenth century, or earlier.

If a man were to willfully set fire to his neighbour’s house or farm,

the penalty under British colonial law would be a term of

imprisonment. Partly this would be retribution; partly it would be

imposed to serve as deterrence to other potential arsonists. Bentham

is however of the view that justice would be better served if the

offender was fined a certain sum, to be paid over to his victim. In

Bentham’s view, “the best fund whence satisfaction can be drawn is

the property of the delinquent, since it then performs with superior

convenience the functions both of satisfaction and punishment.”55 On

this view, it would be “juster and simpler” to auction off an arsonist’s

house, farm or automobile, and remedy the victim’s distress and loss

from the proceeds.

Bentham is willing to go several steps further by way of securing just

restitution. For instance, in the case of an impecunious offender,

Bentham proposes that funds should be drawn from the public

treasury to make good the victim’s loss: “But if the offender is

without property, ought the injured party to remain without

satisfaction? No, for satisfaction is almost as necessary as

punishment. It ought to be furnished out of the public treasury,

because it is an object of public good, and the security of all is

interested in it.”56

I have entered these caveats at length to caution us on the ever

present dangers of cross- cultural and cross-epochal generalisations,

as well as to counter the dubious suggestion which some cultural

romantics promote, that we shortchange our ancestors if we do not

claim some items of wisdom and insights into the dynamics of social

organizations, as their exclusive preserve. African peoples, in the

past and at present, are not different from the rest of humanity in the

possession and exercise of innate powers of philosophical reflection,

and in being endowed with a healthy dose of common sense. But

then what sane person has ever denied that?

I conclude this section by noting that in the effort to see what can be

salvaged from the legal systems and practices of indigenous African

societies, legal philosophers in particular and jurists in general will

do well to consult the various writings of cultural anthropologists

who studied those aspects of our cultural past. The excellent

bibliographical references at the end of Dr. Elias’s equally excellent

monograph on The Nature of African Customary Law, is a good

place to start.

The Moral Argument

The next line of objection to legal positivism is not one distinct

argument as such. It is a cluster of overlapping complaints about

some alleged pernicious effects of the positivist doctrine, when

observed in practice. Among the morally undesirable results that

critics have claimed to notice when they observe the positivist

doctrine in practice are the following:

1. that it encourages tyranny by allowing undue and excessive

powers to government officials. As J.M. Elegido put it,

“.positivist approaches in law tend to do great harm,

especially in so far as of themselves they tend to legitimate

the actions of whoever finds himself in power;”57

2. that it is a bad theory of legislation;58

3. that it is a bad theory of adjudication.59

4. The cumulative effect of (i), (ii), and (iii), critics have

concluded, is that when the positivist doctrine is put into

practice, it helps to create a social and political environment

that is hostile to the exercise and defense of human rights.

Now, anyone with a passing acquaintance with the literature on legal

philosophy would readily see that these are fairly standard objections

to the positivist theory. One is therefore tempted to dispose of them

by drawing from the stock of standard positivist rejoinders, which, in

my opinion, are quite adequate. We must resist that temptation. First,

we have to find out what else the African critics of the positivist

creed have in mind by raising these well-worn allegations anew.

The idea seems to be that there are some uniquely African reasons

for recycling these objections at this time. Justice Akinola Aguda

provided the clearest statement of such a reason. I quote him in full:

What has become of grave importance to us in Africa

– but here I shall confine myself to Nigeria – is that

the emergence of military and dictatorial governments

in this continent has brought the positivist theories

into focus, and caused alarm not only in the minds of

progressive jurists but also in the minds of the general

public. England and some other European countries at

least since after the Second World War have been able

to contain the positivist concept of law, thanks to

inbuilt and highly developed democratic practices.

Here in Nigeria no such practices have ever been

permitted to germinate, not to talk of grow; hence we

have not been able to curtail the evils of positivist

thinking on law which most lawyers – in this I include

judges of all grades – have imbibed from the

commencement of their training in the law Faculties.60

The import of Justice Aguda’s submission is clear enough: what

makes legal positivism so morally harmful when put into practice in

an African society – like Nigeria – is the absence, in the African

socio-political environment, of inbuilt and highly developed

democratic institutions and practices. It is as if legal positivism were

a variety of plant, to draw an analogy with botanical processes,

nurtured in the democratically fertile climates of Western Europe,

and North America, this plant is thoroughly domesticated; it bears

succulent fruits. Transplanted onto the harsh and rocky terrain of

political dictatorship and tyranny in Africa, it becomes a man-eating

weed. Now, what are we to make of this argument?

To begin with, we should note that to date, critics have not come up

with any independent argument to show that legal positivism is a bad

theory in itself. Often, critics have had to concede, as we find Justice

Aguda conceding in the passage quoted above, that the positivist

philosophy does not produce the morally objectionable consequences

that they claim to result from its application in African legal systems

elsewhere.

Perhaps the critics’ point is not that legal positivism is a morally evil

doctrine in itself; the allegation may be that the evils that the critics

complain about result when subscription to the positivist creed is

combined with the absence of sufficiently developed democratic

institutions and practices. That much is clear from the line of

reasoning quoted from Justice Aguda above, when he contrasts what

he takes to be the morally pernicious effects of legal positivism in

Africa to its benign effects in the operations of the legal systems of

the industrialised democracies of Western Europe. The next step in

this anti- positivist position is usually the suggestion that the moral

evils complained about would not result if , instead of the positivist

creed, the legal systems of African states under one form of

dictatorship or another had subscribed to the alternative natural law

philosophy.

The problem with the first part of this argument is that it may have

put the blame where it does not belong. It seems most likely that the

critic here confuses the breakdown of the political process for a

failure of legal theory. I would have thought that it is more

reasonable to blame the dictatorial tendencies in African

governments and the resultant evils of political corruption and human

rights abuses, on the frequent disruptions of the political process—

usually, through military incursion into civil governance—which has

so far prevented democracy from flourishing, and not on the

positivist creed in legal theory. Surely, no one would suggest, with

any degree of seriousness, that the positivist conception of law is to

be held causally responsible for the absence of “inbuilt and highly

developed” democratic institutions and practices in post

independence African states.

For parallel reasons, I should doubt whether subscription to the

natural law philosophy would be sufficient in itself, to curtail the

occurrences of the moral evils of gross abuses of political offices,

misuse of power, and violation of human rights, in a fundamentally

undemocratic polity. Indeed, the natural law doctrine is the most

vulnerable to use and abuse by just about anyone with a political

agenda. Anarchists, reactionaries, liberal democrats, as well as

libertarian minimalists, have all been known to invoke the principles

of natural law to justify their respective causes.

Professor Alf Ross likened the natural law doctrine to a conceptual

harlot, whose services are readily available to all manners of political

ideologies. Hence, as Ross put it, “from a practical-political point of

view.naturalistic theories have been conservative as well as

evolutionary and revolutionary. In the province of political

philosophy all the political systems from extreme absolutism to

direct democracy have been vindicated by natural law

philosophies.”61 It does seem, therefore, that to base the hope for

democracy and the aspirations of human rights on the natural law

philosophy is like building a magnificent castle on a pile of shifting

sand.

Often in their haste to condemn legal positivism, critics tend to

confuse a number of issues that should be separated and carefully

analysed. They have thus been led through such series of conceptual

muddles to proclaim what, under closer analysis, turn out to be

patently false allegations against the theory. For example, the

impression is sometimes created that the legal positivist does not

have the resources within the framework of his theory to draw the

vital distinction between a lawful order and a regime of mere brute

force. The imputation of such a crude theory of legal validity,

according to which positivists are held to equate a regime of law to

the gunman situation writ-large, is exemplified by the passage quoted

from Dr. Elegido above, where he asserts that one major way in

which positivist approaches in legal theory do great harm is

“.especially in so far as of themselves they tend to legitimate the

actions of whoever finds himself in power.”62

It takes only one moment for us to realise that if this allegation were

true, it would be especially damaging to the credibility of the

positivist theory in the African context. Most of the moral atrocities

that people complain about were committed under undemocratic,

dictatorial governments. In almost all the cases, those governments

were military dictatorships; the regimes were often led by bands of

military officers, who, after violently overthrowing a lawful

government would proclaim the suspension of the legal basis of the

democratic constitution, and subsequently proceed to govern by

issuing decrees. The pertinent question is whether such military

decrees qualify as valid laws.

The critic seems to suppose that the legal positivist would, willy-

nilly, and without any further explanation or argument, return an

affirmative answer to that question. Of course that supposition is

wrong. It is in fact contradicted by overwhelming textual evidence

from contemporary positivist writings. Since this crude conception of

legal validity is an account which most modern legal positivists

expressly reject, even if the account may, with some argument, be

attributed to old-style reductionist legal positivism, it cannot be

attributed to the positivist creed as a whole. Modern normative

positivists in particular reject that gunman situation writ-large view

of legal validity, along with other indefensible elements of Austinian

positivism. According to H. L. A. Hart:

The root cause of the failure of [Austinian legal

positivism] is that the elements out of which the

theory was constructed, viz. The ideas of orders,

obedience, habits, and threats, do not include, and

cannot by their combination yield, the idea of a rule,

without which we cannot hope to elucidate even the

most elementary forms of laws.63

I can see no basis for attributing to a theorist, who proposes that the

concept of law be elucidated in terms of social rules, the simple

imperativist model, according to which there may be nothing more to

a regime of law than the gunman situation writ-large. In the same

vein, I can see no justification at all for the critic’s supposition that

legal positivists would, without any further ado, accept the decrees

issuing from the headquarters of a military junta as valid laws.

The critic might point out that Hart equivocates a lot on the concept

of a social rule. As many commentators have pointed out, it is clear

that by the time Hart developed his account of the existence of a

legal system (as distinct from the validity of individual rules within a

legal system), i.e., Hart’s two minimum necessary and sufficient

conditions for the existence of a legal system, the notion of social

rules that goes into the analysis is radically different from the idea of

customary social rules, introduced in the early chapters of The

Concept of Law, which owe their existence to wide-spread

acceptance in the relevant society. Given this equivocation, the critic

might press on, Hart’s normative legal positivism can offer no theory

of legal validity that is qualitatively different from what is contained

in John Austin’s imperativist model.

This is no doubt a very strong objection against Hart’s positivist

theory of law. But, as I have argued elsewhere,64 the objection does

not hold against all Hartian positivist theories. In any case, my view

is that legal positivists need to be more explicit in their explanation

of the moral legitimacy of the foundation of a legal system.

Observing that while Hart’s minimum requirements may be

necessary, they would not be sufficient to constitute the foundation

of a legal system, I have proposed that: “In order for the enactment

by officials to amount to valid laws (given that a valid rule of law has

the inherent potential to generate the moral obligation to comply with

its requirement) the process whereby persons get to become

lawgivers and remain lawgivers, must be a morally legitimate one.”65

The critic’s response might be to welcome this proposal, and then to

gleefully proclaim that the underlying theory can no longer be a true

variant of legal positivism. As usual, the critic would have been

celebrating a bit too soon; his observation is wrong. While my

proposal addresses the issue of the moral foundation of a legal

system as a whole, it says nothing yet about the moral content of

individual rules of law to be made by officials with the requisite

moral authority, subsequent to the constitution of a morally

legitimate legal system. On that latter question, I firmly uphold the

separability thesis.

Going back then to the question we posed above: are the decrees

issued by military regimes valid laws? My inclination is to return a

negative answer. For how can anything lawful result from such

fundamental illegality that military regimes often represent? But this

answer would have to be further supported by arguments, for it

clearly runs up against the received opinion on the matter. The

received opinion is backed by much of existing international law,

according to which the foundations of a legal system—the Kelsenian

grundnorm—is deemed to be changeable by the incidence of a

“revolution”.

In the Cold War decades, during which time, coincidentally, military

juntas were running amok all over Africa and in other parts of the

developing world, public international law treated military coups

d’etat as satisfying the definition of grundnorm- changing

“revolution”. Therefore, the recognition accorded to successive

military regimes in Nigeria and elsewhere in Africa, both by the

municipal courts and the international community, was not

necessitated by our legal systems’ subscription to the positivist creed

in legal theory; it was facilitated by the exigencies of international

politics.

Other than this crucial distinction between the existence conditions

of a legal system and the criteria of validity of individual rules of

law, another important distinction which critics of legal positivism

often fail to draw is that between the determination of the validity of

a rule of law and the determination of its moral bindingness, i.e.,

determining whether or not a norm- subject lies under a moral

obligation to comply with the provisions of the (valid) rule.

Positivists are often treated as if they hold the view that the process

of ascertaining the validity of a law is identical to the process of

ascertaining whether or not there arises a moral obligation to obey it.

But unless a positivist fails to pay attention to what he is doing, he

cannot fall into that error.

Acutely aware of their endorsement of the separability thesis, modern

positivists have often made it clear that the mere fact that a rule is

legally valid does not, by any means, automatically translate to the

generation of a moral obligation on the citizen to comply with it.

Legal positivists know all too well that a law may be valid but too

unjust or otherwise too immoral for there to be a moral obligation to

obey it. Bentham’s teaching is for a clear boundary to be drawn

between “expository” jurisprudence and “censorial” jurisprudence.

His admonition to the norm-subject is to obey promptly but to

criticize freely. That Benthamite dichotomy still animates much of

modern positivist writing, perhaps with the enlightened modification

shifting the emphasis from prompt obedience to free censoring.

Leading legal positivists are at the forefront of the enlightened

liberalism of our age, just as Bentham and his disciples were the

apostles of liberal reforms in their time.

The allegation was once made that the vulgarized reformulation of

the separability thesis, “law is law” (Gesetz als Gesetz) may have

served as the doctrinal shroud that blocked the moral vision of the

courts in Nazi Germany. Professor Hart’s response is that that

attitude toward the law is not dictated by the logic of the positivist

doctrine. Thus, next time someone comes around to recite that piece

of platitude, “law is law”, the correct response is to remind him that

his platitude tells only half of the story: “the truly liberal answer to

any sinister use of the slogan “law is law” or the distinction between

law and morals is, “very well, but that does not conclude the

question. Law is not morality; do not let it supplant morality.”66

Some critics would insist that even if legal positivism may not be

directly implicated in the enthronement of a dictatorial regime, it

nonetheless help such regimes to consolidate and to go about

executing their immoral objectives with relative ease, using the

instrumentality of the judiciary. Olufemi Taiwo, for example, alluded

to “.how legal positivism might have made it easier for judges to

escape censure for their roles under, say Idi Amin in Uganda or Ian

Smith in Zimbabwe (then Rhodesia).”67 Taiwo’s further allusion to

“unimaginative squirming judges [wanting] to hide under the veneer

of having no control of their pronouncements”, suggests that what he

implies here is that a courageous, morally upright and resourceful

judge operating under such a fascist regime should be able to ensure

that his judicial decisions do not result in blatant injustice or

undeserved human suffering. Taiwo seems to believe that a judge

with these qualities would be able to frustrate the evil designs and

programmes of tyrants like Idi Ami, Ian Smith, Sani Abacha, Mobutu

Sese Seko, etc., to the extent that the tyrant attempts to accomplish

his evil ends through the legal process (or what at the point in time

passes as the legal process). The unstated assumption in Taiwo’s

argument and other versions of the objection by opponents of legal

positivism, is that subscription to the positivist philosophy rubs a

judge of the virtues of courage, moral uprightness, and

resourcefulness.

It is of course difficult to see how this might be so; and Taiwo fails to

provide any detailed explanation of the presumed process whereby

the positivist philosophy turns judges—who are otherwise virtuous

men and women—into moral cretins. In my view, subscription to the

positivist doctrine should not in itself prevent a judge from

attempting to rig the outcome of a judicial decision to suit his own

moral convictions. Legal positivism is not antithetical to judicial

activism. Judicial activism is, however, a double- edged sword, it can

cut both ways. Just as a judge whose morality we agree with might

(under the banner of judicial activism) manipulate the interpretation

of a legal provision, to obtain a morally agreeable result, so too might

another judge, whose moral standards we disagree with, manipulate

the interpretations of a rule to arrive at a morally disagreeable

verdict.

Our experience in the recent past would indicate that the two kinds of

judges are easy to find in the Nigerian judiciary. In the system where

we had a high court judge with enough courage and moral rectitude

to declare the so called Interim National Government (ING)—set up

after the annulment of the June 1993 presidential elections—illegal,

we also had another high court judge, who, under the cover of

darkness at night, rendered the momentous verdict upholding the

lawfulness of the so called Association for Better Nigeria’s (ABN)

prayer to have the presidential elections of June 12, 1993 stopped. I

doubt whether Justice (Mrs.) Akinsanya, the judge at the Lagos high

court was any less a legal positivist’ or, positivist-inspired than

Justice (Mrs.) Ikpeme, who gave the infamous ABN ruling at the

Abuja high court.

In extreme cases, the professionally proper thing for a judge to do

may be to resign his appointment, i.e., instead of returning a morally

unjust verdict, or trying to tinker with the clear meanings of the law.

The morally proper thing for any person to do is to join in the

campaign against an evil regime. Depending on the severity of the

atrocities being committed by the regime, and an overall estimate of

the circumstance, such campaigns may range from peaceful civil

protests to a resort to armed confrontation.

In the years immediately preceding the end of the Second World

War, some suggestions were heard from certain scholarly circles to

the effect that legal positivism may have contributed to paving the

way for the enthronement and sustenance of the Nazi ideology in

Germany – suggestions quite similar to the accusations now been

leveled against the positivist creed by its African critics. Professor

Hart’s rejoinder to those allegations of possible positivist complicity

in Nazis’ reign of terror is most instructive. It is that rather than

blaming the alleged “insensitiveness to the demands of morality and

subservience to state power in a people like the Germans” on the

positivist creed in legal theory, attempts should be made to discover

the origins of such beliefs and dispositions in the German society. As

Hart put it:

There is an extraordinary naivete in the view that

insensitiveness to the demands of morality and

subservience to state power in a people like the

Germans should have arisen from the belief that law

might be law though it failed to conform with the

minimum requirement of morality. Rather this terrible

history of insensitiveness to the demands of morality

and subservience to state power prompts inquiry into

why emphasis on the slogan “law is law:, and the

distinction between law and morals, acquired a

sinister character in Germany, but elsewhere, as with

the utilitarians themselves, went along with the most

enlightened liberal attitudes.68

Borrowing a leaf from Hart, I would admonish the African critics of

legal positivism to commence inquiries into why democratic

institutions and practices “have never been permitted to germinate,

not to talk of grow”, as Justice Aguda put it, in these African

societies, instead of laying the responsibility for the social and moral

evils of political dictatorship at the door step of the positivist theory.

An African Case For Legal Positivism

Philip Soper69 has argued that the choice of a legal theory cannot be

based on moral considerations. In other words, Soper is of the view

that it would make no moral difference at all, whether one chooses

legal positivism or its rival, the natural law theory. I doubt whether

this is indeed the case, although I have no intention of defending a

substantive position here. But even if one may not choose a legal

theory for moral reasons, it would not follow that we may not prefer

one legal theory to another, for reasons that are not any less

compelling. Presently, I shall argue for the position that there are

compelling pragmatic reasons for the legal systems of modern

African states to choose the positivist theory of law, in preference to

the natural law theory.

For our purposes here, we shall take the core element of a positivist

conception of law as consisting in the affirmation of the separability

thesis. On the other hand, we take the core element of a natural law

theory to be the denial of the separability thesis. My contention is

that faced with the choice between legal positivism on one hand and

natural law theory on the other, there are strong historical and

pragmatic reasons for the legal systems of modern nation states in

Africa to choose the positivist doctrine.

Earlier on, in section IV.1 of the essay, I criticized Okafor’s

characterisation of what he calls African traditional society on the

grounds, inter alia, that the account fails to take due cognizance of

the enormous cultural diversity that was the hallmark of the African

continent, even in traditional times. My case for the adoption of legal

positivism by modern African states tracks on these facts of cultural

diversity in traditional (or pre-colonial) Africa, conjoined with the

unique colonial experiences, and the resultant post- independence

ethnic and ethical composition of many African nation states at

present.

It is a fact that many of the entities that pass for sovereign nation

states in present day Africa are conglomerations of many different

ethnic nationalities, who were arbitrarily lumped together by the

colonial powers. The colonialists had magnified, or underplayed the

differences between these ethno-national groups, as it suited colonial

administrative convenience. Upon the departure of the colonial

powers, leaders of the various ethno-national groups thus “united”

for colonial administration had proclaimed the geographical areas

covered by the territories of their different groups as independent

sovereign states. But the elements of cultural diversity that

characterized pre-colonial African societies have survived in the new

nation states. The cultural differences are manifested in the various

aspects of life, in different institutional structures and social

practices, ranging from the most sacred—religious beliefs—to the

most mundane, say, attitude toward commerce.

Nigeria, where many of these African critics of legal positivism and I

come from, offers a particularly rich example of such a great

diversity of ethno-national groups arbitrarily lumped together by the

colonial rulers, and in which the constituent ethnic groups have

retained (indeed have been jealously guiding) their respective

cultural identities, after the whole territory was declared an

independent nation state in 1960.

There are close to three hundred natural languages in Nigeria – and

that is not counting the many dialects of each. The majority of the

population is unable to communicate in English, the language of the

departed colonial power and the country’s official language at

present. Talking of religious creeds, Islam is the religion of the

North, the Roman Catholic church is dominant in the East, Islam and

Protestant Christianity co-exist in the West. There are, of course

pockets of believers in various indigenous African religions in all the

regions. Each of the major religious sects boasts of a dizzying array

of sub-sects, ranging from extreme orthodoxy or fundamentalism to

permissive liberalism, analogous, one might say, to the varied

dialects of the natural languages. Added to these are a host of other

cultural differences which, as I remarked above, are reflected in

matters ranging from beliefs about matrimony and paternal

obligations, to beliefs about the appropriate relationship between

rulers and their subjects, to the morality of interest-charging. Nigeria,

one can only conclude, is one spectacular geographical artefact.

Now consider the conception of law according to the critic’s idea of

what African jurisprudence should be. On that model of

jurisprudence, which they claim to be in accord with the natural law

doctrine, no positive enactment would be considered a valid law if it

were in any way contrary to some assumed moral principle. We shall

recall, for example, how Okafor had insisted that law, morality, and

religion are to be held inseparable on the model of traditional African

worldview, and how he had insisted that all efforts must be made by

modern African legal systems to ensure that the laws faithfully

reflect that worldview. If we adopt this natural- law-inspired

constraint on the possible contents of positive laws, we would have

to insert a provision in the Nigerian Constitution, to the effect that no

law is to be deemed valid if it is contrary to moral, and perhaps also

religious, standards. The question then would be, to which or whose

moral or religious creed would the law have to conform? In other

words, whose call is the lawmaker to heed, given the multitude of

moral and religious voices presently coexisting within the Nigerian

geo-political space?

In my view, the surest way to frustrate lawmaking, and consequently

to court the perils of anarchy and the disintegration of the nation, is

to impose this kind of constraints on the possible contents of our

positive laws. Therefore, the separability thesis, according to which it

would not be a necessary truth, hence not a necessary requirement,

that our positive laws reproduce or satisfy certain moral or religious

principles, will serve us better. Of course, our lawmakers would be

encouraged to ensure that the laws they enact conform to as much of

morality and, wherever possible, as much of religion, as possible.

Somewhere in his paper, Okafor had issued the warning that

“African positive laws must not be confused with some past

atrocious practices and acts occasioned by past ignorance of the

course of nature and executed with great religious dexterity.”70 I

consider this a most sensible admonition. It has a corollary: atrocities

committed in the name of the law should not be blamed on religion

or morality. Atrocities committed in the name of the law should be

carefully investigated, to determine what “wrong beliefs” motivated

them, and to determine where precisely to put the blame.

Unfortunately, there can be no way to mark the distinction which

Okafor here considers desirable, that is, if we follow him and his

fellow natural law theorists in weaving the different institutions of

law, morality, and religion into one tangled, inseparable (and of

course inoperable) body of dogmas. On the other hand, one of the

guiding aims of legal positivism, cashed out most forcefully in the

separability thesis, is to enable us draw this kind of crucial

distinctions. Standing firmly on the moral pedestal, we can keep a

watchful eye on the operations of the positive law.

The objection could be raised that I have over-emphasized the issue

of cultural diversity of the different ethnic nationalities that compose

a typical nation state in post-colonial Africa; and that I underplayed

the elements of cultural uniformity that are always on display in

these societies. Is it not the case, as P.C. Nwakeze has observed, that

“in the midst of the diversity of African cultures, there is striking

cultural uniformity which allows us to talk of ‘African culture’”?71 In

any case, as rational agents, do citizens of modern African states not

agree on many important points of moral values? I suppose we can

grant that both of these questions could be answered in the

affirmative. However, I do not see how that would in any way

undermine my conclusion that to impose the kind of moral or

religious constraints on the possible contents of positive law, such as

the critics of legal positivism advocate, would effectively paralyse

the making and or the administration of laws in a country such as

ours.

To grant that there are elements of cultural uniformity is not in any

way to retreat from the observation that there are also elements of

cultural diversity among the various ethno- national groups in

modern African states. To concede that citizens of African states

would agree on many important points of moral values is, likewise,

compatible with the rival observation that those same citizens,

informed by different religious and ethical beliefs, might disagree on

many important points of moral and religious values. My contention

is that where such areas of moral and religious differences are

sufficiently fundamental, as I think they would be in any society as

culturally diverse as a typical modern African nation state, they will

frustrate efforts at making and administering laws, should there be

moral or religious constraints on the possible contents of the law,

such as the natural-law-inspired writers would propose.

It will not help much either, to say that the positive laws be required

to conform only to the standards of critical morality. That suggestion

presupposes that there is always agreement as to what these standards

are. That presupposition is wrong. It is easy enough, I suppose, to

expressly incorporate into the letters and principles of our positive

laws, moral or religious values about which there is widespread

agreement in the society.

References

Ajisafe, A. K. Laws and Customs of the Yorruba People. London:

Routledge, 1924.

Austin, John. The Province of Jurisprudence Determineed, edited

by H. L. A. Hart. London: Weidenfeld &Nicolson, 1968.

Bix, Brian (ed.), Analyzing Law: New Essays in Legal Theory.

Oxford: Clarendon Press, 1998.

Danquah, J. B. Akan Laws and Customs. London: Routledge &Sons

Ltd., 1928.

Dworkin, Ronald. Taking Rights Seriously. Cambridge, Mas:

Harvard University Press, 1977.

Elegido, J. M. Jurisprudence. Ibadan: Spectrum Law Publishing,

1994.

Elias, T. O. The Nature of African Customary Law. Manchester:

Manchester University Press, 1956.

Elias, T.O. Groundwork of Nigerian Law. London: Routledge

&Kegan Paul, 1954.

Feinberg, Joel. And Gross, Hyman (ed.), Philosophy of Law.

Belmont, California: Wadsworth Publishing Co. 1980.

Finnis, John. Natural Law and Natural Rights. Oxford: Clarendon

Press, 1980.

Gavison, Ruth (ed.), Issues in Contemporary Legal Philosophy:

The Influence of H.L.A. Hart. Oxford: Clarendon Press, 1987.

Guest, Stephen (ed.), Positivism Today. Aldershot: Dartmouth

Publishing Co. Ltd., 1996.

Hart, H. L. A. The Concept of Law. Oxford: Clarendon Press, 1961.

Kelsen, Hans. The Pure Theory of Law; translated by Max Knight.

Berkeley: University of California Press, 1967.

Morrison, Wayne. Juriprudence from the Greeks to Post-

Modernism. London: Cavendish Publishing Ltd., 1997.

Patterson, Dennis (ed.), A Companion to Philosophy of Law and

Legal Theory. Cambridge, Mas: Blackwell Publishers Ltd.,

1996.

Paulson, Stanley L. and Paulson Bonnie Litschewski (ed.),

Normativity and Norms: Critical Perspectives on Kelsenian

Themes. Oxford: Clarendon Press, 1998.

Raz, Joseph. The Authority of Law. Oxford: Clarendon Press, 1979.

Robert P. George, (ed.), The Autonomy of Law: Essays on Legal

Positivism. Oxford: Clarendon Press, 1996.

Sebok, Anthony J. Legal Positivism in American Jurisprudence.

Cambridge: Cambridge University Press, 1998.

Shapiro, Ian and DeCew, Judith Wagner (ed.), Theory and Practice.

New York: New York University Press, 1995.

Simpson, A. W. B. (ed.), Oxford Essays in Jurisprudence, (second

series). Oxford; Clarendon Press, 1973.

Soper, Philip. A Theory of Law. Cambridge, Mas: Harvard

University Press, 1984.

Waluchow, W. J. Inclusive Positivism. Oxford; Clarendon Press,

1994.

Wiredu, Kwasi. Philosophy and an African Culture. Cambridge:

Cambridge University Press, 1980.

Endnotes

1. H.L.A. Hart, The Concept of Law, (Oxford: Clarendon Press,

1961). Pp. 204 – 205.

2. For more on this debate, see the following works; H.L.A. Hart,

The Concept of Law, ibid.; H.L.A. Hart, “Positivism and the

Separation of Law and Morals”, Harvard Law Review, vol. 71, no.4

(Feb. 1958). Pp.593 – 629; compare Lon L. Fuller’s rejoinder to

Hart, “Positivism and Fidelity to Law – A Reply to Professor Hart”,

in the same issue of Harvard Law Review, pp. 630 – 672; Joseph

Raz, The Authority of Law, ( Oxford: Clarendon Press, 1979),

especially chapter 3; Neil MacCormick, H.L.A. Hart, (London,

1981); Neil MacCormick, “A Moralistic Case for a Moralistic Law”,

20 Valparaiso Law Review (1986); Philip Soper, “Choosing a Legal

Theory on Moral Grounds”, Social Philosophy and Policy, (1987);

Deryck Beyleveld and Roger Brownsword, “ The Practical

Differences Between Natural Law Theory and Legal Positivism”,

Oxford Journal of Legal Studies, vol.5 (1985); pp. 1 – 32.

3. The African – mostly Nigerian – writers under reference here

include the following. F.U. Okafor, “Legal Positivism and the

African Legal Tradition”, International Philosophical Quarterly, vol.

Xxiv, no.2, issue 94 (June 1984); pp.157 – 164; see also Okafor’s

Igbo Philosophy of Law , (Enugu: Fourth Dimension Publishing Co.

Ltd., 1992), especially the closing remarks entitled “A Challenge to

Legal Positivism”; Rev. Dr. N.S.S. Iwe, “The Dangers of Legal

Positivism to Our Indigenous Values and Remedy”, in T.O. Elias,

S.N. Awabara, and C.O. Akpamgbo (eds.), African Indigenous Law

(proceedings of workshop held between 7-9 August, 1974, at the

University of Nigeria, Nsukka), published by the Institute of African

Studies, University of Nigeria, Nsukka; pp.232 – 250; Aguda

Akinola, The Judicial Process and the Third Republic, (Lagos: F&A

Publishers Ltd., 1992), especially chapter 5; see also Justice Aguda’s

two-part opinion page publications entitled “Back to Illegal ‘Laws’

1”, in the Guardian newspaper of Monday, May 16, 1994, and “Back

to Illegal ‘Laws’ 2”, in the guardian newspaper of Tuesday, may 17,

1994; Adetokunbo Okeaya-Inneh, “Why the Law Must Possess an

Inner Morality”, in the Guardian newspaper of Wednesday, August

4, 1993; A.O. Obilade, “The Decline of Legal Positivism: A Critique

of Two Tenets”, The University of Ife Law Journal (1986), vol. 1&2,

pp.94 – 111; J.M. Elegido, Jurisprudence, (Ibadan: Spectrum Law

Publishing, 1994), see especially the authors introductory remarks on

p. x.

4. In concrete historical terms, instances of this mode of adoption of

a legal theory by a legal system are hard to find. It is conceivable that

there was a period, in the 1920s and 1930s, when the Realist

“predictivist” theory of law could be said to have been adopted in

this sense, by the American legal system. This was the period when

influential realists occupied strategic positions in and out the

judiciary: from supreme court justices like Oliver Wendel Holmes jr.,

to deans and professors at leading American law schools. In this

regard, no one can read Karl Llewelyn’s classic general introduction

to law, The Bramble Bush (first published in 1930), and not be struck

by the pervasive commitment to the predictivist conception of law.

Llewelyn’s objective was to train lawyer - he was professor of law at

Columbia – who would be good forecasters of the future course of

judicial behaviour.

5. The concept of the rule of recognition was introduced by H.L.A.

Hart. See The Concept of Law, chapter 6. The rule of recognition is

the ultimate rule in a legal system, it specifies the criteria for the

identification (recognition) of every other rule in the system. In other

words, the rule of recognition contains the criteria of legal validity in

a legal system.

6. In this respect, Professor Hart’s analysis of the positivist

separability thesis, both in The concept of Law , and in the Harvard

Law Review article, cited above, is very instructive. I say more on

this later in the text.

7. Virtually, all the Nigerian writers listed in note (3) above, make

this claim.

8. Courses such as Commercial law, Land law, Tort, Criminal law,

Law of evidence, e.t.c., that would make graduates of the law schools

readily employable - by governments or in private chambers – thus

furnishing them with a secure source of livelihood, enabling them, as

Llewelyn used to put it, “to butter [their] bread, or to give them bread

to butter”.

9. A.V. Dicey was quoted to have made this observation in an article

in Law, Mag. & Rev., vol.5 . The quotation is from John C. Gray,

“Some Definitions & Questions in Jurisprudence”, Harvard Law

Review, vol. Vi (1892/93), p.23. Happily, neither Gray nor Dicey

seems to endorse this “practising barrister’s” opinion on

jurisprudence.

10. Stromholm, Stig. A Short History of Legal Thinking in the West,

(Stockholm, Sweden: Norstedts Forlag AB, 1985).

11. Austin, John. The Province of Jurisprudence Determined, edited

with an introduction by H.L.A. Hart, (London: Weidenfeld and

Nicolson, 3rd impression, 1968); lecture v, esp. p135ff.

12. Ibid. p.145.

13. ibid. Austin explains this at great length in lecture vi, pp.193 ff.

14. Ibid. pp. 13 – 14.

15. Ibid. p. 184.

16. A concise survey of the realist movement is offered by Brian

Leiter , in his article, “Legal Realism”, in Dennis Patterson (ed.), A

Companion to Philosophy of Law and Legal Theory, (Oxford:

Clarendon Press, 1996); pp. 261 – 279.

17. Holmes, O. W. (jnr.). “The Path of the Law”, Harvard Law

Review, vol. 10 (1897); pp.457 – 478.

18. Hart, H.L.A. The Concept of Law, op. Cit. Hart’s work has

attracted a great deal of interest and critical comments. For a

sympathetic exposition of Hart’s philosophy of law, see

MacCormick, H.L.A. Hart, op.cit. Two collections of essays in

honour of Hart are particularly useful: Joseph Raz and P.M.S. Hacker

(eds.), Law and Morality: Essays in Honour of H.L.A. Hart, (Oxford:

Clarendon Press, 1977); Ruth Gavison (ed.), Issues in Contemporary

Legal Philosophy: The Influence of H.L.A. Hart, (Oxford: Clarendon

Press, 1987).

19. Kelsen, Hans. The Pure Theory of Law, translated by Max

Knight, (Berkeley & Los Angeles: University of California Press,

1967). For a major collection of critical essays on Kelsen’s work, see

Stanley L. Paulson and Bonnie Litschewski Paulson (eds.),

Normativity and Norms:Critical Perspectives on Kelsenian Themes

(Oxford: ClarendonPress, 1998).

20. For more on this, see my “Normative Positivism and Its Modern

Critics”, in Legal Systems & Legal Science; Proceedings of the 17th

World Congress of the International Association for Philosophy of

Law and Social Philosophy (IVR) Bologna, June 16 – 21, 1995;

( ARSP – Beiheft 70: vol. Iv), edited by Marijan Pavcnick and

Gianfrancesco Zanetti. Pp. 49 – 57.

21. Hart, H.L.A. The Concept of Law, op. Cit. P. 78.

22. Ibid. p. 95.

23. Ibid. pp. 181 – 182.

24. Hart, H.L.A. “Positivism and the Separation of Law and Morals”,

Harvard Law Review, op. Cit. P.

25. Greenawalt, Kent. “Too Thin and Too Rich: Distinguishing

Features of Legal Positivism”, in Robert P. George (ed.), The

Anatomy of Law: Essays on Legal Positivism, (Oxford: Clarendon

Press, 1996). Pp. 1 – 29, at p.19. I added the emphasis.

26. Paulson, Stanley L. “ Classical Legal Positivism at Nuremberg”,

Philosophy and Public Affairs, vol. 4, no. 2 (Winter, 1975); p.134.

27. ibid. p. 136.

28. A notable exception is Elegido, Jurisprudence, op. Cit.

29. John Austin’s classic, The Province of Jurisprudence

Determined, was first published in 1832. Austin’s widow, Sarah

Austin published a second edition, with additional materials on the

uses of the study of Jurisprudence,, in 1861. Austin’s statement of the

positivist theory has since then been subjected to such intense critical

scrutiny and attack prompting a modern American commentator to

remark that Austin has been shot at so frequently for so long, that all

that is left of his theory are holes, no substance. The reception of

classical legal positivism has fluctuated from unreserved acclaim, to

the most contemptuous rejection. For example, John C. Gray records

that Austin’s theory was “considerably in vogue” from about 1861

(when the book was re- issued by Sarah Austin) to about 1874. In

1874 “Sir Henry Maine dealt it a severe blow in his last two lectures

on the ‘Early History of Institutions’, since which time its credit has

been sensibly shaken” (John C. Gray, “Some Definitions and

Questions in Jurisprudence”, Harvard Law Review, vol. Vi

(1892/93), p.22.). The profile of Austinian positivism would

thereafter rise and fall again . W.W. Buckland’s observations seem to

capture very aptly, the viscitude of the rising and declining fortunes

of classical legal positivism, especially Austin’s account of it: “The

analysis of legal concepts is what jurisprudence meant for the

students in the days of my youth. In fact it meant Austin. He was a

religion; today he seems to be regarded as a disease. “ (W.W.

Buckland, Some Reflections on Jurisprudence, (Cambridge, 1949),

this passage was quoted by R.H.S. Tur, “What is Jurisprudence?’,

The Philosophical Quarterly, vol. 28, no iii (April 1978), p. 152). In

what is generally regarded as the most comprehensive and careful

survey of Austin’s legal theory, professor Hart devoted the first three

chapters of his own classic, The Concept of Law, to a detailed

critique of Austin’s ideas. His verdict after the painstaking study

seems to have put the final nail on the coffin of reductivist

positivism. The survey carried out in the last three chapters is, in

Hart’s words, “a record of failure.” P.78. Hart is, nonetheless,

persuaded that a more adequate account of the nature of law can be

constructed from the ruins of Austin’s theory.

30. Okafor, “Positivism and the African Legal Tradition”,

op.cit.p.157.

31. ibid.

32. ibid. p. 163.

33. Aguda, Akinola. The Judicial Process and the Third Republic, op.

Cit. P.81.

34. Iwe, N.S.S. “The Dangers of Legal Positivism”, op. Cit.p.233.

35. ibid. p. 236.

36. Okafor, F.U. op. Cit. P.

37. ibid. 161

38. ibid.

39. ibid.

40. ibid. 163.

41. Ibid. 162

42. ibid. 163.

43. Ibid.

44. ibid. 160.

45. Ibid.

46. ibid.

47. ibid. 162.

48. Ibid. 163.

49. Ibid. 159.

50. Taiwo, Olufemi. “Legal Positivism and the African Legal

Tradition: A Reply”, op. Cit. P. 200.

51. Ibid. 198.

52. Elias, T.O. The Nature of African Customary Law, (Manchester:

Manchester University Press, 1956); p. 287.

53. Ibid. 286.

54. It is instructive that Bentham and his fellow utilitarians combined

a strong endorsement of the positivist doctrine with highly

enlightened liberal attitudes toward legal and other aspects of social

reforms.

55. Bentham, Jeremy. Theory of Legislation, edited by Ogden, p.

317; quoted on p.286 of Elias.

56. Ibid. The emphasis is mine.

57. Elegido, J. M. Jurisprudence, p. x.

58. Okafor, F. U. “Legal Positivism and African Legal Tradition”, p.

164.

59. Taiwo, Olufemi. “ Legal Positivism and African Legal Tradition:

A Reply”, p.199.

60. Aguda, Akinola. The Judicial Process and the Third Republic, pp.

82 – 83.

61. Ross, Alf. “ Validity and the Conflict Between Legal Positivism

and Natural Law”, Revista Juridica de Buenos Aires, (1961), vol. 4,

p. 56.

62. Elegido, J.M. see note (57) above.

63. Hart, H.L.A. The Concept of Law, p. 78.

64. See my “Normative Legal Positivism and Its Modern Critics”,

note (20) above.

65. Ibid. p. 56.

66. Hart, H.L.A. “ Positivism and the Separation of Law and

Morals”, p. 618.

67. Taiwo. Olufemi. “Legal Positivism and African Legal Tradition:

A Reply”, p199.

68. Hart, H.L.A. “ Positivism and the Separation of Law and

Morals”, p.618.It is encouraging to note that the kind of enquiries

that Hart suggested are now been undertaken by serious scholars.

The findings thus far confirm what the defenders of the positivist

creed in legal theory have always insisted on. In an important recent

study , Paulson has shown , convincingly, that not only did legal

positivism not serve in any form to underwrite the atrocities

committed by officials and private individuals in Nazi Germany, but

that the German positivists were in fact among the most visible

opponents of Nazism; an ideological stance for which the legal

positivists were routinely victimized (Paulson, Stanley L. “Lon L.

Fuller; Gustav Radbruch, and the ‘Positivist’ Theses”, Law and

Philosophy, vol. 13, (1994). Pp. 313 – 359).

69. Soper, Philip. “Choosing a Legal Theory on Moral Grounds”, 44,

Social Philosophy and Policy, vol. 4, issue 1, (1987); pp. 33 – 48.

70. Okafor, F. U. “ Legal Positivism and African Legal Tradition”, p.

164.

71. Nwakeze, P. C. “ A Critique of Olufemi Taiwo’s Criticism of

Legal Positivism and African Legal Tradition”, International

Philosophical Quarterly, vol.xxvii, no.1, issue 105, (March 1987);

pp. 101 – 105.

Copyright 2001 Africa Resource Center, Inc.

Citation Format

Oladosu, Jare (2001). CHOOSING A LEGAL THEORY ON

CULTURAL GROUNDS: AN AFRICAN CASE FOR LEGAL

POSITIVISM. West Africa Review: 2, 2 [iuicode:

http://www.icaap.org/iuicode?101.2.2.2]

H.L.A. Hart, "Legal Positivism"

from Positivism and the Separation of Law and Morals

71 HARV. L. REV. 593, 594-606 (1958

SOURCED FROM:

http://www.kentlaw.edu/classes/rwarner/justice/syllabus/hpositiv.html

Editor's Note: H.L.A. Hart was Professor of Jurisprudence in Oxford University from

1952 until 1968. He lectured and taught on many occasions in the United States, and his

writings in legal philosophy have been extraordinarily influential.]

At the close of the eighteenth century and the beginning of the nineteenth the most

earnest thinkers in England about legal and social problems and the architects of great

reforms were the great Utilitarians. Two of them, Bentham and Austin, constantly

insisted on the need to distinguish, firmly and with the maximum of clarity, law as it is

from law as it ought to be. This theme haunts their work, and they condemned the

natural-law thinkers precisely because they had blurred this apparently simple but vital

distinction. By contrast, at the present time in this country and to a lesser extent in

England, this separation between law and morals is held to be superficial and wrong.

Some critics have thought that it blinds men to the true nature of law and its roots in

social life.(4) Others have thought it not only intellectually misleading but corrupting in

practice, at its worst apt to weaken resistance to state tyranny or absolutism,(5) and at

[23]its best apt to bring law into disrespect. The nonpejorative name "Legal Positivism,"

like most terms which are used as missiles in intellectual battles, has come to stand for a

baffling multitude of different sins. One of them is the sin, real or alleged, of insisting, as

Austin and Bentham did, on the separation of law as it is and law as it ought to be.

How then has this reversal of the wheel come about? What are the theoretical errors in

this distinction? Have the practical consequences of stressing the distinction as Bentham

and Austin did been bad? Should we now reject it or keep it? In considering these

questions we should recall the social philosophy which went along with the Utilitarians'

insistence on this distinction. They stood firmly but on their own utilitarian ground for all

the principles of liberalism in law and government. No one has ever combined, with such

even-minded sanity as the Utilitarians, the passion for reform with respect for law

together with a due recognition of the need to control the abuse of power even when

power is in the hands of reformers. One by one in Bentham's works you can identify the

elements of the Rechtstaat and all the principles for the defense of which the terminology

of natural law has in our day been revived. Here are liberty of speech, and of press, the

right of association, the need that laws should be published and made widely known

before they are enforced, the need to control administrative agencies, the insistence that

there should be no criminal liability without fault, and the importance of the principle of

legality, nulla poena sine lege.(*) Some, I know, find the political and moral insight of

the Utilitarians a very simple one, but we should not mistake this simplicity for

superficiality nor forget how favorably their simplicities compare with the profundities of

other thinkers. Take only one example: Bentham on slavery. He says the question at issue

is not whether those who are held as slaves can reason, but simply whether they suffer.

(11) Does this not compare well with the discussion of the question in terms of whether

or not there are some men whom Nature has fitted only to be the living instruments of

others? We owe it to Bentham more than anyone else that we have stopped discussing

this and similar questions of social policy in that form.

So Bentham and Austin were not dry analysts fiddling with verbal distinctions while

cities burned, but were the vanguard of a movement which laboured with passionate

intensity and much success to bring about a better society and better laws. Why then did

they insist on the separation of law as it is and law as it ought to be? What did they mean?

Let us first see what they said. Austin formulated the doctrine:

The existence of law is one thing; its merit or demerit is another. Whether it be or be not

is one enquiry; whether it be or be not conformable to an assumed standard, is a different

enquiry. A law, which actually exists, is a law, though we happen to dislike it, or though

it vary from the text, by which we regulate our approbation and disapprobation. This

truth, when formally announced as an abstract proposition, is so simple and glaring that it

seems idle to insist upon it. But simple and glaring as it is, when enunciated in abstract

expressions, the enumeration of the instances in which it has been forgotten would fill a

volume.

[24]

Sir William Blackstone, for example, says in his "Commentaries," that the laws of God

are superior in obligation to all other laws; that no human laws should be suffered to

contradict them; that human laws are of no validity if contrary to them; and that all valid

laws derive their force from that Divine original.

Now, he may mean that all human laws ought to conform to the Divine laws. If this be

his meaning, I assent to it without hesitation....Perhaps, again, he means that human

lawgivers are themselves obliged by the Divine laws to fashion the laws which they

impose by that ultimate standard, because if they do not, God will punish then. To this

also I entirely assent....

But the meaning of this passage of Blackstone, if it has a meaning, seems rather to be

this: that no human law which conflicts with the Divine law is obligatory or binding; in

other words, that no human law which conflicts with the Divine law is a law....(12)

Austin's protest against blurring the distinction between what law is and what it ought to

be is quite general: it is a mistake, whatever our standard of what ought to be, whatever

"the text by which we regulate our approbation or disapprobation." His examples,

however, are always a confusion between law as it is and law as morality would require it

to be. For him, it must be remembered, the fundamental principles of morality were God's

commands, to which utility was an "index": besides this there was the actual accepted

morality of a social group or "positive" morality.

Bentham insisted on this distinction without characterizing morality by reference to God

but only, of course, by reference to the principles of utility. Both thinkers' prime reason

for this insistence was to enable men to see steadily the precise issues posed by the

existence of morally bad laws, and to understand the specific character of the authority of

a legal order. Bentham's general recipe for life under the government of laws was simple:

it was "to obey punctually; to censure freely."(13) But Bentham was especially aware, as

an anxious spectator of the French revolution, that this was not enough: the time might

come in any society when the law's commands were so evil that the question of resistance

had to be faced, and it was then essential that the issues at stake at this point should

neither be oversimplified nor obscured.(14) Yet, this was precisely what the confusion

between law and morals had done and Bentham found that the confusion had spread

symmetrically in two different directions. On the one hand Bentham had in mind the

anarchist who argues thus: "This ought not to be the law, therefore it is not and I am free

not merely to censure but to disregard it." On the other hand he thought of the reactionary

who argues: "This is the law, therefore it is [25]what it ought to be," and thus stifles

criticism at its birth. Both errors, Bentham thought, were to be found in Blackstone: there

was his incautious statement that human laws were invalid if contrary to the law of God,

(15) and "that spirit of obsequious quietism that seems constitutional in our Author"

which "will scarce ever let him recognise a difference" between what is and what ought

to be.(16) This indeed was for Bentham the occupational disease of lawyers: "[I]n the

eyes of lawyersnot to speak of their dupesthat is to say, as yet, the generality of non-

lawyersthe is and ought to be...were one and indivisible."(17) There are therefore two

dangers between which insistence on this distinction will help us to steer: the danger that

law and its authority may be dissolved in man's conceptions of what law ought to be and

the danger that the existing law may supplant morality as a final test of conduct and so

escape criticism.

In view of criticisms it is also important to distinguish several things that the Utilitarians

did not mean by insisting on their separation of law and morals. They certainly accepted

many of the things that might be called "the intersection of law and morals." First, they

never denied that, as a matter of historical fact, the development of legal systems had

been powerfully influenced by moral opinion, and, conversely, that moral standards had

been profoundly influenced by law, so that the content of many legal rules mirrored

moral rules or principles. It is not in fact always easy to trace this historical causal

connection, but Bentham was certainly ready to admit its existence; so too Austin spoke

of the "frequent coincidence"(18) of positive law and morality and attributed the

confusion of what law is with what law ought to be to this very fact.

Secondly, neither Bentham nor his followers denied that by explicit legal provisions

moral principles might at different points be brought into a legal system and form part of

its rules, or that courts might be legally bound to decide in accordance with what they

thought just or best. Bentham indeed recognized, as Austin did not, that even the supreme

legislative power might be subjected to legal restraints by a constitution(19) and would

not have denied that moral principles, like those of the fifth amendment, might form the

content of such legal constitutional restraints. Austin differed in thinking that restraints

on the supreme legislative power could not have the force of law, but would remain

merely political or moral checks;(20) but of course he would have recognized that a

statute, for example, might confer a delegated legislative power and restrict the area of its

exercise by reference to moral principles.

[26]

What both Bentham and Austin were anxious to assert were the following two simple

things: first, in the absence of an expressed constitutional or legal provision, it could not

follow from the mere fact that a rule violated standards of morality that it was not a rule

of law; and, conversely, it could not follow from the mere fact that a rule was morally

desirable that it was a rule of law.

The history of this simple doctrine in the nineteenth century is too long and too intricate

to trace here. Let me summarize it by saying that after it was propounded to the world by

Austin it dominated English jurisprudence and constitutes part of the framework of most

of those curiously English and perhaps unsatisfactory productionsthe omnibus surveys of

the whole field of jurisprudence. A succession of these were published after a full text of

Austin's lectures finally appeared in 1861. In each of them the utilitarian separation of

law and morals is treated as something that enables lawyers to attain a new clarity. Austin

was said by one of his English successors, Amos, "to have delivered the law from the

dead body of morality that still clung to it";(21) and even Maine, who was critical of

Austin at many points, did not question this part of his doctrine. In the United States men

like N. St. John Green,(22) Gray, and Holmes considered that insistence on this

distinction had enabled the understanding of law as a means of social control to get off to

a fruitful new start; they welcomed it both as self-evident and as illuminatingas a

revealing tautology. This distinction is, of course, one of the main themes of Holmes'

most famous essay "The Path of the Law,"(23) but the place it had in the estimation of

these American writers is best seen in what Gray wrote at the turn of the century in The

Nature and Sources of the Law. He said:

The great gain in its fundamental conceptions which Jurisprudence made during the last

century was the recognition of the truth that the Law of a State...is not an ideal, but

something which actually exists....[I]t is not that which ought to be, but that which is. To

fix this definitely in the Jurisprudence of the Common Law, is the feat that Austin

accomplished.(24)

II.

So much for the doctrine in the heyday of its success. Let us turn now to some of the

criticisms. * * *

There is, however, one major initial complexity by which criticism has been much

confused. We must remember that the Utilitarians combined with their insistence on the

separation of law and morals two other equally famous but dis-[27]tinct doctrines. One

was the important truth that a purely analytical study of legal concepts, a study of the

meaning of the distinctive vocabulary of the law, was as vital to our understanding of the

nature of law as historical or sociological studies, though of course it could not supplant

them. The other doctrine was the famous imperative theory of lawthat law is essentially a

command.

These three doctrines constitute the utilitarian tradition in jurisprudence; yet they are

distinct doctrines. It is possible to endorse the separation between law and morals and to

value analytical inquiries into the meaning of legal concepts and yet think it wrong to

conceive of law as essentially a command. One source of great confusion in the criticism

of the separation of law and morals was the belief that the falsity of any one of these three

doctrines in the utilitarian tradition showed the other two to be false; what was worse was

the failure to see that there were three quite separate doctrines in this tradition. The

indiscriminate use of the label "positivism" to designate ambiguously each of these three

separate doctrines (together with some others which the Utilitarians never professed) has

perhaps confused the issue more than any other single factor.(25) Some of the early

American critics of the Austinian doctrine were, however, admirably clear on just this

matter. Gray, for example, added at the end of the tribute to Austin, which I have already

quoted, the words, "He may have been wrong in treating the Law of the State as being the

command of the sovereign"(26) and he touched shrewdly on many points where the

command theory is defective. But other critics have been less clearheaded and have

thought that the inadequacies of the command theory which gradually came to light were

sufficient to demonstrate the falsity of the separation of law and morals.

This was a mistake, but a natural one. To see how natural it was we must look a little

more closely at the command idea. The famous theory that law is a command was a part

of a wider and more ambitious claim. Austin said that the notion of a command was "the

key to the sciences of jurisprudence and morals,"(27) and contemporary attempts to

elucidate moral judgments in terms of [28]"imperative" or "prescriptive" utterances echo

this ambitious claim. But the command theory, viewed as an effort to identify even the

quintessence of law, let alone the quintessence of morals, seems breathtaking in its

simplicity and quite inadequate. There is much, even in the simplest legal system, that is

distorted if presented as a command. Yet the Utilitarians thought that the essence of a

legal system could be conveyed if the notion of a command were supplemented by that of

a habit of obedience. The simple scheme was this: What is a command? It is simply an

expression by one person of the desire that another person should do or abstain from

some action, accompanied by a threat of punishment which is likely to follow

disobedience. Commands are laws if two conditions are satisfied: first, they must be

general; second, they must be commanded by what (as both Bentham and Austin

claimed) exists in every political society whatever its constitutional form, namely, a

person or a group of persons who are in receipt of habitual obedience from most of the

society but pay no such obedience to others. These persons are its sovereign. Thus law is

the command of the uncommanded commanders of societythe creation of the legally

untrammelled will of the sovereign who is by definition outside the law.

It is easy to see that this account of a legal system is threadbare. One can also see why it

might seem that its inadequacy is due to the omission of some essential connection with

morality. The situation which the simple trilogy of command, sanction, and sovereign

avails to describe, if you take these notions at all precisely, is like that of a gunman

saying to his victim, "Give me your money or your life." The only difference is that in the

case of a legal system the gunman says it to a large number of people who are

accustomed to the racket and habitually surrender to it. Law surely is not the gunman

situation writ large, and legal order is surely not to be thus simply identified with

compulsion.

This scheme, despite the points of obvious analogy between a statute and a command,

omits some of the most characteristic elements of law. Let me cite a few. It is wrong to

think of a legislature (and a fortiori an electorate) with a changing membership, as a

group of persons habitually obeyed: this simple idea is suited only to a monarch

sufficiently long-lived for a "habit" to grow up. Even if we waive this point, nothing

which legislators do makes law unless they comply with fundamental accepted rules

specifying the essential lawmaking procedures. This is true even in a system having a

simple unitary constitution like the British. These fundamental accepted rules specifying

what the legislature must do to legislate are not commands habitually obeyed, nor can

they be expressed as habits of obedience to persons. They lie at the root of a legal system,

and what is most missing in the utilitarian scheme is an analysis of what it is for a social

group and its officials to accept such rules. This notion, not that of a command as Austin

claimed, is the "key to the science of jurisprudence," or at least one of the keys.

Again, Austin, in the case of the democracy, looked past the legislators to the electorate

as "the sovereign" (or in England as part of it). He thought that in the United States the

mass of the electors to the state and federal legislatures were the sovereign whose

commands, given by their "agent" in the legislatures, were law. But on this footing the

whole notion of the sovereign outside the law being "habitually obeyed" by the "bulk" of

the population must go: for in this case the "bulk" obeys the bulk, that is, it obeys itself.

Plainly the general acceptance of the authority of a lawmaking procedure, irrespective of

the changing individuals [29]who operate it from time to time, can be only distorted by

an analysis in terms of mass habitual obedience to certain persons who are by definition

outside the law, just as the cognate but much simpler phenomenon of the general social

acceptance of a rule, say of taking off the hat when entering a church, would be distorted

if represented as habitual obedience by the mass to specific persons.

Other critics dimly sensed a further and more important defect in the command theory,

yet blurred the edge of an important criticism by assuming that the defect was due to the

failure to insist upon some important connection between law and morals. This more

radical defect is as follows. The picture that the command theory draws of life under law

is essentially a simple relationship of the commander to the commanded, of superior to

inferior, of top to bottom; the relationship is vertical between the commanders or authors

of the law conceived of as essentially outside the law and those who are commanded and

subject to the law. In this picture no place, or only an accidental or subordinate place, is

afforded for a distinction between types of legal rules which are in fact radically

different. Some laws require men to act in certain ways or to abstain from acting whether

they wish to or not. The criminal law consists largely of rules of this sort: like commands

they are simply "obeyed" or "disobeyed." But other legal rules are presented to society in

quite different ways and have quite different functions. They provide facilities more or

less elaborate for individuals to create structures of rights and duties for the conduct of

life within the coercive framework of the law. Such are the rules enabling individuals to

make contracts, wills, and trusts, and generally to mould their legal relations with others.

Such rules, unlike the criminal law, are not factors designed to obstruct wishes and

choices of an antisocial sort. On the contrary, these rules provide facilities for the

realization of wishes and choices. They do not say (like commands) "do this whether you

wish it or not," but rather "if you wish to do this, here is the way to do it." Under these

rules we exercise powers, make claims, and assert rights. These phrases mark off

characteristic features of laws that confer rights and powers; they are laws which are, so

to speak, put at the disposition of individuals in a way in which the criminal law is not.

Much ingenuity has gone into the task of "reducing" laws of this second sort to some

complex variant of laws of the first sort. The effort to show that laws conferring rights are

"really" only conditional stipulations of sanctions to be exacted from the person

ultimately under a legal duty characterizes much of Kelsen's work.(28) Yet to urge this is

really just to exhibit dogmatic determination to suppress one aspect of the legal system in

order to maintain the theory that stipulation of a sanction, like Austin's command,

represents the quintessence of law. One might as well urge that the rules of baseball were

"really" only complex conditional directions to the scorer and that this showed their real

or "essential" nature. * * *

* * * Rules that confer rights, though distinct from commands, need not be moral rules or

coincide with them. Rights, after all, exist under the rules of cere-[30]monies, games, and

in many other spheres regulated by rules which are irrelevant to the question of justice or

what the law ought to be. Nor need rules which confer rights be just or morally good

rules. The rights of a master over his slaves show us that. "Their merit or demerit," as

Austin termed it, depends on how rights are distributed in society and over whom or what

they are exercised. These critics indeed revealed the inadequacy of the simple notions of

command and habit for the analysis of law; at many points it is apparent that the social

acceptance of a rule or standard of authority (even if it is motivated only by fear or

superstition or rests on inertia) must be brought into the analysis and cannot itself be

reduced to the two simple terms. Yet nothing in this showed the utilitarian insistence on

the distinction between the existence of law and its "merits" to be wrong.

Notes

1. Hart's critique of the command theory of Austin, and the related theory of Hans

Kelsen, focuses on the functional character of a command and its relation to the notion of

a sovereign, rather than on the coercive power of the state that, according to the earlier

theorists, was a crucial part of what made such commands law and distinguished them

from other non-law directives. Why might the earlier positivists have cared so much

about defining law so as to emphasize its coercive character? Does the use of state

coercion raise special moral considerations? Does defining the law in terms of state

coercion serve to isolate those considerations? See Dale Nance, Legal Theory and the

Pivotal Role of the Concept of Coercion, 57 U. COLO. L. REV. 1 (1985).

2. If one concedes that the law as it is may diverge from law as it ought to be, then one

needs terminology for referring to each idea. When we say, "The law requires X," we are

ordinarily making a reference to the law "as it is." In these materials, we will generally

have this reference in mind when using the word "law" without more. Yet it is frequently

useful to refer to the other idea, the "law as it ought to be." The ancient Greek

philosopher Aristotle seems to have used the term "justice" for this idea, meaning that

aspect of morality (or what Aristotle would call virtue) which ought to be reflected in the

law. Yet it is arguable that, all things considered, the law should not always satisfy or

enforce the demands of justice (Can you think of examples?), so the identification seems

imprecise. The eighteenth century German philosopher Immanuel Kant seems to have

used the term "right" to refer to that part of morality which should be reflected in the law.

But similar problems arise, since one can imagine moral rights that ought not to be made

legal rights. (Again, can you think of examples?) In order to avoid linguistic disputes,

perhaps we should be content with a term like "ideal law" to refer to the law as it ought to

be, recognizing that what is ideal may not be the same for all societies at all times;

indeed, there may be no unique ideal law for any given society at any given time. In

subsequent Parts of these materials, we will examine some of what can be said in

characterizing ideal law, at least in American society.

3. Professor Hart clearly distinguishes between utilitarianism and legal positivism, even

though these views were both held by people like Austin and Bentham. Whereas

positivism is a theory about the nature of law, that is a legal theory, utilitarianism is one

form of moral theory. As Hart notes, utilitarian arguments can be used, and have been

used, to criticize existing law, to indicate in what respects extant law differs from the

ideal. But utilitarianism is not [31]the only such form of moral theory. In particular, it has

been challenged as giving too little weight to the notion of individual rights.

To generalize, three types of moral argument can be identified. First, there are

consequentialist (also called teleological) modes of argument, such as utilitarianism, in

which moral duty is derived entirely from the goodness or badness of the consequences

of action. Second, there are nonconsequentialist (also called deontological) modes, such

as some arguments from "natural rights," in which moral duty is derived in some way that

does not depend on the appraisal of the material consequences of accepting the argument,

but rather on the inherent rightness or wrongness of the conduct in question. ("One ought

to honor one's promise, even if that doesn't produce the best possible consequences.")

Much modern philosophical debate has addressed the question of the priority of these two

modes of moral thought. Especially prominent have been hypotheticals specifically

designed to generate a conflict in the prescriptions that may be derived from utilitarian

and rights-based approaches. They are usually some variation on the theme of what to do

when you are faced with a situation in which intentionally killing an innocent person will

result in the saving of many others. For example:

Suppose you are the driver of a trolley. The trolley rounds a bend, and there come into

view ahead five track workmen, who have been repairing the track. The track goes

through a bit of a valley at that point, and the sides are steep, so you must stop the trolley

if you are to avoid running the five men down. You step on the brakes, but alas they don't

work. Now you suddenly see a spur of track leading off to the right. You can turn the

trolley onto it, and thus save the five men on the straight track ahead.

Unfortunately,...there is one track workman on that spur of track. He can no more get off

the track in time than the five can, so you will kill him if you turn the trolley onto him. Is

it morally permissible [or required] for you to turn the trolley?

Judith Jarvis Thomson, The Trolley Problem, 94 YALE L.J. 1395 (1985).

Finally, there are what may be called "mixed" or "hybrid" modes of argument which try

to combine the strengths of both consequentialist and nonconsequentialist analyses,

allowing a place for each. For example, it has been suggested that the different modes of

argument can be seen as different but complementary ways of checking and testing our

moral intuitions against historically observed practices and conventions? See Randy

Barnett, Foreword: Of Chickens and EggsThe Compatibility of Moral Rights and

Consequentialist Analyses, 12 HARV. J.L. & PUB. POL'Y 611 (1989).

Which mode of argument do you find most acceptable, the consequentialist, the

nonconsequentialist, or a mixture? It is all too easy to opt for the mixed mode; bear in

mind that many philosophers have found consequentialism and deontology to be

fundamentally incompatible. You will have many occasions to think about these issues in

the following materials.

4. What does it mean for a judge to accept positivism? How might a judge reason about

his or her responsibilities in deciding a case if the judge accepts positivism? How does

Justice Story's opinion in Prigg illustrate the issues? Did Story employ any moral theory

in deciding the case? If so, was it utilitarian, or deontological, or mixed?

HANS KELSEN

The Pure Theory of Law

SOURCED FROM: http://plato.stanford.edu/entries/legal-positivism/

The idea of a Pure Theory of Law was propounded by the formidable Austrian jurist and

philosopher Hans Kelsen (1881-1973). (See bibliographical note) Kelsen began his long

career as a legal theorist at the beginning of the 20th century. The traditional legal

philosophies at the time, were, Kelsen claimed, hopelessly contaminated with political

ideology and moralizing on the one hand, or with attempts to reduce the law to natural or

social sciences, on the other hand. He found both of these reductionist endeavors

seriously flawed. Instead, Kelsen suggested a ‘pure’ theory of law which would avoid

reductionism of any kind. The jurisprudence Kelsen propounded “characterizes itself as a

‘pure’ theory of law because it aims at cognition focused on the law alone” and this

purity serves as its “basic methodological principle.” [PT1, 7] Note that this anti-

reductionism is both methodological and substantive. Kelsen firmly believed that if the

law is to be considered as a unique normative practice, methodological reductionism

should be avoided entirely. But this approach is not only a matter of method.

Reductionism should be avoided because the law is a unique phenomenon, quite separate

from morality and nature.

1. The Basic Norm

The law, according to Kelsen, is a system of norms. Norms are ‘ought’ statements,

prescribing certain modes of conduct. Unlike moral norms, however, Kelsen maintained

that legal norms are created by acts of will. They are products of deliberate human action.

For instance, some people gather in a hall, speak, raise their hands, count them, and

promulgate a string of words. These are actions and events taking place at a specific time

and space. To say that what we have described here is the enactment of a law, is to

interpret these actions and events by ascribing a normative significance to them. Kelsen,

however, firmly believed in Hume's distinction between ‘is’ and ‘ought’, and in the

impossibility of deriving ‘ought’ conclusions from factual premises alone. Thus Kelsen

believed that the law, which is comprised of norms or ‘ought’ statements, cannot be

reduced to those natural actions and events which give rise to it. The gathering, speaking

and raising of hands, in itself, is not the law; legal norms are essentially ‘ought’

statements, and as such, they cannot be deduced from factual premises alone.

How is it possible, then, to ascribe an ‘ought’ to those actions and events which purport

to create legal norms? Kelsen's reply is enchantingly simple: we ascribe a legal ought to

such norm-creating acts by, ultimately, presupposing it. Since ‘ought’ cannot be derived

from ‘is’, and since legal norms are essentially ‘ought’ statements, there must be some

kind of an ‘ought’ presupposition at the background, rendering the normativity of law

intelligible.

As opposed to moral norms which, according to Kelsen, are typically deduced from other

moral norms by syllogism (e.g., from general principles to more particular ones), legal

norms are always created by acts of will. Such an act can only create law, however, if it is

in accord with another ‘higher’ legal norm that authorizes its creation in that way. And

the ‘higher’ legal norm, in turn, is valid only if it has been created in accordance with yet

another, even ‘higher’ legal norm that authorizes its enactment. Ultimately, Kelsen

argued, one must reach a point where the authorizing norm is no longer the product of an

act of will, but is simply presupposed, and this is, what Kelsen called, the Basic Norm.

More concretely, Kelsen maintained that in tracing back such a ‘chain of validity’ (to use

Raz's terminology), one would reach a point where a ‘first’ historical constitution is the

basic authorizing norm of the rest of the legal system, and the Basic Norm is the

presupposition of the validity of that first constitution.

Kelsen attributed two main explanatory functions to the Basic Norm: it explains both the

unity of a legal system and the reasons for the legal validity of norms. [PT2, 193]

Apparently, Kelsen believed that these two ideas are very closely related, since he seems

to have maintained that the legal validity of a norm and its membership in a given legal

system are basically the same thing. Furthermore, Kelsen argued that every two norms

which derive their validity from a single Basic Norm necessarily belong to the same legal

system and, vice versa, so that all legal norms of a given legal system derive their validity

from one Basic Norm. It is widely acknowledged that Kelsen erred in these assumptions

about the unity of legal systems. Generally speaking, in spite of the considerable interest

in Kelsen's theory of legal systems and their unity that derives from a single Basic Norm,

critics have shown that this aspect of Kelsen's theory is refutable. Although it is certainly

true that the law always comes in systems, the unity of the system and its separation from

other systems is almost never as neat as Kelsen assumed. [see Raz, ‘Kelsen's Theory of

the Basic Norm’.]

However, the role of the Basic Norm in explaining the normativity of law is crucially

important. The presupposition of the Basic Norm as the condition of validity of legal

norms marks Kelsen's theory as ‘pure’, and distinguishes it from other theories in the

Legal Positivist tradition. Contemporary legal positivists have traditionally accounted for

the normativity of law in terms of social facts: people tend to perceive of the legal norms

in their community as valid because, ultimately, there are certain social conventions, or

Rules of Recognition in H.L.A. Hart's terminology, that determine who is authorized to

make law and how law making is to be done. But this is precisely the kind of

reductionism that the Pure Theory strives to deny. Kelsen was convinced that any attempt

to ground the law's normativity, namely, its ‘ought’ aspect, is doomed to failure if it is

only based on facts, whether those facts are natural or social. Once again, to account for

an ‘ought’ conclusion, one needs some ‘ought’ in the premises. Therefore, Kelsen

thought, the normativity of law, as a genuine ‘ought’, must, ultimately, be presupposed.

Common wisdom has it that in this kind of reasoning Kelsen self-consciously employs a

Kantian Transcendental argument to establish the necessary presupposition of the Basic

Norm. Thus the argument takes the following form:

1. P.

2. P is possible only if Q.

3. Therefore, Q.

In Kelsen's case, P stands for the fact that legal norms are ‘ought’ statements, and Q is

the presupposition of the Basic Norm. [PT2, 202]. Furthermore, commentators have

pointed out that just as Kant's epistemology is an attempt to find the middle way between

dogmatic Rationalism and skeptical Empiricism, Kelsen's pure theory of law is an

attempt to find a middle way between Natural Law's dogmatism, and Positivism's

reduction of law to the social sciences. [See Paulson, Introduction] But it is worth

keeping in mind that Kelsen's argument about the Basic Norm is an explicitly shallow

form of Kantian epistemology. The Kantian categories and modes of perception are not

optional; they form a deep, universal, and necessary feature of rational cognition. One

should recall that it is Humean skepticism that Kant strove to answer. Kelsen, however,

remains Humean through and through, Kantian influences notwithstanding. First, Kelsen

was very skeptical about any objectivist moral theory, Kant's included. [PT1, 16; PT2,

63-65] Second, Kelsen does not claim that the presupposition of the Basic Norm is a

necessary feature, or category, of rational cognition. The Basic Norm is an ‘ought’

presumption and, as such, optional. It is not necessary for anyone to accept the Basic

Norm. The Basic Norm is necessarily presupposed only by those who accept the ‘ought’,

namely, the normativity, of the law. Likewise, those who believe in the normativity of a

religious order must presuppose a Basic Norm that ‘one ought to obey God's commands’.

But in both cases, there is nothing in the nature of things which would compel any

particular person to adopt such a normative perspective. Kelsen's argument does not rule

out atheism or anarchism. However, even the anarchist, Kelsen maintained, must

presuppose the Basic Norm if she is to account for the normativity of law. But again, this

presupposition is only an intellectual tool, not a normative commitment, and as the latter,

it is entirely optional.

2. The Normativity of Law

This analogy between law and religion, on which Kelsen often dwells, is more limited

than it first appears, however. The normativity of religion, like that of morality, does not

depend on the actual obedience of their respective subjects. For those, for example, who

presuppose the basic norm of Christianity, the latter would be valid even if there are no

other Christians around. But this, as Kelsen explicitly admits, is not the case with law.

The validity of a legal system partly, but crucially, depends on its actual practice: “A

legal order is regarded as valid, if its norms are by and large effective (that is, actually

applied and obeyed).” [PT2, 212] Furthermore, the actual content of the Basic Norm

depends on its ‘effectiveness’. As Kelsen repeatedly argued, a successful revolution

brings about a radical change in the content of the Basic Norm. Suppose, for example,

that in a given legal system the Basic Norm is that the constitution enacted by Rex One is

binding. At a certain point, a coup d'etat takes place and a republican government is

successfully installed. At this point, Kelsen admits, “one presupposes a new basic norm,

no longer the basic norm delegating law making authority to the monarch, but a basic

norm delegating authority to the revolutionary government.” [PT1, 59].

This is very problematic, however, since it raises the suspicion that Kelsen has violated

his own categorical injunction against deriving ‘ought’ from ‘is’. Kelsen was not unaware

of the difficulty. In the first edition of the Pure Theory of Law, he suggests the solution to

this problem by introducing international law as the source of validity for changes in the

basic norms of municipal legal systems. It follows from the basic norm of international

law, Kelsen maintains, that state sovereignty is determined by successful control over a

given territory. Therefore, the changes in the basic norm which stem from successful

revolutions can be accounted for in legalistic terms, relying on the dogmas of

international law. [PT1, 61-62] The price Kelsen had to pay for this solution, however, is

rather high: he was compelled to claim that all municipal legal systems derive their

validity from international law, and this entails that there is only one Basic Norm in the

entire world, namely, the Basic Norm of public international law. Although this solution

is repeated in the second edition of the Pure Theory of Law [214-215], Kelsen presented

it there with much more hesitation, perhaps just as an option which would make sense. It

is not quite clear whether Kelsen really adhered to it. The hesitation is understandable;

after all, the idea that municipal legal systems derive their legal validity from

international law would strike most jurists and legal historians as rather fanciful and

anachronistic. (We should recall that the development of international law is a relatively

recent phenomenon in the history of law.)

So we are back to the question of how ‘pure’ Kelsen's theory really is, if it is conceded

that the content of the Basic Norm is basically determined by social practice. The answer

depends on how we construe the explanatory function of the Basic Norm: Neither Kelsen

nor his critics seem to have been careful to distinguish between the role of the Basic

Norm in answering the question of how we identify the law as such, and in answering the

question of law's normativity. An answer to the question of what counts as law or as law

creating acts in a given community cannot be detached from practice, namely, social

conventions. The social conventions prevalent in any given community determine,

ultimately, what counts as law in that community. (See the Nature of Law) On the other

hand, Kelsen is right to insist that social conventions, by themselves, could not explain

the ‘ought’ which is inherent in law as a normative system. Such an ‘ought’ cannot be

constituted by the conventions. Social conventions can only determine what the practice

is, and how one would go about in engaging in it; conventions cannot determine that one

ought to engage in the practice. [see Marmor, Positive Law & Objective Values, 25-33]

Consider, for example, the analogy of a structured game, like chess. What chess is, and

how one should play the game, are determined by its constitutive rules or conventions.

Those rules which constitute the game of chess, however, cannot provide anyone with a

complete reason to play the game. The normativity of the game is conditional; it depends

on a prior reason, or commitment, to play the game. We cannot say, for example, that one

“ought to move the bishop diagonally” unless we assume that the agent wants to play

chess. The fact that the rules of chess require the players to move the bishop diagonally is

not, in itself, a reason for doing so, unless, again, it is assumed that it is chess that one

wants to play. Now, it is precisely this kind of assumption that the Basic Norm is there to

capture. Just as the normativity of chess could not be explained without presupposing, as

it were, that the players want to engage in that particular game, so the normativity of law

must be premised on the Basic Norm.

Thus, it would seem that Kelsen's anti-reductionism is only partly successful. The

explanatory role of the Basic Norm must be confined to the normativity of law. But in

order to explain what counts as law and how law is identified and distinguished from

other normative practices, the Basic Norms is not sufficient; one must refer to the social

conventions which prevail in the relevant community.

None of this means, however, that Kelsen's account of the normativity of law is

unproblematic. There are two main problems that may be worth exploring. First, Kelsen

has never made it quite clear whether he maintains that the ‘ought’ which is presupposed

in the legal domain is the same kind of ‘ought’ which would be characteristic of morality

or, indeed, any other normative domain. Kelsen seems to have faced a dilemma here

which would not be easy to resolve. On the one hand, he wanted to avoid the mistake

which he attributed to the Natural Law tradition of reducing the normativity of law to

moral ‘ought’. Kelsen has repeatedly argued that Natural Law, which would reduce the

legal ‘ought’ to moral ‘ought’ fails because it can only achieve an account of the

normativity of law at the expense of missing its target: If the only notion of validity is a

moral one, we are left with no room for the concept of legal validity. Natural Law, as

Kelsen understood it, does not make any allowance for the possibility that a norm is

legally valid but morally wrong. Would this imply, then, that the kind of ‘ought’ which is

presupposed by the Basic Norm is somehow different from moral ‘ought’? And what

would the difference consist in? One should bear in mind that Kelsen thought that the

normativity of morality, like that of religion or any other normative domain, is also

‘presupposed’. So here is the dilemma: either Kelsen maintains that the legal ‘ought’ and

moral ‘ought’ are two different kinds of ‘ought’ (which, I think, is the stance he adopted

in his earlier writings), but then it would be very difficult to explain what the difference

consists in, given that both kinds of ‘ought’ are simply presupposed; or else, Kelsen

would have to maintain that the moral and legal ‘ought’ are basically the same, in which

case, he would be hard pressed to explain how he avoids the same kind of mistake which

he attributed to the Natural Law tradition.

Secondly, and perhaps this is part of the reason for the former confusion, Kelsen's

account of the normativity of law is seriously impeded by his Humean skepticism about

the objectivity of morality, justice, or any other evaluative scheme. The view one gets,

especially from Kelsen's later writings, is that there are countless potential normative

systems, like morality, law, religion, etc., that one can either accept or not just by

presupposing their respective Basic Norms. But without any rational or objective

grounding of such evaluative systems, the choice of any Basic Norm remains rather

whimsical, devoid of any reason. It is difficult to understand how normativity can really

be explained on the basis of such rationally groundless choices.

Bibliography

Note

Kelsen's academic publications span over almost seven decades in which he published

dozens of books and hundreds of articles. Only about a third of this vast literature has

been translated to English. Kelsen's two most important books on the pure theory of law

are the first edition of his Reine Rechtslehre, published in 1934, and recently translated to

English under the title Introduction to the Problems of Legal Theory, (Paulson and

Paulson trans.) Oxford 2002, and the second edition which Kelsen published in 1960,

Pure Theory of Law, (Knight trans.), UC Berkeley press, 1967. The second edition is a

considerably extended version of the first edition. These books are abbreviated in the test

as PT1 and PT2 respectively. In addition, most of the themes in these two books also

appear in Kelsen's General Theory of Law and State, (1945), (Wedberg trans.), Russell &

Russell, NY 1961 and What is Justice?, UC Berkeley Press, 1957. Other relevant

publications in English include ‘The Pure Theory of Law and Analytical Jurisprudence’,

55 Harvard L. Rev. (1941), 44, ‘Professor Stone and the Pure Theory of Law: A Reply’,

(1965), 17 Stanford L. Rev. 1128, and ‘On the Pure Theory of Law’ (1966), 1 Israel L.

Rev. 1.

For a complete list of Kelsen's publications which have appeared in English see the

Appendix to H. Kelsen, General Theory of Norms (M. Hartney trans.) Oxford, 1991, pp.

440-454.

Other Sources

Harris, J.W., Legal Philosophies, Butterworths, 1980, chapter 6.

Hart, H.L.A., The Concept of Law, Oxford 1961, chapter 3.

-----, ‘Kelsen's Doctrine of the Unity of Law’, in H.E. Kiefer and M.K. Munitz

(eds), Ethics and Social Justice, NY, 1970.

Marmor, A., Objective Law and Positive Values, Oxford 2001, chapter 2.

Paulson, S., Introduction to Kelsen's Introduction to the Problems of Legal

Theory, Clarendon 2002, xvii.

Raz, J., The Concept of a Legal System, (2nd ed.) Oxford 1980.

-----, ‘Kelsen's Theory of the Basic Norm’ in Raz, The Authority of Law, Oxford

1979, 122.

Copyright © 2002

Andrei Marmor

amarmor@law.us

c.edu

JOHN AUSTIN

SOURCED FORM: http://plato.stanford.edu/entries/austin-john/

John Austin is considered by many to be the creator of the school of analytical

jurisprudence, as well as, more specifically, the approach to law known as "legal

positivism." Austin's particular command theory of law has been subject to pervasive

criticism, but its simplicity gives it an evocative power that cannot be ignored.

1. Life

John Austin's life (1790-1859) was filled with disappointment and unfulfilled

expectations. His influential friends (who included Jeremy Bentham, James Mill, John

Stuart Mill and Thomas Carlyle) were impressed by his intellect and his conversation,

and predicted he would go far. However, in public dealings, Austin's nervous disposition,

shaky health, tendency towards melancholy, and perfectionism combined to end quickly

careers at the Bar, in academia, and in government service. (Hamburger 1985, 1992)

Austin was born to a Suffolk merchant family, and served briefly in the military before

beginning his legal training. He was called to the Bar in 1818, but he took on few cases,

and quit the practice of law in 1825. Austin shortly thereafter obtained an appointment to

the first Chair of Jurisprudence at the recently established University College London. He

prepared for his lectures by study in Bonn, and evidence of the influence of continental

legal and political ideas can be found scattered throughout Austin's writings.

Lectures from the course he gave were eventually published in 1832 as "Province of

Jurisprudence Determined." (Austin 1995) However, attendance at his courses was small

and getting smaller, and he gave his last lecture in 1833. A short-lived effort to give a

similar course of lectures at the Inner Temple met the same result. Austin resigned his

University College London Chair in 1835. He later briefly served on the Criminal Law

Commission, and as a Royal Commissioner to Malta, but he never found either success or

contentment. He did some occasional writing on political themes, but his plans for longer

works never came to anything during his lifetime, due apparently to some combination of

perfectionism, melancholy, and writer's block. His changing views on moral, political,

and legal matters also apparently hindered both the publication of a revised edition of

"Province of Jurisprudence Determined," and the completion of a longer project started

when his views had been different.

Much of whatever success Austin found during his life, and after, must be attributed to

his wife Sarah, for her tireless support, both moral and economic (during the later years

of their marriage, they lived primarily off her efforts as a translator and reviewer), and

her work to publicize his writings after his death (including the publication of a more

complete set of his Lectures on Jurisprudence) (Austin 1873).

While Austin's work was influential in the decades after his death, its impact seemed to

subside substantially by the beginning of the twentieth century. A significant portion of

Austin's current reputation derives from H.L.A. Hart's use (1958, 1994) of Austin's theory

as a foil for the explanation of Hart's own, more nuanced approach to legal theory. In

recent decades some theorists have revisited Austin's work, offering new

characterizations and defenses of his ideas (e.g., Morison 1982, Rumble 1985).

2. Analytical Jurisprudence and Legal Positivism

Early in his career, Austin came under the influence of Jeremy Bentham, and Bentham's

utilitarianism is evident (though with some differences) in the work for which Austin is

best known today. On Austin's reading of utilitarianism, Divine will is equated with

Utilitarian principles: "utility is the index to the law of God ... . To make a promise which

general utility condemns, is an offense against the law of God" (Austin 1873: Lecture VI,

p. 307; see also Austin 1995: Lecture II, p. 41). This particular reading of utilitarianism,

however, has had little long-term influence, though it seems to have been the part of his

work that received the most attention in his own day (Rumble 1995: p. xx). Austin early

on shared many of the ideas of the Benthamite philosophical radicals; he was "a strong

proponent of modern political economy, a believer in Hartleian metaphysics, and a most

enthusiastic Malthusian." (Rumble 1985: pp. 16-17)

Austin's importance to legal theory lies elsewhere -- his theorizing about law was novel at

three different levels of generality. First, he was arguably the first writer to approach the

theory of law analytically (as contrasted with approaches to law more grounded in history

or sociology, or arguments about law which were secondary to more general moral and

political theories). Analytical jurisprudence emphasizes the analysis of key concepts,

including "law," "(legal) right," "(legal) duty," and "legal validity." Though analytical

jurisprudence has been challenged by some in recent years (e.g., Leiter 1998), it remains

the dominant approach to discussing the nature of law. Analytical jurisprudence, an

approach to theorizing about law, has sometimes been confused with what the American

legal realists (an influential group of theorists prominent in the early decades of the 20th

century) called "legal formalism" -- a narrow approach to how judges should decide

cases. The American legal realists saw Austin in particular, and analytical jurisprudence

in general, as their opponents in their critical and reform-minded efforts. In this, the

realists were simply mistaken; unfortunately, it is a mistake that can still be found in

some contemporary legal commentators.

(There is some evidence that Austin's views later in his life may have moved away from

analytical jurisprudence towards something more approximating the historical

jurisprudence school. (Hamburger 1985: pp. 178-91))

Second, within analytical jurisprudence, Austin was the first systematic exponent of a

view of law known as "legal positivism." Most of the important theoretical work on law

prior to Austin had treated jurisprudence as though it were merely a branch of moral

theory or political theory: asking how should the state govern? (and when were

governments legitimate?), and under what circumstances did citizens have an obligation

to obey the law? Austin specifically, and legal positivism generally, offered a quite

different approach to law: as an object of "scientific" study, dominated neither by

prescription nor by moral evaluation. Subtle jurisprudential questions aside, Austin's

efforts to treat law systematically gained popularity in the late 19th century among

English lawyers who wanted to approach their profession, and their professional training,

in a more serious and rigorous manner (Cotterrell 1989: pp. 79-81).

Legal positivism asserts (or assumes) that it is both possible and valuable to have a

morally neutral descriptive (or "conceptual" -- though this is not a term Austin used)

theory of law. (The main competitor to legal positivism, in Austin's day as in our own,

has been natural law theory.) Legal positivism does not deny that moral and political

criticism of legal systems are important, but insists that a descriptive or conceptual

approach to law is valuable, both on its own terms and as a necessary prelude to criticism.

There were theorists prior to Austin who arguably offered views similar to legal

positivism or who at least foreshadowed legal positivism in some way. Among these

would be Thomas Hobbes, with his amoral view of laws as the product of Leviathan

(Hobbes 1996); David Hume, with his argument for separating "is" and "ought" (which

worked as a sharp criticism for some forms of natural law theory, which purported to

derive moral truths from statements about human nature) (Hume 2000); and Jeremy

Bentham, with his attacks on judicial lawmaking and on those, like Sir William

Blackstone, who justified such lawmaking with natural-law-like justifications (Bentham

1970, 1996).

Austin's famous formulation of what could be called the "dogma" of legal positivism is as

follows:

The existence of law is one thing; its merit or demerit is another. Whether

it be or be not is one enquiry; whether it be or be not conformable to an

assumed standard, is a different enquiry. A law, which actually exists, is a

law, though we happen to dislike it, or though it vary from the text, by

which we regulate our approbation and disapprobation. (Austin 1995:

Lecture V, p. 157)

Third, Austin's version of legal positivism, a "command theory of law" (which will be

detailed in the next section) has also been influential. Austin's theory had similarities with

the views developed by Jeremy Bentham, whose theory could also be characterized as a

"command theory." However, Austen's work was more influential in this area, because

Bentham's jurisprudential writings did not appear in an even-roughly systematic form

until well after Austin's work had already been published. (Bentham 1970, 1996;

Cotterrell 1989: pp. 52-53)

3. Austin's Views

Austin's basic approach was to ascertain what can be said generally, but still with interest,

about all laws. Austin's analysis can be seen as either a paradigm of, or a caricature of,

analytical philosophy, in that his discussions are dryly full of distinctions, but are thin in

argument. The modern reader is forced to fill in much of the meta-theoretical,

justificatory work, as it cannot be found in the text. Where Austin does articulate his

methodology and objective, it is a fairly traditional one: he "endeavored to resolve a law

(taken with the largest signification which can be given to that term properly) into the

necessary and essential elements of which it is composed." (Austin 1995: Lecture V, p.

117)

As to what is the core nature of law, Austin's answer is that laws ("properly so called")

are commands of a sovereign. He clarifies the concept of positive law (that is, man-made

law) by analyzing the constituent concepts of his definition, and by distinguishing law

from other concepts that are similar:

"Commands" involve an expressed wish that something be done, and "an evil" to

be imposed if that wish is not complied with.

Rules are general commands (applying generally to a class), as contrasted with

specific or individual commands ("drink wine today" or "John Major must drink

wine").

Positive law consisted of those commands laid down by a sovereign (or its

agents), to be contrasted to other law- givers, like God's general commands, and

the general commands of an employer.

The "sovereign" was defined as a person (or collection of persons) who receives

habitual obedience from the bulk of the population, but who does not habitually

obey any other (earthly) person or institution. Austin thought that all independent

political societies, by their nature, have a sovereign.

Positive law should also be contrasted with "laws by a close analogy" (which

includes positive morality, laws of honor, international law, customary law, and

constitutional law) and "laws by remote analogy" (e.g., the laws of physics).

(Austin 1995: Lecture I).

Austin also wanted to include within "the province of jurisprudence" certain

"exceptions," items which did not fit his criteria but should nonetheless be studied with

other "laws properly so called": repealing laws, declarative laws, and "imperfect laws" -

laws prescribing action but without sanctions (a concept Austin ascribes to "Roman [law]

jurists"). (Austin 1995: Lecture I, p. 36)

In the criteria set out above, Austin succeeded in delimiting law and legal rules from

religion, morality, convention, and custom. However, also excluded from "the province

of jurisprudence" were customary law (except to the extent that the sovereign had,

directly or indirectly, adopted such customs as law), public international law, and parts of

constitutional law. (These exclusions alone would make Austin's theory problematic for

most modern readers.)

Within Austin's approach, whether something is or is not "law" depends on which people

have done what: the question turns on an empirical investigation, and it is a matter mostly

of power, not of morality. Of course, Austin is not arguing that law should not be moral,

nor is he implying that it rarely is. Austin is not playing the nihilist or the skeptic. He is

merely pointing out that there is much that is law that is not moral, and what makes

something law does nothing to guarantee its moral value. "The most pernicious laws, and

therefore those which are most opposed to the will of God, have been and are continually

enforced as laws by judicial tribunals." (Austin 1995: Lecture V, p. 158).

In contrast to his mentor Bentham, Austin had no objection to judicial lawmaking, which

Austin called "highly beneficial and even absolutely necessary." (Austin, 1995: Lecture

V, p. 163) Nor did Austin find any difficulty incorporating judicial lawmaking into his

command theory: he characterized that form of lawmaking, along with the occasional

legal/judicial recognition of customs by judges, as the "tacit commands" of the sovereign,

the sovereign's affirming the "orders" by its acquiescence. (Austin 1995: Lecture 1, pp.

35-36).

4. Criticisms

As many readers come to Austin's theory mostly through its criticism by other writers

(prominently, that of H.L.A. Hart), the weaknesses of the theory are almost better known

than the theory itself:

In many societies, it is hard to identify a "sovereign" in Austin's sense of the word

(a difficulty Austin himself experienced, when he was forced to describe the

British "sovereign" awkwardly as the combination of the King, the House of

Lords, and all the electors of the House of Commons). Additionally, a focus on a

"sovereign" makes it difficult to explain the continuity of legal systems: a new

ruler will not come in with the kind of "habit of obedience" that Austen sets as a

criterion for a system's rule-maker. However, one could argue (see Harris 1977)

that the sovereign is best understood as a constructive metaphor: that law should

be viewed as if it reflected the view of a single will (a similar view, that law

should be interpreted as if it derived from a single will, can be found in Ronald

Dworkin's work (1986)).

A "command" model seems to fit some aspects of law poorly (e.g., rules which

grant powers to officials and to private citizens - of the latter, the rules for making

wills, trusts, and contracts are examples), while excluding other matters (e.g.,

international law) which we are not inclined to exclude in the category "law."

More generally, it seems more distorting than enlightening to reduce all law to

one type. For example, rules that empower people to make wills and contracts

perhaps can be re-characterized as part of a long chain of reasoning for eventually

imposing a sanction (Austin spoke in this context of the sanction of "nullity") on

those who fail to comply with the relevant provisions. However, such a re-

characterization this misses the basic purpose of those sorts of laws - they are

arguably about granting power and autonomy, not punishing wrongdoing.

A theory which portrays law solely in terms of power fails to distinguish rules of

terror from forms of governance sufficiently just that they are accepted as

legitimate by their own citizens.

(Austin was aware of some of these lines of attack, and had responses ready; it is another

matter whether his responses were adequate.) It should also be noted that Austin's work

shows a silence on questions of methodology, though this may be forgivable, given the

early stage of jurisprudence. As discussed in an earlier section, in many ways, Austin was

blazing a new path.

When H.L.A. Hart revived legal positivism in the middle of the 20 th century (Hart 1958,

1994), he did it by criticizing and building on Austin's theory: for example, Hart's theory

did not try to reduce all laws to one kind of rule, but emphasized the varying types and

functions of legal rules; and Hart's theory, grounded partly on the distinction between

"obligation" and "being obliged," was built around the fact that some participants within

legal systems "accepted" the legal rules as reasons for action, above and beyond the fear

of sanctions.

5. A Revisionist View?

Some modern commentators appreciate in Austin elements that were probably not

foremost in his mind (or that of his contemporary readers). For example, one occasionally

sees Austin portrayed as the first "realist": in contrast both to the theorists that came

before Austin and to some modern writers on law, Austin is seen as having a keener

sense of the connection of law and power, and the importance of keeping that connection

at the forefront of analysis. (cf. Cotterrell 1989: pp. 57-79) When circumstances seem to

warrant a more critical, skeptical or cynical approach to law and government, Austin's

equation of law and force will be attractive - however distant such a reading may be from

Austin's own liberal-utilitarian views at the time of his writing, and his even more

conservative political views later in his life. (Hamburger, 1985)

Bibliography

Primary Sources

Austin, John, The Province of Jurisprudence Determined, W. Rumble (ed.),

Cambridge: Cambridge University Press, 1995) (first published, 1832)

-----, Lectures on Jurisprudence, or The Philosophy of Positive Law, two vols., R.

Campbell (ed.), 4th edition, London: John Murray, 1873

Natural Law

SOURCED ON 11TH AUGUST 2004 BY JOSIAH M.N. FROM

http://www.utm.edu/research/iep//n/natlaw.htm

The term 'natural law' is ambiguous. It refers to a type of moral theory, as well as to a

type of legal theory, despite the fact that the core claims of the two kinds of theory are

logically independent. According to natural law ethical theory, the moral standards that

govern human behavior are, in some sense, objectively derived from the nature of human

beings. According to natural law legal theory, the authority of at least some legal

standards necessarily derives, at least in part, from considerations having to do with the

moral merit of those standards. There are a number of different kinds of natural law

theories of law, differing from each other with respect to the role that morality plays in

determining the authority of legal norms.

Table of Contents

I. Two Kinds of Natural Law Theory

II. Conceptual Naturalism

o II.1 The Project of Conceptual Jurisprudence

o II.2 Classical Natural Law Theory

III. The Substantive Neo-Naturalism of John Finnis

IV. The Procedural Naturalism of Lon L. Fuller

Ronald Dworkin's "Third Theory"

Sources

I. Two Kinds of Natural Law Theory

At the outset, it is important to distinguish two kinds of theory that go by the name of

natural law. The first is a theory of morality that is roughly characterized by the following

theses. First, moral propositions have what is sometimes called objective standing in the

sense that such propositions are the bearers of objective truth-value; that is, moral

propositions can be objectively true or false. Though moral objectivism is sometimes

equated with moral realism (see, e.g., Moore 1992, 190: "the truth of any moral

proposition lies in its correspondence with a mind- and convention-independent moral

reality"), the relationship between the two theories is controversial. Geoffrey Sayre-

McCord (1988), for example, views moral objectivism as one species of moral realism,

but not the only form; on Sayre-McCord's view, moral subjectivism and moral

intersubjectivism are also forms of moral realism. Strictly speaking, then, natural law

moral theory is committed only to the objectivity of moral norms.

The second thesis constituting the core of natural law moral theory is the claim that

standards of morality are in some sense derived from, or entailed by, the nature of the

world and the nature of human beings. St. Thomas Aquinas, for example, identifies the

rational nature of human beings as that which defines moral law: "the rule and measure of

human acts is the reason, which is the first principle of human acts" (Aquinas, ST I-II,

Q.90, A.I). On this common view, since human beings are by nature rational beings, it is

morally appropriate that they should behave in a way that conforms to their rational

nature. Thus, Aquinas derives the moral law from the nature of human beings (thus,

"natural law").

But there is another kind of natural law theory having to do with the relationship of

morality to law. According to natural law theory of law, there is no clean division

between the notion of law and the notion of morality. Though there are different versions

of natural law theory, all subscribe to the thesis that there are at least some laws that

depend for their "authority" not on some pre-existing human convention, but on the

logical relationship in which they stand to moral standards. Otherwise put, some norms

are authoritative in virtue of their moral content, even when there is no convention that

makes moral merit a criterion of legal validity. The idea that the concepts of law and

morality intersect in some way is called the Overlap Thesis.

As an empirical matter, many natural law moral theorists are also natural law legal

theorists, but the two theories, strictly speaking, are logically independent. One can deny

natural law theory of law but hold a natural law theory of morality. John Austin, the most

influential of the early legal positivists, for example, denied the Overlap Thesis but held

something that resembles a natural law ethical theory.

Indeed, Austin explicitly endorsed the view that it is not necessarily true that the legal

validity of a norm depends on whether its content conforms to morality. But while Austin

thus denied the Overlap Thesis, he accepted an objectivist moral theory; indeed, Austin

inherited his utilitarianism almost wholesale from J.S. Mill and Jeremy Bentham. Here it

is worth noting that utilitarians sometimes seem to suggest that they derive their

utilitarianism from certain facts about human nature; as Bentham once wrote, "nature has

placed mankind under the governance of two sovereign masters, pain and pleasure. It is

for them alone to point out what we ought to do, as well as to determine what we shall

do. On the one hand the standard of right and wrong, on the other the chain of causes and

effects, are fastened to their throne" (Bentham 1948, 1). Thus, a commitment to natural

law theory of morality is consistent with the denial of natural law theory of law.

Conversely, one could, though this would be unusual, accept a natural law theory of law

without holding a natural law theory of morality. One could, for example, hold that the

conceptual point of law is, in part, to reproduce the demands of morality, but also hold a

form of ethical subjectivism (or relativism). On this peculiar view, the conceptual point

of law would be to enforce those standards that are morally valid in virtue of cultural

consensus. For this reason, natural law theory of law is logically independent of natural

law theory of morality. The remainder of this essay will be exclusively concerned with

natural law theories of law.

II. Conceptual Naturalism

II.1 The Project of Conceptual Jurisprudence

The principal objective of conceptual (or analytic) jurisprudence has traditionally been to

provide an account of what distinguishes law as a system of norms from other systems of

norms, such as ethical norms. As John Austin describes the project, conceptual

jurisprudence seeks "the essence or nature which is common to all laws that are properly

so called" (Austin 1995, 11). Accordingly, the task of conceptual jurisprudence is to

provide a set of necessary and sufficient conditions for the existence of law that

distinguishes law from non-law in every possible world.

While this task is usually interpreted as an attempt to analyze the concepts of law and

legal system, there is some confusion as to both the value and character of conceptual

analysis in philosophy of law. As Brian Leiter (1998) points out, philosophy of law is one

of the few philosophical disciplines that takes conceptual analysis as its principal

concern; most other areas in philosophy have taken a naturalistic turn, incorporating the

tools and methods of the sciences. To clarify the role of conceptual analysis in law, Brian

Bix (1995) distinguishes a number of different purposes that can be served by conceptual

claims: (1) to track linguistic usage; (2) to stipulate meanings; (3) to explain what is

important or essential about a class of objects; and (4) to establish an evaluative test for

the concept-word. Bix takes conceptual analysis in law to be primarily concerned with (3)

and (4).

In any event, conceptual analysis of law remains an important, if controversial, project in

contemporary legal theory. Conceptual theories of law have traditionally been

characterized in terms of their posture towards the Overlap Thesis. Thus, conceptual

theories of law have traditionally been divided into two main categories: those like

natural law legal theory that affirm there is a conceptual relation between law and

morality and those like legal positivism that deny such a relation.

II.2 Classical Natural Law Theory

All forms of natural law theory subscribe to the Overlap Thesis, which asserts that there

is some kind of non-conventional relation between law and morality. According to this

view, then, the notion of law cannot be fully articulated without some reference to moral

notions. Though the Overlap Thesis may seem unambiguous, there are a number of

different ways in which it can be interpreted.

The strongest construction of the Overlap Thesis forms the foundation for the classical

naturalism of Aquinas and Blackstone. Aquinas distinguishes four kinds of law: (1)

eternal law; (2) natural law; (3) human law; and (4) divine law. Eternal law is comprised

of those laws that govern the nature of an eternal universe; as Susan Dimock (1999, 22)

puts it, one can "think of eternal law as comprising all those scientific (physical,

chemical, biological, psychological, etc.) 'laws' by which the universe is ordered." Divine

law is concerned with those standards that must be satisfied by a human being to achieve

eternal salvation. One cannot discover divine law by natural reason alone; the precepts of

divine law are disclosed only through divine revelation.

The natural law is comprised of those precepts of the eternal law that govern the behavior

of beings possessing reason and free will. The first precept of the natural law, according

to Aquinas, is the somewhat vacuous imperative to do good and avoid evil. Here it is

worth noting that Aquinas holds a natural law theory of morality: what is good and evil,

according to Aquinas, is derived from the rational nature of human beings. Good and evil

are thus both objective and universal.

But Aquinas is also a natural law legal theorist. On his view, a human law (i.e., that

which is promulgated by human beings) is valid only insofar as its content conforms to

the content of the natural law; as Aquinas puts the point: "[E]very human law has just so

much of the nature of law as is derived from the law of nature. But if in any point it

deflects from the law of nature, it is no longer a law but a perversion of law" (ST I-II,

Q.95, A.II). To paraphrase Augustine's famous remark, an unjust law is really no law at

all.

The idea that a norm that does not conform to the natural law cannot be legally valid is

the defining thesis of conceptual naturalism. As William Blackstone describes the thesis,

"This law of nature, being co-eval with mankind and dictated by God himself, is of

course superior in obligation to any other. It is binding over all the globe, in all countries,

and at all times: no human laws are of any validity, if contrary to this; and such of them

as are valid derive all their force, and all their authority, mediately or immediately, from

this original" (1979, 41). In this passage, Blackstone articulates the two claims that

constitute the theoretical core of conceptual naturalism: 1) there can be no legally valid

standards that conflict with the natural law; and 2) all valid laws derive what force and

authority they have from the natural law.

It should be noted that classical naturalism is consistent with allowing a substantial role

to human beings in the manufacture of law. While the classical naturalist seems

committed to the claim that the law necessarily incorporates all moral principles, this

claim does not imply that the law is exhausted by the set of moral principles. There will

still be coordination problems (e.g., which side of the road to drive on) that can be

resolved in any number of ways consistent with the set of moral principles. Thus, the

classical naturalist does not deny that human beings have considerable discretion in

creating natural law. Rather she claims only that such discretion is necessarily limited by

moral norms: legal norms that are promulgated by human beings are valid only if they are

consistent with morality.

Critics of conceptual naturalism have raised a number of objections to this view. First, it

has often been pointed out that, contra Augustine, unjust laws are all-too- frequently

enforced against persons. As Austin petulantly put the point:

Now, to say that human laws which conflict with the Divine law are not

binding, that is to say, are not laws, is to talk stark nonsense. The most

pernicious laws, and therefore those which are most opposed to the will of

God, have been and are continually enforced as laws by judicial tribunals.

Suppose an act innocuous, or positively beneficial, be prohibited by the

sovereign under the penalty of death; if I commit this act, I shall be tried

and condemned, and if I object to the sentence, that it is contrary to the

law of God, who has commanded that human lawgivers shall not prohibit

acts which have no evil consequences, the Court of Justice will

demonstrate the inconclusiveness of my reasoning by hanging me up, in

pursuance of the law of which I have impugned the validity (Austin 1995,

158).

Of course, as Brian Bix (1999) points out, the argument does little work for Austin

because it is always possible for a court to enforce a law against a person that does not

satisfy Austin's own theory of legal validity.

Another frequently expressed worry is that conceptual naturalism undermines the

possibility of moral criticism of the law; inasmuch as conformity with natural law is a

necessary condition for legal validity, all valid law is, by definition, morally just. Thus,

on this line of reasoning, the legal validity of a norm necessarily entails its moral justice.

As Jules Coleman and Jeffrey Murphy (1990, 18) put the point:

The important things [conceptual naturalism] supposedly allows us to do

(e.g., morally evaluate the law and determine our moral obligations with

respect to the law) are actually rendered more difficult by its collapse of

the distinction between morality and law. If we really want to think about

the law from the moral point of view, it may obscure the task if we see law

and morality as essentially linked in some way. Moral criticism and

reform of law may be aided by an initial moral skepticism about the law.

There are a couple of problems with this line of objection. First, conceptual naturalism

does not foreclose criticism of those norms that are being enforced by a society as law.

Insofar as it can plausibly be claimed that the content of a norm being enforced by society

as law does not conform to the natural law, this is a legitimate ground of moral criticism:

given that the norm being enforced by law is unjust, it follows, according to conceptual

naturalism, that it is not legally valid. Thus, the state commits wrong by enforcing that

norm against private citizens.

Second, and more importantly, this line of objection seeks to criticize a conceptual theory

of law by pointing to its practical implications ñ a strategy that seems to commit a

category mistake. Conceptual jurisprudence assumes the existence of a core of social

practices (constituting law) that requires a conceptual explanation. The project motivating

conceptual jurisprudence, then, is to articulate the concept of law in a way that accounts

for these pre-existing social practices. A conceptual theory of law can legitimately be

criticized for its failure to adequately account for the pre-existing data, as it were; but it

cannot legitimately be criticized for either its normative quality or its practical

implications.

A more interesting line of argument has recently been taken up by Brian Bix (1996).

Following John Finnis (1980), Bix rejects the interpretation of Aquinas and Blackstone as

conceptual naturalists, arguing instead that the claim that an unjust law is not a law

should not be taken literally:

A more reasonable interpretation of statements like "an unjust law is no

law at all" is that unjust laws are not laws "in the fullest sense." As we

might say of some professional, who had the necessary degrees and

credentials, but seemed nonetheless to lack the necessary ability or

judgment: "she's no lawyer" or "he's no doctor." This only indicates that

we do not think that the title in this case carries with it all the implications

it usually does. Similarly, to say that an unjust law is "not really law" may

only be to point out that it does not carry the same moral force or offer the

same reasons for action as laws consistent with "higher law" (Bix 1996,

226).

Thus, Bix construes Aquinas and Blackstone as having views more similar to the neo-

naturalism of John Finnis discussed below in Section III. Nevertheless, while a plausible

case can be made in favor of Bix's view, the long history of construing Aquinas and

Blackstone as conceptual naturalists, along with its pedagogical value in developing other

theories of law, ensures that this practice is likely, for better or worse, to continue

indefinitely.

III. The Substantive Neo-Naturalism of John Finnis

John Finnis takes himself to be explicating and developing the views of Aquinas and

Blackstone. Like Bix, Finnis believes that the naturalism of Aquinas and Blackstone

should not be construed as a conceptual account of the existence conditions for law.

According to Finnis, the classical naturalists were not concerned with giving a conceptual

account of legal validity; rather they were concerned with explaining the moral force of

law: "the principles of natural law explain the obligatory force (in the fullest sense of

'obligation') of positive laws, even when those laws cannot be deduced from those

principles" (Finnis 1980, 23-24). On Finnis's view of the Overlap Thesis, the essential

function of law is to provide a justification for state coercion (a view he shares with

Ronald Dworkin). Accordingly, an unjust law can be legally valid, but it cannot provide

an adequate justification for use of the state coercive power and is hence not obligatory in

the fullest sense; thus, an unjust law fails to realize the moral ideals implicit in the

concept of law. An unjust law, on this view, is legally binding, but is not fully law.

Like classical naturalism, Finnis's naturalism is both an ethical theory and a theory of

law. Finnis distinguishes a number of equally valuable basic goods: life, health,

knowledge, play, friendship, religion, and aesthetic experience. Each of these goods,

according to Finnis, has intrinsic value in the sense that it should, given human nature, be

valued for its own sake and not merely for the sake of some other good it can assist in

bringing about. Moreover, each of these goods is universal in the sense that it governs all

human cultures at all times. The point of moral principles, on this view, is to give ethical

structure to the pursuit of these basic goods; moral principles enable us to select among

competing goods and to define what a human being can permissibly do in pursuit of a

basic good.

On Finnis's view, the conceptual point of law is to facilitate the common good by

providing authoritative rules that solve coordination problems that arise in connection

with the common pursuit of these basic goods. Thus, Finnis sums up his theory of law as

follows:

[T]he term 'law' ... refer[s] primarily to rules made, in accordance with

regulative legal rules, by a determinate and effective authority (itself

identified and, standardly, constituted as an institution by legal rules) for a

'complete' community, and buttressed by sanctions in accordance with the

rule-guided stipulations of adjudicative institutions, this ensemble of rules

and institutions being directed to reasonably resolving any of the

community's co-ordination problems (and to ratifying, tolerating,

regulating, or overriding co-ordination solutions from any other

institutions or sources of norms) for the common good of that community

(Finnis 1980, 276).

Again, it bears emphasizing that Finnis takes care to deny that there is any necessary

moral test for legal validity: "one would simply be misunderstanding my conception of

the nature and purpose of explanatory definitions of theoretical concepts if one supposed

that my definition 'ruled out as non-laws' laws which failed to meet, or meet fully, one or

other of the elements of the definition" (Finnis 1980, 278).

Nevertheless, Finnis believes that to the extent that a norm fails to satisfy these

conditions, it likewise fails to fully manifest the nature of law and thereby fails to fully

obligate the citizen-subject of the law. Unjust laws may obligate in a technical legal

sense, on Finnis's view, but they may fail to provide moral reasons for action of the sort

that it is the point of legal authority to provide. Thus, Finnis argues that "a ruler's use of

authority is radically defective if he exploits his opportunities by making stipulations

intended by him not for the common good but for his own or his friends' or party's or

faction's advantage, or out of malice against some person or group" (Finnis 1980, 352).

For the ultimate basis of a ruler's moral authority, on this view, "is the fact that he has the

opportunity, and thus the responsibility, of furthering the common good by stipulating

solutions to a community's co- ordination problems" (Finnis 1980, 351).

Finnis's theory is certainly more plausible as a theory of law than the traditional

interpretation of classical naturalism, but such plausibility comes, for better or worse, at

the expense of naturalism's identity as a distinct theory of law. Indeed, it appears that

Finnis's natural law theory is compatible with naturalism's historical adversary, legal

positivism, inasmuch as Finnis's view is compatible with a source-based theory of legal

validity; laws that are technically valid in virtue of source but unjust do not, according to

Finnis, fully obligate the citizen. Indeed, Finnis (1996) believes that Aquinas's classical

naturalism fully affirms the notion that human laws are "posited."

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IV. The Procedural Naturalism of Lon L. Fuller

Like Finnis, Lon Fuller (1964) rejects the conceptual naturalist idea that there are

necessary substantive moral constraints on the content of law. But Fuller, unlike Finnis,

believes that law is necessarily subject to a procedural morality. On Fuller's view, human

activity is necessarily goal-oriented or purposive in the sense that people engage in a

particular activity because it helps them to achieve some end. Insofar as human activity is

essentially purposive, according to Fuller, particular human activities can be understood

only in terms that make reference to their purposes and ends. Thus, since lawmaking is

essentially purposive activity, it can be understood only in terms that explicitly

acknowledge its essential values and purposes:

The only formula that might be called a definition of law offered in these

writings is by now thoroughly familiar: law is the enterprise of subjecting

human conduct to the governance of rules. Unlike most modern theories of

law, this view treats law as an activity and regards a legal system as the

product of a sustained purposive effort (Fuller 1964, 106).

To the extent that a definition of law can be given, then, it must include the idea that law's

essential function is to "achiev[e] Ö [social] order Ö through subjecting people's conduct

to the guidance of general rules by which they may themselves orient their behavior"

(Fuller 1965, 657).

Fuller's functionalist conception of law implies that nothing can count as law unless it is

capable of performing law's essential function of guiding behavior. And to be capable of

performing this function, a system of rules must satisfy the following principles: (P1) the

rules must be expressed in general terms; (P2) the rules must be publicly promulgated;

(P3) the rules must be prospective in effect; (P4) the rules must be expressed in

understandable terms; (P5) the rules must be consistent with one another; (P6) the rules

must not require conduct beyond the powers of the affected parties; (P7) the rules must

not be changed so frequently that the subject cannot rely on them; and (P8) the rules must

be administered in a manner consistent with their wording.

On Fuller's view, no system of rules that fails minimally to satisfy these principles of

legality can achieve law's essential purpose of achieving social order through the use of

rules that guide behavior. A system of rules that fails to satisfy (P2) or (P4), for example,

cannot guide behavior because people will not be able to determine what the rules

require. Accordingly, Fuller concludes that his eight principles are "internal" to law in the

sense that they are built into the existence conditions for law.

These internal principles constitute a morality, according to Fuller, because law

necessarily has positive moral value in two respects: (1) law conduces to a state of social

order and (2) does so by respecting human autonomy because rules guide behavior. Since

no system of rules can achieve these morally valuable objectives without minimally

complying with the principles of legality, it follows, on Fuller's view, that they constitute

a morality. Since these moral principles are built into the existence conditions for law,

they are internal and hence represent a conceptual connection between law and morality.

Thus, like the classical naturalists and unlike Finnis, Fuller subscribes to the strongest

form of the Overlap Thesis, which makes him a conceptual naturalist.

Nevertheless, Fuller's conceptual naturalism is fundamentally different from that of

classical naturalism. First, Fuller rejects the classical naturalist view that there are

necessary moral constraints on the content of law, holding instead that there are necessary

moral constraints on the procedural mechanisms by which law is made and administered:

"What I have called the internal morality of law is ... a procedural version of natural

law ... [in the sense that it is] concerned, not with the substantive aims of legal rules, but

with the ways in which a system of rules for governing human conduct must be

constructed and administered if it is to be efficacious and at the same time remain what it

purports to be" (Fuller 1964, 96- 97).

Second, Fuller identifies the conceptual connection between law and morality at a higher

level of abstraction than the classical naturalists. The classical naturalists view morality

as providing substantive constraints on the content of individual laws; an unjust norm, on

this view, is conceptually disqualified from being legally valid. In contrast, Fuller views

morality as providing a constraint on the existence of a legal system: "A total failure in

any one of these eight directions does not simply result in a bad system of law; it results

in something that is not properly called a legal system at all" (Fuller 1964, 39).

Fuller's procedural naturalism is vulnerable to a number of objections. H.L.A. Hart, for

example, denies Fuller's claim that the principles of legality constitute an internal

morality; according to Hart, Fuller confuses the notions of morality and efficacy:

[T]he author's insistence on classifying these principles of legality as a

"morality" is a source of confusion both for him and his readers.... [T]he

crucial objection to the designation of these principles of good legal

craftsmanship as morality, in spite of the qualification "inner," is that it

perpetrates a confusion between two notions that it is vital to hold apart:

the notions of purposive activity and morality. Poisoning is no doubt a

purposive activity, and reflections on its purpose may show that it has its

internal principles. ("Avoid poisons however lethal if they cause the

victim to vomit"....) But to call these principles of the poisoner's art "the

morality of poisoning" would simply blur the distinction between the

notion of efficiency for a purpose and those final judgments about

activities and purposes with which morality in its various forms is

concerned (Hart 1965, 1285-86).

On Hart's view, all actions, including virtuous acts like lawmaking and impermissible

acts like poisoning, have their own internal standards of efficacy. But insofar as such

standards of efficacy conflict with morality, as they do in the case of poisoning, it follows

that they are distinct from moral standards. Thus, while Hart concedes that something

like Fuller's eight principles are built into the existence conditions for law, he concludes

they do not constitute a conceptual connection between law and morality.

Unfortunately, Hart overlooks the fact that most of Fuller's eight principles double as

moral ideals of fairness. For example, public promulgation in understandable terms may

be a necessary condition for efficacy, but it is also a moral ideal; it is morally

objectionable for a state to enforce rules that have not been publicly promulgated in terms

reasonably calculated to give notice of what is required. Similarly, we take it for granted

that it is wrong for a state to enact retroactive rules, inconsistent rules, and rules that

require what is impossible. Poisoning may have its internal standards of efficacy, but

such standards are distinguishable from the principles of legality in that they conflict with

moral ideals.

Nevertheless, Fuller's principles operate internally, not as moral ideals, but merely as

principles of efficacy. As Fuller would likely acknowledge, the existence of a legal

system is consistent with considerable divergence from the principles of legality. Legal

standards, for example, are necessarily promulgated in general terms that inevitably give

rise to problems of vagueness. And officials all too often fail to administer the laws in a

fair and even-handed manneróeven in the best of legal systems. These divergences may

always be prima facie objectionable, but they are inconsistent with a legal system only

when they render a legal system incapable of performing its essential function of guiding

behavior. Insofar as these principles are built into the existence conditions for law, it is

because they operate as efficacy conditionsóand not because they function as moral

ideals.

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Ronald Dworkin's "Third Theory"

Ronald Dworkin's so-called third theory of law is best understood as a response to legal

positivism, which is essentially constituted by three theoretical commitments: the Social

Fact Thesis, the Conventionality Thesis, and the Separability Thesis. The Social Fact

Thesis asserts it is a necessary truth that legal validity is ultimately a function of certain

kinds of social facts; the idea here is that what ultimately explains the validity of a law is

the presence of certain social facts, especially formal promulgation by a legislature.

The Conventionality Thesis emphasizes law's conventional nature, claiming that the

social facts giving rise to legal validity are authoritative in virtue of a social convention.

On this view, the criteria that determine whether or not any given norm counts as a legal

norm are binding because of an implicit or explicit agreement among officials. Thus, for

example, the U.S. Constitution is authoritative in virtue of the conventional fact that it

was formally ratified by all fifty states.

The Separability Thesis, at the most general level, simply denies naturalism's Overlap

Thesis; according to the Separability Thesis, there is no conceptual overlap between the

notions of law and morality. As Hart more narrowly construes it, the Separability Thesis

is "just the simple contention that it is in no sense a necessary truth that laws reproduce or

satisfy certain demands of morality, though in fact they have often done so" (Hart 1994,

185-186).

Dworkin rejects positivism's Social Fact Thesis on the ground that there are some legal

standards the authority of which cannot be explained in terms of social facts. In deciding

hard cases, for example, judges often invoke moral principles that Dworkin believes do

not derive their legal authority from the social criteria of legality contained in a rule of

recognition (Dworkin 1977, p. 40).

In Riggs v. Palmer, for example, the court considered the question of whether a murderer

could take under the will of his victim. At the time the case was decided, neither the

statutes nor the case law governing wills expressly prohibited a murderer from taking

under his victim's will. Despite this, the court declined to award the defendant his gift

under the will on the ground that it would be wrong to allow him to profit from such a

grievous wrong. On Dworkin's view, the court decided the case by citing "the principle

that no man may profit from his own wrong as a background standard against which to

read the statute of wills and in this way justified a new interpretation of that statute"

(Dworkin 1977, 29).

On Dworkin's view, the Riggs court was not just reaching beyond the law to extralegal

standards when it considered this principle. For the Riggs judges would "rightfully" have

been criticized had they failed to consider this principle; if it were merely an extralegal

standard, there would be no rightful grounds to criticize a failure to consider it (Dworkin

1977, 35). Accordingly, Dworkin concludes that the best explanation for the propriety of

such criticism is that principles are part of the law.

Further, Dworkin maintains that the legal authority of standards like the Riggs principle

cannot derive from promulgation in accordance with purely formal requirements: "[e]ven

though principles draw support from the official acts of legal institutions, they do not

have a simple or direct enough connection with these acts to frame that connection in

terms of criteria specified by some ultimate master rule of recognition" (Dworkin 1977,

41).

On Dworkin's view, the legal authority of the Riggs principle can be explained wholly in

terms of its content. The Riggs principle was binding, in part, because it is a requirement

of fundamental fairness that figures into the best moral justification for a society's legal

practices considered as a whole. A moral principle is legally authoritative, according to

Dworkin, insofar as it maximally conduces to the best moral justification for a society's

legal practices considered as a whole.

Dworkin believes that a legal principle maximally contributes to such a justification if

and only if it satisfies two conditions: (1) the principle coheres with existing legal

materials; and (2) the principle is the most morally attractive standard that satisfies (1).

The correct legal principle is the one that makes the law the moral best it can be.

Accordingly, on Dworkin's view, adjudication is and should be interpretive:

[J]udges should decide hard cases by interpreting the political structure of

their community in the following, perhaps special way: by trying to find

the best justification they can find, in principles of political morality, for

the structure as a whole, from the most profound constitutional rules and

arrangements to the details of, for example, the private law of tort or

contract (Dworkin 1982, 165).

There are, thus, two elements of a successful interpretation. First, since an interpretation

is successful insofar as it justifies the particular practices of a particular society, the

interpretation must fit with those practices in the sense that it coheres with existing legal

materials defining the practices. Second, since an interpretation provides a moral

justification for those practices, it must present them in the best possible moral light.

For this reason, Dworkin argues that a judge should strive to interpret a case in roughly

the following way:

A thoughtful judge might establish for himself, for example, a rough

"threshold" of fit which any interpretation of data must meet in order to be

"acceptable" on the dimension of fit, and then suppose that if more than

one interpretation of some part of the law meets this threshold, the choice

among these should be made, not through further and more precise

comparisons between the two along that dimension, but by choosing the

interpretation which is "substantively" better, that is, which better

promotes the political ideals he thinks correct (Dworkin 1982, 171).

As Dworkin conceives it, then, the judge must approach judicial decision-making as

something that resembles an exercise in moral philosophy. Thus, for example, the judge

must decide cases on the basis of those moral principles that "figure[] in the soundest

theory of law that can be provided as a justification for the explicit substantive and

institutional rules of the jurisdiction in question" (Dworkin 1977, 66).

And this is a process, according to Dworkin, that "must carry the lawyer very deep into

political and moral theory." Indeed, in later writings, Dworkin goes so far as to claim,

somewhat implausibly, that "any judge's opinion is itself a piece of legal philosophy,

even when the philosophy is hidden and the visible argument is dominated by citation

and lists of facts" (Dworkin 1986, 90).

Dworkin believes his theory of judicial obligation is a consequence of what he calls the

Rights Thesis, according to which judicial decisions always enforce pre-existing rights:

"even when no settled rule disposes of the case, one party may nevertheless have a right

to win. It remains the judge's duty, even in hard cases, to discover what the rights of the

parties are, not to invent new rights retrospectively" (Dworkin 1977, 81).

In "Hard Cases," Dworkin distinguishes between two kinds of legal argument.

Arguments of policy "justify a political decision by showing that the decision advances or

protects some collective goal of the community as a whole" (Dworkin 1977, 82). In

contrast, arguments of principle "justify a political decision by showing that the decision

respects or secures some individual or group right" (Dworkin 1977, 82).

On Dworkin's view, while the legislature may legitimately enact laws that are justified by

arguments of policy, courts may not pursue such arguments in deciding cases. For a

consequentialist argument of policy can never provide an adequate justification for

deciding in favor of one party's claim of right and against another party's claim of right.

An appeal to a pre-existing right, according to Dworkin, can ultimately be justified only

by an argument of principle. Thus, insofar as judicial decisions necessarily adjudicate

claims of right, they must ultimately be based on the moral principles that figure into the

best justification of the legal practices considered as a whole.

Notice that Dworkin's views on legal principles and judicial obligation are inconsistent

with all three of legal positivism's core commitments. Each contradicts the

Conventionality Thesis insofar as judges are bound to interpret posited law in light of

unposited moral principles. Each contradicts the Social Fact Thesis because these moral

principles count as part of a community's law regardless of whether they have been

formally promulgated. Most importantly, Dworkin's view contradicts the Separability

Thesis in that it seems to imply that some norms are necessarily valid in virtue of their

moral content. It is his denial of the Separability Thesis that places Dworkin in the

naturalist camp.

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Sources

Thomas Aquinas, On Law, Morality and Politics (Indianapolis: Hackett

Publishing Co., 1988)

John Austin, Lectures on Jurisprudence and the Philosophy of Positive

Law (St. Clair Shores, MI: Scholarly Press, 1977)

------The Province of Jurisprudence Determined (Cambridge: Cambridge

University Press, 1995)

Jeremy Bentham, A Fragment of Government (Cambridge: Cambridge

University Press, 1988)

------Of Laws In General (London: Athlone Press, 1970)

------The Principles of Morals and Legislation (New York: Hafner Press,

1948)

Brian Bix, "On Description and Legal Reasoning," in Linda Meyer (ed.),

Rules and Reasoning (Oxford: Hart Publishing, 1999)

------Jurisprudence: Theory and Context (Boulder, CO: Westview Press,

1996)

------"Natural Law Theory," in Dennis M. Patterson (ed.), A Companion to

Philosophy of Law and Legal Theory (Cambridge: Blackwell Publishing

Co., 1996)

William Blackstone, Commentaries on the Law of England (Chicago: The

University of Chicago Press, 1979)

Jules L. Coleman, "On the Relationship Between Law and Morality,"

Ratio Juris, vol. 2, no. 1 (1989), 66-78

------"Negative and Positive Positivism," 11 Journal of Legal Studies 139

(1982)

Jules L. Coleman and Jeffrie Murphy, Philosophy of Law (Boulder, CO:

Westview Press, 1990)

Ronald M. Dworkin, Law's Empire (Cambridge: Harvard University

Press, 1986)

------Taking Rights Seriously (Cambridge: Harvard University Press,

1977)

John Finnis, Natural Law and Natural Rights (Oxford: Clarendon Press,

1980)

------"The Truth in Legal Positivism," in Robert P. George, The Autonomy

of Law (Oxford: Clarendon Press, 1996), 195-214

Lon L. Fuller, The Morality of Law, Revised Edition (New Haven: Yale

University Press, 1964)

------"A Reply to Professors Cohen and Dworkin", 10 Villanova Law

Review 655 (1965), 657.

------"Positivism and Fidelity to Law--A Reply to Professor Hart," 71

Harvard Law Review 630 (1958)

Klaus F¸þer, "Farewell to 'Legal Positivism': The Separation Thesis

Unravelling," in George, The Autonomy of Law, 119-162

Robert P. George, "Natural Law and Positive Law," in George, The

Autonomy of Law, 321-334

------Natural Law Theory: Contemporary Essays (Oxford: Clarendon

Press, 1992)

H.L.A. Hart, The Concept of Law, Second Edition (Oxford: Clarendon

Press, 1994)

------"Book Review of The Morality of Law" 78 Harvard Law Review

1281 (1965)

------Essays on Bentham (Oxford: Clarendon Press, 1982)

------"Positivism and the Separation of Law and Morals," 71 Harvard Law

Review 593 (1958)

Kenneth Einar Himma, "Positivism, Naturalism, and the Obligation to

Obey Law," Southern Journal of Philosophy, vol. 36, no. 2 (Summer

1999)

------"Functionalism and Legal Theory: The Hart/Fuller Debate

Revisited," De Philosophia, vol. 14, no. 2 (Fall/Winter 1998)

J.L. Mackie, "The Third Theory of Law," Philosophy & Public Affairs,

Vol. 7, No. 1 (Fall 1977)

Michael Moore, "Law as a Functional Kind," in George, Natural Law

Theory, 188- 242

Joseph Raz, The Authority of Law: Essays on Law and Morality (Oxford:

Clarendon Press, 1979)

------"Authority, Law and Morality," The Monist, vol. 68, 295-324

------"Legal Principles and the Limits of Law," 81 Yale Law Review 823

(1972)

Geoffrey Sayre-McCord, "The Many Moral Realisms," in Sayre-McCord

(ed.), Essays on Moral Realism (Ithica: Cornell University Press, 1988)

 Author Information:

Kenneth Einar Himma

Email: himma@u.washington.edu

University of Washington

HomePage: http://faculty.washington.edu/himma

An Overview of Natural Law Theory

by Jonathan Dolhenty, Ph.D.

 Natural law theory is one of the most important theories in the philosophy of Classical

Realism. It is also widely misunderstood by many who have either not taken the time to

study it or have heard of it and dismissed it as a "medieval" relic. What I want to do here

is merely sketch out a general presentation of natural law theory, with the hope that the

reader will become interested enough to pursue further study of it. I will provide a link to

more in-depth resources at the end of this essay.

Before we get into an overview of the nature of natural law theory itself, let's take a brief

look at some history.

The concept of natural law has taken several forms. The idea began with the ancient

Greeks' conception of a universe governed in every particular by an eternal, immutable

law and in their distinction between what is just by nature and just by convention.

Stoicism provided the most complete classical formulation of natural law. The Stoics

argued that the universe is governed by reason, or rational principle; they further argued

that all humans have reason within them and can therefore know and obey its law.

Because human beings have the faculty of choice (a free will), they will not necessarily

obey the law; if they act in accordance with reason, however, they will be "following

nature."

Christian philosophers readily adapted Stoic natural law theory, identifying natural law

with the law of God. For Thomas Aquinas, natural law is that part of the eternal law of

God ("the reason of divine wisdom") which is knowable by human beings by means of

their powers of reason. Human, or positive, law is the application of natural law to

particular social circumstances. Like the Stoics, Aquinas believed that a positive law that

violates natural law is not true law.

With the secularization of society resulting from the Renaissance and Reformation,

natural law theory found a new basis in human reason. The 17th-century Dutch jurist

Hugo Grotius believed that humans by nature are not only reasonable but social. Thus the

rules that are "natural" to them -- those dictated by reason alone -- are those which enable

them to live in harmony with one another. From this argument, by the way, Grotius

developed the first comprehensive theory of international law.

Natural law theory eventually gave rise to a concept of "natural rights." John Locke

argued that human beings in the state of nature are free and equal, yet insecure in their

freedom. When they enter society they surrender only such rights as are necessary for

their security and for the common good. Each individual retains fundamental prerogatives

drawn from natural law relating to the integrity of person and property (natural rights).

This natural rights theory provided a philosophical basis for both the American and

French revolutions. Thomas Jefferson used the natural law theory to justify his trinity of

"inalienable rights" which were stated in the United States Declaration of Independence.

During the 19th century natural law theory lost influence as utilitarianism and

Benthamism, positivism, materialism, and the historical school of jurisprudence became

dominant. In the 20th century, however, natural law theory has received new attention,

partly in reaction to the rise of totalitarianism and an increased interest in human rights

throughout the world. With this contemporary interest in mind, let's now turn to our

attention to the natural law theory as understood by the tradition of Classical Realism.

What do we mean by "natural law"? In its simplest definition, natural law is that

"unwritten law" that is more or less the same for everyone everywhere. To be more exact,

natural law is the concept of a body of moral principles that is common to all humankind

and, as generally posited, is recognizable by human reason alone. Natural law is therefore

distinguished from -- and provides a standard for -- positive law, the formal legal

enactments of a particular society.

Since law must always be some dictate of reason, natural law also will be some dictate of

reason. In fact, it is law discovered by human reason. Our normal and natural grasp of the

natural law is effected by reason, that is, by the thinking mind, and in this service reason

is sometimes called "conscience." We, in all our human acts, inevitably see them in their

relation to the natural law, and we mentally pronounce upon their agreement or

disagreement with the natural law. Such a pronouncement may be called a "judgment of

conscience." The "norm" of morality is the natural law as applied by conscience. Lastly,

we can say that the natural law is the disposition of things as known by our human reason

and to which we must conform ourselves if we are to realize our proper end or "good" as

human beings.

To sum it up, then, we can say that the natural law:

is not made by human beings;

is based on the structure of reality itself;

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

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

is the naturally knowable moral law;

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

It is interesting to note that virtually everyone seems to have some knowledge of natural

law even before such knowledge is codified and formalized. Even young children make

an appeal to "fair play," demand that things be "fair and square," and older children and

adults often apply the "golden rule." When doing so, they are spontaneously invoking the

natural law. This is why many proponents of the natural law theory say it is the law

which is "written upon the hearts of men." These are examples of what is called

"connatural knowledge," that is, a knowledge which:

follows on the "lived experience" of the truth;

is the living contact of the intellect with reality itself;

is not always given expression in concepts;

may be obscure to the knower;

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

Now, our reflection on our own conduct gives rise to the explicit formulation of the

precepts of the natural law. We as human beings put our "commonsense" notions of

natural law under "critical examination." In other words, our natural impulses toward

"fair play," justice, and so on are subject to a rigorous investigation and rationalization.

And our understanding of natural law becomes more precise as we consider and codify

the principles or precepts of natural law. The primary precept of natural law will be the

most basic principle about human action that can be formulated.

Those readers familiar with Classical Realism will recall that there is an absolutely first

and indemonstrable principle in the speculative order of things. That is, there is an

absolutely basic, self-evident truth of reality upon which we build our entire metaphysics

which serves as the foundation for our view of the ultimate structure of reality. This is the

Principle of Contradiction, from which we derive other basic principles such as Identity

and Excluded Middle. Strictly speaking, the Principle of Contradiction cannot be

"proved." It must be accepted as an absolute "intuitive" or self-evident truth, the truth of

which is shown by an analysis of the terms of the Principle and the impossibility of

thinking the opposite.

Natural law theory is of the "practical order" of things and the first principle of the

practical order is a principle that directs human acts in all their operations, and it will be

concerned with the "good," since we act in terms of what a least seems good to us.

Therefore, the primary principle of the practical order -- the first precept of natural law --

is a formulation based upon the notion of the good and is stated in the following way:

The "good" (according to reason) must be done, and evil (what is contrary to reason)

must be avoided. The simplest statement of this precept is, of course, "Do good and avoid

evil."

Although we rarely express the precept of "Do good and avoid evil" explicitly (just as we

rarely state the Principle of Contradiction explicitly in daily life), nevertheless we always

act in terms of such a precept. This fact points to the fundamental truth of such a precept,

and indicates how it expresses something "natural" to human beings. A human being

naturally inclines to seek what appears good to reason, and naturally shrinks from what

appears to be evil. Hence, the justification of speaking of this basic moral law as "natural"

law.

Upon further reflection, we can distinguish, within natural law, primary and secondary

precepts. The primary precepts will correspond to the order of natural inclinations in

human beings. The most fundamental inclination of all, "Do good and avoid evil," will

give rise to other primary precepts such as the natural inclination to self-preservation, to

live in society, to avoid harm to others, and to know truths about the reality we live in and

our own human nature. These primary precepts are unchangeable to the extent they

concern the primary ends of the natural inclinations inherent in all human beings.

The primary precepts are very general in their formulation. The secondary precepts, on

the other hand, are more particular or specific and are concerned with things to which we

are not inclined so immediately. Among these are such precepts as those regarding the

education of children, and the stability of family life, and the demands of hospitality. On

the negative side, we also have secondary precepts regarding the neglect of children,

deliberate injury to others, and so on.

Do we know everything about the natural law? This is a common question asked and a

good one. The answer is a simple "No." The discovery of the natural law is a

continuously unfolding enterprise. Just as it took human beings a long time to separate

out and clarify the laws of physical nature, so too for the laws of moral nature. The

passage of time and additional philosophical reflection always raises new issues in

natural law theory. For instance, slavery was once accepted as normal and natural even

by many who subscribed to natural law theory. We now know that slavery violates the

natural law. Society once accepted judicial torture as being normal and natural. We now

know that judicial slavery violates the natural law. And, personally, I am convinced that

one day our society will "discover" that capital punishment violates natural law and we

will abolish it.

The obvious conclusion here is that our knowledge of natural law, particularly regarding

its secondary precepts, is incomplete, and probably will always be incomplete. We, as

civilized and rational human beings, will always be involved in a "critical examination"

of our actions in the practical order. Out of this reflection will come new and refined

"truths" regarding ethics and moral philosophy. In fact, I suspect that we are now in a

time when the most important decisions we make as a society will be those in ethics and

moral philosophy (think "bioethics" and "weapons of mass destruction"). This is one

reason why I have no reservations about suggesting that all students in our institutions of

higher education need a good dose of philosophical studies, especially, of course, in the

tradition of Classical Realism.

I hope you have some general knowledge of natural law theory as a result of this brief

overview. Moreover, I hope I have interested you to seek more knowledge about this

fascinating theory.

If you want to learn more, I have suggested some resources which should help you in

your investigation. See: Dr. Dolhenty's Recommended Bookshelf For Natural Law

Theory.

NATURAL LAW

In jurisprudence and political philosophy, a system of right or justice common to all

humankind and derived from nature rather than from the rules of society, or positive law.

The concept can be traced to Aristotle, who held that what was “just by nature” was not

always the same as what was “just by law.” In one form or another, the existence of

natural law was asserted by the Stoics (see Stoicism), Cicero, the Roman jurists, St. Paul,

St. Augustine, Gratian, St. Thomas Aquinas, John Duns Scotus, William of Ockham, and

Francisco Suárez. In the modern period, Hugo Grotius insisted on the validity of natural

law even on the assumption that God does not exist, and Thomas Hobbes defined a law

of nature as “a precept of general rule found out by reason, by which a man is forbidden

to do that which is destructive of his life.” Hobbes attempted to construct an edifice of

law by rational deduction from a hypothetical “state of nature” and a social contract of

consent between rulers and subjects. John Locke departed from Hobbes in describing the

state of nature as an early society in which free and equal men observe the natural law.

Jean-Jacques Rousseau postulated a savage who was virtuous in isolation and actuated by

two principles “prior to reason”: self-preservation and compassion. The authors of the

U.S. Declaration of Independence refer only briefly to “the Laws of Nature” before citing

equality and other “unalienable” rights as “self-evident.” The French Declaration of the

Rights of Man and of the Citizen asserts liberty, property, security, and resistance to

oppression as “imprescriptible natural rights.” Interest in the concept of natural law

declined dramatically in the 19th century, partly as a result of skeptical attacks by Jeremy

Bentham and other proponents of utilitarianism; it was revived in the mid-20th century in

light of the crimes committed by the Nazi regime during World War II. Skepticism of

natural law and natural rights remained strong, however, and later writers almost

invariably talked of human rights rather than natural rights.

STOICISM

School of philosophy in Greco-Roman antiquity.

Inspired by the teaching of Socrates and Diogenes of Sinope, Stoicism was founded at

Athens by Zeno of Citium c. 300 BC and was influential throughout the Greco-Roman

world until at least AD 200. It stressed duty and held that, through reason, mankind can

come to regard the universe as governed by fate and, despite appearances, as

fundamentally rational, and that, in regulating one's life, one can emulate the grandeur of

the calm and order of the universe by learning to accept events with a stern and tranquil

mind and to achieve a lofty moral worth. Its teachings have been transmitted to later

generations largely through the surviving books of Cicero and the Roman Stoics Seneca,

Epictetus, and Marcus Aurelius.

Jurisprudence may be divided into three branches: analytical, sociological, and

theoretical. The analytical branch articulates axioms, defines terms, and prescribes the

methods that best enable one to view the legal order as an internally consistent, logical

system. The sociological branch examines the actual effects of the law within society and

the influence of social phenomena on the substantive and procedural aspects of law. The

theoretical branch evaluates and criticizes law in terms of the ideals or goals postulated

for it.

Thomas Hobbes

Born April 5, 1588, Westport, Wiltshire, Eng.

died Dec. 4, 1679, Hardwick Hall, Derbyshire

English philosopher and political theorist.

The son of a vicar who abandoned his family, Hobbes was raised by his uncle. After

graduating from the University of Oxford he became a tutor and traveled with his pupil in

Europe, where he engaged Galileo in philosophical discussions on the nature of motion.

He later turned to political theory, but his support for absolutism put him

SOCIAL CONTRACT

Actual or hypothetical compact between the ruled and their rulers.

The original inspiration for the notion may derive from the biblical covenant between

God and Abraham, but it is most closely associated with the writings of Thomas Hobbes,

John Locke, and Jean-Jacques Rousseau. Hobbes argued that the absolute power of the

sovereign is justified by a hypothetical social contract in which the people agree to obey

him in all matters in return for a guarantee of peace and security, which they lack in the

warlike “state of nature” posited to exist before the contract is made. Locke believed that

rulers also were obliged to protect private property and the right to freedom of thought,

speech, and worship. Rousseau held that in the state of nature people are unwarlike but

also undeveloped in reasoning and morality; in surrendering their individual freedom,

they acquire political liberty and civil rights within a system of laws based on the

“general will” of the governed. The idea of the social contract influenced the shapers of

the American Revolution and the French Revolution and the constitutions that followed

them.

Thomas Hobbes and John Locke

Thomas Hobbes and John Locke, where they agreed

and disagreed concerning nature, natural law, and the

nature of man in a state of war.

Thomas Hobbes and John Locke were two main political philosophers during the

seventeenth century. Hobbes is the well known author of Leviathan, and Locke is the

author of An Essay Concerning Human Understanding. In their essays, both men address

the characteristics of man, natural law, and the purpose and structure of government. The

two men have very different opinions of the characteristics of man. Hobbes sees man as

being evil, whereas Locke views man in a much more optimistic light. They both agree

that all men are equal according to natural law. However, their ideas of natural law differ

greatly. Hobbes sees natural law as a state of war in which every man is a enemy to every

man. Locke on the other hand, sees natural law as a state of equality and freedom. Locke

therefore believes that government is necessary in order to preserve natural law, and on

the contrary, Hobbes sees government as necessary in order to control natural law.

Hobbes and Locke see mankinds natural characteristics in two very different ways.

Hobbes describes the life of man as solitary, poor, nasty, brutish, and short. He obviously

does not think very highly man. He also says that it is hard for men to believe there be

many so wise as themselves, expressing his discontent with how selfish men are.

Conversely, Locke views mankinds natural characteristics much more optimistically.

Locke sees men as being governed according to reason. He perceives men to be thinking,

capable individuals that can coexist peacefully. Hobbes and Locke disagree on mankinds

natural characteristics, but the degree of their disagreement grows much larger with

respect to natural law.

The main thing that Hobbes and Locke can seem to agree on, with respect to natural

law, is that all men are equal in nature. For Hobbes, this equality exists in a state of war, in

which every man has a right to every thing. He terms this state of war, a state of equality,

because even the weakest has strength enough to kill the strongest. In Hobbess opinion, no

one is superior, because they are all equal in their level of rottenness. Locke agrees that in

natural law, no one is superior. However he writes, the state all men are naturally inis a

state of perfect freedom equality and liberty, displaying his belief that men are sensible by

nature, and can exist happily according to natural law, without the need for constant war.

Locke does admit that war is sometimes necessary, but that one may only destroy a man

who makes war upon him. In general, he believes that it is beneficial for humans to follow

natural law.

Since natural law is good, and not evil for Locke, it is therefore the role of government to

preserve natural law. For Hobbes on the other hand, government must exist in order to

control natural law. Hobbes reasons that people will abide by the laws the government

sets, for fear of some evil consequence. Hobbes points out the selfish reasons for why man

will follow government in order to explain how government is able to work, with men

being so naturally evil. Locke sees government, as merely a preservation of that which is

already good. Locke believes that people are willing to unite under a form of government

so as to preserve their lives, liberties and estates, or in other words, their property. Since

natural law is already good, government not only preserves natural law, but also works to

enhance it.

The ideas presented by Hobbes and Locke are often in opposition. Hobbes tends to take a

much more pessimistic stance; viewing men as evil, natural law as a state of war, and

government as something that can wipe out natural law. Locke takes a much more

optimistic stance; viewing men as free and equal and seeing government as only a

preservation of the state they are naturally in. Despite the difference in their arguments,

their ideas were revolutionary for their time. The interest they took in mans natural

characteristics, natural law, and the role of government, provided inspiration for, and was

the focus of many literary works throughout the Enlightenment.

MARXIST JURISPRUDENCE

TUTOR: CHRIS BEHRENS

STUDENT: DAVID RISSTROM: 9106105

In the social production of their existence, men inevitably enter into definite

relations, which are independent of their will, namely relations of production

appropriate to a given stage in the development of their material forces of

production. The totality of these relations constitute the economic structure of

society, the real foundation, on which arises a legal and political superstructure

and to which correspond definite forms of social consciousness.

Karl Marx, Preface to A Contribution to the Critique of Political Economy, 521.1

Marxist jurisprudence posits that legal relations are determined by the economic base of

particular kinds of society and modes of production.2 Marxist thought’s primary focus

rests on political economy and the corresponding power relations within society,

providing the most extensive critique to date of liberal tradition on which many of our

legal presuppositions are founded. To this end, this essay examines law, its structure,

motivation and consequences for justice and rights from a Marxian jurisprudential

perspective.

MARXISM AND LAW

1 Marx, K., ‘Preface to A Contribution to the Critique of Political Economy’ in Karl Marx and Frederick Engels Selected Works, Moscow: Progress Press, 1989 521.

2 Balbus, I., ‘Commodity Form and Legal Form’ in Reasons, C., The Sociology of Law, Toronto: Butterworths, 1978 83.

Your ideas are but the outgrowth of the conditions of your bourgeois production

and bourgeois property, just as your jurisprudence is but the will of your class

made into a law for all, a will, whose essential character and direction are

determined by the economical conditions of existence in your class.

Karl Marx, The Communist Manifesto, 24.

Law is not of central concern to Marxists jurisprudentialists, as law in the capitalist mode

of production is seen as an instrument of class oppression perpetuated as a consequence

of its particular historical, social and economic structures. Indeed, wishing to avoid

liberal predisposition towards legal fetishism, Marxists deny the degree of importance

jurisprudence typically affords law in analyses of the composition and determination of

social formations.3

WHAT IS MARXISM?

Marxist theories of political economy, expounded upon the notions of Karl Marx (1818-

83) and Friedrich Engels (1820-95), consider law an instrument of class oppression that

benefits the ruling class through oppression of the proletariat. The common law system

of criminal and civil law, which protects personal and private property rights, as well as

facilitating predicability in social life, is regarded as “no more than a system of coercion

designed to protect bourgeois ownership of the means of production”.4

Yet, despite Marx and Engels’ failure to develop a systematic approach to law5, and

claims of failure in Eastern Europe and the Soviet Union, Marxism’s materialist

3 Collins, H., Marxism and Law, Oxford: Oxford University Press, 1987 98.

4 Barry, N., An Introduction to Modern Political Theory, London: Macmillan, 1989 53.

5 Cain, M., and Hunt, A., 1979, Marx and Engels on Law, London: Academic Press.

emphasis, particularly concerning the notion of alienation and its consequences as

outlined by Ollman6, assists its contemporary paucity.7

HISTORICAL MATERIALISM

Men have history because they must produce their life, and because they must

produce it moreover in a certain way: this is determined by their physical

organisation; their consciousness is determined in just the same way.

Marx, The German Ideology, 49.

The determinist relationship between the economic base and social superstructure, known

as Historical Materialism, is first described in The German Ideology.8 Historic

materialism contends that the catalyst behind societal evolution is materially determined,

being predicated on contradictions between the forces and means of production. As “it is

not consciousness that determines life, but life that determines consciousness”9, law is a

reflection of the economic base, rather than the reserve as liberals such as Dworkin would

propose.

Under increasing industrialisation Marx foresaw crystallisation of society into two

classes; bourgeoisie and proletariat. These relations of production developed due to

particular forces of production under the capitalist mode of production that coerced the

bourgeoisie to extract surplus value as profit from the proletariat. Laws, as Marx detailed

in Capital, as one element of the social superstructure, assisted in forcing down wages.10

6 Ollman, B.,1976, Alienation; Marx’s Conception of Man in Capitalist Society, Cambridge: Cambridge University Press.

7 Collins, H., op cit., 10.8 Marx, K., and Engels, F., 1976, The German Ideology, Moscow:

Progress Press. 9 Marx, K., The German Ideology, Moscow: Progress Publishers,

1976 42.10 Marx, K., ‘Bloody Legislation against the Expropriated, from the

end of the 15th. century: Forcing Down Wages by Acts of Parliament’ in Capital, 1986 686.

Collins characterises two Marxist approaches; crude materialism, in which law is simply

a reflection of the economic base; and secondly, class instrumentalism; in which rules

emerge because the ruling class want them to.11 This distinction continues as an area of

debate, as demonstrated by O'Malley’s attacks of Quinney and Chambliss’ crude

materialist claim that law is a direct tool of powerful classes or groups, favouring the

more interactionist, and less conflict premised theory of legislative change.12 The

Relative Autonomy Thesis is such a theory. Contemporary Marxists such as Marcuse,

suggest mechanisms analogous to the Factory Acts and Vagrancy Acts remain

instruments of the ruling class perpetuating conditions reinforcing this arrangement,

especially in relation to the alienating nature of modern technological rationality.13

BASE AND SUPERSTRUCTURE IN THE CAPITALIST MODE OF PRODUCTION

Much of our law, such as Contract, Property and Commercial Law, is predicated on the

existence of the capitalist mode of production. As Marx’s major project was the critique

of capitalism, irrespective of a belief in revolution, Marxism has a great deal to notify us

of in our contemporary jurisprudence. Marxism postulates that in the social production

of their existence, people, independent of their will, enter into definite relations of

production appropriate to a given stage in the development of the materials forces of

production.14 Consequently the societal superstructure, including but not dominated by

law, amongst other hegemonic devices, is determined by the economic base and the

organisation of power in society.15 Marxist jurisprudence concentrates on the

11 Collins, H., Marxism and Law, Oxford: Oxford University Press, 1987 24.

12 O’Malley, P., ‘Theories on Structure Versus Causal Determination’ in Tomasic (ed.) Legislation and Society in Australia, Allen and Unwin, 1980 140.

13 Marcuse, H., One-Dimensional Man, Boston: Beacon Press, 1968 xv.

14 Marx. K., Preface To ‘A Contribution to the Critique of Political Economy’ in Karl Marx and Friedrich Engels Selected Works, 1989 521.

15 Collins, H., op cit., 9.

relationship between law and particular historical, social and economic structures, seeing

law, unlike liberal theory, as having no legitimate primacy. Frequently encountered legal

rules and doctrine, argue Gramsci16 and Althusser17, establish modern liberal

jurisprudential hegemony.18

SCIENTIFIC SOCIALISM

Marxist epistemology, with dialectic materialism as the centrepiece of Marxism’s

scientific claim, proclaims in real life, where speculation ends, positive science; the

representation of the practical activity, of the practical progress of development of men,

begins.19 Whilst Marx’s materialism does not refer to the assumption of a logically

argued ontological position, Marx adopts an undoubtedly Realist position, in which ideas

are the product of the human brain in sensory transaction with a knowable material

world.20

These claims contrast with those of natural lawyers such as Aquinas who believe religion

should normatively guide law; those desiring utilitarian tendencies such as Austin and

Bentham; or objective consistency as some positivists such as Hart, or perhaps integrity,

as perhaps only Dworkin can fully endorse. Nevertheless, whilst debate as to the

scientific credentials of Marxism continue, Collins claims Marxism’s desire for class

reductionism to explain the dynamic interaction between man and nature risks

misconstruing the diversity of social phenomena in order to confirm the ‘rigid systemic

framework of historical materialism’.21

16 Gramsci, A., Selections from the Prison Notebooks, London: Lawrence and Wishart. 1971 195.

17 Althusser, L., For Marx, London: New Left Books, 1977 114.18 Collins, H., Marxism and Law, Oxford University Press, 1982 50.19 Marx, K., The German Ideology, Moscow: Progress Publishers,

1976 38. 20 Giddens, A., Capitalism and Modern Social Theory: An Analysis of

the writings of Marx, Durkheim and Weber, Cambridge: Cambridge University Press, 1971 21.

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

LAW AND THE DICTATORSHIP OF THE PROLETARIAT

Law, morality, religion, are to him so many bourgeois prejudices, behind which

lurk in ambush as many bourgeois interests.

Karl Marx, The Communist Manifesto, 18

Marxism saw development of the relations of production dialectically, as both inevitable,

and creating hostility. Accelerated by increased class consciousness, as the

contradictions of capitalism perforate the bourgeois hegemony, inevitable revolution and

a dictatorship of the proletariat would facilitate “socialised production upon a

predetermined plan.”22 Given the scientific nature of Historic Materialism, and upon

recognising the role the state and its laws supply, the proletariat will seize political

power and turn the means of production into state property23, then according to Marxist

jurisprudence, “As soon as there is no longer any class to be held in subjection; as soon as

class rule and the individual struggle for existence … are removed, nothing more remains

to be repressed.”24

COMMUNISM AND THE END OF LAW

The meaning of history, that man’s destiny lies in creation of a Communist society where

“law will wither away”25 , as men experience a higher stage of being amounting to the

realisation of true freedom, will after transition through Socialism, be achieved.

JUSTICE AND RIGHTS

22 Engels, F., Socialism: Utopian and Scientific, Moscow: Progress Publishers: 1954 79.

23 Ibid., 73.24 Ibid., 73.25 Marx, K., The German Ideology, Moscow Progress Press, 1976 51.

Communism abolishes eternal truths, it abolishes all religion, and all morality,

instead of constituting them on a new basis.

Karl Marx, The Communist Manifesto, 24

Marxism argues there is no absolute concept of justice, justice being dependent on the

requirements of a given mode of production.26 Lukes claims Marx believes justice,

“Does not provide a set of independent rational standards by which to measure social

relations, but must itself always in turn be explained as arising from and controlling those

relations”.27

Marxism believes that rights are simply a bourgeois creation, and that justice is

something only the rich can achieve in capitalist modes of production. Anatole France

(1894) encapsulated this distinction between formal and substantive justice as

entitlement, drawing attention to “the majestic egalitarianism of the law, which forbids

rich and poor alike to sleep under bridges, to beg in the streets and to steal bread.”28

Formal justice as entitlement therefore allows equal opportunity to the individual without

any reference to the unequal ability to use it, with rights only being anti-socialist if

individuals are taken to be “inherently and irredeemably self-interested.”29

Marxist dispute over how rights and justice will operate in practice are answered by the

materialist proposition that the “distribution of burdens and benefits should not be taken

in accordance with a book of rules, but in the light of the objectives of social policy.” 30

Campbell distinguishes between Socialist and Bourgeois Rights, arguing that an interest

based theory of rights, rather than the contract based notions such as Pashukanis’

26 Wacks, R., Jurisprudence, London: Blackstone Press, 1987 175.27 Lukes, S., Marxism, Morality and Justice’ in Parkinson, G., Marx

and Marxisms, Cambridge: Cambridge University Press, 1982 197.28 Gamble, A., An Introduction to Modern Political and Social

Thought, Hampshire: Macmillan, 1987 101.29 Campbell, T., Justice, London: Macmillan, 1988 189.30 Campbell, T., The Left and Rights, London: Routledge and Kegan

Paul, 1983 33.

incorporated in his commodity exchange theory of law31, allow protection of the

individual32, thereby negating the logical connection between rights and justice.33

IN SUMMARY

Marxist jurisprudence and Marxist critiques of law provide invaluable challenges to our

thinking as people under law in a liberal democratic society. This essay is only the

briefest of introductions in a field rich with reflections concerning the assumptions we

construct into our law. Whether you accept the claims of its doctrine, its influence on

shaping the society we live in is more significant than most of us realise.

BIBLIOGRAPHY

Althusser, L., 1977, For Marx, London: New Left Books.

Balbus, I., 1978, ‘Commodity Form and Legal Form’ in Reasons, C., The Sociology of

Law, Toronto: Butterworths.

Baradat, L., 1991, Political Ideologies: Their Origins and Impact, 4th Edn., New Jersey:

Prentice Hall.

Barbalet, J., 1983, Marx's Construction of Social Theory, London: Routledge and Kegan

Paul.

Barry, N., 1989, An Introduction to Modern Political Theory, 2nd Edn., London:

Macmillan.

31 Warrington, R., ‘Pashukanis and the commodity form theory’ in Sugarman, D., Legality, Ideology and the State, London: Academic Press, 1983 43.

32 Campbell, T. 1983, op cit., 123.33 Ibid., 124.

Berger, P. and Luckmann, T., 1975, The Social Construction of Reality, Harmondsworth:

Penguin.

Blackburn, R., (Ed.), 1991, After the Fall: The Failure of Communism, London: Verso.

Cain, M., and Hunt, A., 1979, Marx and Engels on Law, London: Academic Press.

Campbell, T., 1988, Justice, London: Macmillan.

Campbell, T., 1981, Seven Theories of Human Nature, Oxford: Oxford University Press.

Campbell, T., 1983, The Left and Rights, London: Routledge and Kegan Paul.

Collins, H., 1982, Marxism and Law, Oxford: Oxford University Press.

Connell, R., 1977, Ruling Class, Ruling Culture, London: Cambridge University Press.

Cotterrell, R., 1989, The Politics of Jurisprudence: A Critical Introduction to Legal

Philosophy, London: Butterworths.

Easton, L and K, Guddat (Eds.), 1967, Writings of the Young Marx on Philosophy and

Society, New York: Anchor.

Engels, F., 1954, Socialism: Scientific and Utopian, Moscow: Progress Press.

Foucault, M., 1979, Discipline and Punish-The Birth of the Prison, Middlesex: Penguin.

Frankel, B., 1983, Beyond the State?; Dominant Theories and Socialist Strategies,

London: MacMillan.

Frolov, I. (ed.), 1980, Dictionary of Philosophy, Moscow: Progress Publishers.

Fromm, E., 1973, Marx's Concept of Man, New York: Frederick Ungar Publishing.

Gamble, A., 1987, An Introduction To Modern Social And Political Thought, Hampshire:

Macmillan.

Giddens, A., 1981, Capitalism and Modern Social Theory; An analysis of the writings of

Marx, Durkheim and Weber, Cambridge: Cambridge University Press.

Gramsci, A., 1971, Selections from the Prison Notebooks, London: Lawrence and

Wishart.

Habermas, J., 1970, Toward a Rational Society, London: Heinemann.

Harris, J., 1980, Legal Philosophies, London: Butterworths.

Kellner, D., 1984, Herbert Marcuse and the Crisis of Marxism, London: Macmillan.

Luhmann, N., 1982, The Differentiation of Society, New York: Colombia University

Press.

Lukes, S., 1986, Power: A Radical View, London: Oxford University Press.

Marcuse, H., 1975, One-Dimensional Man, Boston: Beacon Press.

Marx, K., 1986, ‘Bloody Legislation against the Expropriated, from the end of the 15th.

Century: Forcing Down Wages by Acts of Parliament’ in Capital, Moscow: Progress

Press.

Marx, K., 1986, Capital; A Critique of political Economy, Vol 1; The Process of

Production of Capital, Moscow: Progress Publishers.

Marx, K., 1977, Economic and Philosophical Manuscripts of 1844, Moscow: Progress

Publishers.

Marx, K.,1975, Early Writings, London: Penguin.

Marx K. and Engels F., 1848, Manifesto of the Communist Party; authorised English

translation from the Marx-Engels Institute, Melbourne: International Bookshop.

Marx, K., 1989, ‘Preface to A Contribution to the Critique of Political Economy’ in Karl

Marx and Frederick Engels Selected Works, Moscow: Progress Press.

Marx, K., and Engels, F., 1965, The German Ideology, Moscow: Progress Publishers.

Marx, K., and Engels, F., 1989, Selected Works, Moscow: Progress Publishers.

Marx, K., 1902, Wage, Labour and Capital, New York: New York Labor News

Company.

McLellan, D.,1971, Marx’s Grundisse, London: Macmillan.

McLellan, D.,1980, The Thought of Karl Marx, London: Macmillan.

McMurtry, J., 1978, The Structure of Marx’s World View, New Jersey: Princeton

University Press.

Offe, C., 1985, Disorganised Capitalism: Contemporary Transformations of Work and

Politics, Cambridge: Polity Press.

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Cambridge: Cambridge University Press.

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(Ed.) Legislation and Society in Australia, Sydney: Allen and Unwin.

Tucker, R., (ed.),1972, The Marx-Engels Reader, New York: Norton.

Wacks, R., 1987, Jurisprudence, London: Blackstone Press.

Warrington, R., 1983, ‘Pashukanis and the commodity form theory’ in Sugarman, D.,

Legality, Ideology and the State, London: Academic Press.

22.6 Rights Without Duties

Hohfeld, a legal philosopher, emphasised the relationship between rights and duties and

also the difference between right and privilege. Hohfeld emphasised that there cannot be

a right without a duty. Right in one person presupposes a duty in another. The concept of

a right without a duty is meaningless. Likewise he also distinguished between rights and

privileges. A privilege is available on sufferance. It is a discretion vested in the person

granting it. A right is an entitlement. On this analysis what are commonly called rights to

employment, welfare, etc, are not rights. A right to employment is meaningless because

there is no person who is under a duty to employ. Welfare is not a right. It is a privilege

which is given to certain persons.

Whether one agrees with this analysis or not, it is undeniable that at the commonsense

level a right involves a duty in another person or institution. As an essential

commonsense corollary, it must also involve an acceptance of that duty by the person

who is subject to it. It is ironic in society today that while more and more people are

demanding rights, fewer and fewer people are concerned about duties, least of all those

who are most vocal in the assertion of rights. Governments, the Human Rights

Commission and many other government agencies provide doubtful leadership in this

regard. They are educating people about their rights and are attempting to make more and

more rights available with no reference to logic and commonsense. But they seem

unconcerned about the need to educate people about duties and the importance of a sense

of responsibility.

A dangerous byproduct of the welfare state and the growth of government is a profound

attitudinal change in society which makes people demand more and more and contribute

less and less. This transformation of the social psyche has taken place imperceptibly to

the point that it unconsciously pervades the entire society. The preoccupation with rights

(particularly state created social and economic rights) has become an obsession. Although

this is not an intrinsic evil, the pursuit of rights becomes self defeating when it is

unaccompanied by the commitment to duties. The pressures exercised by interest groups

have become the dominant feature of the modern era. These demands come not only from

the poor and the underprivileged, but also from privileged academic, bureaucratic, social

and business groups. At the same time there is a deafening silence on the question of

individual responsibility.

The interventionist welfare state has become a super patriarchal entity from which

individual members have come to expect solutions to all problems. Rights are being

demanded and duties forgotten.

The Bible emphasises duties and responsibilities (not rights). The Ten Commandments

are duties. Duties have been more important than rights in the Australian Achievement.

The emphasis on rights to the near exclusion of duties and responsibilities in modern

society is a challenge. There is a grave danger in the push towards legislative recognition

of subjective (so-called) rights in response to the demands of politically influential

pressure groups.

A duty-centred society is preferable to a right-centred society. If individuals are

concerned about their duties, responsibilities and obligations, they cannot but be

concerned about the rights and freedoms of others. A right-centred society is one in

which individuals assert their rights. They are encouraged by the Human Rights

Commission and like Commonwealth and State bodies, to demand rights, with no

consideration for the effect of those demands on other people, eg the right to protest and

demonstrate conflicts with the right of pedestrians and motorists to use the public roads

for the purpose for which roads are built.

Governments and pressure groups which focus on rights, give no thought to how rights

can operate in the absence of a climate in which the importance of duties is emphasised.

There is no end to the so-called rights which can be demanded. A right-conscious society,

in effect, recognises a few rights and neglects many others. The rights that are recognised

are those which are demanded by the powerful, the aggressive and the nasty.

There cannot be a right without a duty. An endless cacophony of demands by interest

groups for rights has become a dominant feature of the modern Australian State (fed by

legislation which encourages these demands). At the same time there is a deafening

silence on the question of individual responsibility. The time has come to realise and to

emphasise that rights, whether material or political, depend on the discharge of duties.

Wealth and prosperity are created by effort. Only continuing effort can sustain them.

Western societies through effort have achieved a level of prosperity unparalleled in

history.

History has continually demonstrated that the greatest of civilisations decline and fall

when they succumb to indulgence at the expense of discipline and endeavour. The fate of

Egyptian and Roman civilisations are prime examples. It is not too early for Western

Civilization to heed the supreme lesson of human experience.

Analysis of Hohfeldian Conception of Liberty

LI Jian

 

The conception of right is fundamental in realms of political, moral and legal philosophy.

Although it is widely used, what is a right or what is the meaning of right is a problem

which needs to be carefully dealt with. There is no doubt that an appropriate starting

point to talk about rights is the remarkable analysis of legal rights in Wesley Newcomb

Hohfeld¡¯s Fundamental Legal Conceptions. Hohfeld distinguished the conception of

right into four sub-conceptions (which are right or claim, privilege or liberty, power and

immunity), and defined them through their correlatives (i.e. duty, no-right or no-claim,

liability, disability or no-power). In this way, he provided a useful method to turn the

general, ambiguous notion of right into several distinctive, well-defined ideas. Many

authors are inclined to reformulate Hohfeld¡¯s definitions and take them as their basis to

investigate theories of rights.

 

The subject of the essay will be focused on the Hohfeldian conception of liberty-right (or

privilege, in his own terminology). Liberty is very important and essential among various

types of rights. It can hardly be imagined that we could have any rights if we were

deprived of our liberty. Hohfeld¡¯s analysis of liberty could be seen as a theory of the

definition of liberty, which is put forward to clarify the inner structure of liberty. That is,

a liberty is defined by, or is equivalent to a no-right that has an opposite content. As duty

also has certain logical relation to liberty, the other way to put the definition is that a

liberty is merely the negation of the duty with opposite content. I would like to show that

this definition is not manifestly true as it seems to be at the first sight. Hohfeld does not

justify it. Some philosophers adopt this definition and develop a concept of half-liberty

on the basis of it. Many philosophers take this definition as the only possible explanation

of liberty in the Hohfeldian conceptual structure. I don¡¯t think there is sufficient reason

to do so. In fact, there is a different analysis of liberty that well conform to our intuition

of liberty as free choice without contradiction to the specified logical relations between

Hohfeld¡¯s conceptions of rights and their correlatives. And it at least shows that the

Hohfeldian definition is unfounded and by no means exclusive one. But before I defend

the intuitive notion of liberty, it would be better to discuss and make clear the scheme of

correlatives and opposites which gives us almost all the analytic instruments to clarify the

¡°fundamental legal conceptions¡±.

 

Scheme of Correlatives and Opposites

 

The main achievement of Hohfeld¡¯s exploration to the nature of rights is his scheme of

¡°jural correlatives¡± and ¡°jural opposites¡±.34[1] For him, all the essence and

interrelations of fundamental legal conceptions consist in the scheme. In consideration of

the liberty-debate, I would confine myself to the part containing only first-order

conceptions.35[2] As indicated in the scheme, a claim is the invariable correlative of a

duty and the invariable opposite of a no-claim; a liberty is the correlative of a no-claim

and the opposite of a duty. What does Hohfeld mean by terms like ¡°correlative¡± and

¡°opposite¡±? He says,

 

If X has a right against Y that he shall stay off the former¡¯s land, the correlative (and

equivalent) is that Y is under a duty toward X to stay off the place.36[3]

 

Right (or claim) and duty both indicate relations between two definite persons. A right

can be said to represent a relation between X and Y that Y should stay off X¡¯s land. And

a duty also represents a relation that Y should stay off X¡¯s land. The relations

represented by a right and by its correlative duty are the same. That¡¯s the reason why

Hohfeld takes one conception and its correlative as logically equivalent to each other. As

he claims, when talking about John Austin¡¯s particular use of the term ¡°right¡±, that

 

Such a delimitation of ¡°right¡± clearly excludes ¡°legal privilege¡±; for the correlative

of the latter, or ¡°the same notion¡± from a ¡°different aspect¡±, is, of course, ¡°no-

right¡± or ¡°no-claim¡±.37[4]

 

34[1] Hohfeld, 1923, p. 36, p. 65.35[2] See Rowan, 1999, p. 23-24; Sumner, 1987, p. 29. Rowan writes: ¡°¡-second order relations describe the ways in which the first-order relations may be facilitated. In other words, they provide the rules for manipulating the first-order relations.¡± This must be an imprecise or loose explanation of conceptions other than first-order ones. Powers and immunities can also stipulate and extinguish legal relations with the contents of other powers and immunities. It would be more precise for the analysis of Hohfeldian scheme to characterize these two conceptions as higher-order conceptions.36[3] Hohfeld, 1923, p. 38.37[4] Ibid., p. 99.

Like John Austin, Hohfeld believes that all fundamental conceptions indicate nothing but

certain jural relations.38[5] And from different point of views, one relation could always

be regarded as two different conceptions. From X¡¯s point of view, the relation that Y

shall stay off X¡¯s land is a right residing in X; from Y¡¯s point of view, the same

relation is a duty on Y. A relation connects a right on one person and a duty on another.

Thus a right implies a duty representing the same certain relation, and vice versa.

Thereby these two conceptions are correlative or logically equivalent to each other. But a

right is not by all means correlative to any duty. X¡¯s right that Y shall not enter on X¡¯s

land unquestionably is not correlative to Y¡¯s duty that he shall not cause harm to X. The

right and duty that correlative to each other must be representing the relation constitute

by them. Hohfeld calls his scheme of conceptions as scheme of relations. A right always

relates to a duty, a liberty to a no-right, etc. I think this is the only foundation that a right

can be taken as equivalent to a duty. Besides this, how could Hohfeld find any reason to

justify the idea of ¡°invariable correlative¡± or logical equivalent? It could not be justified

just by observing the way people use the terms right and duty, especially when there are

many cases of confused or loose or even proliferated use of these terms. If this is true, it

is essential to all analyses of Hohfeldian conceptions, because it is on the idea of relation

that all the logical connections of Hohfeldian conceptions are founded. Opposites are

conceptions representing two relations that negate each other. That is why the opposite of

a right is a no-right; and the opposite of a liberty is of course duty, since liberty is

equivalent to no-right and duty equivalent to right.

 

Although many commentators agree that Hohfeldian conceptions are relational, it is not

very clear what relational means. L. W. Sumner holds that ¡°all of Hohfeld¡¯s

conceptions are relations between two distinct parties.¡±39[6] For Hohfeld, two parties are

two determinate persons in whom the right and the duty reside. But relation is also

38[5] Rowan says, ¡°privileges also differs from claims in that they are not relational in nature¡±, because a privilege is not correlative to a duty. (1999, p. 23) This is obviously wrong, for a no-right indicates the same relation as the liberty does.39[6] Sumner, 1987, p. 24.

construed as between ¡°a person and an object¡±, as Joseph Raz maintains.40[7] What he

has in mind is rights in rem. He stresses that a holder of the right of that kind certainly

has a relation to an object. I think the point is that relation does not mean any kind of

connection. If someone has a right to a tangible property, it does not follow that he has a

legal relation in the Hohfeldian sense. This is just because a property cannot be the holder

of rights or bearer of duties. For instance, I have a right to my computer, but it doesn¡¯t

mean that my computer has a duty to me to be used by me. If someone else shall not

dominate the use of my computer, it doesn¡¯t imply that my computer has any liberty or

immunity to other people. The bearer of rights or their correlatives can only be entities

that can perform or refrain actions. Ultimately, the relation means a relation between a

right and a duty, not necessarily requiring two distinctive parties. If I have a right to

myself that I shall live a virtuous life, then I myself have a duty to live such a life. I

don¡¯t see any reason that one particular party cannot be the right-holder and duty-bearer

at the same time.

 

Hohfeld makes two assertions with respect to the relation thought of conceptions. One is

that the relations are between a right-holder and a duty-bearer. Another is that only

particular or definite person can be right-holder or duty-bearer. These two assertions are

quite distinct from each other that one can accept the first and reject the second.

Communities constituted by people, countries and some other organizations can also be

holders of rights and bearers of duties. When we say that one country should not invade

another country, no doubt that we are taking countries as duty-bears and right-holders.

And there is no problem that one party would be collective and the other single person.

All these entities as parties in which rights or duties reside won¡¯t affect the whole

scheme of Hohfeldian conceptions and its inner structure. Concerning the first assertion,

counterexamples can also be proposed. For example, a right in rem or a right to an object

is non-relational. That means a right to an object has no correlative duty on any other

40[7] Raz, 1980, p. 180.

parties, though other peripheral rights against other parties may always protect it.41[8] It

seems that the first assertion should be rejected too. But if we confine our debate to

relational right-conceptions, then the Hohfeldian scheme and Hohfeldian analysis are still

very useful. No doubt many rights and liberties are relational, and for these rights and

liberties, Hohfeld reveals the correlatives to them. Although his believe that every

conception is relational in nature is not correct, his scheme might be well applicable to

every relational conceptions. In fact, I think the relational view is the foundation upon

which the whole Hohfeldian conceptual structure is established. And I would like to

regard the scheme of conceptions as the background to discuss in which way the

relational liberty shall be defined.

 

How to define liberty

 

Among the first-order conceptions, the pair of right and duty has comparatively clear

meaning. There are positive rights, i.e. rights with positive content, such as an

employer¡¯s right against his employee that the latter should work for him. There are also

negative rights, rights with negative content, such as one person¡¯s right that another one

should not enter on his land. In any of these cases, the content of a duty is the same with

that of a right. But when analyzing the notion of liberty, there is some distinctive

difference in Hohfeld¡¯s mind. He says,

 

¡whereas X has a right or claim that Y, the other man, should stay off the land, he himself

has the privilege of entering on the land; or, in equivalent words, X does not have a duty

to stay off. The privilege of entering is the negation of a duty to stay off.

 

Thus, the correlative of X¡¯s right that Y shall not enter on the land is Y¡¯s duty not to

enter; but the correlative of X¡¯s privilege of entering himself is manifestly Y¡¯s ¡°no-

41[8] Sumner proposes that a liberty to do something with respect to everyone is non-relational, for the reason that in this case ¡°I have no duty to anyone not to do it.¡± (1987, P. 26.) But if someone else imposes his claim on me that I shall not do it, then he certainly violates my liberty to do that. Equivalently, I do not have a duty to him not to do that. Thus it is clear that I do have a liberty/no-claim relation to everyone.

right¡± that X shall not enter.42[9]

 

The biggest difference between definitions of right and liberty seems to be that the

content of a liberty is exactly opposite to that of its correlative. But what exactly is the

content or tenor of a liberty? Since liberty is a relational conception, its content must

mean a relation¡¯s content, and this relation is represented by the liberty. As has been

shown, one relation is designated both by one conception and by its correlative.

Therefore the correlative to the liberty, i.e. no-right, also takes the content of the relation

to be its own content. That is to say, the content of a liberty must be the same as the

content of a no-right. But why does Hohfeld regulate that the content of a no-right is

contrary to that of a liberty? Hohfeld himself does not define liberty through its

correlative as he does with regard to right. He gives the definition as ¡°¡the mere negation

of a duty¡having a content of tenor precisely opposite to that of the privilege in question.

¡±43[10] It seems to be his strong intuition that a liberty to do something is undoubtedly

equivalent to a duty not to do that. But intuition is just intuition. How could his definition

be justified without resorting to the relational essence of conceptions? If he does so, how

could he demonstrate that a liberty to do and a no-right not to do represent and constitute

the same relation? And what is the content of the relation£¿I don¡¯t think these are

questions that can be slightly overlooked. For a liberty to do defined as the negation of a

duty not to do is, in Hohfeld¡¯s view, consistent with a duty to do. That means one may

have a liberty and a duty at the same time.

 

Thus, if, for some special reason, X has contracted with Y to go on the former¡¯s own

land, it is obvious that X has, as regards Y, both the privilege of entering and the duty of

entering.44[11]

 

One can be both at liberty to do something and obligated to do that. This is rather

42[9] Hohfeld, 1923, p. 39.43[10] Ibid., p. 39.44[11] Ibid., p. 39.

contrary to our normal intuition that liberty is free choice without any restriction. So, an

intuition seems to be reasonable leads to a conclusion contradictory to our more common

intuition.

 

Since liberty and duty are opposites, i.e. logical contradictories, the former could be

defined by the negation of the latter. This seems to be out of question, and being at liberty

normally refers to the state lacking duty. But the way that Hohfeld uses the negation of

duty to define liberty is not unquestionable. If the right/duty relation and the relation

represented by liberty negate each other, then liberty could be well defined just by the

negation of duty, or by the lacking of duty. Why should we define liberty as negation of

duty with opposite content? In order to define liberty, the negation of duty is adequate;

but Hohfeld also negates the content of the duty, therefore he actually negates the duty

twice. I call it double negation. If we only negate once, all the logical connections

between Hohfeldian conceptions still remain. There is no need to negate a given duty

twice.

 

The content of right or duty is directional.45[12] The content is either to do something or

not to do something; that is the quality of restriction, whereas the content of liberty could

be construed as negation of the directionality of a given duty. Negation of directionality

means free choice between two opposite directional actions, and that is the essence of

liberty. In which sense a liberty/no-right relation negates a right/duty relation? I think it is

the annulment of the directionality of the latter. In this way, liberty is in essence non-

directionality, opposite to duty or right, no matter what specific direction the duty or right

has. Such a liberty is a liberty to do or not to do something. But ordinarily, we would

often say a liberty to do something or a liberty not to do something. That may represent

certain action that we prefer to choose, not necessarily the real logical quality of the

liberty. Given a liberty to do something, if I choose not to do that, it would not violate

anyone¡¯s right, since no one has a right that I shall do that. The liberty to do something

implies the liberty not to do it, and vice versa. The content of a liberty could also be said

to be certain action, just like the content of duty or right. But liberty ensures the free

45[12] Sumner, 1987, p. 25.

option on the subject; whether he chooses to do or forbears to do, there is no restriction

on his choice. In other words, there is no directionality upon this certain action.

 

 

Sumner displays ¡°the logical connections among first-order Hohfeldian normative

relations. Where X and Y are persons and V is some act, the rows in the following matrix

give correlatives and the columns (and diagonals) give opposites.

 

X has a liberty with Y has no claim against X

respect to Y to V that X not V

X has a duty to Y Y has a claim against X

not to V that X not V¡±46[13]

 

It is possible for a liberty defined as free choice to be accommodated in such a diagram,

and all logical connections of correlatives and opposites are unchanged. The alternative

diagram is as follows,

 

X has a liberty with respect Y has no claim against X

to Y V or not V that X V or not V

X has a duty to Y V or Y has a claim against X that X V or

X has a duty to Y not to V Y has a claim against X that X not V

 

Where X has a liberty to V or not to V, Y has neither a claim that X V nor a claim that X

not V. Here a no-claim that X V plus a no-claim that X not V is abbreviated to a no-claim

that X V or not V. X¡¯s liberty to or not to V indicates his control over this action,

whether he V or not V is independent of Y¡¯s control or claim. The opposite to X¡¯s

liberty could be either X¡¯s duty to V or X¡¯s duty not to V. Where X has liberty with

regard to V, he has no duty at all. A duty with any kind of content, negative or positive,

would be contradictory to a liberty. In this table, the conception of liberty is still

correlative to no-claim and opposite of duty. In spite of the new characterization of

46[13] Sumner, 1987, p. 27.

liberty, the connections and relational qualities of first-order conceptions are retained. It

at least shows that Hohfeld¡¯s definition of liberty can be separated from his scheme of

logical connections of conceptions. We can apply this scheme to right-analysis and insist

a different notion of liberty at the same time. I have argued that Hohfeld¡¯s definition is

unfounded or unjustified; even if there is adequate reason to accept his view, I hold that

an alternative definition is feasible as well.

 

Why Hohfeld advocates liberty as being compatible with duty? When he takes liberty

into consideration, it seems that he has been influenced by the directionality of right and

duty. Duty and right must be directional; to say a duty to do or not to do something is

nothing but nonsense. It may appear to him that liberty should be directional too.

Manifestly a liberty to do is contradictory to a duty not to do; this ostensible connection

might be taken as definition of liberty. Besides, if liberty were construed as free choice,

then not only a duty not to do, but also a duty to do would be contradictories to such a

liberty. Then the single connection between liberty and duty might be lost. Perhaps this

definition of liberty on the basis of duty comes from Hohfeld¡¯s view that right/duty

relation is the strictest one among all fundamental relations.47[14] Therefore, when

analyzing liberty, the contents that right and duty have and the way in which they are

defined might affect Hohfeld. He defines liberty through a directional duty and then

makes liberty directional too. The problem is why right/duty should be regarded as the

relation in the strictest sense, why right or claim is stricter than liberty and other right-

conceptions. Hohfeld himself doesn¡¯t provide any reason. The truth is that liberty is not

less important than claim from both legal and moral point of view. We would say that

one is deprived of his basic right if he could not enjoy unencumbered choice or act freely.

For claim-right describes the way that other people should or should not do, it alone

cannot capture the core notion of legal and moral rights. Only liberty ensures one¡¯s

control over his action. The idea of personal control over one¡¯s action is the main idea

belonging to liberty. Generally it runs counter to control or claim from others, which is

equivalent to the person¡¯s duty. To take liberty as strict and fundamental as claim-right,

first we would confirm the common idea of liberty as free choice. And it¡¯s correlative is

47[14] Right or claim is ¡°a right in the strictest sense¡±. See Hohfeld, p. 36.

other person¡¯s no-claim that the liberty-holder shall V or not V. Secondly, the opposite

relation, i.e. right/duty relation would be defined on the basis of this idea of liberty. The

lacking of liberty or the negation of liberty is of course duty to others, no matter what

content the duty has. Both a duty V and a duty not V are opposite to a liberty V or not V.

Thus, upon this idea of liberty, a whole scheme of first-order conceptions can also be

developed. There is nothing lost, but the general idea captured. Maybe Hohfeld values

symmetries of the scheme, and to some extent, a liberty opposite to both positive and

negative duties may seem to lack symmetry. Even if it is true, it cannot deny the

legitimate analysis and definition of liberty as free choice.

 

¢óFallacy of half liberty

 

Sumner accepts Hohfeld¡¯s definition of liberty and calls it half liberty. He writes,

 

Suppose that I have no duty either to attend the meeting or not to do so. I thus have two

logically distinct Hohfeldian liberties. Call each of these a half liberty and their

conjunction a full liberty. Then I have a half liberty to attend the meeting, a half liberty

not to attend it, and a full liberty to attend it or not. In general I have a full liberty with

respect to anything which I am neither obligated to do nor obligated not to do. Unlike

half liberties, full liberties ensure a normatively unencumbered choice between

options.48[15]

 

A liberty to do is merely equivalent to the negation of the duty not to do. Such a liberty

just ensures the liberty-holder¡¯s doing something; do not ensure his not doing

something. If I haven¡¯t a duty not to do, I may just have a liberty to do, not a liberty to

do or not to do. That¡¯s why Sumner calls it half liberty, for a liberty to do and a liberty

not to do may not exist at the same time. And he regards these two half liberties as

conjuncts of a full liberty. Then a full liberty is equivalent to the negation of the duty to

do plus the negation of the duty not to do. But the fact is that we don¡¯t need to negate

two duties to have a full liberty. In order to enjoy a full liberty, to negate one duty is

48[15] Sumner, 1987, p. 27.

enough. If I have a duty to do, then I don¡¯t have a duty not to do. It is impossible to be

obligated to do and not to do the same thing. These two duties, therefore, cannot exist at

the same time. Then if my duty not to do is negated or removed, then I must have a

liberty to do; but as I still do not have a duty to do, I also have a liberty not to do. Thus I

get a full liberty through the negation of a duty not to do. This shows that a full liberty is

opposite to one determinate duty; the equivalent to the negation of such a duty is not a

half liberty, but a full liberty. The logical connections between liberty and duty are not

what Sumner thinks.

 

Let us suppose that the conception of half liberty is feasible. In the case that I have a

duty to do, negation of the duty leads to a full liberty. That demonstrates that the negation

of a duty to do, is not in fact equivalent to a half liberty not to do. A similar conclusion

can be drawn in the case of a negative duty. The conception full liberty is certainly the

opposite of a duty. If it is reasonable that full liberty and half liberty are distinctive from

each other, then both of them are all opposites of a certain duty. Some philosophers

accept the equivalence of the negation of duty and half liberty. As Rowan gives us,

 

¡°Specifically, X is said to have a privilege to perform a certain act if and only if X has

no duty to refrain from performing that act.¡±49[16]

 

The same thing is expressed in another way by John Finnis,

 

¡°B has a liberty (relative to A) to ¦Õ, if and only if A has no-claim-right (¡®a no-

right¡¯) that B should not¦Õ.¡±50[17]

 

It seems that the regulation of liberty as half liberty at least needs to be modified

because of the connection between full liberty and duty. The point is, if full liberty is

also opposite of a certain duty, positive or negative, and if we give up the above

definition of half liberty, then in which way we can define half liberty and how to 49[16] Rowan, 1999, p. 22.50[17] Finnis, 1980, p. 199.

show the logical distinctiveness of this concept. As full liberty can be well justified to

be equivalent to the negation of a certain duty, there is no need and no sufficient

reason to hold the idea of half liberty. In fact, such an idea is not only groundless

but also redundant. Besides, as has been shown above, a duty to do implies a liberty

to do, because a duty to do implies the lack of a duty not to do and the latter means

a liberty to do. If this is true, under any circumstances people will always hold

liberty. One will be at liberty to do what he is obligated to; and of course he will also

be at liberty if he is not under obligation. It seems to be absurd that liberty exists

everywhere. In general, we take liberty as an advantage, as an opposite of obligation

that is disadvantage. But the idea of half liberty implied by duty destroys the

distinction between liberty and obligation. And how could we make clear the notion

of obligation? If we negate a half liberty to do, we will get a half liberty not to do,

and vice versa; if we negate a full liberty, we will get a disjunction of two half

liberties. Generally speaking, we will not be able to negate liberty.

 

Sumner thinks that ¡° this feature of liberties follows from the fact that they are simply

deontic permissions¡±, I am at liberty to do whatever the rules permit me to do.51[18] But

if I am permitted both to do and not to do a thing, I still do not have liberty in the sense

that I myself have control over my action. Full liberty cannot be identified with liberty in

common sense as free choice. It seems to him that one of the main reasons to maintain

the conception of half liberty is that there are mandatory rights, which are burdens as well

as benefits.52[19] He gives the instance of children¡¯s right and duty to attend school.

Such right may be regarded as claim-right, not liberty-right. As a claim, it is certainly

compatible with duty. For only a no-claim can be the opposite of the same subject¡¯s

claim-right. Similarly, my right to chair the meeting may co-exist with my duty to do so,

if the right is regarded as a power to chair the meeting. Because I may have a power and a

duty at the same time, these two relations do not contradict each other. In all these cases,

the so-called mandatory rights are not liberty-rights. We should be careful to deal with

such rights. As Hohfeld endeavors to distinguish different conceptions of rights, it is of

51[18] Sumner, 1987, p. 26.52[19] Ibid., p. 34.

course necessary to make clear which right can be taken as liberty in the Hohfeldian

sense. And even if a few instances of mandatory liberty can be found, I doubt whether

they can support the reasonability of this concept. Since so many liberties are treasured as

free choice and so many burdens cannot be looked upon as benefits, liberty-right as

relational conception in Hohfeldian scheme should be construed as free choice. The

definition Hohfeld himself gives concerning this concept may be just an arbitrary thesis

that he has made.

 

 

Bibliography

 

Carter, Alan. (1989) The Philosophical Foundations of Property Rights.

Harvester Wheatsheaf.

 

Feinberg, Joel. (1973) Social Philosophy. Prentice-Hall, Inc.

 

Finnis, John. (1980) Natural Law and Natural Rights. Oxford: Clarendon Press.

 

Gewirth, Alan. (1978) Reason and Morality. Chicago: University of Chicago Press.

 

Hart, H. L. A. (1982) Essays on Bentham: Studies in Jurisprudence and Political Theory.

Oxford: Clarendon Press.

 

©¤ (1983) Essays in Jurisprudence and Philosophy. Oxford: Clarendon Press.

 

Hohfeld, Wesley Newcomb. (1923) Fundamental Legal Conceptions As Applied in

Judicial Reasoning (Walter Wheeler Cook, ed.) New Haven: Yale University Press.

 

Lyons, David. (1994) Rights, Welfare and Mill¡¯s Moral Theory. Oxford: Oxford

University Press.

 

Raz, Joseph. (1980) The Concept of A Legal System: An Introduction to the Theory of

Legal System. Oxford: Clarendon Press.

 

Rowan, John R. (1999) Conflicts of Rights: Moral Theory and Social Policy

Implications. Westview Press.

 

Simmons, A. John. (1992) The Lockean Theory of Rights. Princeton: Princeton

University Press.

 

Sumner, L. W. (1987) The Moral Foundation of Rights. Oxford: Clarendon Press.

 

Tapper, C. F. H. (1973) ¡°Powers and Secondary Rules of Change,¡± in Oxford Essays in

Jurisprudence (second series), A. W. B. Simpson, ed. Oxford: Clarendon Press.

Balancing Rights, Duties, and Underlying Values

In their reluctance to unconditionally embrace rights language and logic, some

participants turned to the concepts of duty and responsibility, which are commonly

believed to be deeply embedded in East Asian cultures. In the case of the antinuclear

movement in Taiwan, the right to a clean environment might be redefined as a duty to

protect land from those claiming a right to do what they want with it. In relation to the

issue of justice between generations, Emmerson raised doubts over "imputing an abstract

right of our devising to individuals who do not yet exist, instead of assuming

responsibility today for future generations." Likewise, the relationship of rights to duties

came up in the paper on Thai prostitution. Again, Emmerson asked whether "alongside

the sex worker's rights, her and her clients responsibilities, to each other and to

themselves, should also be taken into account."

Individual rights and collective duties are often di-chotomized and manipulated in the

discourse on human rights in the region. But, there can be no viable notion of a right

without a corresponding notion of responsibility and vice versa. Yasuaki Onuma of the

University of Tokyo criticized the simplistic abandonment of rights and resort to the

"opposite" notion of duty. Onuma argued that in both Eastern and Western traditions the

concept of an individual exists, but "not in an isolated manner." Rather, the individual

"coexists with a concept of collectivity." Arguing that "dichotomized rights and duties as

well as individuals and collectives are the same modern construct," he maintained that the

exclusive emphasis placed on responsibility and duty by many Asian or African leaders is

wrong-headed.

In his paper on the right to political participation in China Xia Yong of the Chinese

Academy of Social Sciences portrays rights and duties in a different light, as fluid

concepts and part of a continuum. Describing the transformation of the traditional notion

of "sacred duty" into individual right, Xia Yong writes that in ancient China,

there was not any legitimacy for seeking individual interests and advantage by

taking part in public affairs.... Political participation was a sacred individual duty

to be fulfilled for the people, for the country, and for self-realization, rather than a

right.

Until the introduction of rights language from the West, "the idea of collective rights

overshadowed and, in many cases, replaced individual rights, creating a correlative

individual duty." Duty-bearers were regarded as shareholders of collective rights. This

concept of a sacred duty has since been used to legitimize the contemporary Chinese

regime. As a result, "participation has become a no-choice-duty rather than a chosen

duty."

Daniel Bell of the University of Hong Kong warned that given present realities in China,

the writings of ancient Confucian sages may have little bearing on con-temporary

Chinese attitudes toward political partici-pation. Bell added that an interest in public

affairs, with a certain degree of commitment to the common good, will evolve once

ordinary Chinese "feel they can make a difference." Whether this interest will manifest

itself as a right to democratic participation or as a duty within an increasingly democratic

society has yet to be seen.

Participants suggested moving beyond the binary concept of rights and duties to examine

the values that sustain and give them meaning in a given society. Onuma suggested a

reconsideration of "notions of virtue, prudence, consideration, and thoughtfulness," while

Chandra Muzzafar of Just World Trust in Malaysia emphasized the values of "justice,

compassion, restraint, and spiritual balance." The pursuit of individual rights, said

Muzzafar, will "erode the very values needed to sustain them in the long run." The human

righs discourse may need to develop a holistic understanding of the individual, the

family, and the community, and the explicit values that can invigorate not only rights and

responsibilities, but also roles and relationships.

© 2004 Carnegie Council on Ethics and International Affairs. No material on this site

may be used in part or in whole by any other publication or website without the written

permission of the Carnegie Council.

HANS KELSEN’S LEGAL THEORY

Faculty of Law, University of Nairobi Jurisprudence.

   

Начало > Оригинали

Ян Стюард - "Критичната правна наука на Ханс Келзен"

(1990) 17(3) Journal of Law and Society 273-308

(http://www.law.mq.edu.au/HTML/staff/istewart/JLSKelsen.doc)

The Critical Legal Science of Hans Kelsen

IAIN STEWART

Fearing the outcome if the secret police found it in his house, the sacked law professor wrapped his old

service revolver in a banana skin and plopped it into the Rhine. He escaped with his family to Prague,

where, at his first lecture, fascists packed the hall and shouted: ‘Everybody except Jews and communists,

out!’ Those students who remained were beaten up. He continued to teach, under police protection. Plans

of a plot to assassinate him were discovered by a lecture theatre cleaner. He brought his family out, to the

USA, where he was allowed a chair of political science but not of law.i

Hans Kelsen, advisor to the Austro-Hungarian Emperor, author of the Austrian Constitution, and having

experienced many kinds of academic and political victimisation—of all major legal theorists the most

bitterly acquainted with political realities—is an implausible perpetrator of ‘formalism’.ii Yet his main

creation, the ‘pure theory of law’, is both recognised world-wide as a major theory of lawiii and placed in

the ‘born so beautiful’ basket as the paradigm case of formalistic irrelevanceiv. As Gurvitch formulates

the charge:

According to this doctrine, law, being nothing but a pure norm, admits only a normative and formalistic

method of study, every other method being destructive of the very object of research. That is why

sociology cannot study law and the ‘science of law’ cannot take account of social reality.v

Even for so analytical a mind as Hart, the pure theory pays far too little attention to the circumstances

under which laws are created and ‘whether they are recognised as authoritative and by whom’.vi Yet, to

Kelsen, of all charges levelled against the pure theory, that of formalism was the ‘stupidest’.vii I will

argue that, when Kelsen’s philosophical standpoint is understood, the question of formalism emerges on

several levels. First, in relation to its subject matter the theory is intended to be anti-[274]formalistic.

Second, within the chosen kind of philosophical framework a general theory is necessarily formalistic.

Third, arguably the philosophical framework itself is formalistic and communicates this formalism to the

theory.

While recent interest in the pure theory is found mainly among analytical philosophersviii, as an attempt to

bring the study of law to the level of a critical legal science—a project, moreover, that fell apart in

Kelsen’s own hands—the pure theory’s aims and fate are very relevant to attempts to construct a critical

legal science today.

Yet there is no survey of Kelsen’s work as a whole, in any language.ix The task of survey is daunting.

Kelsen wrote over 300 books and articles, in three languages.x Most that are not in English have not been

translated and the existing translations vary in reliability (although their formulaic style is not due to the

translators).xi Writings about Kelsen’s work form an equally long list and are in several languages.xii

Attention here will focus on Kelsen’s writings on legal theory, leaving aside his many works on justice,

public international lawxiii or Austrian law. Nor will the work of other members of the ‘Vienna School’

be considered on its own account.xiv

No single work of Kelsen’s contains a final overall statement of the pure theory. The last overall statement

is the second edition, 1960, of Reine Rechtslehre, translated as Pure Theory of Law. By 1962, however,

the theory’s keystone, the concept of a ‘basic norm’, had fallen apart in Kelsen’s hands. Rather than

restate the theory accordingly, he tried to save the concept in weakened form. Then he moved up a level,

to general theory of norms. He died in Berkeley, California, on 19 April 1973, leaving a rambling text

published posthumously as Allgemeine Theorie der Normen (General Theory of Norms). Although this

book reformulates many of the arguments of Reine Rechtslehre, embracing the new version of the ‘basic

norm’ concept, it neither offers a completed general theory of norms nor locates the pure theory of law

within such a theory. Nevertheless, it comes close enough to doing these things for an article such as this

to outline Kelsen’s theoretical work according to such a pattern. In doing so, I will avoid questions of the

development of the pure theory except so far as they impinge on understanding its final form.

KELSEN’S BACKGROUND

Hans Kelsen was born in Prague on 11 October 1881 and raised in Vienna. His parents were Jews of the

German-speaking working class. The boy dreamed of taking a degree in philosophy, mathematics and

physics. The combination of his social background with such a degree, however, pointed to a career in

schoolteaching and, without enthusiasm, he enrolled at the University of Vienna in law. That he could not

become a philosopher, he regretted for the rest of his life. After obtaining his doctorate, Kelsen became

interested in the nature of legal norms and wrote a higher doctorate on this and other major issues in legal

theoryxv, then began to teach at the University.

Cosmopolitan, bureaucratic and rich as its cream cakes, dual-imperial [275] Vienna bestrode Central

Europe with a web of laws that a medley of class and ethnic conflicts within and the Great War without

would shred. Political thought rang the changes from feudalism through constitutional monarchy and

liberalism to socialism; fascism would follow. In religion, catholicism dominated protestantism and

judaism. This unstable social variety pressured liberal high culture toward relativism: into neo-

Kantianism, logical positivism, empiriocriticism, physical relativity theory, psychoanalysis, tonal music

and satire.

Relativism encouraged abstraction: to cope with the variety, theory needed to rise beyond it. At the same

time, the relativity was far from static: the deep historical consciousness that through the nineteenth

century had expressed German plans for unity bled over into disintegrating Austria-Hungary. Having

found Hegel both too feudal and too vulnerable to Marx’s inversion, German-speaking liberals went back

to Kant. Yet the return could not be simple. Kant’s sense of historicity, as Hegel had pointed out, was too

weak for an age needing to understand deep transformations of social structures. A first problem, then,

was the relation between historicity and ‘science’ (Wissenschaft—the German word refers to any kind of

systematic enquiry).

Linked with this was a further problem, concerning ‘is’ and ‘ought’. Kant maintained the distinction

between theoretical reason, which states what is, and practical reason, which states what ought to be.

Feudal and especially catholic idealism had preached their unity, so that whatever exists is presumably

good. A key principle of the Enlightenment, from Hume’s Scotland into the German-speaking lands, was

to divide them, so that statements of what is and of what ought to be are different kinds of statement, and

accordingly neither can follow from the other. A strong sense of historicity, on the other hand, includes a

stress on practice, hence on the coexistence of fact and value, fact and meaning—which is next to

reasserting their unity.

The problem of reconciling historism with the is/ought dichotomy produced a powerful debate on the

identities of the sciences. The neo-Kantians, as they came to be called, distinguished between two kinds of

science: the natural sciences (Naturwissenschaften) and the sciences of mind (Geisteswissenschaften) or

culture (Kulturwissenschaften). In terms of the relation between reason and history, the former were to be

concerned with material facts, the latter with meanings; or the former with regularities, the latter with

individual events. In terms of separating ‘is’ and ‘ought’, the former were to be concerned with material

facts, the latter with values.

Each way of making the distinction also had two versions: whether the difference lay in the perspectives

through which the sciences approached their subject matter or in the subject matter itself. Kelsen took the

latter view, holding that law is evidently one of the ‘social orders’, i.e. systems of ‘oughts’, and that

therefore its study cannot be a natural science.xvi It might then be a science of mind or culture. But, in that

case, if the aim is to describe the ‘oughts’ of law, can there be such an ‘is’ of ‘oughts’ without infringing

the rule against mixing ‘is’ statements and ‘ought’ statements?

[276] This problem was either abolished or made worse by logical positivism, which denied the very

existence of practical reason. It held that only factual statements could be rational; value statements were

merely emotive. This left no room for a science of ‘oughts’, hence apparently for a science of law. Or, if a

science of law was possible in these terms, could it be fully compatible with the other sciences within the

logical-positivist doctrine of ‘unified science’?

Such debates challenged the discipline of law to reforge its identity as a science. Kelsen was outstanding

among those who took on the challenge.

KANT AND THE PURITY OF IS FROM OUGHT

In constructing his legal theory and even when attempting a general theory of norms, Kelsen is concerned

less to philosophise than to clothe his theory in elements of philosophy bought off the peg. Such an

attitude is neither wrong nor even inferior; enquiry has to stop somewhere in the refinement of premisses

as well as in the search for evidence, if it is to bring the two into relation.xvii All the same, the cryptic

nature of many of Kelsen’s indications of his philosophical debts makes it hard to ascertain whether the

clothes he bought fit well or even match.

A starting point is that Kelsen many times classifies himself as an heir of Kant. The first edition, 1934, of

Reine Rechtslehre begins:

It is more than two decades since I undertook the development of a pure theory of law, that is, a theory of

law purified of all political ideology and all natural-scientific elements and conscious of its particular

character because conscious of the particular laws governing its object. Right from the start, therefore, my

aim was to raise jurisprudence, which openly or covertly was almost completely wrapped up in legal-

political argumentation [Raisonnement], to the level of a genuine science, a science of mind [Geistes-

Wissenschaft].xviii

In the passage out of ‘na?ve, prescientific thinking’xix, Kelsen finds Kant only half-heartedly criticalxx

and tests the capacity of a range of neo-Kantian and related philosophical tendencies—principally the

ideas of Rickert, Hermann Cohen and Husserl.xxi Yet he declines to get closely involved in these debates,

preferring to count it undeniable that the reality of law is not simply natural but also involves meanings, all

or most of which are oughts, and then to go his own way.xxii The area in which he draws the border is

indicated by his view that the idea of legal science as a science of mind does not suppose complete free

will, since the idea of responsibility presupposes causal constraint.xxiii

Nonetheless, Kelsen appears to adopt two key Kantian conceptions: ‘critique’ and ‘purity’.

Kant’s main books offer ‘critiques’, as he terms them, of modes of thought. He understands ‘critique’ not

as a merely negative exercise but as a process in which a mode of thought is to be made as coherent as

possible. The focus is on the mode of thought as such. There is no appeal below thought to experience, nor

above thought to religion. Critique is reflection on the very forms of a mode of thought, with the aim of

maximising the mode’s capacities. [277] Kelsen embarks on a critique, in this sense, of existing legal

theory, later of existing general theory of norms.

Kant’s idea of purity follows from his firm adherence to the logical law of identity, that each thing is what

it is and not something else. Any statement of something, therefore, must state it as what it is and without

admixture. Such a statement will be ‘pure’. Kelsen is concerned with such purity in two major directions:

the first is purity of description (the realm of ‘is’) from prescription (the realm of ‘ought’).

Following Humexxiv, then Kant, but with still greater emphasis, Kelsen insists that statements of what is

and of what ought to be must not be mixed.xxv For Kelsen, the difference between ‘is’ and ‘ought’ is

simply obvious and cannot be explained. One and the same entity may be considered now in terms of ‘is’,

that it exists or does not exist, and now in terms of ‘ought’, that it ought or ought not to be; but the two

‘modes’ must not be mixed together. The entity that may be considered in terms of either mode is a

‘modally indifferent substratum’ underlying the two modes. To say that an ‘is’ corresponds to an

‘ought’—for example, that a person’s behaviour conforms to a norm—is to state a correspondence not

between the behaviour and the ‘ought’ form but between the behaviour as content of an ‘is’ and as content

of an ‘ought’. Neither mode however has any necessary content: e.g. a legal ‘ought’ does not necessarily

contain any moral ‘ought’.xxvi

One of the grounds on which Kelsen takes this strong view is that he makes a major departure from Kant,

in the direction of logical positivism. Kant gives reason two roles: theoretical reason concerns description

(‘is’) and is a function of thought, while practical reason concerns prescription (‘ought’) and is a function

of will. Kelsen, however, denies the existence of practical reason.xxvii Thought and will are ‘two quite

different mental functions’. There are ‘acts of thought’, whose meaning is a descriptive statement, and

‘acts of will’, whose meaning is an ought. Although the two kinds of meaning are bound up with each

other, in that a statement is usually made with a purpose and an ought contains a conceptualisation of the

behaviour to which it may apply.xxviii The meanings may be expressed in various ways—as written or

spoken words, or as a gesture (e.g. hands raised in voting, a police officer directing traffic) or other

nonverbal kind of symbol (e.g. a traffic light); or even as being ‘tacitly presupposed’, such as the norm of

derogation that a later norm derogates from an earlier.xxix Kelsen’s meaning of ‘ought’ is broad: he

specifies that it shall include not only commands or orders, but also authorisation, permission and

derogation.xxx Considered grammatically, words expressing an ought will often be in the imperative

mood. But no particular verbal formula is necessary and sometimes the verbal form can mislead:

especially, an ought may be expressed in the indicative mood—for example, ‘Theft will be punished with

imprisonment’.xxxi Yet the fact that is the act of thought or will is not the same as the fact that is the mode

of expression: e.g. an act of will, whose meaning is an ought, is not the same as a speech act expressing

that meaning.xxxii

[278] All the same, the difference between ‘is’ and ‘ought’ is not between two modes of reason but

between reason itself (corresponding to Kant’s theoretical reason, or theoretical aspect of reason) and

emotion. This strong version of the ‘is/ought’ division particularly affects what is admissible as ‘science

(Wissenschaft)’. If science is already defined as a rational enterprise, questions of what is, being rational,

can be discussed in science while questions of what ought to be, since they are irrational, cannot. Indeed,

to allow discussion of ‘ought’ to affect discussion of ‘is’ would be not science but ‘ideology’. Science

must be kept pure of ideology.xxxiii

A first task is to fence legal science against other sciences dealing with connected subject matters—

psychology, sociology, ethics and political theory. The pure theory of law undertakes to delimit the

cognition of law against these disciplines, not because it ignores or denies the connection, but because it

wishes to avoid the uncritical mixture of methodologically different disciplines (methodological

syncretism) which obscures the essence of the science of law and obliterates the limits imposed upon it by

the nature of its subject matter.xxxiv

SCIENCE OF OUGHT

At this point it will be helpful to make explicit a concept that in Kelsen is only implicit: the concept of a

science of ought. This makes it possible to identify in Kelsen’s perspective the following hierarchy of

sciences. First, science in general divides into sciences of nature and sciences of mind. Second, sciences of

mind—the neo-Kantian concept being modified to accommodate the logical-positivist denial that the

practical can be rational—divide into sciences of is and sciences of ought. Third, since only some oughts

are valid (see below), hence are norms, sciences of ought divide into sciences of norms, which Kelsen

calls ‘normative sciences’, and sciences of other kinds of ought. The normative sciences are ‘pure’ in the

sense that they describe oughts without subscribing to or evaluating them. Fourth, normative sciences

divide into legal science, the study of legal norms, and ethics, the study of moral norms. Thus the pure

theory of law is normative science of law.xxxv

Kelsen’s greatest difficulty is: how, in these terms, can there be a science (a rational description) of

‘oughts’? A strong version of the is/ought division implies that there cannot: that either (as Stammler had

concluded) science of ought must be confined to practical reason, as systematic evaluation of oughtsxxxvi,

or (as in logical positivism), if reason is only cognitive, any science of mind can describe acts of will but

not their meanings, can only be psychology.xxxvii Yet Kelsen is unwilling to go all the way with logical

positivism and reduce ought to is.xxxviii For him, oughts may be irrational but they are not illusory. In

neo-Kantianism he found another resource.

In Kant’s view, we know things not as they may be ‘in themselves’, independently of knowledge, but only

as they appear to us. (The question of how we can then be sure there is any reality at all ‘out there’,

independently of [279] our knowledge, plagued the neo-Kantians.) Things’ appearance to us is as material

provided by the senses that is moulded under forms of thought: material as so moulded is a ‘concept’.

Most of the forms (moulds) are constructed by us. But the most universal forms, which Kant calls

‘categories’, are innate.

One of Kant’s ‘categories’ is that of ‘is (Sein)’, under which descriptions are constructed. How is it

possible to state the is of an ought? Now, Kant had declared that his list of ‘categories’ was not closed.

Very well, said the neo-Kantian sociologist Simmel, in working out how there could be description of

social values: let us add a new category, ‘ought (Sollen)’, under which it will be possible to describe

oughts.xxxix Kelsen adopts Simmel’s new category.xl

Since, in Kant, the operation of a category is mediated through a ‘schema (Schema)’, Kelsen has the

category of ought operate partly through the ‘schema’ of ‘norm’.xli The new category and schema permit

a kind of science in which norms may be described without any admixture of evaluation. Kelsen calls this

‘normative science’.xlii Sociology, as well as psychology, ethnologyxliii and history, are to concern

themselves with understanding behaviour in terms of causality, including motivation. Where behaviour is

related to meanings that are norms, those meanings are to be understood by the normative sciences of law

and ethics.xliv

The word ‘norm’ (from Latin, norma) often means descriptive regularity, as when one says that a type of

behaviour ‘is the norm’ (cp. ‘is normal’). Kelsen does not use this sense. A second sense is prescriptive:

when one speaks of ‘social norms’, one means by a ‘norm’ any kind of prescription. For this concept,

Kelsen prefers to speak of an ‘ought’.

Kelsen then speaks of both ‘ought’ and ‘norm’ in two senses: as subject matter of science and as

descriptive construct in science. In the first sense, he refers simply to an ought or a norm. In the second

sense, he speaks of a ‘proposition (Satz)’. Thus an ‘ought (Sollen)’ is described in an ‘ought proposition

(Sollsatz)’, a ‘legal norm (Rechtsnorm)’ in a ‘legal proposition (Rechtssatz)’ and a ‘moral norm

(Moralnorm)’ in an ‘ethical proposition (Satz der Ethik)’.xlv This is Kelsen’s formal terminology, but,

since in Kantian terms a subject matter is known only as it appears, he usually speaks of an ‘ought’ or a

‘norm’ when he means the ought or norm as it appears in a proposition. This double usage is confusing,

but Kelsen defends it as a widely established practice: ‘logic (Logik)’, for example, is both the operation

of a kind of norm and the study of their operationxlvi (cp., in English, ‘law’).

With the word ‘normative’, however, Kelsen is more selective. While its usual meaning is prescriptive,

corresponding to his sense of ‘norm’ as subject matter, he uses it in a sense corresponding to his sense of

‘norm’ as description. Normative science, under the category of ought, constructs norms in the second

sense as descriptions of norms in the first sense.xlvii

Next, Kelsen stresses that, since natural science describes facts while normative science describes norms,

the two forms of science must operate according to different principles. Natural science operates according

to the principle of causality. By analogy, Kelsen maintains, normative science can [280] operate according

to a principle of ‘imputation (Zurechnung)’. A cause is conditionally related to an effect as its

consequence—if A (cause) is, then B (effect) will be; B is caused by A. Thus: if (A) a brick hits Jane’s

head, then (B) Jane will be injured. Likewise, a delictxlviii can be conditionally related to a sanction as its

consequence—if A (delict) is, then B (sanction) ought to be; B is ‘imputed’ to A. Thus: if (A) John threw

the brick, then (B) John ought to be imprisoned. To speak of ‘imputation’ here is similar to speaking of

responsibility—here, that John is responsible for the damage to Jane.xlix The legal scientist makes the

imputation, just as the natural scientist understands a physical connection as causal. Imputation means

‘every connection of a human behaviour with the condition under which it is commanded or prohibited in

a norm’.l In the case of morality, however, imputation is a two-stage affair: while a legal norm is attached

directly to a negative, coercive sanction (such as imprisonment), a moral norm is attached directly to a

positive, noncoercive sanction (such as the expression of approval) and indirectly to the negative form of

that sanction (such as the expression of disapproval); imputation, concerning a moral norm, has to reach to

the negative form.

Pursuing the analogy, Kelsen holds that, as in natural science causal relations may be stated in a ‘law of

nature (Naturgesetz)’, so in normative science relations of imputation may be stated in a ‘law of law

(Rechtsgesetz)’ or ‘law of morality (Moralgesetz)’; the legal or moral form, like the natural, being

formulated probabilistically.li However, the analogy is only partial: while the law of nature refers to

unending chains of causation, the law of law or of morality refers to isolated relations.lii The law of law or

of morality is the form taken by the legal or moral proposition.liii

The distinction between causal sciences, grounded in the principle of causality, and normative sciences,

grounded in the principle of imputation, cuts across the other distinctions between sciences. Accordingly,

Kelsen can divide the social sciences into causal social sciences, such as sociology, and the normative

social sciences, such as legal science and ethics.liv In relation to law, if social sciences follow the

principle of causality alone, they will fail to take account of norms; if they also follow the principle of

imputation, they will to that extent be legal science or ethics.lv

Other norms and their study belong to logic and technology (Technik). Since ‘ought’ is not a relation, a

norm is not a relation between a means and an end. A relation between a means and an end is causal. An

act of will, which is a psychological fact, may be a means, but the meaning of that act, which is an ‘ought’

or norm, cannot be a means or an end. The question ‘What ought I to do?’ belongs to legal science or

ethics; the question ‘What must I do, to realise a particular end?’ belongs to technology.lvi

Now, it is far from clear in what sense the ‘proposition’ is descriptive. For, in addition to saying that the

difference between norm and proposition is that the latter describes the former, Kelsen gives as examples

the difference ‘between a law published in the official legal gazette and a scientific commentary on that

law’ or ‘between the Criminal Code and a textbook on criminal law’.lvii The [281] examples state a

difference without really defining it. Kelsen also says that the description might be called ‘interpretation’,

but maintains that this ‘non-authentic’, merely descriptive interpretation by the legal scientist is quite

different in principle from the legal organ’s ‘authentic’, law-creating interpretation.lviii If the proposition

is formulated as a ‘law’, then

It is the task of the science of law to represent the law of a community, i.e. the material produced by the

legal authority in the law-making procedure, in the form of statements to the effect that ‘if such and such

conditions are fulfilled, then such and such a sanction shall follow’.lix

The spirit appears to be that legal science, constructing legal propositions not legal norms, ‘has to know

the law—as it were from the outside—and to describe it’lx. Legal science ‘endeavours to comprehend its

object “legally”, namely from the standpoint of the law’—that is, as a legal norm or as content of a legal

norm.lxi

‘Imputation’ is equally ambiguous. Up to the 1930s, Kelsen understands it as a category in the Kantian

sense, on analogy with Kant’s category of causality. Under Kantian categories, reality is constructed: the

categories are not generalisations from experience. In Hume, however, causality is a generalisation from

experience. And Kelsen moves toward a Humean understanding of causality, at the same time as denying

that knowledge of oughts is experiential: the analogue loses its parent.lxii

It appears that, in Kelsen’s conception of science, more than one idea of description is involved. At least

three ideas of description were available to him: they may be distinguished, if rather metaphorically, as

‘refractive’, ‘reflective’ and ‘interpretive’. In objective-idealist philosophy, such as Christianity, it is

believed that the basis of reality is ideal forms existing prior to knowledge. The particular entities in the

world are only refractions of the ideal forms, e.g. a particular man exists only as a refraction of the ideal

man. To describe a particular entity is to reproduce the refraction, as e.g. a biblical scholar may refract a

meaning in the Bible. The method is exegesis. In materialist philosophy, the basis of reality is physical

things. To describe them is to have a reflection of them in the mind. The method is observation. In both

refractive and reflective description, the construction of reality is supposedly determined by the form of

the original.

One can observe both inanimate and animate objects, such as human beings in their behaviour. But a

science of mind is not concerned solely with behaviour, understood causally. The neo-Kantian sociology

of Max Weber, for example, insists that one must first observe the behaviour and then understand it

according to the meanings that the actors attach to it, which Weber terms the ‘subjective meaning’ of the

behaviour—distinct from the ‘objective’ meaning constructed in science.lxiii The method is interpretive

understanding. This differs from exegesis in that, although in both cases the subject matter is meanings, in

interpretive understanding the actor’s frame of reference need not be adopted by the observer, who may

reconstruct the actor’s meanings in any of a theoretically infinite number of alternative frames.

[282] Now, if the difference between norm and proposition is only that the norm is created by legal

authority while the proposition is not, the proposition reproducing the norm will remain within the legal

authority’s frame of reference; the description will be refractive. If however the difference between norm

and law (law of law or of morality) involves reconstruction of the norm in another frame of reference, the

description will be interpretive. Yet we shall see in a while that Kelsen’s way of combining the two modes

of description is curious.lxiv

A ‘PURE PART’ OF LEGAL SCIENCE

The second type of purity with which Kelsen is concerned is purity of the form of knowledge from

empirical content.

Since, for Kant, the ‘categories’ and not any supposedly given ‘facts’ are the foundations of thought, any

mode of enquiry can be systematic—i.e. can be a science—only if its systematic character is established in

advance of empirical investigation. It is therefore necessary, in beginning to construct a particular science,

to establish a set of basic forms that the science will apply. This set Kant calls the ‘metaphysical bases’ of

the science.lxv Their formulation, he calls (speaking of natural science) the ‘pure part’ of the science

—‘pure’ in the sense that it does not yet have any sensuous admixture, any empirical content. This should

be stated separately from the later, ‘empirical’ part of the science, in which the forms established in the

pure part are applied to empirical material so as to compose concepts.lxvi Thus the purpose of

constructing a pure part of a science, far from being to evade empirical considerations, is precisely to

make empirical enquiry possible.lxvii

Kelsen states that the pure theory provides ‘the fundamental principles by means of which any legal order

can be comprehended’lxviii and that it is a ‘general jurisprudence’ furnishing ‘the basic conceptions that

enable us to master any law’ and accordingly serving as ‘the theoretical basis for all other branches of

jurisprudence’ such as ‘dogmatic’ (i.e. doctrinalist), historical or comparative jurisprudencelxix, and even

sociology of lawlxx. The theory has—and by its very nature must have—a formalistic character. This does

not mean—as it is sometimes misunderstood—that the Pure Theory of Law considers the contents of the

legal norms as irrelevant. It means only that the concepts defined by the theory must hold what is common

to all positive legal orders, not what separates them from each other. ‘Formalism’ can be no objection to a

general theory of law [...]lxxi

Precisely in this indispensable ‘formalism’, the pure theory states the common features of all species of

law without supposing an eternal essence of law, as do theories of natural law.lxxii

The pure theory is therefore ‘pure’ in two senses. Normative science as such is ‘pure’ in the first sense, of

being free from considerations of evaluation. Each normative science then divides, in Kantian terms, into a

‘pure part’ and an ‘empirical part’. The pure theory of law is offered as the pure part of a normative

science of law. It is, Kelsen insists, a pure theory of law, not a theory [283] of pure law.lxxiii Causal

analysis belongs to the empirical part: it is not to be substituted for but added to normative

interpretation.lxxiv The causal element in the test of effectiveness (below) is not itself causal analysis but

an envisaging of a respect in which causal analysis will be required. The answer to Hart’s criticism is that

the pure part of the science identifies law and the empirical part can then trace the connections of origin

and effect.lxxv

Such is Kelsen’s intention. So far as he envisages reflective or interpretive description, the pure part may

remain independent of the material to be described. Yet, so far as he retains refractive description, the

bases of the science remain within the terms of the subject matter and a division between pure and

empirical parts of the science is not feasible.

THE NORM AS ‘OBJECTIVE MEANING’

Kelsen’s second departure from Weber concerns objectivity of meanings. Kelsen defines an ought as ‘the

meaning of an act of will’. Presumably, this will be a ‘subjective meaning’ in Weber’s sense. Thus, Kelsen

supposes, one might observe that people in a room periodically raise their hands and one could record the

statistical regularities of the hand-raising. But one will understand the hand-raising as voting only if one

also, through interpretive understanding, examines the meanings that the actors attach to their behaviour.

So far, Kelsen is with Weber.lxxvi

Weber would then have said that these subjective meaning might include the actors’ belief that the

meaning is obligatory upon them. Science should record that belief—but in Weber’s view science has no

business deciding whether that belief is true. Weber firmly declines to suppose ‘an objectively `correct’

meaning or one which is ‘true’ in some metaphysical sense’.lxxvii For him, science may be ‘objective’

through excluding ideology, yet not even science can claim absolute objectivity.

But Kelsen asserts that the voting can be understood as legislation only when the subjective meaning of

the hand-raising is also understood as ‘its objective meaning, that is, the meaning the act has according to

the law’.lxxviii Now, Kelsen might be taking law here as his frame of reference, just as Weber takes the

frame of reference of his sociology. But that would be to think within the law, not to think in terms of a

legal science. Rather, it seems, Kelsen is supposing within his legal science that legal meanings are

‘objective’ on their own account. Why should he suppose that?

Two reasons may be found. First, that it seemed obvious. In constructing a general theory of law, Kelsen’s

principal concern is with the Romanist tradition, in which most Western legal systems are found. In that

tradition, ‘law (German, Recht)’ in a general sense is readily characterised as ‘objective (objektives

Recht)’, as distinct from a ‘subjective’ category (subjektives Recht) corresponding to ‘rights’. In English

translation, ‘law’ no longer appears in association with an explicit claim of objectivity and the contrast

between objective and subjective is lost.

[284] Secondly, however, Kelsen offers an argument: the ‘objective character’ of a norm is manifest in the

fact that the norm not only binds the addressee even if the addressee does not know or think about it but

also continues to exist even after the will whose subjective meaning it is has ceased. What matters is the

view of an observer to whom the norm is not addressed, such as a legal scientist.lxxix Otherwise, Kelsen

argues against Weber, a delict committed when the actor did not know of the legal norm characterising

such behaviour as delictual would fall outside the legal-scientific definition of law.lxxx Likewise, it

seems, Kelsen worries that bindingness would cease as soon as the legislator’s mind turned to another

topic. But that is a political consideration—unless the legal scientist’s concern is with the legislator’s view

of the consequences of the temporariness of an act of will. Even so, the legal scientist ordinarily will be an

addressee of any general legal norm.

It is helpful to see how Kelsen first came to the issue. Historically, he finds, one way to conceive of a

norm as objective has been to attribute it to some kind of suprahuman subject as its author. This could be

‘God’, or personifications of ‘Nature’, ‘Reason’ or ‘the State’. Most of these are obviously excluded by

Kant’s ban on transcendence. In his first major work, however, Kelsen still argues that the ‘modern state’

is ‘an entirely extra-individual authority’ which ‘fulfils its obligating function independently of the will of

the individual’, so that the positive law of which it is the author is ‘objective’ in existing ‘over and above

human beings, independent of the subjective feelings of the individual’. Consequently that law can be

represented in legal science only by an objectivistic method that will present it as ‘objective’ and entirely

‘heteronomous’. It cannot be represented accurately by a subjectivistic method, which would make legal

norms appear, like moral norms, as ‘subjective’ and ‘autonomous’, deriving their bindingness merely from

the individual’s ‘recognition’ of them as obligating. Indeed, from a subjectivistic standpoint the apparent

objectivity of legal norms appears as nothing but a product of ‘projection’ or ‘objectivation’; that being

false, the way law appears from a subjectivistic standpoint is ‘fiction’.lxxxi

Kelsen was soon unhappy with this: personification of the state still smacked of transcendence. He leapt to

a reviewer’s mention of the philosophy of Hermann Cohen, where the state appears not as actually

personified but as an explicitly fictional personification of the legal order.lxxxii The state would appear, to

be precise, as a ‘point of imputation’; from the standpoint of normative science, state and law are the same

thing.lxxxiii The identity of state and law will concern us later. What is important here is that, although the

state is reduced to a point of imputation, it remains the author of ‘objective’ norms. Moreover—just as

when it was suprahuman—as a point of imputation, it does not appear as an actor. Consequently the

meanings of its acts of will, which are legal norms, are not available for interpretive understanding. I will

return to this.

[285] THE LEGAL ORDER

1. Orders of norms

An ought is a ‘norm’ if it is valid. Norms in this sense may be followed, violated or applied.lxxxiv To

speak of validity here is to say that the ought occurs not singly but in some kind of order.lxxxv Kelsen

distinguishes two possible types of order, which he calls ‘static’ and ‘dynamic’.lxxxvi In ‘static’ order,

norms are hierarchised in a relation of general to particular. Thus, from the relatively general moral norm

‘Love your neighbour’ may be deduced the relatively particular norm ‘John ought to love his neighbour

Jane’. Each new norm is derived from the one ‘above’ it by a purely intellectual operation. The relation

between the norms is one of logical validity—or would be, were there such a thing as practical

reason.lxxxvii

Many have believed that positive legal norms are ordered statically. But the idea of simple logical

deduction could not have convinced someone so well acquainted with bureaucracy as Kelsen. Nor was the

idea of simple deduction from a norm made in Vienna to a norm applicable to provincial peasants

convincing Ehrlich, whose ‘free law theory (Freirechtslehre)’ of judicial decisionlxxxviii paralleled the

attention to judicial policy developed by G?ny in France and in American ‘legal realism’ and ‘sociological

jurisprudence’.

Kelsen’s Viennese colleague Merkl developed, and Kelsen adopted, a model of legal order as dynamic

hierarchy, or ‘steps and stairs (Stufenbau)’. In this model, a positive legal order is conceived as a chain of

authorisations addressed to organs of the state. The ‘higher’ organ cannot foresee all circumstances

requiring regulation and must delegate power, with discretion, to a ‘lower’ organ. The higher organ creates

a ‘higher’ norm authorising the lower organ to create not a particular ‘lower’ norm (in which case there

would be no point in the delegating) but a lower norm of a certain kind and perhaps also through a certain

procedure. Thus, in the most familiar case, the constitution authorises the legislature to create statutes,

which authorise the higher executive organs to create regulations, which authorise lower executive organs

to create lesser regulations. Expressed more precisely: each higher norm recognises the act of will of the

lower organ—or recognises custom—as a ‘law-creating fact’. Since there is a reference to acts, at no stage

is law-creation a matter simply of logical deduction. The new norm is not a product of logic, nor even a

product of knowledge—since knowledge of the earlier law, however ambiguous, does not produce a new

norm. The organ’s act of will draws on both the authorising norm and other sources, including norms

drawn from morality and politics; however, the moral and political norms do not thereby become part of

the legal order.

The higher and lower legal norms stand in a relation of ‘validity’ in the sense that the higher norm

authorised the creation of the lower norm. In dynamic order a norm ‘is not valid because it has a certain

content’ but ‘because it is created in a certain way’; in principle, it may have any content at all, although

sometimes a higher norm prescribes that lower norms must or must not have certain contents.lxxxix The

legal order contains both general and individual [286] norms: Kelsen rejects both the European doctrine

that only general norms are law, which implies that judges do not make law but only apply it, as well as

the extreme American legal-realist doctrine that only the courts create law, statute being merely a source;

there is no line to be drawn between law-creation and law-application.xc For this reason, a norm

considered void—for example, because unconstitutional—is void only when declared so by a court of

final jurisdiction.xci ‘The doctrine of the hierarchy of the legal order’, in short, ‘comprehends the law in

motion, in its perpetually renewed process of self-regeneration.’xcii

The model for ‘validity’ in this ‘dynamic’ sense is the sense of ‘validity’ familiar from constitutional and

administrative law: one can readily see how the idea of a dynamic legal order expresses, from the

standpoint of legal normative science, the form of the modern, bureaucratic state. However, the model is

intended to be applicable to any ‘form of state’: democracy or autocracy, republic or monarchy.xciii

Custom does not fit readily into Kelsen’s picture. He supposes that regular behaviour can give rise to a

collective will that it is right, although the subjective meaning of that act of will can become its objective

meaning only if a higher norm institutes custom as a law-creating fact, possibly as the fundamental law-

creating fact.xciv This way of incorporating customary law into the picture of dynamic order avoids

supposing a romantic ‘national spirit’ that recognises customary behaviourxcv, yet it fails to address the

problems that all philosophical positivists have with the idea of customary law: of how an ought can arise

in the first place from an is; and of how, even then, that ought could be binding.

Although Kelsen long supposed that dynamic order could contain static elementsxcvi, he moved toward

denying the possibility of static order even for a moral order, with three arguments. First: that the concept

of static order supposes the existence of practical reason; thus he implies that no such order can exist.xcvii

The second and third arguments rest on the distinction between general and individual norms. A norms is

‘individual’ if it is directed toward a particular person in respect of a particular act; otherwise, it is

‘general’.xcviii Kelsen insists that dynamic legal orders contain individual as well as general norms. The

second argument is that what appears to be a deduced norm is not actually a new normxcix—so that no

question of ordering arises. The third argument is that, since the author of a general norm cannot

completely foresee the behaviour to which the norm may be applicable, the norm must always be subject

to ‘individualisation’, in which, out of the abstract, general norm, a concrete, individual norm will be

created to apply in the particular case. Accordingly, when a general norm is created it is then only partially

valid; it becomes wholly valid only when it has been individualised: thus the validity of a general norm is

necessarily a dynamic process.c

Drawing a distinction common in German theory, Kelsen specifies that he means ‘constitution’ in the

‘material’ sense, i.e. ‘the positive norm or norms which regulate the creation of general legal norms’,

which may be wholly or partly unwritten—as distinct from a constitution in the ‘formal’ [287] sense,

which is a document and might contain other kinds of norm as well.ci (Thus, he might have said, there is a

‘British Constitution’ in the material sense only.) Later he relativises the meaning of (material)

‘constitution’ by noting that, in the dynamic chain of validity, each higher norm is a ‘constitution’ in

relation to each lower norm.cii Except for the final act executing a sanction, law-application is also law-

creation.ciii

The concept of dynamic legal order, Kelsen thought, marked the pure theory as anti-formalistic; he

believed that it achieved with more rigour the anti-formalistic aims of the ‘free law’ theory and American

‘legal realism’. In fact it denies that law can be seen as a logical whole and points juristic attention away

from issues of contradiction and toward real social conflicts.civ

Kelsen distinguishes and emphatically rejects a third sense of ‘validity’, as meaning effectiveness.cv

Effectiveness, he insists, is not validity but a condition of validity. The validity of a positive moral or legal

norm rests upon two conditions of is: that the norm shall have been posited (its positivity) and that it shall

be ‘by and large effective’ (its effectiveness). To ask that a norm be totally effective would be absurd: a

norm is posited precisely in order to regulate conduct contrary to it. Nor is a norm valid only when it is

effective: it is valid when posited; only as valid could it become effective; but it loses its validity if it fails

to become, or later ceases to be, by and large effective. Likewise a legal order is valid even though not all

of its norms are effective, but loses its validity when it permanently ceases to be by and large effective.

Thus validity and effectiveness are not identical, although validity depends on effectiveness—or, in other

language, law (or right) is not the same as power (or might), but is dependent on it: in this sense, ‘law is a

particular order (or organisation) of power’.cvi Where ‘effectiveness’ means only conformity with norms,

without considering the motive for the conformity, ‘effectiveness’ has ‘a normative, not a causal,

meaning’.cvii

While a legal order is ordinarily treated as being composed of single norms, Kelsen holds that a general

norm is actually two norms. A general norm, he says, is presented in the form: ‘People ought to refrain

from stealing; if a court has established that a person has committed a theft, that judge ought to create an

individual norm stating that that person ought to be put in jail’. The latter part, Kelsen holds, is a ‘primary’

norm, directed to an organ, stating that coercion ought to be applied; the former part is a ‘secondary’

norm, also directed to the organ, stating the reason for the primary norm.cviii

This seems strange: Austin, for one, follows the sequence of presentation.cix Kelsen, however, is starting

not from the norm as written but from behaviour. Perhaps at no point is he more sociological. The primary

norm is effective directly, the secondary norm only indirectly; the legal order is effective principally

through its primary norms.cx What one observes is people being deprived of goods, imprisoned,

executed ... As one asks for the meaning that the actors attribute to their behaviour, one comes first upon a

norm authorising the organ to impose the sanction. Next one finds a norm giving the reason for that

authorisation—although this norm is perhaps [288] superfluous and is often not stated distinctly but only

implicit in the primary norm.cxi

2. Law and morality

For positive legal norms to compose a dynamic order is for them to ‘have the characteristic of regulating

their own creation and application’cxii and occasionally Kelsen writes as if this is the distinguishing

feature of law.cxiii Elsewhere however he holds that moral norms too may compose a dynamic order. The

feature that distinguishes law from the other social orders, and particularly from morality, is rather its

coerciveness—not only that it exercises ‘psychic coercion’, which other social orders also do, but that it

prescribes specific coercive acts directly as sanctions for nonconformity with its norms.cxiv Moral norms,

in contrast, are encountered as norms regulating particular behaviour rather than as norms prescribing a

sanction—and then the sanction is first positive, as approval, and only subsequently negative, as

disapproval—and often without any norm prescribing a sanction. The moral norm regulating behaviour is

primary—the sanctioning moral norm, if any, secondary.cxv

Kelsen insists that morality is no part of law. Law has no moral content: there are no mala in se but only

mala prohibita; a delict is not outside law or a rejection of law but is within law as the condition for

imposing a sanction.cxvi Nor is law as such intrinsically good: to hold that it is, subjects the positive legal

order to a new iusnaturalism and thereby provides an ‘uncritical legitimation’ of the order. Indeed, if one

were to give up ‘the solidly fixed frontier over against the concepts of morality and politics’, and count

moral and political principles and policies into law, one would have to count in every factor influencing

the creation of law—including the interests of party and class.cxvii

This stance is starkly evident when Kelsen extends the concept of sanction beyond the concept of reaction

to specific behaviour, to include reactions to circumstances that the state finds undesirable—arrest on

suspicion, protective custody, internment, expropriation of property in the public interest. All these, even

committal to an extermination camp, ‘cannot be considered as taking place outside the legal order’.cxviii

But the concept of a law of law is not extended likewise.

Here Kelsen is tense. Within his philosophical positivism, on one side his strong sense of morality and

justice is subject to an insistence that justice be relative, a justice of tolerance which among other things is

a social precondition for the practice of science.cxix Obversely, however, he identifies and subscribes to

the modern appearance of law as mere technique. He characterises law as ‘a specific social technique for

the achievement of ends determined by politics’ and the legal scientist as a mere ‘technician’, not

concerned with the political aims of the legal order being serviced.cxx This position is vulnerable to the

Frankfurt School’s critique of philosophical positivism’s privileging of technical or instrumental

rationality. The ‘scientific’ approach is privileged as ‘objective’, while the practically rational reasons for

adopting and pursuing it are always-already removed from [289] argument by characterising all evaluation

as merely emotional.cxxi In this perspective, Kelsen privileges in the name of science the instrumentalism

whose extreme consequences as law he abhors and of which he was nearly a victim.cxxii

LEGAL ORDER, JUDICIAL KNOWLEDGE AND LOGIC

1. Echoes of legal realism

In formulating a legal proposition describing a general norm, we have seen, Kelsen specifies: ‘if a court

has established (festgestellt)’. Recalling the Kantian principle that there are no ‘things in themselves’,

Kelsen acknowledges that the delict to which a sanction is imputed is not a raw event but an event as

constructed under the concept ‘delict’, or a concept of a particular kind of delict, by a court. Then, for

example, the legal norm prohibiting theft says not ‘If someone has stolen, the court ought to order that

they ought to be put in jail’ but ‘If the court hearing the case has established that someone has stolen, that

court ought to order that that person ought to be put in jail’.cxxiii Under the secondary norm, it seems, the

court constructs a fact-in-law as a condition for the application of the primary norm.

Such a view of the matter inserts a cognitive element in the heart of the dynamic order, threatening to

blow apart the dichotomy between the categories of is and ought. On further reflection, Kelsen takes a

distance from the specialised legal meaning of feststellen: ‘to declare’, as in a declaratory judgement.

What the court does is ‘not descriptive, i.e. declarative, but constitutive’. The establishing that a delict has

been committed normally forms part of the primary norm.cxxiv

The further Kelsen goes toward characterising the secondary norm as ‘superfluous’—as either existing but

unnecessary or existing only by implication—the closer he comes to the extreme American ‘legal realism’

of Gray, who maintained that law is only judicially created norms, for which legislation is but a

sourcecxxv, and consequently also to abandoning the ‘separation of powers’ differentiation of judiciary

and legislaturecxxvi.

Kelsen does not, however, acknowledge courts to have unfettered discretion. Existing general norms

require the courts to apply them, and courts can depart from them only within the discretion that those

norms allow. This fettering is not set aside but only limited, in the extreme application of the ‘principle’ of

res iudicata, that an individual norm may be legally valid even though it does not correspond to any valid

general norm, either when there is no such norm or when such a norm prescribes differently (recall that,

for Kelsen, a void norm is so only when declared so by a court of final instance). This view corresponds,

Kelsen believes, to the way that courts actually behave.cxxvii

[290] 2. Logic and norms

Kelsen insists that, if there is no practical reason, logic cannot apply to norms. Logic is applicable to legal

propositions but not to legal norms. Norms cannot be true or false, only valid or invalid, in a non-logical

sense, which is also their existence. The pure theory is not a ‘legal logic’.cxxviii Where logic is applied to

legal propositions, still logical must not be confused with psychological or political questions.cxxix

Kelsen deals with logic only in the form of the syllogism. A premiss or conclusion of a syllogism may

describe a norm in three ways. First, by ‘quoting’ the norm—e.g., ‘There is a valid general norm:

“Everyone ought to keep their promises to others”.’ Second, by establishing the existence of a norm, as an

objective meaning—that the subjective meaning of an act of will is also its objective meaning because the

act is authorised by a valid norm of a positive moral or legal order. Third: in logic of probability, there can

be a syllogism concluding as to the probability that, in a particular case, the judge will create an individual

norm that will correspond to a certain general norm.cxxx

Nonetheless, Kelsen holds, within an order norms themselves may conflict. Conflict may be two-sided,

where to follow either norm would be to breach the other, or one-sided. It may be total or partial—partial

when to follow one norm would be to breach the other where it applies conditionally—and either

necessary or only possible. I will cite two of his examples. Between the norm ‘Bigamy ought to be

punished’ and the norm ‘Bigamy ought not to be punished’ there is two-sided, total, necessary conflict.

Between the norm ‘Murder ought to be punished with death, if the murderer is more than twenty years

old’ and the norm ‘Murder ought to be punished with death, if the murderer is more than eighteen years

old’ there is one-sided, partial and not necessary but only possible conflict.cxxxi Since legal norms can

conflict, any legal norm might face its opposite: therefore the values embodied in any norm can only be

relative.cxxxii

Kelsen’s idea of conflict looks very like contradiction, but he insists that a conflict of norms is not even

comparable with contradiction. For conflict of norms can be resolved by derogation, which is the

application of a further norm, not of a logical principle.cxxxiii

A legal order, Kelsen holds, has no gaps. He subscribes to the view that ‘whatever is not forbidden is

permitted’. Whatever could have been forbidden yet is neither forbidden nor positively permitted—that is,

permission expressly given—may be said to be negatively permitted; the individual is in that sense ‘free’.

For the situation where an organ is faced with a quite unforeseen case, the legal order contains, expressly

or tacitly, a norm authorising the organ to create a new legal norm on the basis of moral and political

principle; although there is no norm to apply to the case, the legal order as a whole is applicable.cxxxiv

[291] 3. Up the law

So far, Kelsen’s reasoning has been downward, in terms of the dynamic legal order’s chain of

authorisation. But he also reasons upward.

He takes on board the view of both American ‘legal realists’ and Belgian theory of legal rhetoric that a

court may first intuit an individual norm to apply and only afterwards elaborate ‘grounds’ for its

application. In that situation, Kelsen holds, the syllogisms are still relevant, but they describe not the way

in which the individual norm is created but the way in which its application is justified; the description is

still, as intended, of an organ’s practice.cxxxv Again, the anti-formalist tendency of the concept of

dynamic legal order appears.

In the same spirit Kelsen holds that, when a norm is obeyed, the person obeying it reproduces it, as

meaning, in their mind. The addressor means, the addressee understands; through that understanding, the

norm becomes a meaning for the addressee; the addressee thereby addresses it to him- or herself. Although

this is not to say that the addressee always ‘recognises’—that is, accepts—the norm; the addressee might

not obey it, or might obey it only because of the threat of a sanction.cxxxvi

However, when an organ to which a general norm is addressed is thereby authorised to create a lower

norm, it will do so only if it recognises the higher norm as suitable for application to the concrete case.

This will not be an exception to the dynamic order, but will be an authorised exercise of discretion. A

‘recognition’ theory is correct to this limited extent.cxxxvii

The salient feature of these arguments is that Kelsen is looking at the organ’s decision from the standpoint

of the norm’s addressee.cxxxviii

LAW, STATE AND INDIVIDUAL

The pure theory ‘is objectivistic and universalistic’, aiming ‘to conceive in each part of the law the

function of the total law’. Consequently it cannot view the legal order from the standpoint of the

individual legal subject and its interests. Thinking in terms of rights must be reduced to thinking in terms

of the whole legal order.cxxxix But this is to be done sociologically, for norms regulate not persons as

such but their behaviour. Accordingly, a ‘legal relation’ lies not between persons as such but between ‘the

behaviour of two individuals as defined by legal norms’, i.e. as content of legal norms.cxl

Kelsen speaks of ‘the state’ in a broad and a narrow sense.cxli The state in the broad sense is defined by

territory and population. If one’s eye is on human behaviour, one finds a range of legal orders. In some,

general legal norms are created by a central legislative organ, so that the legal order may be called

‘relatively centralised’. The idea of its centralisation refers only to its sphere of validity: for it may be

valid over fragmented territory or differently for different sectors of the population (e.g. as to ‘language,

religion, race, sex or profession’), or not effective uniformly. Such a legal order is a ‘state’. In ‘the

primitive pre-state order and the super-state order of general inter-[292]national law’, however, general

legal norms are created through custom. Thus these legal orders are ‘relatively decentralised’ and should

not be called states. Here, Kelsen adopts the idea of ‘the state’ in international law.

The narrow sense is taken from state legal orders, as ‘the bureaucratic machinery of officials, headed by

the government’ (i.e. the executive power). This may be seen as a ‘partial legal order’ within the total legal

order. Thus one may speak of the total legal order exercising ‘direct state administration’, which is to say

jurisdiction, and the executive ‘indirect state administration’, which is essentially, as conformity with the

former’s law, a mode of transaction. Here Kelsen acknowledges the interventions by the modern state (in

the narrow sense) in the ‘private’ sphere, as well as the bureaucratisation of both public and private

administration.

‘The state’ in either sense, however, must be seen as the behaviour of real individuals. Consequently,

rights and duties ‘of the state’ are to be understood as rights and duties of officials. Since they are officials

only as persons acting with legal authority, every state is by definition ‘governed by law’, i.e. is a

Rechtsstaat. Therefore the expression Rechtsstaat is better confined to those states that may be described

as also committed to the ideas of democracy and legal security.

In traditional theory, just as the Christian religion presents ‘God’ as both creator-ruler and immanent in the

world, the state has ‘two sides’ and is ‘self-obligating’: that is, it appears on one side as personified author

of the legal order, on the other as a legal subject, obligated by the legal order. With the decline of ‘a

religious-metaphysical justification of the state’, this theory, that of the Rechtsstaat, performs the

inestimable ideological service of presenting the state’s self-justification through law. One of the pure

theory’s main contributions, in Kelsen’s eyes, is to have unmasked this ideology.

One reason for Kelsen to understand ‘the state’ primarily under its international-law concept is that this

permits him to identify the state with the legal order, independently of the concept of the state in the

narrow sense, which attaches to the public-law aspect of the legal order. Indeed, it permits him radically to

relativise the distinction between public and private law.

Traditional theory of the Romanist legal systems divides the legal order into ‘public’ and ‘private’ law’

(the Common Law systems too segregate ‘public’ law). Kelsen wants to relativise the distinction. At the

least, he holds, it is made on different criteria for different purposes.cxlii However, he goes much further.

As with ‘the state’ in the narrow sense, a corporation may be seen a partial legal order within the total

legal order.cxliii Indeed, all individuals appear as ‘organs’ within the total legal order, in that they are

‘authorised’ to create law, at least by making contracts. Traditional concepts such as ‘capacity’,

‘competence’ and ‘jurisdiction’ hamper one’s ability to see that the scope of authorisation includes not

only legislation and adjudication but also the exercise of rights and the formation of contracts and treaties.

Whether an individual is to be characterised as a ‘legal organ’ in all law-creating activities or only,

according to division of labour, in some (e.g. as an official) is [293] for Kelsen a moot point.cxliv The

main thing is that all such law-creation falls within the legal order.

Thus the pure theory ‘relativises the contrast between private and public law, which traditional legal

science absolutises—changes it from an extra-systemic difference, i.e. a difference between law and

nonlaw, between law and state, to an intra-systemic one.’ And in this the pure theory shows itself once

again to be ‘a true science’ by dissolving the ideology involved in the differentiation of public and private

law, an ideology that serves either to release government from legal constraints or to create ‘the idea that

the realm of political domination is restricted to public law, i.e. primarily to constitutional and

administrative law, but entirely excluded from private law’. The latter view creates the illusion that private

relations, in the capitalist market, have, in their autonomy, an intrinsic relation to democracy; whereas in

capitalism not only norms of private relations but even general norms may be autocratic as easily as

democratic.cxlv

As one would now expect, for Kelsen rights and duties derive exclusively from general norms and are

themselves individual norms, considered in relation to the subject to whose behaviour the general and

individual norms apply. Rights are ‘reflex rights’, i.e. correlative to an obligation (the idea that rights have

priority over duties probably derives from the idea of natural rights): they are private rights as power,

through lawsuit, to participate in the creation of an individual norm ordering the imposition of a sanction

for nonfulfilment of an obligation; political rights as power to participate in law-creation, whether directly

as member of a legislature or indirectly as voter, or in creation of a norm repealing an unconstitutional

norm; or rights as power following permission from a governmental authority. Rights do not stem directly

from individual interests, since the individual’s right is only to obtain fulfilment of a state organ’s duty to

apply a sanction. Moreover, the provision of such rights is not an essential function of law but pertains

only to parts of a capitalist legal order.cxlvi

In the spirit of limiting the ‘metaphysical bases’ to what is strictly fundamental to a universal concept of

law, such concepts as ‘legal organ’ and ‘reflex right’ are characterised as not essential to the pure theory

but ‘merely auxiliary’—to ‘facilitate the description’.cxlvii

Another of these is the concept ‘legal subject’. As distinct from the human being, who is a construction of

the natural sciences, the person is a construction in legal science or ethics; if a human being has both a

legal and a moral personality, the human being as ‘biologico-physiological unit’ is their substratum. The

legal person (or subject) may be a physical or ‘natural’ person, or a juristic or ‘artificial’ person (such as a

corporation or the state). These are not physical realities, nor even creations of the law, but convenient

personificatory metaphors through which legal science presents ‘the unity of a complex of legal

obligations and legal rights’. The person is not different from that complex, any more than a tree differs in

substance from the sum of its parts. The artificiality of the juristic person is well known: but the physical

or ‘natural’ person is equally a construction of legal science as a component of the [294] legal order. It

‘has’ rights and obligations only figuratively: to present that image as real is an ideological move intended

to privilege rights of private property.cxlviii

The whole legal order, as effective in terms of individual behaviour, constitutes a ‘legal community

(Rechtsgemeinschaft)’, to which in the last analysis authority is attributed and which is ‘the state’ in the

broad sense. In this sense the legal order is a ‘state legal order (staatliche Rechtsordnung)’.cxlix Thus to

place primary emphasis on the broad concept of the state may seem strange, even a device to de-

emphasise the narrow concept, until one remembers that through Kelsen’s lifetime international peace was

not obviously the normal situation. He is surely justified in taking armies to be more significant than

police.

Now, perhaps, the riddle of ‘objectivity’ can be solved. Kelsen’s primary focus is on human behaviour.

When, secondarily, he examines the meanings that human subjects attach to their behaviour, he finds that

they understand their behaviour as contents of oughts, in particular of legal norms. These norms, taken as

a legal order, are also ‘the state’ in the broad sense. Human subjects then appear as ‘organs’ of the state.

Thus, on one side human subjects are always-already organs of the state, in which case they cannot be the

ultimate authors of legal norms; while, on the other, the state itself appears only as a point of imputation.

This point of imputation remains ‘objective’ in the sense of Kelsen’s first major work. Consequently, its

organs are endowed with that objectivity and communicate it to the legal norms that they make. The

authors of legal norms do not appear as subjects whose meanings can be criticised within normative

science.

STATE AND INTERNATIONAL LAW

Public international law falls within Kelsen’s definition of law. It is an order of norms: a basic norm

establishes the customary behaviour of states as a law-creating fact; from custom arise norms regulating

the behaviour of states in general. One of these norms is pacta sunt servanda (agreements shall be kept to),

according to which treaties are made. Some treaties set up international organisations, such as the

International Court, which issue further norms. Thus there is a hierarchy of norms. The norms are

coercive, in that breach is by and large visited with a sanction, whether reprisal or war. Since the bellum

iustum (just war) principle is universally accepted through treaty, war conforming to that principle is a

sanction.cl

To say that international law authorises or obligates states means that it authorises or obligates individuals

indirectly, through the state legal order—just as that order authorises or obligates individuals directly

through the partial legal order which is a corporation. The international legal norm is however

‘incomplete’ in that it specifies only the authorisation or obligation, leaving to the state legal order

identification of the individual to carry it out; that done, the individual’s behaviour is attributed to the

state, as the state’s [295] behaviour. In the same way, a state commits an international delict when it

authorises or obligates an individual to do something in contravention of international law. That sanctions

are exerted against all members of the state, even if they were not involved in the delict, shows that state

members are collectively and absolutely liable for international delicts. There is however a tendency for

international law to obligate individuals directly, such as war criminals. In these exceptional cases,

collective and absolute liability gives way to individual liability with fault.cli

Kelsen insists on ‘the epistemological postulate: to understand all law in one system—that is, from one

and the same standpoint—as one closed whole’. This postulate excludes a dualist view of the relationship

between state and international legal order. It permits only the two monist views: either that international

law is ‘a legal order delegated by, and therefore included in, the state legal order’ or that it is ‘a total legal

order comprising all state legal orders as partial orders, and superior to all of them’.clii As late as 1941,

Kelsen believed that this entailed the primacy of international law, to form with the state legal orders ‘one

uniform, universal legal system’. ‘As it is the task of natural science to describe its object—reality—in one

system of laws of nature, so it is the task of jurisprudence to comprehend all human law in one system of

rules of law.’cliii He had not yet distinguished clearly between legal norm and legal proposition; if the

legal proposition is formulated in terms independent of its subject matter, unity of theory does not entail

unity of subject matter.cliv However, international law has never been so effective and by the end of

World War II Kelsen preferred the more realistic position that the alternative monistic views are equal in

the eyes of science. Yet, politically, he maintained the inter-war theme of ‘peace through law’ and a frank

distaste for the state-centred outlook.clv

THE BASIC NORM

Whether norms are ordered through logical or legal validity, Kelsen believes, the order must have some

‘basis (Grund)’. If the separation of ‘is’ and ‘ought’ is to be maintained, that basis or ground can only be a

norm, a ‘basic norm (Grundnorm)’.

Kelsen presents the basic norm of a positive legal order by contrasting two situations. In one situation, a

robber demands money from me. If I ask why I ought to hand my money over, no further reason can be

found. The meaning of the robber’s act of will is merely subjective. In the second situation, a tax official

demands money from me. If I ask why I ought to hand my money over, the official refers to a regulation.

If I ask why I ought to obey the regulation, the official refers to a statute. If I ask why I ought to obey the

statute, the (patient) official refers to the constitution. If I ask why I ought to obey the constitution, the

official might be able to refer to an earlier constitution on whose authority the present constitution was

created. Kelsen characterises that earlier constitution or, if none, the present constitution as the

‘historically first [296] constitution’, created by custom or revolution. The official’s resources end with the

historically first constitution—but I can still ask why I ought to obey it.

Kelsen proposes that the jurist—the legal scientistclvi—should ‘presuppose’, as the meaning of a juristic

act of thought, a norm prescribing that the historically first constitution ought to be obeyed: ‘One ought to

obey the prescriptions of the historically first constitution’. Or, more fully: ‘Coercion ought to be exerted

under the conditions and in the manner prescribed by the by and large effective constitution and by the by

and large effective general and individual norms created according to the constitution’. That is: that

constitution is to be understood in legal science as the objective meaning of the originating custom or act

of will.

This ‘basic’ norm does not actually exist: it is only presupposed in juristic thinking as the ‘reason for the

validity’ of the order. Kelsen specifies it, in Kantian terms, as a transcendental-logical presupposition—or,

a constitution ‘in a transcendental-logical sense’—that is, not a proposition describing law but a rational

condition for constructing propositions describing law.clvii

Nonetheless, for the case of a particular legal order, the particular basic norm refers to a real constitution.

The acid test of the concept is a revolution: if the revolution succeeds, in the sense that the new

constitution and the norms made or adopted under it are by and large effective, the jurist presupposes a

new basic norm.

Nor does Kelsen claim that the concept is original: it ‘merely makes conscious what most legal scientists

do, at least unconsciously’ (i.e. when they have not sufficiently clarified their premisses), when they are

not being behaviourists or iusnaturalists.clviii However, the presupposition is not a moral recognition. The

legal order, which is also a state, is differentiated thereby from a gang of robbers, but the criterion is

legality—not justice, as with Augustine.clix

The presupposition of a basic norm plays a double role. On one hand, it is the condition upon which

science can understand some oughts as constituting an order, hence as norms—whether legal or moral. On

the other, it is the condition on which legal science can understand the meanings of some acts of will as

objective, i.e. as legal norms.

It doesn’t work. Although a basic norm is a scientific construct, the meaning of an act of thought, the

thought is of a norm. And one can still ask, in thought, what is the basis of that norm’s authority. If the

answer is, a still more basic norm, the question can be asked of that norm too. Thus, presupposing a basic

norm, which was intended to tie off the infinite regress of questions about authorisation, merely repeats

the regress. Moreover, since even a hypothetical norm is conceived as the meaning of a hypothetical act of

will, one finds oneself in a regress through ever less evidently human wills.

It took Kelsen half a century to realise this. When he did, he reached for a solution as bold as that of the

category of ‘ought’ or the ‘basic norm’ concept itself. He declared that the basic norm is not a hypothesis

but a ‘fiction’, though in a special sense. In everyday parlance, a fiction is a proposition that, although

false, is useful. Vaihinger, however, had termed this a mere ‘semi-[297]fiction’. In Vaihinger’s

‘philosophy of ‘as if’’, a proposition is a ‘genuine fiction’ if it is not only false but also self-contradictory.

Kelsen held, in these terms, that the basic norm is a ‘genuine fiction’ because, in addition to being a

concept of something that does not in fact exist, it is self-contradictory in that it embodies an infinite

regress.clx

This doesn’t work either. Vaihinger’s concept is incoherent: what is logically invalid cannot be either true

or false, indeed is probably meaningless.

At one point, Kelsen held that a basic norm is presupposed by ‘the individual’ in that the general

population presupposes a basic norm and that legal science only brings it ‘to consciousness’.clxi He

swiftly resiled from that positionclxii and rightly so: it is an empirical assumption, not obviously true and

Kelsen produced no evidence for it.

If successful, the ‘basic norm’ concept is the keystone of Kelsen’s pure theory and hence of his normative

science of law; otherwise, it is their Achilles’ heel.clxiii The heel has disintegrated of its own accord.

Kelsen’s theory of law is left without even a means to identify a norm as legal.

CONCLUSION

Surveying this wreckage, an initial question is whether it is worth continuing on the same philosophical

basis. Although the charge of `formalism’ can be answered within Kelsen’s philosophical framework, that

framework itself is shaky. One problem is that the construction of reality simultaneously in different

‘modes’, so that a thing or person appears through a cubist sort of combination of aspectsclxiv, contains no

guarantee that a construction in one mode will have anything to do with a construction in another—the

notion of a ‘modally indifferent substratum’ is obscure.clxv Other difficulties lie in the rejection of

practical reason. First, the more one regards reality as constructed rather than given, the less ground there

is for assuming that even the descriptive side of thought is rational. Second, there is much evidence for the

existence of practical rationality; indeed, it is hard to see the point of the concept of legal order, even

dynamic legal order, unless it is assumed that the creation of legal norms is rational to some extent. Third,

Kelsen provides himself with only two options—that practical reason exists and is absolute, and that the

practical sphere is only emotional. It is hard to see why he could not take the Weberian option of relative

practical reason, corresponding to the relative theoretical reason in which both thinkers’ conception of

science is grounded. A descriptive science of law, even as Kelsen conceives it, can proceed whether or not

there is also a prescriptive science of law and whether or not the norms to be described have a relatively

rational element.

Resolution of the philosophical difficulties might strengthen Kelsen’s enterprise or require its

abandonment or transformation. Transformation would be a three-sided task: (1) to complete the theory’s

stance of critical independence, (2) to reformulate the theory compatibly with that stance and (3), through

the eyes of that reformulated version, to take the existing [298] version as a rigorous example of the

internal structure of legal ideology.

The scope of enquiry would bring iusnaturalism back into the range of objects of study. Kelsen ‘kicks off

his theoretical ball to see where it rolls and where it stops if it completes its course without hindrance’,

which effects a reduction ad absurdum of legal positivismclxvi—especially in the collapse of the pure

theory with the loss of the concept of a basic norm. Yet, since that concept was meant to replace the

foundations of both legal positivism and (if natural law existed) iusnaturalism, Kelsen’s end point tends to

reveal that legal ideology embraces both legal positivism and iusnaturalism.clxvii For a critical

perspective should not simply dismiss erroneous beliefs as illusionsclxviii but study the fact that people

hold those beliefs and act in terms of them.

Yet the pure theory excludes the very issue of ideology in the strong sense of a kind of

misdescription.clxix First, Kelsen’s interpretive understanding is confined to the scientific construction of

norms in their form as oughts. Save in the moment when he considered that a basic norm might be

presupposed by the general population, Kelsen does not consider descriptive subjective meanings on their

own account. Knowledge of law is understood not as existing in the consciousness of the general

population but solely as a product of legal scientists, whose subjectivity is not clearly emancipated from

the alleged objectivity of legal authority. And, although occasionally Kelsen acknowledges judicial

cognition of norms, he is reluctant to consider how norms may be descriptive through their content—for

example, in describing a social relation as ‘a contract’ or as ‘property’. Here, even to an extent in Kelsen’s

own terms, normativism is guilty of formalism.clxx

All the same, Kelsen raises three issues of basic relevance to ideology-critique, which many `critical’

writers ignore: (1) how to describe an ought without at the same time deciding whether to recognise it as

to be followed, (2) how to describe a legal ought without necessarily doing so in legal terms and (3) what

is the role in legal ideology of the concept of the natural legal person? The last, especially, requires further

development in terms of class and gender, taking into account Kelsen’s own sociology from below.

A barrier to empirical enquiry, however, is Kelsen’s lack of attention to language.clxxi This inattention is

permitted by his distinction between an act of will and its mode of expression, but that makes the nature of

an act of will still more obscure. All the same, so far as claims that language is all are coupled with

attention only to official texts or to the investigator’s ‘ordinary’ dialect and thus tend to service social

control in the era of media saturationclxxii, this gap in Kelsen might not be damning. Not as much, at

least, as the tendency of the exclusion of practical reason to preserve dominant values from rational

criticism.

Accordingly, it seems worth pursuing Kelsen’s work on description—both in a neo-Kantian framework,

such as Weber’s, and in other frameworks into which his ideas can be translated. The legal proposition

needs to be translated from the refractive into the interpretive mode. The law of law does not fit all of

Kelsen’s kinds of legal norm in any case and appears to be a misguided attempt to find an analogy of the

reflective mode, on the assumption that legal norms are as objective as physical things (‘social facts’,

Durkheim said). Whether anything like the law of law would be required if the legal proposition were to

[299] become interpretive may be doubted. And, with the passage from refraction to interpretation, it may

no longer be necessary to seek a foundation such as a basic norm.

There remains Kelsen’s ‘will’ theory of norms. If one acknowledges as empirically weak Kelsen’s

assertion that legal norms never occur singly and if one were then to misunderstand his ‘will’ theory in the

politically absolutist terms of most legal science—which Kelsen more than anyone sought to combat—his

concept of a legal norm would appear close to that in the Nazism of Schmitt.clxxiii But the pure theory

comes close to being a set of independent statements about the nature of law, considered as a social belief.

If one describes that belief with such independence, one’s later valuations might have room to

acknowledge that, although every kind of justice may have been accomplished through law, so has every

type of atrocity. Seen from the banks of the Rhine, this bitter paradox might appear to lie not between the

form and certain contents of law but within the form itself—to which Kelsen’s work is currently our

principal guide.

NOTES AND REFERENCES

1 R.A. M?tall, Hans Kelsen: Leben und Werk [Hans Kelsen: Life and Work] (1969), hereafter ‘M?tall,

Kelsen’, pp. 62-3, 70-2. All information about Kelsen’s life is taken from this biography by a pupil and

long-time assistant, with which Kelsen co-operated closely. It contains a full bibliography of works by and

on Kelsen at pp. 122-216; supplemented in A.J. Merkl et al. (eds.), Festschrift f?r Hans Kelsen zum 90.

Geburtstag (1971), pp. 325-6. In 1933, because his French was better than his English, Kelsen preferred an

invitation to work in Geneva to invitations from the London School of Economics (obtained by Laski and

Kelsen’s former pupil Lauterpacht) and the New School for Social Research, the ‘exile university’ in the

USA: M?tall, Kelsen, pp. 63-4.

1 C. Varga, The Place of Law in Luk?cs’ World Concept (1985), pp. 136-7.

1 See e.g. Hans Kelsen-Institut, Der Einfluss der Reinen Rechtslehre auf die Rechtstheorie in

verschiendenen L?ndern [The Pure Theory’s Influence on Legal Theory in Various Countries] (1978).

1 E.g. by C. Norris, ‘Law, Deconstruction, and the Resistance to Theory’ (1988) 15 Journal of Law and

Society pp. 166-87 at 182. That Norris comes out of literary theory indicates how orthodox this impression

has become.

1 G. Gurvitch, Sociology of Law (1947), p. 5.

1 H.L.A. Hart, ‘Kelsen’s Doctrine of the Unity of Law’ (1968) in his Essays in Jurisprudence and

Philosophy (1983), pp. 309-42 at 313. The charge was laid early: among Kelsen’s Austro-Marxist friends,

by Max Adler and Karl Renner (the latter’s work can be seen as an alternative): T. Bottomore and P.

Goode (eds.), Austro-Marxism (1978), p. 18. Among the ‘legal realist’ tendency, Holmes was mightily

impressed after meeting Kelsen and wrote so to Laski: O.W. Holmes Jr., Holmes-Laski Letters (1953), p.

1376. (Certainly Kelsen was a strong character, once responding so powerfully to a remark by Hart that

the latter, on his own account, ‘fell over backwards in my chair’: H.L.A. Hart, ‘Kelsen Visited’ (1963) in

his Essays in Jurisprudence and Philosophy, op. cit., pp. 286-308 at 287.) Yet Laski (echoing Holmes’

most famous phrase) was to call the pure theory ‘an exercise in logic and not in life’ and to pile Kelsen

among ‘the veterans of an earlier age’ that knew not sociology: H.J. Laski, A Grammar of Politics (1925,

5th edn. 1948), p. vi. Pound similarly acknowledged Kelsen’s eminence, assisted him in exile and

deplored his unreality: R. Pound, ‘Fifty Years of Jurisprudence’, part III, (1937-8) 51 Harvard Law Rev.

pp. 444-72 at 449; cp. ‘Jurisprudence’ in the [300] Encyclopaedia of the Social Sciences (1930-5), vol. 8,

pp. 477-92 at 484. To Pashukanis, who understood Kelsen’s philosophical standpoint better than most,

Kelsen’s theory of law ‘makes not the slightest attempt to analyse law, the legal form, as a historical form,

for it has absolutely no intention of fathoming reality’ and is therefore ‘a waste of time’: E.B. Pashukanis,

Law and Marxism: a General Theory (1924; tr. B. Einhorn, 1978), pp. 52-3. Today, the accusation

continues. Patrons of Twining’s ‘Great Juristic Bazaar’ find a large, empty, whitewashed space announced

as ‘The One True Legal Science’, to which there is ‘No entry without Purification’: W. Twining, ‘The

Great Juristic Bazaar’ (1978) 14 Journal of the Society of Public Teachers of Law (n.s.) pp. 185-200 at

194. J.W. Harris accuses Kelsen of conceiving of a ‘pure norm’: Law and Legal Science (1979), pp. 34-5.

See also J. Stone, Legal System and Lawyers’ Reasonings (1964), ch. 3; Kelsen replied in ‘Professor

Stone and the Pure Theory of Law’ (1965) 17 Stanford Law Rev. pp. 1128-57. Kelsen’s replies to critics

were often long.

1 ‘bl?deste’: reported by H. Klecatsky in Hans Kelsen-Institut, Hans Kelsen zum Gedenken

[Remembering Hans Kelsen] (1974), pp. 69-70.

1 (1981) 138 Revue Internationale de Philosophie (‘Kelsen et le Positivisme Juridique [Kelsen and Legal

Positivism]’); (1986) 9 Cahiers de Philosophie Politique et Juridique (‘La Philosophie du Droit de Hans

Kelsen [Hans Kelsen’s Philosophy of Law]’); R. Tur and W. Twining (eds.), Essays on Kelsen (1986).

The following have not been seen: (1984) Rechtstheorie, Beihefte 5 and 6; S.L. Paulson and R. Walter

(eds), Untersuchungnen zur Reinen Rechtslehre [Studies on the Pure Theory of Law] (1986); A. Carrino,

Kelsen e il Problema della Scienza Giuridica [Kelsen and the Problem of Legal Science] (1987); W.

Krawietz and O. Weinberger (eds), Reine Rechtslehre im Spiegel ihrer Fortsetzer und Kritiker [Pure

Theory of Law in the Mirror of its Continuators and Critics] (1988); L. Gianformaggio (ed.), Hans

Kelsen’s Theory: a Diachronic Point of View (forthcoming). I have had to neglect almost all of the large

literature on Kelsen in Italian and Spanish.

1 Even its core, the pure theory, has been surveyed at book length in English only once: W. Ebenstein, The

Pure Theory of Law (1945, reissued 1969). This book contains many valuable reflections for which there

is not space here. The only other book in English on Kelsen does not attempt a general exposition and as

critique is very weak: R. Moore, Legal Norms and Legal Science: a Critical Study of Kelsen’s Pure

Theory of Law (1978); see my review, (1980) 43 Modern Law Rev. 727-9. Like Ebenstein’s book, the

existing article-length surveys in English, though good in their time, are out of date: H. Lauterpacht,

‘Kelsen’s Pure Science of Law’ in W.I. Jennings (ed.), Modern Theories of Law (1933), pp. 105-38; C.H.

Wilson, ‘The Basis of Kelsen’s Theory of Law’ (1934) 1 Politica pp. 54-82. Kelsen himself provides a

good, though now dated, survey: ‘The Pure Theory of Law. Its Method and Fundamental Concepts’, tr.

C.H. Wilson, (1934) 50 Law Quarterly Rev. pp. 474-98; (1935) 51 Law Quarterly Rev. pp. 517-35; cp.

‘The Function of the Pure Theory of Law’ in A. Reppy (ed.), Law: a Century of Progress 1835-1935

(1937), vol. 2, pp. 231-41; ‘On the Pure Theory of Law’ (1966) 1 Israel Law Rev. pp. 1-7. Some aspects

of the pure theory are discussed in J. Lenoble and F. Ost, Droit, Mythe et Raison [Law, Myth and Reason]

(1980), pp. 467-546; M. van de Kerchove and F. Ost, Le Systeme Juridique entre Ordre et Desordre

[Legal Systems—between Order and Disorder] (1988); D. Beyleveld and R. Brownsword, Law as a Moral

Judgment (1986), ch. 6; also `Normative Positivism: the Mirage of the Middle-Way’ (1989) 9 Oxford J. of

Legal Studies 463-512. The best textbook account is in Lord Lloyd of Hampstead and M.D.A. Freeman,

Introduction to Jurisprudence (5th edn. 1985), ch. 5.

1 In referring to Kelsen’s major works, the following abbreviations will be used:

ATN—Allgemeine Theorie der Normen [General Theory of Norms] (1979) - an index is available

separately (1989); tr. M. Hartney, General Theory of Norms (forthcoming). A draft of the first chapter was

published in 1965 and is translated by P. Heath as ‘On the Concept of Norm’ in Kelsen, Essays in Legal

and Moral Philosophy, sel. O. Weinberger (1973), pp. 216-27.

CTL—The Communist Theory of Law (1955). Mostly a critique of the collection Soviet Legal

Philosophy, tr. H. Babb (1951).

FC—‘The Function of a Constitution’ (1964), tr. I. Stewart in Tur and Twining, op. cit., n. 8, pp. 109-19.

Also in Lloyd and Freeman, op. cit, n. 9, pp. 379-85; the text in the Tur and Twining volume will be cited

here. This version of the translation supersedes that in [1980] [301] Juridical Rev. pp. 214-24, except that

the latter has notes on variations between the two versions of the German text. Parts of the later German

text are incorporated in ATN, pp. 205-8.

GTLS—General Theory of Law and State (tr. A. Wedberg 1945, reissued 1961). The original German text

has not been published.

HPS—Hauptprobleme der Staatsrechtslehre entwickelt aus der Lehre vom Rechtssatze [Major Problems in

Theory of the Law of the State, Approached from Theory of the Legal Statement] (1911; 2nd edn. 1923,

reissued 1960).

PTL—Pure Theory of Law (1967 - translation by M. Knight of RR2). The title is correct on the titlepage;

the addition of ‘The’ on the cover of the paperback edition (1970) is unexplained.

RR1—Reine Rechtslehre: Einleitung in die Rechtswissenschaftliche Problematik [Pure Theory of Law:

Introduction to the Problematic of Legal Science] (1st edn. 1934); tr. B.L. and S.L. Paulson, Introduction

to the Problems of Legal Theory (forthcoming). The French translation, Th?orie Pure du Droit (1953), tr.

H. Th?venaz, is an amplified text, intermediate between RR1 and RR2; a second edition of the translation

(1988) distinguishes Kelsen’s amplifications and adds an essay by M. van de Kerchove on Kelsen’s

influence in francophonic Europe and a bibliography of works in French on Kelsen.

RR2—Reine Rechtslehre (2nd edn. 1960—tr. as PTL).

WIJ—What is Justice? Justice, Law, and Politics in the Mirror of Science. Collected Essays (1957).

WRS—H. Kelsen, A. Merkl and A. Verdross, Die Wiener rechtstheoretische Schule [The Vienna School

of Legal Theory], ed. H. Klecatsky et al. (1968, in 2 vols).

The Kelsen bibliographies in GTLS and WRS are superseded by that in M?tall, Kelsen and its supplement;

then by that in (not seen) R. Walter, Hans Kelsen (1985). Of Kelsen’s main books, GTLS and RR2/PTL in

particular tend to repeat each other: in referencing, preference will be given to ATN because it is a final

statement, citing corresponding passages in FC since it is available in English; then to PTL as the last

overall statement of the pure theory; and then to GTLS where it covers a point more fully than PTL. In no

sense, however, are the references intended to be comprehensive. In quotations from American texts,

spelling has been anglicised.

1 One inferior translation is that of RR2 as PTL, which, though the translator records that the translation

was ‘carefully checked by the author’ (PTL, p. vi), flattens philosophical nuances and omits many

footnotes helpful on points of detail and for locating the book in contemporary debate. Where translation

and original differ, it is impossible to tell what Kelsen intended: e.g., the apparently handy definition of

law in PTL (p. 320) does not clearly relate to the corresponding text in RR2 (p. 321).

1 See M?tall, Kelsen.

1 See P. de Visscher, ‘Observations sur la Contribution de Hans Kelsen au Droit International Positif

[Observations on Hans Kelsen’s Contribution to Positive International Law]’ (1981) 138 Revue

Internationale de Philosophie pp. 530-8.

1 Its membership is in any case contested—M?tall finds WRS unrepresentative and holds that the pure

theory of law is quite different from the work of the School: R.A. M?tall, ‘Hans Kelsen und seine Wiener

Schule der Rechtstheorie [Hans Kelsen and his Vienna School of Legal Theory]’ in Hans Kelsen-Institut,

Hans Kelsen zum Gedenken (1974), pp. 15-25 at 15-16.

1 HPS. In the Germanic universities the higher doctorate, or Habilitation, qualifies for an academic career.

1 PTL, p. 1, cp. 30-3; Society and Nature (1943).

1 It suited Einstein, for one: P.A. Schilpp (ed.), Albert Einstein: Philosopher-Scientist (1949, 1969).

1 RR1, p. iii; reproduced in RR2, p. iii, but not in PTL. See also PTL, p. 72. See, further, H. Klenner,

‘Kelsens Kant [Kelsen’s Kant]’ (1981) 138 Revue Internationale de Philosophie pp. 539-46.

1 PTL, p. 113.

1 Kelsen, ‘Natural Law Doctrine and Legal Positivism’ (1929), tr. W.H. Kraus, in GTLS, pp. 389-446 at

444.

[302] 1 HPS, pp. v-xxiii (‘Vorrede zur zweiten Auflage [Preface to the Second Edition]’); ‘Die

Rechtswissenschaft als Norm- oder Kulturwissenschaft [Legal Science as Science of Norms or Culture]’

(1916) in WRS, pp. 37-93.

1 ‘The Pure Theory of Law’, op. cit., n. 9, p. 481.

1 PTL, p. 94.

1 D. Hume, A Treatise of Human Nature (1739, 1888), pp. 469-70; ATN, p. 222.

1 Following Herbart: Kelsen, ‘Die Rechtswissenschaft als Norm- oder Kulturwissenschaft’, op. cit., n. 21,

p. 37. Kelsen believes that Kant confuses the distinction in his theologically grounded conception of

‘practical reason’ (ATN, pp. 62-5) and in this regard prefers Hume to Kant: ATN, p. 68-9.

1 PTL, pp. 5-7; ATN, pp. 44-8. The difference between ‘is’ and ‘ought’ parallels that between reality and

value: what is understood in terms of ‘is’ is real, what is understood in terms of ‘ought’ is valuable if the

‘ought’ is a norm (then the norm is a value). To understand in terms of an ‘ought’ that is a norm is to make

an ‘objective’ value judgement. To understand in terms of an ‘ought’ that is not a norm is to make a

‘subjective’ value judgement: but this is really to understand in terms of ‘is’—to describe a relation

between two things, the object valued and one’s emotional state concerning it (ATN, p. 47). Existentialism

is classified as merely an extension of iusnaturalism, as yet another mingling of ‘is’ and ‘ought’: PTL, pp.

253-4.

1 ATN, p. 6; PTL, p. 196, where the reference seems to refer to the essay ‘Das Problem der Gerechtigkeit

[The Problem of Justice]’, appended to RR2, pp. 355-44 at 415ff.

1 ATN, pp. 131-4; as here, arguments of ATN that refer to norms can often be taken to hold generally for

oughts. Subsidiarily, Kelsen distinguishes between physiological will, e.g. by which one contracts an arm

muscle, and mental will, e.g. by which one directs an arm movement; his is/ought division requires this

distinction, but he accepts that it is difficult, perhaps uncompletable: ATN, p. 24. ‘Will’ here will mean

mental will.

1 ATN, pp. 103, 119-20; PTL, pp. 2-7.

1 RR2, pp. 4-5; PTL, p. 5; ATN, pp. 76-92. The specification is less necessary for the English word

‘ought’ than for the German, ‘Sollen’, which is close to ‘must’. However, in this context ‘must’ is better

reserved to translate Kelsen’s ‘M?ssen’, which he reserves for the necessities of causal connection.

‘Derogation’ occurs where one norm removes the validity of another: e.g., where a statute, or a section of

a statute, is repealed. Strictly, a derogating norm is a ‘not-ought (Nicht-Sollen)’, but, since that is not

feasible linguistically, one says e.g. ‘is hereby repealed’: ATN, pp. 85, 87. Derogation is distinct from

desuetude or the replacement of one customary norm by another. Kelsen accepts the existence of self-

referring norms: ATN, p. 88.

1 ATN, pp. 119-20.

1 ATN, p. 131.

1 PTL, pp. 101-7.

1 PTL, p. 1. On the origins of the expression ‘methodological syncretism’, see S.L. Paulson, ‘Kelsen on

Legal Interpretation’ (1990) 10 Legal Studies 136-52 at 151. I am indebted to this article for some

references to recent and forthcoming publications.

1 E.g. CTL, pp. 98-9, 143.

1 R. Stammler, The Theory of Justice (1902, tr. I. Husik 1925, 1969). Stammler argued, against Marxism,

that law is the ‘form’ of society: Wirtschaft und Recht nach der materialistischen Geschichtsauffassung

[Economy and Law According to the Materialist Conception of History] (1896). The latter point is, of

course, description of law, so that Stammler actually confuses description and prescription: M. Weber, ‘R.

Stammler’s `Surmounting’ of the Materialist Conception of History’ (1906), tr. M. Albrow (1975) 2

British Journal of Law and Society pp. 129-52; (1976) 3 British Journal of Law and Society pp. 17-43.

1 Cp. K. Olivecrona, Law as Fact (1939).

1 ATN, pp. 58-60.

1 G. Simmel, Einleitung in die Moralwissenschaft [Introduction to Moral Science] (1892-3), vol. 1, pp. 8-

9. Later, Simmel preferred a category of ‘value (Wert)’: The Philosophy of Money (1900, tr. T. Bottomore

and D. Frisby 1978), p. 60. But Kelsen does not use this idea.

1 The adoption of an additional category has been obscured by Kelsen himself. Although he . [303]

discusses the borrowing from Simmel in an early work (HPS, pp. 7-8), and alludes to it later on, so far as I

am aware it is referred to explicitly again only in a work published after his death: ATN, p. 2 and n. 2 (on

221-2).

1 PTL, pp. 3-4 (where ‘Schema’ is rendered as ‘scheme’); RR2, pp. 3-4.

1 PTL, p. 86; cp. GTLS, pp. 162-4 (‘normative jurisprudence’).

1 I.e., in more modern language, social or cultural anthropology.

1 GTLS, pp. 175-8; cp. PTL, pp. 75-6, 85-9.

1 ATN, pp. 18-19, 121-5; RR2, pp. 73-7. The translation of Rechtssatz as ‘rule of law in a descriptive

sense’ (GTLS, pp. 45ff; PTL, pp. 71ff) has misled. Translation of Solls?tze and Seins?tze as, respectively,

‘ought sentences’ (and perhaps ‘deontic sentences’) and ‘declarative sentences’ (O. Weinberger, ‘Logic

and the Pure Theory of Law’, tr. A. Schramm, in Tur and Twining, op. cit., n. 8, pp. 187-99 at 189, 199) is

very awkward: for one thing, these are not necessarily sentences. The distinction between norm and

proposition is absent in early works, such as HPS, where Kelsen adheres to conventional usage, in which

‘Rechtssatz’ refers indeterminately to a legal norm and to the proposition describing it. Rather than speak,

respectively, of ‘genuine’ and ‘nongenuine’ S?tze, he consciously turns to using ‘Rechtssatz’ to mean only

the descriptive proposition: ATN, pp. 121, 124-5. According to Kelsen, the new distinction originates in

RR1 and is first stated clearly in RR2: RR2, p. 83n.

1 ATN, p. 1.

1 PTL, p. 58.

1 As a European, Kelsen uses the Romanist expression ‘delict (German, Unrecht or Delikt)’, which covers

both criminal and civil wrongs.

1 My example. Part of Kelsen’s attack on iusnaturalism was to trace the development of the principle of

causality and the idea of a causal law out of primitive ideas of retribution, imputation and law: e.g.

‘Causality and Retribution’ (1941) in WIJ, pp. 303-23; Society and Nature (1943); ‘Causality and

Imputation’ (1950) in WIJ, pp. 324-49. Kelsen investigated the idea of the soul as ground for ideas of

retribution: ‘The Soul and the Law’ (1937) 1 Rev. of Religion pp. 337-60. Kelsen’s critiques of ancient

philosophy may still be of interest; his anthropological ideas remain attached to the category of the

‘primitive’. See further, (not seen) Kelsen, Die Illusion der Gerechtigkeit. Eine Kritische Untersuchung

der Sozialphilsophie Platons [The Illusion of Justice. A Critical Enquiry into Plato’s Social Philosophy],

ed. K. Ringhofer and R. Walter (1985).

1 PTL, p. 92.

1 PTL, pp. 76-81, 87. While the translation of ‘Zurechnung’ as ‘imputation’ may be as good as any,

rendering ‘Rechtsgesetz’ as ‘legal law’ (PTL, pp. 76ff) obscures the analogy with natural science. Kelsen

makes the jump from causality to imputation seem more plausible by arguing that the principle of

causality derives historically from that of imputation and its associate, the idea of retribution: PTL, pp. 82-

5.

1 ATN, p. 20.

1 ATN, p. 18.

1 ATN, p. 20; PTL, pp. 85-6.

1 GTLS, pp. 162-78; PTL, pp. 101-7. Kelsen insisted on this especially against Ehrlich’s conceptualisation

of sociology of law: GTLS, pp. 24-8; see also H. Rottleuthner, ‘Rechtstheoretische Probleme der

Soziologie des Rechts. Die Kontroverse zwischen Hans Kelsen und Eugen Ehrlich (1915/1917) [Legal-

theoretical Problems of Sociology of Law. The Controversy between Hans Kelsen and Eugen Ehrlich

(1915/1917)]’ in W. Krawietz and H. Schelsky (eds), Rechtssystem und gesellschaftliche Basis bei Hans

Kelsen (Rechtstheorie, Beiheft 5) (1984), pp. 521-51.

1 ATN, pp. 9, 145.

1 PTL, p. 73 (translation modified; cp. RR2, p. 75).

1 PTL, ch. 8. However, what is interpreted is not, as he says, a norm - for that would be to seek, absurdly,

the meaning of a meaning - but the act of will whose meaning the norm is: M. Troper, ‘Kelsen, la Th?orie

de l’Interpr?tation et la Structure de l’Ordre Juridique [Kelsen, Theory of Interpretation and the Structure

of the Legal Order]’ (1981) 138 Revue Internationale de Philosophie pp. 518-29 at 520-1. The

interpretation should, as Troper notes, be . [304] of a text (or other sign) - but Kelsen distinguishes the act

of will from its mode of expression. See, further, Kelsen, ‘On the Theory of Interpretation’, tr. B.L. and

S.L. Paulson (1990) 10 Legal Studies 127-35; Paulson, op. cit., n. 34.

1 GTLS, p. 45.

1 PTL, p. 72.

1 PTL, p. 70 (translation modified; cp. RR2, p. 72). ‘This is the pure theory’s position as against the so-

called `egological’ theory of law, which takes as the object of legal science not norms but human

behaviour, and against the Marxist theory, which conceives law as an aggregate of economic relations.’

(RR2, p. 72n.). See also N. Duxbury, ‘Carlos Cossio and Egological Legal Philosophy’ (1989) 2 Ratio

Juris 274-82.

1 A. Wilson, ‘Is Kelsen Really a Kantian?’ in Tur and Twining, op. cit., n. 8, pp. 37-64.

1 Economy and Society (1922), tr. various (1968), pp. 4ff. Kelsen occasionally uses ‘objective’ in this

sense, as meaning ‘politically unbiased’: e.g. CTL, pp. 96-7.

1 Differences in modes of description are ignored in Raz’s distinctions among types of ‘committed’ and

‘detached’ statements: J. Raz, ‘The Purity of the Pure Theory’ (1981) 138 Revue Internationale de

Philosophie pp. 441-59 at 453-5 (also in Tur and Twining, op. cit., n. 8, pp. 79-97 at 90-3); see also R.J.

Vernengo, ‘Kelsen’s Rechtss?tze as Detached Statements’ in Tur and Twining, op. cit., n. 8, pp. 99-108.

1 Kant usually speaks of ‘metaphysics’ as meaning erroneous belief in transcendence, but in this context

he uses the word with reference to universal postulates.

1 I. Kant, Metaphysical Foundations of Natural Science (1786, tr. J. Ellington 1970), pp. 5-6.

1 Cp. Weinberger, op. cit., n. 45, p. 188.

1 ‘The Pure Theory of Law and Analytical Jurisprudence’ (1941) in WIJ, pp. 266-87 at 266.

1 ‘The Function of the Pure Theory of Law’, op. cit., n. 9, pp. 231-2.

1 HPS, p. 92; ‘Zur Soziologie des Rechtes [On Sociology of Law]’ (1912) 34 Archiv f?r

Sozialwissenschaft und Sozialpolitik pp. 601-14; GTLS, pp. 175-7.

1 ‘On the Pure Theory of Law’, op. cit., n. 9, p. 4.

1 CTL, pp. 72-3. Although Kelsen might have been entitled to assume that the idea of ‘pure theory’ was

familiar in his time, it was still necessary to state clearly his own understanding of the expression. Thus R.

Stammler wrote of ‘pure science or theory’ in a related but importantly different sense: The Theory of

Justice, op. cit., n. 36, p. 5.

1 ‘Was ist die Reine Rechtslehre? [What is the Pure Theory of Law?]’ (1953) in WRS, pp. 611-29 at 620.

1 CTL, p. 193.

1 Cp. G. Luk?cs, ‘Reification and the Consciousness of the Proletariat’ (1923) in his History and Class

Consciousness, tr. R. Livingstone (1971), pp. 83-222 at 108-9.

1 Kelsen, ‘Der Staatsbegriff der ‘verstehenden Soziologie’ [The Concept of the State in ‘Interpretive

Sociology’]’ (1921) 1 Zeitschrift fur Volkswirtschaft und Sozialpolitik pp. 104-19; ‘The Pure Theory of

Law’, op. cit., n. 9, pp. 477-8; GTLS, pp. 162-78; PTL, pp. 2-3, 85-9, 101-7. See, further, N. Bobbio,

‘Max Weber e Hans Kelsen [Max Weber and Hans Kelsen]’ (1981) 8 Sociologia del Diritto 135-54; A.

Carrino, ‘Weber e la Sociologia del Diritto nella Critica di Kelsen [Weber and Sociology of Law in

Kelsen’s Critique]’ (1987) 14 Sociologia del Diritto 17-32.

1 Economy and Society, op. cit., n. 63, p. 4.

1 PTL, p. 3.

1 PTL, pp. 7-8; RR2, p. 7. The argument is clumsily expressed in both texts.

1 GTLS, p. 178.

1 HPS, chs 1-2.

1 O. Ewald, ‘Die deutsche Philosophie im Jahre 1911 [German Philosophy in 1911]’ (1912) 17 Kant-

Studien pp. 382-433 at 397-8; M?tall, Kelsen, pp. 7, 8, 15; H. Cohen, Ethik des reinen Willens [Ethic of

Pure Will] (1904).

1 GTLS, pp. 99, 191-2.

1 ATN, pp. 1-3, 22.

1 PTL, p. 47.

1 GTLS, pp. 112-13; PTL, pp. 195-8. Kelsen does not confuse ‘legal order’ in this sense with the [306]

orderliness in society that such an order might ensure when it is effective; nor does he assume that law

always creates order (PTL, p. 38).

1 GTLS, p. 112. My example.

1 E.g. E. Ehrlich, ‘Judicial Freedom of Decision: its Principles and Objects’ (1903) in various authors,

Science of Legal Method, tr. E. Bruncken and L.B. Register (1917, 1969) 47-84; Fundamental Principles

of the Sociology of Law (1913; tr. W.L. Moll, reissued 1975).

1 E.g. PTL, chs. 5 and 8. The behaviour in the particular case may be logically relatable to the behaviour

envisaged generally in the norm - but that is a subsidiary issue in the realm of ‘is’, concerning the norm

not as ‘ought’ but as to its ‘content’: ATN, pp. 26, 39. Logic does not apply even to imagined norms, since

these are the imagined meaning of an imagined act of will: ATN, pp. 187-8. Kelsen might have added that

norms are usually imagined before they are called into existence by a real act of will.

Strictly, however, there is not a norm that may or may not be legally valid: validity in this sense is the

norm’s ‘specific intellectual (ideell) existence’; strictly, ‘valid norm’ is a pleonasm: ATN, pp. 22, 136-8.

Not to be confused with ideal (ideal) existence, in e.g. a Platonic sense, or with real, material existence:

Kelsen in discussion reported in F.-M. Schm?lz (ed.), Das Naturrecht in der politischen Theorie (1963), p.

124.

1 PTL, pp. 231, 234-5, 255.

1 PTL, pp. 267-78.

1 PTL, p. 279, cp. 70-1.

1 PTL, pp. 279-80; where ‘Rechtsform und Staatsform (Form of Law and Form of State)’ (RR2, p. 283), is

rendered as ‘Creation of Law and Form of Government’.

1 PTL, pp. 9, 214, 226, 250. See also below, on ‘primitive’ law and international law.

1 PTL, p. 227.

1 PTL, pp. 197-8.

1 PTL, p. 196.

1 ATN, pp. 6-7.

1 ATN, pp 201-2.

1 ATN, pp. 33-40. In characterising even moral orders as dynamic, Kelsen supposes that, just as legal

norms are applied by organs of the legal order, moral norms are applied by organs of the moral order:

ATN, p. 42. The meaning of ‘organ’ here is diffuse.

1 PTL, p. 222.

1 FC, p. 118. This sense of ‘constitution’ seems to be Kelsen’s scientifically acceptable substitute for

‘sources of law’ in the validation sense, after he rejected that expression because it could also refer to

historical sources: PTL, p. 233.

1 PTL, pp. 234, 236.

1 Luk?cs, quoted in Varga, op. cit., n. 2, p. 148.

1 PTL, pp. 211-14. Here Kelsen takes as ‘typical’ opponent his former pupil the Scandinavian ‘legal

realist’ Ross: RR2, p. 215n.

1 ATN, pp. 111-14; PTL, pp. 10-12, 211-14 (translation modified). PTL, p. 214, repetitively renders

‘Recht’ as both ‘law’ and ‘right’, and ‘Macht’ as both ‘power’ and ‘might’: cp. RR2, pp. 220-1. Kelsen

has in mind the doctrine of desuetude (desuetudo), known in the Romanist legal systems but not in the

Common Law systems.

1 PTL, p. 27.

1 ATN, pp. 43, 108, 115-16; GTLS, pp. 60-1.

1 Criticised in GTLS, pp. 62-4. However, Austin’s Benthamite definition of the sovereign, as the person or

body that is habitually obeyed and does not habitually obey any other, which is central to his definition of

positive law, is also sociological. Kelsen sympathises with this side of Austin and only finds his way of

using it contradictory.

1 ATN, p. 112.

1 Hart’s primary/secondary distinction is in the same direction as Kelsen’s, but on a different criterion:

H.L.A. Hart, The Concept of Law (1961), ch. 5. Hart’s ‘secondary rules’ fall into Kelsen’s class of

‘dependent norms’, which in their dependence on sanctioned norms are indirectly coercive: cp. PTL, pp.

54-8. For recent comparisons between Hart and Kelsen, see Beyleveld and Brownsword, `Normative

Positivism’, op. cit., n. 9; van de Kerchove and Ost, op. cit., n. 9 (relating the work of Hart and Kelsen to

systems theory).

1 FC, p. 111.

1 E.g. PTL, pp. 221, 255.

1 PTL, pp. 33-42.

1 ATN, pp. 115-16; cp. FC, p. 112.

1 PTL, pp. 59-69, 111-14.

1 ATN, pp. 92-9, 265-6; PTL, pp. 68-9 (translation modified; RR2, p. 71). This holds even for the ‘general

principles of law’ that the International Court of Justice is authorised by its Statute to apply: ATN, pp. 99,

266.

1 PTL, pp. 33-42. PTL appears later to deny this extension (p. 111), but the denial is not in RR2 (p. 117);

cp. PTL, p. 114.

1 His retirement lecture was ‘What is Justice’ (1952) in WIJ, pp. 1-24. See also other essays in that book

and ‘Das Problem der Gerechtigkeit’, op. cit., n. 27; J. Bjarup, ‘Kelsen’s Theory of Law and Philosophy of

Justice’ in Tur and Twining, op. cit., n. 8, pp. 273-303.

1 The Law of the United Nations (1950), p. xiii; cp. GTLS, p. 15; ‘The Law as a Specific Social

Technique’ (1941) in WIJ, pp. 231-56.

1 See e.g. D. Held, Introduction to Critical Theory (1980), ch. 5.

1 Cp. A. Renaut, ‘Kelsen et le Probl?me de l’Autonomie du Droit [Kelsen and the Problem of the

Autonomy of Law]’ (1986) 9 Cahiers de Philosophie Politique et Juridique pp. 7-21 at 21. Kelsen’s

position is also vulnerable to Foucault’s critique of technical rationality as a form of power in which the

subject is denied and reconstructed - although the pure theory may also be taken as useful to a Foucauldian

perspective in identifying law as a technique of disciplinary power: see esp. CTL, pp. 102-5.

1 ATN, p. 105. This refinement appears to be new in ATN.

1 ATN, pp. 195-6. The earlier view reeks, to him, of the old theory of legislation as merely the finding and

promulgation of natural laws (familiar in Common Law countries as the fiction that judges do not make

law).

1 ATN, pp. 115, 349-50. Previously, Kelsen had rejected Gray’s approach as supposing that only

individual norms exist: PTL, p. 255.

1 ATN, p. 196n.

1 ATN, pp. 199-200.

1 ‘Was ist die Reine Rechtslehre?’, op. cit., n. 73, at 616-18 (this passage tr. in Weinberger, op. cit., n. 45,

pp. 189-90).

Thus legal norms do not ‘teach’, only legal propositions describing them: ATN, pp. 103-6. In Kelsen’s

terms, the educative role of law, e.g. in anti-discrimination laws, would operate through description of

legal norms, mainly in the press.

1 ATN, p. 190. A reference to the basic norm as ‘the constitution in the legal-logical sense (die Verfassung

im rechtslogischen Sinne)’ (RR2, p. 232; changed to ‘the “constitution” in the transcendental-logical

sense’ in PTL, p. 226) might be understood to refer to the logicality of legal propositions, including a basic

norm. The occasional references to ‘the logical relation of norms’ (PTL, p. 339) and ‘contradiction’

between norms (PTL, pp. 206, 350, 352) are harder to explain: since, however, they are made in passing,

there is room to take them to refer infelicitously to the norm as presented in the legal proposition. The

alternative, and of course defensible, view has produced the impression that Kelsen thought logic did

apply to norms and, in the 1960s, changed his mind: e.g. Weinberger, op. cit., n. 45, pp. 192-4. R.J.

Vernengo valuably argues that Kelsen usually saw logic as having ‘an epistemological tinge according to

the traditional Kantian heritage’ or later, ‘under the influence of phenomenology, an ontological

foundation’ and became familiar with modern formal logic only ‘in his last years and then not without

ambiguities’: ‘About an Empowerment Theory of Legal Norms and Some Related Problems’ (1989) 2

Ratio Juris 299-303 at 300.

1 ATN, pp. 203-5. The third case echoes Holmes’ definition of law as the ‘prophecies of what the courts

will do in fact’: O.W. Holmes, ‘The Path of the Law’ (1897) 10 Harvard Law Rev. pp. 457-78 at 461. But

the echo is distorted: these prophecies would be expressed in laws of law, not legal norms themselves; yet

in any case such prophecy belongs to the realm of legal advice, not scientific description: PTL, pp. 87-9;

GTLS, pp. 165-8.

[307] 1 ATN, pp. 99-101.

1 PTL, p. 18.

1 ATN, pp. 101-3. See also papers by Harris, Paulson and Weyland in Tur and Twining, op. cit., n. 8.

1 ATN, pp. 81, 106-7; PTL, p. 245-50.

1 ATN, pp. 351-2.

1 ATN, pp. 25ff. Kelsen awkwardly conceives self-addressing as a relation between oneself as ‘ego’ and

as ‘alter ego’: ATN, pp. 23-4.

1 ATN, pp. 39-43, 191-3.

1 Cp. ATN, p. 37.

1 PTL, pp. 191-2.

1 ATN, p. 7; PTL, pp. 165-6 (translation modified: RR2, pp. 169-70), 169.

1 PTL, chs. 6 and 7; GTLS, pt. 2.

1 PTL, pp. 280-4; GTLS, pp. 201-7.

1 PTL, p. 177.

1 PTL, pp. 145-68, 256-62.

1 PTL, pp. 280-4 (translation modified: RR2, pp. 284-7). Kelsen actually writes ‘systematic’ where he

clearly means ‘systemic’.

1 ATN, pp. 108-11; PTL, pp. 114-17, 125-45.

1 PTL, p. 169.

1 PTL, pp. 117, 168-91; GTLS, pp. 93-109, 377.

1 PTL, pp. 32, 35ff, 266-7, 284-319. Throughout PTL, ‘staatliche Rechtsordnung’ is rendered as ‘national

legal order’—which both dilutes the key thesis of the identity of (total) legal order and state, and implies

that Kelsen na?vely assumes that ‘state’ and ‘nation’ always coincide.

1 PTL, pp. 320-4.

1 PTL, pp. 324-8.

1 PTL, pp. 328-33; reading ‘state’ instead of ‘national’.

1 ‘The Pure Theory of Law and Analytical Jurisprudence’, op. cit., n. 68, p. 287.

1 As Hart says, ‘we might as well attempt to deduce from the existence of the history of warfare or the

science of strategy that all wars are one or all armies are one’: ‘Kelsen’s Doctrine of the Unity of Law’,

op. cit., n. 6, p. 322.

1 PTL, pp. 328-47. Cp. GTLS, esp. p. 388; Peace Through Law (1944). The issue, of course, affects

questions of federalism.

1 The expression of the distinction here depends on the distinction between legal norm and legal

proposition.

1 Kelsen’s fairly early characterisation of the basic norm as a ‘minimum’ of natural law (‘Natural Law

Doctrine and Legal Positivism’, op. cit., n. 20, p. 437) cannot survive his later distinguishing between

legal norm and legal proposition. What applies to the distinction between international and local law also

applies to issues of federalism.

1 Esp. FC; PTL, pp. 193-211 (translation modified), 223. When Kelsen expresses the difference between

the two situations by saying that in the robber’s case ‘an evil will be inflicted’ whereas in that of the tax

official ‘an evil ought to be inflicted’ (PTL, p. 45), he anticipates Hart’s ‘gunman situation’ distinction

between being obliged and having an obligation: Hart, op. cit., n. 111, pp. 19ff, 80ff.

1 PTL, pp. 44-50; cp. Augustine, City of God, bk. 4, ch. 4. Hart appears to begin from a Weberian

standpoint, yet Hart’s ‘external point of view’ applies only to values and not to description of what is to be

valued, and from Kelsen’s standpoint Hart’s ‘recognition’ theory is vulnerable to Kelsen’s much earlier

criticisms of Bierling: Hart, The Concept of Law, op. cit., n. 111, passim; PTL, p. 218n.; J. Raz, op. cit., n.

64.

1 FC, p. 117; ATN, pp. 206-7; cp. H. Vaihinger, The Philosophy of ‘As If’ (1911; tr. C.K. Ogden, 2nd

edn. 1935), pp. 97-100. Kelsen had been aware of Vaihinger’s book and its conceptualisation of fictions

since at least 1919: ‘Zur Theorie der juristischen Fiktionen: mit besonderer Ber?cksichtigung von

Vaihingers Philosophie des Als-ob [On the Theory of Legal Fictions: with particular reference to

Vaihinger’s Philosophy of As-If]’ (1919) in WRS, pp. 1215-41. The ‘fiction’ version of the ‘basic norm’

concept was first announced in discussion reported in Schm?lz, op. cit., n. 89, pp. 119-20. The full

argument is given in FC and ATN. It is presented only partially when it first appears in English: ‘On the

Pure Theory of Law’, op. cit., n. 9, p. 6.

[308] 1 ‘Was ist ein Rechtsakt? [What is a Legal Act?]’ (1952) in WRS, pp. 1381-93 at 1390-1.

1 PTL, p. 204n.

1 C. Martyniak, ‘Le Probl?me de l’Unit? des Fondements de la Th?orie de Droit de Kelsen [The Problem

of the Unity of the Bases of Kelsen’s Theory of Law]’ (1937) 7 Archives de Philosophie du Droit et de

Sociologie Juridique 166-90 at 185; compare H. Klenner, Rechtsleere [A Legal Void (an awful pun on

Rechtslehre, legal theory)] (1972), p. 39.

1 Cp. N. Lavand, ‘Hans Kelsen ou le Cubisme [Hans Kelsen or Cubism]’ (1986) 9 Cahiers de Philosophie

Politique et Juridique 95-114.

1 J. Wr?blewski, ‘Kelsen, the Is-Ought Dichotomy and Naturalistic Fallacy [sic]’ (1981) 138 Revue

Internationale de Philosophie 508-17 at 515. I have suggested elsewhere a philosophical equivalent of

paint and canvas: ‘Closure and the Legal Norm: an Essay in Critique of Law’ (1987) 50 Modern Law Rev.

908-33 at 916-22.

1 Varga, op. cit., n. 2, p. 137.

1 See, further, my ‘Kelsen and the Exegetical Tradition’ in Tur and Twining, op. cit., n. 8, pp. 123-47;

‘Closure and the Legal Norm’, op. cit., n. 165; P. Amselek, ‘Kelsen et les Contradictions du Positivisme

Juridique [Kelsen and the Contradictions of Legal Positivism]’ (1981) 138 Revue Internationale de

Philosophie 460-73.

1 As does Pashukanis, op. cit., n. 6.

1 Thus, Kelsen’s critique of Pashukanis does not take seriously Pashukanis’s analyses of ‘legal fetishism’:

CTL, pp. 89-111.

1 On the relation of the pure theory to Marxism, see generally the Hans Kelsen-Institut symposium Reine

Rechtslehre und marxistische Rechtstheorie [Pure Theory of Law and Marxist Theory of Law] (1978).

Kelsen fell into the error of understanding Marxism solely as the Eastern Marxism of economic

determinism, whose capacity for critical legal theory was very limited: CTL, especially p. vii. However,

Kelsen’s opposition to Marxism was not bigoted: his willingness to take Marxist thinking seriously (e.g.

‘Allgemeine Rechtslehre im Lichte materialistischer Geschichtsauffassung [General Theory of Law in the

Light of the Materialist Conception of History]’ (1931) 66 Archiv fur Sozialwissenschaft und Sozialpolitik

449-521) nearly got him into an extermination camp.

1 Although occasionally he examines common modes of expression, he does so speculatively, in order to

clarify his own vocabulary; he does not treat such expressions as evidence of meaning, in the manner of

‘ordinary language’ philosophy or of semiotics (e.g. the discussion of ‘law’, ‘Recht’, etc. in PTL, pp. 30-

1). The greater attention to language in his last book is just painful: for one thing, his conception of

linguistic meaning is wholly referential, with no grasp of Wittgenstein’s (or Bentham’s) conception of

meaning as use, though Wittgenstein is occasionally cited (ATN, pp. 24-32). Indeed, his differentiation

between an act of will or thought and a speech act may be a deliberate evasion of linguistic philosophy.

However, Kelsen’s attention solely to logic does not, by itself, exclude the possibility of adding into his

theory an examination of legal norms as rhetoric.

1 Criticism that is merely negative tends to preserve the terms of that which it negates; to emancipate,

criticism needs to transform the subject matter of the critique.

1 See C. Schmitt, ‘The Leader Protects the Law’ (1934), tr. I. Stewart (forthcoming in International J. of

the Sociology of Law).

* Senior Lecturer and Head, School of Law, Macquarie University, Sydney 2109.

This paper is the fourth in a series dealing with the work of theorists who have substantially influenced

contemporary understanding of law and society. The series will be of interest to both students and

specialists.

[NOTE TO THIS TEXT: The present text is derived from my disk copy; the text printed in the Journal of

Law and Society incorporates some stylistic changes preferred by the publisher, which do not affect the

meaning. Were I to update the article, I would refer to the now published translations of Kelsen’s Reine

Rechtslehre (first edition) and Allgemeine Theorie der Normen. I would translate ‘Verfassung im

materiellen Sinne’ as ‘constitution in the substantive sense’ (and not ‘in the material sense’). I would also

refer to a later article of mine on Kelsen: ‘Kelsen Tomorrow’ (1998) 51 Current Legal Problems 181-204

(also at:: www.law.mq.edu.au/HTML/staff/istewart/istewart.htm). I.S. 10.02.02]

i R.A. M?tall, Hans Kelsen: Leben und Werk [Hans Kelsen: Life and Work] (1969), hereafter ‘M?tall,

Kelsen’, pp. 62-3, 70-2. All information about Kelsen’s life is taken from this biography by a pupil and

long-time assistant, with which Kelsen co-operated closely. It contains a full bibliography of works by and

on Kelsen at pp. 122-216; supplemented in A.J. Merkl et al. (eds.), Festschrift f?r Hans Kelsen zum 90.

Geburtstag (1971), pp. 325-6. In 1933, because his French was better than his English, Kelsen preferred an

invitation to work in Geneva to invitations from the London School of Economics (obtained by Laski and

Kelsen’s former pupil Lauterpacht) and the New School for Social Research, the ‘exile university’ in the

USA: M?tall, Kelsen, pp. 63-4.

ii C. Varga, The Place of Law in Luk?cs’ World Concept (1985), pp. 136-7.

iii See e.g. Hans Kelsen-Institut, Der Einfluss der Reinen Rechtslehre auf die Rechtstheorie in

verschiendenen L?ndern [The Pure Theory’s Influence on Legal Theory in Various Countries] (1978).

iv E.g. by C. Norris, ‘Law, Deconstruction, and the Resistance to Theory’ (1988) 15 Journal of Law and

Society pp. 166-87 at 182. That Norris comes out of literary theory indicates how orthodox this impression

has become.

v G. Gurvitch, Sociology of Law (1947), p. 5.

vi H.L.A. Hart, ‘Kelsen’s Doctrine of the Unity of Law’ (1968) in his Essays in Jurisprudence and

Philosophy (1983), pp. 309-42 at 313. The charge was laid early: among Kelsen’s Austro-Marxist friends,

by Max Adler and Karl Renner (the latter’s work can be seen as an alternative): T. Bottomore and P.

Goode (eds.), Austro-Marxism (1978), p. 18. Among the ‘legal realist’ tendency, Holmes was mightily

impressed after meeting Kelsen and wrote so to Laski: O.W. Holmes Jr., Holmes-Laski Letters (1953), p.

1376. (Certainly Kelsen was a strong character, once responding so powerfully to a remark by Hart that

the latter, on his own account, ‘fell over backwards in my chair’: H.L.A. Hart, ‘Kelsen Visited’ (1963) in

his Essays in Jurisprudence and Philosophy, op. cit., pp. 286-308 at 287.) Yet Laski (echoing Holmes’

most famous phrase) was to call the pure theory ‘an exercise in logic and not in life’ and to pile Kelsen

among ‘the veterans of an earlier age’ that knew not sociology: H.J. Laski, A Grammar of Politics (1925,

5th edn. 1948), p. vi. Pound similarly acknowledged Kelsen’s eminence, assisted him in exile and

deplored his unreality: R. Pound, ‘Fifty Years of Jurisprudence’, part III, (1937-8) 51 Harvard Law Rev.

pp. 444-72 at 449; cp. ‘Jurisprudence’ in the [300] Encyclopaedia of the Social Sciences (1930-5), vol. 8,

pp. 477-92 at 484. To Pashukanis, who understood Kelsen’s philosophical standpoint better than most,

Kelsen’s theory of law ‘makes not the slightest attempt to analyse law, the legal form, as a historical form,

for it has absolutely no intention of fathoming reality’ and is therefore ‘a waste of time’: E.B. Pashukanis,

Law and Marxism: a General Theory (1924; tr. B. Einhorn, 1978), pp. 52-3. Today, the accusation

continues. Patrons of Twining’s ‘Great Juristic Bazaar’ find a large, empty, whitewashed space announced

as ‘The One True Legal Science’, to which there is ‘No entry without Purification’: W. Twining, ‘The

Great Juristic Bazaar’ (1978) 14 Journal of the Society of Public Teachers of Law (n.s.) pp. 185-200 at

194. J.W. Harris accuses Kelsen of conceiving of a ‘pure norm’: Law and Legal Science (1979), pp. 34-5.

See also J. Stone, Legal System and Lawyers’ Reasonings (1964), ch. 3; Kelsen replied in ‘Professor

Stone and the Pure Theory of Law’ (1965) 17 Stanford Law Rev. pp. 1128-57. Kelsen’s replies to critics

were often long.

vii ‘bl?deste’: reported by H. Klecatsky in Hans Kelsen-Institut, Hans Kelsen zum Gedenken

[Remembering Hans Kelsen] (1974), pp. 69-70.

viii (1981) 138 Revue Internationale de Philosophie (‘Kelsen et le Positivisme Juridique [Kelsen and

Legal Positivism]’); (1986) 9 Cahiers de Philosophie Politique et Juridique (‘La Philosophie du Droit de

Hans Kelsen [Hans Kelsen’s Philosophy of Law]’); R. Tur and W. Twining (eds.), Essays on Kelsen

(1986). The following have not been seen: (1984) Rechtstheorie, Beihefte 5 and 6; S.L. Paulson and R.

Walter (eds), Untersuchungnen zur Reinen Rechtslehre [Studies on the Pure Theory of Law] (1986); A.

Carrino, Kelsen e il Problema della Scienza Giuridica [Kelsen and the Problem of Legal Science] (1987);

W. Krawietz and O. Weinberger (eds), Reine Rechtslehre im Spiegel ihrer Fortsetzer und Kritiker [Pure

Theory of Law in the Mirror of its Continuators and Critics] (1988); L. Gianformaggio (ed.), Hans

Kelsen’s Theory: a Diachronic Point of View (forthcoming). I have had to neglect almost all of the large

literature on Kelsen in Italian and Spanish.

ix Even its core, the pure theory, has been surveyed at book length in English only once: W. Ebenstein,

The Pure Theory of Law (1945, reissued 1969). This book contains many valuable reflections for which

there is not space here. The only other book in English on Kelsen does not attempt a general exposition

and as critique is very weak: R. Moore, Legal Norms and Legal Science: a Critical Study of Kelsen’s Pure

Theory of Law (1978); see my review, (1980) 43 Modern Law Rev. 727-9. Like Ebenstein’s book, the

existing article-length surveys in English, though good in their time, are out of date: H. Lauterpacht,

‘Kelsen’s Pure Science of Law’ in W.I. Jennings (ed.), Modern Theories of Law (1933), pp. 105-38; C.H.

Wilson, ‘The Basis of Kelsen’s Theory of Law’ (1934) 1 Politica pp. 54-82. Kelsen himself provides a

good, though now dated, survey: ‘The Pure Theory of Law. Its Method and Fundamental Concepts’, tr.

C.H. Wilson, (1934) 50 Law Quarterly Rev. pp. 474-98; (1935) 51 Law Quarterly Rev. pp. 517-35; cp.

‘The Function of the Pure Theory of Law’ in A. Reppy (ed.), Law: a Century of Progress 1835-1935

(1937), vol. 2, pp. 231-41; ‘On the Pure Theory of Law’ (1966) 1 Israel Law Rev. pp. 1-7. Some aspects

of the pure theory are discussed in J. Lenoble and F. Ost, Droit, Mythe et Raison [Law, Myth and Reason]

(1980), pp. 467-546; M. van de Kerchove and F. Ost, Le Systeme Juridique entre Ordre et Desordre

[Legal Systems—between Order and Disorder] (1988); D. Beyleveld and R. Brownsword, Law as a Moral

Judgment (1986), ch. 6; also `Normative Positivism: the Mirage of the Middle-Way’ (1989) 9 Oxford J. of

Legal Studies 463-512. The best textbook account is in Lord Lloyd of Hampstead and M.D.A. Freeman,

Introduction to Jurisprudence (5th edn. 1985), ch. 5.

x In referring to Kelsen’s major works, the following abbreviations will be used:

ATN—Allgemeine Theorie der Normen [General Theory of Norms] (1979) - an index is available

separately (1989); tr. M. Hartney, General Theory of Norms (forthcoming). A draft of the first chapter was

published in 1965 and is translated by P. Heath as ‘On the Concept of Norm’ in Kelsen, Essays in Legal

and Moral Philosophy, sel. O. Weinberger (1973), pp. 216-27.

CTL—The Communist Theory of Law (1955). Mostly a critique of the collection Soviet Legal

Philosophy, tr. H. Babb (1951).

FC—‘The Function of a Constitution’ (1964), tr. I. Stewart in Tur and Twining, op. cit., n. 8, pp. 109-19.

Also in Lloyd and Freeman, op. cit, n. 9, pp. 379-85; the text in the Tur and Twining volume will be cited

here. This version of the translation supersedes that in [1980] [301] Juridical Rev. pp. 214-24, except that

the latter has notes on variations between the two versions of the German text. Parts of the later German

text are incorporated in ATN, pp. 205-8.

GTLS—General Theory of Law and State (tr. A. Wedberg 1945, reissued 1961). The original German text

has not been published.

HPS—Hauptprobleme der Staatsrechtslehre entwickelt aus der Lehre vom Rechtssatze [Major Problems in

Theory of the Law of the State, Approached from Theory of the Legal Statement] (1911; 2nd edn. 1923,

reissued 1960).

PTL—Pure Theory of Law (1967 - translation by M. Knight of RR2). The title is correct on the titlepage;

the addition of ‘The’ on the cover of the paperback edition (1970) is unexplained.

RR1—Reine Rechtslehre: Einleitung in die Rechtswissenschaftliche Problematik [Pure Theory of Law:

Introduction to the Problematic of Legal Science] (1st edn. 1934); tr. B.L. and S.L. Paulson, Introduction

to the Problems of Legal Theory (forthcoming). The French translation, Th?orie Pure du Droit (1953), tr.

H. Th?venaz, is an amplified text, intermediate between RR1 and RR2; a second edition of the translation

(1988) distinguishes Kelsen’s amplifications and adds an essay by M. van de Kerchove on Kelsen’s

influence in francophonic Europe and a bibliography of works in French on Kelsen.

RR2—Reine Rechtslehre (2nd edn. 1960—tr. as PTL).

WIJ—What is Justice? Justice, Law, and Politics in the Mirror of Science. Collected Essays (1957).

WRS—H. Kelsen, A. Merkl and A. Verdross, Die Wiener rechtstheoretische Schule [The Vienna School

of Legal Theory], ed. H. Klecatsky et al. (1968, in 2 vols).

The Kelsen bibliographies in GTLS and WRS are superseded by that in M?tall, Kelsen and its supplement;

then by that in (not seen) R. Walter, Hans Kelsen (1985). Of Kelsen’s main books, GTLS and RR2/PTL in

particular tend to repeat each other: in referencing, preference will be given to ATN because it is a final

statement, citing corresponding passages in FC since it is available in English; then to PTL as the last

overall statement of the pure theory; and then to GTLS where it covers a point more fully than PTL. In no

sense, however, are the references intended to be comprehensive. In quotations from American texts,

spelling has been anglicised.

xi One inferior translation is that of RR2 as PTL, which, though the translator records that the translation

was ‘carefully checked by the author’ (PTL, p. vi), flattens philosophical nuances and omits many

footnotes helpful on points of detail and for locating the book in contemporary debate. Where translation

and original differ, it is impossible to tell what Kelsen intended: e.g., the apparently handy definition of

law in PTL (p. 320) does not clearly relate to the corresponding text in RR2 (p. 321).

xii See M?tall, Kelsen.

xiii See P. de Visscher, ‘Observations sur la Contribution de Hans Kelsen au Droit International Positif

[Observations on Hans Kelsen’s Contribution to Positive International Law]’ (1981) 138 Revue

Internationale de Philosophie pp. 530-8.

xiv Its membership is in any case contested—M?tall finds WRS unrepresentative and holds that the pure

theory of law is quite different from the work of the School: R.A. M?tall, ‘Hans Kelsen und seine Wiener

Schule der Rechtstheorie [Hans Kelsen and his Vienna School of Legal Theory]’ in Hans Kelsen-Institut,

Hans Kelsen zum Gedenken (1974), pp. 15-25 at 15-16.

xv HPS. In the Germanic universities the higher doctorate, or Habilitation, qualifies for an academic

career.

xvi PTL, p. 1, cp. 30-3; Society and Nature (1943).

xvii It suited Einstein, for one: P.A. Schilpp (ed.), Albert Einstein: Philosopher-Scientist (1949, 1969).

xviii RR1, p. iii; reproduced in RR2, p. iii, but not in PTL. See also PTL, p. 72. See, further, H. Klenner,

‘Kelsens Kant [Kelsen’s Kant]’ (1981) 138 Revue Internationale de Philosophie pp. 539-46.

xix PTL, p. 113.

xx Kelsen, ‘Natural Law Doctrine and Legal Positivism’ (1929), tr. W.H. Kraus, in GTLS, pp. 389-446 at

444.

[302] xxi HPS, pp. v-xxiii (‘Vorrede zur zweiten Auflage [Preface to the Second Edition]’); ‘Die

Rechtswissenschaft als Norm- oder Kulturwissenschaft [Legal Science as Science of Norms or Culture]’

(1916) in WRS, pp. 37-93.

xxii ‘The Pure Theory of Law’, op. cit., n. 9, p. 481.

xxiii PTL, p. 94.

xxiv D. Hume, A Treatise of Human Nature (1739, 1888), pp. 469-70; ATN, p. 222.

xxv Following Herbart: Kelsen, ‘Die Rechtswissenschaft als Norm- oder Kulturwissenschaft’, op. cit., n.

21, p. 37. Kelsen believes that Kant confuses the distinction in his theologically grounded conception of

‘practical reason’ (ATN, pp. 62-5) and in this regard prefers Hume to Kant: ATN, p. 68-9.

xxvi PTL, pp. 5-7; ATN, pp. 44-8. The difference between ‘is’ and ‘ought’ parallels that between reality

and value: what is understood in terms of ‘is’ is real, what is understood in terms of ‘ought’ is valuable if

the ‘ought’ is a norm (then the norm is a value). To understand in terms of an ‘ought’ that is a norm is to

make an ‘objective’ value judgement. To understand in terms of an ‘ought’ that is not a norm is to make a

‘subjective’ value judgement: but this is really to understand in terms of ‘is’—to describe a relation

between two things, the object valued and one’s emotional state concerning it (ATN, p. 47). Existentialism

is classified as merely an extension of iusnaturalism, as yet another mingling of ‘is’ and ‘ought’: PTL, pp.

253-4.

xxvii ATN, p. 6; PTL, p. 196, where the reference seems to refer to the essay ‘Das Problem der

Gerechtigkeit [The Problem of Justice]’, appended to RR2, pp. 355-44 at 415ff.

xxviii ATN, pp. 131-4; as here, arguments of ATN that refer to norms can often be taken to hold generally

for oughts. Subsidiarily, Kelsen distinguishes between physiological will, e.g. by which one contracts an

arm muscle, and mental will, e.g. by which one directs an arm movement; his is/ought division requires

this distinction, but he accepts that it is difficult, perhaps uncompletable: ATN, p. 24. ‘Will’ here will

mean mental will.

xxix ATN, pp. 103, 119-20; PTL, pp. 2-7.

xxx RR2, pp. 4-5; PTL, p. 5; ATN, pp. 76-92. The specification is less necessary for the English word

‘ought’ than for the German, ‘Sollen’, which is close to ‘must’. However, in this context ‘must’ is better

reserved to translate Kelsen’s ‘M?ssen’, which he reserves for the necessities of causal connection.

‘Derogation’ occurs where one norm removes the validity of another: e.g., where a statute, or a section of

a statute, is repealed. Strictly, a derogating norm is a ‘not-ought (Nicht-Sollen)’, but, since that is not

feasible linguistically, one says e.g. ‘is hereby repealed’: ATN, pp. 85, 87. Derogation is distinct from

desuetude or the replacement of one customary norm by another. Kelsen accepts the existence of self-

referring norms: ATN, p. 88.

xxxi ATN, pp. 119-20.

xxxii ATN, p. 131.

xxxiii PTL, pp. 101-7.

xxxiv PTL, p. 1. On the origins of the expression ‘methodological syncretism’, see S.L. Paulson, ‘Kelsen

on Legal Interpretation’ (1990) 10 Legal Studies 136-52 at 151. I am indebted to this article for some

references to recent and forthcoming publications.

xxxv E.g. CTL, pp. 98-9, 143.

xxxvi R. Stammler, The Theory of Justice (1902, tr. I. Husik 1925, 1969). Stammler argued, against

Marxism, that law is the ‘form’ of society: Wirtschaft und Recht nach der materialistischen

Geschichtsauffassung [Economy and Law According to the Materialist Conception of History] (1896).

The latter point is, of course, description of law, so that Stammler actually confuses description and

prescription: M. Weber, ‘R. Stammler’s `Surmounting’ of the Materialist Conception of History’ (1906),

tr. M. Albrow (1975) 2 British Journal of Law and Society pp. 129-52; (1976) 3 British Journal of Law

and Society pp. 17-43.

xxxvii Cp. K. Olivecrona, Law as Fact (1939).

xxxviii ATN, pp. 58-60.

xxxix G. Simmel, Einleitung in die Moralwissenschaft [Introduction to Moral Science] (1892-3), vol. 1,

pp. 8-9. Later, Simmel preferred a category of ‘value (Wert)’: The Philosophy of Money (1900, tr. T.

Bottomore and D. Frisby 1978), p. 60. But Kelsen does not use this idea.

xl The adoption of an additional category has been obscured by Kelsen himself. Although he . [303]

discusses the borrowing from Simmel in an early work (HPS, pp. 7-8), and alludes to it later on, so far as I

am aware it is referred to explicitly again only in a work published after his death: ATN, p. 2 and n. 2 (on

221-2).

xli PTL, pp. 3-4 (where ‘Schema’ is rendered as ‘scheme’); RR2, pp. 3-4.

xlii PTL, p. 86; cp. GTLS, pp. 162-4 (‘normative jurisprudence’).

xliii I.e., in more modern language, social or cultural anthropology.

xliv GTLS, pp. 175-8; cp. PTL, pp. 75-6, 85-9.

xlv ATN, pp. 18-19, 121-5; RR2, pp. 73-7. The translation of Rechtssatz as ‘rule of law in a descriptive

sense’ (GTLS, pp. 45ff; PTL, pp. 71ff) has misled. Translation of Solls?tze and Seins?tze as, respectively,

‘ought sentences’ (and perhaps ‘deontic sentences’) and ‘declarative sentences’ (O. Weinberger, ‘Logic

and the Pure Theory of Law’, tr. A. Schramm, in Tur and Twining, op. cit., n. 8, pp. 187-99 at 189, 199) is

very awkward: for one thing, these are not necessarily sentences. The distinction between norm and

proposition is absent in early works, such as HPS, where Kelsen adheres to conventional usage, in which

‘Rechtssatz’ refers indeterminately to a legal norm and to the proposition describing it. Rather than speak,

respectively, of ‘genuine’ and ‘nongenuine’ S?tze, he consciously turns to using ‘Rechtssatz’ to mean only

the descriptive proposition: ATN, pp. 121, 124-5. According to Kelsen, the new distinction originates in

RR1 and is first stated clearly in RR2: RR2, p. 83n.

xlvi ATN, p. 1.

xlvii PTL, p. 58.

xlviii As a European, Kelsen uses the Romanist expression ‘delict (German, Unrecht or Delikt)’, which

covers both criminal and civil wrongs.

xlix My example. Part of Kelsen’s attack on iusnaturalism was to trace the development of the principle of

causality and the idea of a causal law out of primitive ideas of retribution, imputation and law: e.g.

‘Causality and Retribution’ (1941) in WIJ, pp. 303-23; Society and Nature (1943); ‘Causality and

Imputation’ (1950) in WIJ, pp. 324-49. Kelsen investigated the idea of the soul as ground for ideas of

retribution: ‘The Soul and the Law’ (1937) 1 Rev. of Religion pp. 337-60. Kelsen’s critiques of ancient

philosophy may still be of interest; his anthropological ideas remain attached to the category of the

‘primitive’. See further, (not seen) Kelsen, Die Illusion der Gerechtigkeit. Eine Kritische Untersuchung

der Sozialphilsophie Platons [The Illusion of Justice. A Critical Enquiry into Plato’s Social Philosophy],

ed. K. Ringhofer and R. Walter (1985).

l PTL, p. 92.

li PTL, pp. 76-81, 87. While the translation of ‘Zurechnung’ as ‘imputation’ may be as good as any,

rendering ‘Rechtsgesetz’ as ‘legal law’ (PTL, pp. 76ff) obscures the analogy with natural science. Kelsen

makes the jump from causality to imputation seem more plausible by arguing that the principle of

causality derives historically from that of imputation and its associate, the idea of retribution: PTL, pp. 82-

5.

lii ATN, p. 20.

liii ATN, p. 18.

liv ATN, p. 20; PTL, pp. 85-6.

lv GTLS, pp. 162-78; PTL, pp. 101-7. Kelsen insisted on this especially against Ehrlich’s

conceptualisation of sociology of law: GTLS, pp. 24-8; see also H. Rottleuthner, ‘Rechtstheoretische

Probleme der Soziologie des Rechts. Die Kontroverse zwischen Hans Kelsen und Eugen Ehrlich

(1915/1917) [Legal-theoretical Problems of Sociology of Law. The Controversy between Hans Kelsen and

Eugen Ehrlich (1915/1917)]’ in W. Krawietz and H. Schelsky (eds), Rechtssystem und gesellschaftliche

Basis bei Hans Kelsen (Rechtstheorie, Beiheft 5) (1984), pp. 521-51.

lvi ATN, pp. 9, 145.

lvii PTL, p. 73 (translation modified; cp. RR2, p. 75).

lviii PTL, ch. 8. However, what is interpreted is not, as he says, a norm - for that would be to seek,

absurdly, the meaning of a meaning - but the act of will whose meaning the norm is: M. Troper, ‘Kelsen,

la Th?orie de l’Interpr?tation et la Structure de l’Ordre Juridique [Kelsen, Theory of Interpretation and the

Structure of the Legal Order]’ (1981) 138 Revue Internationale de Philosophie pp. 518-29 at 520-1. The

interpretation should, as Troper notes, be . [304] of a text (or other sign) - but Kelsen distinguishes the act

of will from its mode of expression. See, further, Kelsen, ‘On the Theory of Interpretation’, tr. B.L. and

S.L. Paulson (1990) 10 Legal Studies 127-35; Paulson, op. cit., n. 34.

lix GTLS, p. 45.

lx PTL, p. 72.

lxi PTL, p. 70 (translation modified; cp. RR2, p. 72). ‘This is the pure theory’s position as against the so-

called `egological’ theory of law, which takes as the object of legal science not norms but human

behaviour, and against the Marxist theory, which conceives law as an aggregate of economic relations.’

(RR2, p. 72n.). See also N. Duxbury, ‘Carlos Cossio and Egological Legal Philosophy’ (1989) 2 Ratio

Juris 274-82.

lxii A. Wilson, ‘Is Kelsen Really a Kantian?’ in Tur and Twining, op. cit., n. 8, pp. 37-64.

lxiii Economy and Society (1922), tr. various (1968), pp. 4ff. Kelsen occasionally uses ‘objective’ in this

sense, as meaning ‘politically unbiased’: e.g. CTL, pp. 96-7.

lxiv Differences in modes of description are ignored in Raz’s distinctions among types of ‘committed’ and

‘detached’ statements: J. Raz, ‘The Purity of the Pure Theory’ (1981) 138 Revue Internationale de

Philosophie pp. 441-59 at 453-5 (also in Tur and Twining, op. cit., n. 8, pp. 79-97 at 90-3); see also R.J.

Vernengo, ‘Kelsen’s Rechtss?tze as Detached Statements’ in Tur and Twining, op. cit., n. 8, pp. 99-108.

lxv Kant usually speaks of ‘metaphysics’ as meaning erroneous belief in transcendence, but in this context

he uses the word with reference to universal postulates.

lxvi I. Kant, Metaphysical Foundations of Natural Science (1786, tr. J. Ellington 1970), pp. 5-6.

lxvii Cp. Weinberger, op. cit., n. 45, p. 188.

lxviii ‘The Pure Theory of Law and Analytical Jurisprudence’ (1941) in WIJ, pp. 266-87 at 266.

lxix ‘The Function of the Pure Theory of Law’, op. cit., n. 9, pp. 231-2.

lxx HPS, p. 92; ‘Zur Soziologie des Rechtes [On Sociology of Law]’ (1912) 34 Archiv f?r

Sozialwissenschaft und Sozialpolitik pp. 601-14; GTLS, pp. 175-7.

lxxi ‘On the Pure Theory of Law’, op. cit., n. 9, p. 4.

lxxii CTL, pp. 72-3. Although Kelsen might have been entitled to assume that the idea of ‘pure theory’

was familiar in his time, it was still necessary to state clearly his own understanding of the expression.

Thus R. Stammler wrote of ‘pure science or theory’ in a related but importantly different sense: The

Theory of Justice, op. cit., n. 36, p. 5.

lxxiii ‘Was ist die Reine Rechtslehre? [What is the Pure Theory of Law?]’ (1953) in WRS, pp. 611-29 at

620.

lxxiv CTL, p. 193.

lxxv Cp. G. Luk?cs, ‘Reification and the Consciousness of the Proletariat’ (1923) in his History and Class

Consciousness, tr. R. Livingstone (1971), pp. 83-222 at 108-9.

lxxvi Kelsen, ‘Der Staatsbegriff der ‘verstehenden Soziologie’ [The Concept of the State in ‘Interpretive

Sociology’]’ (1921) 1 Zeitschrift fur Volkswirtschaft und Sozialpolitik pp. 104-19; ‘The Pure Theory of

Law’, op. cit., n. 9, pp. 477-8; GTLS, pp. 162-78; PTL, pp. 2-3, 85-9, 101-7. See, further, N. Bobbio,

‘Max Weber e Hans Kelsen [Max Weber and Hans Kelsen]’ (1981) 8 Sociologia del Diritto 135-54; A.

Carrino, ‘Weber e la Sociologia del Diritto nella Critica di Kelsen [Weber and Sociology of Law in

Kelsen’s Critique]’ (1987) 14 Sociologia del Diritto 17-32.

lxxvii Economy and Society, op. cit., n. 63, p. 4.

lxxviii PTL, p. 3.

lxxix PTL, pp. 7-8; RR2, p. 7. The argument is clumsily expressed in both texts.

lxxx GTLS, p. 178.

lxxxi HPS, chs 1-2.

lxxxii O. Ewald, ‘Die deutsche Philosophie im Jahre 1911 [German Philosophy in 1911]’ (1912) 17 Kant-

Studien pp. 382-433 at 397-8; M?tall, Kelsen, pp. 7, 8, 15; H. Cohen, Ethik des reinen Willens [Ethic of

Pure Will] (1904).

lxxxiii GTLS, pp. 99, 191-2.

lxxxiv ATN, pp. 1-3, 22.

lxxxv PTL, p. 47.

lxxxvi GTLS, pp. 112-13; PTL, pp. 195-8. Kelsen does not confuse ‘legal order’ in this sense with the

[306] orderliness in society that such an order might ensure when it is effective; nor does he assume that

law always creates order (PTL, p. 38).

lxxxvii GTLS, p. 112. My example.

lxxxviii E.g. E. Ehrlich, ‘Judicial Freedom of Decision: its Principles and Objects’ (1903) in various

authors, Science of Legal Method, tr. E. Bruncken and L.B. Register (1917, 1969) 47-84; Fundamental

Principles of the Sociology of Law (1913; tr. W.L. Moll, reissued 1975).

lxxxix E.g. PTL, chs. 5 and 8. The behaviour in the particular case may be logically relatable to the

behaviour envisaged generally in the norm - but that is a subsidiary issue in the realm of ‘is’, concerning

the norm not as ‘ought’ but as to its ‘content’: ATN, pp. 26, 39. Logic does not apply even to imagined

norms, since these are the imagined meaning of an imagined act of will: ATN, pp. 187-8. Kelsen might

have added that norms are usually imagined before they are called into existence by a real act of will.

Strictly, however, there is not a norm that may or may not be legally valid: validity in this sense is the

norm’s ‘specific intellectual (ideell) existence’; strictly, ‘valid norm’ is a pleonasm: ATN, pp. 22, 136-8.

Not to be confused with ideal (ideal) existence, in e.g. a Platonic sense, or with real, material existence:

Kelsen in discussion reported in F.-M. Schm?lz (ed.), Das Naturrecht in der politischen Theorie (1963), p.

124.

xc PTL, pp. 231, 234-5, 255.

xci PTL, pp. 267-78.

xcii PTL, p. 279, cp. 70-1.

xciii PTL, pp. 279-80; where ‘Rechtsform und Staatsform (Form of Law and Form of State)’ (RR2, p.

283), is rendered as ‘Creation of Law and Form of Government’.

xciv PTL, pp. 9, 214, 226, 250. See also below, on ‘primitive’ law and international law.

xcv PTL, p. 227.

xcvi PTL, pp. 197-8.

xcvii PTL, p. 196.

xcviii ATN, pp. 6-7.

xcix ATN, pp 201-2.

c ATN, pp. 33-40. In characterising even moral orders as dynamic, Kelsen supposes that, just as legal

norms are applied by organs of the legal order, moral norms are applied by organs of the moral order:

ATN, p. 42. The meaning of ‘organ’ here is diffuse.

ci PTL, p. 222.

cii FC, p. 118. This sense of ‘constitution’ seems to be Kelsen’s scientifically acceptable substitute for

‘sources of law’ in the validation sense, after he rejected that expression because it could also refer to

historical sources: PTL, p. 233.

ciii PTL, pp. 234, 236.

civ Luk?cs, quoted in Varga, op. cit., n. 2, p. 148.

cv PTL, pp. 211-14. Here Kelsen takes as ‘typical’ opponent his former pupil the Scandinavian ‘legal

realist’ Ross: RR2, p. 215n.

cvi ATN, pp. 111-14; PTL, pp. 10-12, 211-14 (translation modified). PTL, p. 214, repetitively renders

‘Recht’ as both ‘law’ and ‘right’, and ‘Macht’ as both ‘power’ and ‘might’: cp. RR2, pp. 220-1. Kelsen

has in mind the doctrine of desuetude (desuetudo), known in the Romanist legal systems but not in the

Common Law systems.

cvii PTL, p. 27.

cviii ATN, pp. 43, 108, 115-16; GTLS, pp. 60-1.

cix Criticised in GTLS, pp. 62-4. However, Austin’s Benthamite definition of the sovereign, as the person

or body that is habitually obeyed and does not habitually obey any other, which is central to his definition

of positive law, is also sociological. Kelsen sympathises with this side of Austin and only finds his way of

using it contradictory.

cx ATN, p. 112.

cxi Hart’s primary/secondary distinction is in the same direction as Kelsen’s, but on a different criterion:

H.L.A. Hart, The Concept of Law (1961), ch. 5. Hart’s ‘secondary rules’ fall into Kelsen’s class of

‘dependent norms’, which in their dependence on sanctioned norms are indirectly coercive: cp. PTL, pp.

54-8. For recent comparisons between Hart and Kelsen, see Beyleveld and Brownsword, `Normative

Positivism’, op. cit., n. 9; van de Kerchove and Ost, op. cit., n. 9 (relating the work of Hart and Kelsen to

systems theory).

cxii FC, p. 111.

cxiii E.g. PTL, pp. 221, 255.

cxiv PTL, pp. 33-42.

cxv ATN, pp. 115-16; cp. FC, p. 112.

cxvi PTL, pp. 59-69, 111-14.

cxvii ATN, pp. 92-9, 265-6; PTL, pp. 68-9 (translation modified; RR2, p. 71). This holds even for the

‘general principles of law’ that the International Court of Justice is authorised by its Statute to apply:

ATN, pp. 99, 266.

cxviii PTL, pp. 33-42. PTL appears later to deny this extension (p. 111), but the denial is not in RR2 (p.

117); cp. PTL, p. 114.

cxix His retirement lecture was ‘What is Justice’ (1952) in WIJ, pp. 1-24. See also other essays in that

book and ‘Das Problem der Gerechtigkeit’, op. cit., n. 27; J. Bjarup, ‘Kelsen’s Theory of Law and

Philosophy of Justice’ in Tur and Twining, op. cit., n. 8, pp. 273-303.

cxx The Law of the United Nations (1950), p. xiii; cp. GTLS, p. 15; ‘The Law as a Specific Social

Technique’ (1941) in WIJ, pp. 231-56.

cxxi See e.g. D. Held, Introduction to Critical Theory (1980), ch. 5.

cxxii Cp. A. Renaut, ‘Kelsen et le Probl?me de l’Autonomie du Droit [Kelsen and the Problem of the

Autonomy of Law]’ (1986) 9 Cahiers de Philosophie Politique et Juridique pp. 7-21 at 21. Kelsen’s

position is also vulnerable to Foucault’s critique of technical rationality as a form of power in which the

subject is denied and reconstructed - although the pure theory may also be taken as useful to a Foucauldian

perspective in identifying law as a technique of disciplinary power: see esp. CTL, pp. 102-5.

cxxiii ATN, p. 105. This refinement appears to be new in ATN.

cxxiv ATN, pp. 195-6. The earlier view reeks, to him, of the old theory of legislation as merely the finding

and promulgation of natural laws (familiar in Common Law countries as the fiction that judges do not

make law).

cxxv ATN, pp. 115, 349-50. Previously, Kelsen had rejected Gray’s approach as supposing that only

individual norms exist: PTL, p. 255.

cxxvi ATN, p. 196n.

cxxvii ATN, pp. 199-200.

cxxviii ‘Was ist die Reine Rechtslehre?’, op. cit., n. 73, at 616-18 (this passage tr. in Weinberger, op. cit.,

n. 45, pp. 189-90).

Thus legal norms do not ‘teach’, only legal propositions describing them: ATN, pp. 103-6. In Kelsen’s

terms, the educative role of law, e.g. in anti-discrimination laws, would operate through description of

legal norms, mainly in the press.

cxxix ATN, p. 190. A reference to the basic norm as ‘the constitution in the legal-logical sense (die

Verfassung im rechtslogischen Sinne)’ (RR2, p. 232; changed to ‘the “constitution” in the transcendental-

logical sense’ in PTL, p. 226) might be understood to refer to the logicality of legal propositions, including

a basic norm. The occasional references to ‘the logical relation of norms’ (PTL, p. 339) and

‘contradiction’ between norms (PTL, pp. 206, 350, 352) are harder to explain: since, however, they are

made in passing, there is room to take them to refer infelicitously to the norm as presented in the legal

proposition. The alternative, and of course defensible, view has produced the impression that Kelsen

thought logic did apply to norms and, in the 1960s, changed his mind: e.g. Weinberger, op. cit., n. 45, pp.

192-4. R.J. Vernengo valuably argues that Kelsen usually saw logic as having ‘an epistemological tinge

according to the traditional Kantian heritage’ or later, ‘under the influence of phenomenology, an

ontological foundation’ and became familiar with modern formal logic only ‘in his last years and then not

without ambiguities’: ‘About an Empowerment Theory of Legal Norms and Some Related Problems’

(1989) 2 Ratio Juris 299-303 at 300.

cxxx ATN, pp. 203-5. The third case echoes Holmes’ definition of law as the ‘prophecies of what the

courts will do in fact’: O.W. Holmes, ‘The Path of the Law’ (1897) 10 Harvard Law Rev. pp. 457-78 at

461. But the echo is distorted: these prophecies would be expressed in laws of law, not legal norms

themselves; yet in any case such prophecy belongs to the realm of legal advice, not scientific description:

PTL, pp. 87-9; GTLS, pp. 165-8.

[307] cxxxi ATN, pp. 99-101.

cxxxii PTL, p. 18.

cxxxiii ATN, pp. 101-3. See also papers by Harris, Paulson and Weyland in Tur and Twining, op. cit., n.

8.

cxxxiv ATN, pp. 81, 106-7; PTL, p. 245-50.

cxxxv ATN, pp. 351-2.

cxxxvi ATN, pp. 25ff. Kelsen awkwardly conceives self-addressing as a relation between oneself as ‘ego’

and as ‘alter ego’: ATN, pp. 23-4.

cxxxvii ATN, pp. 39-43, 191-3.

cxxxviii Cp. ATN, p. 37.

cxxxix PTL, pp. 191-2.

cxl ATN, p. 7; PTL, pp. 165-6 (translation modified: RR2, pp. 169-70), 169.

cxli PTL, chs. 6 and 7; GTLS, pt. 2.

cxlii PTL, pp. 280-4; GTLS, pp. 201-7.

cxliii PTL, p. 177.

cxliv PTL, pp. 145-68, 256-62.

cxlv PTL, pp. 280-4 (translation modified: RR2, pp. 284-7). Kelsen actually writes ‘systematic’ where he

clearly means ‘systemic’.

cxlvi ATN, pp. 108-11; PTL, pp. 114-17, 125-45.

cxlvii PTL, p. 169.

cxlviii PTL, pp. 117, 168-91; GTLS, pp. 93-109, 377.

cxlix PTL, pp. 32, 35ff, 266-7, 284-319. Throughout PTL, ‘staatliche Rechtsordnung’ is rendered as

‘national legal order’—which both dilutes the key thesis of the identity of (total) legal order and state, and

implies that Kelsen na?vely assumes that ‘state’ and ‘nation’ always coincide.

cl PTL, pp. 320-4.

cli PTL, pp. 324-8.

clii PTL, pp. 328-33; reading ‘state’ instead of ‘national’.

cliii ‘The Pure Theory of Law and Analytical Jurisprudence’, op. cit., n. 68, p. 287.

cliv As Hart says, ‘we might as well attempt to deduce from the existence of the history of warfare or the

science of strategy that all wars are one or all armies are one’: ‘Kelsen’s Doctrine of the Unity of Law’,

op. cit., n. 6, p. 322.

clv PTL, pp. 328-47. Cp. GTLS, esp. p. 388; Peace Through Law (1944). The issue, of course, affects

questions of federalism.

clvi The expression of the distinction here depends on the distinction between legal norm and legal

proposition.

clvii Kelsen’s fairly early characterisation of the basic norm as a ‘minimum’ of natural law (‘Natural Law

Doctrine and Legal Positivism’, op. cit., n. 20, p. 437) cannot survive his later distinguishing between

legal norm and legal proposition. What applies to the distinction between international and local law also

applies to issues of federalism.

clviii Esp. FC; PTL, pp. 193-211 (translation modified), 223. When Kelsen expresses the difference

between the two situations by saying that in the robber’s case ‘an evil will be inflicted’ whereas in that of

the tax official ‘an evil ought to be inflicted’ (PTL, p. 45), he anticipates Hart’s ‘gunman situation’

distinction between being obliged and having an obligation: Hart, op. cit., n. 111, pp. 19ff, 80ff.

clix PTL, pp. 44-50; cp. Augustine, City of God, bk. 4, ch. 4. Hart appears to begin from a Weberian

standpoint, yet Hart’s ‘external point of view’ applies only to values and not to description of what is to be

valued, and from Kelsen’s standpoint Hart’s ‘recognition’ theory is vulnerable to Kelsen’s much earlier

criticisms of Bierling: Hart, The Concept of Law, op. cit., n. 111, passim; PTL, p. 218n.; J. Raz, op. cit., n.

64.

clx FC, p. 117; ATN, pp. 206-7; cp. H. Vaihinger, The Philosophy of ‘As If’ (1911; tr. C.K. Ogden, 2nd

edn. 1935), pp. 97-100. Kelsen had been aware of Vaihinger’s book and its conceptualisation of fictions

since at least 1919: ‘Zur Theorie der juristischen Fiktionen: mit besonderer Ber?cksichtigung von

Vaihingers Philosophie des Als-ob [On the Theory of Legal Fictions: with particular reference to

Vaihinger’s Philosophy of As-If]’ (1919) in WRS, pp. 1215-41. The ‘fiction’ version of the ‘basic norm’

concept was first announced in discussion reported in Schm?lz, op. cit., n. 89, pp. 119-20. The full

argument is given in FC and ATN. It is presented only partially when it first appears in English: ‘On the

Pure Theory of Law’, op. cit., n. 9, p. 6.

[308] clxi ‘Was ist ein Rechtsakt? [What is a Legal Act?]’ (1952) in WRS, pp. 1381-93 at 1390-1.

clxii PTL, p. 204n.

clxiii C. Martyniak, ‘Le Probl?me de l’Unit? des Fondements de la Th?orie de Droit de Kelsen [The

Problem of the Unity of the Bases of Kelsen’s Theory of Law]’ (1937) 7 Archives de Philosophie du Droit

et de Sociologie Juridique 166-90 at 185; compare H. Klenner, Rechtsleere [A Legal Void (an awful pun

on Rechtslehre, legal theory)] (1972), p. 39.

clxiv Cp. N. Lavand, ‘Hans Kelsen ou le Cubisme [Hans Kelsen or Cubism]’ (1986) 9 Cahiers de

Philosophie Politique et Juridique 95-114.

clxv J. Wr?blewski, ‘Kelsen, the Is-Ought Dichotomy and Naturalistic Fallacy [sic]’ (1981) 138 Revue

Internationale de Philosophie 508-17 at 515. I have suggested elsewhere a philosophical equivalent of

paint and canvas: ‘Closure and the Legal Norm: an Essay in Critique of Law’ (1987) 50 Modern Law Rev.

908-33 at 916-22.

clxvi Varga, op. cit., n. 2, p. 137.

clxvii See, further, my ‘Kelsen and the Exegetical Tradition’ in Tur and Twining, op. cit., n. 8, pp. 123-47;

‘Closure and the Legal Norm’, op. cit., n. 165; P. Amselek, ‘Kelsen et les Contradictions du Positivisme

Juridique [Kelsen and the Contradictions of Legal Positivism]’ (1981) 138 Revue Internationale de

Philosophie 460-73.

clxviii As does Pashukanis, op. cit., n. 6.

clxix Thus, Kelsen’s critique of Pashukanis does not take seriously Pashukanis’s analyses of ‘legal

fetishism’: CTL, pp. 89-111.

clxx On the relation of the pure theory to Marxism, see generally the Hans Kelsen-Institut symposium

Reine Rechtslehre und marxistische Rechtstheorie [Pure Theory of Law and Marxist Theory of Law]

(1978). Kelsen fell into the error of understanding Marxism solely as the Eastern Marxism of economic

determinism, whose capacity for critical legal theory was very limited: CTL, especially p. vii. However,

Kelsen’s opposition to Marxism was not bigoted: his willingness to take Marxist thinking seriously (e.g.

‘Allgemeine Rechtslehre im Lichte materialistischer Geschichtsauffassung [General Theory of Law in the

Light of the Materialist Conception of History]’ (1931) 66 Archiv fur Sozialwissenschaft und Sozialpolitik

449-521) nearly got him into an extermination camp.

clxxi Although occasionally he examines common modes of expression, he does so speculatively, in order

to clarify his own vocabulary; he does not treat such expressions as evidence of meaning, in the manner of

‘ordinary language’ philosophy or of semiotics (e.g. the discussion of ‘law’, ‘Recht’, etc. in PTL, pp. 30-

1). The greater attention to language in his last book is just painful: for one thing, his conception of

linguistic meaning is wholly referential, with no grasp of Wittgenstein’s (or Bentham’s) conception of

meaning as use, though Wittgenstein is occasionally cited (ATN, pp. 24-32). Indeed, his differentiation

between an act of will or thought and a speech act may be a deliberate evasion of linguistic philosophy.

However, Kelsen’s attention solely to logic does not, by itself, exclude the possibility of adding into his

theory an examination of legal norms as rhetoric.

clxxii Criticism that is merely negative tends to preserve the terms of that which it negates; to emancipate,

criticism needs to transform the subject matter of the critique.

clxxiii See C. Schmitt, ‘The Leader Protects the Law’ (1934), tr. I. Stewart (forthcoming in International J.

of the Sociology of Law).

 

 © Copyright 2001-2004. www.legaltheory.org -

 

MARXIST JURISPRUDENCE

TUTOR: CHRIS BEHRENS

STUDENT: DAVID RISSTROM: 9106105

In the social production of their existence, men inevitably enter into definite

relations, which are independent of their will, namely relations of production

appropriate to a given stage in the development of their material forces of

production. The totality of these relations constitute the economic structure of

society, the real foundation, on which arises a legal and political superstructure

and to which correspond definite forms of social consciousness.

Karl Marx, Preface to A Contribution to the Critique of Political Economy, 521.53

Marxist jurisprudence posits that legal relations are determined by the economic base of

particular kinds of society and modes of production.54 Marxist thought’s primary focus

rests on political economy and the corresponding power relations within society,

providing the most extensive critique to date of liberal tradition on which many of our

legal presuppositions are founded. To this end, this essay examines law, its structure,

motivation and consequences for justice and rights from a Marxian jurisprudential

perspective.

53 Marx, K., ‘Preface to A Contribution to the Critique of Political Economy’ in Karl Marx and Frederick Engels Selected Works, Moscow: Progress Press, 1989 521.

54 Balbus, I., ‘Commodity Form and Legal Form’ in Reasons, C., The Sociology of Law, Toronto: Butterworths, 1978 83.

MARXISM AND LAW

Your ideas are but the outgrowth of the conditions of your bourgeois production

and bourgeois property, just as your jurisprudence is but the will of your class

made into a law for all, a will, whose essential character and direction are

determined by the economical conditions of existence in your class.

Karl Marx, The Communist Manifesto, 24.

Law is not of central concern to Marxists jurisprudentialists, as law in the capitalist mode

of production is seen as an instrument of class oppression perpetuated as a consequence

of its particular historical, social and economic structures. Indeed, wishing to avoid

liberal predisposition towards legal fetishism, Marxists deny the degree of importance

jurisprudence typically affords law in analyses of the composition and determination of

social formations.55

WHAT IS MARXISM?

Marxist theories of political economy, expounded upon the notions of Karl Marx (1818-

83) and Friedrich Engels (1820-95), consider law an instrument of class oppression that

benefits the ruling class through oppression of the proletariat. The common law system

of criminal and civil law, which protects personal and private property rights, as well as

facilitating predicability in social life, is regarded as “no more than a system of coercion

designed to protect bourgeois ownership of the means of production”.56

55 Collins, H., Marxism and Law, Oxford: Oxford University Press, 1987 98.

56 Barry, N., An Introduction to Modern Political Theory, London: Macmillan, 1989 53.

Yet, despite Marx and Engels’ failure to develop a systematic approach to law57, and

claims of failure in Eastern Europe and the Soviet Union, Marxism’s materialist

emphasis, particularly concerning the notion of alienation and its consequences as

outlined by Ollman58, assists its contemporary paucity.59

HISTORICAL MATERIALISM

Men have history because they must produce their life, and because they must

produce it moreover in a certain way: this is determined by their physical

organisation; their consciousness is determined in just the same way.

Marx, The German Ideology, 49.

The determinist relationship between the economic base and social superstructure, known

as Historical Materialism, is first described in The German Ideology.60 Historic

materialism contends that the catalyst behind societal evolution is materially determined,

being predicated on contradictions between the forces and means of production. As “it is

not consciousness that determines life, but life that determines consciousness”61, law is a

reflection of the economic base, rather than the reserve as liberals such as Dworkin would

propose.

Under increasing industrialisation Marx foresaw crystallisation of society into two

classes; bourgeoisie and proletariat. These relations of production developed due to

particular forces of production under the capitalist mode of production that coerced the

57 Cain, M., and Hunt, A., 1979, Marx and Engels on Law, London: Academic Press.

58 Ollman, B.,1976, Alienation; Marx’s Conception of Man in Capitalist Society, Cambridge: Cambridge University Press.

59 Collins, H., op cit., 10.60 Marx, K., and Engels, F., 1976, The German Ideology, Moscow:

Progress Press. 61 Marx, K., The German Ideology, Moscow: Progress Publishers,

1976 42.

bourgeoisie to extract surplus value as profit from the proletariat. Laws, as Marx detailed

in Capital, as one element of the social superstructure, assisted in forcing down wages.62

Collins characterises two Marxist approaches; crude materialism, in which law is simply

a reflection of the economic base; and secondly, class instrumentalism; in which rules

emerge because the ruling class want them to.63 This distinction continues as an area of

debate, as demonstrated by O'Malley’s attacks of Quinney and Chambliss’ crude

materialist claim that law is a direct tool of powerful classes or groups, favouring the

more interactionist, and less conflict premised theory of legislative change.64 The

Relative Autonomy Thesis is such a theory. Contemporary Marxists such as Marcuse,

suggest mechanisms analogous to the Factory Acts and Vagrancy Acts remain

instruments of the ruling class perpetuating conditions reinforcing this arrangement,

especially in relation to the alienating nature of modern technological rationality.65

BASE AND SUPERSTRUCTURE IN THE CAPITALIST MODE OF PRODUCTION

Much of our law, such as Contract, Property and Commercial Law, is predicated on the

existence of the capitalist mode of production. As Marx’s major project was the critique

of capitalism, irrespective of a belief in revolution, Marxism has a great deal to notify us

of in our contemporary jurisprudence. Marxism postulates that in the social production

of their existence, people, independent of their will, enter into definite relations of

production appropriate to a given stage in the development of the materials forces of

production.66 Consequently the societal superstructure, including but not dominated by

62 Marx, K., ‘Bloody Legislation against the Expropriated, from the end of the 15th. century: Forcing Down Wages by Acts of Parliament’ in Capital, 1986 686.

63 Collins, H., Marxism and Law, Oxford: Oxford University Press, 1987 24.

64 O’Malley, P., ‘Theories on Structure Versus Causal Determination’ in Tomasic (ed.) Legislation and Society in Australia, Allen and Unwin, 1980 140.

65 Marcuse, H., One-Dimensional Man, Boston: Beacon Press, 1968 xv.

66 Marx. K., Preface To ‘A Contribution to the Critique of Political Economy’ in Karl Marx and Friedrich Engels Selected Works, 1989

law, amongst other hegemonic devices, is determined by the economic base and the

organisation of power in society.67 Marxist jurisprudence concentrates on the

relationship between law and particular historical, social and economic structures, seeing

law, unlike liberal theory, as having no legitimate primacy. Frequently encountered legal

rules and doctrine, argue Gramsci68 and Althusser69, establish modern liberal

jurisprudential hegemony.70

SCIENTIFIC SOCIALISM

Marxist epistemology, with dialectic materialism as the centrepiece of Marxism’s

scientific claim, proclaims in real life, where speculation ends, positive science; the

representation of the practical activity, of the practical progress of development of men,

begins.71 Whilst Marx’s materialism does not refer to the assumption of a logically

argued ontological position, Marx adopts an undoubtedly Realist position, in which ideas

are the product of the human brain in sensory transaction with a knowable material

world.72

These claims contrast with those of natural lawyers such as Aquinas who believe religion

should normatively guide law; those desiring utilitarian tendencies such as Austin and

Bentham; or objective consistency as some positivists such as Hart, or perhaps integrity,

as perhaps only Dworkin can fully endorse. Nevertheless, whilst debate as to the

scientific credentials of Marxism continue, Collins claims Marxism’s desire for class

reductionism to explain the dynamic interaction between man and nature risks

521.67 Collins, H., op cit., 9.68 Gramsci, A., Selections from the Prison Notebooks, London:

Lawrence and Wishart. 1971 195.69 Althusser, L., For Marx, London: New Left Books, 1977 114.70 Collins, H., Marxism and Law, Oxford University Press, 1982 50.71 Marx, K., The German Ideology, Moscow: Progress Publishers,

1976 38. 72 Giddens, A., Capitalism and Modern Social Theory: An Analysis of

the writings of Marx, Durkheim and Weber, Cambridge: Cambridge University Press, 1971 21.

misconstruing the diversity of social phenomena in order to confirm the ‘rigid systemic

framework of historical materialism’.73

LAW AND THE DICTATORSHIP OF THE PROLETARIAT

Law, morality, religion, are to him so many bourgeois prejudices, behind which

lurk in ambush as many bourgeois interests.

Karl Marx, The Communist Manifesto, 18

Marxism saw development of the relations of production dialectically, as both inevitable,

and creating hostility. Accelerated by increased class consciousness, as the

contradictions of capitalism perforate the bourgeois hegemony, inevitable revolution and

a dictatorship of the proletariat would facilitate “socialised production upon a

predetermined plan.”74 Given the scientific nature of Historic Materialism, and upon

recognising the role the state and its laws supply, the proletariat will seize political

power and turn the means of production into state property75, then according to Marxist

jurisprudence, “As soon as there is no longer any class to be held in subjection; as soon as

class rule and the individual struggle for existence … are removed, nothing more remains

to be repressed.”76

COMMUNISM AND THE END OF LAW

73 Collins, H., op cit., 45.74 Engels, F., Socialism: Utopian and Scientific, Moscow: Progress

Publishers: 1954 79.75 Ibid., 73.76 Ibid., 73.

The meaning of history, that man’s destiny lies in creation of a Communist society where

“law will wither away”77 , as men experience a higher stage of being amounting to the

realisation of true freedom, will after transition through Socialism, be achieved.

JUSTICE AND RIGHTS

Communism abolishes eternal truths, it abolishes all religion, and all morality,

instead of constituting them on a new basis.

Karl Marx, The Communist Manifesto, 24

Marxism argues there is no absolute concept of justice, justice being dependent on the

requirements of a given mode of production.78 Lukes claims Marx believes justice,

“Does not provide a set of independent rational standards by which to measure social

relations, but must itself always in turn be explained as arising from and controlling those

relations”.79

Marxism believes that rights are simply a bourgeois creation, and that justice is

something only the rich can achieve in capitalist modes of production. Anatole France

(1894) encapsulated this distinction between formal and substantive justice as

entitlement, drawing attention to “the majestic egalitarianism of the law, which forbids

rich and poor alike to sleep under bridges, to beg in the streets and to steal bread.”80

Formal justice as entitlement therefore allows equal opportunity to the individual without

any reference to the unequal ability to use it, with rights only being anti-socialist if

individuals are taken to be “inherently and irredeemably self-interested.”81

77 Marx, K., The German Ideology, Moscow Progress Press, 1976 51.78 Wacks, R., Jurisprudence, London: Blackstone Press, 1987 175.79 Lukes, S., Marxism, Morality and Justice’ in Parkinson, G., Marx

and Marxisms, Cambridge: Cambridge University Press, 1982 197.80 Gamble, A., An Introduction to Modern Political and Social

Thought, Hampshire: Macmillan, 1987 101.81 Campbell, T., Justice, London: Macmillan, 1988 189.

Marxist dispute over how rights and justice will operate in practice are answered by the

materialist proposition that the “distribution of burdens and benefits should not be taken

in accordance with a book of rules, but in the light of the objectives of social policy.” 82

Campbell distinguishes between Socialist and Bourgeois Rights, arguing that an interest

based theory of rights, rather than the contract based notions such as Pashukanis’

incorporated in his commodity exchange theory of law83, allow protection of the

individual84, thereby negating the logical connection between rights and justice.85

IN SUMMARY

Marxist jurisprudence and Marxist critiques of law provide invaluable challenges to our

thinking as people under law in a liberal democratic society. This essay is only the

briefest of introductions in a field rich with reflections concerning the assumptions we

construct into our law. Whether you accept the claims of its doctrine, its influence on

shaping the society we live in is more significant than most of us realise.

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