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JURISPRUDENCE

TOPICAL OUTLINES

1. Legal Positivism

2. Natural Law

3. Feminist Jurisprudence
4. Marxist Jurisprudence
5. Sociological Jurisprudence

Meaning and introduction to Jurisprudence

The word jurisprudence derives from the Latin term jurisprudentia, which means "the study,
knowledge, or science of law." In the United States jurisprudence commonly means the philosophy
of law. Legal philosophy has many aspects, but four of them are the most common. The first and the
most prevalent form of jurisprudence seeks to analyze, explain, classify, and criticize entire bodies of
law. Law school textbooks and legal encyclopedias represent this type of scholarship. The second
type of jurisprudence compares and contrasts law with other fields of knowledge such as literature,
economics, religion, and the social sciences. The third type of jurisprudence seeks to reveal the
historical, moral, and cultural basis of a particular legal concept. The fourth body of jurisprudence
focuses on finding the answer to such abstract questions as “What is law?” and “How do judges
(properly) decide cases?”

Apart from different types of jurisprudence, different schools of jurisprudence exist. Formalism, or
conceptualism, treats law like math’s or science. Formalists believe that a judge identifies the
relevant legal principles, applies them to the facts of a case, and logically deduces a rule that will
govern the outcome of the dispute. In contrast, proponents of legal realism believe that most cases
before courts present hard questions that judges must resolve by balancing the interests of the parties
and ultimately drawing an arbitrary line on one side of the dispute. This line, realists maintain, is
drawn according to the political, economic, and psychological inclinations of the judge. Some legal
realists even believe that a judge is able to shape the outcome of the case based on personal biases.

Apart from the realist-formalist dichotomy, there is the classic debate over the appropriate sources
of law between positivist and natural law schools of thought. Positivists argue that there is no
connection between law and morality and that the only sources of law are rules that have been
expressly enacted by a governmental entity or court of law. Naturalists, or proponents of natural
law, insist that the rules enacted by government are not the only sources of law. They argue that
moral philosophy; religion, human reason and individual conscience are also integral parts of the
law.

There are no bright lines between different schools of jurisprudence. The legal philosophy of a
particular legal scholar may consist of a combination of strains from many schools of legal thought.
Some scholars think that it is more appropriate to think about jurisprudence as a continuum.

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

Legal positivism is the thesis that the existence and content of law depends on social facts and not on
its merits. The English jurist John Austin (1790-1859) formulated it thus: “The existence of law is
one thing; its merit and demerit another. Whether it be or be not is one enquiry; whether it be or be
not conformable to an assumed standard, is a different enquiry.” (1832, p. 157) The positivist thesis
does not say that law's merits are unintelligible, unimportant, or peripheral to the philosophy of law.
It says that they do not determine whether laws or legal systems exist. Whether a society has a legal
system depends on the presence of certain structures of governance, not on the extent to which it
satisfies ideals of justice, democracy, or the rule of law. What laws are in force in that system
depends on what social standards its officials recognize as authoritative; for example, legislative
enactments, judicial decisions, or social customs. The fact that a policy would be just, wise, efficient,
or prudent is never sufficient reason for thinking that it is actually the law, and the fact that it is
unjust, unwise, inefficient or imprudent is never sufficient reason for doubting it. According to
positivism, law is a matter of what has been posited (ordered, decided, practiced, tolerated, etc.); as
we might say in a more modern idiom, positivism is the view that law is a social construction. Austin
thought the thesis “simple and glaring.” While it is probably the dominant view among analytically
inclined philosophers of law, it is also the subject of competing interpretations together with
persistent criticisms and misunderstandings.

1. Development and Influence
Legal positivism has a long history and a broad influence. It has antecedents in ancient political
philosophy and is discussed, and the term itself introduced, in mediaeval legal and political thought
(see Finnis 1996). The modern doctrine, however, owes little to these forbears. Its most important
roots lie in the conventionalist political philosophies of Hobbes and Hume, and its first full
elaboration is due to Jeremy Bentham (1748-1832) whose account Austin adopted, modified, and
popularized. For much of the next century an amalgam of their views, according to which law is the
command of a sovereign backed by force, dominated legal positivism and English philosophical
reflection about law. By the mid-twentieth century, however, this account had lost its influence
among working legal philosophers. Its emphasis on legislative institutions was replaced by a focus
on law-applying institutions such as courts, and its insistence of the role of coercive force gave way
to theories emphasizing the systematic and normative character of law. The most important architects
of this revised positivism are the Austrian jurist Hans Kelsen (1881-1973) and the two dominating
figures in the analytic philosophy of law, H.L.A. Hart (1907-92) and Joseph Raz among whom there
are clear lines of influence, but also important contrasts. Legal positivism's importance, however, is
not confined to the philosophy of law. It can be seen throughout social theory, particularly in the
works of Marx, Weber, and Durkheim, and also (though here unwittingly) among many lawyers,
including the American “legal realists” and most contemporary feminist scholars. Although they
disagree on many other points, these writers all acknowledge that law is essentially a matter of social
fact. Some of them are, it is true, uncomfortable with the label “legal positivism” and therefore hope
to escape it. Their discomfort is sometimes the product of confusion. Lawyers often use “positivist”
abusively, to condemn a formalistic doctrine according to which law is always clear and, however
pointless or wrong, is to be rigorously applied by officials and obeyed by subjects. It is doubtful that
anyone ever held this view; but it is in any case false, it has nothing to do with legal positivism, and
it is expressly rejected by all leading positivists. Among the philosophically literate another, more
intelligible, misunderstanding may interfere. Legal positivism is here sometimes associated with the
homonymic but independent doctrines of logical positivism (the meaning of a sentence is its mode of
verification) or sociological positivism (social phenomena can be studied only through the methods
of natural science). While there are historical connections, and also commonalities of temper, among
these ideas, they are essentially different. The view that the existence of law depends on social facts
does not rest on a particular semantic thesis, and it is compatible with a range of theories about how
one investigates social facts, including non-naturalistic accounts. To say that the existence of law

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

” .e. not a moral achievement. to whom this view is sometimes ascribed. while they all insist on the moral nature of law. that the existence and content of law can be identified without recourse to moral argument. missing nothing. (It is a curious fact about anti-positivist theories that. required that law actually be able to keep the peace. because one does not know enough about its effects. Societies without law may be perfectly adapted to their environments. from the suspicion that it fails to give morality its due. This is the question that positivists answer by reference to social sources. In this sense a valid law one that is systemically valid in the jurisdiction -. Hart thinks that there is only a prima facie duty to obey. in one way or another. It is distinct from the idea of validity as moral propriety. without exception they take its moral nature to be something good. Raz goes further still. but in law's capacity to advance the common good. hold that such questions always turn on the consequences and both acknowledge that disobedience is therefore sometimes fully justified. and not a conclusion from moral premises. one may know that the law of ancient Athens included the punishment of ostracism without knowing whether it was justified. The idea that law might of its very nature be morally problematic does not seem to have occurred to them. Bentham and Austin. As Finnis says. and these reasons therefore shape our legal concepts (p. No legal positivist argues that the systemic validity of law establishes its moral validity.simply releases the harness. the reasons we have for establishing. and that the language and practice of law is highly moralized. positivism's critics maintain that the most important features of law are not to be found in its source-based character. Law is a distinctive form of political order. was conclusive of the final moral question: ‘Ought this law to be obeyed?” (Hart 1958. 75). An invalid marriage is not a special kind of marriage having the property of invalidity. as Finnis does. and whether it is necessary or even useful depends entirely on its content and context. pp. arguing that there isn't even a prima facie duty to obey the law. without having any idea whether they are morally justified. along any of the above lines. Even Hobbes.e. 107-111). this depends on its merits.it is part of the legal system. i. to secure human rights. For example. permitting “an enormous overvaluation of the importance of the bare fact that a rule may be said to be a valid rule of law. i. as utilitarians. 204). that it should be obeyed by subjects or applied by judges. But which concepts? Once one concedes. Hart's own view is that an overweening deference to law consorts more easily with theories that imbue it with moral ideals. about the social context. as if this. One indication that these senses differ is that one may know that a society has a legal system. 233-49). A positivist account of the existence and content of law. not even in a just state (Raz 1979. The peculiar accusation that positivists believe the law is always to be obeyed is without foundation. it is not a marriage at all. 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. Accordingly. pp. a sound justification for respecting the norm. and that “human law is artefact and artifice. Kelsen says that validity is the specific mode of existence of a norm. For the positivist. 204).) It is beyond doubt that moral and political considerations bear on legal philosophy. failing which we owe it nothing. 3. maintaining or reforming law include moral reasons. that the rule of law is a prized ideal. and so forth. and know what its laws are.so there is no obligation to unfair or pointless laws (Hart 1955). or to govern with integrity. offers a theory of the validity of law in one of the two main senses of that term (see Harris. once declared. Moral Principles and the Boundaries of Law The most influential criticisms of legal positivism all flow. 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. p. grounded in and thus limited by fairness -.

But even if Fuller is right in his unargued assumption. this is an entailment of it. Force must only be deployed. not with all valid reasons for decision. and he finds diversity in the considerations that they hold relevant to deciding them. without exhibiting to some degree those virtues collectively called “the rule of law. consistent. Yet promising creates moral obligations of performance or compensation.(p. Fuller has two main points. The controversy suggests to him that law cannot rest on an official consensus. and he rejects the whole institutional focus of positivism. He denies that there can be any general theory of the existence and content of law. In addition to those philosophical considerations. in accordance with principles laid down in advance. and not their law-like character. including custom and positive morality. consistent. 1958 and 1969). Even if moral properties were identical with. Fuller's second worry is that if law is a matter of fact. he claims. he thinks that it isn't enough for a legal system to rest on customary social rules. Apart from some confused claims about adjudication. the same cannot be said of Ronald Dworkin's important works (Dworkin 1978 and 1986). One possibility he neglects is that it doesn't. Dworkin's rich and complex arguments have attracted various lines of reply from positivists. the “peculiar quality” whose existence he doubts is a familiar feature of many moral practices. prospective. He finds deep controversy among lawyers and judges about how important cases should be decided. are matters of social fact. Compare promises: whether a society has a practice of promising. prospective. 205) the Thomistic apparatus he tries to resuscitate is largely irrelevant to the truth of legal positivism. and its law is the set of all considerations that the courts of such a soci ety would be morally justified in applying. While Finnis and Fuller's views are thus compatible with the positivist thesis. he denies that local theories of particular legal systems can identify law without recourse to its merits. whether or not those considerations are determined by any source. The fact that law claims to obligate is. not with an account of political organization. so far from being a refutation of positivism. but with an abstract ideal regulating the conditions under which governments may use coercive force over their subjects. and what someone has promised to do. A theory of law is for Dworkin a theory of how cases ought to be decided and it begins. This vitiates also Lon Fuller's criticisms of Hart (Fuller. public and impartially administered system of racial segregation. As for the diversity argument. Positivism identifies law. He gloatingly asks how “an amoral datum called law could have the peculiar quality of creating an obligation to obey it” (Fuller. and the diversity suggests that there is no single social rule that validates all relevant reasons. then we are without an explanation of the duty to obey. consistent. An “amoral datum” may indeed figure. or indeed in any courts. and to the extent that. public. One response denies the relevance of the phenomenological claims. moral and non- moral. for judicial decisions. it honors this ideal. and a consensus-defeating amount of it is not proved by the existence of adversarial argument in the high courts. First. prospective and so on -. since law could not guide behavior without also being at least minimally clear. As important is the broad range of settled law that gives rise to few doubts and which guides social life outside the courtroom. 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. Whatever virtues inhere in or follow from clear. Dworkin invokes two features of the phenomenology of judging. for example. these rule-of-law properties. in a sound argument to moral conclusions.that is. It is no part of the . of course. And these virtues are minor: there is little to be said in favour of a clear. they do so in virtue of their rule-like character. a different matter and is susceptible to other explanations (Green 2001). together with other premises. Controversy is a matter of degree. 1958). as he sees it. To identify the law of a given society we must engage in moral and political argument. A society has a legal system only when. Positivism's most significant critic rejects the theory on every conceivable level. but only with the source-based subset of them.” It suffices to note that this is perfectly consistent with law being source-based. and open practices can be found not only in law but in all other social practices with those features. or supervened upon.

when the Supreme Court of Canada says that a publication is criminally “obscene” only if it is harmful.g. 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. it is important to remember that law is dynamic and that even a decision that does apply morality itself becomes a source of law. or even tells us all the relevant reasons for decision. and thus Dworkin is right that the existence and content of law turns on its merits.S. In legal decisions. Modus ponens holds in court as much as outside. an “equitable” remedy may be manifestly unfair. And judges may develop a settled practice of doing this whether or not it is required by any enactment. and accounting for the difference is a central task of the philosophy of law. for what that court means by “harmful” is that it is regarded by the community as degrading or intolerable. it is not applying J. it is not plausible to hold that the merits are relevant to a judicial decision only when the sources make it so. and no one denies that positive morality may be a source of law. Thus. Over time. a decision. Those are source-based matters. Reference to moral principles may also be implicit in the web of judge-made law. judges are thus expressly told to take into account their morality. they do not need sources to propel them into action. and wrong only in his explanation of this fact. First. What sounds like moral reasoning in the courts is sometimes really source-based reasoning. legal “fault” no moral blameworthiness. For example. Such moral considerations. i. Legal validity depends on morality.. Other positivists respond differently to Dworkin's phenomenological points. Coleman. This is just one of many appeals to positive morality. but because that is one of the things that may be customarily recognized as an ultimate determinant of legal validity. Soper and Lyons) argue that the merit-based considerations may indeed be part of the law. So-called “inclusive positivists” (e. This process may ultimately detach legal concepts from their moral analogs (thus. especially important ones. Mill's harm principle. for instance in the common law principle that no one should profit from his own wrongdoing. if they are explicitly or implicitly made so by source- based considerations. in the first instance for the parties and possibly for others as well. On the contrary. moral and political considerations are present of their own authority. accepting their relevance but modifying the theory to accommodate them. it may become customary practice in certain types of cases. not moral ones. for sources come in various guises. legal “murder” may require no intention to kill. It is the sources that make the merits relevant. this gives a factual edge to normative terms. some preliminary clarifications are needed. To understand and assess this response. and the fact that there is no social rule that validates both modus ponens and also the Municipalities Act is true but irrelevant. the fact that there is moral language in judicial decisions does not establish the presence of moral tests for law. just as linguistic or logical ones are.positivist claim that the rule of recognition tells us how to decide cases. the authority of acts of Parliament must be. It would be odd to think that justice is a reason for decision only because some source directs an official to decide justly. The authority of principles of logic (or morality) is not something to be explained by legal philosophy.” In determining which remedies might be legally valid. political or economic considerations are properly operative in some legal decisions. are part of the law because the sources make it so. but not because it was enacted by the legislature or decided by the judges. we expect to see a sourceÑa statute.e. Second. Positivists accept that moral.) . For example. Canada's constitution explicitly authorizes for breach of Charter rights. etc. to the moral customs actually practiced by a given society. or a conventionÑwhen judges are constrained not to appeal directly to the merits. by the doctrine of precedent where it exists or through the gradual emergence of an interpretative convention where it does not. “such remedy as the court considers appropriate and just in the circumstances. Moreover. It is of the nature of justice that it properly bears on certain controversies. not because of the interpretative consequences of some ideal about how the government may use force. inclusivists claim. Waluchow (to whom the term is due).

First.” as he calls it). just. it is misleading. in conformity with the spirit of preexisting law or with certain moral principles (Raz 1994.S. that Hart himself does not consistently view legal references to morality as marking a zone of discretion. 238-53). That being so. as Kelsen correctly argued. may be a potentially misleading term here. Later. owing to the indeterminacy of legal rules or conflicts among them. and they may also be guided by law even though not fully determined by it -. that is. he writes. 72). judges are left with the discretion to make new law. In a passing remark in the first edition of The Concept of Law. There are infinitely many ways of complying with a command to “close the door” (quickly or slowly.and even more insistently. If one knows what the constitution of a . p. There must always be more or less room for discretion. by explicit or implicit requirement of statute or common law. sometimes it is central.according to which judges only apply and never make the law. the ultimate criteria of legal validity explicitly incorporate principles of justice or substantive moral values …” (1994. constitution as foreshadowing inclusive positivism (“soft positivism. Hart comes to see his remark about the U. Hart's reasons for this shift are obscure (Green 1996). and with it any literal interpretation of Dworkin's ideal that coercion be deployed only according to principles laid down in advance. 204). 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. say. for instance. with one's right hand or left. Why then does Hart -. discretionary judgments are not arbitrary: they are guided by merit-based considerations. Hart sees this as happening pre-eminently in hard cases in which. etc. 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. for the rule of recognition is not to be found in constitutions. He remained clear about how we should understand ordinary statutory interpretation.” however. as in the United States. fair. however. This thought sits uneasily with other doctrines of importance to his theory. there undeniably remains a great deal of moral reasoning in adjudication.Austin called it a “childish fiction” -. This is a general truth about norms. If this is the underlying intuition. “In some legal systems. does not include all correctly reasoned elaborations or determinations of that rule. distinguished by the sorts of reasoning appropriate to each.judges may be empowered to make certain decisions and yet under a legal duty to make them in a particular way. or because this is the only proper or intelligible way to decide.Bearing in mind these complications. The concept of a legal rule. an invitation to revise our concept of what a legal rule is …” (1958. “Discretion. 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.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. 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. however. even an “easy case” will contain discretionary elements. That is one of the reasons for rejecting a strict doctrine of separation of powers -. etc. however.) Thus. It has to be said. Sometimes such residual discretion is of little importance. morality sometimes determines the existence or content of law. Hart's account might wrongly be taken to suggest that there are fundamentally two kinds of cases. easy ones and hard ones. Law application and law creation are continuous activities for. The rule of recognition is the ultimate criterion (or set of criteria) of legal validity. Courts are often called on to decide what would reasonable. 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. cruel. Second. p. and a shift from marginal to major can happen in a flash with changes in social or technological circumstances. Waluchow and Coleman -. pp. 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. p. legally speaking they never existed (Waluchow). 349).

and there is no reason to abandon them. decision or convention is part of a country's constitution can only be determined by applying the rule of recognition. It will do nothing to say that we should adopt it if it is indeed properly part of the consensus. in certain ways only. like that of all other countries. And constitutional law is itself subject to the ultimate criteria of systemic validity. constitution. and can intelligibly do so only if it is the kind of thing that could have legitimate authority. by being unjust. 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. where inclusive positivists seem content with the theory of judicial discretion. Whether a statute. everything to which law refers becomes law … ” (Kelsen 1967. It is. statutes. For criticism see Perry.S. open to them to adopt a unified view and treat every explicit or implicit legal reference to morality -. Consider an example. by obliging the law-creating organs to respect or apply . or ineffective. there is a theoretical reason for stopping at source-based considerations. It may fail. we could agree to adopt it if it were endorsed by a majority vote. pointless.S. Authorities' directives should be based on such reasons. and customs -. constitutions. for example. one knows some of its law. The second reason for stopping at sources is that this is demonstrably consistent with key features of law's role in practical reasoning. 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. it lays claim to it. Constitutional cases thus raise no philosophical issue not already present in ordinary statutory interpretation. practical authorities mediate between subjects and the ultimate reasons for which they should act. for we could determine the outcome of a vote without appeal to our ideas about what the consensus should be. therefore. and Himma. 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. and because the nature of law is partly determined by its role in giving practical guidance. we are concerned not only with their acumenasjurists.S. what we might call the Midas Principle. are not the rule of recognition in the U.in cases. When considering who should be appointed to the judiciary. The provisions of the 14th Amendment to the U. for it is constituted in that role by our political practices. (Although at that point it is unclear how their view would differ from Dworkin's. but also with their morality and politics--and we take different things as evidence of these traits. pp.. These are deeply entrenched distinctions. but that after much discussion find ourselves in disagreement about whether some point is in fact part of the consensus view. On the other hand. Social sources can play this mediating role between persons and ultimate reasons. 161). p. 210-37). Kelsen thought that it followed from this principle that “It is … possible for the legal order. for example. According to Raz. But they can do that only if is possible to know what the directives require independent of appeal to those underlying reasons. But law cannot fail to be a candidate authority. 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).country is. constitution.as establishing moral tests for the existence of law. The most important argument to this conclusion is due to Raz (1994. of course. 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. The U. for there is an intra-systemic answer to the question why that Amendment is valid law.) 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. but one may know what the rule of recognition is without knowing any of its laws. Suppose we agree to resolve a dispute by consensus. Waluchow. For a related argument see Shapiro. The third argument challenges an underlying idea of inclusive positivism. “Just as everything King Midas touched turned into gold. Coleman 2001.) Although law does not necessarily have legitimate authority.

or opinions into legal norms. The inclusivist thesis is actually groping towards an important. 1958. logic. but it may not be. There is no warrant for adopting the Midas Principle to explain how or why it does this. A conflict-of-laws rule may direct a Canadian judge to apply Mexican law in a Canadian case. If law has an essentially moral character then it is obfuscating. 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.1 The Fallibility Thesis Law does not necessarily satisfy the conditions by which it is appropriately assessed (Lyons 1984. 152-54): it adopts and enforces many other standards. or English grammar. this does not entail that it does every kind of justice. 4. Even if every law has a prima facie claim to be applied or obeyed.2 The Separability Thesis .neither courts nor legislators can repeal or amend the law of commutativity. Suppose then that the Income Tax Act penalizes overdue accounts at 8% per annum. they can neither change it nor repeal it.) 4. Fuller accepts it. It is sometimes said that positivism gives a more secure grasp on the fallibility of law. the Midas Principle holds in general and not only with respect to morality. Law is an open normative system (Raz 1975. but sometimes it doesn't. 132). The conflicts rule is obviously part of the Canadian legal system. The gap between these partial and conclusive judgments is all a natural law theory needs to accommodate the fallibility thesis. Law should be just. 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. 63. and best explanation for its existence and content makes no reference to Canadian society or its political system. but it is not the exclusive property of positivism. mathematics. p. not clarifying. This claim has appealed to several positivists. 4. The thesis is correct. an official can determine the content of a legal obligation only by calculating compound interest. Even if every law always does one kind of justice (formal justice. and not only by its opponents. and Schauer. it does not follow that it has such a claim all things considered. Hart 1994. including Bentham and Hart. truth. are not themselves the law. for although Canadian officials can decide whether or not to apply it. to describe it as a source-based structure of governance. including the norms of foreign legal systems. Fuesser. including moral norms and the rules of social groups. as Kelsen makes clear. it cannot provide an argument for it. it should promote the common good. but it may fail miserably. justice according to law). Law may have an essentially moral character and yet be morally deficient.) If sound. 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. (Though he regarded this transformation as effected by a sort of tacit legislation. but different. it should protect moral rights. pp. (See also Hart. But the rule of Mexican law is not. principles of statistical inference. But while this might follow from the truth of positivism. for legal organs have applicative but not creative power over them. 185-6). pp. The same holds of other social norms. though all properly applied in cases. Finnis accepts it. This we may call the moral fallibility thesis. and thus into sources of law” (Kelsen 1945. and Dworkin accepts it. 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 -. Aquinas accepts it. In like manner.certain moral norms or political principles or opinions of experts to transform these norms. moral standards. p. principles. In a relevant case.

between law and morality. 165- 70) If Hobbes is right. 1982). each of which goes right to the heart of our concept of law: (1) Necessarily. (This is a defective view of concept-formation. they do not hold of all possible legal systems -. or even always in fact.At one point. any order is better than chaos and in some circumstances order may be achievable only through positive law. just. Thus. such as too much order or the will to power. pp. There are many necessary “connections. 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. law deals with moral matters.” trivial and non-trivial. to the same norm-object. 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. encouraged also by the title of Hart's famous essay. provided only that it is conceivable that the connection might fail. and (iv) a legal system cannot survive unless it is seen to be. legal positivism takes a position only one of them. “Just as natural and positive law govern the same subject-matter. For instance. Many other philosophers. 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. though in fact they have often done so” (1994.they must be in some sense “separable” even if not in fact separate (Coleman. however. 185-86).so both also have in common the .they probably don't even hold of all historical legal systems. it rejects any dependence of the existence of law on its merits (Gardner 2001). In reality. and relate. The same cannot be said of the following necessary connections between law and morality. legal positivism is not to be identified with either thesis and each of them is false.” (1958) treat the theory as the denial that there is a necessary connection between law and morality -. Notice that these claims are consistent with the fallibility thesis. and thus in some measure actually is. therefore. (ii) law is usually. the separability thesis is consistent with all of the following: (i) moral principles are part of the law. (iii) the best explanation for the content of a society's laws includes reference to the moral ideals current in that society. Or perhaps in a Hegelian way every existing legal system expresses deliberate governance in a world otherwise dominated by chance. As John Gardner notes. Kelsen writes. but we may ignore that for these purposes. valuable. law is the spirit of the community come to self-consciousness. is to leave intact many other interesting possibilities. The separability thesis is generally construed so as to tolerate any contingent connection between morality and law. “Positivism and the Separation of Law and Morals. it is imagined that they do not affect the concept of law itself.) If we think of the positivist thesis this way. namely the mutual relationships of men -. And with respect to this dependency relation. As merely contingent truths. legal positivists are concerned with much more than the relationship between law and morality. (IP) It is not necessarily the case that there is a connection between law and morality. 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. it is possible that moral value derives from the sheer existence of law (Raz 1990. for they do not deny that these supposedly good things might also bring evils. however. All four claims are counted by the separability thesis as contingent connections only. To exclude this dependency relation.

possibly. It is precisely because law makes these claims that doctrines of legitimacy and political obligation take the shape and importance that they do.and the further we get from these internal standards the less secure evaluative judgments about it become.” (Kelsen 1928. The law tells us what we must do. 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.a good fugue is a good example of its genre. it should be melodic. as Hart thinks it is. and they regulate the same matters by analogous techniques. they may be made in a spirit that is cynical or half-hearted. and law's wide reach must figure in any argument about its legitimacy and its claim to obedience. Unlike the rules of a health club. In view of the normative function of law in creating and enforcing obligations and rights. claim apostolic succession from St. law has broad scope and reaches to the most important things in any society. Indeed. The fact that they claim this partly determines what it is to be a Pope. law makes moral claims on its subjects. opposition. These demands may be misguided or unjustified for law is fallible. property. As with many other social institutions. and even the Pope himself doubts its truth. inventive etc. fidelity. Legal systems are therefore the kind of thing that is apt for appraisal as just or unjust. For this reason neither a regime of “stark imperatives” (see Kramer. even if it is a fiction. to invite certain kinds of support and. for example. Not all human practices are justice-apt. Peter. not merely what it would be virtuous or advantageous to do. but they must be the kind of thing that can be offered as. and kinship that any legal system must encompass if it aims at the survival of social creatures like ourselves (Hart 1994. interesting. 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. 83-9) nor a price system would be a system of law. and it requires us to act without regard to our individual self-interest but in the interests of other individuals. and to say that all legal systems create obligations is not to endorse the duties so created. what law. obligation-imposing requirements. The musical standards of fugal excellence are preeminently internal -. law purports to obligate us. He fails to notice that if human nature and life were different. or in the public interest more generally (except when law itself permits otherwise). That is to say. and where it is found deficient to demand reform.universal form of this governance. Popes. This is a very significant feature of law. then morality would be too and if law had any role in that society. this is in fact inconsistent with law's place amongst human practices. Where there is law there is also morality. Of course to say that law deals with morality's subject matter is not to say that it does so well. for neither could even lay claim to obligate its subjects. 193-200). It makes no sense to ask whether a certain fugue is just or to demand that it become so. though its officials. (2) Necessarily. on assuming certain facts about human nature and certain aims of social existence. p. claims determines its character independent of the truth or validity of those claims. pp. namely obligation. -. While some formalists flirt with similar ideas about law. it always makes sense to ask whether law is just. 34) This is a matter of the content of all legal systems. our most urgent political worries about law and its claims flow from just this capacity to regulate our most vital interests. law is justice-apt. Hart regards this as a matter of “natural necessity” and in that measure is willing to qualify his endorsement of the separability thesis. so the necessary content of law is not dependent. But to make categorical demands that people should act in the interests of others is to make moral demands on them. This is broader than Hart's “minimum content” thesis according to which there are basic rules governing violence. and possibly taken as. it would inevitably deal with morality's subject matter. whatever they may be. pp. (3) Necessarily. Even if law has internal standards .

The familiar idea that legal positivism insists on the separability of law and morality is therefore significantly mistaken. truths about its connection to the demand for paper or silk. dependent not merely on our sensory embodiment but also. Positivism is however sometimes more credibly associated with the idea that legal philosophy is or should be value-neutral. not on its merits.. Law stands continuously exposed to demands for justification. an evaluation of the law. or even the first. p. may suppose that positivism should be rejected a priori. When people complain of the law's lack of neutrality. It selects and systematizes only a subset of the infinite number of facts about its subject. just. and that too shapes its nature and role in our lives and culture. 4. but law is not best when it excels in legality. decisions. This does not presuppose that justice is the only. Moreover. The thought that law could be value neutral does not even rise to falsity -. 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. and these in turn cannot be understood without reference to values.it is simply incoherent. for example. says. Law is a normative system. A society may therefore suffer not only from too little of the rule of law. Each of them is consistent with the positivist thesis that the existence and content of law depends on social facts. promoting certain values and repressing others.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. “law” itself is an anthropocentric subject. To describe law as resting on customary social rules is to omit many other truths about it including. but also from too much of it. “the function of the science of law is not the evaluation of its subject. Every description is value-laden. i. and so forth. on our moral sense and capacities. and rules will not appear in a purely physical . Since it is well known that there are convincing arguments for the ineliminability of values in the social sciences. or Foucauldian espistemes. Kuhnian paradigms. A condition of law's achieving any of these ideals is that it is not neutral in either its aims or its effects. they are in fact voicing very different aspirations.e. for example. There are complex questions here. 2001). all descriptions express choices about what is salient or significant. impartial. In this way. There can be no such thing.these cannot preclude or displace its assessment on independent criteria of justice.of merit -. law must also be just. Legal kinds such as courts. there is no doubt about the relationship between descriptions and values. Each of them contributes to an understanding of the nature of law. 68) and Hart at one point described his work as “descriptive sociology” (1994. 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. virtue of a legal system. as its necessary connections to morality show. but its value-free description” (1967. such as the demand that it be fair. p. But it does not follow that legal philosophy therefore offers a “value-free description” of its subject. but some advance may be made by noticing that Kelsen's alternatives are a false dichotomy. Our warrant for doing this must rest on the view that the former facts are more important than the latter. v). Law is not neutral between victim and murderer or between owner and thief. Whatever the relation between facts and values. those who have taken on board Quinian holisms.virtues uniquely its own that inhere in its law-like character -. even if not directly an evaluation of its subject is nonetheless “indirectly evaluative” (Dickson. So legal philosophy. (Nor does it preclude it: see MacCormick and Campbell) Thus far Kelsen is on secure ground. A fugue may be at its best when it has all the virtues of fugacity. Kelsen. to its most excellent degree. These three theses establish connections between law and morality that are both necessary and highly significant. as promising something that no theory can deliver. Legal positivism is indeed not an “evaluation of its subject”.

Evaluative argument is. this separation between law and morals is held to be superficial and wrong. Legal positivism requires only that it be in virtue of its facticity rather than its meritoriousness that something is law." like most terms which are used as missiles in intellectual battles. especially Kelsen. One of them is the sin. By contrast. L. In reality. positivism may cohabit with a range of views here -. law as it is from law as it ought to be. "Legal Positivism" from Positivism and the Separation of Law and Morals 71 HARV. firmly and with the maximum of clarity. though for a spirited defense of the contrary view.html Editor's Note: H. and that we can describe that facticity without assessing its merits. and at its best apt to bring law into disrespect. however. Legal positivism does not aspire to answer these questions. The nonpejorative name "Legal Positivism. at the present time in this country and to a lesser extent in England. Hart was Professor of Jurisprudence in Oxford University from 1952 until 1968. Some critics have thought that it blinds men to the true nature of law and its roots in social life. and they condemned the natural-law thinkers precisely because they had blurred this apparently simple but vital distinction.description of the universe and may not even appear in every social description. This theme haunts their work. 593.L. Hart. values may supervene on facts. on the separation of law as it is and law as it ought to be. (This may limit the prospects for a “naturalized” jurisprudence. of what claim law has on our obedience (is there a duty to obey?). constantly insisted on the need to distinguish.] 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. and his writings in legal philosophy have been extraordinarily influential. that legal positivism at least requires a stand on the so-called “fact-value” problem.(4) Others have thought it not only intellectually misleading but corrupting in practice. see Leiter) It may seem. has come to stand for a baffling multitude of different sins. REV.A. believe this to be so. He lectured and taught on many occasions in the United States. and also of the pivotal questions of what laws we should have and whether we should have law at all. at its worst apt to weaken resistance to state tyranny or absolutism. There is no doubt that certain positivists. real or alleged. values may be kind of fact. though its claim that the existence and content of law depends only on social facts does give them shape. 594-606 (1958 SOURCED FROM: http://www. 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 . as Austin and Bentham did. of insisting. it is important to bear in mind that not every kind of evaluative statement would count among the merits of a given rule. of what role law should play in adjudication (should valid law always be applied?). 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?). In this regard.value statements may be entailed by factual statements. of course. H.kentlaw.L. Bentham and Austin.edu/classes/rwarner/justice/syllabus/hpositiv.A. central to the philosophy of law more generally. its merits are only those values that could bear on its justification.

But simple and glaring as it is. whatever "the text by which we regulate our approbation or disapprobation. This truth. Now. I know.Perhaps. its merit or demerit is another. though we happen to dislike it. is a different enquiry. 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. Whether it be or be not is one enquiry. but were the vanguard of a movement which laboured with passionate intensity and much success to bring about a better society and better laws. however. . in other words. 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. that human laws are of no validity if contrary to them. but we should not mistake this simplicity for superficiality nor forget how favorably their simplicities compare with the profundities of other thinkers. the need that laws should be published and made widely known before they are enforced. again. by which we regulate our approbation and disapprobation. but simply whether they suffer. whatever our standard of what ought to be. to which utility was an "index": besides this there was the actual accepted morality of a social group or "positive" morality. he means that human lawgivers are themselves obliged by the Divine laws to fashion the laws which they impose by that ultimate standard. For him. They stood firmly but on their own utilitarian ground for all the principles of liberalism in law and government. Some. or though it vary from the text. But the meaning of this passage of Blackstone. nulla poena sine lege. 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.. I assent to it without hesitation. when enunciated in abstract expressions. whether it be or be not conformable to an assumed standard. is a law. 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. seems rather to be this: that no human law which conflicts with the Divine law is obligatory or binding. is so simple and glaring that it seems idle to insist upon it. that no human laws should be suffered to contradict them. Austin's protest against blurring the distinction between what law is and what it ought to be is quite general: it is a mistake. with such even-minded sanity as the Utilitarians.. and the importance of the principle of legality.. God will punish then. A law. are always a confusion between law as it is and law as morality would require it to be. To this also entirely assent. the right of association. Take only one example: Bentham on slavery.. Austin formulated the doctrine: The existence of law is one thing. If this be his meaning. that no human law which conflicts with the Divine law is a law. So Bentham and Austin were not dry analysts fiddling with verbal distinctions while cities burned.social philosophy which went along with the Utilitarians' insistence on this distinction. if it has a meaning." His examples... No one has ever combined. the fundamental principles of morality were God's commands. the enumeration of the instances in which it has been forgotten would fill a volume. find the political and moral insight of the Utilitarians a very simple one. Here are liberty of speech. for example. when formally announced as an abstract proposition. he may mean that all human laws ought to conform to the Divine laws. the insistence that there should be no criminal liability without fault. the need to control administrative agencies. and of press. which actually exists. it must be remembered. and that all valid laws derive their force from that Divine original. because if they do not. Sir William Blackstone." that the laws of God are superior in obligation to all other laws. says in his "Commentaries. He says the question at issue is not whether those who are held as slaves can reason.

for example. to censure freely. might confer a delegated legislative power and restrict the area of its exercise by reference to moral principles. but Bentham was certainly ready to admit its existence. in the absence of an expressed constitutional or legal provision.were one and indivisible. the development of legal systems had been powerfully influenced by moral opinion. and. that this was not enough: the time might come in any society when the law's commands were so evil that the qu estion of resistance had to be faced. as an anxious spectator of the French revolution. as Austin did not. or that courts might be legally bound to decide in accordance with what they thought just or best. as yet." First. On the one hand Bentham had in mind the anarchist who argues thus: "This ought not to be the law." 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. the generality of non-lawyers the is and ought to be. and it was then essential that the issues at stake at this point should neither be oversimplified nor obscured. that even the supreme legislative power might be subjected to legal restraints by a constitution and would not have denied that moral principles. were to be found in Blackstone: there was his incautious statement that human laws were invalid if contrary to the law of God. 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. Austin differed in thinking that restraints on the supreme legislative power could not have the force of law." But Bentham was especially aware. so that the content of many legal rules mirrored moral rules or principles. of course. Both errors. and. conversely. 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. might form the content of such legal constitutional restraints. They certainly accepted many of the things that might be called "the intersection of law and morals.. that moral standards had been profoundly influenced by law. by reference to the principles of utility. . like those of the fifth amendment. conversely. This indeed was for Bentham the occupational disease of lawyers: "In the eyes of lawyers not to speak of their dupes that is to say.Bentham insisted on this distinction without characterizing morality by reference to God but only. it could not follow from the mere fact that a rule violated standards of morality that it was not a rule of law. as a matter of historical fact. What both Bentham and Austin were anxious to assert were the following two simple things: first. but would remain merely political or moral checks. and to understand the specific character of the authority of a legal order. they never denied that. Bentham thought. but of course he would have recognized that a statute.. 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. It is not in fact always easy to trace this historical causal connection. it could not follow from the mere fact that a rule was morally desirable that it was a rule of law. 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. so too Austin spoke of the "frequent coincidence"of positive law and morality and attributed the confusion of what law is with what law ought to be to this very fact." On the other hand he thought of the reactionary who argues: "This is the law. Secondly. therefore it is not and I am free not merely to censure but to disregard it. Bentham indeed recognized. therefore it is what it ought to be. Bentham's general recipe for life under the government of laws was simple: it was "to obey punctually. 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." and thus stifles criticism at its birth.

Let me summarize it by saying that after it was propounded to the world by Austin it dominated English jurisprudence and constitutes part of the framework of most of those curiously English and perhaps unsatisfactory productions the omnibus surveys of the whole field of jurisprudence. We must remember that the Utilitarians combined with their insistence on the separation of law and morals two other equally famous but distinct doctrines. Austin was said by one of his English successors. seems . The famous theory that law is a command was a part of a wider and more ambitious claim. however. "to have delivered the law from the dead body of morality that still clung to it".. This distinction is. let alone the quintessence of morals. viewed as an effort to identify even the quintessence of law." and contemporary attempts to elucidate moral judgments in terms of "imperative" or "prescriptive" utterances echo this ambitious claim. for example. yet they are distinct doctrines. Gray. is the feat that Austin accomplished. "He may have been wrong in treating the Law of the State as being the command of the sovereign" and he touched shrewdly on many points where the command theory is defective. though of course it could not supplant them. however. 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. but a natural one.The history of this simple doctrine in the nineteenth century is too long and too intricate to trace here. In the United States men like N.is not an ideal. The other doctrine was the famous imperative theory of law that law is essentially a command. of course. but something which actually exists.." 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. who was critical of Austin at many points. One was the important truth that a purely analytical study of legal concepts. To fix this definitely in the Jurisprudence of the Common Law. * * * There is. 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. 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. they welcomed it both as self-evident and as illuminating as a revealing tautology. Some of the early American critics of the Austinian doctrine were. and even Maine. which I have already quoted. 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. Austin said that the notion of a command was "the key to the sciences of jurisprudence and morals. But the command theory. Let us turn now to some of the criticisms. a study of the meaning of the distinctive vocabulary of the law. St. added at the end of the tribute to Austin. In each of them the utilitarian separation of law and morals is treated as something that enables lawyers to attain a new clarity. A succession of these were published after a full text of Austin's lectures finally appeared in 1861.. 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.. Amos. one major initial complexity by which criticism has been much confused. Gray. the words. John Green. one of the main themes of Holmes' most famous essay "The Path of the Law. 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.. did not question this part of his doctrine. was as vital to our understanding of the nature of law as historical or sociological studies. but that which is. admirably clear on just this matter.[I]t is not that which ought to be. So much for the doctrine in the heyday of its success. These three doctrines constitute the utilitarian tradition in jurisprudence. This was a mistake. what was worse was the failure to see that there were three quite separate doctrines in this tradition. To see how natural it was we must look a little more closely at the command idea.

Again. they must be general. Plainly the general acceptance of the authority of a lawmaking procedure. the relationship is vertical between the commanders or authors of the law conceived of as essentially outside the law and those . not that of a command as Austin claimed. they must be commanded by what (as both Bentham and Austin claimed) exists in every political society whatever its constitutional form. This notion. nothing which legislators do makes law unless they comply with fundamental accepted rules specifying the essential lawmaking procedures. sanction. Commands are laws if two conditions are satisfied: first.breathtaking in its simplicity and quite inadequate. that is. These persons are its sovereign. 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. in the case of the democracy. of superior to inferior. that is distorted if presented as a command. It is wrong to think of a legislature (and a fortiori an electorate) with a changing membership. despite the points of obvious analogy between a statute and a command. is like that of a gunman saying to his victim. Even if we waive this point. 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. given by their "agent" in the legislatures. 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. One can also see why it might seem that its inadequacy is due to the omission of some essential connection with morality. if you take these notions at all precisely. and sovereign avails to describe. Law surely is not the gunman situation writ large. This scheme. This more radical defect is as follows. is the "key to the science of jurisprudence. would be distorted if represented as habitual obedience by the mass to specific persons. accompanied by a threat of punishment which is likely to follow disobedience. They lie at the root of a legal system. just as the cognate but much simpler phenomenon of the general social acceptance of a rule. 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." or at least one of the keys. The picture that the command theory draws of life under law is essentially a simple relationship of the commander to the commanded. and legal order is surely not to be thus simply identified with compulsion. namely. It is easy to see that this account of a legal system is threadbare. Austin. This is true even in a system having a simple unitary constitution like the British. 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. 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. Let me cite a few. of top to bottom. 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. The situation which the simple trilogy of command. nor can they be expressed as habits of obedience to persons. were law. 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. He thought that in the United States the mass of the electors to the state and federal legislatures were the sovereign whose commands. can be only distorted by an analysis in terms of mass habitual obedience to certain persons who are by definition outside the law. looked past the legislators to the electorate as "the sovereign" (or in England as part of it). even in the simplest legal system." 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. irrespective of the changing individuals [29]who operate it from time to time. There is much. "Give me your money or your life. say of taking off the hat when entering a church. omits some of the most characteristic elements of law. These fundamental accepted rules specifying what the legislature must do to legislate are not commands habitually obeyed. Other critics dimly sensed a further and more important defect in the command theory. second. it obeys itself.

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. "Their merit or demerit. Such are the rules enabling individuals to make contracts. 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. represents the quintessence of law. These phrases mark off characteristic features of laws that confer rights and powers. and in many other spheres regulated by rules which are irrelevant to the question of justice or what the law ought to be. REV. and the related theory of Hans Kelsen. like Austin's command. L. Yet nothing in this showed the utilitarian insistence on the distinction between the existence of law and its "merits" to be wrong. 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. 2. Much ingenuity has gone into the task of "reducing" laws of this second sort to some complex variant of laws of the first sort." In these materials. is afforded for a distinction between types of legal rules which are in fact radically different. Nor need rules which confer rights be just or morally good rules. Notes 1. 57 U. When we say. Such rules. the . put at the disposition of individuals in a way in which the criminal law is not. was a crucial part of what made such commands law and distinguished them from other non-law directives. Legal Theory and the Pivotal Role of the Concept of Coercion. The criminal law consists largely of rules of this sort: like commands they are simply "obeyed" or "disobeyed. "The law requires X. or only an accidental or subordinate place." Under these rules we exercise powers. These critics indeed revealed the inadequacy of the simple notions of command and habit for the analysis of law. exist under the rules of cere-[30]monies. rather than on the coercive power of the state that. focuses on the functional character of a command and its relation to the notion of a sovereign.(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. we will generally have this reference in mind when using the word "law" without more. games. these rules provide facilities for the realization of wishes and choices. Rights. * * * * * * Rules that confer rights." as Austin termed it. If one concedes that the law as it is may diverge from law as it ought to be." but rather "if you wish to do this. need not be moral rules or coincide with them. here is the way to do it. according to the earlier theorists. 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. 1 (1985)." But other legal rules are presented to society in quite different ways and have quite different functions. though distinct from commands. COLO. so to speak. make claims. are not factors designed to obstruct wishes and choices of an antisocial sort.who are commanded and subject to the law. 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. Hart's critique of the command theory of Austin. Some laws require men to act in certain ways or to abstain from acting whether they wish to or not. depends on how rights are distributed in society and over whom or what they are exercised. unlike the criminal law. On the contrary. Yet it is frequently useful to refer to the other idea. and generally to mould their legal relations with others. The rights of a master over his slaves show us that. then one needs terminology for referring to each idea. They do not say (like commands) "do this whether you wish it or not." we are ordinarily making a reference to the law "as it is. and assert rights. wills. they are laws which are. and trusts. after all. In this picture no place.

Unfortunately. Finally. But utilitarianism is not the only such form of moral theory. For example: Suppose you are the driver of a trolley. that is a legal theory. to criticize existing law. ("One ought to honor one's promise. Foreword: Of Chickens and EggsThe Compatibility of Moral Rights and Consequentialist Analyses. can you think of examples?) In order to avoid linguistic disputes. three types of moral argument can be identified. but alas they don't work. even though these views were both held by people like Austin and Bentham."law as it ought to be. in which moral duty is derived entirely from the goodness or badness of the consequences of action. perhaps we should be content with a term like "ideal law" to refer to the law as it ought to be. First. but rather on the inherent rightness or wrongness of the conduct in question.. The Trolley Problem. 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. For example. He can no more get off the track in time than the five can. 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." The ancient Greek philosopher Aristotle seems to have used the term "justice" for this idea. Now you suddenly see a spur of track leading off to the right. To generalize." in which moral duty is derived in some way that does not depend on the appraisal of the material consequences of accepting the argument.. You step on the brakes. . 3. such as utilitarianism. (Again. and the sides are steep. Whereas positivism is a theory about the nature of law. so you will kill him if you turn the trolley onto him. there are consequentialist (also called teleological) modes of argument. since one can imagine moral rights that ought not to be made legal rights. such as some arguments from "natural rights. indeed.there is one track workman on that spur of track. In particular. and thus save the five men on the straight track ahead. 94 YALE L. and have been used. As Hart notes. all things considered. even if that doesn't produce the best possible consequences. utilitarian arguments can be used. recognizing that what is ideal may not be the same for all societies at all times. Professor Hart clearly distinguishes between utilitarianism and legal positivism. utilitarianism is one form of moral theory. it has been challenged as giving too little weight to the notion of individual rights.J. 12 HARV. to indicate in what respects extant law differs from the ideal. & PUB. there are nonconsequentialist (also called deontological) modes. 1395 (1985). The track goes through a bit of a valley at that point. J.L. 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. there may be no unique ideal law for any given society at any given time. Second.. the law should not always satisfy or enforce the demands of justice (Can you think of examples?). Is it morally permissible [or required] for you to turn the trolley? Judith Jarvis Thomson. Especially prominent have been hypotheticals specifically designed to generate a conflict in the prescriptions that may be derived from utilitarian and rights-based approaches. we will examine some of what can be said in characterizing ideal law. But similar problems arise. and there come into view ahead five track workmen. so you must stop the trolley if you are to avoid running the five men down. You can turn the trolley onto it. In subsequent Parts of these materials. meaning that aspect of morality (or what Aristotle would call virtue) which ought to be reflected in the law.") Much modern philosophical debate has addressed the question of the priority of these two modes of moral thought. who have been repairing the track. The trolley rounds a bend. POL'Y 611 (1989). so the identification seems imprecise. allowing a place for each. Yet it is arguable that. at least in American society. there are what may be called "mixed" or "hybrid" modes of argument which try to combine the strengths of both consequentialist and nonconsequentialist analyses.

quite separate from morality and nature. Norms are ‘ought’ statements. then. You will have many occasions to think about these issues in the following materials. or HANS KELSEN The Pure Theory of Law SOURCED FROM: http://plato. 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. Kelsen suggested a ‘pure’ theory of law which would avoid reductionism of any kind. rendering the normativity of law intelligible. hopelessly contaminated with political ideology and moralizing on the one hand. however. For instance.stanford. cannot be reduced to those natural actions and events which give rise to it. and as such. Reductionism should be avoided because the law is a unique phenomenon. presupposing it. legal norms are essentially ‘ought’ statements. Thus Kelsen believed that the law. 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. was it utilitarian. or a mixture? It is all too easy to opt for the mixed mode. and promulgate a string of words. is a system of norms. Kelsen firmly believed that if the law is to be considered as a unique normative practice. The Basic Norm The law. Kelsen. The gathering. 7] Note that this anti-reductionism is both methodological and substantive.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). . the nonconsequentialist. 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.” [PT1. speaking and raising of hands. prescribing certain modes of conduct. (See bibliographical note) Kelsen began his long career as a legal theorist at the beginning of the 20 th century. The traditional legal philosophies at the time. ultimately. 1. some people gather in a hall. 4. bear in mind that many philosophers have found consequentialism and deontology to be fundamentally incompatible. To say that what we have described here is the enactment of a law. there must be some kind of an ‘ought’ presupposition at the background. or deontological. is not the law. Instead. raise their hands. were. They are products of deliberate human action. But this approach is not only a matter of method. or with attempts to reduce the law to natural or social sciences. He found both of these reductionist endeavors seriously flawed. methodological reductionism should be avoided entirely.Which mode of argument do you find most acceptable. Since ‘ought’ cannot be derived from ‘is’. and since legal norms are essentially ‘ought’ statements. they cannot be deduced from factual premises alone. in itself. Kelsen maintained that legal norms are created by acts of will. speak. according to Kelsen. Kelsen claimed. count them. Unlike moral norms. however. is to interpret these actions and events by ascribing a normative significance to them. on the other hand. How is it possible. the consequentialist. firmly believed in Hume's distinction between ‘is’ and ‘ought’. These are actions and events taking place at a specific time and space. which is comprised of norms or ‘ought’ statements. and in the impossibility of deriving ‘ought’ conclusions from factual premises alone.

Furthermore. however. Furthermore. Kelsen maintained that in tracing back such a ‘chain of validity’ (to use Raz's terminology). and the Basic Norm is the presupposition of the validity of that first constitution.g. Therefore. Kelsen argued that every two norms which derive their validity from a single Basic Norm necessarily belong to the same legal system and. Kelsen thought. one would reach a point where a ‘first’ historical constitution is the basic authorizing norm of the rest of the legal system. one must reach a point where the authorizing norm is no longer the product of an act of will. be presupposed.. what Kelsen called. so that all legal norms of a given legal system derive their validity from one Basic Norm. and this is. the unity of the system and its separation from other systems is almost never as neat as Kelsen assumed. or Rules of Recognition in H. and distinguishes it from other theories in the Legal Positivist tradition. Kelsen's pure theory of law is an attempt to find a middle way between . Generally speaking. 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. Once again. Kelsen argued. and Q is the presupposition of the Basic Norm.L. The presupposition of the Basic Norm as the condition of validity of legal norms marks Kelsen's theory as ‘pure’. ‘Kelsen's Theory of the Basic Norm’. namely. P. as a genuine ‘ought’. Thus the argument takes the following form: 1. vice versa. [PT2. there are certain social conventions. 193] Apparently. its ‘ought’ aspect. 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. P is possible only if Q. ultimately. critics have shown that this aspect of Kelsen's theory is refutable. And the ‘higher’ legal norm. [PT2. 2. 3. Such an act can only create law. one needs some ‘ought’ in the premises.] However. In Kelsen's case. Kelsen believed that these two ideas are very closely related. It is widely acknowledged that Kelsen erred in these assumptions about the unity of legal systems. 202]. is doomed to failure if it is only based on facts. 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. ultimately. to account for an ‘ought’ conclusion. the role of the Basic Norm in explaining the normativity of law is crucially important. But this is precisely the kind of reductionism that the Pure Theory strives to deny.As opposed to moral norms which. in turn. Therefore. the normativity of law. in spite of the considerable interest in Kelsen's theory of legal systems and their unity that derives from a single Basic Norm. that determine who is authorized to make law and how law making is to be done. More concretely. 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. P stands for the fact that legal norms are ‘ought’ statements. Hart's terminology. whether those facts are natural or social. [see Raz. Ultimately. are typically deduced from other moral norms by syllogism (e. Although it is certainly true that the law always comes in systems. must. legal norms are always created by acts of will. Q. is valid only if it has been created in accordance with yet another. Kelsen was convinced that any attempt to ground the law's normativity. but is simply presupposed. according to Kelsen. the Basic Norm. commentators have pointed out that just as Kant's epistemology is an attempt to find the middle way between dogmatic Rationalism and skeptical Empiricism. from general principles to more particular ones). even ‘higher’ legal norm that authorizes its enactment.A. if it is in accord with another ‘higher’ legal norm that authorizes its creation in that way.

however. One should recall that it is Humean skepticism that Kant strove to answer. is more limited than it first appears. In the first edition of the Pure Theory of Law. namely. does not depend on the actual obedience of their respective subjects. Kelsen was not unaware of the difficulty. the idea that municipal legal systems derive their legal validity from international law would strike most jurists and legal historians as rather fanciful and . like that of morality. At a certain point. however. is rather high: he was compelled to claim that all municipal legal systems derive their validity from international law. 63-65] Second. but a basic norm delegating authority to the revolutionary government. Suppose. those who believe in the normativity of a religious order must presuppose a Basic Norm that ‘one ought to obey God's commands’. after all.” [PT1. As Kelsen repeatedly argued. Kant's included. This is very problematic. that state sovereignty is determined by successful control over a given territory. a successful revolution brings about a radical change in the content of the Basic Norm. perhaps just as an option which would make sense. namely. the normativity. is not the case with law. 61-62] The price Kelsen had to pay for this solution. and Positivism's reduction of law to the social sciences. At this point. The Basic Norm is an ‘ought’ presumption and. if its norms are by and large effective (that is. [PT1. 16. 212] Furthermore. and necessary feature of rational cognition. universal. on which Kelsen often dwells. “one presupposes a new basic norm. The Kantian categories and modes of perception are not optional. Likewise. relying on the dogmas of international law. and as the latter. It follows from the basic norm of international law. actually applied and obeyed). of rational cognition. a coup d'etat takes place and a republican government is successfully installed. But in both cases. [PT1. and this entails that there is only one Basic Norm in the entire world. However. depends on its actual practice: “A legal order is regarded as valid. however. no longer the basic norm delegating law making authority to the monarch. Kelsen maintained. remains Humean through and through. the latter would be valid even if there are no other Christians around. 59]. must presuppose the Basic Norm if she is to account for the normativity of law.” [PT2. since it raises the suspicion that Kelsen has violated his own categorical injunction against deriving ‘ought’ from ‘is’. even the anarchist. The Normativity of Law This analogy between law and religion. PT2. optional. there is nothing in the nature of things which would compel any particular person to adopt such a normative perspective.Natural Law's dogmatism. as such. Although this solution is repeated in the second edition of the Pure Theory of Law [214-215]. 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. [See Paulson. for example. But again. Therefore. Kelsen does not claim that the presupposition of the Basic Norm is a necessary feature. The validity of a legal system partly. Kantian influences notwithstanding. for example. The Basic Norm is necessarily presupposed only by those who accept the ‘ought’. not a normative commitment. Kelsen maintains. Kelsen. The hesitation is understandable. Introduction] But it is worth keeping in mind that Kelsen's argument about the Basic Norm is an explicitly shallow form of Kantian epistemology. It is not quite clear whether Kelsen really adhered to it. as Kelsen explicitly admits. it is entirely optional. however. But this. or category. but crucially. the changes in the basic norm which stem from successful revolutions can be accounted for in legalistic terms. It is not necessary for anyone to accept the Basic Norm. The normativity of religion. 2. this presupposition is only an intellectual tool. Kelsen admits. of the law. For those. Kelsen's argument does not rule out atheism or anarchism. Kelsen presented it there with much more hesitation. who presuppose the basic norm of Christianity. First. the Basic Norm of public international law. Kelsen was very skeptical about any objectivist moral theory. they form a deep. that in a given legal system the Basic Norm is that the constitution enacted by Rex One is binding. the actual content of the Basic Norm depends on its ‘effectiveness’.

but then it would be very difficult to explain what the difference consists in. the Basic Norms is not sufficient. ultimately.) So we are back to the question of how ‘pure’ Kelsen's theory really is. (See the Nature of Law) On the other hand. 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. 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. by themselves. Kelsen seems to have faced a dilemma here which would not be easy to resolve. The explanatory role of the Basic Norm must be confined to the normativity of law. Such an ‘ought’ cannot be constituted by the conventions. are determined by its constitutive rules or conventions. in itself. then. that Kelsen's account of the normativity of law is unproblematic. unless. or else. for example. again. for example. to play the game. What chess is. conventions cannot determine that one ought to engage in the practice. like that of religion or any other normative domain. like chess. however. given that both kinds of ‘ought’ are simply presupposed. 25-33] Consider. indeed. namely. Positive Law & Objective Values. and how one would go about in engaging in it. it would seem that Kelsen's anti-reductionism is only partly successful. I think. Natural Law. it depends on a prior reason. 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. as it were. [see Marmor. Now. Just as the normativity of chess could not be explained without presupposing. On the one hand. what counts as law in that community. any other normative domain. one must refer to the social conventions which prevail in the relevant community. Kelsen has repeatedly argued that Natural Law. Those rules which constitute the game of chess. so the normativity of law must be premised on the Basic Norm. Social conventions can only determine what the practice is. We cannot say. does not make any allowance for the possibility that a norm is legally valid but morally wrong. is the stance he adopted in his earlier writings). 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. First. The fact that the rules of chess require the players to move the bishop diagonally is not. So here is the dilemma: either Kelsen maintains that the legal ‘ought’ and moral ‘ought’ are two different kinds of ‘ought’ (which. he wanted to avoid the mistake which he attributed to the Natural Law tradition of reducing the normativity of law to moral ‘ought’. Thus. and how one should play the game. The normativity of the game is conditional. we are left with no room for the concept of legal validity. An answer to the question of what counts as law or as law creating acts in a given community cannot be detached from practice. But in order to explain what counts as law and how law is identified and distinguished from other normative practices. and in answering the question of law's normativity. it is precisely this kind of assumption that the Basic Norm is there to capture. is also ‘presupposed’. that the players want to engage in that particular game. could not explain the ‘ought’ which is inherent in law as a normative system. if it is conceded that the content of the Basic Norm is basically determined by social practice. it is assumed that it is chess that one wants to play. (We should recall that the development of international law is a relatively recent phenomenon in the history of law.anachronistic. cannot provide anyone with a complete reason to play the game. as Kelsen understood it. the analogy of a structured game. Kelsen is right to insist that social conventions. a reason for doing so. The social conventions prevalent in any given community determine. Would this imply. social conventions. There are two main problems that may be worth exploring. Kelsen would have to maintain that the moral . however. or commitment. None of this means. that one “ought to move the bishop diagonally” unless we assume that the agent wants to play chess.

or any other evaluative scheme. and predicted he would go far. His influential friends (who included Jeremy Bentham. more specifically. (1965).). the choice of any Basic Norm remains rather whimsical. UC Berkeley Press. most of the themes in these two books also appear in Kelsen's General Theory of Law and State. (Paulson and Paulson trans. Hartney trans. He was called to the Bar in 1818. and served briefly in the military before beginning his legal training. Rev. Other relevant publications in English include ‘The Pure Theory of Law and Analytical Jurisprudence’. and perfectionism combined to end quickly careers at the Bar. JOHN AUSTIN SOURCED FORM: http://plato. (Wedberg trans. John Stuart Mill and Thomas Carlyle) were impressed by his intellect and his conversation. the approach to law known as "legal positivism. Kelsen's account of the normativity of law is seriously impeded by his Humean skepticism about the objectivity of morality. he would be hard pressed to explain how he avoids the same kind of mistake which he attributed to the Natural Law tradition. However.stanford. 55 Harvard L.edu/entries/austin-john/ John Austin is considered by many to be the creator of the school of analytical jurisprudence. (Knight trans. These books are abbreviated in the test as PT1 and PT2 respectively. 1. UC Berkeley press. and recently translated to English under the title Introduction to the Problems of Legal Theory. in academia..). Life John Austin's life (1790-1859) was filled with disappointment and unfulfilled expectations. In addition. tendency towards melancholy. published in 1934. It is difficult to understand how normativity can really be explained on the basis of such rationally groundless choices. etc. 1992) Austin was born to a Suffolk merchant family. and in government service. devoid of any reason. Russell & Russell. (Hamburger 1985. religion. 1991. Bibliography Note Kelsen's academic publications span over almost seven decades in which he published dozens of books and hundreds of articles. The view one gets. but its simplicity gives it an evocative power that cannot be ignored. Only about a third of this vast literature has been translated to English.and legal ‘ought’ are basically the same. shaky health. as well as." Austin's particular command theory of law has been subject to pervasive criticism. 17 Stanford L.) Oxford 2002. Secondly. and ‘On the Pure Theory of Law’ (1966). like morality. Pure Theory of Law. (1941). in which case. and perhaps this is part of the reason for the former confusion. (1945). Austin's nervous disposition. 1967. But without any rational or objective grounding of such evaluative systems. The second edition is a considerably extended version of the first edition. and quit the practice of law in 1825. NY 1961 and What is Justice?. . 44. He prepared for his lectures by study in Bonn. in public dealings. General Theory of Norms (M. For a complete list of Kelsen's publications which have appeared in English see the Appendix to H. Austin shortly thereafter obtained an appointment to the first Chair of Jurisprudence at the recently established University College London. law. pp. is that there are countless potential normative systems.) Oxford. 1 Israel L. that one can either accept or not just by presupposing their respective Basic Norms. and the second edition which Kelsen published in 1960. James Mill. 1957. 1128. 440-454. ‘Professor Stone and the Pure Theory of Law: A Reply’. Rev. 1. Rev. especially from Kelsen's later writings. Kelsen's two most important books on the pure theory of law are the first edition of his Reine Rechtslehre. justice. Kelsen. but he took on few cases.

" (Rumble 1985: pp.a narrow approach to how judges should decide cases. The American legal realists saw Austin in particular.. 41). Much of whatever success Austin found during his life.his theorizing about law was novel at three different levels of generality. Austin came under the influence of Jeremy Bentham. see also Austin 1995: Lecture II." Though analytical jurisprudence has been challenged by some in recent years (e. they lived primarily off her efforts as a translator and reviewer). it remains the dominant approach to discussing the nature of 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" -. including "law. attendance at his courses was small and getting smaller. He did some occasional writing on political themes. Divine will is equated with Utilitarian principles: "utility is the index to the law of God . While Austin's work was influential in the decades after his death. an approach to theorizing about law." (Austin 1995) However. To make a promise which general utility condemns. First. and he gave his last lecture in 1833. political. and a most enthusiastic Malthusian. however... p. for her tireless support. A short-lived effort to give a similar course of lectures at the Inner Temple met the same result. Analytical jurisprudence." and "legal validity. its impact seemed to subside substantially by the beginning of the twentieth century. 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. This particular reading of utilitarianism. offering new characterizations and defenses of his ideas (e. and legal matters also apparently hindered both the publication of a revised edition of "Province of Jurisprudence Determined. 1994) of Austin's theory as a foil for the explanation of Hart's own. Morison 1982. more nuanced approach to legal theory. but he never found either success or contentment." and the completion of a longer project started when his views had been different. His changing views on moral. and after.A.g. 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).g." "(legal) right. is an offense against the law of God" (Austin 1873: Lecture VI. xx). In recent decades some theorists have revisited Austin's work. Analytical Jurisprudence and Legal Positivism Early in his career. must be attributed to his wife Sarah. 16-17) Austin's importance to legal theory lies elsewhere -. he was "a strong proponent of modern political economy. . p.L. He later briefly served on the Criminal Law Commission. and as a Royal Commissioner to Malta. Rumble 1985). as their .. Analytical jurisprudence emphasizes the analysis of key concepts. melancholy. 307. and analytical jurisprudence in general. but his plans for longer works never came to anything during his lifetime.and evidence of the influence of continental legal and political ideas can be found scattered throughout Austin's writings. though it seems to have been the part of his work that received the most attention in his own day (Rumble 1995: p. Lectures from the course he gave were eventually published in 1832 as "Province of Jurisprudence Determined. Austin early on shared many of the ideas of the Benthamite philosophical radicals." "(legal) duty. or arguments about law which were secondary to more general moral and political theories). has had little long-term influence. Leiter 1998). On Austin's reading of utilitarianism. and writer's block. Austin resigned his University College London Chair in 1835. A significant portion of Austin's current reputation derives from H. 2. a believer in Hartleian metaphysics. both moral and economic (during the later years of their marriage. and Bentham's utilitarianism is evident (though with some differences) in the work for which Austin is best known today. Hart's use (1958. due apparently to some combination of perfectionism.

Where Austin does articulate his methodology and objective. dominated neither by prescription nor by moral evaluation. whose theory could also be characterized as a "command theory.) Legal positivism does not deny that moral and political criticism of legal systems are important. Austin's theory had similarities with the views developed by Jeremy Bentham. has been natural law theory. it is a fairly traditional one: he . is a law. Austin's version of legal positivism. David Hume. The modern reader is forced to fill in much of the meta-theoretical. Subtle jurisprudential questions aside. (Bentham 1970. unfortunately. (Austin 1995: Lecture V. Cotterrell 1989: pp. its merit or demerit is another. who justified such lawmaking with natural-law-like justifications (Bentham 1970.though this is not a term Austin used) theory of law. as it cannot be found in the text. whether it be or be not conformable to an assumed standard. In this. is a different enquiry. a "command theory of law" (which will be detailed in the next section) has also been influential. Austin's Views Austin's basic approach was to ascertain what can be said generally. Legal positivism asserts (or assumes) that it is both possible and valuable to have a morally neutral descriptive (or "conceptual" -. which purported to derive moral truths from statements about human nature) (Hume 2000). but are thin in argument. 52-53) 3. though we happen to dislike it. Austin's famous formulation of what could be called the "dogma" of legal positivism is as follows: The existence of law is one thing. by which we regulate our approbation and disapprobation. and legal positivism generally. (Hamburger 1985: pp. or though it vary from the text.opponents in their critical and reform-minded efforts. p. offered a quite different approach to law: as an object of "scientific" study. Whether it be or be not is one enquiry. There were theorists prior to Austin who arguably offered views similar to legal positivism or who at least foreshadowed legal positivism in some way." However. within analytical jurisprudence." 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?). Austin's analysis can be seen as either a paradigm of. 1996). with his amoral view of laws as the product of Leviathan (Hobbes 1996). and their professional training. with his attacks on judicial lawmaking and on those. but insists that a descriptive or conceptual approach to law is valuable. 1996. both on its own terms and as a necessary prelude to criticism. but still with interest. it is a mistake that can still be found in some contemporary legal commentators. or a caricature of. and under what circumstances did citizens have an obligation to obey the law? Austin specifically. the realists were simply mistaken. Austin's efforts to treat law systematically gained popularity in the late 19th century among English lawyers who wanted to approach their profession. in Austin's day as in our own. which actually exists. (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. in that his discussions are dryly full of distinctions. analytical philosophy. in a more serious and rigorous manner (Cotterrell 1989: pp. and Jeremy Bentham. Austin was the first systematic exponent of a view of law known as "legal positivism. Among these would be Thomas Hobbes. about all laws. because Bentham's jurisprudential writings did not appear in an even-roughly systematic form until well after Austin's work had already been published. A law. with his argument for separating "is" and "ought" (which worked as a sharp criticism for some forms of natural law theory. Austen's work was more influential in this area. 178-91)) Second. justificatory work. 157) Third. (The main competitor to legal positivism. like Sir William Blackstone. 79-81).

directly or indirectly. customary law. Austin had no objection to judicial lawmaking. the laws of physics)."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. morality. p. Austin succeeded in delimiting law and legal rules from religion. Austin is not playing the nihilist or the skeptic. p. and the general commands of an employer.g.. nor is he implying that it rarely is.  Rules are general commands (applying generally to a class). international law. man-made law) by analyzing the constituent concepts of his definition. Austin is not arguing that law should not be moral.  The "sovereign" was defined as a person (or collection of persons) who receives habitual obedience from the bulk of the population. and custom. p. 117) As to what is the core nature of law. 163) Nor did Austin find any difficulty incorporating judicial lawmaking into his command theory: he characterized that form of lawmaking.laws prescribing action but without sanctions (a concept Austin ascribes to "Roman [law] jurists"). by their nature. have a sovereign. also excluded from "the province of jurisprudence" were customary law (except to the extent that the sovereign had. and constitutional law) and "laws by remote analogy" (e. Austin also wanted to include within "the province of jurisprudence" certain "exceptions. p." (Austin 1995: Lecture V. adopted such customs as law). and "an evil" to be imposed if that wish is not complied with.  Positive law should also be contrasted with "laws by a close analogy" (which includes positive morality." (Austin 1995: Lecture V." items which did not fit his criteria but should nonetheless be studied with other "laws properly so called": repealing laws. He is merely pointing out that there is much that is law that is not moral.givers. In contrast to his mentor Bentham. whether something is or is not "law" depends on which people have done what: the question turns on an empirical investigation. "The most pernicious laws. convention. and by distinguishing law from other concepts that are similar:  "Commands" involve an expressed wish that something be done. Austin's answer is that laws ("properly so called") are commands of a sovereign. 158). Austin thought that all independent political societies. and it is a matter mostly of power. which Austin called "highly beneficial and even absolutely necessary. and parts of constitutional law. have been and are continually enforced as laws by judicial tribunals. along with the occasional legal/judicial recognition of .  Positive law consisted of those commands laid down by a sovereign (or its agents). but who does not habitually obey any other (earthly) person or institution. like God's general commands. and what makes something law does nothing to guarantee its moral value. and therefore those which are most opposed to the will of God. declarative laws. (These exclusions alone would make Austin's theory problematic for most modern readers. Of course. However. to be contrasted to other law.) Within Austin's approach. 1995: Lecture V." (Austin. 36) In the criteria set out above. (Austin 1995: Lecture I). public international law. laws of honor. He clarifies the concept of positive law (that is. (Austin 1995: Lecture I. not of morality. as contrasted with specific or individual commands ("drink wine today" or "John Major must drink wine"). and "imperfect laws" .

 (Austin was aware of some of these lines of attack.they are arguably about granting power and autonomy. not punishing wrongdoing.A. the rules for making wills. and Hart's theory. and had responses ready. Criticisms As many readers come to Austin's theory mostly through its criticism by other writers (prominently.g. it is another matter whether his responses were adequate. pp. 4. one occasionally sees Austin portrayed as the first "realist": in contrast both to the theorists that came before Austin and to some modern . 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. it seems more distorting than enlightening to reduce all law to one type. can be found in Ronald Dworkin's work (1986)). but emphasized the varying types and functions of legal rules. that of H. it is hard to identify a "sovereign" in Austin's sense of the word (a difficulty Austin himself experienced. in many ways. the weaknesses of the theory are almost better known than the theory itself:  In many societies. 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." was built around the fact that some participants within legal systems "accepted" the legal rules as reasons for action. when he was forced to describe the British "sovereign" awkwardly as the combination of the King. 1994).of the latter.  A "command" model seems to fit some aspects of law poorly (e. and contracts are examples). 5."  More generally. A Revisionist View? Some modern commentators appreciate in Austin elements that were probably not foremost in his mind (or that of his contemporary readers). 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. However. For example.) It should also be noted that Austin's work shows a silence on questions of methodology. Hart revived legal positivism in the middle of the 20 th century (Hart 1958. Hart).L. while excluding other matters (e..g. Austin was blazing a new path. given the early stage of jurisprudence. However. When H. as the "tacit commands" of the sovereign. 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. As discussed in an earlier section. though this may be forgivable. For example. (Austin 1995: Lecture 1. international law) which we are not inclined to exclude in the category "law. trusts. the sovereign's affirming the "orders" by its acquiescence. 35-36). and all the electors of the House of Commons). rules which grant powers to officials and to private citizens . the House of Lords.. such a re-characterization this misses the basic purpose of those sorts of laws . that law should be interpreted as if it derived from a single will.A.customs by judges. grounded partly on the distinction between "obligation" and "being obliged. Additionally.L.  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. above and beyond the fear of sanctions.

however distant such a reading may be from Austin's own liberal-utilitarian views at the time of his writing. objectively derived from the nature of human beings. Cotterrell 1989: pp. 57-79) When circumstances seem to warrant a more critical. the moral standards that govern human behavior are. Conceptual Naturalism o II.1 The Project of Conceptual Jurisprudence o II. Austin is seen as having a keener sense of the connection of law and power. There are a number of different kinds of natural law theories of law. from considerations having to do with the moral merit of those standards.writers on law. and the importance of keeping that connection at the forefront of analysis. 1985) Natural Law The term 'natural law' is ambiguous. despite the fact that the core claims of the two kinds of theory are logically independent. (Hamburger.2 Classical Natural Law Theory  III. It refers to a type of moral theory. According to natural law legal theory. Fuller  Ronald Dworkin's "Third Theory"  Sources . Austin's equation of law and force will be attractive . According to natural law ethical theory. at least in part. as well as to a type of legal theory. differing from each other with respect to the role that morality plays in determining the authority of legal norms. and his even more conservative political views later in his life. skeptical or cynical approach to law and government. the authority of at least some legal standards necessarily derives. Two Kinds of Natural Law Theory  II. The Procedural Naturalism of Lon L. in some sense. Table of Contents  I. The Substantive Neo-Naturalism of John Finnis  IV. (cf.

St. Thus. 190: "the truth of any moral proposition lies in its correspondence with a mind. indeed. Strictly speaking. 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. Aquinas derives the moral law from the nature of human beings (thus. then. or entailed by. . Moore 1992. many natural law moral theorists are also natural law legal theorists. Thomas Aquinas. 1).I. moral propositions can be objectively true or false. identifies the rational nature of human beings as that which defines moral law: "the rule and measure of human acts is the reason. "natural law"). pain and pleasure. Geoffrey Sayre-McCord (1988). e. strictly speaking. denied the Overlap Thesis but held something that resembles a natural law ethical theory. Otherwise put. he accepted an objectivist moral theory. it is important to distinguish two kinds of theory that go by the name of natural law. But there is another kind of natural law theory having to do with the relationship of morality to law. It is for them alone to point out what we ought to do. natural law moral theory is committed only to the objectivity of moral norms. According to natural law theory of law. Q. moral propositions have what is sometimes called objective standing in the sense that such propositions are the bearers of objective truth-value. A. Indeed. it is morally appropriate that they should behave in a way that conforms to their rational nature. As an empirical matter. John Austin. on the other the chain of causes and effects. On this common view. a commitment to natural law theory of morality is consistent with the denial of natural law theory of law.. are fastened to their throne" (Bentham 1948. which is the first principle of human acts" (Aquinas. even when there is no convention that makes moral merit a criterion of legal validity.90. On the one hand the standard of right and wrong. but not the only form. One can deny natural law theory of law but hold a natural law theory of morality. for example. as Bentham once wrote. ST I-II. for example. on Sayre-McCord's view. First. the relationship between the two theories is controversial. The first is a theory of morality that is roughly characterized by the following theses. but on the logical relationship in which they stand to moral standards. as well as to determine what we shall do. for example. "nature has placed mankind under the governance of two sovereign masters. since human beings are by nature rational beings. all subscribe to the thesis that there are at least some laws that depend for their "authority" not on some pre-existing human convention. Thus. views moral objectivism as one species of moral realism. some norms are authoritative in virtue of their moral content. are logically independent. Though there are different versions of natural law theory.I). Mill and Jeremy Bentham. the nature of the world and the nature of human beings.and convention-independent moral reality").S. The second thesis constituting the core of natural law moral theory is the claim that standards of morality are in some sense derived from. there is no clean division between the notion of law and the notion of morality. Here it is worth noting that utilitarians sometimes seem to suggest that they derive their utilitarianism from certain facts about human nature. the most influential of the early legal positivists. The idea that the concepts of law and morality intersect in some way is called the Overlap Thesis. but the two theories. Austin inherited his utilitarianism almost wholesale from J. But while Austin thus denied the Overlap Thesis. that is. Though moral objectivism is sometimes equated with moral realism (see.g. moral subjectivism and moral intersubjectivism are also forms of moral realism. Two Kinds of Natural Law Theory At the outset.

in part. While this task is usually interpreted as an attempt to analyze the concepts of law and legal system. As John Austin describes the project. (2) to stipulate meanings. and (4) divine law. As Brian Leiter (1998) points out. the notion of law cannot be fully articulated without some reference to moral notions. Bix takes conceptual analysis in law to be primarily concerned with (3) and (4). such as ethical norms. For this reason. project in contemporary legal theory. Aquinas distinguishes four kinds of law: (1) eternal law. the precepts of divine law are disclosed only through divine revelation. etc. Conceptual Naturalism II. 22) puts it. conceptual jurisprudence seeks "the essence or nature which is common to all laws that are properly so called" (Austin 1995. chemical. In any event. but also hold a form of ethical subjectivism (or relativism). The remainder of this essay will be exclusively concerned with natural law theories of law. which asserts that there is some kind of non-conventional relation between law and morality. On this peculiar view. One cannot discover divine law by natural reason alone. . one can "think of eternal law as comprising all those scientific (physical. to reproduce the demands of morality. as Susan Dimock (1999. (2) natural law. 11).Conversely. then. II.2 Classical Natural Law Theory All forms of natural law theory subscribe to the Overlap Thesis. II. and (4) to establish an evaluative test for the concept-word. The strongest construction of the Overlap Thesis forms the foundation for the classical naturalism of Aquinas and Blackstone. Though the Overlap Thesis may seem unambiguous. One could. (3) human law. there are a number of different ways in which it can be interpreted. Thus." Divine law is concerned with those standards that must be satisfied by a human being to achieve eternal salvation. 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. (3) to explain what is important or essential about a class of objects. conceptual analysis of law remains an important. biological. Conceptual theories of law have traditionally been characterized in terms of their posture towards the Overlap Thesis. hold that the conceptual point of law is. one could. Eternal law is comprised of those laws that govern the nature of an eternal universe.) 'laws' by which the universe is ordered. there is some confusion as to both the value and character of conceptual analysis in philosophy of law.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. most other areas in philosophy have taken a naturalistic turn. Accordingly. 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. if controversial. psychological. for example. philosophy of law is one of the few philosophical disciplines that takes conceptual analysis as its principal concern. though this would be unusual. the conceptual point of law would be to enforce those standards that are morally valid in virtue of cultural consensus. Brian Bix (1995) distinguishes a number of different purposes that can be served by conceptual claims: (1) to track linguistic usage. natural law theory of law is logically independent of natural law theory of morality. According to this view. To clarify the role of conceptual analysis in law. accept a natural law theory of law without holding a natural law theory of morality. incorporating the tools and methods of the sciences.

frequently enforced against persons. The idea that a norm that does not conform to the natural law cannot be legally valid is the defining thesis of conceptual naturalism. I shall be tried and condemned. that is to say. in pursuance of the law of which I have impugned the validity (Austin 1995. As Austin petulantly put the point: Now. 41).. "This law of nature. according to Aquinas. There will still be coordination problems (e. 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. As William Blackstone describes the thesis. or positively beneficial. 158). this claim does not imply that the law is exhausted by the set of moral principles. an unjust law is really no law at all. it has often been pointed out that. to say that human laws which conflict with the Divine law are not binding. that it is contrary to the law of God. which side of the road to drive on) that can be resolved in any number of ways consistent with the set of moral principles. . In this passage. being co-eval with mankind and dictated by God himself. are not laws.The natural law is comprised of those precepts of the eternal law that govern the behavior of beings possessing reason and free will. is of course superior in obligation to any other.II). in all countries.e. is to talk stark nonsense. the Court of Justice will demonstrate the inconclusiveness of my reasoning by hanging me up. Suppose an act innocuous. and if I object to the sentence. Of course. Here it is worth noting that Aquinas holds a natural law theory of morality: what is good and evil. mediately or immediately. is the somewhat vacuous imperative to do good and avoid evil. and all their authority. But if in any point it deflects from the law of nature. and therefore those which are most opposed to the will of God. Good and evil are thus both objective and universal. have been and are continually enforced as laws by judicial tribunals. if I commit this act. according to Aquinas. be prohibited by the sovereign under the penalty of death. To paraphrase Augustine's famous remark. Q. It is binding over all the globe. the classical naturalist does not deny that human beings have considerable discretion in creating natural law.95. and such of them as are valid derive all their force. is derived from the rational nature of human beings. It should be noted that classical naturalism is consistent with allowing a substantial role to human beings in the manufacture of law. 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. Critics of conceptual naturalism have raised a number of objections to this view. Thus. from this original" (1979. who has commanded that human lawgivers shall not prohibit acts which have no evil consequences. The most pernicious laws. 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. The first precept of the natural law. and at all times: no human laws are of any validity. unjust laws are all-too. contra Augustine. A. 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. a human law (i. First.g. But Aquinas is also a natural law legal theorist.. and 2) all valid laws derive what force and authority they have from the natural law. it is no longer a law but a perversion of law" (ST I-II. On his view. as Brian Bix (1999) points out. While the classical naturalist seems committed to the claim that the law necessarily incorporates all moral principles. that which is promulgated by human beings) is valid only insofar as its content conforms to the content of the natural law. if contrary to this.

The Substantive Neo-Naturalism of John Finnis John Finnis takes himself to be explicating and developing the views of Aquinas and Blackstone. If we really want to think about the law from the moral point of view. this is a legitimate ground of moral criticism: given that the norm being enforced by law is unjust." This only indicates that we do not think that the title in this case carries with it all the implications it usually does. the state commits wrong by enforcing that norm against private citizens. who had the necessary degrees and credentials." As we might say of some professional. Second. inasmuch as conformity with natural law is a necessary condition for legal validity. Bix rejects the interpretation of Aquinas and Blackstone as conceptual naturalists. the long history of construing Aquinas and Blackstone as conceptual naturalists. Thus. 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. conceptual naturalism does not foreclose criticism of those norms that are being enforced by a society as law. ensures that this practice is likely. A conceptual theory of law can legitimately be criticized for its failure to adequately account for the pre-existing data. Following John Finnis (1980). along with its pedagogical value in developing other theories of law. Finnis believes that the naturalism of Aquinas and Blackstone should not be construed as a .g. III. and more importantly. The project motivating conceptual jurisprudence. 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. as it were. Thus. but it cannot legitimately be criticized for either its normative quality or its practical implications. As Jules Coleman and Jeffrey Murphy (1990.naturalism of John Finnis discussed below in Section III. it follows. the legal validity of a norm necessarily entails its moral justice. all valid law is. 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. Conceptual jurisprudence assumes the existence of a core of social practices (constituting law) that requires a conceptual explanation. Bix construes Aquinas and Blackstone as having views more similar to the neo. for better or worse.Another frequently expressed worry is that conceptual naturalism undermines the possibility of moral criticism of the law. Similarly. 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. while a plausible case can be made in favor of Bix's view. Thus. it may obscure the task if we see law and morality as essentially linked in some way. that it is not legally valid. by definition. 226). is to articulate the concept of law in a way that accounts for these pre-existing social practices. Moral criticism and reform of law may be aided by an initial moral skepticism about the law.. but seemed nonetheless to lack the necessary ability or judgment: "she's no lawyer" or "he's no doctor. 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. to continue indefinitely. morally just. A more interesting line of argument has recently been taken up by Brian Bix (1996). then. 18) put the point: The important things [conceptual naturalism] supposedly allows us to do (e. Nevertheless. according to conceptual naturalism. There are a couple of problems with this line of objection. First. on this line of reasoning. Like Bix.

the classical naturalists were not concerned with giving a conceptual account of legal validity. an unjust law can be legally valid. on Finnis's view. Finnis's naturalism is both an ethical theory and a theory of law. on this view.ordination problems" (Finnis 1980. or meet fully. on this view. Finnis sums up his theory of law as follows: The term 'law' . even when those laws cannot be deduced from those principles" (Finnis 1980. According to Finnis. friendship. or overriding co-ordination solutions from any other institutions or sources of norms) for the common good of that community (Finnis 1980. be valued for its own sake and not merely for the sake of some other good it can assist in bringing about. on this view. of furthering the common good by stipulating solutions to a community's co. On Finnis's view of the Overlap Thesis. according to Finnis. tolerating. but is not fully law. 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. Finnis distinguishes a number of equally valuable basic goods: life. An unjust law. standardly. Finnis believes that to the extent that a norm fails to satisfy these conditions.. each of these goods is universal in the sense that it governs all human cultures at all times. play. it appears that Finnis's natural law theory is compatible . is legally binding. this ensemble of rules and institutions being directed to reasonably resolving any of the community's co-ordination problems (and to ratifying. Thus. but they may fail to provide moral reasons for action of the sort that it is the point of legal authority to provide. Moreover. Accordingly. in accordance with regulative legal rules. and aesthetic experience. for better or worse. an unjust law fails to realize the moral ideals implicit in the concept of law. health. given human nature. Unjust laws may obligate in a technical legal sense. religion. is to give ethical structure to the pursuit of these basic goods. but such plausibility comes. constituted as an institution by legal rules) for a 'complete' community. the essential function of law is to provide a justification for state coercion (a view he shares with Ronald Dworkin). Again. 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. it likewise fails to fully manifest the nature of law and thereby fails to fully obligate the citizen-subject of the law. The point of moral principles. 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. Like classical naturalism. Nevertheless. thus. 23-24). and thus the responsibility. Finnis's theory is certainly more plausible as a theory of law than the traditional interpretation of classical naturalism.. but it cannot provide an adequate justification for use of the state coercive power and is hence not obligatory in the fullest sense. "is the fact that he has the opportunity. has intrinsic value in the sense that it should. or out of malice against some person or group" (Finnis 1980. knowledge. at the expense of naturalism's identity as a distinct theory of law. one or other of the elements of the definition" (Finnis 1980. 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. 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. refer[s] primarily to rules made. regulating. and buttressed by sanctions in accordance with the rule- guided stipulations of adjudicative institutions. For the ultimate basis of a ruler's moral authority. 352). On Finnis's view. by a determinate and effective authority (itself identified and. 351). Each of these goods. Thus.conceptual account of the existence conditions for law. Indeed. 276). 278).

and (P8) the rules must be administered in a manner consistent with their wording. 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. inasmuch as Finnis's view is compatible with a source-based theory of legal validity. To the extent that a definition of law can be given. On Fuller's view. since lawmaking is essentially purposive activity. Thus. 106).with naturalism's historical adversary. then. 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. The Procedural Naturalism of Lon L. laws that are technically valid in virtue of source but unjust do not. 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. 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. according to Finnis. Lon Fuller (1964) rejects the conceptual naturalist idea that there are necessary substantive moral constraints on the content of law. (P5) the rules must be consistent with one another. . Fuller concludes that his eight principles are "internal" to law in the sense that they are built into the existence conditions for law. But Fuller. particular human activities can be understood only in terms that make reference to their purposes and ends. 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. it must include the idea that law's essential function is to "achieve social order through subjecting people's conduct to the guidance of general rules by which they may themselves orient their behavior" (Fuller 1965. legal positivism. for example. 657). unlike Finnis. believes that law is necessarily subject to a procedural morality. (P2) the rules must be publicly promulgated. A system of rules that fails to satisfy (P2) or (P4). Fuller Like Finnis. Accordingly. Indeed. fully obligate the citizen. cannot guide behavior because people will not be able to determine what the rules require. Unlike most modern theories of law. Finnis (1996) believes that Aquinas's classical naturalism fully affirms the notion that human laws are "posited. (P3) the rules must be prospective in effect. Insofar as human activity is essentially purposive. (P7) the rules must not be changed so frequently that the subject cannot rely on them. (P4) the rules must be expressed in understandable terms. according to Fuller." Back to Table of Contents IV. On Fuller's view. this view treats law as an activity and regards a legal system as the product of a sustained purposive effort (Fuller 1964. (P6) the rules must not require conduct beyond the powers of the affected parties.

it follows that they are distinct from moral standards. a procedural version of natural law .. not with the substantive aims of legal rules. The crucial objection to the designation of these principles of good legal craftsmanship as morality. Fuller's procedural naturalism is vulnerable to a number of objections. Thus. according to Fuller.. Thus. Similarly.These internal principles constitute a morality. it follows. Since no system of rules can achieve these morally valuable objectives without minimally complying with the principles of legality. Second." is that it perpetrates a confusion between two notions that it is vital to hold apart: the notions of purposive activity and morality. Nevertheless. in spite of the qualification "inner. Hart overlooks the fact that most of Fuller's eight principles double as moral ideals of fairness.L. denies Fuller's claim that the principles of legality constitute an internal morality. H. is conceptually disqualified from being legally valid. On Hart's view. First. 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 . Fuller identifies the conceptual connection between law and morality at a higher level of abstraction than the classical naturalists. But insofar as such standards of efficacy conflict with morality. we take it for granted that it is wrong for a state to enact retroactive rules. which makes him a conceptual naturalist. 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. public promulgation in understandable terms may be a necessary condition for efficacy. Poisoning is no doubt a purposive activity. it results in something that is not properly called a legal system at all" (Fuller 1964. The classical naturalists view morality as providing substantive constraints on the content of individual laws. Hart. 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. while Hart concedes that something like Fuller's eight principles are built into the existence conditions for law.) 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. Since these moral principles are built into the existence conditions for law. Fuller confuses the notions of morality and efficacy: The author's insistence on classifying these principles of legality as a "morality" is a source of confusion both for him and his readers. 1285-86). like the classical naturalists and unlike Finnis. they are internal and hence represent a conceptual connection between law and morality. 96.. In contrast. 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. 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. an unjust norm. For example. including virtuous acts like lawmaking and impermissible acts like poisoning. [in the sense that it is] concerned. according to Hart. 39). that they constitute a morality. Fuller's conceptual naturalism is fundamentally different from that of classical naturalism. inconsistent . for example. all actions.97). as they do in the case of poisoning.. Fuller rejects the classical naturalist view that there are necessary moral constraints on the content of law. on Fuller's view. ("Avoid poisons however lethal if they cause the victim to vomit". on this view.A.. but it is also a moral ideal. he concludes they do not constitute a conceptual connection between law and morality. Fuller subscribes to the strongest form of the Overlap Thesis. have their own internal standards of efficacy. and reflections on its purpose may show that it has its internal principles.. Unfortunately..

185-186). according to the Separability Thesis. but they are inconsistent with a legal system only when they render a legal system incapable of performing its essential function of guiding behavior. 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. there is no conceptual overlap between the notions of law and morality. Palmer. claiming that the social facts giving rise to legal validity are authoritative in virtue of a social convention. the Conventionality Thesis.rules. The Social Fact Thesis asserts it is a necessary truth that legal validity is ultimately a function of certain kinds of social facts. For the Riggs judges would "rightfully" have been criticized had . These divergences may always be prima facie objectionable. but such standards are distinguishable from the principles of legality in that they conflict with moral ideals. though in fact they have often done so" (Hart 1994. Insofar as these principles are built into the existence conditions for law. for example. As Hart more narrowly construes it. The Conventionality Thesis emphasizes law's conventional nature. On Dworkin's view. p. the Riggs court was not just reaching beyond the law to extralegal standards when it considered this principle. In Riggs v. 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. 29). As Fuller would likely acknowledge. Fuller's principles operate internally. simply denies naturalism's Overlap Thesis. are necessarily promulgated in general terms that inevitably give rise to problems of vagueness. 40). On this view. neither the statutes nor the case law governing wills expressly prohibited a murderer from taking under his victim's will. for example. 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. especially formal promulgation by a legislature. at the most general level. Despite this. for example. 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. 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. 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. Nevertheless. Back to Table of Contents Ronald Dworkin's "Third Theory" Ronald Dworkin's so-called third theory of law is best understood as a response to legal positivism. Thus. Legal standards. And officials all too often fail to administer the laws in a fair and even-handed manner even in the best of legal systems. Constitution is authoritative in virtue of the conventional fact that it was formally ratified by all fifty states. the court considered the question of whether a murderer could take under the will of his victim. In deciding hard cases. it is because they operate as efficacy conditionsóand not because they function as moral ideals. the U. The Separability Thesis. and rules that require what is impossible. the existence of a legal system is consistent with considerable divergence from the principles of legality. which is essentially constituted by three theoretical commitments: the Social Fact Thesis.S. Poisoning may have its internal standards of efficacy. the idea here is that what ultimately explains the validity of a law is the presence of certain social facts. but merely as principles of efficacy. for example. and the Separability Thesis. At the time the case was decided. On Dworkin's view. not as moral ideals.

thus. 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. that . that is. 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. in principles of political morality. there would be no rightful grounds to criticize a failure to consider it (Dworkin 1977. insofar as it maximally conduces to the best moral justification for a society's legal practices considered as a whole. perhaps special way: by trying to find the best justification they can find. On Dworkin's view. according to Dworkin. 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. And this is a process. and then suppose that if more than one interpretation of some part of the law meets this threshold. that "must carry the lawyer very deep into political and moral theory.they failed to consider this principle. since an interpretation is successful insofar as it justifies the particular practices of a particular society. which better promotes the political ideals he thinks correct (Dworkin 1982. adjudication is and should be interpretive: [J]udges should decide hard cases by interpreting the political structure of their community in the following. two elements of a successful interpretation. As Dworkin conceives it. Accordingly. Dworkin goes so far as to claim. for example. 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. 171). a rough "threshold" of fit which any interpretation of data must meet in order to be "acceptable" on the dimension of fit. Accordingly. 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. 165). Second. somewhat implausibly. Further. if it were merely an extralegal standard. not through further and more precise comparisons between the two along that dimension. the legal authority of the Riggs principle can be explained wholly in terms of its content. the judge must approach judicial decision-making as something that resembles an exercise in moral philosophy. from the most profound constitutional rules and arrangements to the details of. it must present them in the best possible moral light. in part. according to Dworkin. since an interpretation provides a moral justification for those practices. but by choosing the interpretation which is "substantively" better. Thus. 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. Dworkin concludes that the best explanation for the propriety of such criticism is that principles are part of the law. the choice among these should be made. There are. and (2) the principle is the most morally attractive standard that satisfies (1). 35)." Indeed. for example. for example. First. the private law of tort or contract (Dworkin 1982. in later writings. 41). 66). A moral principle is legally authoritative. for the structure as a whole. then. The correct legal principle is the one that makes the law the moral best it can be. on Dworkin's view. the interpretation must fit with those practices in the sense that it coheres with existing legal materials defining the practices. The Riggs principle was binding.

D. insofar as judicial decisions necessarily adjudicate claims of right. In contrast. What I want to do here is merely sketch out a general presentation of natural law theory. if they act in accordance with reason. with the hope that the reader will become interested enough to pursue further study of it. however. 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 remains the judge's duty. 90). Each contradicts the Conventionality Thesis insofar as judges are bound to interpret posited law in light of unposited moral principles. 82). The concept of natural law has taken several forms. they will be "following nature. they further argued that all humans have reason within them and can therefore know and obey its law. 81). An appeal to a pre-existing right. can ultimately be justified only by an argument of principle. 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 Overview of Natural Law Theory by Jonathan Dolhenty. In "Hard Cases. even in hard cases. Stoicism provided the most complete classical formulation of natural law. let's take a brief look at some history." Dworkin distinguishes between two kinds of legal argument. Ph. or rational principle. Thus." . they must ultimately be based on the moral principles that figure into the best justification of the legal practices considered as a whole. arguments of principle "justify a political decision by showing that the decision respects or secures some individual or group right" (Dworkin 1977. Most importantly. courts may not pursue such arguments in deciding cases. Natural law theory is one of the most important theories in the philosophy of Classical Realism. On Dworkin's view. Notice that Dworkin's views on legal principles and judicial obligation are inconsistent with all three of legal positivism's core commitments. one party may nevertheless have a right to win. Before we get into an overview of the nature of natural law theory itself. while the legislature may legitimately enact laws that are justified by arguments of policy. according to which judicial decisions always enforce pre-existing rights: "even when no settled rule disposes of the case."any judge's opinion is itself a piece of legal philosophy. It is his denial of the Separability Thesis that places Dworkin in the naturalist camp. Because human beings have the faculty of choice (a free will). 82). 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. Dworkin believes his theory of judicial obligation is a consequence of what he calls the Rights Thesis. even when the philosophy is hidden and the visible argument is dominated by citation and lists of facts" (Dworkin 1986. 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. I will provide a link to more in-depth resources at the end of this essay. according to Dworkin. The idea began with the ancient Greeks' conception of a universe governed in every particular by an eternal. to discover what the rights of the parties are. The Stoics argued that the universe is governed by reason. not to invent new rights retrospectively" (Dworkin 1977. 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. immutable law and in their distinction between what is just by nature and just by convention. they will not necessarily obey the law.

and the historical school of jurisprudence became dominant. the formal legal enactments of a particular society. What do we mean by "natural law"? In its simplest definition. With this contemporary interest in mind. and in this service reason is sometimes called "conscience. Thomas Jefferson used the natural law theory to justify his trinity of "inalienable rights" which were stated in the United States Declaration of Independence. we can say that the natural law:  is not made by human beings. Like the Stoics. and we mentally pronounce upon their agreement or disagreement with the natural law. identifying natural law with the law of God. From this argument. Since law must always be some dictate of reason. yet insecure in their freedom. natural law is that "unwritten law" that is more or less the same for everyone everywhere. Human. natural law is the concept of a body of moral principles that is common to all humankind and. by the thinking mind. Such a pronouncement may be called a "judgment of conscience. materialism. 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. This natural rights theory provided a philosophical basis for both the American and French revolutions. then. To sum it up. Natural law theory eventually gave rise to a concept of "natural rights. In fact. positivism. is recognizable by human reason alone.those dictated by reason alone are those which enable them to live in harmony with one another. Lastly. however.  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. With the secularization of society resulting from the Renaissance and Reformation. Thus the rules that are "natural" to them -. In the 20th century. To be more exact.and provides a standard for -- positive law. inevitably see them in their relation to the natural law. The 17th-century Dutch jurist Hugo Grotius believed that humans by nature are not only reasonable but social. When they enter society they surrender only such rights as are necessary for their security and for the common good." We. Our normal and natural grasp of the natural law is effected by reason. in all our human acts. Each individual retains fundamental prerogatives drawn from natural law relating to the integrity of person and property (natural rights). Aquinas believed that a positive law that violates natural law is not true law. For Thomas Aquinas." The "norm" of morality is the natural law as applied by conscience. . that is. Natural law is therefore distinguished from -. natural law theory found a new basis in human reason.Christian philosophers readily adapted Stoic natural law theory. or positive. it is law discovered by human reason. natural law theory has received new attention." John Locke argued that human beings in the state of nature are free and equal. law is the application of natural law to particular social circumstances. by the way. partly in reaction to the rise of totalitarianism and an increased interest in human rights throughout the world. as generally posited. 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.  is based on the structure of reality itself. let's now turn to our attention to the natural law theory as understood by the tradition of Classical Realism. natural law also will be some dictate of reason. During the 19th century natural law theory lost influence as utilitarianism and Benthamism. Grotius developed the first comprehensive theory of international law.

the Principle of Contradiction cannot be "proved. Strictly speaking. the primary principle of the practical order -." In other words. It is interesting to note that virtually everyone seems to have some knowledge of natural law even before such knowledge is codified and formalized.  may be obscure to the knower.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." It must be accepted as an absolute "intuitive" or self-evident truth. of course. Now. A human being naturally inclines to seek what appears good to reason. Hence. And our understanding of natural law becomes more precise as we consider and codify the principles or precepts of natural law. Those readers familiar with Classical Realism will recall that there is an absolutely first and indemonstrable principle in the speculative order of things. from which we derive other basic principles such as Identity and Excluded Middle. nevertheless we always act in terms of such a precept. the truth of which is shown by an analysis of the terms of the Principle and the impossibility of thinking the opposite.  is not always given expression in concepts. a knowledge which:  follows on the "lived experience" of the truth. our reflection on our own conduct gives rise to the explicit formulation of the precepts of the natural law." These are examples of what is called "connatural knowledge. Therefore." When doing so. they are spontaneously invoking the natural law." justice. The primary precept of natural law will be the most basic principle about human action that can be formulated.  is the naturally knowable moral law." 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). and naturally shrinks from what appears to be evil. "Do good and avoid evil. 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." since we act in terms of what a least seems good to us. and so on are subject to a rigorous investigation and rationalization. This fact points to the fundamental truth of such a precept. The simplest statement of this precept is. We as human beings put our "commonsense" notions of natural law under "critical examination." that is." and older children and adults often apply the "golden rule.the first precept of natural law -.  is a means by which human beings can rationally guide themselves to their good. our natural impulses toward "fair play. the justification of speaking of this basic moral law as "natural" law. Even young children make an appeal to "fair play. and it will be concerned with the "good. This is why many proponents of the natural law theory say it is the law which is "written upon the hearts of men. 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. there is an absolutely basic. and evil (what is contrary to reason) must be avoided. and indicates how it expresses something "natural" to human beings. This is the Principle of Contradiction. . That is.  is overlaid with elements from the affective or feeling side of man's nature.  is the living contact of the intellect with reality itself." demand that things be "fair and square.

to live in society. In the modern period. Do we know everything about the natural law? This is a common question asked and a good one. by which a . is incomplete. St. These primary precepts are unchangeable to the extent they concern the primary ends of the natural inclinations inherent in all human beings. the existence of natural law was asserted by the Stoics (see Stoicism). who held that what was “just by nature” was not always the same as what was “just by law. 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"). Paul.Upon further reflection. and Thomas Hobbes defined a law of nature as “a precept of general rule found out by reason. The most fundamental inclination of all. I hope I have interested you to seek more knowledge about this fascinating theory. Hugo Grotius insisted on the validity of natural law even on the assumption that God does not exist. and the demands of hospitality. On the negative side. so too for the laws of moral nature. NATURAL LAW In jurisprudence and political philosophy. The secondary precepts. Out of this reflection will come new and refined "truths" regarding ethics and moral philosophy. and so on. St. We now know that slavery violates the natural law. and the stability of family life. deliberate injury to others. personally. The primary precepts will correspond to the order of natural inclinations in human beings. particularly regarding its secondary precepts. Moreover. I have suggested some resources which should help you in your investigation." The discovery of the natural law is a continuously unfolding enterprise. will always be involved in a "critical examination" of our actions in the practical order. Among these are such precepts as those regarding the education of children. We now know that judicial slavery violates the natural law. In fact. Augustine. primary and secondary precepts. within natural law. St. The answer is a simple "No. a system of right or justice common to all humankind and derived from nature rather than from the rules of society. The concept can be traced to Aristotle. especially. or positive law. The passage of time and additional philosophical reflection always raises new issues in natural law theory. Just as it took human beings a long time to separate out and clarify the laws of physical nature. Society once accepted judicial torture as being normal and natural. Thomas Aquinas. The primary precepts are very general in their formulation. on the other hand. We. Cicero. and probably will always be incomplete. we can distinguish. See: Dr. as civilized and rational human beings. slavery was once accepted as normal and natural even by many who subscribed to natural law theory. The obvious conclusion here is that our knowledge of natural law. the Roman jurists. 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. in the tradition of Classical Realism. we also have secondary precepts regarding the neglect of children. and to know truths about the reality we live in and our own human nature." will give rise to other primary precepts such as the natural inclination to self-preservation. John Duns Scotus. If you want to learn more. And. "Do good and avoid evil. Gratian. are more particular or specific and are concerned with things to which we are not inclined so immediately. I am convinced that one day our society will "discover" that capital punishment violates natural law and we will abolish it. I hope you have some general knowledge of natural law theory as a result of this brief overview. William of Ockham. For instance. Dolhenty's Recommended Bookshelf For Natural Law Theory.” In one form or another. to avoid harm to others. and Francisco Suárez. of course.

and resistance to oppression as “imprescriptible natural rights. After graduating from the University of Oxford he became a tutor and traveled with his pupil in Europe. He later turned to political theory. sociological. and that. The theoretical branch evaluates and criticizes law in terms of the ideals or goals postulated for it. It stressed duty and held that. The son of a vicar who abandoned his family. but it is most closely associated with the writings of Thomas Hobbes. Westport. Stoicism was founded at Athens by Zeno of Citium c. Hardwick Hall. and prescribes the methods that best enable one to view the legal order as an internally consistent. The original inspiration for the notion may derive from the biblical covenant between God and Abraham. and later writers almost invariably talked of human rights rather than natural rights. through reason.” 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.man is forbidden to do that which is destructive of his life. and Marcus Aurelius. Hobbes was raised by his uncle. security. Jurisprudence may be divided into three branches: analytical. Derbyshire English philosopher and political theorist. Declaration of Independence refer only briefly to “the Laws of Nature” before citing equality and other “unalienable” rights as “self-evident. The analytical branch articulates axioms. The authors of the U. 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. Eng. defines terms. one can emulate the grandeur of the calm and order of the universe by learning to accept event s with a stern and tranquil mind and to achieve a lofty moral worth. STOICISM School of philosophy in Greco-Roman antiquity. however. and theoretical. where he engaged Galileo in philosophical discussions on the nature of motion. partly as a result of skeptical attacks by Jeremy Bentham and other proponents of utilitarianism. but his support for absolutism put him SOCIAL CONTRACT Actual or hypothetical compact between the ruled and their rulers. logical system. 1679. Wiltshire. as fundamentally rational.” The French Declaration of the Rights of Man and of the Citizen asserts liberty. and . John Locke.” Interest in the concept of natural law declined dramatically in the 19th century. Its teachings have been transmitted to later generations largely through the surviving books of Cicero and the Roman Stoics Seneca. 1588. mankind can come to regard the universe as governed by fate and. despite appearances. it was revived in the mid-20th century in light of the crimes committed by the Nazi regime during World War II.S. Skepticism of natural law and natural rights remained strong. Epictetus. Thomas Hobbes Born April 5. 300 BC and was influential throughout the Greco-Roman world until at least AD 200. property. 4. 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. Inspired by the teaching of Socrates and Diogenes of Sinope. died Dec. Jean-Jacques Rousseau postulated a savage who was virtuous in isolation and actuated by two principles “prior to reason”: self- preservation and compassion. in regulating one's life.

In their essays. Since natural law is good. He obviously does not think very highly man.Jean-Jacques Rousseau. this equality exists in a state of war. In general. Hobbes and Locke disagree on mankinds natural characteristics. because they are all equal in their level of rottenness. and short. Locke views mankinds natural characteristics much more optimistically. natural law. Thomas Hobbes and John Locke were two main political philosophers during the seventeenth century. Locke sees men as being governed according to reason. In Hobbess opinion. For Hobbes. Hobbes reasons that people will abide by the laws the government sets. For Hobbes on the other hand. However. Hobbes sees man as being evil. no one is superior. 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. speech. it is therefore the role of government to preserve natural law. their ideas of natural law differ greatly. whereas Locke views man in a much more optimistic light. for fear of some evil consequence. Locke does admit that war is sometimes necessary. government must exist in order to control natural law. but that one may only destroy a man who makes war upon him. and on the contrary. and the purpose and structure of government. However he writes. in surrendering their individual freedom. without the need for constant war. Hobbes is the well known author of Leviathan. brutish. Thomas Hobbes and John Locke Thomas Hobbes and John Locke. The two men have very different opinions of the characteristics of man. which they lack in the warlike “state of nature” posited to exist before the contract is made. where they agreed and disagreed concerning nature. Locke believed that rulers also were obliged to protect private property and the right to freedom of thought. Locke agrees that in natural law. they acquire political liberty and civil rights within a system of laws based on the “general will” of the governed. and Locke is the author of An Essay Concerning Human Understanding. The main thing that Hobbes and Locke can seem to agree on. is that all men are equal in nature. and worship. Conversely. Locke on the other hand. and the nature of man in a state of war. He also says that it is hard for men to believe there be many so wise as themselves. Hobbes describes the life of man as solitary. no one is superior. capable individuals that can coexist peacefully. Hobbes sees natural law as a state of war in which every man is a enemy to every man. Hobbes and Locke see mankinds natural characteristics in two very different ways. Hobbes sees government as necessary in order to control natural law. Hobbes points out the selfish reasons for why man will follow government in order to . he believes that it is beneficial for humans to follow natural law. both men address the characteristics of man. because even the weakest has strength enough to kill the strongest. natural law. poor. nasty. in which every man has a right to every thing. the state all men are naturally inis a state of perfect freedom equality and liberty. sees natural law as a state of equality and freedom. but the degree of their disagreement grows much larger with respect to natural law. and not evil for Locke. Rousseau held that in the state of nature people are unwarlike but also undeveloped in reasoning and morality. displaying his belief that men are sensible by nature. with respect to natural law. He perceives men to be thinking. and can exist happily according to natural law. They both agree that all men are equal according to natural law. Locke therefore believes that government is necessary in order to preserve natural law. a state of equality. He terms this state of war. The idea of the social contract influenced the shapers of the American Revolution and the French Revolution and the constitutions that followed them. expressing his discontent with how selfish men are.

MARXIST JURISPRUDENCE TUTOR : CHRIS BEHRENS STUDENT: DAVID RISSTROM: 9106105 In the social production of their existence. Indeed. The ideas presented by Hobbes and Locke are often in opposition. or in other words. Moscow: Progress Press. and was the focus of many literary works throughout the Enlightenment. with men being so naturally evil. MARXISM AND LAW Your ideas are but the outgrowth of the conditions of your bourgeois production and bourgeois property. I. social and economic structures.1 Marxist jurisprudence posits that legal relations are determined by the economic base of particular kinds of society and modes of production. To this end. government not only preserves natural law. their ideas were revolutionary for their time. ‘Preface to A Contribution to the Critique of Political Economy’ in Karl Marx and Frederick Engels Selected Works. 24. liberties and estates. its structure. their property. but also works to enhance it. providing the most extensive critique to date of liberal tradition on which many of our legal presuppositions are founded. men inevitably enter into definite relations. Locke sees government. 2 Balbus.. K. The Communist Manifesto. 1989 521. Hobbes tends to take a much more pessimistic stance. as law in the capitalist mode of production is seen as an instrument of class oppression perpetuated as a consequence of its particular historical. viewing men as free and equal and seeing government as only a preservation of the state they are naturally in. a will. natural law. and government as something that can wipe out natural law. . Karl Marx. The totality of these relations constitute the economic structure of society. Law is not of central concern to Marxists jurisprudentialists. whose essential character and direction are determined by the economical conditions of existence in your class. Toronto: Butterworths.. Preface to A Contribution to the Critique of Political Economy. Since natural law is already good. The interest they took in mans natural characteristics.. natural law as a state of war. 2 Marxist thought’s primary focus rests on political economy and the corresponding power relations within society. Locke takes a much more optimistic stance.explain how government is able to work. and the role of government. the real foundation. Karl Marx. wishing to avoid liberal predisposition towards 1 Marx. Despite the difference in their arguments. motivation and consequences for justice and rights from a Marxian jurisprudential perspective. just as your jurisprudence is but the will of your class made into a law for all. Locke believes that people are willing to unite under a form of government so as to preserve their lives. ‘Commodity Form and Legal Form’ in Reasons. namely relations of production appropriate to a given stage in the development of their material forces of production. which are independent of their will. viewing men as evil. 1978 83. The Sociology of Law. as merely a preservation of that which is already good. 521. on which arises a legal and political superstructure and to which correspond definite forms of social consciousness. C. this essay examines law. provided inspiration for.

As “it is not consciousness that determines life. despite Marx and Engels’ failure to develop a systematic approach to law 5.legal fetishism. bourgeoisie and proletariat. 10. F. 1986 686.... H. as well as facilitating predicability in social life. Marxism’s materialist emphasis. K. London: Academic Press. op cit. and Hunt. known as Historical Materialism. H.8 Historic materialism contends that the catalyst behind societal evolution is materially determined. N. 4 Yet. is regarded as “no more than a system of coercion designed to protect bourgeois ownership of the means of production”. 1979.. B. Under increasing industrialisation Marx foresaw crystallisation of society into two classes. is first described in The German Ideology. 10 Marx. 1987 98... 10 3 Collins. and Engels. their consciousness is determined in just the same way. which protects personal and private property rights. . London: Macmillan. Cambridge: Cambridge University Press. A. 1976. Moscow: Progress Publishers. The German Ideology. 7 HISTORICAL MATERIALISM Men have history because they must produce their life. Marxists deny the degree of importance jurisprudence typically affords law in analyses of the composition and determination of social formations. Oxford: Oxford University Press. Laws. law is a reflection of the economic base. K.. from the end of the 15th. as Marx detailed in Capital. Marx and Engels on Law.. and claims of failure in Eastern Europe and the Soviet Union. 49. Marx’s Conception of Man in Capitalist Society. The common law system of criminal and civil law.1976.. assists its contemporary paucity. century: Forcing Down Wages by Acts of Parliament’ in Capital. 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. particularly concerning the notion of alienation and its consequences as outlined by Ollman 6. and because they must produce it moreover in a certain way: this is determined by their physical organisation. ‘Bloody Legislation against the Expropriated. assisted in forcing down wages. Marx. K. The determinist relationship between the economic base and social superstructure. expounded upon the notions of Karl Marx (1818-83) and Friedrich Engels (1820-95). but life that determines consciousness” 9. 3 WHAT IS MARXISM? Marxist theories of political economy.. 1976 42.. Moscow: Progress Press. 4 Barry. consider law an instrument of class oppression that benefits the ruling class through oppression of the proletariat. 5 Cain. 6 Ollman. The German Ideology. 9 Marx. 1989 53. 7 Collins. M. being predicated on contradictions between the forces and means of production. An Introduction to Modern Political Theory. Alienation. 8 Marx. The German Ideology. Marxism and Law. as one element of the social superstructure. rather than the reserve as liberals such as Dworkin would propose.

A. suggest mechanisms analogous to the Factory Acts and Vagrancy Acts remain instruments of the ruling class perpetuating conditions reinforcing this arrangement. seeing law. where speculation ends. is determined by the economic base and the organisation of power in society. H. 1980 140. including but not dominated by law. irrespective of a belief in revolution. Oxford: Oxford University Press. 19 Marx. unlike liberal theory. For Marx.Collins characterises two Marxist approaches. 13 Marcuse. amongst other hegemonic devices. 14 Consequently the societal superstructure. As Marx’s major project was the critique of capitalism. Moscow: Progress Publishers.. crude materialism. 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. 1971 21. Cambridge: Cambridge University Press. as having no legitimate primacy. P. 1977 114. Allen and Unwin. such as Contract. establish modern liberal jurisprudential hegemony. Capitalism and Modern Social Theory: An Analysis of the writings of Marx. 15 Marxist jurisprudence concentrates on the relationship between law and particular historical. favouring the more interactionist. begins. Property and Commercial Law. 1976 38. Contemporary Marxists such as Marcuse. 1968 xv. enter into definite relations of production appropriate to a given stage in the development of the materials forces of production. ‘Theories on Structure Versus Causal Determination’ in Tomasic (ed. 1987 24. 1989 521.. in which law is simply a reflection of the economic base. in which rules emerge because the ruling class want them to. independent of their will. especially in relation to the alienating nature of modern technological rationality. K. 9. 14 Marx. Frequently encountered legal rules and doctrine. Marxism postulates that in the social production of their existence. 11 This distinction continues as an area of debate. 12 The Relative Autonomy Thesis is such a theory. L. 17 Althusser. London: New Left Books. . people. class instrumentalism. Marxism and Law. H. 1971 195.. Oxford University Press.. H. The German Ideology. in which ideas are the product of the human brain in sensory transaction with a knowable material world. 15 Collins. 18 SCIENTIFIC SOCIALISM Marxist epistemology. with dialectic materialism as the centrepiece of Marxism’s scientific claim. is predicated on the existence of the capitalist mode of production. and secondly. Selections from the Prison Notebooks.. 1982 50. K. positive science. Marxism and Law. A. Preface To ‘A Contribution to the Critique of Political Economy’ in Karl Marx and Friedrich Engels Selected Works. 19 Whilst Marx’s materialism does not refer to the assumption of a logically argued ontological position. of the practical progress of development of men. H. Marxism has a great deal to notify us of in our contemporary jurisprudence.) Legislation and Society in Australia. 20 11 Collins.. proclaims in real life. and less conflict premised theory of legislative change. 13 BASE AND SUPERSTRUCTURE IN THE C APITALIST MODE OF PRODUCTION Much of our law. London: Lawrence and Wishart. 12 O’Malley. social and economic structures. 16 Gramsci.. argue Gramsci 16 and Althusser 17. Durkheim and Weber.. Boston: Beacon Press. the representation of the practical activity. Marx adopts an undoubtedly Realist position.. One-Dimensional Man.. 18 Collins. 20 Giddens. op cit..

27 Lukes. or objective consistency as some positivists such as Hart. Marx and Marxisms. justice being dependent on the requirements of a given mode of production. and all morality. morality. but must itself always in turn be explained as arising from and controlling those relations”. 73. S.These claims contrast with those of natural lawyers such as Aquinas who believe religion should normatively guide law. 25 Marx. 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’. Moscow Progress Press. 21 LAW AND THE DICTATORSHIP OF THE PROLETARIAT Law. or perhaps integrity. Morality and Justice’ in Parkinson. religion.. and creating hostility... F. whilst debate as to the scientific credentials of Marxism continue. Nevertheless. Marxism.27 21 Collins. G. J USTICE AND R IGHTS Communism abolishes eternal truths. 26 Wacks. The Communist Manifesto. the proletariat will seize political power and turn the means of production into state property 23.. 22 Engels. . Karl Marx.. “As soon as there is no longer any class to be held in subjection. be achieved. as both inevitable. Cambridge: Cambridge University Press. The Communist Manifesto.. 1987 175.. op cit. 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. as perhaps only Dworkin can fully endorse.”22 Given the scientific nature of Historic Materialism. Moscow: Progress Publishers: 1954 79. instead of constituting them on a new basis. H. K. 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. 1976 51. it abolishes all religion. then according to Marxist jurisprudence. London: Blackstone Press. as soon as class rule and the individual struggle for existence … are removed. R. 18 Marxism saw development of the relations of production dialectically..” 24 COMMUNISM AND THE END OF LAW The meaning of history. and upon recognising the role the state and its laws supply. 24 Ibid. behind which lurk in ambush as many bourgeois interests. 73. 26 Lukes claims Marx believes justice. nothing more remains to be repressed. Socialism: Utopian and Scientific. “Does not provide a set of independent rational standards by which to measure social relations. are to him so many bourgeois prejudices. The German Ideology. will after transition through Socialism. 45. Karl Marx. Accelerated by increased class consciousness. 24 Marxism argues there is no absolute concept of justice. Jurisprudence. 23 Ibid. those desiring utilitarian tendencies such as Austin and Bentham. 1982 197.

with rights only being anti-socialist if individuals are taken to be “inherently and irredeemably self-interested. 1987 101. Justice. Welfare is not a right. 124. T. Whether one agrees with this analysis or not.. London: Academic Press. welfare. fewer and fewer people are concerned about 28 Gamble. Hampshire: Macmillan.” 30 Campbell distinguishes between Socialist and Bourgeois Rights. 32 Campbell. which forbids rich and poor alike to sleep under bridges. A privilege is available on sufferance.. to beg in the streets and to steal bread. A right to employment is meaningless because there is no person who is under a duty to employ. its influence on shaping the society we live in is more significant than most of us realise. rather than the contract based notions such as Pashukanis’ incorporated in his commodity exchange theory of law 31. It is ironic in society today that while more and more people are demanding rights. A right is an entitlement. but in the light of the objectives of social policy. thereby negating the logical connection between rights and justice. 1983 33. Whether you accept the claims of its doctrine.. Right in one person presupposes a duty in another. 22. London: Macmillan. a legal philosopher.. Anatole France (1894) encapsulated this distinction between formal and substantive justice as entitlement. emphasised the relationship between rights and duties and also the difference between right and privilege. ‘Pashukanis and the commodity form theory’ in Sugarman. Legality. . 1988 189.”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. drawing attention to “the majestic egalitarianism of the law. allow protection of the individual 32. It is a discretion vested in the person granting it. R.Marxism believes that rights are simply a bourgeois creation. 1983. T.. it is undeniable that at the commonsense level a right involves a duty in another person or institution. Hohfeld emphasised that there cannot be a right without a duty. 29 Campbell. London: Routledge and Kegan Paul. Likewise he also distinguished between rights and privileges. The Left and Rights. This essay is only the briefest of introductions in a field rich with reflections concerning the assumptions we construct into our law. The concept of a right without a duty is meaningless. 123..6 Rights Without Duties Hohfeld. op cit. it must also involve an acceptance of that duty by the person who is subject to it. Ideology and the State. On this analysis what are commonly called rights to employment. A.. T. 1983 43. etc. are not rights.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. and that justice is something only the rich can achieve in capitalist modes of production. 33 Ibid. 30 Campbell.” 28 Formal justice as entitlement therefore allows equal opportunity to the individual without any reference to the unequal ability to use it. As an essential commonsense corollary. D. 31 Warrington. An Introduction to Modern Political and Social Thought. arguing that an interest based theory of rights. It is a privilege which is given to certain persons.

Rights are being demanded and duties forgotten. 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. The Bible emphasises duties and responsibilities (not rights). least of all those who are most vocal in the assertion of rights. Wealth and prosperity are created by effort. Governments and pressure groups which focus on rights. 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. the Human Rights Commission and many other government agencies provide doubtful leadership in this regard. they cannot but be concerned about the rights and freedoms of others. responsibilities and obligations. The preoccupation with rights (particularly state created social and economic rights) has become an obsession. . The time has come to realise and to emphasise that rights. 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. bureaucratic. to demand rights. give no thought to how rights can operate in the absence of a climate in which the importance of duties is emphasised. depend on the discharge of duties. in effect. These demands come not only from the poor and the underprivileged. Only continuing effort can sustain them. but also from privileged academic. A right-conscious society. social and business groups. 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. If individuals are concerned about their duties. A right-centred society is one in which individuals assert their rights. the aggressive and the nasty.duties. A duty-centred society is preferable to a right-centred society. There cannot be a right without a duty. They are encouraged by the Human Rights Commission and like Commonwealth and State bodies. The pressures exercised by interest groups have become the dominant feature of the modern era. Although this is not an intrinsic evil. But they seem unconcerned about the need to educate people about duties and the importance of a sense of responsibility. The rights that are recognised are those which are demanded by the powerful. At the same time there is a deafening silence on the question of individual responsibility. The Ten Commandments are duties. whether mater ial or political. with no consideration for the effect of those demands on other people. The interventionist welfare state has become a super patriarchal entity from which individual members have come to expect solutions to all problems. Governments. They are educating people about their rights and are attempting to make more and more rights available with no reference to logic and commonsense. 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. There is no end to the so-called rights which can be demanded. the pursuit of rights becomes self defeating when it is unaccompanied by the commitment to duties. This transformation of the social psyche has taken place imperceptibly to the point that it unconsciously pervades the entire society. recognises a few rights and neglects many others. 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.