Law 214 notes

What is distinctive about a legal duty (as opposed to religious, moral etc)?

Austin-
● Austin believed that what was distinctive about law is that it involves the use of force
● Legal rules exist only where you can be punished by the state
● Established jurisprudence
● Analytical jurisprudence
○ Study of conceptual questions about law
● Legal positivist- belief that law is socially constructed and not necessarily just
● Concerned in reforming the law
● This view is not necessarily law as it ought to be
● Existence of law is one thing and its merit or demerit another
● Whether it be or be not is one inquiry, whether it be or be not conformable to an assumed
moral standard is a different inquiry
● Key statement of legal positivism^^
● Command theory of law:
○ Began by trying to isolate the features of laws properly so called (laws intended to
guide behaviour as opposed for eg laws of science)
○ Using term ‘properly so called’ to refer to laws with an imperative character- laws that
tell us what to do
○ Features:
■ Orders or demands backed up by threat of harm or sanctions in the event of
non-compliance
■ Must issue from a superior- person or persons with the power to inflict harm
■ Only when these laws are laid down by the sovereign or the state that they
become ‘strictly so called’
○ Strictly so called or positive laws
■ Constitute the subject matter of jurisprudence
■ Subcategory of properly so called
■ Every law strictly so called is a command by a sovereign to a person or persons
in a state of subjection to its author
■ Who is the sovereign?
● Supreme political superior
● Person or body who is habitually obeyed by the bulk of society and;
● Who does not habitually obey any other political superior
■ If there is no sovereign then the society is one without law
 ■ Force applied by the state is the distinguishing factor of legal duty

Conceptual map as a social institution

Hart and Austin are both legal positivists

Hart
● Difference between normative statements and factual statements central to his criticism of
Austin
○ Factual statement-describe the way the world is eg some people eat healthily
○ Normative statement-dictates the way the world should be, prescriptive eg people
ought to eat healthily
● Austin reduces propositions of law to non-normative factual statements:
○ Orders being given, punishment being given and obedience
○ His view implies that we need to conduct an empirical investigation to see if there is a
person who is habitually obeyed by the majority and who habitually does not obey any
other persons, and whether this person commanded ___ and whether we are likely to
be punished for disobeying
○ Lies in factual questions
○ He does not say that the sovereign has the right to make laws or is entitled
○ Law is what we in fact obey not what we ought to obey
○ Simply says law is what we do obey
○ People who break the law are in fact punished not justifiably punished
○ Sought to extend the natural scientific approach to the social world
○ Lead him to view law as empirically observable regularities of behaviour
○ Behaviourist account of law or external view of law
○ Makes no mention of mental or internal states- strictly from the outside
○ Question is whether this approach is appropriate to social behaviour?
● Hart argues that Austin’s theory leaves many familiar features of legal systems unexplained
● Follows that law cannot be understood in the way of commands backed up by threat of harm
● Features that Austin’s theory cannot explain:
○ Laws like the threat of a gunman
■ Gunman gives incentive to comply but does not have the right
■ Not under obligation or duty to obey the gunman
○ Argues that threat of harm is incapable of putting us under obligations
■ Whereas the law is generally accepted as putting us under obligation
○ Participants of legal systems accept the law as an obligation or duty of which to comply
without the threat of harm
● Difference between being obliged and being under an obligation
○ Under obligation- normative matter
■ Can be under obligation without threat of harm
■ Can be justifiably criticised by failure to comply to obligation
■ It is what you ought to do so can be criticised if you do not
○ Whether we are obliged is a factual matter
○ Austin gives us a situation in which we are obliged, the law puts us under an obligation
therefore his theory must fail
● This is not necessarily moral obligations- Hart does not think that you have to believe that
the law is morally legitimate in order to accept its authority
● Talks specifically about legal duties- whether this is moral is an independent question according
to Hart
● Second criticism:
○ Hart argues that Austin ignores the fact there are different types of law with different
functions
○ ‘Spurious uniformity on law’
○ Not all legal rules are of the same kind
○ Criminal laws are most similar to Austin’s theory- price tag on non-compliance
■ Even criminal laws says Hart is not like a gunman
■ Gunman does not have to obey his own orders but those that make criminal
laws have to abide by the laws they make
■ Lawgiver is not outside the law
○ Other laws are not duty imposing
○ Some laws are not intended to coerce us through punishment
○ Many important laws are not to coerce us but are empowering- power giving
■ Make it possible for certain individuals to act in certain ways, importantly
officials
■ Power conferring aspect of legal rules
■ Eg laws that enable us to make our wills, marriage, contracts
■ Laws of this kind play a facilitating role in our lives, enables us
○ If you fail to comply with some laws, there is no punishment eg contract
■ Eg not putting your contract in writing leads to an ineffective contract, not any
sanctions.
○ Power conferring rules on officials
■ Judges, legislators
■ Constitutional law
■ In absence of laws to make officials have power it would be very difficult to
guide people’s conduct
 ■ These rules that are essential to the guidance of conduct cannot be explained
by Austin’s theory
○ Third Criticism- Continuity of authority
■ Seamless transfer of authority to new law makers
■ Does not align with Austin’s theory as law makers do not have habitual
obedience so they would not be able to make new laws successfully
■ We need a concept of a person or persons with theright to make law
■ Normative concept
■ Their authority which explains why they are obeyed and not the opposite
■ Law remains valid even though the law maker has changed
■ Persistence of law even though the lawmaker has changed
■ Until the law is repealed, it remains part of the law
■ Rule conferring the authority on the laws of the past
■ Austin’s theory is indivisible and legally inimitable
■ Hart argues that normally power is divisible, not one sovereign body
■ There are also legal limits on sovereigns- federal parliament can’t do things
■ Separation of powers is entrenched in the constitution which means that the
federal parliament cannot make laws that exert itself on certain bodies
■ Parliament is not legally inimitable or indivisible- disproves Austen’s theory

1. Do you find Hart's distinction between 'being obliged' and 'being under an obligation'
convincing? Why or why not?
● Personally, I think this argument speaks to me intrinsically. I have an intrinsic and inexplicable
affinity or understanding of this distinction.
● I think that when examining a society as a whole, where sovereign powers have attempted to
oblige the people to act in a certain way there is generally a level of or eventual retaliation from
the people and a general sense of restlessness, malaise or anger even where there is compliance.
However being under an obligation usually entails agreement or satisfaction in the compliance,
or maybe instead of agreement, a sense of duty even where there is disagreement. I agree that
this does not necessarily coincide with moral obligation, rather that there is a sense that
compliance is essential as a member of a functioning society. Maybe where there is
disagreement with the specific rule there is an understanding that behaviour in association with
this rule is essential for the functioning of society and there is a level of respect for the law and
the sovereign. There is also a societal obligation placed upon the person- being under an
obligation means understanding of normative behaviour as a member of a community.
2. Austin puts 'the law of honour', 'the law set by fashion', and 'International law' under
one umbrella, saying that these should not be called law as they are merely rules "set
and enforced by mere opinion" (Austin, p. 20). Do you agree? How is Austin using the
word 'enforce' here?
● These are moral laws
3. Is there any difference between rules of law, rules of morality, and rules of religious
practice? How would Austin and Hart answer this question, and what reasons might
they give for their answers?

● Legal positivists are not concerned with morality

● Natural law theorists are interested in normative theory and morality- Dworkin, Finnis
● Substantive positivism- morality and law separable, only interested in nature of the law
● Methodological- only concerned with legal theories, empirical, concerned with the how, how
should we ask about the nature of the law, how should legal theory be done.
● Sociological- external view of society

Lecture 3- Contemporary Positivism

Dworkin’s Positivism-

Separability Thesis

Differences between Dworkin and Hart’s

● Austin only talks about regularities of behaviour and makes no references to internal mental
states eg attitudes, values
● Hart disagrees and believes social phenomena is different from natural phenomena
● Hermeneutic
● Hart believes it is impossible to examine legal concepts without attending to the point of view
of those committed to the legal system
● Calls it the internal point of view-internalising the legal rules
○ You comply with the rule willingly
● If you ignore the fact that some people are committed to the law in this particular way then our
account of law will be incomplete
● Distinction- between one hand a group of people acting in a certain way habitually and a
group of people acting a certain way because they are following a social rule
● Both involve people acting in a similar way
● A habit involves on convergent or similar behaviour while following a rule is more than
convergent behaviour
● Habit is a fact about behaviour that you can observe externally- description of the way it is eg
these people walk their dog every day in the park
● Contrast to Hart- following a social rule
● Here this is the correct or proper way to behave and they will see that behaviour as obligatory
● Will see it as wrong to not follow- prescriptive statements
● This is what Hart calls taking the internal point of view
● Eg etiquette
● Social rules come in at three major points
○ Many people obey the law because they view the law from this internal point of view
■ Many people view the law as a standard by which they ought to obey and
willingly obey the rules
○ Once we grasp this fact that people view the law from an internal point of view, then
people speak in a normative way
○ Social rules are a precondition for the existence of law
■ There is no legal system unless some people, namely judges, view the law from
an internal point of view
● The rule of recognition (most important)-Legal officials are guided by this special rule
● Distinction between primary rules and secondary rules
○ Primary rules- obligation imposing, duty
■ Not necessarily legal rules- may be for example religious or moral
■ What makes one legally valid and not legally?
● A rule is legally valid if it has been made in a way that conforms to
criteria in a secondary rule
○ Secondary rule/ rule of recognition-
■ Tells us what rules are legally valid in a society
■ Pedigree of the rule/origin of the rule is important
■ Whether the rule must conform with moral rules-
● Inclusive positivist say yes while exclusive positivists say no
● If someone says X is a law in our society, we can check through the sources in rule of
recognition
● Secondary rule of Rule of Change-
○ Power conferring rule
○ Empowers the law maker to change the primary rules
■ Eg secondary rule that requires a majority in parliament to agree to the change
and the change they enact becomes valid- power conferring
● Secondary Rule of adjudication
○ Provision for judges to resolve certain issues
○ Then rule of recognition makes this valid
● Where does the rule of recognition get its authority from?
 ○ Here it relies on a social rule
○ Social rules are not created in terms of another rule
○ Social rules exist simply because they exist or are practised
○ Existence is a brute matter of social fact
● Hart has another argument- secondary rules creates a better system for controlling conduct
than a society with only primary rules
○ It lets the people in society start disagreeing about whether a rule is a genuine rule and
they would not be able to resolve this because there is no rule of recognition
○ Can’t validly change rules
○ There is no adjudicator if there is a dispute on the interpretation of rules

● What is a social rule and what role does the concept play in Hart’s theory of law?
● Outline the difference between primary and secondary rules in Hart's theory of
law. What are the three kinds of secondary rules, and why are they necessary to a
fully fledged legal system (according to Hart)?
● Positivists insist on a separation of law and morals. What exactly do they mean
by this, and how do they justify it?
○ Dworkin criticises Hart because
○ Inclusive positivists refer to morals but exclusive positivist does not refer
to morals
○

Natural Law theories

Positivism: any connections that obtain between law and morality do so contingently – ie they are not
guaranteed to obtain.

Natural law theory: there is a necessary connection between law and morality.

A necessary connection is one that cannot but exist.

● Although law is partly a matter of social facts
● Social facts are not sufficient to give human directives the power of law
● Mixture of social facts and moral standards
● These moral standards are objective in that they are discoverable using reason
● Not artificial, or man-made
For natural law theorists, although law is partly a matter of social facts, in order to be law, or ‘true’ law,
human laws (positive laws) must also conform to moral standards.
● These standards are objective: they are not the product of conventions or agreement or human
practices. In that sense, law is ‘natural’.

Substantive natural law theories: to be law, official directives satisfy tests which relate to their moral
content – ie the ends or objectives that they pursue.
● Their content is moral

Procedural natural law theories:to be law, official directives must satisfy tests which relate to
matters of form and process – ie the means by which the official directives are made and applied.

THE NATURAL LAW TRADITION

● Origins in ancient Greek philosophy

● There is a law of nature which is different from merely human or positive law.
● The law of nature lays down objective standards of what is right and wrong.
● The law of nature is higher than human law.
● Human laws which violate natural law are of no legal force or effect.

St Augustine:
lex iniusta non est lex: ‘an unjust law is not a law at all’.

St Thomas Aquinas:
‘law is necessarily an ordinance of reason for the common good, made by him who has care of the
community, and promulgated’.
Official rules which do not meet this test are ‘perversions of law’ or ‘acts of violence’.

Natural rights:
John Locke: all human beings by virtue of their nature enjoy rights to life, liberty and property.

JOHN FINNIS’S NATURAL LAW THEORY

The Strong Natural Law Thesis: moral validity is a precondition for legal validity.
Unjust rules cannot be legally valid or, in some versions of the Strong Natural Law Thesis, extremely
unjust rules cannot be legally valid.
Eg Robert Alexy, Philip Soper, the grudge informer cases.

Finnis rejects the Strong Natural Law Thesis:

it is contradictory to say that an unjust law is not a law.
It is also implausible to say that rules which meet all the acknowledged criteria of legal validity in a legal
system and are accepted by the officials of that system as law are nevertheless not law.

The Weak Natural Law Thesis: unjust rules are legally valid but they are not laws in the true sense of
that word. They are both morally defective and legally defective.

Murphy’s alarm clock example.

It is the point of law to serve certain moral ends and laws which fail to serve these ends are defective as
laws.

Finnis: we cannot understand the central features of a legal system if we do not understand what moral
purposes a legal system ought to serve and a legal system which does not serve these purposes is legally
defective.

• Objective goods:
life, knowledge, play, aesthetic experience, sociability, religion in a broad sense, and practical
reasonableness.
• The common good: conditions that favour the realization of each person’s self-development.
• The common good cannot be achieved unless we live in a stable society in which people’s
conduct is co-ordinated.
• It is the function of law to authoritatively designate which course of action everyone should
follow, thus solving the problems we have in co-ordinating our conduct.
• This is a morally valuable function and it is intrinsic to law.
• Law which does not serve the moral purpose which is intrinsic to law is not the ‘central case’ or
‘paradigm case’ of law. Such law is not law in the ‘focal’ or ‘primary’ sense of the term ‘law’.

There is a sense in which unjust rules are laws – they are laws in the technical, lawyer’s sense.
But in a deeper sense, a rule which is very unjust is not law.

To be fully a law, a rule must be just.

FULLER’S PROCEDURAL VERSION OF NATURAL LAW

There are certain formal and procedural requirements which rules must meet if they are to be regarded
as the rules of a ‘legal system’. These formal and procedural requirements have moral value.

What is the purpose of law?

Law is the ‘enterprise of subjecting human conduct to the governance of rules’.

This means that law must be by and large:

• general
• public
• prospective
• comprehensible
• non-contradictory
• possible to comply with
• not changed too frequently
• those who administer the law must not depart from it

Rules which lack these features would be incapable of guiding conduct and since it is in the nature of
law to guide conduct, such rules wouldn’t constitute a legal system.

Respect for the principles of legality respects our status as responsible, moral and rational agents by
making it possible for us to plan our lives around the rules.

Law therefore has intrinsic moral value: the principles of legality constitute ‘the internal morality of
law’.

‘Positivism and Fidelity to Law – A Reply to Professor Hart’:

(1) Fuller argues that the Nazi system departed so far from the principles of legality that it did not
amount to a legal system.
• Eg use of retrospective legislation to validate measures that were unlawful at the time they were
undertaken;
• secret enactments;
• unpublished instructions to interpret the law in outrageous ways;
• disregard of the law;
• use of standards of interpretation contrary to all normal principles.

The Nazi system lacked internal morality.

It also lacked external morality ie the substantive content of the laws was odious.
(2) Fuller argues that legal positivism, as practised in Germany, was causally connected with
Hitler’s rise to power because once officials take the positivist view that there is nothing in the nature
of law which stops evil rules from being law, this will lead them to blindly apply and enforce legal rules,
regardless of their content.

(3) Fuller defends the decisions of the German courts in the grudge informer cases.
Need to restore respect for law and justice in Germany.

Hart’s response

(1) Compliance with the principles of legality or the rule of law does not necessarily confer moral
value on a legal system.
The principles of legality are merely technical requirements of efficiency.
An evil system is not better just because it is possible to comply with its rules.
(2) Positivism is a limited theory: it is a descriptive theory about the nature of law. It is not a theory
which aims to prescribe what judges should do. The latter is a moral issue, not a conceptual issue.
(3) Judges should not necessarily apply and enforce the law. Some laws are too morally iniquitous
to be applied.
(4) Officials and citizens who take the positivist view that law is merely whatever a particular
society regards as law, and therefore that law has no necessary moral value, will be more likely to resist
tyrannical regimes than people who accept the natural law view.
The separability thesis therefore has moral value.
(5) It courts confusion for courts to say that law that meets all the acknowledged criteria of legal
validity in a particular legal system is not really law.
A better solution in the grudge informer cases would have been retrospective punishment.

Essay advice:
Must mention the objections and then choose from them two..?
Explain why you find them convincing or not?
Must establish what is the separability thesis

A- Natural law
B-Natural law
C- Nat
D-Posit
E- Posit
F-Nat
G-Nat
H-Posit
I-Nat
J-Nat
K-Posit
L-Posit
M-Natural- teacher said positivist though
N-Nat
O-Natural
P-Natural
Q-Positivist
R-Positivist
S-Nat
T-Nat- Fuller

1. Throughout Fuller's analogy of Rex the disappointed ruler, it can be argued that
Rex's primary aim is not to govern his subjects effectively, but rather ensure their
happiness. Fuller alludes to this at the end of p. 38 when he muses that perhaps
people could be made happy without rules if they were governed by psychiatrists
and public relations officers. To what extent do you think that Law's purpose is to
make people happy? (What would it mean for a legal system to do this?) Would it
matter if a legal system that (somehow) ensured this offended some (or perhaps
all) of Fuller's procedural principles?
2. Do you think that German citizens had a moral obligation to obey Nazi laws in
1934? What about citizens of countries conquered by Germany between 1939
and 1945? Does Fuller's procedural theory explain why you might think they
did/didn't?

3. Leslie Green writes: ‘Hart’s overall message about the relationship between law
and morality is in one way similar to Hannah Arendt’s in Eichmann in Jerusalem.
What made Arendt’s book so controversial was her claim that … Eichmann was
the epitome of law-abidingness. What Arendt called the “banality of evil” thus
may be seen also as the lawfulness of evil. That is what is so shocking – that law
may be, in a phrase that Fuller derided, “an amoral datum”. Some resist this idea
so strongly and are so intent to preserve the halo around the procedural virtues
of law, that they are prepared to make its denial an item of faith. In his exchange
with Hart, Fuller said: “I shall have to rest on the assertion of a belief that may
seem naïve, namely, that coherence and goodness have more affinity than
 coherence and evil.” That is a faith that Hart, like Arendt, could not share’ (L
Green, ‘The Concept of Law Revisited’ (1996) 94 Michigan Law Review 1687,
1711). Do you agree with Hart that legal forms and processes are as serviceable
for evil ends as for good ones?
Formalism- judges should apply the rules when its literal meaning is clear even if it leads to
unreasonable results.

Literal meaning is possible, some linguistic conventions are shared by people who have competence in a
particular language; words can communicate meaning.

What are the two senses in which Fuller’s approach to adjudication can be described as ‘purposive’?

Legal Realism
● Demythologise law
● Normative view that judges should make policy decisions
● ‘Wash...with cynical acid’ the traditional view of law
● Focus on what the courts do in practise
● Practical view more useful for lawyers
● Describe the law as it really is-in a social context

Two things:
● Law should not be identified with rules of law
○ Karl Llewellyn argues that rules enacted by legislatures or declared by courts are not
law- merely ‘law in books’
○ ‘Law in action’
○ Under a legal duty if failure to act in a certain way would lead to an adverse court
decision
○ No law exists prior to a court’s decision on the matter
○ ‘Real rules’
○ Similar to Austin’s view but Austin’s sovereign is the legislature while Llewellyn’s is the
judiciary
○ Person who interprets law has the power, not the person who wrote it ( I guess I agree,
religion?)
○ Does not account for the internal perspective of people continuously expressing in
normative terms their shared acceptance of the law as a guide to conduct
○ Hart argues that realism confuses finality with infallibility
 ○ Hart game analogy- umpires can make wrong determinations
● Legal rules are of little importance in judicial decision-making
○ Judicial determinations are discretionary
○ Legal rules are not capable of yielding uniquely correct answers
○ Radically different to all other accounts in this sense
○ Rules are incapable of controlling judicial decisions
○ Elusiveness of facts generates even more unpredictability
○ Law in books is not capable of generating answers to legal problems
○ Hart agrees when it comes to hard cases but does not agree that all legal questions are
like those of the penumbra
○ Challenge: how do we explain significant uniformity in judicial behaviour

Difference