Jurisprudence LN 20170816

L UNIVERSITY
OF LONDON
L
B 2017/18
Jurisprudence and Legal Theory
Lecture Notes
Advance Tertiary College (ATC)

ITC School of Laws
Contents
Chapter 1 Natural Law 1
Chapter 2 Positivism – Austin and The Command Theory 25
Chapter 3 H.L.A Hart’s Concept of Law 39
Chapter 4 Hans Kelsen & The Pure Theory of Law 64
Chapter 5 Joseph Raz 89
Chapter 6 Ronald Dworkin 97
Chapter 7 Utilitarianism 129
Chapter 8 Feminist Legal Theory 145
Chapter 9 Marxism & Sociological Theories 160

Bachelor of Laws Level 6
Jurisprudence & Legal Theory
Natural Law
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Natural Law
Contents
A. Natural Law – A Point by Point Summary

B. Natural Law Theories – General
C. Classical Natural Law
D. Natural Law Theories and their Application
E. The development of Natural law theories
F. The 'deductive fallacy' argument - the epistomological criticism
G. Natural Law & the 20th Century
H. The Nazi Grudge-Informer Cases.
I. The Hart-Fuller discussion.
Learning Outcome
Students are expected to have a thorough understanding of classical natural law as well as the modern
natural law theories of Finnis and Fuller. As natural law’s chief critics were positivists, students are
expected to understand the positivistic response to natural law and the critical arguments raised by them
against natural law. In this context, students ought to be aware of the Hart- Fuller debate as well.
Essential Reading
1. Lloyd’s Introduction to Jurisprudence by M.D.A Freeman, Sweet & Maxwell
or
2. Penner, Jurisprudence and Legal Theory: Commentary and Materials (LexisNexis)
Further Reading
1. ‘The Appeal of Natural Law’ from The Politics of Jurisprudence by Roger Cotterrell, (LexisNexis).
2. “Natural Law and Moral Truth” from Legal ‘Philosophies’ by JW Harris (OUP)
3. Morrison, W. Jurisprudence from the Greeks to Post-modernism. (Cavendish)
4. Natural Law & Natural Rights: John Finnis
5. The Morality of Law: Lon Fuller
A. NATURAL LAW – A SUMMARY

1. Introduction
According to Friedman, “The history of natural law is a tale of the search of mankind for absolute justice
and of its failure.”
“With changing social and political conditions the notions about natural law have changed. The only thing
that has remained constant is the appeal to something higher than positive law”
2. Approach to Natural Law

There are two ways of approaching a study of natural law theories. They are:
(a) Natural law is to be regarded as a higher law, which invalidates any inconsistent positive
law, and
(b) Natural law is to be regarded as an ideal to which positive law ought to conform without
its legal validity being affected.
3. What is Natural Law

Dias states that the term ‘natural law’ has been variously applied by different people at different times as
follows:
(a) Ideals which guide legal development and administration.
(b) A basic moral quality in law, which prevents a total separation of the “is” from the “ought”.
a. The method of discovering perfect law.
b. The content of perfect law deducible by reason.
c. The condition sine quibus non for the existence of law.
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Wortley indicates that the concepts of natural law may be of great importance as a source of:
(a) “values” which the legislators may consider for bringing changes in law.
(b) “reason” which the judges may consider in the exercise of their discretion;
(c) “theories” of international law.
How does one discover these “higher laws” or “ideals”? This is where natural lawyers differ.
Jurist Method of discovering law
Thomas Aquinas, Augustine Revelation
Grotius, Hobbes, John Locke Reason
Rousseau General will of society
Kohler Social fact
Duguit Social solidarity
Finnis Self-evident
4. Central Themes of Natural Law

According to Curzon, the central themes of natural law are:
(a) Natural law is based on value judgements, which originate from some “absolute” source, eg
revealed word of God. These judgements are in accordance with nature and are discoverable by
reason.
(b) The entire universe is a manifestation of these value judgements. Therefore, these judgements
are immutable and eternally valid.
(c) It is only through proper human reasoning that natural law values can be grasped and
understood.
(d) Positive law is subject to natural law in that natural law over-rules positive law to the extent that
they are in conflict.
(e) Law is an essential necessity for a man’s life in society.
5. Decline of Natural Law

(a) Excessive individualism resulting in the French Revolution led to a reaction against natural law
theories.
(b) Scientific theories had stolen a march over the unproved hypotheses upon which the theory of
natural law was based.
(c) Law became secularized because society developed a secular attitude towards many aspects of
life, including religion.
(d) Historical research proved that in primitive society, the prevailing idea was that of status and not
of contract or “social contract”.
(e) As society became more complex, it became difficult to accept the “a priori” reasoning of natural
law.
(f) There was a belief that improvements in the law could be brought about empirically, without
appealing to “pure reason”.
(g) Psychological and anthropological researches stressed that law and justice were determined by
adaptation to environment and other variables. This cast serious doubts on the immutable and
eternal aspect of natural law.
(h) The growth of the school of positivism became a serious threat to natural law doctrines.
6. Revival of Natural Law

Natural law enjoyed a period of revival in the twentieth century. The chief reasons were:
(a) The search for values in written constitutions. The American Constitution for example, is value –
laden.
(b) The analytical and historical schools of jurisprudence could not provide adequate solutions to
issues such as justice, freedom and rights.
(c) The First World War utterly destroyed the economic, social and political stability in Europe. It
became necessary to establish norms based on lasting values to evaluate man-made rules.
(d) During the Second World War, there was brutality and anarchy in some countries and well-
organised governments in other countries. Relativism was questioned. Radbruch, a German
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political-philosopher, after seeing the abuse and perversion of law in Germany, rejected
relativism and called for minimum absolute postulates for a just law.
(e) With the damaging effects of the two World Wars, there was insecurity and uncertainty. These
led to a search for a new moral order.
(f) With the growth of militant and social ideologies, such as Fascism and Communism, there was a
need for the development of ideologies which could counter the above ideologies.
7. Application of the principles of Natural Law

(a) UNITED KINGDOM
(i) In contract law, public policy, quasi-contract, unconscionable bargains, restitution,
rescission, promissory estoppel.
(ii) In administrative law, principles of natural justice and judicial review of administrative
action, separation of powers especially relating to judicial independence.
(iii) In criminal law, the doctrine of double-jeopardy.
(iv) In trust law, the concepts of equity and breach of trust.
(b) UNITED STATES

(i) Doctrine of independence, the inalienable rights of life, liberty and pursuit of
happiness
(ii) Due process clauses of the 5th and 14th amendments.
(iii) Series of decisions protecting equality of races, the most important being that of
the LITTLE ROCK SCHOOL case.
(c) INTERNATIONAL LAW

(i) United Nations Charter.
(ii) Human rights recognized and expressed in the Universal Declaration of Human
Rights, The European Convention on Human Rights, Declaration of Delhi on the Rule
of Law in 1959.
(iii) Nuremberg trials established the principle that certain acts constituted crimes against
humanity.
8. HART: MINIMUM CONTENT OF NATURAL LAW

H.L.A.Hart concedes that there is a “core of indisputable truth in the doctrines of Natural Law”. To him,
law is a social phenomenon, and it cannot be understood without considering the social practices of a
community. When he talks of the minimum content of natural law, he means that there are certain rules
which are essential, if individuals are to survive and live together in a community. Survival is an aim, a
basic human desire or the minimum goal for human beings. To achieve this, all societies must have
certain rules.
Hart calls these rules as the consequences of “human condition”, exhibiting the following characteristics: -
(a) Human vulnerability: to physical attacks.
(b) Approximate equality: in mental and physical abilities.
(c) Limited altruism: we are neither devils nor angels.
(d) Limited resources:
(e) Limited understanding and strength of will.
According to Martin, the arguments of Hart for a natural law with minimum content are based on the
above “simple truisms”. Given truisms (T1) – (T5) and the goal of survival, hart argues that a certain
minimum content of law is a “natural necessity”. Hart’s minimum content is as follows:
 Laws must have restrictions on the free exercise of violence.
 Laws must be based on mutual forbearance.
 Laws must regulate the use of property.
 Laws must provide for the creation of obligation.
 Laws must provide for sanctions if they are not obeyed.
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The facts specified by (T1) – (T5) “afford a reason, why, given survival as an aim, laws and morals should
include a specific content. The general form of the argument is simply that without such a content laws
and morals could not forward the minimum purpose of survival which men have in associating with each
other.”
Hart seems to have taken a stand as follows:

(a) given truisms (T1) – (T5) and survival as an aim, it is a natural necessity that
(b) for every society there is at least one group in the society whose laws have minimum content.
9. FINNIS’ RESTATEMENT OF THE NATURAL LAW

Basic goods:
(a) Life.
(b) Knowledge.
(c) Play.
(d) Beauty.
(e) Sociability.
(f) Practical reasonableness.
(g) Religion.
These basic goods are:

(a) Objective.
(b) Basic.
(c) Fundamental.
(d) Pre-moral.
(e) Self-evident.
The “basic goods” along with the requirements of “practical reasonableness” comprise the “principles of
natural law”, which are universal and not changeable. They are as follows:
(a) To form a coherent plan of life.
(b) To have no arbitrary preferences among values.
(c) To have no arbitrary preferences among persons.
(d) To maintain some detachment from one’s project and show some commitment for it.
(e) To pursue the goods actively.
(f) To respect every basic value and not to choose directly against any human good.
(g) To seek the good of the community.
(h) To follow one’s conscience.
(i) To recognise impartiality among persons.
To the above list, Finnis adds one more:
Do not pick mere stimulation of real goods.
In the end, Finnis makes two assertions in this regard:

(a) “There are human goods that can be secured only through the institution of human law…..”
(b) There are requirements of practical reasonableness which only those institutions of human law
can satisfy.
10. LON FULLER’S INTERNAL MORALITY OF LAW

Law is the enterprise of subjecting human conduct to the governance of rules. Law has two aspects of
morality.
(a) External – It is the “morality of aspiration” – ideals. The substantive law concerns itself with these
fundamental rules without which such meaningful co-existence could not obtain.
(b) Internal – It is a procedural version of natural law. He points out 8 desiderata (things which are
wanted):
(i) Generality.
(ii) Promulgation.
(iii) Prospectivity.
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(iv) Intelligibility.
(v) Non-contradiction.
(vi) Possibility of obedience.
(vii) Constancy through time.
(viii) Congruence between official action and declared rules.
This inner morality is an essential condition of the power of law. That is to say it is a pre-condition of good
law. Immoral policy is bound in the end to impair the inner morality and so the very quality of law.
11. NATURAL LAW: DIFFERENT NAMES

(a) Conception of law is idealistic.
(b) It embodies certain principles, goals and ideals which are “natural” to man.
(c) Law is based on the requirements of man who is a rational being.
(d) There must be some moral values for a society and legal system to work.
(e) According to Radbruch and Fuller, a law which ignores these values is not law at all. If the laws
are unjust, they lose their ability to bind the conscience. But according to Finnis, unjust laws
should not be denied the title of law. They may be called “corruption of laws” or “laws to a lesser
degree”.
12. NATURAL LAW: DIFFERENT JURISTS

(a) According to Locke, the government is a trust for the benefit of man and the powers of the state
must be within limits.
(b) Montesquieu believes that the true purpose of a political association is to maintain the liberty of
the people.
(c) Fuller asserts law as a purposive enterprise, and it fulfills certain moral requirements mentioned
in his desiderata. He rejects the dichotomy of “is/ought”. Law must be seen in the light of “ought”,
because it is a purposive enterprise.
(d) According to Finnis, one should concentrate on what law achieves and not what law “is”. The
lists of “7” and “10” include a concept of human rights. Maintenance of human rights is part of
the common good.
(e) Dworkin considers law as an integrity, which implies respect for human rights. He stresses the
idea of rights as trumps. The rights have a threshold weight even against community goals.
13. CONCLUSION
(a) It is the idea of natural law that if there is a legal system, but without caring for human rights, it is
bound to cease functioning.
(b) It can be seen that laws may be just or unjust in the present time frame. But if we look at the
laws in the continuum time frame, we find that the legal systems without a minimum content of
moral integrity are bound to collapse.
B. NATURAL LAW THEORIES

THE conviction that there are superior principles of right, or higher laws to which the ordinary civil rules
made by man must conform and which necessarily place limits on the operation of such rules, is one of
the most persistent ideas in the evolution of legal thought. There have been times when the import of
higher law concepts has been discredited or their directive force in legal growth has been concealed by a
different terminology. But legal ideas have seldom been free from superior law influences. The best-
known and most influential form of the higher law doctrines centres around the term "natural law" or "law
of nature."
1. Few terms in the history of law have had such a variety of meanings as the "law of nature" or
"natural law." This phrase is not only used differently by writers in the same period but is also not
infrequently employed in either a confused sense or with varying connotations by the same writer. And,
as with most legal expressions, it has conveyed divergent ideas in various stages of legal history.
Because of the variety of meanings attributed to the term, efforts have often been made to discredit its
use and to discard references to it in relation to legal phenomena. Thereby it was thought clear thinking
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might be facilitated. It remains to be seen whether such efforts have attained the desired object. A
summary of some of the more common uses of this term forms a necessary background for a
consideration of the modern revival of natural law thinking.
There have been times when the term "law of nature" has been thought of as comprising a customary law
of divine origin. Such a divine origin of law tended in early Greece to foster a distinction between laws
which were fundamental as in accordance with nature or ancient custom, and the conventional rules
resulting from ordinary human enactments.
Aristotle put the distinction between fundamental and ordinary laws into a standard formula which has
greatly influenced subsequent legal thought. To Aristotle justice was either natural, as in accordance with
nature, and hence universal; or local and conventional, as applicable to a particular place. The higher law,
as Aristotle conceived it, was unwritten, universal, eternal and immutable, and in accordance with nature.
He divided law into that which is common, being in accordance with nature and in force everywhere, and
that which is peculiar to each separate community.
When an advocate was pleading a cause and found the positive law was against him, Aristotle suggested
that he might then appeal to the law of nature as rendering the act void. Thus a basis was laid in
philosophic thought for a dualism between the customary, natural, and universal in law, and the local,
conventional, and ordinary enactments of a separate group of men. It was this dualism to which
mediaeval thinkers recurred when they sought to contrast the natural and divine laws with the civil laws of
a particular time and place, and to which later jurists have turned when some standard was sought to test
the value or efficacy of existing positive laws.
Though the Greeks were among the first to formulate ideas of natural law the Romans made more use of
such theories and put their views along this line into more enduring forms. As a basic concept for a jus
gentium or universal law, natural law was extensively applied in connection with the Stoic philosophy and
with the application of Stoic principles in the Roman law. Zeno, the founder of Stoicism, has a remarkable
passage extolling natural law as the eternal and universal law of God governing and directing all things.
The Stoics emphasized the ethical side of Aristotle's conception of natural justice and considered it as a
guiding principle immanent in the universe. This immanent principle was reason and its expression was
natural law. To Cicero, who became an advocate of Stoic doctrines, the law of nature became the source
and limit of all rights. The best exposition of Cicero's view is as follows:
Of all these things respecting which learned men dispute there is none more important than clearly to
understand that we are born for justice, and that right is founded not in opinion but in nature. There is
indeed a true law (lex), right reason, agreeing with nature and diffused among all, unchanging,
everlasting, which calls to duty by commanding, deters from wrong by forbidding.... It is not allowable to
alter this law nor to deviate from it. Nor can it be abrogated. Nor can we be released from this law either
by the senate or by the people. Nor is any person required to explain or interpret it. Nor is it one law at
Rome and another at Athens, one law today and another hereafter; but the same law, everlasting and
unchangeable, will bind all nations and all times; and there will be one common lord and ruler of all, even
God, the framer and proposer of this law.
To Cicero civil laws were merely the application of this eternal natural law. He also emphasized the
natural equality of men in contrast with the Aristotelian theory of inequality and thus foreshadowed one of
the interesting ideas of the Roman jurists. The Ciceronian conception of the law of nature was to exert a
formative influence on legal thought for the succeeding centuries.
A significant development of the concept of natural law is to be found in the Middle Ages, when the
theories of Cicero and of the Roman jurists were adapted to the teachings of Christianity. In the writings
of the philosophers and of the jurists of this period the concept of natural law was uppermost. The theory
gained in significance by its association with the concept of a state of nature which had been recognized
by some of the later Roman jurists.
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The great philosopher of the Middle Ages, Thomas Aquinas, distinguished the eternal and divine laws as
forming a part of the universe and as emanating from God, from natural laws which were the result of the
participation of man as a rational creature in applying to human affairs the eternal law by which he
distinguished between good and evil. To Aquinas the particular rules of the lex naturalis were not
immutable. As rational laws designed for human ends, they were subject to change as human conditions
varied. The mediaeval churchmen invariably identified nature and reason with a personal God and law
and rights emanated from his will. Following the method of Thomas Aquinas, the current divisions of law
were: divine, natural, and positive.
To Grotius, who put in a form which became more popular the theories of Vittoria, Suarez, and Gentilis,
the emphasis was placed on natural right, which was "the dictate of right reason, indicating that any act,
from its agreement or disagreement with the rational nature has in it moral turpitude or moral necessity;
and consequently that such act is forbidden or commanded by God, the author of nature." Grotius
distinguished the law of nature, which was unalterable even by the Deity, from positive law and from the
law of nations and divided it into divine rules ordained by God and rules prescribed by man. He and his
successors made use of the law of nature theory in formulating the basic principles of international law,
and for a long time natural law and the law of nations were thought of as closely related.
"Natural law," "natural rights," and "natural justice," during most of the Middle Ages, were terms which
were often used interchangeably. Thomas Hobbes undertook to distinguish between jus naturale as a
natural right and lex naturalis as natural law. To him a natural right was a liberty possessed by every man
in a state of nature, of doing what seemed best for the preservation of his existence. Natural law, on the
other hand, was a body of principles or restraints which were devised by reason to make life secure.
Locke regarded the law of nature as a body of rules for the conduct of men in their natural condition.
Reason, Locke considered as the interpreter of this law; equality, its fundamental condition. Conceiving
men as existing in a state of nature Locke constructed his doctrine of natural rights which belong to man
in the pre-political state. These rights were life, liberty, and property. Legislatures were bound to rule, in
his judgment, according to the law of nature and to carry on their functions by fixed and general laws
rather than by arbitrary decrees; and laws which transgressed certain fundamental principles were not
laws "properly so-called. Locke's ideas relating to the social compact, government under the law of
nature, popular sovereignty, the right of revolution, and natural rights superior to the government and civil
laws, were to reappear in constitutions, laws, and judicial decisions in phrases adapted to American legal
thinking. Thus the dualism of Aristotle had taken definite form. There was an immutable law which was of
divine origin or the product of right reason, but whatever its source it was common to all men and
universal. And there were positive enactments which were made by man to meet the contingencies of the
moment. The two systems were in constant conflict — one a perfect and rational order and the other an
imperative and positive one.
Natural law, emanating from the divine will or from divine reason, consisted only of certain basic
principles. Positive law elaborated this natural law and through practical reason adapted it to the ordinary
activities of life. Differing from the idealistic interpretations of the concept in Greece and in Rome natural
laws were conceived as norms and positive laws that were not in accord with the natural law were unjust
and therefore had no validity, though the means to prevent their enforcement were not always at hand.
Thus a criterion was available to measure, in a theoretical way at least, the validity of civil enactments.
C. Classical Natural Law

A. The Greek Concept of Law
Law like many other sciences, has its roots in Greece. So it is logical that the exploration of the concept of
natural law begins with Greek civilisation. To the early Greeks, law was the ‘divine will’ expressed through
the oracle of Delphi. Thus law and religion were rather undifferentiated in early Greek civilisation. The
oracle of Delphi was considered to be the authoritative voice for the enunciation of the divine will and was
frequently consulted in matters of law and legislation. But gradually with the growth of city-states, another
idea of law came to be developed, i.e., human wisdom born of expediency and social interests.
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i. Socrates (469-339B.C)
In his use of critical reasoning, by his unwavering commitment to truth, and through the vivid example of
his own life, fifth-century Athenian Socrates set the standard for all subsequent Western philosophy.
Since he left no literary legacy of his own, we are dependent upon contemporary writers like Aristophanes
and Xenophon for our information about his life and work. As a pupil of Archelaus during his youth,
Socrates showed a great deal of interest in the scientific theories of Anaxagoras but he later abandoned
inquiries into the physical world for a dedicated investigation of the development of moral character.
For the rest of his life, Socrates devoted himself to free-wheeling discussion with the aristocratic young
citizens of Athens, insistently questioning their unwarranted confidence in the truth of popular opinions,
even though he often offered them no clear alternative teaching. Unlike the professional Sophists of the
time, Socrates pointedly declined to accept payment for his work with students, but despite (or, perhaps,
because) of this lofty disdain for material success, many of them were fanatically loyal to him.
Their parents, however, were often displeased with his influence on their offspring, and his earlier
association with opponents of the democratic regime had already made him a controversial political
figure. Although the amnesty of 405 forestalled direct prosecutions for his political activities, an Athenian
jury found other charges—corrupting the youth and interfering with the religion of the city—upon which to
convict Socrates, and they sentenced him to death in 399 B.C.E. Accepting this outcome with remarkable
grace, Socrates drank hemlock and died in the company of his friends and disciples.
Our best sources of information about Socrates's philosophical views are the early dialogues of his
student Plato, who attempted there to provide a faithful picture of the methods and teachings of the
master. This was primarily because Socrates did not put down his ideas in any book, but his ideas
considered in his oral teachings were ably recorded by his famous disciple,Plato. (Although Socrates also
appears as a character in the later dialogues of Plato, these writings more often express philosophical
positions Plato himself developed long after Socrates's death.)
ii. Plato (c427-347B.C)

If Thales was the first of all the great Greek philosophers, Plato must remain the best known of all the
Greeks. The original name of this Athenian aristocrat was Aristocles, but in his school days he received
the nickname Platon (meaning "broad") because of his broad shoulders. (He is not the only great man to
be known universally by a nickname. The Roman orator Cicero is another. )
Plato was born in Athens, about 427 B.C., and died there about 347 B.C. In early life Plato saw war
service and had political ambitions. He was a devoted follower of Socrates, whose disciple he became in
409 B.C., and the execution of that philosopher by the democrats in 399 B.C. was a crushing blow. He left
Athens, believing that until "kings were philosophers or philosophers were kings" things would never go
well with the world. (He traced his descent from the early kings of Athens and perhaps he had himself in
mind.)
Plato while sharing the views of his great master Socrates, was original in his concept of law and justice.
He felt that law cannot prescribe with perfect accuracy what is good and right for each member of the
community at any one time. So he thinks that the best thing of all is not the full authority for laws but
rather full authority for a man who understand the art of ‘kingship’ and has full wisdom. This is in a sense,
an ideal nation. However, as such a person or state may never exist, Plato concluded that then the next
best thing namely the rule of law. Of great importance is to recognise the influence Plato had on Aristotle.
iii. Aristotle (384 –322B.C)

Aristotle was born in Stagira (in northern Greece), 384 B.C. He died in Chalcis (on the Aegean island of
Euboea, now Ewoia), 322 B.C. Inland from Stagira was the semi-Greek kingdom of Macedon, with which
Aristotle's family was closely connected. Aristotle's father, for instance, had been court physician to the
Macedonian king Amyntas II. Aristotle lost both parents while a child and was brought up by a friend of
the family. He is supposed to have spoken with a lisp. At the age of seventeen Aristotle traveled to
Athens for a college education and after Plato returned from Syracuse, the young man joined Plato's
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Academy, where he studied assiduously. Eventually he was to become by far the most renowned of all
the pupils of Plato. Plato called him "the intelligence of the school."
For Aristotle, the origin of the state in fact did not lie in a social contract arrangement, and the state itself
should not be thought of as reflecting some hypothetical social contract. Rather, the state is “natural” a
form or organization that necessarily arises as a precondition for human beings living together. Since
human beings by nature have a desire to live together, the state itself is natural.
Aristotle provides an account of the progression of institutional forms culminating in the state: First, the
formation of the household, which arises from male-female unions and ruler-slave relationship (presumed
to be natural). Second, the formation of the village, consisting of offspring from the original household.
Third, the formation of a state which governs over many households or villages. The state is the form of
organization that allows a given community to be self-sufficient. The state is formed for purpose of living
but continues for purpose of living well; and the purpose of the state is to promote the good life. The
existence of the state is analytically prior to the existence of the individual. Only madman or superman
can survive apart from the state.
That human beings are made to live together, in states, can be shown by considering the distinctive
human capacity for speech, which in turn permits moral reasoning. That moral reasoning takes place not
on a private basis but collectively via the state. Those joined in state should agree about what is right and
wrong. Indeed, it is precisely agreement about right and wrong, justice and injustice that constitutes a
state. Aristotle counts the role of the state in fostering morality as the primary way that the state “confers
great benefits.” Divorced from law and morality, he reasons, man is worst of all creatures, but in through
the state is capable of being the best of all creatures.
Although the formation of the state evolves from households, the governance of state is essentially
different than governance of a household, it involves relationship among people with equal standing, not
based on patriarchal relationship. For Aristotle, the polis, or the political community, can be succinctly
defined as a group of self-sufficent people joined together for the sake of the good life. Aristotle, although
a student of Plato, was more realistic in his approach. He avoided the idealism espoused by Plato. No
human institutions can be perfect and as such he avoided the pitfalls of an ideal state that Plato
envisioned.
B. The Stoics
i. Zeno (350-260B.C)
The birth of stoicism is associated with the name of Zeno. Stoicism takes its name from the place where
its founder Zeno lectured. Stoicism like all other systems of Greek thought was primarily practical in
nature. The object of stoic philosophy was to teach virtue as the right living, and for this, to reason
correctly to understand the nature of the universe of which man is part. Stoicism teaches that to seek
pleasure as the highest good of life is contrary to human nature as it is based on the foundation of reason
and virtue.
C. The Roman Concept of Law

i. Cicero (106-43B.C)
Marcus Tullius Cicero was born on January 3, 106 BC and was murdered on December 7, 43 BC. His life
coincided with the decline and fall of the Roman Republic, and he was an important actor in many of the
significant political events of his time (and his writings are now a valuable source of information to us
about those events). He was, among other things, an orator, lawyer, politician, and philosopher. Making
sense of his writings and understanding his philosophy requires us to keep that in mind. He placed
politics above philosophical study; the latter was valuable in its own right but was even more valuable as
the means to more effective political action. The only periods of his life in which he wrote philosophical
works were the times he was forcibly prevented from taking part in politics. The concept of the law of
nature which was equated with universal reason identifiable with God, was the dominant philosophy of
law presented by Cicero.
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He defined Natural law as “right reason in agreement with Nature”, and that “one eternal and
unchangeable law will be valid for all nations and for all times, and there will be one master and one ruler,
that is God, over us all, for He is the author of this law, its promulgator, and its enforcing judge.”
D. The Middle Ages (12th Century to 16th Century)

i. St. Thomas Aquinas (1224-1274)
Born to an aristocratic family living in Roccasecca, Italy, Thomas Aquinas joined the Dominican order
while studying philosophy and theology at Naples. Later he pursued additional studies in Paris and Köln,
where he was exposed to Aristotelean thought by Albert the Great and William of Moerbeke. During the
rest of his life, he taught at Paris and Rome, writing millions of words on philosophical and theological
issues and earning his reputation among the scholastics as "the angelic doctor." Aquinas developed in
massive detail a synthesis of Christianity and Aristotelian philosophy that became the official doctrine of
Roman Catholic theology in 1879. De Ente et Essentia (On Being and Essence) includes a basic
statement of Aquinas's metaphysical position. His literary activity stopped abruptly as the result of a
religious experience a few months before his death.
His main contribution to legal philosophy is his exposition of lex naturale. In his exposition of the law, he is
of the view that laws promulgated by tyrants which are contrary to divine law “must no wise be observed,
because we obey God rather than men”. (refer to notes).
E. THE 17TH and 18TH Centuries

i. Hugo Grotius (1583-1645)
A new era of legal thought began with Grotius. His approach was modern. Thus he prepared the ground
for the secular, rationalistic version of modern natural law. Grotius defined natural law as a perceptive
judgement in which things are good or bad by their own nature. This was a break from Calvinist ideals, in
that God was no longer the only source of ethical qualities. These things that are by themselves good are
associated with the nature of man.
ii. Hobbes (1588-1679)
Hobbes' masterpiece Leviathan set out his ideas with great clarity. He argued that people want to live in
peace and security and to attain this they must organise themselves into communities for protection.
Since there will always be some in the community who cannot be trusted, people must set up a
government with their authority to make and enforce laws necessary to protect the community. It is,
Hobbes argues, the rational way for people to behave so moral behaviour is rational. Although Hobbes
was himself a Christian, these arguments were seen as many as removing the need for God as the giver
of moral code, for Hobbes argues that it follows by reason alone.
iii. Locke (1632-1704)

John Locke was born at Wrington, a village in Somerset, on August 29, 1632. He was the son of a
country solicitor and small landowner who, when the civil war broke out, served as a captain of horse in
the parliamentary army.
The political theory of Locke was based on the philosophy of the natural rights of man. This was obviously
a reaction against the rise of absolute monarchy in Europe which had little regard for individual liberty and
freedom. Locke put a greater emphasis on the rights of life, liberty and property of the individual. Locke
like Hobbes, holds that in the state of nature man enjoys perfect freedom, but this state of nature is
governed by law of nature which teaches men that all persons being equal and independent, no one
ought to harm another in his life, health, liberty and possessions.
iv. Montesquieu (1689-1755)

Charles de Secondat, Baron de Montesquieu was a French political thinker who lived during the
Enlightenment and articulated the theory of separation of powers which is the basis for the United States
Constitution.
Montesquieu, while agreeing with Locke that liberty is the highest goal to be achieved by a nation,
advocates that there must be system of government under which liberty could be secured in the most
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efficient manner. He declared himself in favour of separating the executive, legislative, and judiciary
powers, condemned slavery and torture, and advocated gentler treatment of criminals, toleration in
religious belief, and freedom of worship. He undertakes, not to examine various laws and discover their
meaning, but to point out their underlying principles and to lay down the conditions which must be verified
if such laws are to work for the happiness of man in society. He views law in general (in its universal
aspect) as human reason.
v. Rousseau (1712-1778)
Jean-Jacques Rousseau was born on June 28, 1712 in Geneva, Switzerland. Perhaps Rousseau's most
important work is "The Social Contract” that describes the relationship of man with society. Contrary to his
earlier work, Rousseau claimed that the state of nature is brutish condition without law or morality, and
that there are good men only a result of society's presence. In the state of nature, man is prone to be in
frequent competition with his fellow men. Because he can be more successful facing threats by joining
with other men, he has the impetus to do so. He joins together with his fellow men to form the collective
human presence known as "society." "The Social Contract" is the "compact" agreed to among men that
sets the conditions for membership in society.
vi. Hume (1711-1776)

Generally regarded as the most important philosopher ever to write in English, David Hume (1711-1776) -
- the last of the great triumvirate of "British empiricists" -- was also noted as an historian and essayist. A
master stylist in any genre, Hume's major philosophical works -- A Treatise of Human Nature (1739-
1740), the Enquiries concerning Human Understanding (1748) and concerning the Principles of Morals
(1751), as well as the posthumously published Dialogues concerning Natural Religion (1779) -- remain
widely and deeply influential, despite their being denounced by many of his contemporaries as works of
scepticism and atheism.
While Hume's influence is evident in the moral philosophy and economic writings of his close friend Adam
Smith, he also awakened Immanuel Kant from his "dogmatic slumbers" and "caused the scales to fall"
from Jeremy Bentham's eyes. Charles Darwin counted Hume as a central influence, as did "Darwin's
bulldog," Thomas Henry Huxley. The diverse directions in which these writers took what they gleaned
from reading Hume reflect not only the richness of their sources but also the wide range of Hume's
empiricism. Comtemporary philosophers recognize Hume as one of the most thoroughgoing exponents of
philosophical naturalism.
Against the moral rationalists -- the intellectualists of moral philosophy -- who hold that moral judgments
are based on reason, Hume maintains that it is difficult even to make their hypothesis intelligible. Reason,
Hume argues, judges either of matters of fact or of relations. Morality never consists in any single matter
of fact that could be immediately perceived, intuited, or grasped by reason alone; morality for rationalists
must therefore involve the perception of relations. But inanimate objects and animals can bear the same
relations to one another that humans can, though we don't draw the same moral conclusions from
determining that objects or animals are in a given relation as we do when humans are in that same
relation. Distinguishing these cases requires more than reason alone can provide. Even if we could
determine an appropriate subject-matter for the moral rationalist, it would still be the case that, after
determining that a matter of fact or a relation obtains, the understanding has no more room to operate, so
the praise or blame that follows can't be the work of reason.
Reason, Hume maintains, can at most inform us of the tendencies of actions. It can recommend means
for attaining a given end, but it can't recommend ultimate ends. Reason can provide no motive to action,
for reason alone is insufficient to produce moral blame or approbation. We need sentiment to give a
preference to the useful tendencies of actions.
vii. Kant (1724-1804)

Immanuel Kant was born at Königsberg in East Prussia, 22 April, 1724; died there, 12 February, 1804.
From his sixteenth to his twenty-first year, he studied at the university of his native city, having for his
teacher Martin Knutzen, under whom he acquired a knowledge of the philosophy of Wolff and of Newton's
physics. After the death of his father in 1746 he spent nine years as tutor in various families. In 1755 he
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returned to Königsberg, and there he spent the remainder of his life. From 1755 to 1770 he was
Privatdozent (unsalaried professor) at the University of Königsberg. In 1770 he was appointed professor
of philosophy, a position which he held until 1797.
Kant stands in sharp contrast to the natural-law school in his clear attempts to distinguish between law
and morality. To him the spheres of law and morality are clearly distinct: morality is a matter of the internal
motives of the individual and legality is a matter of action in conformity with an external standard set by
th
law. Kant thus lays the foundation for the rise of positivism in the 19 century.
viii. Hegel (1770-1831)

Along with J. G. Fichte and F. W. J. von Schelling, Hegel (1770-1831) belongs to the period of “German
idealism” in the decades following Kant. The most systematic of the post-Kantian idealists, Hegel
attempted, throughout his published writings as well as in his lectures, to elaborate a comprehensive and
systematic ontology from a “logical” starting point. He is perhaps most well-known for his teleological
account of history, an account which was later taken over by Marx and “inverted” into a materialist theory
of an historical development culminating in communism. For most of the twentieth century, the “logical”
side of Hegel's thought had been largely forgotten, but his political and social philosophy continued to find
interest and support. However, since the 1970s, a degree of more general philosophical interest in
Hegel's systematic thought has also been revived.
The central point of his philosophy is the ideal of freedom – realization of which is the ultimate goal of
humanity. Freedom is achieved through a long and complicated process of thesis, anti-thesis and
synthesis. Hegel’s concept of freedom is based in spiritual foundations. Thus one has to rise above all
self-interests and not to interfere with others’ rights to freedom. Freedom must be governed by reason
and must accord respect to the rights of other individuals.
D. Natural Law Theories and Their Application.

The examination focus in this area of the syllabus can be divided in the following modes of analysis.
 First, is the appreciation of the development of Natural law theories in the various periods of history
and its influence or otherwise in its legal and moral aspects to legal theory. In this discussion the
emergence of legal positivism in the 19th century must be noted and in particular its impact on Natural
law as an alternative and more compatible theory is to be considered. Another important phase would
be to examine the re-emergence of Natural law in the 20th century would be relevant to demonstrate
the overall evolution of Natural law and its application in relation to issues of law and legal systems.
The most important discussion here would be to consider the merits and advantages which Natural
law theories have demonstrated despite the strong arguments which have been advanced to show
that Natural law is an arbitrary and indefensible theory. There are many criticisms of Natural law to
this effect and a prudent student would be expected to dismiss the 'myths' surrounding such a sterile
claim that Natural law is inadequate towards providing and adequate basis of identifying the nature of
law nor as a model to structure a legal system. This is often referred to as the 'appeal-type'
discussion of Natural Law and the merits inherent in these theories.
 Second, is the all famous discussion which took place between Professor H.L.A. Hart and Professor
Lon Fuller in relation to the proper approach to determining the problems surrounding evil legal
systems and unjust laws. Their respective views were in relation to the 'Grudge-informer cases' in
particular but their positions are relevant to a broader discussion of the merits and demerits of
Natural law on one hand and legal positivism on the other in considering the limits of law and its
validity. Here the examiner would anticipate a student to be fluent with the arguments raised by Hart
and Fuller and most importantly how the other jurists you have studied would approach such a
dilemma in dealing with such conceptual questions such as law and morality and its relevance in
areas of legality and legitimacy of the law. The student is also expected to have an opinion and
consider critically the values represented by the respective theories considered in this discussion.
 Third, a specific discussion in relation to the 'inner morality of law' as advanced by Professor Lon
Fuller and the potential advantages of this sort of reasoning. Here the student is first, required to
evaluate Fuller's procedural morality in comparison with the classical Natural law theory and second,
to assess the inner morality of law in light of Hart's criticisms of it.
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 Fourth, is the issue in relation to the 'Minimum content of Natural law' which Professor Hart
subscribes to and here the student needs to consider the rationale for this proposition in light of the
fact that Hart is a legal positivist and this concept of the Minimum Content of Natural law is surely
referable to morality or atleast some moral considerations in relation to the existence of a legal
system. The student would again require to demonstrate a critical evaluation as to the soundness and
adequacy of such a concept in the The Concept of Law, Chapter 9.
Some important considerations.

It is of fundamental importance in the discussion here to consider the standpoint adopted by Professor
Ronald Dworkin in his jurisprudence as to the value inherent in Natural law and how issues of morality
have a fundamental role to play in legal theory and history. Here reference to Dworkin's analysis of law
and criticisms of legal positivism in Taking Rights Seriously, Chapter 2 & 4 and Laws Empire must be
considered.
According to Dworkin, the central tenet of legal positivism is to analyse legal concepts, i.e. to search for
the meaning of law by reference to the formal criterion of validity. It is Dworkin's view that herein lies the
defect of positivism. Legal theories must move from an analysis of words to an interpretation of the
fundamental purposes of legal practice. The correct interpretation of legal practice must have both a
descriptive and prescriptive aspect. According to the latter, legal practice must be good as can be from
the moral, rational or political point of view. Thus, the central concern of the interpretive view of legal
theory is not merely a formal analysis but also the discovery of law's moral purposes.
Professor Dworkin's interpretive analysis of law does not represent the classical definition of Natural law
in that his theory is not referable to any metaphysical assumptions discoverable in nature by use of
reason. Instead, the Natural law aspect he is referring to is that the fundamental purpose of law is to
answer the requirement that a political community act in a coherent and principled manner towards all its
members. Another great concern of the law is equality. Law is about constructive interpretation - herein
lies the importance of finding the meaning of law by reflecting the element of integrity and treating
individuals with 'equal concern and respect'.
It would be Dworkin's contention that the blind loyalty to the demarcation between law and morals and the
failure of the legal profession to protest against evil laws is in itself a pervasive act - an act which fails to
uphold the moral purpose of law with integrity and equal concern and respect for individuals.
Next, references to Professor H.L.A.Hart here is in relation Chapter 9 of The Concept of Law and it would
be crucial for the student to understand certain fundamental methodological points here.
An understanding of Chapter 9 would demonstrate that Hart's insistence upon the importance of
recognising the involvement of morality in the development of law would go to suggest that
methodologically there appears to be a serious flaw in Hart's theory when he has claimed that his aim is
to provide and analysis of law which is purely descriptive in that it is morally neutral and has no
justificatory aims [June 1996, Zone B]. This is to be found in the Postscript. The student would need to
with the analysis derived in the Grudge-informer and Minimum content of Natural law discussion proof
that this is not true.
Ironically, in the Preface to The Concept of Law, he states that the book may also be regarded as 'an
essay in descriptive sociology' and the fact that he intends to demonstrate that 'law, coercion and
morality are different but related social phenomena' goes to suggest the existence of some contradiction
in the Postscript.
For example, when Hart refers to the wider approach as being better in dealing with the Grudge-informer
problem, and the use of retrospective legislation and its implications on the nulla poena sine lege
principle would demonstrate that Hart does not indulge in a purely descriptive explanation of validity and
legitimacy. By recognising the variety of complex moral issues involved, it is submitted that there are
moral and social connotations in this approach - it is not morally neutral therefore. As suggested by Dr
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Guest, it may be submitted that Hart is moving from a descriptive - prescriptive - interpretive account of
law and legal system. Surely in this regard his theory cannot be without justificatory aims!!!
Hart's defence would be that his theory is purely descriptive in that he recognises the merits of linguistic
philosophy which has a dominant role in his methodology. Further, as opposed to Professor Dworkin,
Hart would argue that his legal theory addresses legal systems in general whereas Dworkin's enterprise
is in relation to particular legal systems. In this way, his theory has no justificatory aims.
E. The development of Natural law theories

The essential discussion surrounding Natural law theories is the issue as to whether morality is a
necessary part of legal validity. This issue is dealt with by both the classical Natural lawyers and the
procedural Natural lawyers and they both share a similar sentiment in that morality is a central aspect of
legal validity. Their positions differ only in relation to the focus they place on morality.
The classical Natural lawyers adopt the view that the substance of the law must be regulated by morality
and thus provide a substantive definition of law and morals. The procedural Natural lawyers, however,
are of the opinion that what is crucial is that the procedures which are involved in the law-making
process must be moral. It is in these respects where it is submitted that the procedural or modern
Natural law thinkers are more practical and sensible in their respective methodology. This is on the
premise that there is more objectivity and it is realistic to accept such views as opposed to the classical
doctrine which emphasise upon some metaphysical assumptions which law must strive to achieve in
order to be valid. This reasoning is fraught with difficulties and does not accord with reason.
The classical theories in fact claim that right reason demonstrates what is moral and right and this is
according to their views the 'higher' law which law must subscribe to. At this point it is submitted that this
analysis bases on right reason is flawed.
Thus if the starting point to Natural law theories is that the identification of law is a moral process and that
law cannot be validly independent of its moral content, the classical position is espoused in the maxim
'lex inuesta non est lex' which essentially means an immoral law is not a law. There are various views
and positions encapsulated in that simple idea. The student is advised to be familiar with these various
views by adopting the following developmental stages:
 Aristotle and the Stoic period. The early Greek philosophers whose works until today greatly
influence western thought spans from the early literature in Politics and Nichomachean Ethics
through to the writings during the Roman period with Ciceroand the like.
For the Greek philosopher, Aristotle, man is part of nature and in the Politics put the view that 'man is by
nature a political animal', which essentially means that it is human nature to associate in political ways.
The end or telos of human nature is political association, and the "nature" of something is the end
towards which it is directed. It is in the "nature" of a gumnut to grow into a gum tree, or more traditionally,
of an acorn to grow into an oak. "Nature" is taken by Aristotle to mean the natural and perfect end which
is inherent in something: that towards which it strives. Thus the association of people in a state is a
natural entity, because it is in men's nature to form political groupings. Thus Aristotle thinks that states
are "natural" in the sense that they are the end product of man's nature.
Then in the Middle Ages, came the notion of the "law of God” replacing the Aristotelian concept of the
"law of Nature” as the ultimate criterion whereby society and law might be evaluated. The best
representation of this view is the Stoic version demonstrated by Cicero in De Republica. He defines
Natural law as "right reason in agreement with Nature", and that "one eternal and unchangeable law will
be valid for all nations and for all times, and there will be one master and one ruler, that is God, over us
all, for He is the author of this law, its promulgator, and its enforcing judge."
 St. Thomas Aquinas (in Summa Theologica). It is the Catholic Church that really gave expression to
the full blown philosophy of Natural law as we understand it today.
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For Aquinas human posited law draws its power to bind from Natural law. His definition of Natural law
speaks of participation of the eternal law in rational creatures. Aquinas following Plato and Aristotle
postulates a separate intellect which causes in us our own power of insight. Humans (as opposed to
animals) participate in Natural law in this sense: we are able to grasp the essential principles of Natural
law, i.e. human nature's Creator's intelligent and intelligible plan for human flourishing. But we grasp it not
by any kind of direct knowledge of the divine mind but rather 'all those things to which man has a natural
inclination, one's reason naturally understands as good (and thus 'to be pursued') and their contraries as
bad (and as ' to be avoided').
The most important position adopted by Aquinas and one which according to Professor John Finnis has
been widely misconstrued is that a law which fails to conform to natural or divine law is not law at all. This
is normally expressed in the maxim 'lex inusta non est lex'(an unjust law is not law). It appears that
Aquinas never himself never made this assertion but merely quoted St. Augustine. Certainly Plato,
Cicero and Aristotle expressed similar sentiments. What Aquinas seems to have said was that laws
which conflict with the requirements of Natural law lose their power to bind morally. In other words, a
government which abuses its authority by enacting laws which are unjust (unreasonable or against the
common good) forfeits its right to be obeyed - because it lacks moral authority. But he does not suggest
that one is always justified in disobeying it, for though he says that if a ruler enacts unjust laws 'their
subjects are not obliged to obey them', he adds 'except, perhaps, in certain special cases when it is a
matter of avoiding, 'scandal' (i.e. a corrupting example to others) or civil disorder. This argument has
been central to Professor Finnis' theory in the Restatement of Natural Law and Natural Rights where he
spends effort to dispel the radical claims sometimes made in the name of Aquinas which seek to justify
disobedience to law.
 The 'Natural rights thesis'. This demonstrates the metamorphosis of Natural law from what was
essentially a legal and religious doctrine into a political one. Hugo de Groot, Grotius as he is
generally called, is normally associated with the secularisation of Natural law. He even went to the
extent of claiming that even if God did no exist, Natural would have the same content. What he
means by this, is that he is not denying the existence of God but is stressing that is what is right or
wrong are matters of natural fittingness, not of arbitrary divine fiat.
The people who had great influence over this period were John Locke A Treatise cConcerning Civil
Government), Thomas Hobbes (Leviathan), Jean Jacque Rousseau (Social Contract) and Baron De
Montesquieu (The Spirit of Laws)
In all of these natural rights theories (also referred to as social contract theories) Natural law was seen to
provide for certain inalienable human rights, the transgression of which provided the justification for
revolution. Both the American and French Revolutions received much of their intellectual justification
from these theories.
The political application of Natural law theory is bound up with various 'contractarian' theories which
conceive of political rights and obligations in terms of social contract. This 'contract' is not an agreement
in a strict legal sense, but contains the idea that only with his consent can a person be subjected to
political power of another. This approach continues to have a hold on the thinking of contemporary liberal
theories, most notably John Rawls.
Thomas Hobbes was of the view that the state of man before the social contract, i.e. in his natural state is
'solitary, poor, nasty, brutish and short'. Natural law teaches us the need for self-preservation: law and
government are required if we are to protect order and security. Thus, we need to by the social contract,
to surrender our natural freedom in order to create an orderly society.
John Locke, on the other hand portrays that life before the social contract was almost totally bliss. One
major defect, however, was that the state of nature of property was inadequately protected. He attaches
considerable importance to man's right to property. For Locke, therefore, it was in order to rectify this flaw
in an otherwise idyllic natural state that man forfeited, under the social contract, some of his freedom.
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Locke, argues that when a government is unjust or authoritarian, the right of 'oppressed' people to resist
tyranny and overthrow the government is justified.
Rousseau on the other hand conceives the social contract as representing the agreement between the
individual and the community by which it becomes part of what Rousseau terms as the 'general will'.
Thus there are certain natural rights that cannot be removed, but by investing the 'general will' with total
legislative authority the law could infringe upon these rights. As long as the government represents the
'general will' it may do almost anything. It appears that Rousseau although committed to participatory
democracy, is also willing to invest the legislature with virtually untrammelled power by virtue of its
reflecting the 'general will' - he is a democrat and yet a totalitarian.
 The decline of Natural law theory in the 19th century. Here the student needs to consider the
arguments as to why Natural law theories declined, at least in the context of Europe. The birth of
legal positivism must also be considered in the English context at this stage. The development of the
'rationalist' movement has to be considered here, particularly the views of David Hume and
Immanuel Kant.
In the context of Europe, the decline of Natural law is due to the emergence of the newly politically
sovereign government of the 18th and 19th centuries. In England, in the 20th century, the emergence of
legal positivism which was identified with Jeremy Bentham and John Austin was the prominent legal
thought. Positivist theories of law may briefly be described as those which concentrate upon a description
of law as it is in a given time and place, by reference to a formal, rather than moral or ethical, criteria of
identification. Such theories do not necessarily deny the possibility or relevance of moral analysis; they
do, however, deny that criteria deriving there from can have any part in the identification of law as such.
It is submitted, that there is hardly a tension between these theories of law as it most commonly held.
The conflict suggested can be resolved by accepting that Natural law and legal positivism may not be
asking the same questions about the la, in which case the differences between their answers are hardly
surprising
F. The 'deductive fallacy' argument - the epistomological criticism.

The other development generally associated with the decline of Natural law is the proposition that in
moral reasoning there can be no rational solutions: we cannot objectively know what is right or wrong
(this is referred to as 'noncognivitism in ethics') and it is commonly associated with David Hume. He is of
the view that it is not possible to derive an 'ought' from an 'is' which the Natural lawyers seem to suggest.
We cannot conclude that the law should assume a particular form merely because a certain state of
affairs exists in nature. Facts about the world or human nature cannot be used to determine what ought
to be done or not done.
Again the student must appreciate the view provided by John Finnis in the 'Restatement of Natural Law
and Natural Rights' where he agrees with Hume but is of the opinion that this was not the position made
by the classical Natural law theories.
Essentially, the main criticisms which have been advanced towards the decline of Natural law are as
follows:
 Moral prejudices and thus it is irrational;
 Undemonstrated claims about God and nature and it is indefensible in nature;
 Subjectivity of morality; and
 Each particular Natural law theory is grounded on a particular historical and social context and thus
gives rise to arbitrariness.
It is worth nothing Alf Ross', in 'On Law and Justice' comment here that 'Natural law is a harlot at the
disposal of everyone' which essentially is a sign of warning that Natural law theories have been applied
to represent the needs and demands of those in power and as such we should not be deceived by the
majesty of Natural law theories which can and have been abused by many for their less than noble
purposes.
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However, this point advanced by Alf Ross has been argued to demonstrate the merits inherent in Natural
law as it has been argued by its supporters that herein lies the flexibility of the doctrine in the sense that it
can be used to justify important outcomes in legal theory. Clarity is also the appeal here.

th
The revival of Natural law theories in the 20 century. A number of factors have contributed to a
reawakening of Natural law theory. The major landmarks in this evolution are as follows:
(a) the post-war recognition of human rights and their expression in declarations such the Charter of the
United Nation, the Universal Declaration of Human Rights, the European Convention on Human
Rights, the Declaration of Delhi on the Rule of Law of 1959. Natural law is conceived of, not an a
'higher law' in the constitutional sense of invalidating ordinary law, but as a yardstick against which to
measure positive law. Thus the Universal Declaration of European Human Rights speaks of its terms
merely as a ' common standard of achievement'.
(b) The impact of the Nuremberg trials which established the principle that certain acts constituted
'crimes against humanity' regardless of the fact that they did not offend against specific provisions of
the positive law. The judges in these trials did not appeal explicitly to Natural law theory, but their
judgments represent an important recognition of the principle that the law is not necessarily the sole
determinant of what is right.
(c) The neo-Kantianism approach developed, in different ways, theories of law as 'justice' which
envisaged the historical realisation of a community of rational, autonomous agents.
(d) The neo-Thomism approach which is associated with the work of John Finnis.
(e) The development of constitutional safeguards for human or civil rights in various jurisdictions (e.g.
the American Bill of Rights and its interpretation by the United States Supreme Court)
(f) The natural law theory of Lon Fuller and Hart's Minimum content of Natural law.
Particular emphasis would be placed on the arguments of Roger Cotterrall in Chapter 5 in The Politics of
Jurisprudence where he provides a sociological background as to the appeal or merits of Natural law
reasoning.
The main argument here is that in the 19th century with the emergence of legal positivism as a dominant
theory may not after all be very comforting as it is only operational in circumstances of 'relative stability'
as to present a reassuring picture of orderly legal knowledge and uncontroversial, professionally
understood structures of authority in legal systems. Legal positivism is ill equipped to deal with political
turmoil or rapid political change. Natural law's appeal on the other hand, arises from its willingness to
meet head-on with the moral-political issues of legality in times of instability and conflict. Natural law is
resorted to control the raging social processes of late modernity.
Further, it is Cotterrall's view that there is depth in saying that legal positivism is not a rival theory to
Natural law but rather would be better viewed as a complementary doctrine to Natural law. This is on the
basis that there only exist shifts of emphasis and altered concerns due to the felt political and
professional necessities -i.e. a change in the nature of law itself and its political and professional
environment.
As regards law's authority, therefore, the primary difference between positivist theory and Natural law
theory is not a polar opposition but a difference as to how far inquiries about the law's ultimate authority
should be taken, insofar as positivists are prepared to admit that law's authority over the individual can be
evaluated in moral terms and Natural lawyers are prepared to recognize political authorities such as the
state as having general, inherent law-making authority. The conflict between Natural law and positivism
thus tends to become a dispute as to whether the authority of a legal system as a whole can only be
understood and judged in relation to some specific moral purpose (such as the promotion of the common
good) for which all legal systems exist. The response of the natural lawyers is in the affirmative whilst the
legal positivists respond in the negative,
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Nevertheless, part of the motivation for rethinking the relative virtues of legal positivism and Natural law
th
theory has come from 20 century experience of tyranny and political instability, and especially from ex
post facto reflection by jurists on the legal history of the German Third Reich (1933-1945).
It is submitted, another element of merit in Natural law reasoning, is that there are more important
obligations, higher ideals, than obedience to the positive law of the state. Therefore, the Natural lawyers
see fit to denounce certain rules as invalid which fundamentally contravenes certain 'natural' criteria even
though they pass all the formal characteristics of the legal system.
th
G. Natural Law & the 20 Century
The 20th century experience of tyranny and political instability and the legal history of the German
Third Reich [1933-1945].
The debate between legal positivists and Natural lawyers, in this context, becomes a debate about the
meaning the Rule of Law - the question here being should it be understood as the positivist aspiration to
remove political and moral choices as far as possible from the determination of rights and duties; or
should it be seen as the Natural lawyer's insistence that morally acceptable purposes must govern the
unavoidably political decisions as to what rights and duties will be held to exist?
One of the most direct confrontations, between the positivist H.L.A. Hart and the American natural lawyer,
Professor Lon Fuller, centered in part on the discussion of the way in which post-war German courts were
apparently evaluating the legality of acts done during the Nazi period and which were claimed to be lawful
on the basis of Nazi law.
The 1958 Hart-Fuller debate is a good starting point in considering the recent confrontation of legal
positivism and modern Natural law in the Anglo-American context, and especially as an introduction to
Fuller's influential ideas.
Hart argues that the positivists' analytical separation of law and morality is an aid to clear thinking; it
avoids confusing legal and moral obligations. To say that a rule is a valid law (judged by such positivist
criteria as its being the sovereign's command, authorised by a rule of recognition or imputed from a basic
norm) merely asserts the existence of legal obligation. Whether one ought morally to disobey an unjust
law is a matter about which positivist analytical jurisprudence can remain uncommitted, for moral issues
are not within its province.
For Fuller, however, such a view is both unrealistic and dangerous. It oversimplifies problems of
obligation under a manifestly unjust regime and it sets up an unreal opposition - a legal obligation to obey
as against a moral obligation to disobey; as if one can keep them separate. It assumes that there can be
order in a legal system without any moral content in it. For Fuller, the legal obligation to obey laws does
not automatically follow from the enactment by a recognised, formal procedure. It depends on the legal
system's claim and ability to command, what Fuller calls fidelity to law. When certain minimum moral
qualities cease to exist in a legal system, it ceases to command fidelity; that is, it ceases to have a claim
upon the citizen's obedience. The order and coherence of a legal system (its ability simply to go on
functioning) depend on a minimum moral content. Without this it ceases to be a legal system at all.
Thus, Fuller attempts to show that stable forms procedure of law and the nature of its authority are linked.
What was apparent in the Nazi period was a disintegration of these forms and procedures in practice;
there was a decline in the procedural propriety, i.e. in the internal morality of law and a legal system as
such ceased to exist in Germany. The rules were not only inefficient but equally lacked all procedural
fairness and propriety - procedural arbitrariness.
The historical example of Nazi Germany provides material to illustrate Fuller's thesis. To assume, as Hart
does, that the only difference between Nazi law and English law was that the Nazis used their laws to
achieve purposes odious to English people is, Fuller argues, to ignore the much more fundamental moral
difference between the two legal regimes. Nazi law made frequent and pervasive use of methods which
show, in terms of Anglo-American standards, a most serious pervasion of procedural regularity. For
example, frequent use was made of retroactive statutes to ensure irregularities. A notorious example
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occurred after the Roehm purge of June 30th and July 1st 1934, when, on Adolf Hitler's orders, more than
rd
seventy members of the Nazi party were shot. On July 3 , a law was passed ratifying the massacre as a
series of lawful executions. Hitler apparently later declared that at the time of the purge 'the supreme
court of the German people consisted of myself'.
Secondly, Fuller, notes 'repeated rumours' of secret laws and regulations making it impossible for most
people even to discover the rules upon which officials were supposed to act. More generally, however,
since unpublished instructions to those administering the law could destroy the letter of any published law
by imposing on it an outrageous interpretation, there was a sense in which the meaning of every law was
'secret'.
Thirdly, when legal formalities and procedures became inconvenient to the Nazi regime they could be
bypassed by means of Nazi gangs taking action 'on the street' and achieving the required objective by
violence.
Fourthly, the Nazi dominated courts were always ready to disregard any statute, even those enacted by
the Nazis themselves, if this suited their convenience or if they feared that a lawyer-like interpretation
might incur displeasure 'above'.
H. The Nazi Grudge-Informer Cases.

The Nazi grudge-informer cases concerned with the problem posed by the existence of morally evil laws.
The discussion focuses on the issue of legal validity and the resistance to unjust law or the necessary
connection between laws and morals from the point of view of Natural lawyers and legal positivists.
The Nazi grudge-informer cases are samples of such cases wherein the West German Court of Appeal
had to decide in relation to those accused's obeying Nazi laws. The brief facts are as follows:
In order to prevent dissent, Hitler made a law in 1934 forbidding dissent against the Third Reich. A
woman reported her husband who made disparaging remarks of Hitler and his regime to the Nazi
authorities. The husband was duly convicted and sentenced to death in 1944 but he was sent to the war
front from which he survived to institute an action against his wife for unlawfully depriving him of his liberty
under the German Criminal Code 1871, which remained in force throughout the nazi period that it was
unlawful to deprive one's liberty. So in 1949, the woman was prosecuted and in her defence pleaded that
she had acted lawfully then under the Nazi regime. Both the lower court and the appeal court were not
prepared to hear such arguments. She was found guilty of unlawfully depriving her husband's liberty as
she was under no legal duty to do so.
Moreover, the appeal court held that the 1934 statute was so contrary to the sound conscience and sense
of justice of all decent human beings and therefore such laws were not valid. This has been hailed as a
triumph of Natural law over the dominance of legal positivism. 'Like a phoenix it rose from the ashes to
give hope and comfort, shining brightly than ever before over the dark and bleak landscape painted by
the legal positivists'.
Similar reasoning and the consequent invalidating of evil Nazi laws followed in many such cases, and
was followed by the International Military Tribunal in Nuremberg. Such naturalistic thinking prevails even
today. In January 1992, the German court sentenced an East German border guard at the Berlin Wall for
a term of imprisonment for killing an Eastern German would-be escapee. In November 1996, the UN war
crimes tribunal sentenced Drazen Erdemovic, a former junior member of the Bosnian Serb army to 10
years’ jail for the massacre of hundreds of Muslim civilians in July 1995. These cases were hailed as a
triumph of Natural law over legal positivism. What the grudge informer did was to truly offend our sense of
justice and morality and she rightly deserved to be punished. She and the others have no defence
because their protection under the statute were without the force of law.
Similarly, after World War II, some legal scholars in Germany rejected legal positivism for sound reasons.
Gustav Radbruch, for example rejected his earlier positivistic standpoint in the light of the Nazi
experience. According to Radbruch the principle of humanitarian morality was part of the concept of
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legality and that no statute could be law unless it conformed to these principles. Radbruch's doctrine
meant that lawyers and judges should denounce statutes that did not meet humane purposes not only as
immoral but also as not legal. By using a Radbruchian approach, the courts argued that the rules on
which the defendants relied were not laws because they were in conflict with the fundamental principles
of morality - that is, with Natural law.
Franz Neumann, a German jurist was of the view that the system in Nazi Germany was a 'technique of
mass manipulation by terror'[1944]. Law must be both voluntas(the expression of sovereign power) and
ratio(the expression of reason or rational principles grounded on ethical postulate).
Otto Kircheimer was of the view that Nazi regulations was wholly guided by policy demands and could be
changed anytime, if necessary by retrospective legislation. It was to execute commands to have the
maximum effect in the shortest period of time. [1961]
Legality for Fuller concentrates on procedural questions in Natural law and rejects Radbruch's appeal to a
higher law, he believes that there is a serious question of whether Nazi Germany had a rule of law since
the Nazis made extensive use of retroactive legislation and secret laws. Fuller's position, no less than the
traditional natural law one, is that it is doubtful that German war criminals could claim in their defence that
they were merely following the law. Fuller argues that the acceptance of legal positivism in pre-Nazi
Germany 'made smoother the road to dictatorship'.
Fuller's demand for legality is itself a moral demand - hence a purposive view of law as that demonstrated
by Fuller is concerned with constructive issues as to how to infuse the highest legal virtues into systems
and not with such questions of legal pathology as to whether nazi law was too evil to be law. Fuller shows
that the achievement of legality is not merely the acceptance of a set of moral principles. It is a matter of
judging the point on the moral scale between duty and aspiration where each component of legality, as
related to each concrete problem of legal regulation in the particular legal system concerned should be
set.
Fuller's criticism of legal positivism is that their reliance on legal positivism is inadequate as it does not
take into account that law is after all a purposive enterprise. It must not be valid but must also represent
an element of fidelity to the law as legitimacy depends upon this factor. Thus for Fuller, the inner morality
of law represents eight features or 'desideratas' which law must demonstrate. These eight elements are
as follows:
 Laws must be general - the laws in Nazi Germany were not general in the sense that there was
discrimination amongst the races as there were no laws per se there but rather policies of the
government which were forms of ideology. Professor Dworkin shares a similar sentiment as Fuller
who was of the view that the laws in Nazi Germany lacked moral force, i.e. integrity. This was on the
premise that the practices adopted by the legal profession and the judiciary were flawed.
 Laws must be published - secret laws were prevalent and the form of punishments applied were not
known to the public.
 Laws on the whole should not be retrospective as it would cause unfairness. Interesting to note here
that having said this Fuller's remedy to the Grudge-informer problem was to introduce retrospective
law for a fundamentally different purpose.
 Laws must be clear and intelligible - the laws in Nazi Germany represented ambiguity and it did not
preserve certain fundamental humanitarian rights.
 Laws must be consistent - there was lack of any consistency in Nazi Germany with regards to the
application of laws and the administration of rights of individuals. The laws in Nazi Germany were
frequently modified to suit the needs of those in power which did not provide any degree of certainty
to those living there at that time to plan their affairs.
 Laws must be capable of achievement - this feature presupposes the need that laws must not tell you
to do the impossible.
 Laws must not be contradictory.
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 Laws must demonstrate a degree of congruence between the officials - there was a lack of
agreement between the officials’ announcement of what the law is and what the officials actually did.
These eight principles are not eight principles of morality but rather principles of efficiency. This is on the
premise that one can conform to the eight principles and nevertheless have an evil legal system because
they have no relation to morality. This is one of the points which Professor Hart took objection to when he
criticised the eight principles of morality to be similar to the 'eight principles of torture or poisoning'. What
Hart says here is that there is nothing moral about the eight principles of morality which Fuller prescribes.
It is submitted, that the immediate objection which can be advanced against Hart at this point is that he
has totally misunderstood the philosophical dimension inherent in Fuller's thesis. This is because Fuller
himself concedes that the inner morality of law is subject to abuse and thus produce and evil legal system
and this is due to the lack of aspiration demonstrated by the officials towards achieving a fully flourishing
legal system. At this juncture it is worth nothing that Fuller's method is to ensure that the approach to
proper law-making is determinant upon adopting the eight principles of morality which in itself would
produce moral results and this is an internal process - the officials thus have to adopt an internalised
commitment and attitude towards achieving these eight principles with the highest virtue and integrity -
which in Fuller's theory is referred to as the morality of aspiration.
Fuller's objective is to provide a descriptive account of law as well as a prescriptive aspect in the sense
that if laws are made properly it would always justify the existence of good laws. It is here where Fuller
claims that good laws should have an inherent logic which evil aims lack and it is in these respects, where
the laws of Nazi Germany are open to criticism. Hence,
There is a close similarity in legal reasoning here with the theories of Hans Kelsen and Ronald Dworkin.
In the case of the former, it is clear that the attainment of the Pure Theory of Law which is premised upon
the idea of the assumption of validity very much depends on the officials of the legal system to make such
an assumption. Thus there is the need of commitment and belief on their parts to ensure that this task is
concluded. Similarly, in the case of the latter, the objectivity of the law and to demonstrate that the task of
law-making is one of constructive interpretation is one in the hands of the legal profession and the
judiciary. It is in their responsibility to ensure that the law reflects integrity.
The other criticism which has been advanced by Hart against Fuller is that by the morality of aspiration,
what is advocated is that so long as the officials aspire to maximise their commitment in ensuring the
maximum number of principles are endorsed, a legal system would be valid but might be in the stage of
disintegration in the future. Here Hart claims that there is a flaw with such a reasoning. There cannot be a
system where the legal system exists and does not exist. Professor Harris in Legal Philosophies echoes
that a woman cannot be half pregnant in this sense.
It is again submitted here that there is merit in what Fuller attempts to state. By the morality of aspiration,
Fuller is of the opinion that the responsibilities of the officials is to maximise their efforts in endorsing a
legal system which is demonstrative of the 8 principles of morality; however, in certain situations,
practicality will dictate that not all the eight principles will be endorsed. In these situations, the legal
system will have a tendency to collapse as it lacks full or complete legal and moral propriety.
I. The HART-FULLER discussion.

Professor Hart in Chapter 9 to The Concept of Law explains that he prefers to adopt the wider positivistic
conception of law as opposed to the narrower Radbruchian approach that excludes immoral laws from
the body of valid laws. The wider conception, that separates the validity of law from its morality, is morally
preferable for the following reasons:
 It helps us to study both evil and good legal systems as the study of its use involves study of its
abuse;
 It separates the validity of law from its morality; and
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 It helps us to grapple with the complex moral issues (such issues would not otherwise exist if we take
the blanket approach of Natural lawyers that an unjust law is not a law.)
Professor Hart's stronger reason for preferring the wider interpretation of law is that it enables us to think
and say 'this is law but iniquitous'. To withhold legal recognition from iniquitous rules may grossly
oversimplify the variety of moral issues to which they give rise.
The complex moral issues identified.

There are two moral issues inherent in Professor Hart's reasoning. First, it enables us to weigh two moral
obligations, that is, our moral obligation to obey the law. Positivism is concerned to promote certainty and
public ascertain ability of law; to know what counts as law we need an objective and formal test. Thus to
depend on the moral content of law to determine its validity would give rise to confusion and subjectivity
as what truly counts as law. Hence even if we morally disagree or disapprove of certain laws, we have a
prima facie moral obligation to obey them. On this score, law makes a moral claim on our behavior.
However, this moral obligation to obey must be weighed against the second moral obligation to resist an
evil law for that is the just, right and decent thing to do. In the Grudge-informer case, the wife had a moral
obligation to resist Hitler's anti-dissent law as that law was evil and it would have been just and right not to
obey it. Legality or validity is a separate albeit related issue from that of its obedience.
The second moral obligation that the separation thesis helps us to grapple with is the question which
confronted the post-war German courts. 'Are we to punish those who did evil things when they were
permitted or under directives by evil rules then in force'? The courts disposed of this moral dilemma by
declaring evil rules to be not laws. But Professor Hart says that 'this is too crude a way to deal with
delicate and complex moral issues'.
The moral dilemma

Professor Hart says that the dilemma is about the choice between two evils if we were to adopt the wider
conception of law. First, to let the wife 'off' which is in itself an evil as that would be to condone her
immoral act. The second evil is the enactment of retrospective legislation to remove her protection by
repealing the evil 1934 Nazi statute. She would then stand condemned under the German Criminal Code
1871. Professor Hart, 'In Essays in Jurisprudence and Philosophy' argues for retrospective legislation, as
he says, 'odious as retrospective criminal legislation and punishment may be, to have pursued it openly in
this case would at least have had the merits of candour…as it is the thing to do with a moral quandary is
not to hide it'.
Hart further explains that to punish the evil-doer by denying the validity of the law by which she did the
evil act on account of its injustice will offend one fundamental moral principle.This is the principle of nulla
poena sine lege' or no punishment without law. This means that if what she did in the past was within the
law, it should not now be declared illegal. It can only be done by retrospective legislation that outlaws her
previous act. Hart concludes his analysis by saying that the retrospective punishment should not be made
to look like an ordinary case of punishment. It is a vital issue that an inroad has to be made on this
principle and in the extreme circumstances that the iniquitous rules are so evil, there is no guise for the
choice between two evils that a sacrifice of the nulla principle has to be made.
Hart in adopting the wider conception of law has brought an extra ingredient over the Radbruchian
narrower conception which does not allow for retrospective legislation. If the law is unjust then it is not law
at all. Therefore, there is no law to repeal and 'may blind us to them'.
It is Hart's contention that rather than wallowing in romantic optimism that the law can serve only ideal
purposes, we have to face the reality and the Natural law reasonings are 'too crude a way with delicate
and complex moral matter'. Nothing is to be gained if we hide the true nature of the problem. Thus at
page 210 of The Concept of Law, Hart states the following:
'What surely is most needed in order to make men clear sighted in confronting the official abuse of power,
is that they should preserve the sense that the certification of something as legally valid is not conclusive
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of the question of obedience, and that, however great the aura of majesty or authority which the official
system may have, its demands must in the end be submitted to a moral scrutiny'.
Hart, in prescribing to the wider conception of law is attempting to demonstrate that we must be open and
take full cognisance of this very important moral principle of nulla by recognising that the 1934 statute
which empowers the wife to inform on her husband, and then only sacrificing it by frank retrospective
legislation for a more noble purpose, i.e. punishing the offending woman. The point that Hart is trying to
make is that we must realise and understand with full consciousness that we are achieving our objective
only at the cost of sacrificing nulla in the process to do justice.
The nulla principle is thus, preserved in principle but factually sacrificed because Hart's approach is now
excluding her the defence that she had acted in accordance to the law then. Thus by retrospective
legislation the rationale of the nulla maxim has been transgressed but according to Hart this is a better
approach as the Natural law reasoning by declaring that the Nazi laws were not laws at all, simply does
not take into account the nulla principle. Further, the fact that the 1934 statute was not law at all, must
surely be a source of objection in itself.
The student needs to evaluate the merit inherent in this sort of reasoning. Particular concern should be
with regards to the use of retrospective legislation which according to Hart has a more profound
philosophical aim in his approach to the problem. Nevertheless, this does not detract from his view that
law is still law even if its content offends against our morality. He is stubbornly beholden to his contention
that:
'Here we shall take legal positivism to mean the simple contention that it is in no sense a necessary truth
that laws reproduce or satisfy certain demands of morality, though in fact they have often done so'. at
page 185 of The Concept of Law.
According to Hart the wider conception of law is also descriptively more sound as it recognises the Nazi
statute as valid whilst the Natural law method clearly does not recognise the validity of the 1934 statute
and thus disregards the wife's plea or defence as irrelevant as what she did was an offence under the
German Criminal Code of 1871.
There are also the merits of clearsightedness in legal positivism which enables us to recognise the
validity of valid law but yet be able criticise bad law which focusses on the issue of obedience to morally
iniquitous laws. This is absent from the Natural law reasoning.
Hart at page 209 of The Concept of Law:
'It seems clear that nothing is to be gained in the theoretical or scientific study of law as a social
phenomenon by adopting the narrower concept: it would lead us to exclude certain rules even though
they exhibit all the complex characteristics of law'.
For Fuller, as there were frequent and pervasive breaches of the inner morality of law during the Nazi
regime there was just no law nor legal system. Therefore, it follows that what the Grudge-informer did was
neither valid nor invalid. Paradoxically, like Hart, he suggests retrospective laws to deal with the dilemma.
Fuller's aim in prescribing retrospective laws is neither to punish the Grudge-informer nor to make invalid
what was valid. His motive for prescribing retrospective law it is to mark a 'clean-break' from the past: as a
clean-up operation so that the ideal of fidelity could be regained more quickly.
Thus, there is a sociological and professional implication in Fuller's analysis. It is submitted that he is
being practical by refusing to debate on the propriety of punishing the wife informer. Instead he appeals
that we do something. His idea of retrospective legislation is motivated by the objective of using law to
put the horrors of Nazi Germany behind us. The use of retrospective law here is to ensure efficiency in
that it appeals to law makers, judges and lawyers to change their mindset and from this point onwards to
pick-up the pieces and rebuild a shattered legal system.
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The inherent appeal arising from Fuller's Natural law approach is that it strains the limits of normative
legal theory as a rationalisation of legal professional knowledge, i.e. their portrayal of law a s a self-
regulating system. Hart who attempts to establish a coherent concept or Kelsen's attempt of a science of
law which reflects the normative views of rules or norms held by legal insiders is a suggestion of an image
of the Rule of Law as being inbuilt in the very concept of law or legal system. Fuller's procedural natural
law theory seeks to show the inadequacy of this formal Rule of Law conception. The inadequacy being
that legality is reduced in the implicit positivist conception to a professional understanding of the doctrinal
consequences of a logically integrated system of rules. The actual operation of rules is ignored and
largely irrelevant. The appeal present in Fuller's analysis of law is that he presents a view which is of a
different enterprise concerned with the examination of law in purposive terms. Thus, it is not presented as
an attack on legal positivism but rather to demonstrate the inappropriate narrowness or political and
social irrelevance of its project. Fuller’s claims are strong ones.
Thus the above assertion can be seen in Fuller's concern over the dilemmas and responsibilities of legal
professional practice, i.e. lawyers are not because of his or her allegiance to the legal system as a part of
the state apparatus absolved from moral responsibilities to other individuals or from a political
responsibility to defend the liberty of others - this is the price to be paid for the privilege of living in a
democracy.
The appeal inherent here is that the passive view of legality as that demonstrated by the positivists
helped the rise of Nazi tyranny; legal positivism blinds lawyers and others to the moral issues that may
surround governmental action. The claim is that legal positivism does not actively encourage a concern
with the moral responsibilities of legal practice. In this context, Fuller's belief in a humanistic and broad
approach to legal scholarship and legal education is part of his reaction against professional narrowness
of moral vision.
The student again would be required to evaluate the arguments provided by Fuller in an attempt to
appreciate the intricacies involved in the discussion here. The student must be committed to argue his/her
arguments justifying which view they consider better - do not sit on the fence! Have a say…after all they
are a variety of approaches provided to deal with this case and you surely will have one which you prefer.
The student should consider whether there is really a 'debate' in its true sense here or merely an issue of
methodological differences - Natural law theories suggesting the importance of the durability aspect which
the law must reflect to withstand the test of time in the future and the positivists' view which is to concern
itself for the present moment as to the validity of law and its legitimacy: Professor Dias is of this view. It
has to be said that in one sense both Professors Hart and Fuller are 'shadow-boxing on different planes'.
24
Positivism – Austin and The Command Theory
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Positivism – John Austin and The Command Theory of Law
CONTENTS
1. Preliminary Matters
2. The Meaning of Legal Positivism
3. John Austin’s Command Theory
4. Positive Law & Positive Morality
5. Austin’s Aims and methods of analysis
6. Other criticisms by HLA Hart
7. The role of Coercion in legal theory
8. Other arguments in defence of Austin
9. The Austinian Sovereign
Learning Outcome
At the end of this chapter students ought to have an understanding of the primary concerns of legal
positivism and in particular Austin’s Command Theory and its component elements. Criticisms of his
theory advanced by various jurists as well as arguments in his defence must be thoroughly
understood by students. In Hart’s Concept of Law, a substantial part of the book is devoted to
demolishing Austin’s theory and students ought to be familiar with Hart’s arguments as well his
methodology in attacking Austin’s theory.
Essential Reading
2. Hart’s Concept of Law, Second Edition.
3. Penner, Jurisprudence and Legal Theory: Commentary and Materials (Butterworths LexisNexis)
Further Reading
1. ‘Sovereign & Subject: Bentham & Austin’ from “The Politics of Jurisprudence: A Critical
Introduction to Legal Philosophy” by Roger Cotterrell, (LexisNexis).
3. “The Command Theory of law” from “Legal Philosophies” by J.W.Harris
1. PRELIMINARY MATTERS
The examination focus in this area of the syllabus can be divided in the following modes of analysis.
 First, is the traditional type of questions which focusses on the criticisms advanced by
Professor Hart in Chapters 2,3 and 4 of The Concept of Law as to the weaknesses inherent in
the command theory as it fails to adequately explain certain fundamental elements of law and
explain the existence of legal systems. Here the most common question is the distinction
between the ideas of ‘being obliged’ and ‘being under an obligation’ which Professor Hart in
Chapter 2 to The Concept of Law highlights in explaining the meaning of legal validity. It is
Hart’s view that the problem with the command theory of law is that in emphasising upon the
idea of ‘being obliged’, it has failed to appreciate the wider idea of legality or validity.
 Second, is the popular type of questions emphasising on the merits of Austin’s command
model. Here particular reference must be made to the works of Roger Cotterrell in The
Politics of Jurisprudence, Chapter 3 and Dr Wayne Morrison in ‘Jurisprudence: from the
Greeks to post-modernism’. The essence of these references provided by Cotterrell and
Morrison is to suggest that the criticisms advanced against Austin have exclusively revolved
around the idea of the command which is supported by the sanction and derived from the
Sovereign. The critics have failed to take into account the historical, moral and social
dimensions which surround the idea of the command theory. As such the criticisms have very
little merit for it represents the command theory of law as simplistic models of law. Thus a
great degree of injustice has been made about Austin’s theory and adopting Professor
Dworkin’s view, Austin has been represented in the worst light possible. The student would
have to consider these advantages and construct and answer dismissing the criticisms which
have been levelled against Austin. Most importantly, illustrating Austin’s ideas with examples
in relation to its political and professional consequences would be a rewarding exercise.
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 Third, is the discussion as to the element of sanctions. Here the respective views of the legal
positivists such as Austin, Hart and Kelsen must be discussed in relation to the role of
sanctions in their respective theories. The student must be in a position to show the
similarities and differences inherent in these theories - most important to this discussion is the
view as to whether every law must be referable to a sanction. Or whether the element of a
sanction is the motive/reason towards obedience to the law as Hart seems to suggest Austin
is saying or alternatively that there are other reasons which compel obedience to the law
where sanction is one of the reasons.
 Fourth, another more general theme here is to evaluate the meaning of legal positivism and
the arguments both for it and against it. In June 1998, Question 7(b) Zone B the examiner
asked the student the following question: Are you a legal positivist? We will start our
discussion in this chapter with this theme in mind.
2. THE MEANING OF LEGAL POSITIVISM

The overriding concern of legal positivism is to concentrate on the real, observable world and its
actual existence. It reflects a demand for a systematic legal science: to demonstrate modern legal
professionalism and to accommodate the political idea of law as a technical instrument of government
in modern western states. It is an aspiration towards a science of law. Its basic method is
descriptive: what exists and how can what exists be best described. Legal positivists seek to identify
the essential elements of the legal systems set down, or posited, by men. But there is no one theory
of legal positivism. Different legal positivists hold different views on what is essential. But the common
elements of legal positivism, from the perspective of how they differ from Natural law theories, is that
legal positivists want the study of law to examine the nature of stable rule systems. It is on such
examination that they focus, rather than the question of how, and to what extent, such systems can
be ethical or why they might persist over time. Like Natural law theories, their theories concern
themselves with the general and universal rather than the particular and specific. But what they seek
to generalise is the common features of all centralised rule based systems that are stable, rather than
the common features of all centralised rule based systems that are legitimate.
The ‘Separation Thesis’.

Legal positivism is built around the belief or assumption that the question of what ‘is’ the law is
separate from what the law ‘ought’ to be. The emphasis thus is that the law of legal systems is made
by human acts, posited or imposed on people and that the proper role for legal philosophy is not to
speculate about morality but to come to an understanding about the nature of legal systems. This is
not to say that morality is not important but that it is not a necessary element of the concept of
law and can be excluded from the analytical study of law.
The advantages claimed by the legal positivists in this sort of reasoning is that objectivity, certainty
and coherance in the law would be reflected. Thus, Professor Dworkin in Taking Rights Seriously
in Chapter 2 asserts that ‘positivism represents the belief that in the identification of law, the
relevant criteria has nothing to do with the content of law as long as it satisfies the pedigree
test’.
The issues of validity are assessed independently of its purpose. This is exclusively in relation to the
issues of legality of laws which must be kept apart from the issues of legitimacy of laws. This is the
descriptive stance taken by the legal positivists. However, philosophically, legal positivism cannot
be totally rejected as being exclusively based on ‘a priori’ assumptions since there are strong moral
reasons underlying legal positivism here when it attempts to distinguish law and morality. It is
submitted that only for these reasons it can be represented that legal positivism is a moral theory
and probably even a better or more acceptable theory. This argument is useful to consider when
posed with a question like can a choice of one legal theory rather than another be made on
moral grounds?
If the question is answered totally from a Natural law standpoint without considering the philosophical
aspects of legal positivism, the student is not providing the examiner the proper understanding of the
definitional aspects of these theories respectively.
The relevant examples which would be useful to highlight the descriptive and philosophical aspects of
legal positivism are as follows:
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 Jeremy Bentham and John Austin, descriptively emphasise on the need of ‘habitual
obedience’ to a Sovereign to determine legal validity; philosophically, however, Bentham
endeavours to distinguish between ‘expositorial’ jurisprudence (mandate theory) and
‘censorial’ jurisprudence (theory of utilitarianism). Austin, on the other hand, philosophically
can be considered to place a strong commitment to utilitarianism as an objective theory of
ethics. This is evident when he states in The Province of Jurisprudence Determined, at page
184: ‘…the existence of law is one thing; its merit or demerit is another’.
 Professor Hart has said, at page 185 of The Concept of Law: ‘Here we shall take legal
positivism to mean the simple contention that it is in no sense a necessary truth that laws
reproduce or satisfy certain demands of morality, though in fact they have often done so’. at
page 185 of The Concept of Law Here the ‘social acceptance’ of the Rule of Recognition by
the officials is significant of whether a particular rule is valid. Whilst this may be the
descriptive aspect of his legal theory, there are several elements in his analysis which reflect
strong moral concerns throughout the book.
For example:
 The existence of the Minimum content of Natural law is seen to provide a useful guide for the
content of positive legal systems;
 The importance of the nulla poena sine lege principle and the use of retrospective legislation
to find the woman guilty in the Grudge - informer case is yet another strong moral argument in
Hart’s favour where he has claimed that: ‘… however great the aura of majesty or authority
which the official system may have, its demands must in the end be submitted to a moral
scrutiny’.(page 210 of The Concept of Law)
 In the discussion on the enforcement of law and morals, Hart’s idea of the law having a
paternalistic role and his liberal attitude in general demonstrates the significance of his moral
stance in these respects - he takes objections to Professor Devlin’s approach and feels that
the rights of individuals are to be placed in some important position (not to the extent of what
Professor Dworkin refers to however.)
 In discussing about the merits of a rule based system, the essential credential of all rules is
the existence of the element of critical reflective attitude (i.e. the internal point of view) and the
provisions of secondary rules to cure the defects in a pre-legal system which consists of
primary rules alone is another aspect demonstrating moral consideration on Hart’s part in
Chapters 5 & 6 of The Concept of Law.
3. JOHN AUSTIN’S COMMAND THEORY

During the 19th century a particular brand of legal positivism in England developed, which became
known as analytical positivism. Its spiritual father is the utilitarian philosopher Jeremy Bentham who
wrote extensively about law amongst his extensive writings about many other subjects. Bentham’s
moral philosophy of utilitarianism which is concerned with producing ‘the greatest happiness of the
greatest number’ saw moral values as expressing ideas with clear and definite referents. John
Austin’s command theory is a reflection of Bentham’s philosophy although there are differences
between their respective theories. Austin to a certain extent followed up to a point in his theory
involving utilitarian considerations. Whilst Bentham and Austin expounded their theories of law
separately, using different methods they remained united in the view that law was essentially
imperative in character - expressive of a desire that someone do or abstain from something and
coercive.
Austin and Bentham both define law as a species of coercion. It is the presence of coercion (rather
than ethics) that makes it possible to talk meaningfully of law’s obligation. Law is a type of command,
and a command is an intention of will backed by sanctions in the event of disobedience. It is the
presence of sanctions (the power to inflict evil in the event of disobedience) that makes particular
expressions of will into obligations, or duties. According to Austin, the sanction need not be large.
Any evil, no matter how small can constitute a sanction. By using sanctions to identify ‘proper’ laws,
these theories identify ‘rights’ not with ethical theories but with legal powers. A right exists when
someone is under a duty. The ability to create such duties(legal powers) may lie in the citizen or an
official.
Identifying law as a species of command requires further definitions to identify those commands that
are law as opposed to those which are not. For Austin, commands law if they are general and if they
issue from a Sovereign. This is a definite person or body of persons who is identified not by ethical
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theories or even constitutional law (which he called ‘positive morality’) but through the behaviour of
the populace. The Sovereign was the body to whom the populace owed a habit of obedience,
provided that that body was not in the habit of obedience to any other body. This series of definitions
drives one to reach certain conclusions that run directly contrary to what might result from Natural law.
Attempts to identify the source of law by reference to some kind of brute social fact (the obedience of
a population to a definite body) instead of an ethical theory offered the prospect of greater clarity and
agreement as to what constituted positive (man-made) law. It also made sense in a world where the
dominant form of law had become legislation, as opposed to that of customary or judge made law.
Law is not found in the consensus of values held by the population , or its enlightened elites, but in
government.
It is Cotterrell’s point of view that Austin has provided a theory which is a compact and systematic
formulation of a conception of law which allowed an escape from the tradition bound theory implicit in
classical common law thought. It is a theory with a clear designation of the scope of legal knowledge,
an orderly theory of law which allowed the legal to be distinguished from the non-legal and the logical
connections between legal ideas to be made explicit.
According to Cotterrell, Austin offered a way of looking at law which made legislation central rather
than peripheral and his legal theory recognised the reality of the modern state as a massive
organisation of power. It tried to show law’s relationship with this centralised and extensive power
structure. It is in this regard where Austin’s thesis is in line with modern times in which government,
and not community was the apparent source of law.
Some fundamental elements underlying Austin’s jurisprudence.
 It is submitted that herein lies one of the important aspects of Austin’s theory - the
governmental view of law. Law was a fact related to the idea of government.
The need for an effective government was a crucial aspect in his legal theory. Here there are some
similarities with Hobbes who insisted upon a strong and centralised government - the difference
between Hobbes and Austin is that in the case of the former the government in contention was
premised upon the ‘social contract’ theory whilst in the case of the latter the concept of ‘habitual
obedience’ was the basis of the existence of the sovereign.
 In identifying law with the idea of government, inherent in Austin’s command theory is for the
existence of a rational, responsible and effective government answerable politically to
utilitarianism and positive morality.
It is this point which is often wrongly understood by the critics and particularly Professor Hart. The
importance which Austin places on the theory of utility is often ignored by the critics and this point is
essential for it dismisses the myth that Austin’s theory is for the elitist in government. Another point
which is significant in understanding Austin in the historical and social backgrounds underlying the
Command theory of law. One of Austin’s main objectives was to get rid of the manner in which the
aristocracy operated.
The commands of the Sovereign is viewed as the instrument shaping and reforming the body of
duties and obligations towards providing the framework for civil society to progress. Austin
demonstrated a strong belief in the unity of community interests, utility and knowledge to show that
the new order he envisaged is not the subjective will or desires of those elites who physically make
up the sovereign nor is it simply a matter of power relations. It is here where the key to social
progress exists. The student must always, at this point remember to evaluate Austin from the
historical, social and moral premise for otherwise like the critics injustice would be done to the
wealth of information reflected in the Command theory of law. Thus, understanding Austin from an
‘analytical perspective will be insufficient as this would be limiting his analysis into ‘models’ of
law and the real meaning or substance of his theory is lost’. It is this aspect of his theory which
supporters of Austin claim must be acknowledged and to allow Austin to be reflected in the ‘best
light’ possible.(Dworkin’s emphasis)
The element of modernity is central to Austin’s analysis of law and legal systems.
 The political and legal system was in need of radical reform.
This emerged from an observation of how the aristocracy used Parliament and the other
institutions(such as the courts, churches, army etc) to promote its own interest and prejudices. It was
an interest of a class resulting in the entire population being sacrificed and people exploited. Vast
miscarriages of justice was being done in the name of the law and Austin’s motive was to establish a
reformed nation state. This nation-state would have extended suffrage and be an enlightened and
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rational political association which would not hesitate to use authorised coercion. This being
commands backed by powers of punishment and the prison (sanctions) according to the
guidance of the developing positive knowledge.
 Another contribution apparent in Austin’s theory which is relegated from any discussion is the
importance he placed on knowledge and education.
It is essential in Austin’s view that the people must be educated and informed with the appropriate
knowledge about the human condition and the conditions of government and as to what the
government intends to pursue. The role of education therefore, is to reveal the underlying truths of the
socio-political structure of the government. This is an important aspect necessary to build a modern
social order and towards understanding the essence of the Command theory of law.
This is also another of those element which gave rise to Professor Hart raising the criticism that the
command only illustrates and external aspect of the law which is characterised by fear (due to the
presence of sanctions) whilst a rule can accommodate for both the external aspect and the internal
aspect which is the critical reflective attitude.By the critical or internal reflective attitude, a
realisation or reason would exist to determine why a particular law is in force and why there is a need
to obey the law - there is a normative aspect inherent here. In this way says Hart a rule-based
system would be able to explain the law better which a command fails as it receives obedience
through the existence of sanctions and the element of habitual obedience. It is submitted, that this is a
crude and unfair criticism of Austin
 The role of the principles of utilitarianism is embedded upon the requirement of the ‘the
maximum happiness for the maximum number’ which highlights the common good of society
and this is the key principle to social justice.
4. POSITIVE LAW AND POSITIVE MORALITY (THE CLASSIFICATION OF LAW)

The most valuable contribution, according to Cotterrell which Austin has undertaken is to attempt to
distinguish clearly between law and other phenomena(such as moral rules, social customs etc.) with
which it could confused. Clear thinking about the law is a necessary feature in Austin’s thesis and the
starting point of the science of law is a clear analytical separation of law and morality: his position as a
legal positivist is clear here.
The subject matter of jurisprudence for Austin is positive law: ‘law simply and strictly or properly so-
called’ or ‘law set by political superiors to political inferiors’. Immediately law is defined as an
expression of power.
This is one of the reasons probably how Hart in Chapter 2 of The Concept of Law employed the
‘gun-man model’ to criticise Austin. The ‘gun-man’ having the power over the bank clerk to facilitate
the robbery is analogous with the sovereign commanding the people to obey the law and failure to do
so will be ‘visited by evil’.
It is in these respects where the student is required to consider the issue as to whether the idea of law
represents the concept of ‘being obliged’ or is it one which denotes the idea of ‘being under an
obligation’. The former phrase is associated with Austin whilst the later is representative of Hart’s
system of rules. Be careful that these concepts are purely designated by Hart to distinguish his better
theory, as he, claims when attacking Austin.
There are two aspects to the criticism. First, is related to the manner in which sanctions operate within
the command. The fact that every command must be defined by reference to a sanction led Hart to
conclude that descriptively the command model is reflective of fear. Second, is the related fact that
since every command emanates from a sovereign, the latter is characterised as the brute force
behind the law. In other words, philosophically, the command is about power.
As a result of this observation it is Hart’s view that Austin unduly limits the concept of law to
commands, habitual obedience and sanctions to produce a science of law. It is held that Austin fails
to consider the contextual account of law and society on the premise that his motive is to provide a
doctrinal analysis of law towards an analytical form of jurisprudence to characterise legal positivism.
Further, it has also been held that Austin is not concerned with any empirical enquiry about actual
societies; he is rather concerned with the classification of concepts and not the historical or
sociological questions.
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It is in this context where Hart is of the opinion that the rule-based system is better as it descriptively
connotes the element of acceptance whilst philosophically, is about law having authority. The
element of a critical reflective attitude within the rule is significant here as it allows for the
appreciation and reasoning of the law which is absent from the command based theory.
It is submitted that Hart is unjustified in assessing Austin this way. The problem with this criticism is
that Hart views Austin as taking only one type of law, i.e. the criminal law with its centrality of
coercion and unquestionably expands from this. Thus, Hart falls victim of the fact that he has failed to
contextualise Austin properly. Arguments which can be advanced in favour of Austin here are as
follows:
 Austin says: ‘the existence of law is one thing; its merit or demerit another. Whether it be or
be not is one inquiry; whether it be or be not comfortable to an assumed standard is a
different inquiry’.
What this means is that Austin places the questions of legal reform, i.e. the question of what the law
‘ought’ to be into the province of the science of legislation (i.e. utilitarianism) whilst the analysis of law
is confined to a positivist study of the laws posited under the central authority of the state. The merit
inherent here is that Austin’s definition of law is wider in the sense that it is a political conception of
law. To, Cotterrell, this means that for Austin law is a matter of process.
Law or rule is a species of command given inside a political society by political superiors to political
inferiors, wherein the political superior has the power if he wishes to, inflict an evil or pain in the case
of the command being disregarded.
Austin therefore, uses the term sovereign, command, sanction and habitual obedience to grapple
with complex social phenomenon. Cotterrell points out here that these are conceptual reflections of a
particular time and place, transformed in a way that gives them the potential to speak to other
generations in other legal conditions. In Austin’s case however, these concepts were formulated with
a clear awareness of the sociological questions which they entail. This dimension of thought is totally
ignored by the critics in the field of normative legal thought.
 The role of education and knowledge would undermine the fact that people are coerced into
following the law as they would have prior knowledge of the manner in which the rule would
affect their rights and liabilities.
 The governmental view of law is to portray that duties are more fundamental than rights, But
the individual’s ability to make specific claims on others through the legal system is derivative
from the laws commands. Austin’s command theory of law produces this result analytically.
Command and duty are treated as correlative terms: ‘wherever a duty lies a command has
been signified, and wherever a command is signified , a duty is imposed’. By contrast, every
right presupposes a duty in someone else. Rights are derivative from duties, i.e. ‘I can claim a
right against X because the law has imposed a duty on him towards me’. The point here is
that the restrictive view of commands being significant of the crimminal law is again unfair.
The command theory can accommodate the existence power -conferring rules as well as
duty-imposing rules.
 It is admitted that the governmental view of law is also reflected clearly in the emphasis Austin
attaches to punitive sanctions in the structure of law. However, there are no sociological
inplications involved in ensuring compliance with the law. The role of sanctions in the
definition of law is purely formal. This means that the sanctions are required as they are
analytically essential to laws.
 The governmental view of law is also based on the premise that the sovereign and the
sanctions inflicted in the event of non-compliance with the law is authorised in the sense that
the role which is played by the principle of utility is in relation to this. Utilitarianism is a guide
or gauge to prevent the abuse of power.
 Austin’s definition of law aims to establish a science of law but close attention must be place
on how her separates the science of law from broader social concerns as demonstrated
below.
Austin’s classification of laws is wider than what critics have suggested, as he also embarks upon
distinguishing’laws properly so-called’ with ‘laws improperly so-called’.
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By the former, he means (1) divine laws (laws set by God for mankind) and (2) human laws (laws
set by human beings for human beings).
Here the most significant consideration is positive law (i.e. the command theory-laws laid down by,
on the authority of political superiors, which has been considered above) and the category of human
law consists of rules laid down by persons having power over others but not as political superiors(
for e.g. employers, priests, teachers, parents guardians etc) to control those in their charge or care.
Rule-making in these categories are significant in contributing to shape attitudes opinions or moral
sentiment of individuals or groups. This forms part of what he calls as positive morality. As morality it
is distinguished from positive law. The other category of rules which comprise positive morality are
rules without particular human creators but set by the opinion or sentiment of an indeterminate body
of people - that is by public opinion or community opinion. These are termed by Austin as laws by
analogy.
The other category of laws improperly so-called is scientific laws which are not laws in the
jurisprudential sense. They concern the regularities of nature which science discovers but which are
not laid down as laws (such as the law of gravity) which he terms them as laws by metaphor.
5. AUSTIN’S AIMS AND METHODS OF ANALYSIS

There is one view which claims, that in essence Austin’s purpose was to produce in his general
jurisprudence a systematic and orderly account of the key components of modern legal systems.
Austin’s concern was empirical in the sense that he wished to represent of describe in theoretical
terms the reality of actually existing legal systems, identifying elements common to these modern
systems of law and organising them into a body of scientific knowledge. Thus, Austin sought, in
Morison’s words ‘to represent law empirically, as something we can readily understand in
terms of observable occurrences’ - observable at least, for example, in the form of actual statutes,
judicial decisions and instances of other official action, and the habitual behaviour of subjects.
So Morison argues, that ‘all the evidence indicates that when Austin made general factual statements
about independent political communities, he believed them to be universally true’. They could be
tested for their truth against the circumstances of particular legal systems. The idea that theory is, in
some such way, a direct representation of empirical reality, with its concepts derived from observation
of and generalisation about that reality and so corresponding with it and testable for truth against it,
will be called here empiricism.
There is another view which has been more widely attributed to Austin by recent commentators on
his work. It can be explained as follows. Empirical reality - the world of objects and experiences ‘out
there’ - does not, infact, present us with evidence which we can merely package together or
generalise about to arrive at scientific truth. Concepts need to be formed in advance - a priori - in
order to organise empirical evidence. The previously established concepts not only determine what is
empirically relevant but also reflect a view of why it is relevant. Thus, theory aiming at a scientific
explanation of any object of knowledge cannot take its concepts from observed experience but must
deliberately construct concepts as a means of interpreting experience, of imposing order on it. A
theory is not an attempted representation of observable reality but an intellectual construction - a
logical worked out model - which can be used to organise the study of what can be observed in
experience. This idea of the nature of theory will be termed here conceptualism.
Julius Stone rejects Austin as an empiricist, and argues that he should be understood as a
conceptualist, ‘presenting an apparatus for seeing as clearly as possible the aspect of a legal order
with which his analytical system was concerned’; Austin ‘sought the starting-points which would
enable him to construct definitions and classifications on the basis of which he could, to a maximum
extent, show the logical inter-relations of the various parts of the law to each other, and the sub-
ordination of the less general to the more general parts’.
An empiricist view would say that a theory’s truth can be tested in the light of experience, a
conceptualist would claim that its usefulness, not truth, which is the issue.
6. OTHER CRITICISMS BY PROFESSOR H.L.A. HART IN RELATION TO AUSTIN

 The problem of sovereignty.
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Hart argues that the theory of legal authority implicit in Austin’s account of sovereignty is unrealistic;
because legal authority has to be defined in terms of normative ideas and not merely persistent
habits. He argues that it is nonsensical to regard sovereignty as necessarily illimitable and indivisible.
And he points to the legal realities of federal systems, bicameral legislatures and entrenched bills of
rights so as to represent Asutin’s theory of sovereignty as an unrealistic conceptual framework into
which he shoves legal phenomena.
 The scope and persistence of laws.

Austin is unable to explain the continuity of legal authority: how do we know when and where a new
sovereign emerges when an existing one dies or is destroyed? Does his theory imply total
discontinuity every time there is an election? How does the populace know that its habit of obedience
should be shifted to one group rather than another? Moreover, Austin cannot account for the
persistency of laws set by one sovereign beyond the life of that sovereign. Why do laws enacted
hundreds of years ago survive today, given successive changes in the identity of the sovereign? This
is particularly problematic in the context of incomplete revolutions: example in the new South Africa,
certain laws(i.e. commercial and property laws) remained intact, notwithstanding a new political
regime. And finally - returning to Austin’s ideas of the sovereign as illimitable - how does he account
for constitutional laws(i.e. for laws that bind the sovereign himself?
In The Concept of Law, Hart states the following: ‘…for the conception of the legally unlimited
sovereign misrepresents the character of law in many modern states where no one would
question that there is law’.
 The variety of laws.
Hart argues that Austin’s theory cannot explain the variety of different types of laws encompassed
within a legal system - e.g. contract and family laws. Austin (and in a different way, Kelsen) had
argued that such laws can be accommodated within the concept of commands backed up by
sanctions through the idea of nullity of contract as a form of sanction or the idea of property laws as
fragments of laws.
Hart rejected this first defence on conceptual grounds; the idea that all laws have to conform to the
straitjacket of orders backed by threats is a conceptual distortion - e.g. criminal laws can be
understood independently of sanction, whereas nullity is part of the concept of contract.
The second defence that all non-coercive laws are merely expository matter fails to recognise the
different social functions of different rules: power-conferring or facility-creating rules such as those of
contract,property, wills or marriage serve different social functions from criminal law, creating facilities
for citizens rather than aiming merely to impose duties or prevent certain kinds of behaviour.
In The Concept of Law, Hart said: ‘rules conferring private powers must, if they are to be
understood, be looked at from the point of view of those who exercise them. They appear then
as an additional element introduced by the law into social life over and above that of coercive
control. This is so because possession of these legal powers makes of the private citizen,
who, if there were no rules , would be a mere duty-bearer, a private legislator. He is made
competent to determine the course of the law within the sphere of his contracts, trusts, wills
and other structures of rights and duties which he is enabled to build. Why are rules which are
used in this special way, and confer this huge and distinctive amenity, not be recognised as
distinct from rules which impose duties, the incidence of which is indeed in part determined
by the exercise of such powers? Such power-conferring rules are thought of, spoken of, and
used in social life differently from rules which impose duties, and they are valued for different
reasons’
 Law and coercion.
Hart argues that even if in the case of criminal laws, which most easily fit the notion of command,
Austin overplays the notion of sanction in a way which obscures the distinction between predictive
and normative statements about law. Austin’s approach cannot distinguish between the idea of being
obliged, in the sense of having to do something ‘or else’, and the idea of being under an obligation -
there being a standard which one recognises ought to be followed, independently of any expectations
of bad consequences such as punishment for breach.
Hart, in The Concept of Law said: ‘the fundamental objection is that predictive interpretation
obscures the fact, where rules exist, deviations from them are not merely grounds for a
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prediction that hostile reactions will follow or that a court will apply sanctions to those who
break them, but are also a reason or justification for such reaction and for applying the
sanctions’.
 Habitual obedience.
Hart argues that this concept is a predictive rather than normative, explanatory approach. On his
view, we do not obey laws merely because of a habit of obedience to authority or merely because we
are frightened of being punished, rather, we use laws themselves as reasons for action. Hart
therefore sees a crucial distinction between a habit and a rule; dressing or behaving in certain ways in
places of worship is, for many, an entirely different kind of social regularity from people taking their
shoes off when they get home at night.
7. THE ROLE OF COERCION IN LEGAL THEORY

The student has to pay very close attention to this aspect of the discussion here as examination
questions have also appeared requiring the student to appreciate that such questions essentially are
about the nature of legal obligation.
Thus, in June 2001, Question 12[Zone B] the question was: “It is because a rule is regarded as
obligatory that a measure of coercion may be attached to it; it is not obligatory because there
is coercion.”(Goodhart)
Here it is Professor Goodhart’s view(a sentiment shared by Professor Hart as well) that people
comply with laws because they accept the law as legitimate, even with those laws which they strongly
disagree with. The view here is that it is the authority that law has that allows for the imposition
of sanctions rather than because there are sanctions the law is obligatory. This latter notion is
often associated with the theories of Austin and Bentham. The main issue ultimately in the
consideration here is whether the criticisms advanced about the imperative theories in this regard is
accurate.
First, some background understanding of Austin is necessary. The factual test for identifying positive
law according to Austin is:
 Law is a command;
 The command must be supported by a sanction; and
 The command backed by sanctions must emanate from the sovereign.
At pages 13-15 of The Province of Jurisprudence Determined. A command is defined as ‘a wish

or desire’ and ‘it is an expression or intimation of the wish or desire’. These aspects of the
definition refer to the command itself. The other aspect of the definition is that it is the ‘visitation of
an evil’ imposed by the sovereign if the wish or desire is not complied with.
The consequences of Austin’s definition of the command are as follows:-

 The paramountcy of sanctions, i.e. sanction is a part of or an ingredient of a command;
 The correlativity between the command and duty;
 The idea of legal obligation being premised upon either being bound or obliged to obey the
law.
At page 17 of The Province of Jurisprudence Determined, Austin clearly demonstrates that
without coercion there is no law; thus sanctions are central to the command theory of law. It is the
sanctions which supply the motive for compliance to the law.
There must be an actual likelihood of the sanction being applied if the command is disobeyed is
apparent from Austin’s definition of law. This idea gives rise to the notion that legal obligation is
premised in terms of sanctions and enforcement.
Commands and duties are viewed in relation to coercion. To Austin, a valid law is measured in terms
of its effectiveness. The reason for compliance with the content of the command is because of the
presence of the sanction.
To Hart, validity is equated with acceptance and effectiveness, whilst for Kelsen, validity is defined in
terms of the idea of assumption and effectiveness.
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The effectiveness or legitimacy of the law is gauged by the presence of sanctions in the law; thus it is
apparent that all the legal positivists believe that the element of sanctions in the law is important.
However, the issue in dispute here is as to the degree or extent of the sanction which is reflective of
the idea of legal obligation. Hence, it is argued that Austin’s insistence that a sanction determines the
question of legal validity whilst Hart and Kelsen seem to suggest that sanctions are only a necessary
component for validity although it is not the predominant factor - this would suggest that law can exist
without sanctions but ultimately it will lose its force is the reason why these jurists claim that sanctions
are necessary.
It is Hart’s view that the dominant feature of legal obligation is the notion of the critical reflective
attitude - the idea which suggests that people obey law because they reason or appreciate the
consequences which would result if they fail to comply with the law. Thus, it is the internal aspects of
the rule which would compel obedience rather than the sanction or fear which dominates their
obedience. However, he agrees that the existence of some social pressure or sanctions are
necessary towards making the law effective but it is a criteria which is subordinate rather than
dominant. A point which is shared by Professor Goodhart in the question above. This interpretation
according to Hart supplies the normativity aspect to the law which a command fails to claim.
According to Kelsen, obligation to the law is determined first by the idea of an assumption towards
the rule or norm by the officials. Any delict or wrong that is committed must be addressed by the
appropriate sanction in the law and in the event where the officials fail to administer the sanction, it is
the officials who have committed a delict and not the citizen.
Another criticism which has been submitted against Austin here is that he can only refer to punitive
sanctions and as such his definition of law is limited as it can only accommodate duty imposing rules
such as the criminal law only. However, it is to be submitted that this cannot be the case because at
pages 13-15 of The Province of Jurisprudence Deermined, he seems to claim that the sanction or
evil is frequently styled as punishment but he claims that punishments strictly so -called are only a
class of sanctions.
At page 16 of The Province of Jurisprudence Determined, Austin claims that the sanction itself
can be feeble or insufficient when he suggests that the ‘smallest chance of incurring the smallest evil’
will suffice.
It is submitted here, that for Austin whilst all laws were commands, included in the idea of a
command is the ‘likelihood of a sanction’ being inflicted , if the command is disobeyed. The nature of
this sanction is that it is an evil which will be visited on the person commanded by the sovereign, if he
does not comply with the wish(so the sanction is a ‘conditional evil’); its importance, in brief is that
unless such a sanction is likely to be incurred, the expression of a wish is not a command.
The potential ambiguity which is created by all this is how likelihood must the sanction be? Does
Austin refer to the ‘visitation of evil’ in his definition of the command as an actual likelihood of the
sanction being imposed or merely a chance or likelihood of incurring the sanction in the smallest
degree? It is submitted that the answer cannot be a certain one as Austin was not consistent on this
point. Hence, a better way to interpret Austin is to conclude that to him, although the idea of sanction
is to motivate obedience, actual fear is not required. This is the point which Cotterrell makes.
According to Cotterrell, the application of sanctions in Austin’s theory is merely to have a formal role
and not one of any psychological implications. Sanctions a re analytically essential to identify a
command. That is to distinguish it from any other forms of imperatives. For example, from the
classification of laws, discussed above it is clear that Austin classifies ‘imperfect laws’ (laws without
sanctions) as positive morality.
Another objection taken by Hart is with respect to Austin’s claim that ‘…the greater the eventual evil,
and the greater the chance of incurring it, the greater is the efficacy of the command and the greater
is the strength of the obligation’ (at page 16 of The Province of Jurisprudence Determined) where it is
suggested that this is absurd. The point being that the strength of the legal obligation does not vary
according to the degree of sanction.
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For example if Austin means that there is higher compliance to the law of murder as the penalty is
more severe in comparison to parking on a yellow line which carries a less severe punishment,
theoretically it is true that more people offend in the case of the latter. However, philosophically, the
content of the punishment does not detract from the fact that there is still obligation on the part of the
people with respect to both these laws.
8. OTHER ARGUMENTS IN DEFENCE OF AUSTIN

To refute Professor Hart’s view that Austin cannot accommodate the idea of law having authority
the following points would be useful to consider:
 Cotterrell and Morrison argue that the element of sanction has moral authority. This is
primarily on the basis that the principle of utilitarianism which is a prominent aspect of his
theory supplies the sanction with such moral propriety. The sanction applied is not to be
equated with the gangster’s order which is characterised by brute force. Rather the force
which the law carries due to the sanctions is accepted and authorised as such
 The role of education and knowledge inherent in Austin’s analysis of law neutralises the
element of fear says Cotterrell.
 Joseph Raz in The Concept of Legal System claims that Austin never intended to equate
legal validity to effectiveness. Accordingly, he states that Austin recognises that disobedience
do occur, but atleast sanctions must be executed.
Sanctions and power conferring rules.

It has been often claimed that Austin’s model of coercive commands cannot accommodate for power
conferring rules - legal rules which enable people to make wills or contracts, or to enter into other
desirable transactions or arrangements(private power conferring rules) which would lack security
without legal guarantee. They also include rules giving powers to officials(public power conferring
rules). They often provide facilities for desirable activities. They are not concerned primarily with
imposing duties supported by penalties. They enable officials or private citizens to act.
It is submitted that Austin deals directly with the question of private power conferring rules and clearly
does not see it as a problem that later writers have identified. He includes nullity of transactions as
a sanction.
Hart in particular has criticised Austin on the basis that nullities are quite different from others Austin
recognises and that to equate them distorts the radically different social functions of power conferring
and duty imposing rules. Hart further stressed that the problem with Austin is that he forced all legal
rules into a single coercive model and thus this denies the variety of kinds of laws.
According to Hart the inclusion of nullities as sanctions confuses the distinction between rules of
criminal law and that of the other varieties of law. Criminal law clearly separates the type of conduct in
which the command forbids from the sanction intended to discourage it. Hart argues that the sanction
of nullity is intrinsically connected to the elements of the rules. A separation between the rules and the
sanction of nullity is impossible; unlike the position in criminal law, the prohibited act could
conceptually stand independent of its sanction.
For example, refer to the Theft Act 1968 and the prohibited conduct here is as follows: ‘ a dishonest
intention to unlawfully appropriate property belonging to another with the intention to permanently
depriving the other of it.’
These elements of theft is capable of identification without recourse to its sanction. Hart argues that a
logical distinction could not be had of a rule requiring compliance with certain conditions. Hart cites
the example of the requirements of the attestation for a valid will and the so called sanction of nullity
upon non-compliance. Here, repugnance of the formalities of a will does not entail nullity. The rule
itself could not be intelligibly said to exist without sanctions even as a non legal rule. The nullity is part
of the rule.
It is submitted that it must be remembered from the earlier discussion that Austin’s analytical concern
with sanctions is purely formal. The differences in social functions of laws are not pertinent here.
Further, it is important to recognise that Austin’s position does not require such a forced distortion,
Austin wishes to stress the coercive basis of law which he considers is reflected in all its rules. There
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is no suggestion that all rules have the same functions or the same form or the same kinds of
sanctions.
It is equally submitted that Austin can be defended using the idea of ‘correlative commands’.
Although Austin leaves this idea largely undeveloped, it does not deter us from the enterprise of
developing the theory as to put it in its best light. Cotterrell suggests a defence. He claims that
Austin’s rights are being safeguarded through the imposition of duties on other people. Therefore, if
a person acts ultra vires of the right conferred upon him, it logically correlates with the disappearance
of a duty by others to obey him.
Approaching nullity as a sanction would view a right, for example of a judge in his “official capacity”, to
adjudicate as a command backed by a sanction of nullity. Thus, a duty is not placed upon other
people to do what the judge says, but upon the judge himself. The judge must act in accordance with
the right to adjudicate conferred upon him by the sovereign under the pain of the possibility of the
nullity sanction being visited upon him in the form of his decision being overturned on appeal.
It is argued by Cotterrell that Austin admits indirect sanctions because it enables (professional or
social) sanctions of inconvenience, ridicule or lessening of reputation to attach to the official
concerned. Cotterrell draws such a conclusion from the ‘smallest evil’ device that encompasses a
wide spectrum of sanctions. Therefore, in cases of public power conferring rules where no direct
punishment could be meted out at the disobedient official; the legal nullity-sanction harnesses social
sanctions which may be important to someone whose job security, prospects and effectiveness hangs
dangerously on general reputation.
Cotterrell’s argument, though attractive, is radical. It lacks fit with the Austinian axiom of sanction
being willed by the sovereign. It must be accepted that it is unlikely that social sanctions is positively
and directly linked to the nullity sanction - an overlap must merely be sheer coincidence.
Nevertheless, the exclusion of indirect sociology based sanction does little to affect Austin’s theory.
9. THE AUSTINIAN SOVEREIGN

What makes commands rules is the element of generality in them; what makes rules laws - in the
sense of positive laws, the subject of Austin’s jurisprudence - is the fact that they are direct or
indirect commands of the sovereign of an independent political society. These commands are
addressed to the members of that society, who are thus subjects of that sovereign. Austin writes of
the sovereign as a person(for example, an absolute monarch) or a body of persons (for example the
lawmakers or electorate of a democracy, or the members of an established ruling elite). It is essential,
however, to note that he always means by the sovereign the office or the institution which embodies
supreme authority; never the individuals who happen to hold that office or embody the institution
through their relationships at any given time.
Austin’s sovereign is an abstraction - the location of the ultimate power which allows the creation of
law in a society. This point is of the greatest importance, since he has been often criticised for
describing sovereignty, and the source of legal authority in ‘personal’ terms.
Sovereignty exists when two conditions are satisfied: first, the bulk of the society are in a habit of
obedience or submission to a determinate and common superior (whether an individual or a body of
individuals) and, secondly, that individual or body is not, itself, in a habit of obedience to a
determinate human superior. The idea of a habit of obedience introduces a factual, indeed
sociological, criterion of the existence of sovereignty and, in this respect Austin follows Bentham
rather than Hobbes.
Where there is no such habitual obedience there is either anarchy(no recognised sovereign at all) or
revolution(the population is divided into groups rendering habitual obedience to different authorities).
Characteristics of Austin’s Sovereign.

It must be common, that is, only one sovereign can exist in any single political society; the sovereign
is, in that sense, indivisible although it can be made up of several components. It must be
determinate in that the composition of the sovereign body or the identity of the sovereign person
must be clear. The other characteristic which has caused most controversy with regards to Austin’s
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conception of sovereignty is the idea that the sovereign is illimitable by law. This follows directly from
Austin’s definition of law.
Every law is the direct or indirect command of the sovereign of an independent political society. But a
sovereign cannot issue enforceable commands to itself - or at least, even if such an idea is
conceivable, the sovereign can abrogate then at any time. And no laws other than the sovereign’s
own commands can exist to bind it.
The critics question whether the notion of the sovereign being able to make law to himself is indeed
so absurd. The fault lies in Austin’s failure to distinguish de jure sovereignty (authority to make law)
and de facto sovereignty(the power to enforce obedience).Thus, unlimited sovereignty can properly
only refer to a body without a superior in the structure of the state. But this says nothing as to the
degree of the freedom of action. This problem, far from being confined to theoretical study, has
practical implications. The real life constitutional problems of parliamentary entrenchment, either in
substance or in manner and form, poses nagging questions.
How would Austin interpret the effect of the Statute of Westminster 1931 on the Dominion
constitutions and the complexities that plague the concept of supremacy that emerges since the
European Communities Act 1972 following the decision of R v. Secretary of State for transport,
exparte Factortame(No.2)?
Austin’s answer lies in asserting that such fetters that appear to bind the sovereign are merely
aberrations of legal fetters because constitutional law is not law but merely a genus of positive
morality. The interpretation of Austin reflects the Diceyan linguistic practice of constitutional law in
identifying the Crown, the Lords and the Commons to constitute the sovereign. However, the
methodology of this answer is far from satisfactory. The problem lies in the ‘trust device’ offered by
Austin, i.e. the members of the House of Commons are merely trustees for the body by which they
are elected and appointed. It follows that the electorate, along with the Lords and the Queen forms
the British sovereign. The Commons, is a mere delegated legislator for the electors.
What is particularly disappointing is Austin’s insistence that the Lords has an absolute power and not
a delegated power from the electoral body. Austin must conclude that the ‘trust’ vested in the
Commons is a ‘tacit command’; and secondly, the trust is enforced by moral sanctions. The
disappointment lies in Austin’s complete reversal of position. This is because if the electorate cannot
really command, it must follow that they cannot ‘wilfully’ impose legal sanctions upon breach of the
‘trust’. Therefore, the electorate cannot strictly be the sovereign. It is a contradiction to insist that the
sovereignty rests with the electorate and in the same breath, logically accept that the electorate issue
command to themselves.
That seems to be the reason why Austin reconciles by concealing that the enforcement of the ‘trust’
vested in the Commons, by the electorate to be a non-legal political one - a moral sanction.
Austin seems to get entangled in the very web he weaves. His complex sovereign is far from initially
attractive and simple idea of identifying the sovereign by looking to habitual obedience. The open
textual nature of the very test of habitual obedience is to be blamed for the confusion surrounding the
sovereign. Its chief fault being that of conjuring an image of a despotic monarch - an archaic and
wholly inappropriate way of thinking upon which analysis of the authority of law in modern Western
societies. This crude interpretation ought to be left here, undeveloped.
It is submitted that if we look closer, Austin does not suggest that the sovereign is free of limitation
but only legal limitations. Thus, positive morality (reflected in public opinion, widespread moral or
political expectations, and ultimately the threat of rebellions) may provide important constraints.
Secondly, most of Austin’s discussion of sovereignty relate primarily to the conditions of

representative democracies (especially Britain and the United States). Thirdly, Austin’s concept of
delegation by the sovereign, is used by him to express the possibility (which has become a reality in
most complex modern industrialised societies) of very active dispersion of legislative, adjudicative and
administrative authority within the overall hierarchical framework of a centralised state.
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Another interpretation swayed by Austin’s description of the sovereign as a ‘person or a body of
persons’, views the true account of the sovereign in terms of ‘sociological facts’. Morrison is
indeed bold to describe Austin as a ‘naïve empiricist’
Professor Hart contends that it is strenuous, linguistically speaking, to describe the crown in
Parliament in terms of a ‘body of persons’. That means that the United Kingdom sovereign changes
everytime an MP dies or upon appointment of a member of the Lords.
A more compelling criticism lies in Hart’s assertion that the sovereign being a ‘body of persons’ based
on habitual obedience cannot account for the continuity of law. This is because when the said person
or body of persons dies, then there is a lacuna as the new sovereign would require to attract habitual
obedience, in the absence of any command, by the first sovereign, to obey the second sovereign
upon the first sovereign’s death.
It is submitted here, that Austin could be defended through the interpretation of the Austinian
sovereign as a corporate idea, a generic description. This is a borrowed idea from the understanding
of sovereignty of Rousseau and Hegel. This notion is developed by Harris in viewing the sovereign
as a ‘constructive metaphor’ . This means that the sovereign is merely a term used to authorise
certain administrative or judicial actions.
The judge as delegate of the sovereign.
The concept of delegation of sovereign power is fundamental to Austin’s thinking. The sovereign, in
Austinian terms, delegates legislative and administrative functions to many institutions - including,
significantly, the judiciary. Equally, law making power is delegated to private citizens who exercise it,
for example, in the creation of contracts according to terms chosen by the contracting parties, but
which the sovereign’s institutions will enforce. This can be considered as ‘tacit commands’ of the
sovereign.
Many critics have claimed that this notion of tacit command – is unrealistic as regards law making
through judicial decisions. Are not judges independent in such democracies as, for example , Britain
and the United States? How can they be considered as mere delegates of some other authority? The
difficulty again arises as treating Austin’s sovereign as a legal sovereign – an ultimate legislating
institution. Thus, the legal doctrine of parliamentary sovereignty in Britain – which recognizes
Parliament as the highest law-creating authority – does not, of course entail that judges are delegates
of Parliament. Austin’s theory does not, however, suggest that they are. It claims merely that they
must act as representatives of the constitutional order of which they are a part. In Austinian terms
that constitutional order is the consequence of the pre-legal sovereign authority embodied in
monarch, Lords and the electorate of the Commons.
Many important consequences follow from Austin’s way of looking at the distribution of political and
legal authority in the state in this way. For example, his view of the judge as delegate of the sovereign
entails a straightforward recognition that judges legislate no less than do legislatures. Judges make
law in so far as their decisions embody what can be considered to be the sovereign’s tacit commands.
He argues against the idea that judicial law-making or as he calls it, ‘judiciary law’ is arbitrary or
undemocratic, taking as his primary point that judiciary law is no different in this respect from any
other form of subordinate legislation and, in all such situations, positive law and public opinion must
provide the necessary safeguards.
Closing Thoughts
The student would be strongly recommended to review the criticisms which have been advanced
against Austin notably by Professor Hart and place Austin’s theory in its historical, social and moral
contexts – an absence of these considerations will surely miss a fundamental point in Austin’s legal
theory.
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H.L.A Hart’s Concept of Law
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CONTENTS
1. An Overview
2. A Chapter by Chapter review of the Concept of Law
3. The Legacy of Hart
4. Synopsis of Hart’s Rule-Based Theory of Law
5. Descriptive Sociology
6. Hart’s Internal and External Points of View
7. Distinction between ‘Obliged’ and ‘Obligation’
8. Hart’s Minimum Content of Natural Law
9. Hart’s Hermeneutic Positivism
Learning Outcome
The Concept of Law is compulsory reading for all students and students must have a clear
understanding of Prof Hart’s criticism of the Command Theory, his position on Natural Law and his
own theory that the law is a union of primary and secondary rules. Close attention must be paid to
the methodology employed in the book. Students must also understand how linguistics serves a
crucial function in Hart’s book.
Essential Reading
1. Hart’s Concept of Law, Second Edition
3. ‘Modern Positivism: HLA Hart & Analytical Jurisprudence’ from Penner, Jurisprudence and
Legal Theory: Commentary and Materials (Butterworths LexisNexis)
Further Reading
1. ‘Analytical Jurisprudence and Liberal Democracy: Hart & Kelsen’ from “The Politics of
Jurisprudence: A Critical Introduction to Legal Philosophy” by Roger Cotterrell, (LexisNexis).
3. “Hart’s Concept of Law” from “Legal Philosophies” by J.W.Harris
4. “The Legacy of HLA Hart” by Kramer, Grant, Colburn and Hatzistavrou (2008) OUP
5. “Raz on Detachment, Acceptance & Describability” by Toh K, (2007) 27 OJLS 403
6. “The Not So Minimum Content of Natural Law” by Epstein, R (2005) 25 OJLS 219
1. AN OVERVIEW
H.L.A. Hart’s The Concept of Law (1961) is an analysis of the relation between law, coercion, and
morality, and is an attempt to clarify the question of whether all laws may be properly conceptualized
as coercive orders or as moral commands. Hart argues that there is no logically necessary connection
between law and coercion or between law and morality. He explains that to classify all laws as
coercive orders or as moral commands is to oversimplify the relation between law, coercion, and
morality. He also explains that to conceptualize all laws as coercive orders or as moral commands is
to impose a misleading appearance of uniformity on different kinds of laws and on different kinds of
social functions which laws may perform. He argues that to describe all laws as coercive orders is to
mischaracterize the purpose and function of some laws and is to misunderstand their content, mode
of origin, and range of application.
Hart explains that laws are rules which may forbid individuals to perform various kinds of actions, or
which may impose various obligations on individuals, or which may require individuals to undergo
punishment for injuring other individuals, or which may specify how contracts are to be arranged, or
which may specify how official documents are to be created, or which may specify how legislatures
are to be assembled, or which may specify how courts are to function, or which may determine how
new laws are to be enacted, or which may determine how old laws are to be changed. Laws may
exert coercive power over individuals by imposing penalties on those individuals who do not comply
with various kinds of duties or obligations. However, not all laws may be regarded as coercive orders,
because some laws may confer powers or privileges on individuals without imposing duties or
obligations on them.
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Hart criticizes the concept of law which is formulated by John Austin in The Province of Jurisprudence
Determined (1832) and which proposes that all laws are commands of a legally unlimited sovereign.
Austin contends that all laws are coercive orders which impose duties or obligations on individuals.
Hart explains, however, that laws may differ from the commands of a sovereign, in that they may
apply to those individuals who enact them and not merely to other individuals. Laws may also differ
from coercive orders in that they may not necessarily impose duties or obligations but may instead
confer powers or privileges.
Hart describes laws which impose duties or obligations on individuals as 'primary rules of obligation.'
In order for a system of primary rules to function effectively, secondary rules may be necessary in
order to provide an authoritative statement of all the primary rules. Secondary rules may also be
necessary in order to allow legislators to make changes in the primary rules if the primary rules are
found to be defective or inadequate. Secondary rules may also be necessary in order to enable courts
to resolve disputes over the interpretation and application of the primary rules. The secondary rules of
a legal system may thus include 'rules of recognition,' 'rules of change,' and 'rules of adjudication.'
In order for the primary rules of a legal system to function effectively, the rules must be sufficiently
clear and intelligible to be understood by those individuals to whom they apply. If the primary rules are
not sufficiently clear or intelligible, then there may be uncertainty about the obligations which have
been imposed on individuals. Vagueness or ambiguity in the secondary rules of a legal system may
also cause uncertainty as to whether powers have been conferred on individuals in accordance with
statutory requirements or may cause uncertainty as to whether legislators have the authority to
change laws. Vagueness or ambiguity in the secondary rules of a legal system may also cause
uncertainty as to whether courts have jurisdiction over disputes concerning the interpretation and
application of laws.
Hart argues that primary rules of obligation are not in themselves sufficient to establish a system of
laws which can be formally recognized, changed, or adjudicated. Primary rules must be combined
with secondary rules in order to advance from the pre-legal to the legal stage of determination. A legal
system may thus be established by a union of primary and secondary rules, although Hart does not
claim that this union is the only valid criterion of a legal system or that a legal system must be
described in these terms in order to be properly defined.
Hart distinguishes the 'external' from the 'internal' points of view with regard to how the rules of a legal
system may be described or evaluated. The 'external' point of view is that of an observer who does
not necessarily have to accept the rules of the legal system. The external observer may be able to
evaluate the extent to which the rules of the legal system produce a regular pattern of conduct on the
part of individuals to whom the rules apply. The 'internal' point of view, on the other hand, is that of
individuals who are governed by the rules of the legal system and who accept these rules as
standards of conduct.
According to Hart, the 'external' aspect of rules may be evident in the regular pattern of conduct which
may occur among a group of individuals. The 'internal' aspect of rules distinguishes rules from habits,
in that habits may be viewed as regular patterns of conduct but are not usually viewed as standards of
conduct. The 'external' aspect of rules may in some cases enable us to predict the conduct of
individuals, but we may have to consider the 'internal' aspect of rules in order to interpret or explain
the conduct of individuals.
Hart argues that the foundations of a legal system do not consist, as Austin claims, of habits of
obedience to a legally unlimited sovereign, but instead consist of adherence to, or acceptance of, an
ultimate rule of recognition by which the validity of any primary or secondary rule may be evaluated. 1
If a primary or secondary rule satisfies the criteria which are provided by the ultimate rule of
recognition, then that rule is legally valid.
Hart explains that there are two minimum requirements which must be satisfied in order for a legal
system to exist: 1) private citizens must generally obey the primary rules of obligation, and 2) public
officials must accept the secondary rules of recognition, change, and adjudication as standards of
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official conduct.2 If both of these requirements are not satisfied, then primary rules may only be
sufficent to establish a pre-legal form of civil authority.
Hart explains that moral and legal rules may overlap, in that moral and legal obligation may be similar
in some situations. However, moral and legal obligation may also differ in some situations. Moral and
legal rules may apply to similar aspects of conduct, such as the obligation to be honest and truthful or
the obligation to respect the rights of other individuals. However, moral rules cannot always be
changed in the same way that legal rules can be changed.
Hart contends that there is no necessary logical connection between the content of law and morality,
3
and that the existence of legal rights and duties may be devoid of any moral justification. Thus, he
explains that his interpretation of the relation between law and morality differs from that of Ronald
Dworkin, who in Law’s Empire suggests that every legal action has a moral dimension. Dworkin
rejects the concept of law as acceptance of conventional patterns of recognition, and describes law
not merely as a descriptive concept but as an interpretive concept which combines jurisprudence and
adjudication.
Hart defines Legal Positivism as the theory that there is no logically necessary connection between
law and morality. However, he describes his own viewpoint as a 'soft positivism,' in that he admits that
rules of recognition may consider the compatibility or incompatibility of a rule with moral values as a
criterion of the rule’s legal validity.4
Hart explains that Legal Positivism may disagree with theories of Natural Law which assert that civil
laws must be based on moral laws in order for society to be properly governed. Theories of Natural
Law may also assert that there are moral laws which are universal and which are discoverable by
reason. Hart explains that theories of Natural Law may fail to recognize the difference between
descriptive and prescriptive laws. Laws which describe physical or social phenomena may differ in
form and content from laws which prescribe proper moral conduct.
Hart criticizes both Formalism and Rule-Scepticism as methods of evaluating the importance of rules
as structural elements of a legal system. According to Hart, Formalism may rely on a rigid adherence
to general rules of conduct in order to decide which action should be performed in a particular
situation. On the other hand, Rule-Scepticism may not rely on any general rule of conduct in order to
decide which action should be performed in a particular situation. Formalism may produce such
inflexibility in the rules of a legal system that the rules are not adaptable to particular cases. On the
other hand, Rule-Scepticism may produce such uncertainty in the rules of a legal system that every
case has to be adjudicated.
According to Hart, international law is problematic, in that it may not have all of the elements of a fully-
developed legal system. International law may in some cases lack secondary rules of recognition,
change, and adjudication. International legislatures may not always have the power to enforce
sanctions against nations who disobey international law. International courts may not always have
jurisdiction over legal disputes between nations. International law may be disregarded by some
nations who may not face any significant pressure to comply. Nations who comply with international
law must still be able to exercise their sovereignty.
Hart argues that in any legal system there may be cases in which existing laws are vague or
indeterminate and that judicial discretion may be necessary in order to clarify existing laws in these
cases. Hart also argues that by clarifying vague or indeterminate laws, judges may actually make new
laws. He explains that this argument is rejected by Ronald Dworkin, who contends that judicial
discretion is not an exercise in making new laws but is a means of determining which legal principles
are most consistent with existing laws and which legal principles provide the best justification for
existing laws.5
Dworkin argues in Law’s Empire that legal theory may advance from the 'preinterpretive stage' in
which rules of conduct are identified, to the 'interpretive stage' in which the justification for these rules
is decided upon, to the 'postinterpretive stage' in which the rules of conduct are reevaluated based on
what has been found to justify them.6 A complete legal theory does not merely identify the rules of a
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legal system, but also interprets and evaluates them. A complete legal theory must consider not only
the relation between law and coercion (i.e. the 'force' of law), but the relation between law and
rightfulness or justifiability (i.e. the 'grounds' of law). Thus, Dworkin argues that a complete legal
theory must address not only the question of whether the rules of a legal system are justified but the
question of whether there are sufficient grounds for coercing individuals to comply with the rules of the
system.
2. A CHAPTER BY CHAPTER REVIEW OF HART’S CONCEPT OF LAW

In the Preface to the Concept of Law Professor H.L.A Hart outlines a number of aims for his book.
1. He presents the book as an essay in analytical jurisprudence concerned with classification of the
general framework of legal thought rather than with the criticism of law or policy.
2. He seeks to elucidate the concept of law by reference to the different but related social
phenomenon of coercion and morality.
3. He offers his book as an essay in “descriptive sociology”.
The book consists of ten chapters but could be said to consist of four parts.
The first part, consisting of chapters II, III and IV, deals with the issue how far it is possible to
understand law by means of tie gunman’s model of orders backed by threats.
The second part, consisting of chapters V, VI and VII, is concerned with the questions ‘What are
rules?’ and ‘To what extent is law an affair of rules?’
The third part, consisting of chapters VIII and IX, raises perennial questions about how far legal
obligations are related to or are different from moral duties.
Chapter 2-4: Imperative Theory

The chapters criticise the imperative or coercive theory of law with special reference to Austin’s
exposition of the theory.
1. Hart points out that there are psychological and other objections to regarding laws as
commands.
2. He points out that in Austin’s theory the essence of obligation should not have been the fear
but the chance of incurring an evil. But if the law were to be taken as a coercive order, Prof.
Hart would prefer something more like the Scandinavian legal realist view in stipulating that
there should be a general belief that disobedience is likely to be followed by the threatening
evil.
3. The Austinian model of laws as commands fails to take note of the variety of laws especially
the existence of power-conferring or facilitative rules.
4. Hart refutes the doctrine that laws are orders given only to others, The sovereign can be
bound by his own enactments.
5. The command theory could only explain obedience by reference to habit or fear and not by
reference to correct standard of behaviour.
6. The Austinian doctrine of sovereignty cannot explain the continuity of successive legislators
and the persistence of laws long after the maker and his subject have died.
Chapters 5-7 - Law as Rules

1. Hart brings out the difficulty of fitting rules which confer power, which type of rules form so
significant a part of the legal system, into a scheme that supposes all laws to create rights
and duties.
2. He distinguishes between two types of rules - primary rules of obligation and secondary
rules1. The former are duty imposing and are immediately concerned with the behavior
required of human beings. The latter are power conferring. They provide that under certain
conditions human beings have competence to create by their own acts new rules belonging to
the system.
1
Ross refers to these rules as rules of conduct and rules of competence.
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Secondary Rules are further divided by Hart into three categories. Rules of change, Rules of
Adjudication, Rules of Recognition. The third - the rules of recognition - are at the heart of
Hart’s positivism. The rules of recognition supply the formal criterion of legal validity. They
constitute the legal filter, the pedigree test. They are the sources of law. It is by virtue of them
that the validity of legal rules may be established by reference to the criteria of legal validity
currently accepted by judges as part of their “factually” determined and “largely concordant”
rules of practice. The rules of recognition (RR) specify some features, possession of which is
taken as conclusive affirmative indication that the other rules belong to the system. The rules
of recognition are rules of the group to be supported by the organised pressure of the judicial
and executive organs. The rules will indicate the conditions under which a rule may be
created by enactment (legislation)’ or by the force of customs or precedent.
When a plurality of sources is recognised, they will be ranked in an order of relative

subordination and primacy. The various rules of recognition may be integrated logically in one
- the ultimate rule of recognition. In this way the logical unity of the system is guaranteed
(pp.44, 93, 98, 102, 144).
The ultimate RR is similar to the basic norm of Hans Kelsen in that its validity cannot be
tested by reference to any other rule of the legal order. But there is one important distinction.
The validity of the Kelsenite grundnorm is postulated or hypothetically assumed. But the
validity of the ultimate RR is a question of empirical fact. Does the supreme rule actually exist
i.e. is the system a social reality or only an imaginary structure? Do the courts identify it as
law and is there a general acceptance of this identification? (pp.105, 109, 245). The ultimate
RR may be regarded both externally as a statement of fact and internally as providing
accepted rules of validity.
According to Hart the rules of recognition give rise to the notion of validity. To say that a rule
is valid means that it satisfies the criterion of recognition and therefore will be accepted and
applied according to its content.
3. According to Hart law is a union of primary and secondary rules (p.79). But this is not meant
to be a definition of law but the key to understanding the essence of law.
4. The significance of secondary rules is that they mark the difference between a pre-legal
society in which there were only primary rules and the legal world with its wealth of secondary
rules. Another function of the secondary rule (of recognition) is that it provides certainty in the
law by providing a criterion of identification.
5. Hart distinguishes between internal and external points of view in relation to rules. The
external aspect is the regularity of behaviour which can be observed by an outsider. The
regularity may be for reasons of habit custom or fear. The internal point of view refers to a
‘critical reflective attitude’ to certain patterns of behaviour as a common standard. The IPV is
not just a matter of a feeling of being bound. It refers to voluntary acceptance. It depicts the
internalisation of rules displaying itself in criticism (including self-criticism), demands for
conformity and acknowledgments that such criticisms and demands are justified. The IPV is
distinct from mere habit.
6. Hart distinguishes between “being obliged” and “having an obligation”.
7. According to him the existence of a legal system requires that the primary rules of obligation
should be generally obeyed. But it is sufficient if the rules of recognition, change and
adjudication are accepted by the officials of the state.
8. There is a brief discussion of the “pathology” of a legal system during revolutions, enemy
occupation, anarchy or banditry.
Chapters 8 and 9: Law, Morality & Justice

1. Justice is equated with fairness - a fair hearing and fair shares.
2. The essence of justice is also in equality - the claim that like cases shall be treated alike. This
principle presupposes a material standard of evaluation to decide what makes cases alike.
The idea of justice without such supplementation cannot afford any determinate guide to
conduct.
3. In itself the idea of justice is incomplete, an empty form which cannot afford any determinate
guide to conduct (p.155).
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4. In chapter 9, Hart deals with the relation of law to morals. He rejects the natural law claim that
law necessarily must conform to some extent with morals. Without denying that law and
morality are interrelated in many ways, Hart denies the idea of necessary conformity.
Nothing is to be gained either theoretically or practically by denying the name of law to a bad
or even an abominable system if that system in other, respects presents the features of a
legal order (p.205).
5. Validity is discussed by him by reference to a rule of recognition. Validity is seen “internally”
i.e. as depending on the way in which the courts in actual practice identify what is to count as
law. The question of the existence of a rule or a system of rules is an empirical question of
fact and depends on the practice of the courts.
6. For the minimum content of natural law Hart turns to Hobbes and Hume. The five “facts of
human condition” necessitate some minimum rules of protection for person, property and
promise. To this extent he refutes the positivist assertion that law may have any content.
Chapter 10 : International Law

In Hart’s theory of law force and sanctions are not a central feature of law. The law consists of primary
and secondary rules backed by an internal point of view (IPV). Hart avoids Kelsen’s ideas of a
grundnorm and replaces it with that of an identifying criterion accepted by the courts. According to him
international law (IL) is law because of the following reasons:
1. There are sufficient analogies of content & function though not of form between IL and municipal
law (ML).
(a) There are rules prescribing how states ought to behave which are accepted as guiding
standards just as in ML.
(b) Appeals are made to precedent, writings & treaties as in ML; not to rightness or morality.
(c) Rules of IL, like those of ML, can be morally neutral.
(d) Like rules of ML rules of IL can be changed by conscious act e.g. by treaty
2. The binding force of IL rests on its acceptance or the IPV as in ML.
3. As to the difference between IL and ML, Hart acknowledges them but argues that it would be wrong
to expect the international system to develop along the same lines as a municipal system. The
criterion of validity should, understandably, be different. The main differences are as follows:
a) Subjects of IL are primarily states and not individuals.
b) The disparity in strength between states far exceeds that between individuals in society.
c) Courts have no single criterion of identification in IL because international rules do not exist
in a hierarchy; in addition there are unrelated sets of tribunals. Their adoption of international
rules is ad hoc and not based on consistent theory.
d) IL lacks effective machinery for applying overwhelming organised force against violators.
States obey IL out of self-interest, possibly also because of fear and because adherence is
useful and profitable. But the absence of effective sanctions does not justify denial of legality
to IL. As Aquinas had pointed out there is a difference between the coercive and directive
authority of law. IL may be said to have a directive force upon sovereign states even in the
absence of coercive authority.
e) Role of sanction is entirely different in IL than in ML. In ML, physical sanctions are applied
with regularity, consistency, predictability and they generally prevail with very little risk to the
community. In IL sanctions are applied against whole nations; fearful risks are involved;
instead of securing peace and order sanctions may provoke war;
f) IL does not have a basic norm but consists of a set of separate primary rules of obligation.
IL lacks rules of adjudication and change. (Is it then a form of primitive law as Harris
suggests?)
Criticisms
1. The book offers valuable insights into the general concept of law. But no precise definition of
law is offered.
2. His claim that the book is part of “descriptive sociology” is only partly correct. In is functional
analysis of legal concepts and in his recognition that the ultimate rule of recognition is an
empirical, social fact there are traces of the sociological approach. But the book is largely
normative or interpretive rather than descriptive. He has a message as to how law should be
viewed. The “purpose” of making the law certain by referring to authoritative rules of
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recognition is normative in nature. The IPV, the idea of “having an obligation” as opposed to
“being obliged” partake of non-empirical (and possibly moral) considerations.
3. Ross (Yale Law Journal Vol. 71: 1185 at 1186) questions Hart’s assumption that municipal
law is a systematic unity or that the sources of law exist as a hierarchy. “The much cherished
logical unity of a legal order is more a fiction or a postulate than a reality. The various sources
in actual fact do not make out a logical hierarchy but a set of cooperating factors. Customs
and precedents, says Hart, are subordinate to legislation. I believe that (this) squares better
with a confessed, official ideology than with facts.”
4. Hart’s criticism of Austin that Austinian theory could not account for power-conferring rules is
incorrect. Rules conferring powers on judges could be explained as part of the sovereign’s will
that people subject to the judges’ jurisdiction should do as’ judges direct.
3. THE LEGACY OF HART

Since his appointment to the chair of Jurisprudence at Oxford in 1951, Herbert Hart exercised a
profound influence on jurisprudence in England and wherever positivism is the dominant theory of
law.
His Intellectual Legacy

Herbert Hart’s legacy to jurisprudence can be summed up by reiterating some of his prominent
ideas.
1) The legal system is not based on coercion alone. The imperative theory’s model of law
based on commands is to be rejected because it exclusively reflects the pattern of criminal
laws and is inapplicable to that part of the legal system which confers public and private
powers.
2) Obedience to, enforcement of and survival of laws depends not only on sanctions but also on
the internal point of view that citizens and officials take towards a rule conceived as imposing
obligation. Hart downplayed the role of force and sanction in a legal system by replacing the
imperative theory with his idea of the internal point of view.
3) All rules have an external as well as an internal aspect.
4) There are two types of rules: (a) Primary rules of obligation on which impose duties; and
(b)Secondary rules which create powers and provide procedures and remedies. Secondary
rules are of three types: (a) Rules of change which may be of a higher order or of a lower
private dimension; (b) rules of adjudication and (c) rules of recognition.
5) The existence of a wealth of secondary rules is the mark of a developed legal system and
is proof of transition from a prelegal to a legal society.
6) Validity of primary rules is a purely formal matter and rests on the appropriate secondary rule
(or rules) of recognition. In turn the validity of secondary rules rests on other secondary
rules. But the validity of the ultimate secondary rule, if there is such an ultimate rule, rests
not on law but on acceptance by those who operate the legal system.
7) The survival of a legal system rests on two necessary and sufficient conditions: (a) the
existence of two types of rules and their union; and (b) the internal point of view by citizens
and officials towards rules.
8) Hart corrects the error of literalism and formalism by conceding ‘the problem of the fringe
meaning’. But he defends legal positivism against the ‘rule sceptics’ by pointing to the
existence of a core or paradigm of settled meaning.
9) He rejects Kelsen’s view that every legal system must be referrable to some basic norm. For
example the rules of a simple society or the rules of international law are not traceable to an
ultimate Grundnorm.
10) He acknowledges a core of indisputable truth in the doctrines of natural law and refutes the
positivist assertion that law may have any content. In order to survive as a communition,
certain minimum rules must exist in order to protect person, property and promise and to
reflect the ‘five facts of human condition’.
11) He accepts international law and custom as laws because they are backed by the internal
point of view. Unlike Austin lie accepts supreme constitutions because he had rejected the
Austinian concept of absolute sovereignty
12) He moved away from a purely formal analysis of legal concepts towards a functional and
contextual janalysis.
13) While rejecting any necessary connection between law and morality and denying morality any
role in the rule of recognition, he nevertheless concedes that morality exerts strong influence
on many aspects of the law and legal system n a number of issues - the internal point of
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view, the difference between legal validity and duty to obey laws, the defiance of unjust laws,
the stability of a legal system, the distinction between power and authority, the difference
between being obliged to obey’ and ‘having an obligation’. - there are strong moral elements
in Hart’s theory. (Reference may be made to pages 2-3 of my essay “Are There Moral
Elements in Positivist Theory?”]
14) Hart rejects utilitarianism on the ground that it fails to acknowledge the worth of individuals as
persons and because it prefers aggregate happiness to just and equal distribution.
15) On the enforcement of morality lie adopts an essentially liberal point of view. It is not the
business of the law to Suppress sex immorality. But unlike J.S. Mill he accepts the need for
Paternalism in other areas of morality if the ‘critical morality test’ justifies intervention.
An Evaluation
The above ideas of Hart attracted a large following and have left a lasting impact. When the
history of twentieth, century legal Philosophy is written, perhaps Herbert Hart will be remembered
most for the following contributions to legal thought:
(a) H made legal philosophy readable. The simplicity and clarity of The Concept of Law proved
that legal Philosophy can be expressed in a way comprehensible to the ordinary man.
(b) Hart contributed immensely to expository jurisprudence. He gave us a sharpened awareness
of words to sharpen our awareness of the phenomenon. He gave us a masterly analysis of
such fundamental concepts as legal system, rules, law, morals, legal power, habit, sanction,
right, duty, responsibility, causation, intention and negligence.
(c) He offered a very convincing and critical analysis of Austin’s theory of law and sovereignty.
He rejected the ‘orders backed by threats’ model of law because (i) there are psychological
and other objections to regarding laws as commands; (ii) the model of law as commands fails
to take note of the variety of laws especially public and private power conferring laws; (iii) the
imperative theory cannot explain the continuity of law; (iv) it fails to take note of the role of the
internal point of view in securing obedience; (v) it cannot accommodate the possibility of the
Sovereign being bound by primary and secondary rules; (vi) Austin’ s view of ‘nullity’, his
insistence on a central, monolithic and monopolistic sovereign, and the importance tie
attached to habitual obedience by the bulk of the population were all rejected by Hart. Instead
Hart emphasised the IPV and placed premium on recognition or and obedience to secondary
rules by Officials of the system.
(d) He recognised the creative and crucial role of judges in a legal system. Austin had treated
judicial precedents as mere tacit commands of the sovereign and reduced judges to mere
delegates of the sovereign. The’ recent decision in Factortame (No. 2) is a movement away
from Austin towards Hart because it acknowledges that the sovereign’s sovereignty is
dependent on judicial recognition and not on popular recognition
(e) Hart did much to restore Bentham’s place as the rightful father of English jurisprudence:
(William Twining, “Academic Law and Legal Philosophy: The Significance of Herbert
Hart”, LQR.vol 95.Oct 1979. 557-580 at 580). Hart correctly pointed out that if Bentham’s
works life been discovered earlier, English jurisprudence would have branched out into the
fertile valleys of censorial jurisprudence instead of being confined to the arid desert of
Austinian formalism.
(f) He attempted to integrate law and morality. This removed some of the rough and formalistic
edges of expository positivism and gave to English jurisprudence some respectability and
breadth.
(g) He was concerned not only with analysis but also with synthesis. He contributed to the
integrative and synthesising functions of jurisprudence. He built bridges with other
approaches to law and legal philosophy. He provided a reasonably broad view of law as a
discipline. “He jolted English jurisprudence into life again” (B E King, The Basic Concept of
Hart’s Jurisprudence: The Norm Out of the Bottle. [19631 CLJ. 270-303 at 303).
(i) His fidelity to positivism showed up in his insistence on a formal criterion of validity - the
rule of recognition which supplies the authoritative, amoral test of validity. Nazi law was
therefore law but bad law.
(ii) He reached out to natural law by conceding a core of indisputable truth in the doctrines of
natural law. But he remained loyal to the empirical method of positivism by seeking to
discover the minimum content of natural law from ‘facts of human condition’.
• In his engaging debates with Lon Fuller he conceded the importance of morality to the law but
insisted that the connection between the two was not necessary.
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• There are strong moral elements in his theory. For example his emphasis on the internal
point of view. Also his acknowledgement that legal obligation and moral duty do not always go
together. He drew a distinction between obliged to obey and obligation to obey and between
power and authority. On the issue of identification he remained true to positivism; but on
issues in the time frame of the continuum like issues of survival of legal systems. Duty to obey
laws, civil disobedience, recognition by officials of the rule of recognition, interpretation and
administration of the law by state officials, he openly acknowledged the influence of morality.
It can. therefore, be said that he elucidated the concept of law by reference, at least partly, to
morality.
• In chapter 8 of Concept he concerned himself with the concept of justice.
• On the issue of enforcement of morality, he recognised the need for Paternalism though he
rejected Devlin’s shared morality test.
(iii) He ventured into the sphere of Bentham’s censorial jurisprudence. His discussion on the
enforcement of morality is influenced by a Liberal form of ethical pluralism and modified
form of utilitarianism.
(iv) He came to terms with the rule skepticism of the realists by acknowledging the existence
of the penumbra but defended his rule based theory of law by pointing to the core or
certainty.
(v) His sociological approach is evidenced in his claim that The Concept of Law was an
essay in descriptive sociology.
• His reliance on ‘facts of human condition’ rather than on values in his theory of natural law:
his insistence that the rule of recognition is not a postulate but a social fact and t h a t validity
is a matter of descriptive sociology: and his emphasis on functions rather than meanings of
rules undoubtedly give to his theory a sociological flavour.
• The secondary rule of change brings dynamism to the legal scene. It allows citizens to play a
role in rule-making and rule-changing. This is quite in accord with sociological thinking.
• The idea that rules work not because of sanctions (and the attendant element of fear) but
because of ‘acceptance’ of these rules by citizens and officials, opens up vast new vistas of
ethic, sociology, psychology, and anthropology in order to explore WHY and WHY NOT
citizens and officials show fidelity to the rules of the system. Sadly, Hart did not venture into
these areas to any appreciable extent.
Gaps in his theory

1) Hart acknowledged the importance of broader approaches to the study of law. Bu his
loyalty to positivism and his primary concern with an ‘understanding of the law’ prevented
him from addressing the larger issue of reform of the law. He described the necessary
conditions for the survival of legal phenomenon but not the necessary conditions for “law’s
flourishing” in the sense in which Finnis used the terms. Hart did not develop a sociology of
law or a significantly broadened conception of law. He merely modernised and refined
conceptions of jurisprudence inherited from Bentham and Austin. English theory under him
did not really integrate with social theory. Jurisprudence in his hands remained largely
expository, analytical, apolitical and uncritical. This can be contrasted with Dworkin’s
approach that in interpreting the law- moral colours ought to be added to the canvas.
2) Ross points out that Hart’s belief that Austinian theory cannot account for power-conferring
rules is incorrect. Rules conferring power on judges could be explained as part of the
sovereign’s will that people subject to the judges’ jurisdiction should do as judges direct.
3) LIoyd argues that Hart ignored the institutional framework within which rules operate.
4) Dworkin argues that rules are not enough. There is law beyond rules: that principles,
doctrines and standards are vital parts of the law and influence judicial decisions in hard
cases.
5) A host of jurists among them Fuller and Lloyd have hammered home the point that the strict
division of rules into primary and secondary cannot be maintained. The same rule. e.g. the
rule of judicial precedent. may create a power plus a duty.
6) In relation to the internal point of view. Alf Ross asks whether there is a distinction between
accepting the rules and feeling bound by them.
7) Fitzgerald says that the significance of secondary rules has been exaggerated by Hart.
Secondary rules may be altered without creating an entirely new legal system.
8) Weber provides an institutional view of the continuity of law as opposed to Hart’s
internal point of view.
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9) Dworkin disagrees that the -open texture of language confers on judges a wide discretion.
Judicial interpretation is constrained by principles, by rights and by ‘fit and integrity’
10) Simmonds questions whether the meaning of words in the paradigm is as settled as Hart
believes. Even in the paradigm, interpretation is dependent on purposes and social context.
11) MacCormick finds an element of circularity in Hart’s rule of recognition. Rule of recognition
pre-supposes judges. Existence of judges pre-supposes a rule of adjudication. The rule of
adjudication is valid only in accordance with the rule of recognition.
But despite the above criticisms, it remains true that Herbert Hart jolted English jurisprudence into life.
He gave to it a breadth and depth it did not have under Austin.
Further broadening is now necessary.

In evaluating his significant contributions, one is reminded of Gregory, who even while presuming
to suggest improvements to the Julian Calender must have thought in contemplating it - “Boy,
what a job!
4. A SYNOPSIS OF HART’S RULE-BASED THEORY OF LAW

1. Hart saw law a means of social control.
Law is purposive in that it seeks to regulate societal relationships. It is also normative in that it
is seen as a standard of behaviour.
2. He replaced the idea of a command with the idea of a rule.
The concept of a rule is broader than the concept of a command because a rule has elements
which a command may not. Rules have:
(i) Legitimacy and authority. Legitimacy is to be contrasted with legality; authority is to be

distinguished from power.
(ii) Normativity and bindingness implying obligation.
(iii) Continuity or persistence in time. Hart alleges that the command theory fails to explain
continuity of law after the death of the sovereign.
(iv) The internal point of view that is obedience in the absence of fear.
3. There are advantages to viewing law as a rule than as a command:

• The idea of a rule helps us to distinguish the law of the state from the law of a gunman. Law
consists of ‘obligation rules’, not only rules of force. A legal system must be distinguished
from the rule by gangsters over a frightened populace.
• The idea of a command is tied up with a determinate commander wielding power over his
subjects. In modern society law comes forth from a very wide variety of sources.
• Because the concept of a rule is broader, and is linked up with the internal point of view, we
can accommodate international law and custom within the definition of law. But rules can be
distinguished from mere habit. The latter does not exhibit any critical reflective attitude.
• The essential elements of a rule (like the IPV) link law with morality.
• A rule is open to a morally charged interpretation.
• In Hart’s theory there are many types of rules. The idea of multiple types of rules is much
more sophisticated than the homogeneous command of the sovereign in Austin. A rule based
theory avoids the spurious uniformity that Austin had imposed on laws by defining them all as,
commands.
4. At the heart of Hart’s view of law is the idea of the internal point of view.
The IPV explains much better why law is obeyed. Most citizens are not merely in the habit of
obeying authorities. They have internalised the rules and use rules as reasons for acting in
certain ways and use rules as standards for criticising others who flout the rules. This
contrasts with Austin’s idea of law as a command backed by sanction obeyed for reasons
primarily of fear. The idea of a rule also contrasts with the Austinian idea of law as a habit of
obedience to a political superior.
5. Hart distinguishes between:

• internal and the external point of views;
• authority and power;
• legitimacy and legality; and
• having an obligation and being obliged. The command theory cannot distinguish
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` between the social phenomenon of being under an obligation and being obliged.
6. He distinguishes between primary and secondary rules.

The former apply directly to the citizens. The latter govern the operation of the-legal system
itself. The former are duty-creating, the latter power conferring. (This unsatisfactory distinction
subjected him to much criticism).
7. The secondary rule of recognition is crucial to Hart’s theory.

It supplies the pedigree test, the legal filter or the criterion by which the officials of the state
identify the law. It supplies the (legal) justification for actions by the officials.
8. The secondary rule or rules are empirically derived. They are part of Hart’s descriptive
sociology.
9. Hart promotes an integrated approach to the study of law.

• While denying any necessary or causal link with morality, he builds bridges with natural law
by advocating a minimum content of natural law. He readily admits that at a thousand and
one points, law and morality intersect. He admits that judicial law making in the penumbra
may be influenced by moral standards. The moral elements in his theory have made some
commentators suggest that his jurisprudence is a “softer” and more sophisticated version of
positivism than Austin’s.
• He joins hands with sociology by seeking to present his work as an attempt at “descriptive
sociology”. Unlike Dworkin he seeks to describe legal practice not to prescribe it.
• He defends legal positivism against the realists (the rule sceptics) by pointing out that at the
core of every rule, there is always a paradigm of settled usage. But he readily concedes the
problem of the fringe meaning in the penumbra. Due to the open texture of legal language,
judges have wide discretion to interpret or make law at the margins.
Such flexibility is necessary and desirable to keep the law dynamic.
10. He criticised earlier attempts to analyse law in strictly empirical, neutral or factual
terms without taking account of the way the participants understand the institutions or
practices they participate in. He supported the “hermeneutic approach” that one cannot
understand a social system unless one understands how the people who created the system
or who participate in it perceive the system or their situation in it.
11. In Austin’s theory, sanctions imparted validity to a command. This was like putting the
cart before the horse. In Hart’s writings rules governing sanctions are derived from power
conferring rules.
5. DESCRIPTIVE SOCIOLOGY
1. To what extent, if any, can Hart’s The Concept of Law be described as an “essay in
descriptive sociology”? [J 94H(1)]
2. Notwithstanding its concern with analysis the book may Also be regarded as an essay in
descriptive sociology. [J 93H(lb)].
Interpretation: Is Hart’s book a mere description of legal practice i.e. is it morally neutral or does he
seek to promote particular views about what law ought to be? Is The Concept of Law with its
Postscript an exercise in description of social reality or are there normative elements in his book?
1. Those who view Hart’s book as an “exercise in descriptive sociology” can rely on the
following arguments:
1.1 Formal Test of Validity: According to Hart, law is law because of enactment, not because of
morality. The test of validity is a formal test, that is, whether the rule has gone through the recognised
and accepted rule of recognition of the legal system. Thus Nazi law is law despite its immorality.
Morality is not relevant to identification of law. It plays a role only in the continuum.
1.2 Rule of Recognition is a Social Fact: The rules of recognition are (or the ultimate rule of
recognition is) an empirical social fact and not a postulate as in Kelsen. Validity is a matter of
descriptive sociology, and not a matter of morality, history etc. Hart disagrees with the decisions of the
German Courts in cases such as the Grudge Informer case. He rejects lex injusta non est lex.
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1.3 Natural Law can be derived empirically: The theory of natural law is based on the five facts of
human condition and not on values or presumptions of the good and the just. Hart uses the word
‘natural’ to mean ‘that which reflects man’s physical, social, biological and psychological make up.
1.4 Context determines Content: Hart accepts that concepts do not have an objective, fixed,
universal meaning. Words and concepts must be understood in their societal context. Hart disagrees
with Dworkin’s attempt to give to words a ‘morally charged’ interpretation. He rejects Dworkin’s
approval of Riggs v Palmer.
1.5 Settled Usage: The idea of ‘a paradigm of settled usage’ seeks to discover the agreed or
accepted ground rules of legal practice.
1.6 Rights are derived from the law: Legal rights are derived from actual, existing law. They are not
inherent. He rejects Dworkin’s view that moral judgements about people’s rights are part of their legal
rights.
1.7 Jurisprudence should be descriptive, not prescriptive: Unlike Dworkin, Hart does not make
any prescriptions for Hercules. Hart says that he is seeking to describe legal practice not to direct it in
particular directions.
1.8 General Jurisprudence: Hart’s theory is general i.e. not tied to any particular legal system. Unlike
Austin whose theory replicated too much of the English model and Dworkin’s theory which is based
on judicial assertiveness in liberal democracies, Hart seeks to develop a theory of law which would
apply everywhere. Hart is neutral as between democracy and dictatorship.
1.9 Certainty & Predictability: He denies Dworkin’s assertion that the primary purpose of judicial
practice is to justify (from a moral point of view) the application of coercion to human beings against
their will. The primary purpose of legal practice is to make the law certain and predictable and to
separate law from matters of personal conscience. Thus, the introduction of secondary rules was
meant to achieve aims different from justification of the coercive powers of the state.
2. Critics of Hart, however, charge that his book contains definite normative elements.
2.1 Criterion of Validity: The choice of the criterion of validity can never be neutral. The statement
that ‘judges accept this rule as law’ may be a descriptive statement. But the statement that ‘whatever
the judges accept as law is law for the legal system’ is a prescriptive statement.
2.2 There are no objective facts: Dworkin points out that positivism is not descriptive but
interpretive. It presumes and accepts some “facts” as valid and desirable. Thus ‘the habitual
obedience of the bulk of society confers on the object of such loyalty the characteristics of
sovereignty’ is an a priori judgement. The Kelsenian idea that efficacy plus judicial recognition are
equal to validity; or Hart’s idea that the rule of recognition is valid if accepted as such are not
descriptions but prescriptions. A description of social practice (involving subjective judgements on
what the actual facts are) is difficult to separate from commitment and evaluation.
2.3 Belief that Certainty is desirable: The purpose of making law certain by referring to ‘authoritative
rules of recognition is normative in nature.
2.4 Not taking sides amounts to taking sides: The desire to be neutral is itself a form of judgement.
Neutrality is another form of engagement.
2.5 Moral or a priori judgements in Hart ‘s theory: The internal point of view, the idea of legitimacy
and authority, the idea of having an obligation as opposed to being obliged are all normative in nature
and partake of non-empirical and possibly moral considerations
2.6 Accepted sources & Hierarchies: Hart believes that: (I) There are clear-cut sources of law (the
pedigrees); (ii) these sources exist in a hierarchy; and that (iii) municipal law is a systematic unity.
These are not facts. These are assumptions because it is undeniable that non-rule standards exist
independently of the rule of recognition and they do play a role in judicial decision making. The
sources of law are alleged to exist in a hierarchy. In actual practice they compete with each other. The
systematic unity of the legal system is denied by the crits.
2.7 Separation of the inseparable: The very idea that law and morals are separate is based on a
pre-conception of what law is. In any case law and morals cannot be separated at the moment of
interpretation and application.
2.8 “Essential’ features of law: Hart’s claim that Nazi law was law because it exhibited the essential
features of a law involved a pre-conception of what these features are.
Conclusion
In legal theory neutrality is not easily possible. Ideological, a priori, and subjective preferences are
bound to creep into every “description” of. legal practice. Hart ‘s book, despite its claim at “descent-, -
sociology”, is largely normative or interpretive rather than descriptive. Hart has a message about how
law should be viewed.
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6. HART’S INTERNAL AND EXTERNAL POINT OF VIEW
According to Hart all legal rules have an external and an internal point of view. (EPV & IPV)
Similarities between the two

1. In both cases there is a pattern or regularity of behaviour.
Differences
1. In the IPV, the pattern of behaviour is internalised. In the EPV, the pattern is external. It is
observable by outsiders. For example habits, customs and usages like going out on a Saturday night
or sleeping late on a holiday.
2. The IPV involves “obedience in the absence of threat or sanction”. It is different from fear or habit. It
involves acceptance of the rules and a desire to obey. In the EPV the regularity of behaviour may be
for reason of habit, custom or fear.
3. The IPV involves a feeling of being bound. It refers to a ‘critical reflective attitude’ towards the rule.
This means that -
(i) the rule is generally obeyed;
(ii) there is a conscious desire to obey the rules;
(iii) there is acceptance of the rules as common standards of behaviour;
(iv) there is willingness to criticise and exert pressures on those who disobey the rules; and
(v) there is a belief that this criticism is legitimate and justified. Acceptance of the legitimacy
of pressure flows from the internal aspect of rules.
In the EPV, there is no such critical reflective attitude. Thus, habits do not attract pressure for
conformity.
4. The IPV can explain the continuity of law.

But the EPV cannot explain Austin’s idea of obedience to the sovereign in terms of a habit of
obedience. The EPV fails to explain the persistence of laws from previous sovereigns or the continuity
of authority from one sovereign to the next.
5. The IPV is the mark of a developed legal system. The EPV exists in developed as well as
undeveloped legal systems.
6. Obedience to and enforcement of law are based on the IPV. Obedience and enforcement depend
not only on the external social and legal pressures which are brought to bear on human beings to
prevent them from deviating from the rules but also on the IPV that human beings take towards a rule
conceived as imposing an obligation.
7. The EPV can help to create or strengthen the IPV. But it is generally not relevant in securing
obedience to or enforcement of the law. Thus, it is externally observable that most people speed up at
orange traffic lights. But there is hardly a duty to obey this practice.
8. The IPV supplies standards of behaviour. Law is obeyed not simply out of fear or out of habit but
because it is accepted by citizens and officials who not only obey the rules but also view them as
common standards of behaviour, violations of which are to be criticised. The EPV is not normative.
9. The IPV relates both to citizens and to officials. The citizens must render general obedience to the
primary rules of obligation. Officials must comply with secondary rules Hart attaches great importance
to official compliance. “The importance of the internal point of view relates not so much * to a body of
citizens as to the officials of the system who must not merely accept these rules as standards of
official behaviour but must also have a conscious desire to comply with these standards.”
The external point of view makes no such distinction between official or private compliance.
7. HART’S DISTINCTION BETWEEN ‘OBLIGED’ AND ‘OBLIGATION’

Q: Do you agree with Hart that there is an important distinction between being obliged
to do something, and being under an obligation to do something? [LLB 94(0)(1)]
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This question can be answered by reference to the theories of Austin and Hart on the issue of
“duty to obey the law”
Austin’s command theory

Austin, in his command theory correlates duty and sanction. If the sovereign expresses a wish
and has the power to inflict an evil, then a person is under a duty to act in accordance with the
wish.
Hart’s internal point of view

Hart’s contention is that the command theory fails to distinguish between the social phenomenon of
being under an obligation and being obliged. The two phenomena are different although they
frequently occur together.
Being obliged
A person is obliged to do or refrain from doing something (i.e. he is forced) when that something is a
necessary condition for the avoidance of some threat or punishment. The gunman situation aptly
describes this. The victim, under threat to yield his money, complies in obedience. The victim is forced
or obliged to obey to avoid punishment. He is not under an obligation - or duty to do so. Here,
obedience is related to the beliefs, motives and fears of the victim. He believes the gunman would
shoot him if he does not obey his orders. This motivates his compliance.
Being under an Obligation

But to say that one has an obligation (duty) is a statement of a very different kind.
(1) Strictly speaking, the duty to obey the law cannot be based on the law. The idea of duty to obey
the law precedes the law and is not a consequence of the law.
(2) Valid rules are not necessarily binding. Legality and duty are not one and the same thing despite
what Austin had argued. Legality and duty are two separate considerations.
(3) Duty is free of habits, motives or fears. Duty is not linked with fear or sanction as in Austin. The
link between duty to obey and sanction is a mistake. It is true that belief in a sanction being imposed
for non-compliance motivates obedience but this in itself is not sufficient for an obligation to arise. For
example, do we stop at a red traffic light only because we fear that we might be issued with a
summons by a policeman if we were caught beating the light? That we have an obligation to stop at
the red traffic light remains true even if we believe that we will never be found out for beating the light
and will never have to face the sanction that goes with being found out.
(4) The duty is partly legal, partly moral. It arises when there is:
(a) legal validity i.e. the rule satisfies the legal filter, and
(b) there is moral obligation.
Moral obligation has nothing to do with the legal filter. A rule can be just and moral and therefore
morally binding even if the rule of recognition is not satisfied. Moral obligation is linked with the
following:
(i) The justice of the law. Thus much of the criminal law is seen as binding because of
acceptance of its righteousness.
(ii) The authority and legitimacy of the law. It is not enough that the law making institution has
“power”. It must also have
(iii) The internal point of view and the critical reflective attitude which involve obedience in the
absence of fear. There must be acceptance of the rules as authoritative standards of conduct.
Thus there must be a critical reflective attitude that stopping at red lights is the proper thing to
do. The root of obligation lies in a rule being internalised.
(iv) The existence of social pressures for conformity to a rule. This is one of the primary
characteristics of obligation. But Hart explains that the fact that rules of obligation are
generally supported by serious social pressure does not entail the conclusion that to have an
obligation is to experience feelings of compulsion or pressure. Thus, a hardened swindler
may still be said to have an obligation to pay rent even if he feels no pressure to pay and
makes off without doing so.
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(v) The rules which are supported by social pressure, should be existing for the purpose of
maintaining social order. An example would be rules restricting the use of violence.
(vi) There is an element of sacrifice in obeying the rules in the larger interest of the
community.
There is a further approach to the notion of obligation. Instead of defining the notion with subjective
features, like beliefs or motives, it can be defined in terms of chance or likelihood of suffering some
evil or punishment in the event of disobedience. It is because Austin admits that
the sanction can be feeble or insufficient, and therefore hardly a psychological inducement for
compliance that he best fits this approach to obligation. Hart objects to this predictive model on
two grounds.
First, it neglects the internal aspects of a rule. The violation of a rule is not merely a basis for the
prediction that a hostile reaction will follow but a reason for hostility. A judge who punishes deviations
from a legal rule takes the rule as his guide and the breach of the rule as his reason and justification
for punishing the offender. He does not look upon the rule as a spectator might
i.e. that the rule is a statement that he and others are likely to punish deviations.
Secondly, under the predictive model, if a violator realises that the breach of an obligation is unlikely
to give rise to sanction, then there could be no obligation. For example, if a traffic violator
bribes the policeman and avoids the summons, there can be no obligation because under the
imperative theory, in the absence of sanction there is no law!
In reality law exists independently of an individual’s perception of a likelihood of a sanction. Legal

obligation can only be analysed in terms of a sanction if there is a general belief that sanctions are
likely to be imposed upon wrong doors. Such an analysis assumes the continued operation of a
system of punishments.
Generally however, there are many circumstances where breach of an obligation may not attract
a sanction on account of the circumstances surrounding its application. For example, as stated above,
the traffic offender may bribe the policeman to avoid sanctions. Therefore, sanction and duty cannot
be correlative as contended by Austin. Sanctions or the prediction of it cannot of itself create an
obligation. For example, many would not think that any obligation is being broken in failing to place
money in a parking meter when a traffic warden is nowhere to be seen.
On the other hand, Hart’s contention that legal obligations can only be accounted for by the internal
aspects of rules can also be criticised. Rather than defining law, Hart believes that a better approach
to knowing what the law is, is to shed light upon concepts which have puzzled jurists throughout the
ages. To elucidate these concepts, Hart engages in linguistic philosophy. The distinction Hart makes
between ‘being obliged’ and ‘being under a legal obligation, and his notion of the ‘internal aspect’
have great significance. A different interpretation of these concepts
would lead to a different conclusion.
8 HART’S MINIMUM CONTENT OF NATURAL LAW

Q. ‘Given survival as an aim, law and morals should include a specific content’. (Hart).
Discuss with particular reference to Hart’s minimum content of natural law. [June
1991 (1)]
This is a specific question on Hart ‘s theory of NL and his attack on the positivist view that law may
have any content.
Hart believes that there is a core of indisputable truth in the theory of NL. Given the f act that survival
and not suicide is a human goal, this goal necessitates recognition of some “basic facts
or inevitable features of the human condition”.
The facts are: human vulnerability, approximate equality, limited understanding, limited resources
and limited altruism.
In the light of these ‘inevitable features of the human condition’, certain substantive rules are essential
if human beings are to live together in close proximity. These rules (which Hart does not formulate)
could provide minimum protection for persons, property and promise. They would make our it
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minimum content” of NL. Though Hart does not state this minimum content, perhaps he refers’ to such
rules as the right of self defence in criminal law; rules relating to trespass in tort
and crime and protection for contractual promise in civil law.
According to Dias, Hart’s theory is relevant in the time frame of the continuum because it supplies
matter-of-fact conditions without which Continuity will not be possible. It also noteworthy that the five
facts are not claim moral prerequisites (unlike the theory of Fuller).Hart is not asserting that morality is
a necessary component of every law. The five facts are social facts not moral rules.
Hart’s natural law theory is NOT a theory of higher law.

Of what value is Hart’s analysis? The prominent criticisms are:
(1) Hart did not state the actual minimum universal rules which would be built on his ‘five facts’.
(2) The facts he mentions are so vague and uncertain that any type of legal system may be built
on them. Take approximate equality. It is based on the principle of impartiality that “like should
be treated alike”. But by what criterion is a society to determine what cases are to be treated
alike? A society may treat as essentially unlike slaves and free men, black and white and
adherents of different religions. On Hart’s vague fact of human condition a just system of law
may not necessarily be built. Former South Africa’ s legal system may have approximated
with Hart’s five facts.
(3) Critics also wonder whether the five “facts” are empirically provable facts or mere common
sense assumptions about the human condition? Hart has not told us how he arrived at these
facts especially approximate equality and limited altruism. Are these a priori assumptions, or
scientific descriptions of the so-called inevitable features of human
condition? How did Hart conclude that man is possessed with limited altruism? Is it not
arguable that man is inherently selfish or inherently altruistic?
Are the facts exhaustive? Isn’t a different list of facts possible to draw up?
(4) Lloyd (5th ed. pp. 14-15) criticises Hart ‘s endeavour to derive the ‘ought’ from the ‘is’. By
doing so Hart can lay claim to empirical derivation of his NL theory. But should ideals be
derived from facts? Long time ago Hume pointed out the fallacy of trying to derive ought
from is and argued that normative statements could not be inferred from purely factual ones.
Never is something right because it is, because it was or because it is gong to be.
Hart, utilitarianism and sociological theories (like those of Pound) which sought to draw
inferences from physical laws or physical facts of the universe suffer from this confusion
of mixing up norm and fact. For example the Speluncean Explorers case illustrates that law
and morality are not always dictated by considerations of survival. Similarly ‘need’ or
hunger are not a defence to the law of theft. The legal system is clearly built on some
objective, normative and idealistic considerations. Facts alone cannot dictate the oughts
of law.
Perhaps Hart. recognises this. Survival is an aim; but not the only one
(5) By conceding a minimum content of natural law, has Hart betrayed positivism and
defected across the borders of positivism into natural law? Does the idea that al1 legal
systems must have a minimum content undermine Hart’s separation between law and
morality”
It is submitted that all that Hart is arguing is that given some facts certain consequences are, as a
matter of prediction, likely to follow. Hart is not prescribing a minimum content. He is predicting what is
likely to follow. In any case his theory of a minimum content is not a theory of higher law. A duly
enacted law cannot be invalidated on the ground that it violates the minimum content of natural law.
Hart ‘ s natural law theory is not about the criterion of validity but about the conditions necessary for
the survival of a legal system.
A final observation needs to be made. The question uses the words ‘specific content’. I would rather
use the word ‘minimum content’. Given survival as an aim, law and morals should include some basic
minimum rules to protect person, property and promise. But the detailed and specific rules cannot be
universal. They may vary from system to system.
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9. H.L.A. HART’S HERMENEUTIC POSITIVISM: ON SOME METHODOLOGICAL
DIFFICULTIES IN THE CONCEPT OF LAW
By H. Hamner Hill in Canadian Journal of Law and Jurisprudence VoL III, No.1 (January 1990)
Despite the tremendous literature that has sprung up concerning Hart's The Concept of Law, one very
important feature of the work has been somewhat over-looked: its methodological underpinnings.
While Hart himself says Tue Concept of Law may "be regarded as an essay in descriptive sociology",
this claim has not received adequate philosophical examination. Though a dedicated philosophical
positivist, the distinctive feature of Hart's legal philosophy “ the internal aspect of rules” requires a
social science methodology that moves him in the direction of hermeneutics. In defending the
importance of the internal aspect of rules against the predictive theory of Scandinavian Legal Realist
Alf Ross, Hart argues that without the internal aspect, one
jettisons something vital not only to the understanding of law but of any form of normative
social structure. For the understanding of this the methodology of the empirical sciences is
useless; what is needed is a `hermeneutic' method which involves portraying rule-governed
behaviour as it appears to its participants, who see it as conforming or failing to conform to
certain standards.
Despite having embraced a hermeneutic method in legal philosophy, Hart reasserts his basic
positivism by insisting that an investigator need not share or endorse the beliefs being investigated,
rather the investigator needs to understand the behavior as it is understood by its participants (that is,
"understand what it is to be motivated by such beliefs").? The methodological
stance that Hart wants to adopt I call hermeneutic positivism. Whether Hart can consistently maintain
a hermeneutic positivism is the subject of this paper. It is my view that, given internal tensions in his
position, he cannot.
The few commentators who have addressed the methodological question in Hart are curiously
divided. Michael Martin and Neil MacCormick, both positivist expositors generally sympathetic to
Hart, suggest refinements in or modifications to Hart's basic position that are designed to enable him
to maintain a hermeneutic positivism. MacCormick, explicating the internal point of view, identifies
both a cognitive element and a volitional element in rules. For MacCormick, the legal philosopher
must share the cognitive element of a rule in order to give an accurate hermeneutic account of it, and
must appreciate, but need not share, the volitional element. The point of requiring the investigator to
share the cognitive element of a rule is to satisfy Hart's requirement that one appreciate the rules as
one committed to them understands them. MacCormick calls his methodological stance a
"hermeneutic point of view" but, recognizing the treacherous methodological terrain he is on, shifts the
burden of articulating and defending such a point of view to Hart. Martin, worried that Hart is perilously
close to embracing Peter Winch's Verstehen methodology, distinguishes four discrete internal points
of view: the cognitive internal, the standard evaluative, the as if evaluative, and the impure standard
evaluative internal points of view. The cognitive internal point of view allows the investigator to know
what it is like to be motivated by certain beliefs without being committed to those beliefs. Martin
suggests that Hart's investigator should adopt the cognitive internal point of view, eschewing the
others as methodologically suspect.
On the other hand, Ronald Dworkin, Hart's leading anti-positivist critic, argues that Hart's methodology
is inadequate for the task he has undertaken. Dworkin argues that Hart needs to adopt the
methodological posture that has come to be called the verstehen thesis. Dworkin finds
Hart's legal positivism defective because, for Dworkin, the understanding a legal philosopher must
have of a legal system under examination can be had only by someone who is or has been a
participant in that legal system. Hart, responding to Dworkin, argues that the legal philosopher need
"not share or endorse" the beliefs of the members of a legal system in order to understand, and give a
descriptively accurate account of, those beliefs. Such is the current status of the debate over the
methodology of Hart's hermeneutic positivism: Martin and MacCormick warn Hart that he is perilously
close to a verstehen methodology, while Dworkin, having embraced that position himself, urges Hart
to come hither.
In this paper I argue that Hart cannot have things as he wants them. The philosophical work that the
internal aspect of rules is intended to do requires him to adopt a strong version of the verstehen thesis
Ä one in which understanding a legal system requires endorsing or accepting it. Martin and
MacCormick are mistaken in warning Hart against the verstehen thesis Ä his normativism, as I will
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show, requires it. Dworkin is mistaken when he says that Hart should embrace the verstehen thesis
for Hart is already committed to it. But given Hart's response to Dworkin, this is clearly a thesis to
which he does not wish to be committed.
My goal in this paper is not to advance a claim about the acceptability of the verstehan thesis.
Rather, it is to demonstrate that Hart's defense of the most important feature of his legal philosophy Ä
the rejection of Austin's reductionistic command theory of law Ä turns on the verstehen thesis.
Specifically, Hart is committed to the view associated with Peter Winch and Juergen Habermas that
one must understand social phenomena as they are understood by people participating in them. The
link between Hart's concept of law and the rerstehen thesis lies in what Hart calls "the internal aspect
of rules." Rules are central to Hart's concept of law, and the "internal aspect of rules" is centml to his
understanding of what it is for something to be a rule. Thus, what is distinctive in Hart's concept of law
requires a methodological posture from which Hart has tried to distance himself.
The remainder of this paper is divided into five sections. In section 1, I discuss the verstehen thesis,
particularly the Winch/1-Iabermas version of that thesis to which I believe Hart is committed. In
section 2, I discuss the concept of obligation as Hart uses it and the central role that concept plays in
his legal theory. In section 3, I discuss the conceptual link Hart forges between obligation, rules, and
the internal aspect of rules. In this section I present my reasons for ascribing to Hart a fairly radical
version of the verste/zen thesis, reasons which are based on what Hart himself says about the
internal aspect of rules. In section IV I discuss the various\ perspectives and points of view from which
one might undertake legal philosophy. Hart and Haitians argue that the proper perspective from which
to do legal philosophy is that of "the moderate external observer". In this section 1 argue that
moderate externalism cannot bear the weight that Hart places upon it.. Finally in section VI discuss
the implications of Hart's commitment to the versteheiz thesis for his general project in legal
philosophy.
Section 1
The Verstehen Thesis
The problem of understanding the behavior of an alien culture, the problem of verstehen, is, without
doubt, one of the most elusive yet most frequently discussed problems in the philosophy of the social
sciences. Although the problem can be, and has been, understood in several rather different ways,
Wittgenstein offers a helpful generic statement of it:
We also say of some people that they are transparent to us. It is, however, important as
regards this observation that one human being can be a complete enigma to another. We
learn this when we come into a strange country with entirely strange traditions; and, what is
more, even given a mastery of the country's language. We do not understand the people.
(And not because of not knowing what they are saying to themselves.) We cannot find our
feet with them.
The problem of verstehen, then, is one of finding our feet with a people whose behavior strikes us as
odd or, perhaps, incomprehensible. One cluster of solutions to this problem, which I will call
collectively verstehen theses, argue that an observer must attempt to understand behavior as it is
understood by those engaging in it, that is, the observer must come to see the world from the native's
point of view. Coming to see the world from the native's point of view, sometimes derisively referred to
as "going native", requires the employment of what Clifford Geertz, following
Gilbert Ryle, calls thick description. A thick description of an action, as opposed to a thin one,
incorporates reference to the actor's motives and beliefs - statements about why the action is
undertaken - as opposed to purely descriptive reports of the action. For Hart, as will be shown in
sections 2 and 3, philosophically adequate descriptions of legal phenomena are necessarily thick
descriptions. Gathering the contextual data needed for a thick description, however, commits one to
the verstehen thesis.
While the verstehen thesis is frequently associated with Max Weber and his intellectual predecessors
Withelm Dilthey and Heinrich Rickert, the particular version of the verstehen thesis to which I believe
Hart is committed comes from Peter Winch.
Winch takes as his starting point Weber's claim that one object of the cultural sciences is interpretive
understanding: placing "an act in an intelligible and more inclusive context of meaning in which the
"subjective meaning" of the action and its "intended purpose" can be understood. To this Weberian
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claim Winch adds claims about the study of society that are similar to some of Wittgenstein's claims
about the philosophical study of language. The result is a thesis about the philosophy of the social
sciences: the scientific study of schemes of social action cannot rest on assumptions concerning
shared criteria of rationality and the like. Legitimate interpretation in the social sciences imposes a
strong requirement of charity in translation on the investigator. For Winch, it is illegitimate to impose
one's own standards on a culture that is not one's own. An adequate explanation of actions within an
alien culture must be given in terms accessible to both "natives" and observer. The very real difficulty
that Winch's hypothesis poses for the social scientist is that before the social scientist can give an
explanation of behavior in terms accessible to the person whose behavior is being explained, the
social scientist must be able to see the world as does the person whose behaviour is the
explanandum. Interpretive understanding of alien behavior thus requires a special relation to the life-
world of the culture being studied, it requires adopting, at least conditionally the attitudes and beliefs
of the group being studied. Juergen Habermas has noted that such a relation to a life-world is more
than merely accepting that different people have different conceptual schemes. For Habennas, the
social scientist must
already belong in a certain way to the lifeworld whose elements he wishes to describe. In
order to describe them, he must understand them; to understand them, he must be able in
principle to participate in their production; and participation presupposes that one belongs.
[T]his circumstance prohibits the interpreter from separating questions of meaning and
questions of validity in such a way as to secure for the understanding of meaning a purely
descriptive character.
Belonging to a group is more than mere recognition of the sorts of behavior that are likely to provoke
unwanted reactions from other members of the group. Belonging to, or having membership in, a
group requires that one accepts and internalizes the values of the group. Accepting the values of a
group, however, requires the social scientist investigating the group to regard the group's rules as
binding upon (i.e., valid with respect to) the investigator. The rules and values of a group are shared,
and the social scientist seeking to belong must endorse, share, those rules and values. If an
investigator belongs, in Habermas' sense, to a group, then that investigator cannot give a purely
descriptive account of the group's behavior, not even a "moderately external" descriptive account. It is
my contention that Hart's sociological concept of law commits a Hartian legal philosopher to going
native a la Winch and Habennas. In the next three sections I will show why this is the case.
Section 2
The Centrality of Obligation in Hart's Concept of La
Hart is deeply committed to two central tenets of legal positivism: the separability thesis – there are no
non-contingent links between law and morality and – what Joseph Raz calls the sources thesis - that
laws exists exclusively in virtue of their promulgation by appropriate authorities using prescribed
procedures. Despite his commitment to these basic tenets of legal positivism, however, it is a serious
mistake to confuse Hart's position with that of the classical legal positivists Austin and Bentham.
Hart's position is positivist, but it is also normative (unlike Austin's) and pluralistic (unlike Bentham's).
Hart's normativism distinguishes his concept of law from that of Austin. Austin is what I call a material
reductionist. The central feature of material reductionism is that all putatively normative discourse, be
it deontic or otherwise, can be (and should be) reduced to factual discourse. Material reductionists
see no need to retain any normative notions within a legal theory Ä all such notions can be replaced
with factual notions without any loss. Austin, in the first of the lectures on jurisprudence, eliminates the
putatively normative term `command' (and, eo ipso, the deontic modality expressed by the term) from
his legal theory in favor of certain empirical conditions. For
Austin, a wish, an expression of the wish, and a sanction to be applied in case of non-compliance with
the wish is all that is contained within the normative concept `command'. The existence of each of the
three elements of the concept `command' is a factual matter, not a normative one. Since Austin
believes that all laws are commands, an explication of the concept of law, for Austin, requires no
normative discourse at all.
Hart subjects Austin's material reductionism to a scathing attack. The thrust of which lies in the
distinction between the notions of being obligated to do something and merely being obliged to do
something. For Hart, a person is obliged to do something if, but only if, that person feels that some
evil will occur unless a specified act is performed and performance of the act takes place in order to
avoid the evil. Thus, "the statement that a person was obliged to obey someone is, in the main, a
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psychological one referring to the beliefs and motives with which an action is done." What is more,
from the statement that an individual was obliged to obey, one can safely infer that the individual did,
in fact, obey. Neither of these features of being obliged apply to being obligated (having an
obligation).
To say that an individual has an obligation to obey someone (as opposed to merely being obliged to
obey) is neither to make a claim about the beliefs of the individual concerning evils in case of non-
compliance nor is it to make a claim about the actual behavior of the individual. Obligations exist
independent of whether the individuals obligated believe that some undesirable harm will come to
them should they fail to obey. Moreover, it does not follow from the claim that an individual had an
obligation to obey some rule that the individual did, in fact, obey. Thus, there is a distinction between
being obliged to obey someone and having an obligation to obey. Austin's material reductionism
provides an adequate account of being obliged, but it cannot distinguish being obliged from having an
obligation. The inadequacy of Austin's concept of law as coercive orders lies in his inability to make
such a distinction.
A highly compressed version of Hart's argument against Austin can be stated as a reductio. Any
adequate theory of law must be able to distinguish two situations: that in which a gunman says "Hand
over your money or I'll shoot" and that in which the tax man says "Hand over your money or I'll send
you to prison." In the former situation, there is no valid legal relation between the gunman and his
victim; in the latter situation, there is a valid legal relation between the tax man and the taxpayer. If
Austin is correct, however, and an adequate account of law can be given only in terms of being
obliged to obey, then there is no viable legal distinction between the gunman and the tax man. So
much the worse for Austinian command theory. In its place must be some version of normative legal
positivism Ä a legal positivism that includes such genuinely normative or deontic notions as obligation
and duty. And these genuinely normative notions cannot be reduced to sets of empirical conditions.
Hart's opposition to material reductionism must be kept in mind, for it will ultimately play a major role
in undercutting Hart's attempt to reject the versteizen thesis.
Rules, for Hart, are central to an understanding of law, quite simply because the existence of one of
the central phenomena of law, viz., obligation, implies "the existence of a rule" that creates or imposes
the obligation. Without rules one cannot explain obligation and without an explanation of obligation
one cannot give an account of law which distinguishes the tax man from the gunman. The conceptual
link Hart forges between obligations and rules, in my view, commits him to Winch's version of the
verstehen thesis. To see how this is the case, we must first examine Hart's concept of a rule and the
role that the "internal aspect" plays in a rule and in understanding a rule.
Section 3
Obligation, Rules and the Internal Aspect
The manner in which Hart's analysis of the concept of a rule commits him to the verstehen thesis is
somewhat complex, involving two intimately related, though conceptually distinct, claims about rules.
First, Hart makes a conceptual claim about rules: rules, unlike mere habits, have an internal aspect
(and can be seen from an internal point of view). Second, Hart makes a methodological claim about
the philosophy of law: the internal aspect of rules is part of the relevant data for legal science (part of
the data of which a legal theory should give an account) and any legal theory which fails to account
for the internal aspect is deficient to the extent to which it ignores this relevant data.
A. The Internal Aspect

Hart distinguishes a rule from a mere habit by three features. First, while a mere convergence of
behavior of a group is sufficient to support a claim that the group has a habit of behaving in a certain
way, mere convergence of behavior is not sufficient to support the claim that the group follows a rule
requiring that behavior. For a group to follow a rule, members of the group must both display
convergent behavior and treat deviations from the behavior in question "as lapses or faults open to
criticism".
Second, failure to conform to a rule not only invites criticism but counts as a good reason for it. When
a member of a group fails to follow a rule the criticism that such failure generates is looked upon as
legitimate by the conforming members of the group and by a majority of the offenders.
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Finally, and most important, rules have an internal aspect. Ultimately, it is the internal aspect of a rule
that underwrites the first two features of rules that distinguish them from mere habitual behavior. The
internal aspect of a rule is constituted by a "distinctive attitude to that conduct as a standard" that is
lacking in cases of mere habit. The existence of habitual behavior in a group is a straightforward
matter of fact, determinable solely through reference to the actual behavior of the members of the
group. The members of the group whose behavior is habitual need never think of the behavior.
General convergence of behavior is sufficient for the existence of a habit. "By contrast, if a social rule
is to exist some at least must look upon the behavior in question as a general standard to be followed
by the group as a whole. A social rule has an ìnternal' aspect, in addition to the external aspect it
shares with a social habit and which consists in the regular uniform behavior which an observer could
record."
The internal aspect of a rule is a "distinctive attitude" that at least some members of a group bound by
a rule must have toward the behavior made mandatory by the rule. This distinctive attitude consists in
the reflective belief held by some members of the group that the behavior in question is a standard
binding upon the group as a whole. If no member of a group views certain behavior as a standard
binding upon the entire group, there is no basis for concluding that such behavior is made mandatory
by a social rule applicable to the group even if the behavior of the group was perfectly convergent with
respect to the behavior.
That some members of a group must have a certain reflective attitude toward certain behavior for that
behavior to count as rule governed is significant. Hart endorses the view that rules are necessarily
reflective. Interestingly, he finds the view that rules involve reflection on the part of those bound by
them in Winch's criticism of Michael Oakeshott's behaviorist theory of morality. Winch criticizes
Oakeshott's view that human behavior can be understood and explained in terms of habit and custom
without reference to rules, arguing that meaningful behavior can be explained only through reference
to rules and rule-governed behavior. Moreover, for Winch, following a rule requires a certain reflective
attitude toward the behavior. And understanding such behavior, for Winch, requires sharing that
reflective attitude. What is significant here is that Hart openly endorses Winch's methodological
approach to the study of rules, an approach that commits one investigating certain rules to adopting
or endorsing those rules.
To recap, if one is to explain law, then one must do so in terms of obligation. If one is to talk of
obligations, then one is committed to the existence of rules which impose obligations. Since the
existence of rules requires that certain members of the group bound by the rules have a certain belief
structure (the internal perspective), it follows that if one is to explain the existence of law within a
group, then one is committed to making certain claims about the belief structures of some of the
members of that group. That Hart's hermeneutic method commits him to Winch's version of the
verstehen thesis, one in which understanding and making claims about belief structures requires
adopting those belief structures, can be seen when one examines Hart's views on an adequate theory
of law and couples those views with his basic project of rejecting Austin's material reductionism.
B. The Adequacy of a Theory of Law

Rules not only have an internal aspect, the internal aspect makes sensible an entire facet of human
existence Ä normative structures. Normative structures, whether they be the rules of a simple game or
complex legal rules, constitute "a whole dimension social life" for those who participate in the
structures (that is, are governed by the rules). Moreover the dimension of social life constituted by
normative structures is, for Hart, one of the dimensions of social life of which an adequate theory of
law should give an account." The critical dimension of social life here is the manner "in which rules
function as rules in the lives of those" governed by them. For Hart, any theory of law that does not
give an account of the manner in which rules function as rules is, to that extent, defective. Having
defined normative structures out of existence, Austin cannot give the needed account. Giving the
needed account, however, requires bringing "into the account the way in which the group regards its
own behavior. It is to refer to the internal aspect of rules seen from their internal point of view."
To give an account of how rules function as rules one must give an account of what some of the
people bound by the rule reflectively believe about the rule and its impact on their behavior. Without
such an account, the most that one can say about the behavior of a group is that certain events
provide a basis for a prediction that certain other events will follow. For Hart, however, any attempt to
reduce rules to predictions is doomed to failure. The central defect with predictive theories is that they,
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like Austin's material reductionism, are purely empirical, employing only the methods of the natural
sciences. Such theories manage to miss altogether the internal aspect of rules and the internal point
of view.
Rules, viewed from the internal point of view, give people reasons for both action and reaction. Rules
do far more than merely provide a basis for certain predictions, they account for an important
dimension of social life. But any theory of law that does not make essential reference to "the internal
aspect of rules as seen from the internal point of view" cannot account for this dimension of social life
and is, to that extent, inadequate. If one is to explain law, then, one is not only committed to the
existence of the internal aspect of rules, but one must incorporate reference to that aspect into one's
legal theory. The legal scientist must explain a legal system as it is experienced by those bound by it.
The question that now must be addressed is how the legal scientist is to incorporate reference to the
internal aspect into a descriptive account of a legal system. It is not altogether obvious that referring
to the belief structures of another requires one to share those structures. It is precisely Hart's desire
that the legal philosopher "understand what it
is to be motivated by such beliefs" without actually sharing them." In fact, one might hope that there is
no such requirement precisely because scientific examination of any phenomenon requires a degree
of detachment from the phenomenon. It is my view that Hart cannot consistently embrace this position
and still have the internal aspect of rules do the theoretical work he wants it to do - which is to provide
a basis for rejecting Austin's material reductionism. At issue here is the point of view an investigator
should adopt in order to understand and describe a social phenomenon.
Section 4
Points of View
The existence of social rules and, eo ipso, of the internal aspect constitutive of such rules is, for Hart,
a social fact. Such a fact is to be reported in one's description of a legal system. Given what
Hart says about the internal aspect of rules, however - that it constitutes a distinctive attitude that
some of the members of a social group have toward certain behavior Ä the social fact that is the
existence of a rule and its attendant internal aspect is first and foremost a psychological fact, that is, it
is a fact about the psychological state of some of the members of a group. The existence of rules
within a group is a fact that can and should be reported by a legal philosopher studying the group.
And it is a fact to be reported without necessarily being shared by the reporter. As Hart puts it, the
observer "without himself accepting its [a legal system's] rule of recognition, states the fact that others
accept it."
What then is the proper methodological stance for a legal philosopher to adopt when describing such
psychological facts? There are at least three distinct methodological approaches, called points of
view, from which to choose: the extreme external point of view (Austin's), the moderate external point
of view (the point of view Hart wants to adopt), and the internal point of view (the Winch version of
verstehen). There is a strong case to be made to the effect that Hart's commitment to the moderate
external point of view is both correct and justified. Talk of "points of view", however, is ambiguous.
The `point of view' of an investigator may refer to either (a) the methodological approach adopted in
the process of evaluating data that has been gathered or (b) the methodological approach adopted by
the investigator in the course of gathering data prior to evaluating it. I believe that when Hart uses the
term `point of view' he is using sense (a) exclusively. Unfortunately for Hart, legal philosophy must
incorporate sense (b) of the term as well. Data do not come ready made to the legal philosopher for
analysis, it must be gathered, as the sociological field work of Liewellyn, Hoebel, Malinowski, Geertz
and others demonstrates. But, when `point of view' is used in sense (b), Hart is committed by his own
lights to the internal point of view.
The defects of observation undertaken from the extreme external point of view have already been
discussed. The extreme external observer does not refer at all to the internal point of view of the
members of the group under study. Rather, "such an observer is content merely to record the
regularities of observable behaviour in which conformity with the rules consists" Such observations,
while perhaps giving the observer enough information to live successfully among the group, are
nonetheless inadequate simply because they cannot account for the existence of rules within the
group nor can they explain the way in which rules function as rules in the lives of those governed by
them.
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Hart objects to the internal point of view because that point of view requires not only that the observer
report the beliefs of the group being studied, but that the observer share those beliefs.
Thus, an observer reporting from the internal point of view that the law is such-and-such among some
group must also be reporting that the observer accepts as binding on the observer the law that has
been reported. In adopting the internal point of view, the observer has become a participant in the
phenomenon under study (precisely as Winch would have it) and the reports given by the observer
are, in effect, first person reports of one of the members of the group. Hart objects to the internal point
of view because he does not believe that an observer "must share or endorse" the beliefs of the group
being studied nor must the observer "regard his descriptive account as also claiming that their
conduct is justified." Although he does not say so explicitly, Hart seems to accept Georg Simmel's
dictum that one need not be Caesar in order to understand Caesar. Thus claiming that the observer
must "go native" in a strong sense of adopting or sharing the belief structures of the group being
studied is too stringent a requirement. It is not necessary that a legal philosopher, Hart argues, go
native in order to study an alien legal culture.
Rather, the legal philosopher should, for Hart, adopt a moderate external point of view from which the
fact that some members of a group adopt the internal point of view with respect to the internal aspect
of some rules can be reported. That is, from the moderate external point of view the observer can give
an account of the way in which rules function within a group without embracing or endorsing those
rules. Statements made from this moderate external point of view Hart calls èxternal statements,'
they have the form "It is the law in Argentina that..." or "Among the Cheyenne, the law is that …" and
they allegedly report what the law is in a certain group without endorsing or evaluating the legitimacy
of such law. The methodological advantages of the moderate external point of view should be clear.
Such a point of view allows the observer to report and evaluate the internal aspect of rules as seen
from the internal point of view without necessarily adopting or endorsing that point of view.
Accordingly, the dimension of social life constituted by rules can be captured while the observer
retains a degree of analytical detachment from the phenomenon under investigation. However, if
Hart's project is to succeed, it is necessary that an observer who has adopted the moderate external
point of view be able both to discover and to report the fact that rules exist within a group without
having become a member of the group. Thus, Hart can escape the charge that he is committed to the
verstehen thesis and thereby split the difference between Austinian extemalists and Winchian
internalists only if the moderate external point of view can bear the weight that he places on it. That
the moderate external point of view cannot bear the weight Hart places on it can be seen by
examining the ambiguity mentioned earlier concerning the phrase "point of view".
Whenever Hart discusses the point of view of a legal philosopher, he appears to be referring to the
point of view appropriate for an investigator who is evaluating data, not the point of view of the
investigator while gathering data. Hart's position is justified as far as it goes, but it does not go far
enough. He has not examined adequately the implications of his views about the internal aspect of
rules vis a vis the methodological stance of the investigator gathering data. Once data about an alien
legal culture have been gathered, Hart is correct in claiming that the investigator should step back
from the phenomenon in order to evaluate it. It is a common philosophical practice to bracket one's
personal commitment to or rejection of a claim in order to evaluate that claim analytically. It is
common for an ethical theorist to conditionally adopt, say, utilitarianism (without fully embracing
utilitarian moral theory) in order to examine utilitarianism for internal consistency or intuitively
unacceptable implications. And both Hart and I agree that is as it should be.
One of the strengths of analytic philosophy, legal or otherwise, is that it allows precisely the
separation of questions of meaning from questions of validity that Habermas finds objectionable. Of
course, conditional adoption of a view requires an investigator to `go native' to some extent, that is,
the investigator must be able to understand what it is to `think like a native'. But Hart does not find this
disturbing. Responding to Dworkin, Hart notes that moderate external reference to the internal point of
view "will only be intelligible to those who can understand what it is to be motivated by such beliefs
and to regard moral considerations as justifying conduct. In that sense the theorist must `put himself
in the place' of those whose practice he is attempting to elucidate in order to portray their conduct as it
appears to them.' So far I have no brief with Hart. However, one needs to ask how is it that the
theorist comes to know how a practice àppears to' those whose practice it is? The problem is one of
what Carlos Aichourron and Euginio Bulygin have, in a rather different context, called `normative
knowledge'. How, from a moderate external point of view, is an observer to come to know that norms
exist within a given society? Given that the internal aspect of rules is primarily a psychological fact,
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Hart faces a dilemma. Either this psychological fact can be determined through observation of
behavior alone, in which case the threat of Austinian external material reductionism re-emerges, or
one must adopt the internal point of view and thereby give what are, in effect, first person data reports
that are then evaluated from a moderate external point of view.
How does one come to gain normative knowledge? In the case of a legal culture to which one
belongs the answer is straightforward: one gains normative knowledge through participation in the
normative structures of the group, one belongs to the group and shares its norms. Reports about the
rule structures of a group to which one belongs incorporate reference to the internal aspect of rules as
seen from the internal point of view simply because that is the natural point of view from which the
observer sees the rules. In Anglo-American legal philosophy there is implicit reference to the internal
aspect of rules because English speaking legal philosophers for the most part share a legal culture.
Thus, when I discuss constitutional law, bankruptcy law, or even precedents taken from British law I
make essential reference to the internal aspect of those legal practices, as seen from the internal
point of view, simply because that is my perspective on those rules. However, when legal theorists
move into alien territory, as when Malinowski examined law among the Trobriand islanders or
Llewellyn law among the Cheyenne Indians, access to the internal aspect of rules, as seen from the
internal point of view, is rather more difficult to gain.
Hart describes the internal aspect of rules, which is constitutive of norms within a group, in terms that
are psychological. The internal aspect is characterized, inter alia, as a `distinctive attitude', a `critical
reflective attitude', à feeling', and the way members of the group `look upon the behavior in question.'
All of the phrases Hart uses to describe the internal aspect remind one of the emphasis Winch places
on `reflectiveness' in his critique of Oakeshott, a critique Hart endorses. But how is the observer to
come to know what the feelings, beliefs, or reflective attitudes of the natives toward certain behavior
are? Again Hart faces a critical dilemma: either the psychological states of the natives can be
determined from their behavior, including their complex verbal behavior, or they cannot. If the former
is the case, Hart may find himself unable to refute Austinian material reductionism or Ross's
predictivism. If the latter is the case, an observer must endorse, perhaps conditionally, but endorse
nonetheless those beliefs so as to give first person reports of "what it is to be motivated by such
beliefs".
If the moderate external point of view gives the needed access to psychological states, Hart's
normativism is in grave danger. The observer having adopted the moderate external point of view has
access to nothing but the observable regularities of behavior of the group being studied and the
reports such an observer can make are purely empirical. To be sure, the observable regularities of
behavior will include intriguing complex verbal behaviors such as "It is a rule for us that ..." upon which
the observer can base hypotheses. Interpreting such behaviors, however, is a delicate business. The
observer must take care not to project the observers' practices onto the native practices, that is, to
assume that what is going on in the head of the native is rather like what goes on in the head of the
observer when the observer is engaged in similar activity. To do so would be to beg the very question
of cultural diversity. Nor may the observer fairly assume a univocity thesis with respect to the critical
word `rule' (nor a universally correct translation manual Ä the indeterminacy of translation precludes
such an assumption). Either assumption would commit the observer to what Quine has called an
ùncritical mentalism' with regard to issues of translation and meaning.
But if regularities of behavior do provide access to the mental states of those under investigation, the
deficiency Hart notes in Austin's or Ross's extreme externalism evaporates. One might argue that
Austin's account is overly austere, that it does not incorporate the complex verbal behaviors (including
dispositions toward ritual incantations such as "It is our law that...") that are a part of the phenomenon
of law, but such criticism is hardly the death blow that Hart believes he has delivered in chapter 2 of
The Concept of Law. The most that one could say is that Austin's program needs revision, not
rejection. If behavior alone provides sufficient access to the mental life of those being studied, the
need for a non-behaviorist account of the phenomenon of law is not readily apparent. Since it is the
observable behavior of the group under study that gives the observer access to the `mental life' of the
members of the group, what would be missing in an account of the activity of the group that made no
reference to their `mental life' but only to the behaviors that give rise to inferences about such life?
Nothing. Either the attitudes and beliefs of the members of the group can be determined from the
behavior of the members of the group or they cannot. If they can be so determined, then an adequate
description of the practices of the group should be possible in pure[y behavioral terms. But then
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Austin's fundamental project of material reduction - the reduction of all normative discourse to factual
discourse - is vindicated. And if not Austin's project, then the sophisticated empirical predictivism of
the Scandinavian Legal Realists re-emerges as a threat. If, on the other hand, the beliefs and
attitudes cannot be determined from behavior, and such beliefs are an essential part of an adequate
account of law, then the moderate external point of view cannot bear the weight that Hart has placed
on it.
Assuming that Hart's normative critique of Austin succeeds, that is, that a purely material account of
law is inadequate, then the failure of the moderate external point of view commits Hart to the
verstehen thesis. What is needed for the observer to be able to report the attitudes and beliefs of a
group is that the observer share those attitudes and beliefs. The observer, in order to understand the
behavior of the group, must participate meaningfully in the behaviors. But in order to participate, one
must belong. And belonging presupposes acceptance of the way things re done, that is, a denial of
the analytic detachment cherished by adherents to the moderate external point of view. The observer
who has `gone native' cannot separate questions of meaning from questions of validity. When such
an observer gives a report about the beliefs of the natives, the report is not of the form "They feel. . ."
Rather, the report is of the form "We feel. . ." for, as a member of the group, the observer gives first
person accounts. But such accounts clearly capture the essential internal aspect of rules as seen
from the internal point of view.
To recapitate, Hart faces a dilemma with respect to the point of view of the observer in the course of
an investigation. Either the moderate external point of view does not give adequate access to the
internal aspect of rules as seen from the internal point of view, in which case resort to the internal
point of view is necessary, or, if the moderate external point of view does give the needed access,
such access must be based on observable regularities of behavior. But if that is the case, then there
is no need to abandon the method of the empirical sciences in the philosophy of law, for all that one
needs to learn about a group can be discovered merely by observing the behavior of the members of
the group. But then, normativism in legal philosophy Ä what is distinctive about
Hart's work Ä becomes superfluous.
Section V
Hart and the Verstehen Thesis
Hart rejects Austin's command theory because Austin cannot differentiate obligation from being
obliged and thereby defines out of existence an entire dimension of social life, viz., the normative
dimension of obedience to rules. In insisting that an acceptable explanation of normative structures
must incorporate reference to the way in which the people governed by a set of rules see their
behavior with respect to those rules, Hart tacitly embraces the Winch's verstehen thesis. Thus, Hart's
defense of normativism turns on the viability of a Winchian approach to the methodology of the social
sciences.
A similar argument applies to the rule of recognition for the rule of recognition, itself is a social rule. As
with any social rule, the rule of recognition has an internal aspect and determining the existence of
such a rule and, eo ipso, the existence of a legal system requires making reference to the belief
structures of some of those bound by the rule.
The upshot is that Hart's concept of law stands or falls with the viability of the verstehen thesis.
Without that thesis, Hart cannot defend normativism in the face of purely empirical theories of law nor
can he establish a criterion for determining the existence of a legal system (the rule of recognition).
The Winch approach to the social sciences is, to put it mildly, controversial. This is not to say that it is
mistaken or that Hart, in virtue of being committed to it, is mistaken, although Hart himself is at pains
to distance his theory of law from Dworkin's intemalist theory. Rather, Hart and Haitians should be
more aware of the methodological underpinnings of their position and they should be prepared to
defend their methodological stance as such.
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Hans Kelsen & The Pure Theory of Law
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CONTENTS
1. Introduction
2. Laws as Norms
3. Grundnorm
4. Efficacy and its Relationship with Validity
5. Change in the Grundnorm
6. Kelsen & Revolutions
Learning Outcome
Kelsen is a positivist that adopted a descriptive approach to the law that was divorced from social
facts. Students must have a clear understanding of Kelsen’s concept of a ‘norm’ and the role of
‘sanctions’ in relation to a norm. An understanding of how Hart’s ‘power-conferring’ rules may be
accommodated in Kelsen’s norm is also essential. By the end of this chapter, students must have a
good knowledge of the ‘Grundnorm’ (or Basic Norm) and then be able to compare this with Hart’s
Rule of Recognition.
Essential Reading
1. “Modern Positivism: Kelsen’s Pure Theory of Law” from Penner, Jurisprudence and Legal
Theory: Commentary and Materials (Butterworths LexisNexis)
Further Reading
1. ‘Analytical Jurisprudence and Liberal Democracy: Hart & Kelsen’ from “The Politics of
Jurisprudence: A Critical Introduction to Legal Philosophy” by Roger Cotterrell, (LexisNexis).
3. “Kelsen’s Pure Theory of Law” from “Legal Philosophies” by J.W.Harris
4. “Kelsen’s Endgame” by Duxbury N, (2008) 67 CLJ 51
Introduction
Hans Kelsen represents a further voice on positivism, i.e that law is a discrete entity, and its validity
does not depend on morality, justice etc. His theory is a further attempt at describing law without the
inclusion of any ethical, or moral judgments.
What he tries to establish in his theory can be summarised as follows;

1) It is possible to study law as a discrete entity, i.e. that it is possible for law to have a separate
independent existence from other considerations, i.e. ideology, sociology, etc.etc, and it must
be viewed as a separate discipline as the above.
He tries to put forward in his theory that law is a separate independent science which has within it
certain principles and mechanics and capable of being studied and used without the need to
adulterate it with subjective concepts like sociology, ideology etc. This why he calls it the ‘PURE’
Theory of Law. The Pure theory therefore is designed to provide a general account of law and not of
any specific legal system.
2) His theory explains how to differentiate the legal and the non-legal, without looking at the
contents. His philosophical thought is derived from Immanuel Kant, and it is a process
whereby to obtain knowledge, one has to move out of one’s experience and look in an
objective manner and also to use assumptions based on observable phenomena.
In this way, Kelsen studies the law by virtue of its formal structure. However he differs from Kant in
respect of his rejection of Kant’s idea that moral truths are absolute, instead he believes that moral
order cannot be derived from the physical world (Hume), and necessarily are subjective and to be
excluded from any objective description of law.
3) His ‘pure’ theory of law therefore illuminates on the true meaning of law, how it works, and
how there is a process of validation is any legal system. i.e in order to recognise and
understand what the rule is, one has to look at the ‘norms’ which exist in s given legal system,
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and from these norms one can see the law of that legal system. also, by looking at how one
norm is validated by another norm (higher norm), one can trace the validity of any law in the
legal system.
4) The attraction of the pure theory therefore lies in the fact that law is shown to exist in isolation,
and an analysis can be made of how this law functions in a legal system, its inner mechanics
etc.
Therefore a person would be able not only to see the law in a legal system, and to differentiate it with
other rules in society, he will also be able to use this process on any legal system, since the law is a
science and its formal and logical qualities would similarly apply to any legal system.
Laws as Norms
Therefore, whether a law is valid or not simply depends on whether the law is a norm of the legal
system, and to see whether it is valid, this norm must be logically derived from a more generalised
higher norm in the legal system. Once this logical ascending trace has been done, then the law would
be recognised as valid, regardless as to its content, or sociological or ideological consequences.
Therefore a law is valid simply because there is some legal authority which gives it its validity.
Note : “A legal norm may have any contents” Legal validation is a logical process, not conceptual, i.e
all conceptualisation is a priori reasoning and should not be used.
Note : His theory appears similar to Austin’s command theory, but one clear difference is that Kelsen
does not require there to be a sovereign above the law, his criteria of validity rests on norms, and
each norm is a creature within the law. (i.e it is another norm).
Note : Austin’s theory therefore is not ‘pure’ in Kelsenian sense, since there is a requirement that the
sovereign must have habitual obedience from the bulk of society, and this would be therefore a
prerequisite social fact, before law can be valid.
Even Hart’s theory rests on social facts, i.e the acceptance of the officials, and also that Hart views
the law as a social regulator. Kelsen does not impute these considerations.
His is purely a formal analysis of a legal system to basically lay bear the skeleton of the legal system
and therefore come up with a theory whereby any legal system could be studied identically (scientific)
without the need to understand the particular legal system’s social, moral, ideological, historical
background.
The central theme of Kelsen’s theory is his concept of a norm. He says that law is an order of human
behaviour, and it designates a specific technique of social organisation. The key to this technique is
essentially coercion, (Systematic use of sanctions) which is used by the officials.
Therefore legal norms are essentially directed at officials in the legal system. A norm here is
described as an ‘ought’ proposition in the English Translation of Kelsen’s theory, but ‘ought’ here is
different than the ‘ought’ statements discussed in other theories like natural law. Here a norm
stipulates that if certain conditions are followed (or not followed), than some action ought to be taken
by the officials.
It is here that Kelsen asserts that the practice of deriving an ‘ought’ from an ‘is’ is inaccurate and
inferior/unscientific way of describing the nature of law.
The term ‘is’ means actions/facts which can be empirically observed by any person, i.e something that
‘can be perceived by our senses or an external manifestation of human conduct’.
The term ‘ought’ is used to describe the ‘directive’ nature of law which is according to Kelsen an
essential component of law. (Normative nature of law). It is here that he criticises other positivist
theories notably Austin’s for making the mistake of deriving an ‘ought’ from an ‘is’, meaning Austin is
making a connection between observable facts like habitual obedience and the normative quality of
law, i.e its ‘legality’.
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An analysis of this type leads to an adulteration in the process of defining law since there would be a
link between its validity and external factors such as obedience, social acceptance, efficacy etc in
which case such theory would not be pure.
A more objective approach would be to determine the validity of law purely in the realm of the ‘ought’ ,
ie to specifically view law as a set of normative /directive statements (norms) where the legality of
such norms is entirely dependent on other higher norms, in which case the ‘ought’ is derived from
another ‘ought’.
Since these norms exist regardless of its nature or content and its validity dependent only on other
norms, it would mean that the process of validity is kept entirely objective , hence ‘pure’.
Due to the above description of law as a ‘directive’ based activity, and not to be confused with the
observable activity that it is ‘directing’, the next logical step taken by Kelsen is to then make the
assertion that norms are essentially directed at officials in a legal system ie it stipulates a directive to
these officials (normative/coercive) that they ‘ought’ to impose sanctions/or to authorize/or to permit
an activity undertaken by a citizen provided that certain conditions (the ‘if’) are satisfied (delict).
Therefore ‘ought’ here means that action (sanction) should be taken by the officials in certain
circumstances.
Therefore a notable difference in Kelsen’s theory is that the law (norms) are essentially directed at
officials by either imposing duties/conferring powers on them, and a private citizen for that matter
does not have a norm directed at him at all.
According to Kelsen, all laws can be broken down as above, be it criminal law, contract law etc. etc.,
i.e any thing which is a legal norm would have
1) ‘If’ proposition (condition).

2) ‘Ought’ preposition (direction to officials to apply sanctions).
Therefore Kelsen’s theory introduces a unique outlook of the law, in that it is basically applied to the
officials, in the legal system, either conferring on them powers or imposing duties on them to take a
particular course of action if certain circumstances exist.
Note : This approach is different than Hart’s, whose concept of rules is that citizens are governed by
primary duty conferring rules, and officials are basically governed by secondary power conferring
rules.
According to Kelsen, if a citizen breaches the law, he has not breached a norm, which is directed at
the officials, but what the citizen has done is a ‘delict’. The norm is not ‘thou shall not steal’, but rather
a norm would read as “if someone steals, he shall be punished”.
Therefore a citizen’s delict is merely the fulfilling of a condition/s for sanctions to be applied by virtue
of the norm by the officials.
“Law is the primary norm, which stipulates the sanction and this norm is not contradicted by the delict
of the subject, which, on the contrary, is the specific condition of the sanction”.
Note : Kelsen recognises that norms can also be non-legal, eg. moral norms etc, i.e how a person
should behave etc, but a legal norm possesses a different quality, i.e it stipulates action on behalf of
the officials.
He also recognises that the citizen’s delict could also have certain characteristics of a norm, but he
calls it ‘secondary norms’, i.e it is not a genuine legal norm.
Therefore only the officials can genuinely break the law, a citizen’s delict does not break the law, but
merely gives rise to circumstances whereby the law (legal norms) can justifiably allow sanctions to be
imposed.
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The idea of norms being directed to officials only is a curious observation, and it is up to the student to
evaluate whether this is an accurate description of how the law functions in reality. It provides a break
in legal thinking, which for so long was dominated by legal theories concerning commands of a
sovereign, directed at citizens, and even Hart’s theory looks at duty imposing rules directed at
citizens.
One advantage of Kelsen’s theory is that his ‘if...ought’ analysis of law avoids the problem faced
chiefly by Austin and Bentham, i.e in explaining the existence of power conferring rules or
non-commands.
Remember how Bentham was at pains to discuss the existence of power conferring rules, and how
Austin conveniently called them tacit commands or used nullity as a sanction.
In Kelsen’s theory, a norm could be in the form of orders to officials (duties), or the norm could provide
the officials with power or authority. Kelsen unified these different forms of rules into the form of
‘if...ought’ statements.
The illustrations below show that Kelsen’s norm concept unifies various types of laws into ‘if..... Ought’
statement which other jurists had run into difficulties.
eg :
1) Criminal Law : “If a citizen kills, then if you find him guilty, you ought to imprison him”.
2) Wills : “If a will is not attested by 2 witnesses, then it ought to be declared invalid”.
3) Contract : “If a contract was without proper requirements then you ought not recognise
its validity”.
4) Evidence : “If a statement is hearsay, it ought not be admissible as evidence”.
5) Constitutional : “If a Bill does not pass through the House of Commons, the Lords and the
Queen, it ought not become a valid Statute”.
6) Tort : “If a citizen causes loss to another, and if you find there was a duty of
care etc, then you ought to award the plaintiff damages for the
defendant’s negligence”.
NOTE ; the laws as we have studied are termed as ‘Rules Of Law’ but they are not to be equated with
norms, rather these are mere sources which facilitate the description of the norm.
It is therefore difficult to critisise Kelsen’s attempt at unifying various types of law into the concept of
norms, and the pure theory is generally successful in trying to find a uniform deep structure that
underlies all laws, in any type of legal system.
It can be seen that this approach of looking at law as norms directed at officials, all form of rules,
which have been described as duty imposing by other theories (eg. Criminal Law, Tort) and power
conferring (wills, contract) can be seen in the form of norms.
Kelsen also explain that his use of the word ‘ought’ is not necessarily in the imperative sense, it also
covers situations where the officials are authorised or permitted to do something. ‘Ought’ therefore is
not just restricted to the wish of someone. (ought includes therefore ‘may’ and ‘can’).
Note : Kelsen’s use of the word ‘ought’ is not to be confused with ‘ought’ used in for e.g natural law
thinking, the latter concerns the contents or values that the law should have. (He describes the law,
not prescribe the law).
Students should now be in a position to compare and contrast and also evaluate the difference
between ‘commands’, ‘rules’ and ‘norms’ and to see which concept accurately describes the law.
Kelsen’s explanation of the ‘norm’ has been criticised as not reflecting what actually happens, i.e the
general prevalent view had been that law applies to citizens, i.e we often say “X broke the law”, or “Y
did not obey the law”, but in Kelsenian terms, X and Y being citizens did no such things, they merely
broke certain conditions or restrictions and therefore the law authorises or compels the authorities to
impose sanctions on X and Y. Which is accurate ?
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Legal Validity : How do we determine whether a law is valid or not.
Here, certain preliminary points must be made;

1) Kelsen believes that the validity of law is to be determined solely on a logical and formal
analysis of norms, and has no connection with extra legal concepts like morality or justice etc.
etc.
2) The validity of law is independent from its contents.
3) Why laws are obeyed is not important in determining legal validity.
4) The validity of law is determined solely within a legal hierarchy of norms, and not by extra-legal
considerations like sovereign, state etc. To Kelsen the state, sovereign etc are not outside the
law, but are part of the norm hierarchy.
According to Kelsen, the validity of a norm is dependent on other legal norms, i.e each norm is
validated by a higher, more general norm which is validated by a more general norm etc etc.
Therefore validity is determined by a process similar to ‘root of title’ process found for eg. in Land
Law.
eg. A person litters a public walkway, he is fined by an official. To see whether the fine is valid, we
have to see whether the officer acted legally. i.e if he had some legal authority. A certain by-laws in
turn are validated for eg. by an Act of P (delegated legislation).
The act of P on the other hand is passed legally within the required procedure. Looking further up,
there would be a norm that an act of P made by Parliament is valid and unquestionable. This process
goes on until we reach the Grundnorm (basic norm).
Therefore, this hierarchy of norms validates all norms in a legal system. The lower the norm in the
hierarchy, the more specialised it is, and this is called ‘concretisation’ of the norm.
Everything is encompassed within the hierarchy of norms, and Kelsen goes on to say that no
distinction should be made between private and public laws, i.e departing from Austin, Constitutional
Law is considered as part of this hierarchy.
The concept of ‘sovereign’ is also part of the hierarchy of norms, and not a separate entity above the
law. (sovereign can be legally limited, i.e by a higher norm).
Note : Even international law is famously included in this chain of hierarchy.

Therefore, the validity of a norm, would depend on the existence of a higher norm which covers it, and
gives it legal authority.
Another unique feature of this pyramid is that it can be observed that laws are generated at different
levels of this hierarchy and are linked at each other, unlike Austin or Bentham where the only source
of law is a sovereign.
Kelsen also interestingly uses a similar example as Hart’s gunman model.

i.e He differentiates between a gunman pointing a gun to X and ordering him to do something as not
being legal. Whereas if a policeman did so, it would be legally authorised.
He distinguished this on the basis that the policeman could point to some legal authority conferring
him the right/ authority to do so (i.e power conferred by a norm in the system) whereas the gunman
could not.
Therefore ‘authority’ is an objective question based entirely on the legality of the official’s action, and
not necessarily because the citizen’s inner reflective attitude of accepting the authority (cf Hart).
Kelsen avoids ingeniously the question of whether X was obliged or under obligation, i.e authority is a
question to be determined by reference to the actions of the official.
Note : Kelsen maintains that in his theory, because of the Grundnorm, all valid norms in a legal
system do not contradict one another. If there is a conflict, the earlier norm in time would be invalid,
provided of course the subject matter was the same and the norms were on the same strata of the
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hierarchy. This is how he explains repealing laws, i.e Doctrine of Repeal (statute) or overruling
(common laws).
Note: the idea of norms may not be radically so different from Hart’s concept of rules since Kelsen is
basically showing that law can have two dimensions, ie the observable and the normative (non
observable) but then essentially opting for the latter as the basis of describing law since it would be
more scientific and objective.
Similarities can be drawn here with Hart’s ‘external’ and ‘internal’ viewpoints of law although Hart does
not dismiss the former completely when he talks about the ‘acceptance’ of rules generally.
In fact Hart explains that the normative nature of law can be adequately manifested by the use of
linguistic terms to that effect but since linguistic practices of a community is an observable fact, this
would again mean that there is a derivation of an ought from an is.
Grundnorm : The Ultimate Validating Norm.

Going up the chain of validity, logically there must be a limit or apex in which the hierarchy of norms
stop. At the apex, according to Kelsen there would be a stage where there is a norm which legally
validates all other norms, but this norm’s validity could not logically be traced further.
Its existence therefore is not validated by another norm, and therefore its validity must be
presupposition that one must make. The ultimate norm is called the Grundnorm (Basic Norm).
It is assumed because its validity cannot be proved by virtue of normal analysis of the hierarchy of
norms, the Grundnorm therefore is different from other norms, in that it is not created by any legal
procedure stipulated by other norms, and the presupposition of its validity is logical, in that without it
the legal system cannot logically exist.
This kind of reasoning is called ‘Transcendental Epistemology’ which simply that at one point we must
objectively assume that the legal system is valid.
The Grundnorm therefore in Kelsen’s words is valid in its legal logical sense and presupposed in
juristic thinking and this is to be contrasted with validity in the positive sense (in which case the
Grundnorm would not be legally valid) ie because it is not validated by a higher norm and not
therefore ‘posited’.
NOTE: The Grundnorm must logically be only a presupposition if Kelsen’s entire theory is to remain
‘pure’, since any attempt to describe it factually would mean that the discussion would fall back into
the realm of the ‘is’, in which case it would be subjective.
As a presupposition. the idea of the Grundnorm is free from any other external criteria and henceforth
it can function as a source of normative directions for any legal system whatever its nature.
NOTE: An analysis based on a hypothesis/assumptions is not necessarily ‘unscientific’ since even

science does not necessarily depend on proof of facts, for e.g. the existence of ‘Blackholes’ is an
assumption that has to be logically made to explain other observable phenomena although no
scientist has actually seen one.
Similarly, the validity of law can be observed in a legal system and logically these laws derive their
existence to a higher source and therefore there logically would exist a Basic Norm.
This is largely also a philosophical issue as to what ‘knowledge’ means and for jurists like Kelsen, true
knowledge is not necessarily empirical (from observable/tangible facts).
Who must assume this? - accordingly people who study the legal system and its mechanics would be
interested in assuming this fact i.e jurist, legal scientists etc, although this assumption would not
normally be on the mind of a lawyer or a citizen.
Therefore it is of philosophical or academic interest not likely to have effect on practitioners of the law.
Most people, like myself would be satisfied that an Act of Parliament is valid, without questioning why.
The Grundnorm however goes beyond this.
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Grundnorm identified?
Kelsen locates the Grundnorm of a legal system with a written constitution. He says that it is not the
fact of the constitution itself, nor tracing further to the fact that there was a first constitution.
The Basic norm is that officials in the present legal system ought to act in accordance with the first
constitution.
This is because validity of norms cannot be by virtue of fact, it can only be by virtue of another norm,
i.e an ‘ought’ preposition.
Kelsen explains later that the Grundnorm is not necessary a meta-legal concept. It is legal in a sense
that it functions as a criteria of legal validity (ln its ‘legal logical sense’), on the other hand it is
extra-legal in a sense that it was not created by another norm.(in its positive legal sense’)
What about systems with unwritten constitutions?

Here, there is no historic 1st constitution to be traced back to, therefore according to Kelsen the
Grundnorm is basically a creature arising from custom.
Therefore in U.K, it has been customary that anything done within the customary way in which law is
made ought to be valid, eg. statute, common law etc. and the Grundnorm also stipulates further
norms, i.e a statute should prevail under common law etc etc.
How many Grundnorms?

Kelsen prescribes to a ‘monistic’ viewpoint, i.e that there can only be one Grundnorm in any given
legal system.
Qst : 1) Is there more than 1 Grundnorm in U.K ?

2) Would the accession into EEC cause a change in the U.K Grundnorm ? or merely
add another Grundnorm ?
NOTE: It is not essential that the Grundnorm needs to be identified since Kelsen’s theory rests only
on its assumption, in fact any attempt at defining the Grundnorm would defeat the very purpose of his
theory.
EFFICACY AND ITS RELATIONSHIP WITH VALIDITY.

In Kelsen’s theory, the validity of norm is by reference to the Grundnorm which is presupposed to
exist. Compare to Austin’s sovereign and Hart’s Rule of Recognition, Kelsen Grundnorm is a mere
assumption and not a question of fact.
Therefore, the grundnorm cannot be empirically observed and in fact Kelsen refers to it as fiction and
must be assumed to exist. However, Kelsen places a great deal of emphasis on the Grundnorm and
also refuses to consider facts e.g sociological facts.
Nevertheless, there is one fact that he examines and that is the notion of efficacy. - Point of criticism
since he examines efficacy in the aspect of factual situation.
Here, his theory has been criticised as not being pure since efficacy (obedience to law) is a question
of law. However, he avoids the problem by separating validity from efficacy. (but there is a
connection). Kelsen is not saying that because a law is obeyed, it is valid.
 Question of validity is still pure since this is effected by the hierarchy of norm.
In Kelsen’s theory, coercion is a vital part. Kelsen regards laws as a coercive order. He as like Austin
regards sanctions as an important part of the law. However, Kelsen distinguished between legal
validity and efficacy of the law.
1) Firstly, he regards the question of existence of law and its validity as being one and the same
thing. If a norm exist, it is valid or otherwise, it is not a norm.
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2) The validity of norms is to be determine by looking at the hierarchy of norms an ultimately to the
Grundnorm.
3) However, Kelsen pays equal importance to the concept of efficacy. - a pre-requisite for existence
of grundnorm. According to him, efficacy is a necessary condition to be fulfilled before a
pre-supposition of grundnorm and a hierarchy of norms can exist
 Efficacy is a pre-condition of validity but efficacy alone is not the same as validity.
 Efficacy is not validity but a condition for validity.
“Therefore you cannot have validity without efficacy but there can be efficacy without
validity”.
Eg. For law of theft to be valid, it must first be enforceable: efficacious, or obeyed. However, it is only
valid if the validity of it can be traced to a higher norm - an Act of Parliament is valid. A robber pointing
a gun to a group of people may enforce obedience but lacks legal authority to do so.
Therefore, if in a society, there are effective norms directed at officials. This does not mean that the
law is valid. We have to further assume that the law is valid (that there is a Grundnorm).
Efficacy to be ascertained:- it can mean 2 things

1) That the norms or norm in a legal system are generally obeyed.
OR
2) Even if (1) is not fulfilled, are sanctions imposed to ensure obedience.
This means acceptance as well as forced acceptance. Hart however states that acceptance is for
officials and on forced common citizens. Therefore, Kelsen also states that it is important for the state
to have a monopoly of power to ensure efficacy.
Example; Palestine.
Therefore, if there is no efficacy, there is no need for discussing the hierarchy of norms. Thus, norms
are valid if it is governed by the grundnorm but its validity is in existence so long as there is efficacy.
If the entire legal system is not effective, then every single norm would not be valid.
However, if only a single norm is not obeyed, then it will not affect the entire legal order. Hence, it has
been argued that this theory is no longer pure since it depends on the existence of efficacy as a
question of fact. Therefore, his pure theory rest upon a social or military fact.
However Kelsen argues that efficacy is something that is outside the legal system and does affect the
validity of law, it is only a pre-condition for the discussion of his pure theory assuming that this made,
validity is only to be determined by the hierarchy of norms.
CHANGE IN GRUNDNORM.
The relationship between efficacy an validity can be seen clearly in Kelsen’s treatment of a change in
the grundnorm especially during a revolution. The situation discussed here is where the grundnorm is
viewed as a flexible concept which can change if there is a fundamental deviation in the legal order. A
change could happen in a peaceful manner or by revolution.
CHANGE IN THE GRUNDNORM: Non-Peaceful Means.

Kelsen’s view is that efficacy is a pre-condition for a legal system (hierarchy of legal norm) to exist or
even to be the subject of discussion is best illustrated by his theory on revolutions.
Revolution here is in terms of a total revolution in a particular nation and not mere discontent or
demonstration. The term ‘revolution’ here is the term of force i.e where one government is replaced by
another by force. It could be in the form of a bloody revolution or a more peaceful coup-d’etat.
Pre-Revolution Stage.
This is where the existing government still maintains control and the legal system under this
government still efficaciously a system of laws. The question arises as to what happens when a
revolution takes place whether in the form of military uprising, people’s rebellion, take-over by rival
faction or presumably, invasion by a hostile country.
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During the times of revolution, law and order may be suspended especially if the revolution has been
to a certain extent effective. A stage may arise may arise where the earlier government control of
force in the country may no longer exist.
Since this monopoly of force is non-existent, then the effect would be seen in the implementation of
the law i.e the law or the legal system may no longer be efficacious.
Revolution Proper.
At this stage, since the legal system is no longer efficacious, than all the norms including the
grundnorm can no longer exist or pre-supposed to exist since there is no efficacy in the system. eg. In
Somalia up until the U.S Forces came to enforce law and order.
During this stage, we cannot pre-suppose the validity of the law and therefore, so to the grundnorm’s
pre-supposed existence. This shows that efficacy is an important factor in ensuring the existence of a
legal system since without efficacy, there is no point in talking about norms when there is nobody to
enforce the law.
Post-Revolution Stage.The revolution will ultimately lead to a solution and possibilities that may arise
the fact the earlier regime (not valid) may resume control, in such a case, the revolution would be failed
and by the laws of the earlier government, this may amount to treason or other offence. On the other
hand, a new regime could assume power and have the ability to ensure obedience or is given the
obedience by the population. Therefore, this new regime may now formulate their own laws or adopt the
laws of the earlier regime.
Whatever they do, according to Kelsen, since the new regime has the monopoly of force, they can
ensure the laws that they make, will be efficacious. Gradually when there is confidence in the ability to
rule the country, a situation may arise where one can assume that the laws are valid leading to the
pre-supposition of a new Grundnorm
Note : If the changes that happen in a country as provided by the laws in the country e.g a change in the
government due to an election or a new sovereign taking over hereditarily; There is no change in the
Grundnorm since all this is allowed in the hierarchy of norms.
The Role of Judges - Post-Revolution :-

This is a subject of much controversy. Here Kelsen says that the judge is a mere official who is not
supposed to take sides based on his own personal or political beliefs/inclinations. The judge should
not over-emphasise his belief on morality an justice. The judge in such a situation is merely to
recognise the reality of the situation and the proper role of the judges is not take sides but to observe
as to which regime has succeeded and where norms are efficacious and thus, switch their allegiance
accordingly.
Therefore the judge should wait and see until a certain outcome, which is clear, can be seen. Here,
the judge should take into account certain factors;
1) The actual facts that exist in society.
2) If there is some efficacy to a particular regime’s law, the judge would have to wait until there is
some degree of permanence.
3) During times of confusion, he must wait and see and take into account what other jurists are
saying; why do they regard as the new legal order ?
4) 4) If the result is clear and the new norms are being obeyed or enforced (efficacy) then the judge
would now decide cases based on these new norms.
Evaluation.
1) Dias :- Kelsen’s method on judicial role based on efficacy is unrealistic since we cannot expect
judges to know exactly who is in control and when exactly, he is in control. Therefore, at the end of
the day, the judges will have to decide based on their own view.
2) There are also contrary views that judges can greatly influence the outcome of a revolution i.e e.g if
the judges decide to endorse or follow a certain regime’s laws and if all the courts decide to do so,
what may follow is that the new regime would be given an aura of legitimacy.
3) There are other who believe that the judges must not allow principles of justice and morality and the
will of the people from being subordinated to sheer military force. Therefore, its is quite possible and
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in fact has happened where the judiciary actively involved themselves in this issue, especially where
they uphold the view of the people. - In protection of human rights for example perhaps by
resignation in protest.
Therefore it is possible to criticise Kelsen here that mere efficacy may not ensure the validity of the
successful regime. The judiciary can and have derived such validity or on the other hand, have resigned
and refused to accept the new authority; depriving the new regime of any legitimacy.
see cases on this: Madzimbamuto v Lardner Burke
Jilani v Govt. of Punjab
R v Ndhlovu
Lakanmi v AG
State v Dosso
KELSEN AND REVOLUTIONS

[See Question 8, Zone B 2000]
Kelsen’s view is that a revolutionary government will only attain de jure or legal status when legal
scientists decide that there is a new Grund Norm to the effect that the Revolutionary Government’s
laws ought to be obeyed. Kelsen also said that efficacy was not a sufficient condition for validity of the
laws of a legal system. Validity is traced by concatenation to the Grund Norm. If the legal scientists
find that the laws are derived from the new government’s new constitution, it may be that the Grund
Norm has changed.
Kelsen specifically excludes judges from legal scientists because his theory is pure and excludes
political and moral values. Therefore Harris is wrong to include judges among the legal scientists who
then apply Kelsen’s Grund Norm theory .This is pointed out, inter alia, by Lloyds, Dias and Guest.
Laski commented that ‘granted its postulates, I believe the pure theory to be unanswerable but.....its
substance is an exercise in logic, not in life’.Raz points out that where a colony is granted
independence by its masters, it still has the parent country’s Grund Norm ( Act granting independance
ought to be obeyed) and it would not have its own Grund Norm because this can only be established
after the identity of the legal system is established.It is doubtful whether a unilateral declaration of
independance or even a joint declaration of independence would nullify Kelsen’s pure logic.I
personally think that it is simply a matter of fact whether the new government is efficacious and has
the support of the people.
HART THE RESUSCITATOR.

Hart gleefully embraces Kelsen’s interpretation of a change in the Grund Norm and builds upon it. In
pages 116 to 125 of Concept Hart agrees that efficacy is one condition for the existence of a grund
norm. The other condition is the adoption by officials of an internal point of view towards the rules of
the system. To Hart, ‘ the assertion that a legal system exists is a Janus faced statement looking
towards obedience by ordinary citizens and to the acceptance by officials of secondary rules as
critical common standards of official behaviour.
He explains that sometimes there is no longer general obedience to the rules which are valid. This
can happen by way of revolutions, enemy occupation, anarchy and banditry. The stage at which it is
right to say in such cases that the legal system has ceased to exist is a thing not susceptible of any
exact determination.
This is because the statement that a legal system exists is of a sufficiently broad and general type to
allow for interruptions, it is not verified or falsified by what happens in short spaces of time.The
question of what was or as not law in the territory during the period of interruption may not be one of
fact. It may be one of international law or is a question of law within the system existing since the
restoration. It might well be that the restored system included a retrospective law declaring the system
to have been continuously the law of the territory.
Where a new legal system is born, for example, the declaration of independance by a former colony,
the legal competence of the former rulers, for example the Westminster Parliament to legislate for the
former colony is no longer recognised in its courts. The new rule of recognition rests simply on its
acceptance and usage by the officials of the system. Its enactments are not valid now because they
are the exercise of powers granted by a valid statute of The parent Parliament. They are valid
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because, under the rule of recognition locally accepted, enactment of by the local legislature is an
ultimate criterion of validity.
Hart gives the example of Harris v. Donges where the rule of recognition was unclear as the judges
refused to apply the rules of the local legislature and declared them invalid. The legislature in turn set
up a special appellate court to hear appeals from the ordinary courts. The government eventually
found it unwise to proceed in this way. The normal conditions for official, especially judicial harmony
would have been suspended. It would be misleading to say, however, that the legal system had
ceased to exist. The great masses of legal operations not touching on this constitutional issue would
go on as before. Hart goes on to say that the rule of recognition will identify the legal rules of the
system. The rules, however, consist of a core of certain rules and a penumbra of doubt where the
rules are uncertain because of language or novelty.
Kelsen, however has no problem identifying the valid rules of a legal system. They must be derived
from the Grund Norm (concretization) and rules cannot contradict one another, therefore in cases of
ambiguity, only one rule can be valid.For example, Either Mcghee v. National Coal Board where
causation need not be proved conclusively or Wilsher v. Essex Area Health Authority which says
the opposite is valid law. Fairchild v. Glenhaven Funeral Services Ltd. which tries to accomodate
both rules in individual cases is therefore wrong about the law. The House of Lords has to decide on
one rule or the other and not BOTH.
Hart, of course, simply says that whatever the judges decide is law, thereby condemning law students
to nine months of uncertatainty in the law of tort.
Judges, however, frequently mistake Kelsen’s theory to mean that the Grund Norm has or has not
changed according to the issue of clear cut effectiveness or not so clear effectiveness. Illustrations
would be The State v. Dosso, Uganda v. Commissioner of Prisons ex parte Matovu and R. v.
Ndhlovu where the governments attained a de jure status because of their total control of the
administration (there were no rival claims to power).Conversely, in cases like Madzimbamuto, the
courts refused to recognise the validity of the Smith regime and the 1965 constitution to be valid
because their grip on power was unclear (Goldin and Lewis JJ.) or unproven (Beadle CJ).
In State v. Dosso the Pakistan Supreme Court applied Kelsen’s doctrine of efficacy. Pakistan, after
nine years of its independence, had been able to adopt and implement its first republican constitution
in 1956. Then the Governor-General Iskander Mirza was elected as the first President under the
constitution. After the constitution was adopted, there was naturally a sense of relief in the political
circle who expected full implementation of the constitution after the first general election to be held in
1959. But such expectations proved unreal as governments after governments came and went
resulting in an extreme political chaos and instability both at the centre and in the provinces.
President Iskander Mirza did not play the democratic role of an impartial balance under the
constitution; rather being directly involved in party politics, he became the master-architect of these
chaos and instability. For his power-expectation and undemocratic and conspiratorial activities it was
decided by the politicians that Iskander Mirza would not be elected as the president in the next
election. When the country was preparing for the general election to be held in February, 1959, Mirza
finding himself unable to rally support among the politicians for his re-election, by a proclamation on
the night of 7th October, 1958 abrogated the constitution of 1956, dismissed the Central and
Provincial governments; dissolved the central and provincial legislatures and declared martial law
throughout the country.
In doing this Mirza was supported by the Commander-in-Chief of the Pakistan Army, General
Mohammad Ayub Khan who was also appointed as the Chief Martial Law Administrator. Following the
proclamation of martial law the Law (Continuance in Force) Order was promulgated.
The legality of Mirza's Proclamation of martial law and the military government came up for
consideration in State v. Dosso case. The Pakistan Supreme Court took resort to the positivist theory
of Hans Kelsen and declared the martial law and military government of Pakistan valid on the basis of
the doctrine of efficacy as explained by Kelsen. The substance of the judgment was that since the
constitution was abrogated and its government came to power by imposing martial law and since
there was no protest among the people, the coup was a successful one, the martial law and military
government were legally valid. Munir C.J. maintained that victorious revolution or successful coup
d'etat was an internationally recognised legal method of changing a constitution, and the revolution
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having become successful in Pakistan it satisfied the efficacy of the change and became a basic law-
creating fact.
The judgment delivered in Dosso's case had to face severe criticisms on the one hand and on the
other hand, it had a great impact, for it gave recognition to an unconstitutional government which
became a pattern of 'change' in the Commonwealth countries and later on, this decision has been
refereed to with approval in courts of many countries like Nigeria, Rhodesia, Ghana, Uganda etc. In
Uganda v. Commissioner of Prisoners Exparte Matuvo the Ugandan High Court following the decision
of Dosso's case held that the constitution of 1966 of Uganda which was made by military government
was a product of a revolution and it would be regarded as valid and the supreme law of Uganda.
Similar verdict was given in R V. Ndholvu by the Rhodesian High Court and also in Awoornor Williams
v. Gbedmah by the Supreme Court of Ghana.
Some useful quotes involving these revolution cases:
Kelsen:
“From a juristic point of view, the decisive criterion of a revolution is that the order in force is
overthrown and replaced by a new order in a way which the former had not itself anticipated.
If they (the revolutionaries) succeed, if the old order ceases, and the new order begins to be
efficacious, because the individuals whose behaviour the new order regulates actually behave, by and
large, in conformity with the new order, then this order is considered as a valid order. It is now
according to this new order that the actual behaviour of individuals is interpreted as legal or illegal.”
Justice Muhammad Munir in The State v Dosso (1958):

“It sometimes happens… that a constitution and the national legal order under it is disrupted by an
abrupt political change not within the contemplation of the constitution. Any such change is called a
revolution, and its legal effect is not only the destruction of the existing constitution but also the
validity of the national legal order… For the purpose of the doctrine here a change is, in law, a
revolution if it annuls the Constitution and the annulment is effective. IF the attempt to break the
Constitution fails, those who sponsor or organise it are judged by the existing Constitution as guilty of
the crime of treason, But, if the revolution is victorious in the sense that the persons assuming power
under the change can successfully require the inhabitants of the country to conform to the new
regime, then the revolution itself becomes a law-creating fact because thereafter its own legality is
judged not by reference to the annulled constitution but by reference to its own success.”
Sir Udo Udoma CJ in Uganda v Commissioner of Prisons, ex parte Matovu (1966):

“Applying Kelsenian principles, which incidentally form the basis of the judgment of the Supreme
Court of Pakistan in the above case (Dosso), our deliberate and considered view is that the 1966
Constitution is a legally valid Constitution and the Supreme Law of Uganda; and that the 1962
Constitution having been abolished as a result of a victorious revolution in law does not any
longer exist nor does it now form part of the laws of Uganda, it having been deprived of its de
facto and de jure validity. The 1966 Constitution, we hold, is a new legal order and has been
effective since April 14, 1966, when it first came into force.
“The series of events which took place in Uganda from Feb 22 to April 1966 were law-creating
facts appropriately described in law as a revolution….. (because)….. there was an abrupt political
change, not contemplated by the existing constitution, that destroyed the entire legal order and
was superseded by a new constitution, and by effective government.”
Madzimbamuto v Lardner-Burke (1966)

In the Rhodesian High Court – Lewis J
Kelsen’s theory can apply only “where the revolution has not only succeeded internally but also had
the effect of successfully untying the apron-strings of the sovereignty of the mother state”.
“It cannot be said that the 1965 Constitution is the lawful Constitution or that the present Government
is a lawful government until such time as the tie of sovereignty vested in Britain has been finally and
successfully severed.”
On Appeal – Sir Huge Beadle (Chief Justice):
“The present Government, having effectively usurped the governmental powers granted Rhodesia
under the 1961 Constitution, can now lawfully do anything which its predecessors could lawfully have
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done, but until its new constitution is firmly established and thus becomes the de jure constitution of
the territory, its administrative and legislative acts must conform to the 1961 Constitution.”
In Pakistan, Dosso v State has been overruled: Asma Jilani case (1972):
General Yahya Khan’s usurpation of power was illegal and unconstitutional.
Hamoodur Rahman CJ: Dosso had misapplied the doctrine of Kelsen and had committed the error of
accepting Kelsen’s view of a revolution as a rule of law of general applicability. It is merely a theory of
jurisprudence.
After the usurpation of power the legal order must settle into a state of efficacy before the change in
the Grundnorm can be observed. Otherwise, the ‘revolution’ or ‘coup’ is a mere political event and
one that is illegitimate under the Constitution.
Finally,it is instructive to observe how questions of de jure validity are decided by the courts today. In
Republic of Fiji v. Prasad [2001] the Court of Appeal of Fiji considered the legality of the attempted
abrogation of the Constitution of Fiji of 1997 by the interim military government. In the Judicature
Decree 2000 the interim military government had purported to abolish the Supreme Court, which
existed under the 1997 Constitution, and consequently regarded the Court of Appeal as the highest
legal institution within the Fijian system. That court, consisting of five judges drawn from Australia,
New Zealand and Papua New Guinea, held that the 1997 constitution remained in force, and that the
purported government of Fiji lacked a basis in law. The de facto rulers had given two grounds for de
jure status: Firstly, The new constitutional order was legally justified by the principle of efficacy and
secondly, by the doctrine of state necessity which were both rejected .The Court of Appeal held that
the high standard of proof required in the efficacy test was not satisfied. The people had supported
the 1997 constitution and the proof of efficacy is not through intimidation but by general elections. The
de jure government had not proved that the doctrine of necessity applied because this principle only
applies when action is required to protect peace, order and good government. The applicant must
also respect the rights of the citizen and not aim to effect or consolidate a revolution under the guise
of necessity (Dicta from Mitchell v.DPP, Appeal Court of Grenada 1986 applied). The Commander of
Police did not intend to protect individual rights and his intention was not to protect the 1997
constitution but to abrogate it.
This case is a rare example of a court in a revolutionary situation finding AGAINST the de facto rulers
of a country and insisting on a restoration of the previous constitutional order. Hart did point out that
apart from efficacy, the officials must have an internal point of view towards the laws of the new
regime. This was obviously missing. Kelsen would note the efficacy of the new regime in
implementing its laws, but would leave the question of a change of the Grund Norm to legal scientists
- people like You and I amongst other jurists - how practical or useful is his theory then?
In Fiji, however, life goes on - general elections were held and the Military and Grand Council of
Chiefs’ candidates won a majority of seats in Parliament. The deposed Prime Minister, Mahendra
Chaudry’s party won about twenty per centum of the seats but are denied representation in the
cabinet as required by the 1997 Constitution. George Speight, the leader of the coup de tat
languishes in prison with the new government reluctant to sentence him. Is this politics or law?
In The Military Action Case [2000], the Supreme Court of Pakistan held that the claims of the
Military to have overthrown the old constitution did not prevent them from claiming the benefit of the
doctrine of necessity.All that necessity required was that their actions,and not their intentions, fell
within the doctrine. Chief Justice Irshad Hasan Khan went on to insist that the military government
respect fundamental aspects of the Constitution. The Supreme Court gave a political justificationof its
decision to assume jurisdiction. Drawing on the works of John Eekellaar, ‘Principles of Revolutionary
Legality 1973 the Supreme Court claimed that it was the sole forum in which citizens of Pakistan
could see the question of legitimacy aired, and noted that the decisions of the Court might constrain
excessive Exercise of power and guide the country back to democracy. The legality of the conduct of
the Army was tested through the doctrine of state necessity and salus populi suprema lex (the welfare
of the people is the supreme law).The action of the usurper must have been required to save the state
from extreme evil, a matter to be decided by the court (unclear whether economic mismanagement
and corruption would be sufficient). The overthrown Prime Minister had abused his power to
manipulate the Constitution, destroying its safeguards and frustrating the democratic processes
essential to its functioning.
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The welfare of the people is better served by armed rule than by suffering from the evil. The actions of
the usurper must be directed towards the return to normal government as soon as possible.
The advantages of this approach are that firstly, the actions of the army are within the constitution,
secondly, the principle of necessity constrains the army to the smallest possible intervention. A third
advantage would be that the army could only enact reforms approved by the Court and finally, it
enables the court to set a maximum three years for military rule.
NW Barber in Law Quarterly Review October 2001 noted that the Supreme Court in effect made a
political bargain with the military rulers of Pakistan. The Court offered them legal legitimacy in return
for a resumption of democracy within three years. In the event, general elections were recently held in
Pakistan with the Army-backed candidates winning a majority of the seats in Parliament. Military
enactments have made Parlimentary legislation subject to the approval of the military council and
President Musharraf has extended his term as President by another three years.
NW Barber in Law Quarterly Review July 2001 further comments that the Supreme Court may have
believed that finding against the usurpers would be ‘a quixotic gesture’. It is clear that both courts
were making a decision on political-moral grounds. How could a judge make a value free judgment as
a legal scientist or a judge? Hart’s version is surely more digestible than Kelsen’s. The efficacy of the
judges’ decisions on an attempted usurpation will depend on the respect it commands within the
society and the willingness of the revolutionaries to submit to judgment.
I think that Hart’s version of when the government has changed is preferable to Kelsen’s Grund Norm
theory. I agree with LLoyd’s who raises the difficulties inherent in Kelsen’s Grund Norm theory in
pg.264-269.He concludes that it may be thought that Kelsen’s theory is useful to a legal scientist, not
a judge and only for residual cases where the de jure status of the government is in doubt.The kingpin
of the whole structure rests upon the shaky foundation of a loose concept- efficacy.’ It may be asked
whether, in this respect, Kelsen really furthers our understanding of the legal order’.
APPENDIX A
The following is an article by Raz on Kelsen’s Theory. Students should take note that the examiners
have tested students on Raz’s concept of justified normativity and social normativity as applied to
Kelsen’s theory. It would be well worth the effort to read this article to understand Raz’s arguments.
RAZ, J. / KELSEN’S THEORY OF THE BASIC NORM

Of all the various doctrines of Kelsen’s legal philosophy it is his theory of the basic norm that has
attracted most attention and captured the imagination. It has acquired enthusiastic devotees as well
as confirmed opponents. Both admirers and critics owe much to the obscure way in which Kelsen
explains his theory. The obscurity was criticized and led people to suspect that the whole theory is a
myth; but it also provided admirers trading on ambiguities with an easy escape from criticism. In the
following pages yet another attempt to demythologize the theory will be made. An explanation of the
concept of the basic norm as Kelsen’s attempt to provide an answer to some well know jurisprudential
problems will he offered. It will be further claimed that the attempt has not been altogether successful,
hut that its failure is illuminating. It sheds light on the intricacies of the problems involved and on their
possible solutions.
Criticism will follow the exposition. The exposition, however, cannot be faithful to all the relevant texts.
Some ambiguities and even contradictions cannot he eradicated by interpretation, however ingenious.
Not wishing to trace the development of the theory or to present an exhaustive discussion of all the
texts, the strategy I adopt will be always to prefer the more interesting of two conflicting
interpretations, and to disregard the rest. The theory will be examined in relation to the problems it
was designed to solve. It stands or falls according to its success in dealing with them. Kelsen regards
the concept of the basic norm as essential to the explanation of all normative systems, moral as well
as legal. Only his use of the concept in legal theory will be examined here.
1. EXPLAINING THE DOCTRINE

According to Kelsen’s theory it is logically necessary that in every legal system there exist one basic
norm. The basic norm can be said to exist for Kelsen says that it is valid,2 and validity is the mode of
existence of norms.3 This does not mean that all basic norms are identical in content. Indeed, no two
basic norms can have the same content. They are all called basic norms not because of their content
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but because they all share the same structure, the same unique position each in its own system, and
because they all perform the same functions.
Kelsen postulates the existence of basic norms because he regards them as necessary for the
explanation of the unity and normativity of legal systems. A legal system is not a haphazard collection
of norms. It is a system because its norms, as it were, belong together. They are interrelated in a
special way. Kelsen accepts two propositions which he considers too self-evident to require any
detailed justification. They can be regarded as axioms of his theory. The first says that two laws, one
of which directly or indirectly authorizes the creation of the other, necessarily belong to the same legal
system.4 For example, a criminal law enacted by Parliament and a constitutional law authorizing
Parliament to enact criminal laws belong to one legal system just because one of them authorizes the
creation of the other. The second axiom says that all the laws of a legal system are authorized,
directly or indirectly, indirectly, by one law.
It follows from the second axiom that two laws, neither of which authorizes the creation of the other,
do not
belong to the same system if there is no law authorizing the creation of both. It follows from the first
axiom that if one law authorizes the creation of another or if both are authorized by a third law then
both belong to the same legal system. Thus the two axioms provide a criterion for the identity of legal
systems and make it possible to determine with regard to any law whether it belongs to a certain legal
system or not.5
Assuming, as I think one should, that Kelsen is trying to elucidate the common concept of the legal
system and is not simply using the term to introduce a completely different concept, the second axiom
looks on the face of it like an. empirical generalization. To ascertain its truth one will have to examine
all legal systems and find whether there is in each one a law authorizing the creation of the rest. Is
there, for example, a law in Britain authorizing both Parliament and the common law? This problem is
implicitly recognized by Kelsen in the following passage:
“If a legal order has a written constitution which does not institute custom as a form of law creation,
and if
nevertheless the legal order contains customary law besides statutory law, then, in addition to the
norms of the written constitution, there must exist unwritten norms of constitution, a customarily
created norm according to which the general norms binding the law-applying organs can be created
by custom.” (GT 126.)
In such a legal system there will be no positive law authorizing all the rest. Some laws will be
authorized by the customary constitution, whereas others will be authorized by the enacted
constitution, and there will be no positive law authorizing both constitutional laws. Kelsen, therefore, is
aware that as an empirical generalization his second axiom is false. He overcomes this problem by
stipulating that there is in every system one non-positive law—a law which authorizes all the
fundamental constitutional laws and the existence of which does not depend on the chance action of
any law-creating organ, but is a logical necessity. These laws are the basic norms of legal systems
and their existence is necessary for the truth of the second axiom; they make it a logical truth. Since
Kelsen’s criterion of identity of legal systems depends on the truth of the second axiom it also
depends on the theory of the basic norm.
This is one line of argument which Kelsen implicitly uses to prove the necessary existence of a basic
norm in every legal system. Kelsen has a different and independent argument which he employs to
reach the same conclusion. It aims to show that only the basic norm can explain the normativity of the
law.
All laws are created by human actions, but human actions are facts and they belong to the realm of
the ‘is’,
whereas laws are norms and belong to the realm of the ‘ought’. It is another of Kelsen’s unquestioned
beliefs that there is an unbridgeable gap between the ‘is and the ‘ought’, that norms cannot derive
their existence from facts. This can be regarded as a third axiom of his theory. He says: ‘Nobody can
assert that from the statement that something is, follows a statement that something ought to be’ (P
TL 6). Therefore, he concludes: ‘... the objective validity of a norm . . . does not follow from the factual
act, that is to say, from an is, but again from a norm authorizing this act, that is to say from an ought...’
(PTL 7—8).6
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The principle of dichotomy, of the unbridgeable gap between the ‘ought’ and the ‘is’ entails the
principle of the autonomy of norms. Norms exist only if authorized or entailed by other norms. In the
law the autonomy of the legal norms is secured by the fact that they are all links in what may be called
chains of validity: the term is not used by Kelsen, but the idea is essential to his philosophy. He
explains it as follows:
“To the question why this individual norm is valid as part of a definite legal order, the answer is:
because it has been created in conformity with a criminal statute. This statute, finally, receives its
validity from the constitution, since it has been established by the competent organ in the way the
constitution prescribes. If we ask why the constitution is valid, perhaps we come upon an older
constitution. Ultimately we reach some constitution that is the first historically and that was laid down
by an individual usurper or by some kind of assembly.... It is postulated that one ought to behave as
the individual, or the individuals, who laid down the constitution have ordained. This is the basic norm
of the legal order under consideration. (GT 115.)7
Thus, though every law is created by human action, it derives its validity not from the act, but from
another law authorizing its creation. Ultimately all positive laws owe their validity to a non-positive law,
a law not created by human action. Only a non-positive law can be the ultimate law of a legal system;
only it does not presuppose another norm from which it derives its normativity. This non-positive law is
the basic norm.
The idea of a chain of validity is central to Kelsen’s solutions of the problems of normativity and unity
of the legal system. Two laws belong to one chain of validity if one authorizes the other or if there is a
third law authorizing both. The unity of the legal system consists in the fact that all its laws belong to
one chain of validity and all the laws of a chain of validity are part of the same system. The normativity
of laws is assured by the fact that each of the laws in a chain derives its validity from the one before it.
The basic norm is essential to the solution of both problems. It provides the non-factual starting-point
essential to the explanation of the normativity, and it guarantees that all the laws of one system
belong to the same chain of validity.
The functions assigned to the basic norm explain its content and its special status. It must he a non-
positive norm. Basic norms are not enacted, nor are they created in any other way. It is presupposed
by legal consciousness, but Kelsen makes it clear that it is not created by being presupposed.8 Nor is
it created by the acts of enacting other laws,9 or by the recognition by the population of a duty to obey
the law,10 as some commentators have assumed. It does not make sense with regard to any basic
norm to ask when it was created, by whom or how. These categories simply do not apply to it.
Nevertheless, they can be said to exist, for they are valid, and despite their uniqueness basic norms
are part of the law, for they perform legally relevant functions.11
For them to explain the normativity and unity of a legal system, basic norms must authorize the
creation of the laws of the various legal systems. Thus the functions of the basic norm account for its
structure. It is an authorizing norm. It ‘qualifies a certain event as the initial event in the creation of the
various legal norms. It is the starting point of a norm creating process’ (CT 114). ‘The basic norm of
any positive legal order confers legal authority only upon facts by which an order is created and
applied which is on the whole effective’ (CT 120). The basic norm is a powerconferring law. Kelsen,
however, formulates it as duty-imposing: ‘. . . the basic norm ... must be formulated as follows:
Coercive acts ought to be performed under the conditions and in the manner which the historically
first constitution, and the norms created according to it, prescribe. (In short: One ought to behave as
the constitution prescribes.)’ (PTL 200—1.) It is always possible to describe every law conferring
legislative powers by saying that it imposes a duty to obey the laws made by the authorized organ.12
This possibility should not obscure the nature of the law as power-conferring. The basic norm will,
therefore, be regarded as conferring legislative power on the authors of the first constitution.
The formulation given by Kelsen in the quoted passage is not of any particular basic norm of any legal
system. It merely exhibits the structure common to all basic norms. The content of basic norms varies
according to the facts of the systems to which they belong. Kelsen explains that the content of a basic
norm ‘is determined by the facts through which an order is created and applied’ (CT 120).
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2. THE BASIC NORM AND THE UNITY OF LEGAL SYSTEMS
Kelsen’s doctrine of the unity of legal systems fails for two independent reasons. As I have discussed
them rather extensively elsewhere,13 the following discussion will be brief. His doctrine depends on
the first two axioms explained above. It is not difficult to see that both axioms must be rejected.
The first axiom asserts that all the laws belonging to one chain of validity are part of one and the
same legal system. If this axiom were correct, certain ways of peacefully granting independence to
new states would become impossible. Suppose that country A had a colony B, and that both countries
were governed by the same legal system. Suppose further that A has granted independence to B by a
law conferring exclusive and unlimited legislative powers over B to a representative assembly elected
by the inhabitants of B. Finally, let it be assumed that this representative assembly has adopted a
constitution which is generally recognized by the inhabitants of B, and according to which elections
were held and further laws were made. The government, courts, and the population of B regard
themselves as an independent state with an independent legal system. They are recognized by all
other nations including A. The courts of A regard the constitution and laws of B as a separate legal
system distinct from their own. Despite all these facts it follows from Kelsen’s first axiom that the
constitution and laws of B are part of the legal system of A. For B’s constitution and consequently all
the laws made on its basis were authorized by the independence-granting law of A and consequently
belong to the same chain of validity and to the same system.
Kelsen’s mistake is in disregarding the facts and considering only the content of the laws. For his
theory the only important feature is that the legal system of A has a law authorizing all the laws of B.
That the courts and population of B do not consider this law as part of their own legal system is
irrelevant. But the attitude of the population and the courts is of the utmost importance in deciding the
identity and unity of a legal system in the sense in which this concept is commonly used.14
This criticism does not directly affect Kelsen’s theory of the basic norm. However, if the doctrine of the
unity of legal systems is rejected, one of the reasons for accepting the theory of the basic norm
disappears. Kelsen’s theory of the unity and identity of legal systems is vitiated by a second flaw
which directly concerns the role of the basic norm. The second axiom on which his theory of the
identity and unity of the legal system depends says that all the laws of one system belong to one
chain of validity. When discussing this axiom we saw that Kelsen admits, at least by implication, that
disregarding the basic norm, all the positive laws of a system may belong to more than one validity
chain. Some may owe their validity to a customary constitution while others derive their validity from
an enacted constitution. It is only the basic norm that unites them in such a case in one chain of
validity by authorizing both constitutions.15
A legally minded observer coming to such a country and wondering whether the enacted and the
customary
constitutions belong to the same legal system will be referred by a Kelsenite to the basic norm. It all
depends, he will be told, whether or not there is one basic norm authorizing both constitutions or
whether each constitution is authorized by a different basic norm. Being told in answer to further
questions that to know the content of the basic norm he should find out ‘the facts through which an
order is created and applied’ (CT 120), for they determine it, he may very well be driven to despair. It
seems that he can only identify the legal system with the help of the basic norm whereas the basic
norm can be identified only after the identity of the legal system has been established. Even if our
diligent observer succeeds in establishing that at least two sets of norms are effective in the society,
one, a set of customary norms, the other, of enacted norms, there will be nothing a Kelsenite can say
to help him decide whether or not they form one system or two. There is nothing in the theory to
prevent two legal systems from applying to the same territory. Everything depends on the ability to
identify the basic norm, but it cannot be identified before the identity of the legal system is known.
Therefore, the basic norm cannot solve the problem of identity and unity of legal systems, and Kelsen
has no other solution.
3. KELSEN ON NATURAL LAW THEORIES

If the previous criticism is correct the case for the basic norm must rest on its function in explaining
the normativity of the law. It is with this problem that the rest of the essay will be concerned. The role
of the basic norm in explaining the normativity of law, and indeed Kelsen’s explanation of that
normativity, .is closely connected with his critique of natural law theories He conceived his own theory
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as an alternative, the only possible alternative to natural law. Kelsen even refers to the basic norm as
a natural law.16 This
is not the place to examine in detail Kelsen’s criticism of natural law theories, but a few remarks on
some of the key ideas are essential to the understanding of his theory of the basic norm.
According to Kelsen’s account, natural law theories claim that there is a set of norms, discoverable by
reason, which have absolute and objective validity. They are completely and objectively just and
good. Positive law, in so far as it is valid, derives its validity from natural law. It is valid to the extent
that the natural law pronounces it just and good. Statutes, court decisions, etc., which are contrary to
natural law are not valid and hence not laws at all.
Kelsen correctly points out that according to natural law theories there is no specific notion of legal
validity. The only concept of validity is validity according to natural law, i.e. moral validity. Natural
lawyers can only judge a law as morally valid, that is, just, or morally invalid, i.e. wrong. They cannot
say of a law that it is legally valid but morally wrong. If it is wrong and unjust, it is also invalid in the
only sense of validity they recognize.17
Kelsen has four major reasons for rejecting all natural law theories. They are burdened with
objectionable
metaphysics, they are conceptually confused, they thrive on moral illusion, and they are unscientific.
(1) Natural law theories presuppose the dualistic metaphysics which has bedevilled the Western world
since Plato.18 They presuppose an ideal reality of completely just and good laws enjoying some form
of objective existence independent of human acts or will which is contrasted with the imperfect social
reality of man-made statutes, regulations, and decisions. The latter are imperfect and less real than
the former, and whatever reality they have is due to the ideal reality. Only by imitating the ideal laws
do human laws acquire validity. Kelsen is very much opposed to this kind of metaphysics and rejects
it in favour of the anti-metaphysical flavour of Kant’s critical philosophy. Rejecting this metaphysical
dualism deprives natural law theories of their metaphysical foundation.
(2) Natural law theories are conceptually confused. They are of’ two varieties, one secular, and the
other religious. The secular theories regard natural laws as rational1y binding and self-evident in
themselves. The
religious theories regard them as the commands of God revealed to man through rational speculation
about nature.19 Both varieties commit the naturalistic fallacy of deriving an ‘is’ from an ‘ought’.
Whatever is natural can only be a fact, and God’s commands are also facts, even if divine facts, and
from facts no norm is entailed. To avoid the naturalistic fallacy both types of natural law theories must
be assumed to postulate a basic norm investing the facts with normative character.20 The secular
basic norm is that nature be obeyed, the religious basic norm dictates that God be obeyed.21 The
basic norms must be considered self-evident. They cannot be derived from any other norm, yet they
are said to be objectively valid and binding. In this way Kelsen attempts to rectify the confusions
committed by the proponents of the natural law.
(3) 'The doctrine is a typical illusion, due to an objectivation of subjective interests.’ (WJ 228.) On
Kelsen’s
analysis the natural law’s claim to objective validity rests on the assumption that its basic norms are
self-evident. Kelsen rejects all such claims as illusions. He is a moral relativist.22 No moral position
can be objectively proved and defended. There are no intuitively true moral beliefs.23 Moral opinions
are matters of personal preferences. By claiming objective validity, natural lawyers breed illusions and
use them for various ideological purposes. Most commonly the natural law illusion has been used by
conservative optimists to justify existing legal and political institutions. Occasionally the same illusion
has been turned into a tool for promoting reform or revolution.24 Kelsen’s relativism does not
preclude the possibility or necessity of assessing the law by moral standards. He simply insists that
every evaluation is valid only relative to the particular moral norm used which in itself has no objective
validity. Consequently moral criticism or justification of the law is a matter of personal or political
judgment. It is not an objective scientific matter and does not concern the science of law.25
(4) By condemning natural law theories as unscientific Kelsen means that they cannot be objectively
confirmed. Therefore, Kelsen’s desire to construct a scientific theory of law leads him to renounce the
morality of the law as a subject of the theory. ‘The problem of law as a scientific problem is the
problem of social technique, not a problem of morals.’ (CT 5.) Legal theory is and should be
concerned with a special type of social technique for controlling human behaviour. Natural law
theories, by distinguishing between just statutes which are law, and unjust ones which are not law,
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obscure the issue. For they thereby exclude some normative systems from being classified as legal,
even though they are instances of the use of the same social technique.
4. THE BASIC NORM AND A VALUE-FREE STUDY OF LAW

To perform its task legal theory must be value-free. Consequently its explanation of the normativity of
law must be independent of the moral value of the law. How is the notion of legal validity and
normativity to be explained?
Kelsen resorts to the conceptual framework of Kantian critical philosophy. Kant himself adopted a
version of natural law theory only because he did not remain true to his own premises.26 His
philosophy, however, provides the intellectual tools which Kelsen wishes to use. A legal concept of
validity and normativity is made possible only through the concept of the basic norm:
“To interpret these acts of human beings as legal acts and their products as binding norms, and that
means to interpret the empirical material which presents itself as law as such, is possible only on the
condition that the basic norm is presupposed as a valid norm. The basic norm is only the necessary
presupposition of any
positivistic interpretation of the legal material.” (CT 116.)
The basic norm is necessarily presupposed when people regard the law as normative, irrespective of
its moral worth:
“…the basic norm as represented by the science of law may be characterised as the transcendental-
logical
condition of this interpretation, if it is permissible to use by analogy a concept of Kant’s epistemology.
Kant asks: ‘How is it possible to interpret without a metaphysical hypothesis, the facts perceived by
our senses, in the laws of nature formulated by natural science?’ In the same way, the Pure Theory of
Law asks: ‘How is it possible to interpret without recourse to metalegal authorities, like God or nature,
the subjective meaning of certain facts as a system of objectively valid legal norms? .. .‘ The
epistemological answer of the Pure Theory of Law is: ‘By presupposing the basic norm that one ought
to behave as the constitution prescribes....’ The function of this basic norm is to found the objective
validity of a positive legal order.” (PTL 202.)
The concept of the basic norm provides legal theory with an objective and value-free concept of legal
normativity. ‘The presupposition of the basic norm does not approve any value transcending positive
law.’ (PTL 201.) ‘It does not perform an ethical political but only an epistemological function.’ (PTL
218.)
Not performing a moral or political function the basic norm is objective:

“To the norms of positive law there corresponds a certain social reality, but not so to the norms of
justice.... Juristic value judgments are judgments that can be tested objectively by facts. Therefore
they are admissible within a science of law.” (WJ 227.)
“The basic norm, therefore, is not the product of free invention. It is not presupposed arbitrarily in the
sense that there is a choice between different basic norms when the subjective meaning of a
constitution creating act and the acts created according to this constitution are interpreted as their
objective meaning.” (PTL 201.)
With the aid of the concept of a basic norm Kelsen claims he has established a value-free legal theory
using a specific legal concept of normativity:
“The postulate to differentiate law and morals, jurisprudence and ethics, means this: from the
standpoint of
scientific cognition of positive law, its justification by a moral order different from the legal order, is
irrelevant, because the task of the science of law is not to approve or disapprove its subject, but to
know and describe it.... The postulate to separate law and morals, science of law and ethics means
that the validity of positive legal norms does not depend on their conformity with the moral order; it
means that from the standpoint of a cognition directed toward positive law a legal norm may be
considered valid, even if it is at variance with the moral order.” (PTL 68.)
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5. KELSEN ON THE NATURE OF THE NORMATIVITY OF LAW
Thus far it has been established that Kelsen regards the concept of a basic norm as necessary to the
understanding of law as a normative system, and that he thinks that only by using this concept can
legal theory be value-free and objective and avoid the blunders of natural law theories. Nothing has
been said so far about the nature of the normativity accruing to the law by virtue of the basic norm. To
this problem we must now turn.
Two conceptions of the normativity of law are current. I will call them justified and social normativity.
According to the one view legal standards of behaviour are norms only if and in so far as they are
justified. They may be justified by some objective and universally valid reasons. They may be
intuitively perceived as binding or they may be accepted as justified by personal commitment. On the.
other view standards of behaviour can be considered as norms regardless of their merit. They are
social norms in so far as they are socially upheld as binding standards and in so far as the society
involved exerts pressure on people to whom the standards apply to conform to them. Natural law
theorists characteristically endorse the first view, positivists usually maintain the second view.
The most successful explanation of the normativity of law in terms of concept of social normativity is
Hart’s ana1ysis in The Concept of Law. Theorists using the concepts of justified normativity claim that
a legal system can be regarded as normative only by people considering it as just and endorsing its
norms by accepting them as part of their own moral views. Theorists using the concepts of social
normativity maintain that everyone should regard legal systems as normative regardless of his
judgment about their merits.
Much of the obscurity of Kelsen’s theory stems from the difficulty in deciding which concept of
normativity he is using. It will be claimed that:
(1) Kelsen uses only the concept of justified normativity.
(2) According to him an individual can consider a legal system as normative only if he endorses it as
morally just and good.
(3) Legal theory considers legal systems as normative in the same sense of 'normative' but in a
different sense of 'consider’ which does not commit it to accepting the laws as just.
Let us consider the first statement first. Quite often Kelsen considers a concept of social normativity
only to reject it as not being really a concept of normativity or at any rate as not being appropriate for
legal theory. Thus he distinguishes between a subjective and an objective ‘ought’,27 claiming that
legal norms are objective norms, explained by the concept of an objective ‘ought’. His subjective
‘ought’ is a variety of social normativity. Connected with this distinction is his comparison between
objective and subjective value judgments. The latter are an explanation of one type of social
normativity and are judged by him to be factual rather than normative judgments:
“The value constituted by an objectively valid norm must be distinguished from the value that consists
(not in the relation to a norm, but) in the relation of an object to a wish or will of an individual directed
at this object. If the object is in accordance or not in accordance with the wish or will, it has a positive
or negative value.... If the judgement describing the relation of an object to the wish or will of an
individual, is designated as a value judgement ... then this value judgement is not different from a
judgement about reality. For it describes only the relation between two facts, not the relation between
a fact and an objectively valid norm. . . . The value that consists in the relation of an object . .. to the
wish or will of an individual can be designated as subjective value.” (PTL 19—20.)
Describing laws as commands of a sovereign is, on this theory, describing them as subjective ‘ought’.
If one does not presuppose the basic norm, then judgments about the lawfulness of action,
understood as judgments about their conformity to the commands of a sovereign, are merely
subjective value judgments. Kelsen acknowledges that the law can consistently be interpreted in this
way, but in this case it is not regarded as normative:
“The fact that the basic norm of a positive legal order may but need not be presupposed means: the
relevant
interhuman relationship may be, but need not be, interpreted as ‘normative’, that is, as obligations,
authorisations, rights, etc. constituted by objectively valid norms. It means further: they can be
interpreted without such presupposition (i.e. without the basic norm) as power relations (i.e. relations
between commanding and obeying or disobeying human beings)—.in other words, they can be
interpreted sociologically, not juristically.” (PTL 218.)
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This is a key passage. Kelsen claims in effect that the concept of social normativity is not a concept of
normativity at all,.. It does not allow the interpretation of law as imposing obligations, granting powers,
rights, etc. It makes the law indistinguishable from the commands of a group of gangsters terrorizing
the population of a certain area.28 Only by using the concept of justified normativity can one
understand the true character of legal systems as normative systems.
Because Kelsen regards the concept of justified normativity as the only concept of normativity, he
considers law as an ideology. For law is normative, i.e. justified and good for everyone who regards it
as normative: ‘This is the reason why it is possible to maintain that the idea of a norm, an “ought”, is
merely ideological. ... In this sense the law may be considered as the specific ideology of a certain
historically given power.’ (WJ 227.)
One should be careful to distinguish between the two senses in which legal norms are said by Kelsen
to be
objective. In the first sense they are objective for they reflect a social reality, i.e. because they are
normative in the sense of social normativity. In the second sense they are objective for they are
normative in the sense of justified normativity; they are an ideology. The two senses are manifested in
the following passage: ‘If we conceive of the law as a complex of norms and therefore as an ideology,
this ideology differs from other, especially from metaphysical, ideologies so far as the former
corresponds to certain facts of reality. . . . If the system of legal norms is an ideology, it is an ideology
that is parallel to a definite reality.’ (WJ 227.)
In other words, it is normative in the sense of justified normativity (i.e. it is objective ‘ought’) but also
normative in the sense of social normativity (i.e. corresponding to objectively ascertainable facts the
meaning of which is the subjective ‘ought’). This constant shift from one sense of objective to the
other has not helped scholars to understand what concept of normativity Kelsen is using.
To anyone regarding the law as socially normative, the question ‘why should the law be obeyed?’
cannot be answered by pointing out that it is normative. The law is normative because of certain
social facts. It should be obeyed, if at all, for moral reasons. The normativity of the law and the
obligation to obey it are distinct notions. Not so to people who admit only the concept of justified
normativity. For them to judge the law as normative is to judge it to be just and to admit that it ought to
be obeyed. The concepts of the normativity of the law and of the obligation to obey it are analytically
tied together. Kelsen, therefore, regards the law as valid, i.e. normative, only if one ought to obey it.
‘By “validity”, the binding force of the law—the idea that it ought to be obeyed by the people whose
behaviour it regulates—is understood.’ (WJ 257.) ‘A norm referring to the behaviour of a human being
is “valid” means that it is binding—that an individual ought to behave in the manner determined by the
norm.’ (PTL 193.)
These statements are unavoidable for a theorist working with the concept of justified normativity. They
are
misleading if the normativity of the law is explained as social normativity only.
6. AN INDIVIDUAL’S ‘POINT OF VIEW’

The normativity of the law is justified normativity; its reason is the basic norm which is, therefore, a
justified norm. But it is not justified in any absolute sense. Kelsen believes in moral relativism. For him
moral opinions are matters of personal preference which cannot be rationally confirmed or refuted.
Hence he claims that the basic norm is presupposed, i.e. accepted, and the law, is regarded as
normative only by people who consider it to be just:
“But there is no necessity to presuppose the basic norm. . . . The system of norms that we call ‘legal
order’ is a possible but not a necessary scheme of interpretation. An anarchist will decline to speak of
‘lawful’ and 'unlawful' behaviour, of 'legal duties’ and ‘legal rights’, or ‘delicts’. He will understand
social behaviour merely as a process whereby one forces the other to behave in conformity with his
wishes or interests.. . ‘He will, in short, refuse to presuppose the basic norm.” (WJ 226—7.)
“…an anarchist, for instance, who denied the validity of the hypothetical basic norm of positive law . . .
will view its positive regulation of human relationship ... as mere power relations.” (CT 413.)
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“A communist may indeed not admit that there is an essential difference between an organisation of
gangsters and a capitalistic legal order.... For he does not presuppose—as do those who interpret the
coercive order as an objectively valid normative order—the basic norm.”
For an individual to presuppose the basic norm is to interpret the 1egal system as normative, i.e. as
just. For Kelsen all the values endorsed by one individual, all his moral opinions form necessarily one
normative system based on one basic norm. One can speak of an individual’s normative system, or of
the normative system from the point of view of a certain individual. Regarded from one point of view
every set of norms necessarily forms one consistent and unified normative order. The individual may
think that some of the norms to which he subscribes conflict. But this is a psychological not a
normative fact. He may feel torn between two opposing modes of action.30
But it makes no sense to say that his normative system contains conflicting norms. It is of the essence
of the concept of a normative system that it guides behaviour; it guides the behaviour of those
persons who adopt the relevant point of view. But if conflicting norms are assumed to be valid from
one point of view, then they do not guide behavior for they point in opposing directions at the same
time. Therefore all the norms held valid from one point of view necessarily form one consistent
system:
“It is logically not possible to assume that simultaneously valid norms belong to different, mutually
independent systems.” (CT 363.)
“If two different systems of norms are given, only one of them can be assumed to be valid from the
point of view of a cognition which is concerned with the validity of norms.” (CT 407.)
“If one assumes that two systems of norms are considered as valid simultaneously from the same
point of view, one must also assume a normative relation between them; one must assume the
existence of a norm or order that regulates their mutual relations. Otherwise insoluble contradictions
between the norms of each system are unavoidable.”(WJ 284.)
All this is incomprehensible if it is assumed that Kelsen uses the concept of social normativity. It gains
some plausibility if it is recognized that Kelsen is operating throughout with a concept of justified
normativity. Then it is possible to appreciate Kelsen’s reasons for maintaining that (1) for an individual
to acknowledge that something is a norm is to accept it as just; (2) from an individual’s point of view
all his moral beliefs form one normative system; (3) all the norms held valid from one point of view
must be consistent. For the normative interpretation of a person’s belief is not a psychological but a
rational enterprise intended to elucidate the direction in which his views guide him.
One rather surprising consequence of this analysis is that the concept of normative systems loses
much of its importance. The most important concept is that of a point of view. It is logically true that
from every point of view there is just one normative system, and therefore just one basic norm. An
individual accepting the justice of his country’s laws, but subscribing to further values not incorporated
in the law, accepts not two normative systems but one. His country’s laws are part of this system,
though they can be viewed as a subsystem of his total normative system. To assert that all the norms
held valid from one viewpoint constitute one system with one basic norm is, of course, to assert more
than that they do not conflict. It is to claim that they all derive their validity from one basic norm. This is
tacitly assumed rather than argued for by Kelsen. Granting, however, that the basic norm can confer
validity on more than one norm renders this a rather technical matter of no great importance.31
7. ‘THE LEGAL POINT OF VIEW’

So far the notion of a point of view was considered only as applying to particular individuals; only
points of view adopted by individuals were discussed. But there are also more complex points of
view,. One can ascribe a point of view to a group of individuals, to a population, provided the
population shares the same values. It is possible to consider hypothetical points of view, for example,
to discuss what norms are adopted by individuals who accept all and only the laws of their country as
valid, without assuming that such individuals exist. One may call this particular example of a
hypothetical point of view the point of view of the 1ega1 man. Throughout his work Kelsen uses the
concept of a point of view of legal science. He talks about ‘the basic norm of a positive legal order, the
ultimate reason for its validity, seen from the point of view of a science of positive law’. (WJ 262.) He
also says that the science of law presupposes the basic norm, but nevertheless is not committed to
regard it as just. There is, for Kelsen, a great difference between a personal point of view and the
scientific point of view. Norms judged as valid from a persona1 point of view are those adopted as
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just. But legal theory is value-free and norms judged to be valid from its point of view are not thereby
adopted as just. Any individual can discuss the law sometimes from his personal viewpoint,
sometimes from the point of view of legal science Adopting the 1atter ‘even an anarchist, if he were a
professor of law could describe positive law as a system of valid norms, without
having to approve of this law’. (PTL 2l8n.) At the same time the anarchist will reject the validity of the
law when considering it from his person point of view. What is the nature of the point of view of legal
science? How can it be value-free, and at the same time regard the law as normative in the only
sense admitted by Kelsen, i.e. that of justified normativity? One tempting explanation is that legal
theory asserts that a legal system exists only if adopted, from the personal viewpoint, by the
population to which it applies, and describes the law as seen from this point of view. Kelsen, however,
rejects this interpretation:
“The doctrine of the basic norm is not a doctrine of recognition as is sometimes erroneously
understood. According to the doctrine of recognition positive law is valid only if it is recognised by the
individuals subject to it, which means: if these individuals agree that one ought to behave according to
the norms of the positive law. This recognition, it is said actually takes place, and if this cannot be
proved it is assumed, fictitiously as a tacit recognition.” (PTL 218n.)
The Pure Theory of Law does not assert or assume any attitude of the population to the law. A legal
system exists if it is effective and this does not entail acceptance as morally just. An alternative
interpretation would he that legal science describes no the population’s point of view but the point of
view of the hypothetical legal man, i.e. of a person accepting from a personal viewpoint all and only
the legal norms, without assuming that such a person actually exists. Such an interpretation is
supported by various passages
like the following one:
“The Pure Theory describes the positive law as an objectively valid normative order and states that
this
interpretation is possible only under the condition that a basic norm is presupposed.... The Pure
Theory, thereby characterizes this interpretation as possible, not necessary, and presents the
objective validity of positive law only as conditional—namely conditioned by the presupposed basic
norm.” (PTL 217—18.)
This interpretation comes very near the core of Kelsen’s doctrine but it is not free from difficulties. On
this
interpretation the Pure Theory itself does not adopt any point of view; it does not presuppose any
basic norm. It merely describes the point of view of the legal man and the basic norm he adopts. Is
Kelsen mistaken when regarding legal science as having a point of view and presupposing a basic
norm? Does he use these terms in a completely different sense when applied to legal science?
Kelsen himself is unsure of his position on this crucial point, for occasionally he can be seen to
waver.32 The difficulty results from the fact that Kelsen does not distinguish between the science of
law dealt with by jurists talking about the law, and the activities of lawyers and judges using the law.
He considers both under the one title of juristic cognition. He wants to claim that:
“By offering this theory of the basic norm, the Pure Theory of Law does not inaugurate a new method
of legal cognition. It merely makes conscious what most legal scientists do, at least unconsciously,
when they interpret the mentioned facts not as causally determined, but instead interpret their
subjective meaning as objectively valid norms. . . . The Theory of the basic norm is merely the result
of an analysis of the procedure which a positivistic science of law has always applied.” (PTL 204—5.)
Kelsen, however, makes a similar claim not only about legal scientists, but also about legal
practitioners. The following passage applies to lawyers as well as law professors:
“That the basic norm really exists in the juristic consciousness is the result of simple analysis of actual
juristic statements. The basic norm is the answer to the question: how—and that means under what
condition—are all these juristic statements concerning legal norms, legal duties, legal rights, and so
on.” (CT 116—17.)
It can perhaps be claimed that legal scientists do not adopt a point of view; they do not regard the law
as valid but simply describe what is considered valid from the point of view of some other person, i.e.
the legal man. But legal practitioners do not describe what somebody else regards as valid but
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themselves consider the law as valid, refer to it as valid, and apply it to particular cases. They cannot
be said merely to describe a point of view; they actually adopt one. Yet when acting professionally
they need not express their personal point of view. An anarchist can be not only a law teacher, but
also a lawyer. As a lawyer he adopts and expresses a professional point of view, the point of view of
legal science, as Kelsen calls it, which does not commit him, and is understood not to commit him to
the view that the law is just.
For Kelsen the legal scientist, as well as the legal practitioner, not only describes a point of view, but
actually adopts one. Legal science regards the laws as valid and hence presupposes the basic norm.
The point of view of legal science is that of the legal man. It is not merely ascribed but actually
adopted, and it is adopted in a special sense.
If a man were actually to adopt the point of view of the legal man he would adopt the law as his
personal morality, and as exhausting all the norms he accepts as just. Legal science does not accept
the point of view of the legal man in this sense. Legal science is not committed to regarding the law as
just. It adopts this point of view in a special sense of ‘adopt’. It is professional and uncommitted
adoption. Legal science presupposes the basic norm not as individuals do—i.e. by accepting it as
just—but in this special professional and uncommitted sense.
8. CONCLUSION
The analysis of Kelsen’s theory of normativity and of the basic norm clarifies some of Kelsen’s
fundamental theses. It explains his insistence that the basic norm presupposed by legal science
authorizes the first constitution and does not refer to any non-legal authority like God or nature.
Individuals from their personal point of view are indeed unlikely to adopt this norm as their basic norm.
They are likely to appeal to God or to nature or some other moral norm as their basic norm. But this is
irrelevant to legal science which has a special point of view, that of the legal man, which it adopts in
the special professional sense of adopting. Legal science, therefore, presupposes, in the special
sense, this particular basic norm, for it is concerned as a science only with positive law.
On the present analysis Kelsen’s position on the relation of law and morality is seen as entailed by the
rest of his theory:
“When positive law and morality are asserted to be two distinct mutually independent systems of
norms, this means only that the jurist, in determining what is legal, does not take into consideration
morality, and the moralist, in determining what is moral, pays no heed to the prescriptions of positive
law. Positive law and morality can be regarded as two distinct and mutually independent systems of
norms, because and to the extent that they are not conceived to be simultaneously valid from the
same point of view.” (WJ 284.)33
Kelsen is discussing here the professional points of view of the legal and moral scholar. He is not
denying that a legal order can incorporate moral rules or that morality can incorporate the law and
regard it as morally valid. Nor is he denying that an individual from his personal viewpoint can regard
both legal and non-legal norms as valid. To the individual they will all form part of his personal
normative system, based on his personal point of view. From the point of view of legal science,
however, only the law is valid, just as from the point of view of ethical theories only moral norms are
valid.
Kelsen’s insistence that from a single point of view there can be just one normative system and just
one basic norm explains why his theory of normativity in itself entails that there is just one basic norm
to every legal system. In so far as basic norms are necessary only to enable us to consider the law as
normative, there is nothing to prevent one from postulating several basic norms relating to one
system. One basic norm can make the criminal law normative, another will relate to the law of
property, etc. However, on Kelsen’s theory this will mean that there is no one point of view from which
the legal system is considered but several, each corresponding to every one of the basic norms.
Furthermore, since there is one general science of law, it follows, on the Kelsenian premise of the
unity of a point of view, that all the laws form but one legal system. The ultimate reason for Kelsen’s
theory of the unity of national and international law is his theory of normativity. Since all the norms
held valid from one point of view form one normative system, it follows without further argument that
since both national and international law are considered valid from the point of view of one legal
science, they are parts of one system. All that remains to do is to explain how they should be thus
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understood. ‘The unity of national and international law is an epistemological postulate. A jurist who
accepts both as sets of valid norms must try to comprehend them as parts of one harmonious
system.’ (CT373.) ‘Once it is conceded that national and international law are both positive laws, it is
obvious that both must be valid simultaneously from the same juristic point of view. For this reason,
they must belong to the same system.’ (WJ
284.) ‘If both systems are considered to be simultaneously valid orders of binding norms, it is
inevitable to
comprehend both as one system.’ (PTL 332 emphasis added.)
This analysis of Kelsen’s doctrine of the basic norm in its function in establishing the normativity of law
is based on the claim that though Kelsen rejects natural law theories, he consistently uses the natural
law concept of normativity, i.e. the concept of justified normativity. He is able to maintain that the
science of law is value-free by claiming for it a special point of view, that of the legal man, and
contending that legal science adopts this point of view; that it presupposes its basic norm in a special,
professional, and uncommitted sense of presupposing. There is, after all, no legal sense of
normativity, but there is a specifically legal way in which normativity can be considered. This is the
core of Kelsen’s theory. To it he adds the further claim that all the norms held valid from one point of
view must be considered as one consistent system. This further thesis can and should be criticized
and rejected. It leads to a distorted view of the relations between the various values subscribed to by
an individual. It also leads to a distortion of the common concept of a legal system. This is not the
place to examine the inadequacies of Kelsen’s view of personal morality. Kelsen’s failure to account
for the concept of a legal system is treated elsewhere.34 It is,
however, important to remember that it is possible to reject Kelsen’s identification of the concepts of a
normative system and a normative point of view while retaining the other basic tenets of Kelsen’s
theory of normativity and the basic norm.
It seems to me that Kelsen’s theory is the best existing theory of positive law based on the concept of
justified normativity. It is deficient in being bound up with other essentially independent as well as
wrong doctrines and it is incomplete in not being supported by any semantic doctrine or doctrine of
discourse capable of explaining the nature of discourse from the ‘point of view of the legal man.
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Joseph Raz and the Service Conception of Authority
The following is a brief survey of some aspects of Raz’s Theory. Students should take note that
there are many subtleties in Raz’s ideas and he has addressed many facets of the law & the legal
system. The attempt here is to present a few interesting features arising from his writings that would
be relevant in the context of the syllabus.
Rules
Raz contends that one can identify the following features of Law:
1. Within a legal system rules play a central role. It must be remembered that Raz is often seen
as a successor or heir to Hart. There is, therefore, a fair amount of reliance that Raz has
placed on the works of Hart. However, he does have important disputes with Hart. Most
notably, Hart’s theory has failed to account for the authoritative character of law and it has
also undermined positivism core claim by accommodating ‘principles’.
2. The rules within a legal system are of a systematic nature. Unlike a primitive society that may
have had a loose set of rules, a modern legal system is constituted by rules that are of a
systemic nature. There are authoritative institutions with law creating and law interpreting
functions and there is a systemic approach for the validity of rules.
3. Interpretation plays a crucial role in legal reasoning. Interpretation is not the be all and end all
of law. Raz does not dismiss interpretation nor does he relegate it to an unimportant and
insignificant role. Instead, his contention is that Dworkin’s treatment of interpretation as
central to the law is capable of producing a perception of law as persistently controversial.
This can at some point in time involve a lack of authoritativeness in law.
In practical reasoning, rules provide the reason for action. Whilst he may otherwise proceed to act in
any manner that we may wish, rules have the effect of guiding our behaviour even though we may
disagree with the reason for the rule. The rule itself provides the reason for action. The rule may
have been formulated through a certain reasoning or it may not have been formulated through such
reasoning. But, the fact that a rule exists is reason enough for it to guide our action.
Raz draws a distinction between Rules and Regularities. Rules are normative propositions. You shall
not kill. You shall not steal. These preceding statements are normative in that they render the
conduct non-optional. A regularity is a mere congruence of action. ‘Most people dine out on
Saturday nights’. That is not a normative proposition. It is merely an observation of a particular
regular pattern of behaviour. This ground has been covered by Hart quite comprehensively in his
Concept of Law in the course of his critique of the Command Theory.
Raz provides us with a rather interesting insight, however, into the disjunctive co-existence of
evaluation and normativity when one speaks of a rule. This line of reasoning is an interesting way in
which one can undermine the claims of traditional natural law.
Raz: “Rules allow for a potential normative gap, a gap between the evaluative and the normative, that
is between their value, and their normative force.”
Therefore, there is a rule that is binding and provides a valid reason for acting. But, it could be a bad
rule. For instance, I might consider that the Misuse of Drugs Act contains provisions that place too
onerous a burden on the defendant and therefore I might regard it as a bad law. This would not
prevent me from regarding it as a law in the first place and for that matter denying its normative force.
The fact that I have from an evaluative standpoint considered the law to be ‘bad’, ‘immoral’ or ‘unjust’
is not going to result in my denial of its normativity. I would still concede that it is a valid law.
Contrast this with ‘ordinary reasons’ (the reasons that ordinarily guide our action) – a book is insightful
and subtle. This is a reason to read the book. Evaluative and normative considerations are fused
together. A movie incorporates state of the art special effects and has excellent story telling. This is
a reason to watch the movie. There is no normative gap in our ordinary actions. Where we have
evaluated the reason for an action, the reason guides our action. In the case of a rule, the rule itself
guides our action independent of the reason for the rule. In fact, sometimes we may agree with the
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reasons, sometimes we may disagree with the reasons and sometimes we may have no opinion on
the reasons.
Why is there this normative gap in law? This is due to the fact that rules are content-independent.
The binding nature of a rule is not dependant on its content. If it was dependant, then there will be a
normative-evaluative fusion. The lack of this fusion results in the content independence of the rules.
If Parliament enacts a law stipulating that ‘all blue-eyed babies be put to death’, it is valid despite its
content.
Why not have one test? If rules are good and wise, then they are binding, and if not, they are not? If
from an evaluative standpoint the rule is bad, then the rule has no normativity. To put it another way,
if the law is unjust, then it is not law at all. This will be a natural law argument.
From Reasoning with Rules (2002):

“Some people regard rules made by authorities as pre-commitments. They regard communities as
agents and governments as their agents. Laws passed by the government are seen as commitments
of the community. This may be the right way to think of some communities, but for reasons we need
not go into here, it seems no more than a fiction when considering most states today. This does not
mean that legal rules cannot be binding. Governments have useful, and in the conditions of our life,
essential functions in securing co-ordination, overcoming collective action problems, and utilising hard
to master information for the benefit of their communities and beyond.”
The existence of the normative gap completely undermines the assertion of traditional natural law.
However, one must remember that modern natural lawyers like Finnis have distanced themselves
from the idea that an unjust law is not law and modified it into an assertion that an unjust law may be
too evil to be obeyed. To this extent there is perhaps little difference of opinion between modern
natural law and positivism.
Rules are the inevitable backbone of any structure of authority:
“rules allow agreement in the face of disagreement. They do so by allowing for agreement on the
decision procedure in spite of disagreements about the measures they yield, or because of
agreement on measures, in the face of disagreement about their justification”.
Rules play the important role of conflict avoidance or conflict resolution as the provide and
independent, neutral and objective reference point for the resolution of disputed positions in society.
Whilst contracting parties may disagree on the nature of the dispute between them, through the
existence of rules they have an opportunity for agreement in relation to the decision procedure.
Hart’s Rule of Recognition and Raz’s improvement

In Hart’s theory the Rule of Recognition is a customary practice of convergent behaviour among
judges, officials, etc – where the rule describing that behaviour is accepted by those officials from an
internal point of view.
Therefore, this is constituted by actual practice of officials in a particular system.
But, Raz says that this fails to take into account ‘our’ concept of authority. Note: it is our concept.
Not, ‘the’ concept of authority. Raz proposes that there is a sense in which the law is authoritative.
Central to this thesis is the idea of authority. There is a sense in which we consider the laws passed
by an authoritative source as being binding and we do not ourselves consider arguments of merit
about that law.
What is authority?
The notion of an authority is something that we are familiar with in many of our activities in life. Every
decision as to action, before it is made, presents us with choices. We make the choices based on
reasoning the merits/otherwise of what we are about to do.
But there are times when we don’t reason the matters out ourselves. Our reason for acting is that we
rely on someone authoritative and abide by his direction.
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Authority is a justification for legitimate coercion.
Coercion:
1. Naked aggression or use of power – no inherent need by the rulers to justify their rule or their
coercion.
2. De facto Authority – claims to be legitimate – claims to act for the common good – justifies its
coercion
3. Legitimate Authority – actual legitimacy – claim to power is based on reason. Note:
government in exile can have legitimate authority and no de facto power.
Authority is (a) pre-emptory and (b) content independent.

(a) it pre-empts our reasoning about the reason for a rule.
(b) The content is not the issue in the acceptance of authority.
Raz formulates the idea of authority from a social contract perspective. The service conception of
authority:
Authority is broadly speaking a right to rule.
- If an authoritative person issues a directive, the recipient is duty-bound to obey.
- But, on what basis can any human being compel another to act in a certain way?
- On what basis does a person allow his will to be subjected to others?
“A person can have authority over another only if there are sufficient reasons for the latter to be
subject to duties at the say-so of the former”
1. The subject would better conform to reasons that apply to him anyway if he intends to be
guided by the authority’s directives than if he does not (normal justification)
2. The matters regarding which the first condition is met are such that with respect to them it is
better to conform to reason than to decide for oneself, unaided by authority (independence
condition).
e.g. law relating to pharceuticals:

- whether they are safe or what are safe drugs – we suspend our own assessment in this
regard.
- We assume that those with authority would have consulted the authorities.
- When the rule is promulgated – we assume that the “normal justification” is there.
- But, it is possible that the rule in fact was promulgated to advance the narrow interests of a
pharmaceutical corporation and it doesn’t meet the normal justification condition.
If it meets the ‘normal justification’, it would normally meet the independence condition:
Independence condition: we would rather allow an authority to decide on the safety of drugs and not
investigate it ourselves.
This is something that we do in our ordinary affairs as well. It is a necessary component of our
practical reasoning that we suspend our normal justification and permit the ‘authority’ to perform the
task.
Raz gives the example of a physician prescribing medication. We do not ourselves interrogate the
diagnosis of our medical condition or the appropriateness of the prescription. That the physician, a
trained person in his field with his own expertise, is in a position of authority is sufficient for us to
suspend what we would otherwise normally do.
In the absence of a physician, I would have to reason out the appropriateness of the drug myself.
But, I rely now on his authoritative judgement and do as he says. The normal process of reasoning
out the choices before us is therefore suspended and we hand this reasoning over to that
authoritative person.
The physician analogy can be taken further. The physician himself did not carry out laboratory tests
on the drugs and their effect. He has through other authoritative sources made the decision that the
particular drug is the appropriate prescription.
Our human social intercourse is filled with a web of ‘authorities’: Teachers, lawyers, accountants, the
plumber, etc.
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Authority serves a purpose – we subjugate ourselves to authority because of the function it serves.
We return therefore to what Raz refers to as the service conception of authority.
Do we interrogate the merits of a law? Why do we consider that there is an obligation to obey the
law.
Once the law issues from an authoritative source we appear to suspend the normal reasoning that we
would otherwise employ in relation to an action and we accept the law and its direction. For this
reason Raz claims that Authority is Pre-emptory and content independent. It pre-empts our reasoning
about the reason for a rule. The content is not the issue in the acceptance.
We can see from the physician example that the authority is pre-emptory. We do not reason out the
basis of the prescription. We accept on the say-so of the authority. Whatever the physician may have
directed us to, we would without regard to the content accept his advise.
Is this analysis appropriate to the way that we see the law? Do we really suspend reasoning when
the law issues forth from Parliament? What about open criticisms of particular laws? Disagreements
with Parliament over the laws passed. Segments of the community that may disobey the laws
passed? They have not suspended the reasoning that they would apply to the law despite the
existence of the law-making authority.
But, Raz is not talking about particular segments of the community that may actively reason out the
justification for a law. He is making a general assertion about how the community in general
suspends its normal justification.
The idea of ‘normal justification’
Authority is broadly speaking a right to rule. If an authoritative person issues a directive, the recipient
is duty-bound to obey. But, on what basis can any human being compel another to act in a certain
way? On what basis does a person allow his will to be subjected to others?
Raz: “A person can have authority over another only if there are sufficient reasons for the latter to be
subject to duties at the say-so of the former”
Authority is justified only to the extent that it does a better job than the subject of figuring out what the
subject ought to do according to the reasons that already apply to him. Thus, authority is justified only
insofar as the subject “is likely to better comply with reasons which apply to him (other than the
alleged authoritative directives) if he accepts the directives of the alleged authority as authoritatively
binding, and tries to follow them, than if he tries to follow the reasons which apply to him directly”
There is inherent in Raz’s concept, the notion of a contract between the citizen and the ‘authority’.
The authority provides the service to the citizen of rationally processing the varieties of technical
information available to arrive at a sound decision as to the type of rules to implement. The citizen
accepts these rules without processing the information on the mere trust that the authority has carried
out its function.
The normal justification for us to rely on the authority is that function provided by the authority in terms
of its expertise and its ability to coordinate vast resources.
It is because this function of reasoning is suspended by the citizen that Raz claims that an Authority is
pre-emptory:
“The [authority’s] decision is for the [subjects] a reason for action. They ought to do as he says
because he says so…. [But] it is not just another reason to be added to the others, a reason to stand
alongside the others when one reckons which way is better supported by reason.… The [authority’s]
decision is also meant to replace the reasons on which it depends. In agreeing to obey his decision,
the [subjects] agreed to follow his judgment of the balance of reasons rather than their own.
Henceforth his decision will settle for them what to do”.
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Thus, according to the Preemption Thesis, “the fact that an authority requires performance of an
action is a reason for its performance which is not to be added to all other relevant reasons when
assessing what to do, but should replace some of them”
Raz invites us to consider the fact that this is the way we view the law. That Parliament has required
us not to smoke in restaurants is the reason why we don’t smoke in restaurants. The Authority has
interrogated the reasons behind banning smoking. We don’t weigh up those arguments when we
decide to obey the Act of Parliament. We obey it simply because it is an Act.
That authoritativeness of the law is the key element to the understanding of the nature of law.
In the Service Conception of Authority the Authority providing the service is supposed to ‘serve’ its
subjects by weighing the reasons that already apply to the subjects. The normal justification is not
carried out by the subject but by the authority.
Dependence thesis
As the authority is supposed to pre-empt and carry out the function of reasoning about the rules,
authoritative directive should be based on those reasons that would have been weighed up by the
citizen. A legitimate Authority would seek to fulfill this role.
Authority serves a purpose – we subjugate ourselves to authority because of the function it serves.
Raz argues that this account of authority applies to legal authority. All legal systems that are in force
have de facto authority. That “entails” that they claim legitimate authority even if they lack it altogether
or for the most part.
He suggests that one can fail to have authority if the “moral or normative conditions for one’s
directives being authoritative are absent” because the normal justification is unavailable or is
outweighed by conflicting reasons
A legal system might lack legitimate authority, but it must possess all the other attributes of an
authority which would make it in principle capable of “possessing the requisite moral properties of
authority.” Thus he says that Nazi rules differ from volcanoes in that they are the sort of thing that can
be authoritatively binding, whereas statements about volcanoes cannot”.
For the most part he talks as if there are de facto authorities which claim legitimacy but do not
necessarily have it. For example: “I will assume that necessarily law, every legal system which is in
force anywhere, has de facto authority”.
Legitimate authority would have to fulfil the normal justification and independence condition
In Hart’s Rule of Recognition, the element of authority in relation to the officials is missing.
The nature of directives by authority is that they are pre-emptive. The subject is pre-empted from
discussing the reasons behind the directive. We are only concerned that the directives are
authoritative.
What does Raz say about obedience?

Mere assertion of power is not cause for obedience. Mere promulgation of commands would
therefore not constitute grounds for obedience.
Obedience is a condition legitimately surrendered to an authority having the characteristics of a
legitimate authority.
Raz has an interesting perspective on Conscientious Objectors:
Bound by their Conscience – Raz (2003)

(article written by Raz in the context of Conscientious Objectors in Israel. – either refusing to serve
because they are pacifists or refusing to serve because they don’t condone the occupation of
Palestine.)
……..
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The right to refuse on grounds of conscience is not a license for anarchy; it is not the right to ignore
the law whenever it contravenes this or that opinion. It coexists with a recognition of the legitimacy of
the government, including one whose laws the conscientious objector disobeys, and with the
recognition that if the government is legitimate, then the individual has an obligation to obey its laws
even when those laws are wrong. A person claiming a right to conscientious objection has an
obligation to clarify what is unique about the act he refuses to do compared with other acts involving
obedience to laws with which he disagrees. An abstract delineation won't do. Cases are diverse, and
each must be judged on its particulars.
Nonetheless, it is clear that the right to conscientious objection exists with respect to military service.
The edict to be prepared to kill when the order is given, or the demand that one take part in imposing
an occupation that profanes human dignity in humiliating ways induced by the fact of occupation, are
expressly the sort of cases bearing a right to conscientious objection. The taking of human life or
subjection of human beings to control by a foreign regime must never be viewed lightly, even in
unfortunate cases when such acts are necessary and justified. Whatever the justification, undeniably
the readiness to kill or to participate in oppression have profound significance for the one who carries
out such acts. Hence, the right to conscientious objection to such acts takes precedence over the
legal obligation to take part in them.
………………
Recognition of the right to refuse on grounds of conscience does not imply recognition of the justice of
claims made by those refusing nor does it mean agreeing with their opinions or taking their side. If the
government is convinced that these opinions are justified, it has a duty to change the current law
which prevents those who obey it from behaving in a moral manner.
Claiming a right of conscientious objection, however, arises from the assumption that the government
and the courts do not agree with the ethical positions adduced by those who are claiming the right to
disobey the law. In recognizing the right to conscientious objection, the government recognizes its
basic duty to honor the freedom of human beings as autonomous creatures. This duty, the duty to
honor human dignity, which may be the duty underpinning all other moral obligations, is the
foundation for the right to conscientious objection.
RAZ’s views on Dworkin based on his Service Conception of Authority
Raz:
Enough of Dworkin's thought is clear to show that its moving ideas are two. First, that judges'
decisions, all their decisions, are based on considerations of political morality. This is readily admitted
regarding cases in which source based laws are indeterminate or where they conflict. Dworkin insists
that the same is true of ordinary cases involving, say, simple statutory interpretation or indeed the
decision to apply statute at all. This does not mean that every time judges apply statutes they
consider and re-endorse their faith in representative democracy, or in some other doctrine of political
morality from which it follows that they ought to apply these statutes. It merely means that they
present themselves as believing that there is such a doctrine. Their decisions are moral decisions in
expressing a moral position. A conscientious judge actually believes in the existence of a valid
doctrine, a political morality, which supports his action.
If I interpret Dworkin's first leading idea correctly and it is as stated above, then I fully share it. I am
not so confident about his second leading idea. It is that judges owe a duty, which he sometimes calls
a duty of professional responsibility, which requires them to respect and extend the political morality
of their country. Roughly speaking, Dworkin thinks that morality (i.e. correct or ideal morality) requires
judges to apply the source based legal rules of their country, and, where these conflict or are
indeterminate, to decide cases by those standards of political morality which inform the source-based
law, those which make sense if it is an expression of a coherent moral outlook.
- Raz’s position is that there are authoritative sources of the law.

- There are gaps in the law.
- In hard cases, judges fill in the gaps.
- Until those gaps are filled, there is no law in that area.
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Dworkin suggests that judges in hard cases do not make law and that they apply principles to
discover the law.
- Raz doesn’t have a problem if judges in fact apply morality in hard cases or if one suggests
they ought to apply morality.
- But, he does not consider this as a case of discovery of the law by a judge or even ‘Hercules’.
- It is pure law-making.
- This is consistent with his idea of the authoritative nature of law.
If we say that law is authoritative – three issues are relevant:

The dependence thesis:
All authoritative directives should be based, among other factors, on reasons which apply to the
subjects of those directives and which bear on the circumstances covered by the directives.
The normal justification thesis:
The normal and primary way to establish that a person should be acknowledged to have authority
over another person involves showing that the alleged subject is likely better to comply with reasons
which apply to him (other than the alleged authoritative directives) if he accepts the directives of the
alleged authority as authoritatively binding, and tries to follow them, than if he tries to follow the
reasons which apply to him directly.
The preemption thesis:
The fact that an authority requires performance of an action is a reason for its performance which is
not to be added to all other relevant reasons when assessing what to do, but should replace some of
them.
- It is the character of law’s authoritative nature that we the subjects do not have to work out
the reasons for a particular law or the justifications for it. The fact that some argument of that nature
is needed for us to identify the ‘best’ law or the best interpretation of the law that fits a given situation
is indicative of the fact that the law does not exists there…
- if we persist and insist that law does exist there as a thing waiting to be discovered through
the best interpretation, then the law has failed in the function of being authoritative.
It is easy to see that Dworkin's conception of law contradicts the two necessary features of law argued
for above. First, according to him there can be laws which do not express anyone's judgment on what
their subjects ought to do, nor are they presented as expressing such a judgment. The law includes
the best justification of source-based law, ……. The best justification, or some aspects of it, may
never have been thought of, let alone endorsed by anyone. Dworkin draws our attention to this fact by
saying that it requires a Hercules to work out what the law is. …….. He is aware of the fact that many
different and incompatible moral conceptions influenced different governments and their officials over
the centuries. His best justification may well be one which was never endorsed, not even in its
fundamental precepts, by anyone in government. Much of the law of any country may, according to
Dworkin, be unknown. Yet it is already legally binding, waiting there to be discovered. Hence it neither
is nor is presented as being anyone's judgment on what the law's subjects ought to do.
Second, the identification of much of the law depends, according to Dworkin's analysis, on
considerations which are the very same considerations which the law is there to settle. …..
Establishing what the law is involves judgment on what it ought to be. Imagine a tax problem on which
source-based law is indeterminate. Some people say that in such a case there is no law' on the issue.
The court ought to ask what the law ought to be and to decide accordingly. If it is a higher court
whose decision is a binding precedent, it will have thereby made a new law. Dworkin, on the other
hand, says that there is already law on the matter. It consists in the best justification of the source
based law. So in order to decide what the tax liability is in law, the court has to go into the issue of
what a fair tax law would be and what is the least change in it which will make source-based law
conform to it. This violates the second feature of the Iaw argued for above.
It is important to realize that the disagreement I am pursuing is not about how judges should
decide cases. In commenting on Dworkin's second leading idea I expressed doubts regarding his
view on that. But they are entirely irrelevant here. So let me assume that Dworkin's duty of
professional responsibility is valid and his advice to judges on how to decide cases is sound. We still
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have a disagreement regarding what judges do when they follow his advice. We assume that they
follow right morality, but do they also follow the law or do they make law? My disagreement with
Dworkin here is that, in saying that they follow pre-existing law, he makes the identification of a tax
law, for example, depend on settling what a morally just tax law would be, i.e. on the very
considerations which a tax law is supposed to have authoritatively settled.
Dworkin's theory, one must conclude, is inconsistent with the authoritative nature of law. That is, it
does not allow for the fact that the law necessarily claims authority and that it therefore must be
capable of possessing legitimate authority. To do so it must occupy, as all authority' does, a mediating
role between the precepts of morality and their application by people in their behaviour. It is this
mediating role of authority which is denied to the law by Dworkin's conception of it.
So, what is the nature of the dispute?
- If Dworkin does not attempt to construct a theory of law based on adjudication and merely
confines himself to constructing a theory of adjudication, Raz would not have any real
objection
- At most, he might object to the precise mechanics of the process of decision
making that in fact exist or that ought to exist.
- But, Dworkin seeks to construct an entire ‘coherent’ thesis of the law based on interpretation.
Raz objects to this as the authoritative character of law is undermined completely.
Dworkin’s response? Very strange. According to Brian Leiter:
“…in his first ever published discussion, he manages to misstate Raz's views for ten pages, almost
continuously.
So, e.g., Raz does not hold that “no proposition of law is true unless it successfully reports an
exercise of legitimate authority” (id. at 1666) (a proposition can be a proposition of law even if it is not
authoritative); he certainly does not make any “empirical assertion” to the effect “that every legal
official believes that the laws he enacts create moral obligations” (id. at 1667) (the theory is
conceptual, not empirical); Raz does not hold that “nothing is a law unless it meets all the necessary
conditions of having legitimate authority” (id. at 1668) (law claims authority, but often does not actually
possess it); Raz does not claim that “it is part of the very concept or essence of authority…that
nothing can count as an authority if those putatively subject to it must engage in moral reflection to
decide whether to obey it” (id. at 16973) (whether law has a justified claim to authority is different from
the question whether we have an obligation to obey the law); Raz manifestly does not believe that “it
would be a conceptual mistake to describe [“an exceptionally silly”] statute as law at all” (id. at 1673)
(it would be a conceptual mistake to think that a directive is a legal directive if it could not even satisfy,
in principle, the non-normative presuppositions of authority, but there are many valid laws that lack
authority, and it would be a conceptual mistake to deny that); and so on. “
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Ronald Dworkin
A brief summary
Main Works
A] Taking Rights Seriously
B] Law's Empire
C] A Matter of Principles
Main themes:
a] Attack on positivism-especially Hart's rule based theory
b] Judicial reasoning-how judges decide cases:

-discretion? (Principle/policies)
-one right answer
-Hercules-hard cases
-law as interpretation
-law as integrity
c] Rights-are trumps-an attack on utilitarianism
Dworkin's theory consists of a wide ranging analysis of various areas of Jurisprudence that you have studied.
His theories are diverse and not limited to a single source and is difficult to grasp by reducing any particular
textbook.
Some preliminary points must be made first. Dworkin is regarded as a successor to Hart, but his theories
basically begin from a criticism of Hart's theories. However, the main emphasis of his theory is on how judges
decide (or should decide) cases. He is not a positivist, and in fact his theory would recognise that concepts
like morality play an important role in law.
LAW AS INTERPRETATION
A useful starting point would be Dworkin's view of law as a scheme of interpretation.
This as a philosophical starting point of his explanation of Judicial Reasoning. He says that in order to
understand something or to then criticise it, we must put the thing in its 'best light'. This means that whenever
we analyze something, we must study and understand the thing itself, making the best case of it and
understanding the 'point' that it is trying to convey.
In this way we do not criticise or condemn something without any good reason and by having a deeper
understanding of the thing, not only as to its formal/physical attributes, but as to its underlying
basis/reasoning, only then could we decide whether to agree/disagree with it -> Argumentative attitude.
A good example is in a game of chess, what we understand formally or can observe are the various rules of
the game. Anyone could read up this rules, but if a situation arises where one player continuously smiles at
another throughout the game, has he broken any 'rules'. The rule book contains nothing of that sort.
Therefore relying just on rules may not explain/help the referee and decide on the matter. However an
understanding of the game of chess shows that it is a game of intellectual dexterity, requiring utmost
concentration and least distraction, this would be putting the game of chess in its 'best light'. Therefore to
solve such a problem, we have to see the whole point in a game of chess.
Dworkin also gives an example of a rule of courtesy requiring men to take off their hats to women. At first
people did it out of sheer habit, but not knowing the point of it at all. It is accepted unquestionably -> pre-
interpretive stage. After a while questions are asked and thinking is done. Different people would have
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different ideas about it, and the arguments intensify when certain particular situations arose -> Interpretive
stage.
PRE INTERPRETIVE ---------> INTERPRETIVE

(DESCRIPTIVE) a] Why? argumentative
'men take off (finding the meaning,
hats for women' giving it the 'best' interpretation)
b] How far is it applicable?

'Extending' it but still keeping it within the
meaning or INTEGRITY.
Therefore Dworkin's criticism of positivism starts here, in that positivist theories 'describes' the law but do not
'interpret' it. Hart's Rules of Recognition etc describes what valid law is but does not explain its point, similarly
Austin's/ Bentham's positivism (NB-Hart's theory has some emphasis on interpretation ie. pre-legal/legal
society).
Therefore a descriptive analysis, according to Dworkin (or a normative one) does not fully resolve the
difficulties judges/lawyers face in particular cases. Perhaps because of this theories like Hart's cannot explain
fully situations where for example certain cases where rules don't apply, or where rules conflict, etc,
etc....There is a 'gap' in the law, which the positivist (especially Hart) explains as a realm where the judges
exercise their 'discretion'. Therefore it is at the 'interpretive' stage that Dworkin's theory unveils its uniqueness
and during this stage there is an argumentative attitude as lawyer/judges try to find the 'point' of the rule, and
to see if extension/limitation is justified to its scope/applicability, and to new/novel situations - hard cases.
Dworkin also envisages a 'post interpretive stage' where the interpretation 'folds back into itself' ie. where
people discover that a particular rule, after seeing it in its best light, ought to be changed, or modified. Maybe
not all women deserve 'hats-off' treatment eg. lesbians/prostitutes, since they may conclude that the point of
this exercise is to mark respect to women, (weaker sex, child bearing etc...).
In chess, a human player may 'smile' at a computer opponent, but not at another human player, since the
point of it is concentration.
So what is the point of all the above?
From the above discussion, it can be summarised as following:-
1] A mere formal analysis of law is insufficient.
2)] Things must be interpreted in its best light and so too the law itself, therefore in order to understand the
law, it is not enough to see whether it satisfies a formal criteria, since this would leave 'gaps' in legal
reasoning but also to understand the law based on its moral, sociological, psychological background.
3] Dworkin's approach however is not 'a priori' unlike natural law, since he is not advocating what 'ought' to
be law etc, etc, but he interprets (not describes) the law as it is in its best possible sense and to go from
there (making the best sense of the law).
LAWS AS INTEGRITY (INTEGRATION)

As a result of looking at law interpretively, we come to appreciate that law is not about 'rules', but also about
'meaning', 'point', etc etc and these help plug the gaps in the law.
According to Hart (and other positivist) there is no necessary connection between validity of law and morality,
therefore his model of rules as purely legal. However Dworkin disagrees with this since according to him Hart
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failed to realise the existence of non-rule standards. These consist of moral/political/social standards that
judges use or draw upon especially when they decide hard cases. These standards are called
principles/policies.
1
The Rule of Recognition by Hart on the other hand is a legal concept and is inadequate when it comes to
deciding 'hard cases'.
However before we go into a discussion of this, Dworkin's idea of law as integrity should be looked at first.
Law as integrity in my view is an extension of what was discussed above about the 'interpretive' nature of law.
The basic idea here is that judges do not decide based on discretion whenever there is no 'rule' covering a
situation as Hart in his theory puts forward. According to Dworkin implicit in the legal system is a method
where a judge can arrive at a 'right' answer without exercising his 'discretion'. This is not to be confused,
Dworkin is not advocating a theory where a judge can always find one answer mathematically speaking, but
what he is saying is that it is possible for the judge to be pointed to the way of correct legal argument. It is a
question of finding the best answer as opposed to the only answer, and this is to be done not by the judge
using his discretion and making law but rather the judge discovers the law based on existing rules, principles,
policies, etc of the system. In this way there is a certain amount of integrity (integration) in the law, and not
merely an open texture that rules have.
'A judge in a hard case will draw upon those standards that exist in a legal system and interpret in the best
light these standard/rules/morals found in the great network of political structures/decisions of his community
and ask himself what he is deciding could form part of a coherent theory justifying the whole network'.
There is a right answer to be found, and the judge must find it and right here means not literally right,(nobody
ever knows) but right in a sense that it fits with the existing body of laws. Therefore the judge performs an
'interpretive' rule.
In short when judges decide hard cases, they do not decide based on their sole, personal discretion, but
rather when faced with such a situation, the judge's rule is to find an answer, and the answer must fit into the
scheme of things (ie. integrate) and if he does so correctly, he will have the 'right' answer.
His theory of maintaining integrity can be explained by his example of the chain novel. In hard cases, there
would be arguments, ie. argument to follow what has been accepted and argument to change/modify.
In chain novel, for eg. different people are required to write a chapter each of a novel, and each subsequent
author could not, so to speak, use his discretion in writing whatever he wants, but must write his contribution
so that it fits the earlier ones, ie. his creativity is restrained, if his discretion is to be accepted (integrated) into
the novel.
He is nevertheless free to create subplots, or new characters but must keep within the general theme or
underlying basis of the earlier chapters, he can make changes depending on how he interprets, but these
changes must still find a way of fitting with the story.
In the same way, the judge deciding a 'novel' case must look into the past, and look at earlier decisions,
political standards, moral standards, etc, etc. and in this way he will get a right answer. (Principles and
policies play a central role here especially in hard cases).What it means here is that the judge by looking
retrospectively must find out the 'point' of the law/rules and interpret them and to see how these relate to the
issue at hand.
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HERCULES -->
Dworkin then introduces 'Hercules'-a mythical judge whom he uses as a role model on judicial reasoning.
It is by reference to him that we can base whether a legal argument is bad/good etc. etc.
The Hercules model is supposed to point the way to correct legal argument.
Method
1) Hercules accepts firstly the settled practice of the legal system (including separation of
powers, judicial precedent, statutory interpretation, etc) and understands some general political
theory (social/moral) that justifies these practices.
2) Hercules understands legislative purpose/principles of common law.
3) He is in a position to explain/justify his acceptance of the rules.
4) He however can rationalise and discover the underlying theories of the system, eg. fairness (law of
precedent), mental responsibility (criminal law), relevance (evidence), consideration (law of
contract), social obligation (tort), responsible government (constitutional law).
5) He also appreciates the underlying moral force of certain laws eg. why duress is not a defence to murder
unlike self-defence, why intoxication is not a complete defence, etc, etc.
6) He is able to distinguish different theories, eg difference between contract/tort, etc, etc.
7) He is able to distinguish between rules, policy, principles, etc, etc.
Hercules having all the above in regard when faced with a novel situation will be able if he looks at the
various theories, principles already existing be able to come up with an answer which fits and integrates into
the present scheme of things.
When Hercules is doing this, he is not using his discretion but rather fitting his decision into established
principles of law, and therefore 'discovers' the law.
Perhaps a clear example of the above can be seen in the law of tort at the moment ie. as regards to the
development of duty of care in negligence.
The law at the moment adopts what is called the 'incremental approach' (Caparo Industries v Dickman,
Murphy v Brentwood), whereby the scope and applicability of duty of care is no longer allowed unfettered
expansion but rather within the existing boundaries where a duty of care is found. The same development is
found in cases of economic loss, and nervous shock. (see Guide on analysis of McLoughin v O'Brian).
Examinable areas on Dworkin

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a] Criticism of Hart
b] Attack on positivism
c] Judicial reasoning-one right answer theory/hard cases
d] Attack on utilitarianism-concept of rights
e] Natural law-evil regime-moral force of law
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SUPPLEMENTARY
Dworkin's theory is not a positivist theory as he is not trying to construct a formal theory of law and neither is
he describing the law as it is. In fact he opposes this kind of thinking. On the other hand he is also not a
natural lawyer since his theory does not try to prescribe what the law ought to be. His theory perhaps in his
own words is a theory on the interpretation of law which emphasises the role of judges.
Example of Dworkin's theory

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Riggs v Palmer-where the beneficiary(D) to a will killed T. Under the probate rules, the will comes into effect
the moment T dies. Nothing in the rules mention how T must die, thus legally speaking by confining to the
strict rules, D would be able to receive under the will. A mere descriptive view of the law (formal), D would
rightfully be able to get the property. However according to Dworkin the rules itself do not always provide a
solution and the judge must now interpret the law not only based on the formal rules but also on principles
and policies (non-rules standards) which also depends on the social, political and moral standards prevailing
in society. According to Dworkin, this case was decided on a normal point since the law of probate if
interpreted in its best moral light would clearly not allow a man like D to benefit from the will.
What are principles and policies ?
By the word principle what Dworkin means is not society's desire for social or economic gain but rather
principles are derived from moral or political rights of a person (individual rights).
Policies on the other hand is the community's goals collectively and this includes social and economic
aspiration of society (utilitarianism).
When there is a conflict, principles prevail over policies --> rights are trumps !
HART - DWORKIN DEBATE

(An attack on formalism/positivism)
After understanding Dworkin's theory of law as integrity and interpretation, the student should be in a better
position to understand Prof. Dworkin's attack on positivism, especially Prof. Hart's rule based theory.
Within this, Dworkin also criticises the goal based theory of utilitarianism.
According to Dworkin, positivist compel the courts to think too formally, ie. too much emphasis is placed on
procedural justice and judicial precedent, and on the other hand gives no guide to judges in hard cases
where judges are free to use their discretion.
His theory is particularly critical of positivists like Kelsen and Austin who looked at law from a definitional point
of view, and described law without looking at factors inextricably linked to it, ie. moral force of law,
principle/policy and the interpretive attitude that judges must have. Hart to a certain extent is closer amongst
positivists to Dworkin due to his interpretation of pre-legal and legal society and his 'inner reflective attitude'
which was more real than other formalists.
However even Hart's rule based theory is attacked since primarily Dworkin is of the view that Hart's rule
based theory is inadequate due to his failure to take into account non-rule standards like principles and
policies. An example is the case of Riggs v Palmer/McLoughin v O'Brian.
These cases show that law is not based only on rules, sometimes application of rules may lead to absurdity
on the facts, or in most situations, no rule would cover a particular situation and Dworkin says that it is in this
realm (hard cases) that principles and policies become important.
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Dworkin further rejects the proposition that law and morality are separate, since morality would be part of the
standards in a society (together with social/political standards) and from this we obtain the principles/policies.
NB-the main source of principles/policies are the existing rules of society but reference is made to the
moral/political standards existing in society.
Dworkin's theory is also more holistic (wide),ie the judge especially in hard cases, does not rely on
established law, but also the entire network and seamless web of the law.
Therefore rules apply in an 'all or nothing' fashion, and when they don't judges have a wide discretion. If
Hart's rule of recognition does not cover a particular area,then there is no law. Therefore Hart says that rules
have an 'open' texture,ie. there are situations where a rule cannot clearly apply, and therefore it calls for
judicial discretion.
However Dworkin argues that the use of principles/policies can resolve the problem. In fact he says that the
judges themselves in their judgement never say 'we're creating a rule', but rather say that they 'find' the law to
be such and such. This is consistent with the idea of separation of powers.
PRINCIPLES AND POLICIES

( c/f Rules)
Principles unlike rules are not rigid, ie. you cannot say a principle is valid/invalid, principles (policies) are
different in nature from rules.
Principles are reason based, i.e. a reason why a decision should move to a particular direction. Principles are
not binding in like cases,since other principles / factors may be different.
Therefore principles / policies are the hidden 'force' of direction behind the rules, and therefore there is some
'gravitational pull'. This gravitational pull provides the force behind a change/modification/discovery of rules.
Furthermore principles and policies have a dimension in weight, ie. if principles conflict, the judge can
consider one principle over another depending on its weight in the circumstances, whereas rules that conflict
means that one has to be invalid (overruled/ repealed). NB-when two principles conflict, it does not mean that
one principle is invalid.
Furthermore since principles and policies are rooted in society's moral/social/political beliefs at a particular
time, any changes in standards would be translated in the shift of policy/change in principle and the
gravitating effect generates change in law, but still keeping the system integrated, its change is within the
system.
(NB-principles/policies are derived chiefly from the rules of a system too)
What if principles conflict : Judge choose weightier
What if principles conflict with policy : Principles prevail (ie. rights in society of an individual prevail over
policies of the whole community's goals).
Principles: describe rights (justice/fairness/morality based)
Policies: goal to be reached/improvement in economic/social/ political of the community.
Therefore principles are not dependent on consequences, it has more importance than that according to
Dworkin. Thus rights of an individual override community's utilitarianism goals (rights are trumps).
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NB-sometimes policies override principles because in certain situations there are no individual rights in a
particular situation (or suspended).
Eg. wartime legislation, emergency measures (suspension of civil rights), therefore policies are more
important, ie what is good for the whole community is priority.
NB-it is not a clear distinction between principles and policies and the term sometimes overlap / interchange
eg. the right of an individual to a fair trial is a question of principle,at the same time it could be a question of
policy (is it in the community's interest).
Back to the Hart-Dworkin debate, Dworkin further criticises Hart for not striving to explain discretion in terms
of integrity/ interpretation,but Hart's term appears too loose.
Dworkin on the other hand says that in actual fact there is no discretion, since even in hard cases, the judge's
decision will be a right one if he 'fit' it with the existing scheme of things (integrity), therefore this would be the
best construction of a legal problem, and not a question of stark discretion (chain novel argument).
Dworkin recognises that judges have/should have no distinction (or weak discretion), and only perhaps in
issues of sentencing/ granting leave etc is there a sufficiently strong discretion.
Discretion therefore must not be based on the judges values, but on the institutional 'morality' or values of the
system that 'exists'. The judges must discover this and apply it in decision making. He is against the use of
background morality of the judges.
Similarities between Hart's Rule of Recognition and Dworkin's Interpretive Stage

Dworkin's interpretive stage in certain aspects is similar to Hart's inner reflective attitude especially with
regard to officials. Therefore a judge in Dworkin's theory will look at the law at its present state including
principles and policies and interpret this present scheme of things. This he would do by adopting an
argumentative approach on the problem he faces at the moment ie. the judge would have to find out what
was the point or reason behind the existing law and see whether the present case fits into this scheme of
interpretation. To aid him in interpreting, the judge will also look at principles and policies and question
society's moral and political standards. The importance here is that the judge has to rely on the presence of
things to come to an answer and it will be found within this method of interpretation. In my view Hart's method
in this respect in explaining judicial reasoning is somewhat similar in a sense to that of Hart as he also
indirectly asserts that a judge does more than merely apply the rules because a judge is required as an
official to accept and understand the rule as a guideline to his decision making. This is called the inner
reflective attitude. Therefore isn't this the same as saying that judges must understand the point of the law.
However the disagreement arises between Dworkin and Hart as to when the judge cannot find an answer
from the existing rules. In this situation Hart claims that the judges will use their discretion whereas Dworkin
says the judges do not use their discretion. The clear difference therefore is that Hart's theory only
emphasises on legal rules that the judge has to apply and in hard cases when there are no rules or they
conflict, Hart says the judges use their discretion. In Dworkin's theory, he recognises non-legal rules like
principles and policies in his scheme of interpretation and therefore he disbelieves in discretion.
DWORKIN AND RIGHTS

Objective:
In this topic, we see Dworkin’s ideas on liberalism and the importance he attaches to rights. Dworkin uses
the metaphor of “rights as trump cards” of the individuals in circumstances where collective goals threaten
to undermine individual freedom. In other words, rights cannot be easily infringed in favour of collective
goals. Dworkin’s thesis is anti-utilitarian in this sense.
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Reading:
1. Jurisprudence: Texts and Commentary, Davies & Holdcroft, Chapter 10
th
2. Lloyd’s Introduction to Jurisprudence (7 ed), M D A Freeman, pp593-603
1. What Are “Rights”
What does Dworkin mean by the metaphor “individual rights as trumps”? In simplest terms, the phrase
emphasises the important role that rights play vis-à-vis the State and prejudices of the majority that
manifest into state policies. To Dworkin, “(individual) rights are political trumps held by individuals.
Individuals have rights when, for some reason, a collective goal is not a sufficient justification for denying
them what they wish, as individuals, to have or to do, or not a sufficient justification for imposing some
loss or injury upon them (Dworkin, Taking Rights Seriously).
Note that a right is different from a goal in that a right is enforceable whereas a goal is (in this context) a
political ideal. Many rights are based on goals that the state and society at large endorse. However, there
are situations where individual rights and goals will conflict. Part of Dworkin’s thesis is to provide an
explanation that distinguishes rights from mere goals, hence protecting rights against collective goals.
Also, a political aim may either be a right or a goal depending on its place and function within a single
political theory. The same phrase might describe a right within one theory and a goal within another, or a
right that is absolute or powerful within one theory but relatively weak within another (Davies & Holdcroft
p310).
Dworkin goes on to define the weight of a right in terms of the sort of goals over which it has priority, so
that different rights have different weights. For instance, freedom of speech is an important right that
should not be restricted in ordinary circumstances. However, where a country is faced with war, national
security may be of such paramount concern that it momentarily outweighs the freedom of speech.
If rights have different weights attached to them, how do we decide which rights are more important?
Further, faced with two conflicting rights, how should we resolve the conflict?
According to Dworkin, not only do rights have different weights, there are different kinds of rights and they
differ in degrees of importance. There is a distinction between background rights, which are rights that
provide a justification for political decisions by society in the abstract, and institutional rights, that provide
a justification for a decision by some particular and specified political institution.
Consider the following example:

Country A is a socialist state that believes that all its citizens should be free from poverty. This is a
political aim that the citizens of Country A subscribe to – this is their background rights. However, this
does not mean that the citizens have a right to demand that the legislator of Country A enacts law to
abolish private property. In other words, the citizens do not have the institutional right to demand that the
legislators take action to redress the problem of poverty in this manner.
Note that the distinction between background rights and institutional rights is not based on their moral
contents. One cannot see a background right as a moral right; or an institutional right as non-moral. In
Dworkin’s view, legal rights, which are a species of institutional rights, sometimes have a moral
dimension.
The above example shows that there are different types of rights with different weights attached to them.
It should also be noted that there is a distinction between abstract rights and concrete rights. This is
basically a distinction of degree. On the one hand, “(an) abstract right is a general political aim the
statement of which does not indicate how the general aim is to be weighted or compromised in particular
circumstances against other political aim” (Dworkin). On the other hand, “(concrete) rights … are political
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aims that are more precisely defined so as to express more definitely the weight they have against other
political aims on particular occasions” (Dworkin).
To illustrate the difference, Dworkin draws this example:

“Suppose I say, not simply that citizens have a right to free speech, but that a newspaper has a right to
publish defence plans classified as secret provided this publication will not create an immediate physical
danger to troops. My principle declares for a particular resolution of the conflict it acknowledges between
the abstract right of free speech, on the one hand, and competing rights of solders to security or the
urgent needs of defence of others. Abstract rights in this way provide arguments for concrete rights, but
the claim of a concrete right is more definitive than any claim of abstract right that supports it” (Dworkin).
2. Why Should We Take Rights Seriously?
Protecting individual rights is a core concern of liberalism. Dworkin’s theory expresses this value and has
a strong anti-utilitarian thrust. Fundamentally, every right must have priority over some collective goal.
This affirms the idea of rights as trump cards of individuals. However, rights are absolute. We have seen
from the above discussion that rights do differ in priority and weight. It is envisaged that there are
situations where rights must be restricted. In the following paragraphs, we will look at why Dworkin
considers rights to be fundamental to the protection of individuals and the circumstances where such
rights can be restricted.
In Dworkin’s view, individuals are entitled to be treated with “equal concern and respect”. This is the
“constitutive core” of liberalism. Insofar as the liberals hold different beliefs on the issue of rights, they are
merely different beliefs on the “strategies”.
To treat individuals with equal concern and respect is not to be confused with the right to equal treatment.
Suppose that in City K, every citizen has one vote in the local government election. The city council
proposes to ban all public assembly at the public park if the purpose of the participants is to voice
discontent against the city council. The majority of the citizens in City K is in favour of this proposal and
intend to vote accordingly. A small minority of the citizens (Generation X) are opposed to the move,
claiming that this will infringe their freedom of speech and freedom of assembly. If all citizens in City K are
treated “equally” ie. one person one vote, then Generation X has no ground of complaint if the proposal is
passed with the support of the majority. However, is Generation X being treated as equals?
Applying Dworkin’s thesis, the answer is no. We do not treat people as equals by invading their
fundamental interests for the sake of minor gains to the majority of citizens. This is why Dworkin is against
utilitarianism, in his view it is not acceptable to restrain the rights of individuals even if the community is
better off or that its members are on average happier or have more of their preferences satisfied.
According to Dworkin, “(we) need rights, as a distinct element in political theory, only when some decision
that injures some people nevertheless finds prima facie support in the claim that it will make the
community as a whole better off on some plausible account of where the community’s general welfare
lies. … We want to say that the decision is wrong, in spite of its apparent merit, because it does not take
the damage it causes to some into account in the right way and therefore does not treat these people as
equals entitled to the same concern as others”.
In other words, to treat individual with equal concern and respect, we need to recognise that in certain
circumstances, rights should trump over utility. This is the essence of liberalism.
Note that Dworkin does not believe there is a right to liberty per se, what we have are rights to specific
liberties, derived from the fundamental right to treatment as an equal.
3. How Do We Protect Rights?

How can we prevent encroachment of individual rights? How can we make sure that certain fundamental
rights will never be violated by the State on the pretext of majority preference?
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To explain the manner in which legislators should protect rights, Dworkin draws a distinction between
“personal preferences” and “external preferences”. In simple terms – legislators and jurists should not
consider the external preferences of individuals where rights are concerned.
Basically, a personal preference is a choice that an individual prefers for himself, for instance, X is a
vegetarian and prefers vegetarian meals on Fridays. This is X’s personal preference. In contrast, an
external preference is a preference people have about what others shall do or have. Thus, in the case of
X, he may express the external preference that no restaurant should serve non-vegetarian food on
Fridays.
To take this example further, what if in Town A, the majority of citizens have the same external preference
as X; and collectively, they lobby the town council to ban all restaurants in Town A from selling meat
dishes on Fridays? From a utilitarian perspective, to ban non-vegetarian meals on Fridays will make the
community of Town A better off and its members on average happier. However, this will invade the right
(freedom of choice) of the minority citizens.
How can we protect them against this violation of their fundamental rights? To Dworkin, the answer lies in
having a scheme of civil rights.
Where a scheme of civil rights is in place, one can determine the political decisions that are likely to
reflect strong external preferences and remove these decisions from majoritarian political institutions
altogether (see Davies & Holdcroft p318). For example, racial discrimination should not be condoned at
all, irrespective of the views of the majority. Similarly, other rights such as freedom of speech, freedom of
religion, freedom of assembly, etc. should be protected and removed from the influence of majoritarian
politics. Hence, a government that respects the right of individuals to equal concern and respect will only
restrain liberty on limited types of justifications.
4. Conclusion
Do you agree with Dworkin’s ideas on rights and liberalism? Are personal and external preferences easily
distinguishable? What if the personal and external preferences of voters are so inextricably combined that
notwithstanding the legislators’ aim to exclude external preferences, discriminatory preferences still
prevail?
Dworkin has also been criticised on the ground that it is difficult to elicit a precise list of the derived rights
that individuals have. This is partly because the right to equality of concern and respect is a highly
abstract right.
Students should also take note that there are many types of utilitarianism and assess whether Dworkin’s
criticisms of the same are justifiable.
DWORKIN ON INTERPRETATION
Consider the application of Dworkin’s theory of interpretation to the concept of adverse

possession in Land Law. Should a squatter have rights in land?
Where the owner of property fails within a certain period to secure the eviction of a squatter or trespasser
from his land, then his own title will be extinguished and he will be statutorily barred from recovering
possession of the land.
Section 15(1) Limitation Act 1980 -no action shall be brought to recover land after the expiration of 12
years from which the date of action accrues.
This basically lies on the conception that those who sleep on their claims should not be assisted by the
courts in recovering their property - Lloyds v Butler [1950].
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It should be noted that today, no one else can claim a better title than the adverse possessor, for the
simple reason that all other challengers are statute-barred from proceeding with any action for recovery of
the land concerned - Shaw v Garbutt [1996]. The title of the adverse possessor therefore rests ‘on the
infirmity of the rights of others to eject him’ - Cooke v Dunn [1998] per Santow J.
Ellis v Lambeth LBC [2000] - a squatter successfully claimed a council house reportedly worth
£200,000. The principal problem of the paper owner’s case was, even with clear knowledge of
widespread squatting in its council houses, the local authority never concerned itself to take legal
proceedings.
R v Oxfordshire CC ex parte Sunningwell PC [2000] - acquisition through adverse possession appears
to be founded on some notion of title by successful taking ie literally “a taking by use”.
Neuberger J in J A Pye (Oxford) Ltd v Graham [2000] held that the squatter had established his claim
to the land by adverse possession but condemned the squatter’s uncompensated acquisition of hugely
valuable development land as ‘draconian to the owner and a windfall for the squatter’. He suggested that
the outcome was disproportionate particularly with reference to the climate of increasing awareness of
human rights. The case went up to the House of Lords.
The House of Lords in Pye v. Graham A.C. 2002 confirmed the requirements for establishing
adverse possession. In this case Pye, a property development company, owned fields adjoining
the Grahams’ farm. Pye hoped to obtain planning permission to build on the fields, but meanwhile
permitted the Grahams to make limited use of them, at first under a written grazing license for a
period in1983 and then by permission to cut hay in 1984.Further licenses were requested in 1984
and 1985;these requests were not answered but the Grahams continued to use the land from
1986 to 1997.In 1997 Micheal Graham, the current owner of the farm, registered a caution against
Pye’s registered title on the basis that he had acquired title by adverse possession. Pye sought to
‘ warn off ‘ this caution (i.e have it removed from the register )and in 1999 commenced
proceedings for possesion.
Although Neuberger J at first instance held that adverse possession had been established, the Court of
Appeal considered that Graham’s evidence showed that he did not have the necessary intention to
possess the property to the exclusion of the owner.His evidence made it clear that he intended to carry on
using the land in the hope that Pye would subsequently renew the grazing licence, and that he would
have been willing to pay for the use of the land if he had been asked to do so. In these circumstances the
Court of Appeal held that the intentionto possess had not been established. There was thus no
dispossession of Pye and time had not started to run against it under the Limitation Act.
On appeal, the House of Lords reversed the Court of Appeal decision, holding that the Grahams had
had been in adverse possession of the property and that time had run in their favour. Lord Browne
Wilkinson confirmed Powell v. Mcfarlane 1977 and emphasised the need for both the fact of
possession and intention to possess, which he defined as ‘a sufficient degree of physical custody and
control’ and ‘an intention to exercise such custody and control on one’s own behalf and for one’s own
benefit’ respectively. The intention to possess on one’s own behalf was essential to establishing adverse
possession. For example, a person who occupied a house in the owner’s absence could be, according to
his intention, a friend who was looking after the house for him, a temporary trespasser seeking only a
night’s lodging or a squatter who intended to remain in the property. His Lordship went on to confirm the
point in Buckinghamshire County Council v. Moran 1990 that an adverse possessor must intend to
use the property for his own benefit but he did not have to intend to acquire ownership of it. A willingness
to pay for the use of the land did not indicate an absence of intention to possess. ‘An admission of title by
the squatter is not inconsistent with the squatter being in possession in the meantime’. This view was
supported by the observations of Lord Diplock in the Privy Council Decision in Ocean Estates Ltd. v.
Pinder 1969 which had not been given sufficient weight by the Court of Appeal in the present case.
In their Lordships’ view, both elements were present. The Grahams had physical control of the land
through hedges and gates which they controlled and they had the necessary intention to use the land for
their own purposes, maintaining and using it as if it was part of their farm. The Grahams were thus
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entitled to be registered as owners, although several of their Lordships expressed concerns about the
apparent injustice of this result.
Adverse Possession and the Human Rights Act 1998

Human rights issues were raised in Pye v. Graham. The House of Lords held that The HRA 1998 had
no retrospective effect and so did not apply to this case. An attempt by Pye to invoke the common law
rule that the Limitation Act 1980 must be read compatibly with the HRA 1998 was also rejected as there
was no ambiguity or uncertainty in the LA 1980 provisions.
It is interesting to note that the Court of Appeal considered that the LA 1980 does not infringe the HRA
1998 but Neuberger J. at first instance, as noted above, considered this decision a denial of property
rights. Lords Bingham and Hope echoed the misgivings expressed by Neuberger J. and welcomed the
changes introduced by the LRA 2002 to adverse possession of registered land.In brief, the adverse
possessor must be in occupation of the land, he must file a claim in the Land Registry upon completion
of ten years adverse occupation, the paper owner will be informed and will be able to contest the adverse
possession . The court may require compensation to be paid by the adverse possessor and it may be that
these provisions will be sufficient to withstand any challenge under HRA 1998. The old rules will however
continue to be applied in unregistered land and later courts may find that the rules are inconsistent with
the HRA 1998.
There is therefore a tie or pull in opposite directions between the certainty of the law and the equally
insistent demand of justice for the land owner. On one scale is the fact that the paper owner has slept on
his rights whereas on the other scale is the doctrine of trespassers’ rights to occupy land and eventually
own the land. It can be seen that The Limitation Act 1980 s.15 simply provided a cut-off point for the
resolution of disputes relating to real property in the courts. The Act itself provides a limitation period of
six years for contractual and personal claims. Therefore Parliament adjusted the limitation periods for
different types of property in recognition of their differing values. The Limitation Act 1980, s.17 goes on
to extinguish the rights of the paper owner to the land because his right to recover his land lawfully is time
- barred. This is Dworkin’s pre-interpretation stage or Hart’s rule of recognition in action to discover the
grounds of law.
Dworkin’s interpretation stage is applied when there is a hard case - this means that no law is applicable
on the facts, for example, Airedale NHS Trust v. Bland A.C. 1992 or where the law is ‘furry’ or
ambiguous in relation to the facts.
Pye v. Graham is a classic situation. Does a trespasser include a licencee who has not been given
permission to continue to use the grazing field?Dworkin exorts us to interpret the law in its best moral
sense by treating law as principles, law as a seamless web and judges should consider law as literature
and they must interpret the law to achieve fit and substance with society’s ideals.
What would Hercules think of the House of Lord’s decision? Was this justice or the best moral
interpretation of the law? Surely if you own something, you can choose to do what you want with it? I can
buy a car and install it in my living room for indoor drive-in film watching. No problem! Why can’t I leave
my land idle for the animals to enjoy? Why should a trespasser who is excluded from my definition of
welcome animals be given rights over my land when his very entry is unlawful? Applying Dworkin’s idea
of pre-interpretation, we know that Parliament was looking for finality or certainty in the law. It placed a
burden or duty on the land owner to secure his property against strangers. However, Criminal Law does
provide a remedy against taking another person’s property (for those of you who have forgotten,it is theft!)
Parliament again chose to deprive land owners of a remedy by providing that land cannot be stolen. But
surely the squatter has stolen or appropriated my land (and polluted it because he is raising, chickens,
ducks and turkeys on it!)Surely a person can steal without removing an item? If I were to scoop out and
eat some ice cream from a tub in a restaurant when the attendant is not watching, I have not removed the
tub of ice cream but I have stolen ice cream!
Land Law does today recognize that a trespasser does not really have a MORAL right to complain when
the Court of Appeal held in Manchester Airport v. Dutton 1998 that a contractual licencee has a legal
right to evict a trespasser. This is a morally sound decision because the icencee has a better right to
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occupy the land as against the trespasser who does not have permission from the landowner to even be
there!
Surely the best legal and moral argument In Pye was for the House of Lords to exclude a tolerated
licencee from the definition of ‘trespasser’.
The House of Lords have failed in their duty to provide the best moral argument for the law in Pye v.
Graham and to implement it. It is not enough for Lords Bingham and Hope to point to the injustice of the
decision (which,by the way, was their own!).
At the stage of post interpretation, Dworkin envisages judges applying their best moral conclusion as to
the correct law in later decisions. Neuberger J. and Lords Bingham and Hope amongst others, should
have the courage of their convictions and provide the right answer to whether a trespasser ought to have
rights. They should not let the law take its and abandon their passive attiyude. Hoping that the HRA 1998
and the Land Registration Act 2002 will solve the problems of squatters’ rights is not good enough. This
is cynical and morally unsound when we consider that substantial areas of England still come under the
jurisdiction of the Land Charges Act 1972 and to which the LRA 2002 is not applicable. Judges should
abandon their passive attitude towards their application of the law and adopt a moarist interpretation of
the law.
[Note that Dworkin is AGAINST judicial legislation but supports a moral interpretation of the law which
may have the same effect].
DWORKIN AND INTEGRITY
Q. 5 2001 Zone A
What does Dworkin mean by ‘integrity and what part does it play in his theory of legal reasoning?
Illustrate your answer by reference to decided cases.
Suggested solution:
Law as integrity in legal reasoning is the moral political principle, which simply means treating people as
equal. For example the gays in England and United States have a place in society. They should not be
treated as one section of society. We should treat them as equals, see what they want and provide for
them from their basis as a minority. We can only do this if we put our selves in their shoes. To be treated
equal is moral. Law from a gay’s viewpoint can be achieved through equality thus protecting their
interests. The principle of equality, i.e. community or racial equality, whether it should be minority or
majority? In Malaysia, we use this factor to a great extent. One race is dominant over the other and not
equal. The law should be based on true equality not only in favour of the ‘bumiputeras’. Today, however,
there seems to be a change, the English language is being more emphasized in its importance now. More
chances are given to the ‘bumiputeras’ for education but it was said to be based on merit system.
Another example is equality for the females. When Dworkin talks about equality he is not equal enough
as per Catherine MacKinnon. The idea of law as equal can be referred to a case of R v Wakefield and
R v Lancashire (2001). Both the cases were about sexual harassment. It involves a 50 year old female
employee who was sexually harassed by the ‘office jester’. She went to complaint to the manager. The
manager did the same thing to her. The manager was sentenced for 1 year and 2 months and the officer
jester was sentenced for 1 year and 9 months. Thus it should be noted that female protection should be
looked at from their viewpoint.
The other part of integrity is that law must have fit and substance. Dworkin also talked about rights
trumping policy goals. Law must always uphold rights over policy. Government must always justify its use
of law or coercion. Individual rights must prevail over policy goals. Law as a matter of principle was first
considered in his book ‘Taking Rights Seriously’ in chapter 2. He also has law as interpretation in
another book called ‘Law’s Empire’ where he develops this principle. The theory of adjudication is found
in ‘Law’s Empire’ where there is a model judge called Hercules who although fictitious illustrates how a
judge should decide cases. Dworkin’s ideas are all interconnected and relying on each other.
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In his book ‘Law’s Dominion’ Dworkin talks about abortion as a principle of self- determination. He also
talks about one right answer, i.e. one correct answer. He says that human rights in England should be
codified and Lord Scarman also supported this. It is too dangerous to leave the idea of rights to be
protected by judges because they frequently make policy decisions.
In his book ‘Taking Rights Seriously’, Dworkin says that principles are part of law. Contrast this with
Hart who puts it that principles are not part of the law until recognized by judges. For Dworkin, law is a
seamless web, i.e. law has no boundaries. To him, everything is law no matter what consideration judges
use it is still law. To Hart, there is a core of settled law using the rule of recognition. In hard cases where
law is unsettled like in statutory interpretation, there is ambiguity. The law is unsettled in this penumbra or
shadow of doubt. There are principles, other rules, and other standards here. To Hart, a positivist,
principles are not part of the law. They only become part of the law when the judges recognize it.
Dworkin argues that when it is not part of the law how can the judges recognize them. The very fact that a
judge recognizes them means that they are law.
Their methods are different but Dworkin and Hart may come to the same conclusion. For example,
principles are part of the law. Looking at hard cases such as Airedale NHS Trust v Bland. Lord
Hoffman in the Court of Appeal mentioned that he must give credit to Dworkin for letting him read the
manuscript of ‘Law’s Dominion’. The House of Lords supported the outcome. They based the decision
on the principle of self-determination.They also stated that the case was decided on principles because
no law applied to the facts.
In this case a PVS patient can be allowed to die by the doctors terminating his food and water supply.
The patient is in coma. The PVS patient has the right to die; if it is morally right one should let him die.
Based on the principle of self-determination, one has a right to decide. They say that the principle is part
of the law. This is a new principle recognized by the courts, which according to Dworkin was already part
of the law before judicial recognition. One should note that suicide is not an offence as per S.1 Suicide
Act 1961. One has a right to kill oneself. This principle of self-determination is even recognized by the
law. Therefore, law inherently or impliedly recognizes Dworkin’s principles. Thus whenever the law runs
out or when there are hard cases one should just apply whatever law there is including principle. To
Dworkin, law is argument, i.e. arguing for the best moral interpretation of the law by applying principles.
To Dworkin interpretation has 3 stages, i.e. pre-interpretation, interpretation and post-interpretation. Pre-
interpretation is where the judge will consider what the current law on the matter or dispute is. One should
consider what the law is today; the judges can refer to the background and history regarding this law.
Dworkin says that positivism @ Hart stops at this point.
Hart says that we should consider the law, if there are no laws, the judges can make law using their
discretion. This is because Hart says when there is no law applicable to the case; judges have a strong
discretion to decide cases.
Dworkin rejects this idea of interpretation and says that judges merely have a weak discretion to decide
on what the law should be. Judges are bound to arrive at a decision, which has fit, and substance. This
means that the decision must conform to the historical, constitutional, cultural and moral traditions of
society. The decision must not be drastic. ‘Substance’ requires that the judge must apply the best moral
argument for the law. This would result in the correct decision for the individuals in the court and also for
the society as a whole. When the decision is beneficial as a whole it is moral. In upholding an individual’s
rights, we should treat them as equal and consider the law and tradition. What is the right thing to do?
The law will decide the best legal argument, which is good for the individuals and the society. Dworkin is
pinpointing how a judge should decide cases.
Post-interpretation would be the situation where the law is shown to be defective and in need of reform.
Therefore, the judges can invite Parliament to amend or pass new law in line with the correct
interpretation of the law. The Human Rights Act 1998 is a very good example of post-interpretation law.
For Dworkin, a judge must treat law as principles, law as interpretation, law as a seamless web, law as a
chain novel and law as literature. Finally, the judge must strive to arrive at the one right or correct answer
for the dispute before him. This is what Dworkin means by law as integrity. Hercules, the model judge will
consider himself as an author in a chain novel. This means that he will follow the main direction of the law
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as pointed out by statutes and precedents. When the law runs out, he relies on principles, which are also
part of the law. Throughout his writing, the judge is always guided by the main guidelines of his chain
novel, which is to treat law as integrity.
The judge also must treat law as literature. This means that the judge must strive to achieve the highest
and most intellectual and artistic interpretation of the law that he possibly can achieve. He must know that
law is argument, appreciate the point that the lawyers before him are arguing for the best moral
interpretation, i.e. what is morally best for the client as well as for society. If the judge follows these
guidelines then he would truly observe and respect law as integrity and society itself would progress and
achieve common benefit for all members.
Reference can be made to cases such as Airedale NHS Trust v Bland where Hoffman LJ commented
that this case was to be decided entirely on principles because no law was applicable. The House of
Lords adopted the same approach, which was to balance the principles in favor or against protecting
Bland’s life. Bland has right to life under Article 2 of European Convention on Human Rights. One
would submit that life is sacred, thus to take a human’s life is a crime (homicide). The Court as the
guardian of infants and mental patients ought to protect the weak and helpless. However there were
principles against Bland such as Bland’s life has no human value as per Lord Brown-Wilkinson who
considered him as ‘an empty shell of a man’. The law recognizes the right to take human life for example
in wartime, self-defense and suicide.
The principle of self-determination (legal principle) says that a person has the right to live the way he
wishes or to end his life if he so wishes. The wishes of the family members must be taken into account
especially whether they would be affected by Bland’s continued existence. Bland’s family including his
mother had indicated that they were very upset to see Bland in his pathetic condition. Morally speaking it
would not be wrong to accommodate Bland’s wishes if he could speak for himself to the effect that of
course he wishes to die because to carry on living in his condition serves no purpose except to impose a
burden on his family, his doctors and the society in general. Therefore on a balance of principles it would
be a correct decision to permit Bland to die by withdrawing his life-sustaining treatment. Thus a
consideration of principles would lead us to the moral decision by the courts.
The case of Re A (CA 2000) is on the Manchester Conjoined Twins. It was held to be lawful to operate
and thereby kill one of the twins because of the defense of necessity. Ward LJ said on balancing each of
the twin’s interests they are actually balancing their rights: Jodie’s right to life against Mary’s right to life.
The right to life is under Article 2 of ECHR. We are upholding Jodie’s right (better life) because Mary is
parasitic on Jodie. Jodie cannot maintain the two of them. Mary has no vital organs. On balancing the
two, Mary has a lesser life to live. Jodie can carry on living at least for 12 years if she goes through the
operation. Mary cannot survive on her own since her life span is only 5 months if not operated.
The parents in this case objected on religious grounds, what God gave let God take away. Thus we
should let nature decide. This alternative was not accepted or considered in the court (very little
recognition was given). The parents could petition to ECHR and once ECHR makes a ruling or
declaration, United Kingdom must follow. But the parents did not want to go through another trauma of
another proceeding. They were poor too. This case was decided on rights. Mary had a right to life but
Jodie has a better right to life.
Another illustration would be the case of Diane Pretty’s Case (2001) or R v DPP (Pretty). Diane was a
terminally ill person and could not live longer than 5 months. She was paralyzed from the neck down. She
could speak and think, i.e. she was of sound mind. She said she wanted to die with dignity. She applied
to the Attorney General for a declaration that it would be lawful for her husband to assist her in dying and
that he would not be charged under S.2 (1) of Suicide Act 1961, i.e. aiding and abetting suicide is an
offence. The Court of Appeal rejected and the case went up to the House of Lords where Lord Steyn
says that as there is no right to die with dignity under Articles 2, 3, 8, and 9 of ECHR, Miss Pretty’s right
not to be discriminated against under Article 14 have not been infringed and therefore her appeal is
dismissed. Her case does not fall under any of the Articles and terefore she is not entitled to a remedy. In
the case of Botta v Italy (1998) if one’s right is not infringed one cannot say that one is discriminated
against.S. 2(1) of Suicide Act 1961 was enacted to protect people like Ms. Pretty who are in a vulnerable
position and therefore they may not be able to decide for themselves. The Criminal Law applies to
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everyone thus there is no discrimination against her. No judicial review is available in this case as when
the AG refuses, one cannot ask for judicial review as per R v DPP, exparte Kebilene. The AG has no
power to amend or suspend the law, only Parliament can do so and here Lord Steyn referred to The Bill
of Rights 1689. The judge applied the law very strictly.
Contrast the above case with Re B (2002) where Dame Elizabeth Butler Sloss in the High Court made a
declaration that Ms.B had the right to decide when she wanted to die (principle of self-determination). She
further held that it would not be an offence under S.2 (1) Suicide Act 1961 thus her husband can switch
off the ventilating machine.
In Diane Pretty v UK (ECHR 2002), the European Court decided that Diane Pretty could not seek
assistance to end her life. This would be an offence under English Law - Suicide Act 1961, S. 2(1). Her
rights under the ECHR were not infringed. By implication, the House of Lords decision was approved. By
coincidence Ms.B ended her life with her husband’s assistance at the time the judgment was made by the
European Court. This right was denied to Ms. Pretty. What should the correct law be? The ‘laws on
assisted dying’ in the UK are the most repressive in Europe as per Deborah Annetts who is the Director
of The Voluntary Euthanasia Society. Can we argue for the best moral interpretation? Or is the law as it
stands to be recognized as the correct law? Was the decision based on principle or policy? This would be
a decision based on policy. Lord Steyn seems to be arguing based on principle but decided otherwise.
He was not looking at the individual person before him but he was looking at the law.
There was no integrity in this case whether it was the courts or the ECHR.
Why the Law is Just

© Stephen Guest. Professor of Legal Philosophy, University College London.
Inaugural lecture delivered 18th January, 2000.
I can’t and would not attempt ever to convince you there aren’t unjust laws. There are. But I think that
unjust laws are, themselves, laws only in a secondary and unimportant sense. I think this way of thinking
about law would improve the way we use law – amazingly – to justify taking money away from people,
putting them in prison, removing their children, distributing their property after death, and so on. It follows
that my argument will not focus exclusively on the uses we just now happen to make of the word ‘law’. In
any case, these might reflect wrong understandings about law or, more likely, lazily mark acceptance of
ways others have expressed their understandings.
In the film Crocodile Dundee, the hero, Mick, is confronted in New York by a Lower East Side hooligan
who pulls a flick-knife on him in a dark alley. ‘Call that a knife?’ mocks Mick, as he pulls out a huge Bowie
knife, almost a foot long. Although it’s unlikely that the hooligan had studied philosophy, if he had, he
might have said: ‘The necessary and sufficient conditions of the truth of the proposition that this thing I
hold in my hand here is a knife are fulfilled. It has a handle and a cutting edge, and the fact that it
happens to be smaller than yours, is neither here nor there as to its being a knife.’
We can imagine Mick’s reply. We understood perfectly well what Mick said. He charged or loaded the
word ‘knife’ with a meaning that reflected its purpose in that context. The hooligan perfectly well
understood that, because he fled. To generalise from this, a charged meaning is one that achieves the
most from the circumstances. Mick is in potential danger, and ‘knife’ takes on the meaning, in this lower
East side context, of ‘that sort of knife, the pulling of which, wins fights. Other sorts of knives aren’t
properly called knives’.
You can see where I’m heading. Law is a ‘charged’ concept. Like Mick Dundee, we can say of unjust
laws ‘call that a ‘law’?!’ or, as we might have said, perhaps following Fuller, of the Nazi legal system, ‘call
that a ‘legal system’?!’
One answer to this seemingly simple point is that I’m really talking about what the law ought to be - as
though Mick Dundee were really saying ‘that tiddley thing oughtn’t to be called a ‘knife’. And, this
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argument might go, I can’t do that unless I have some idea of what law is. So I require an analytical
account of how we use the word ‘law’ and ‘law-related’ terms, which is quite separate from the purposes
to which law is put.
This theory, that the ‘is’ and the moral ‘ought’ of law are separate, is famously known as ‘legal positivism’,
from the idea that laws were identified by their having been posited by man alone. On the reasonable
assumption that men are often unjust, ‘positivism’ stood for the doctrine that it does not follow that if
something is law, it is, therefore, morally right. Indeed, positivists are keen on declaring that there is valid
law even when it is so thoroughly evil that it would be morally wrong to conform to it. I should emphasise
the importance of the Nazi legal system example to positivists, for it establishes the meaning of the
separation of the ‘is’ and the moral ‘ought’ in the clearest possible way. Moreover, it is easy to concede
that Nazi law was law in some significant senses. There were courts, sort of, there was a law-making
body, sort of, and there was, in use, that vast array of normative language that the law uses – the
language of duty, or permission, or obligation, and so on – a language of very great power.
Nevertheless, there are, too, all sorts of obvious connections between law and justice. Indeed, as Hart,
the author of The Concept of Law, in which the classic statement of this theory of legal positivism is to be
found, said himself, justice was the most ‘peculiarly’ legal of all the moral virtues. And we might note the
following. There are Lord Justices and the Royal Courts of Justice. There are the various Criminal
Justice Acts and the Administration of Justice Act and the recent Access to Justice Act and the new
Youth Justice Act. There are Justices of the Peace who, in this country, decide over 95% of all criminal
cases. There are the scales of justice on top of many courtrooms throughout the world, including the Old
Bailey. Ministries of justice exist in many, many legal systems, and I’d be very surprised if the Lord
Chancellor’s Department here, thought that its function had little to do with justice. The judicial oaths in
all Anglo-American legal systems require the judge to administer, or do ‘justice’ in some form or another.
From all this it isn’t so unreasonable to conclude that people go to law to get justice.
Legal argument is also soaked with justice and its cognate ideas, in requirements, for example, that
people act with ‘just and reasonable cause’, or ‘fairly’, or ‘equitably’. The injustice of an ‘unjust
enrichment’ drives the development of the exploratory category of restitution law. The enrichment of
English law by Lord Denning was through his understanding of this sort of fact – that it was justice which
drove the conclusion in the famous High Trees case, or the Bundy case, or the outcomes in the various
dependants’ property cases. In our appraisal of many high profile decisions, it is normal to suppose that
their rightness or wrongness is in terms of whether such decisions are just, or unjust. And, of course, the
phrase ‘miscarriage of justice’ is undeniably part of public criticism of what judges and other legal officers
have done.
What the Nazi legal system ‘authorised’. With these connections between law and justice in mind, we
should now return to the Nazi legal system. If that legal system excelled at anything at all, it excelled at
being a legal system which, through and through, instituted practically every form of injustice which
human beings have ever devised. And so there must be at least a prima facie artificiality in legal
positivism’s account of law.
Let us contemplate the consequences of the positivistic way of thinking with a real example. The
Legislative Council of Ministers in Berlin, chaired by Hermann Goering issued, on December 4, 1941, the
‘Decree on Criminal Justice Regarding Poles and Jews in Incorporated Eastern Territories.’[1] S.1 made
it an offence for Poles and Jews, punishable by death, to quote, ‘if they demonstrated an anti-German
attitude through malicious acts’ such as ‘making anti-German remarks’ or ‘acting so as to lower the
prestige of the German people’. Many thousands of people met horrible deaths by virtue of this decree,
over a period of more than three years.
My response to this is straightforward. The legal discourse is charged. There was and is no meaningful
sense in which we can say these murders were authorised or justified. Killing people, using the ‘reason’
of this ‘law’, makes only the most trivial sense of the ideas of authorisation and justification, two ideas so
fundamental to law and so fundamental to morality. So, given the Hell of the Nazi experience, what could
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inspire us to give any sense to the idea that such punishment was authorised? In what sense could we
seriously say: this was evil but it was legally justified?
We can argue it as follows. Hitler’s cabinet had the legal powers of the German constitution, according to
the 1933 Enabling Act to do it. The Council of Ministers had the appropriate law-making powers
delegated to it by Hitler. And so, those people passing the death sentence in accordance with the Decree
of 1941 could say ‘I have a document here which ‘empowers’ me to do this. Look, here it has Goering’s
signature. And look – hey – its got the German eagle on it!’
I don’t believe it’s necessary for me to labour this obvious point. It wasn’t permitted at all. It was a scrap
of paper that signified nothing about how people were empowered to act. I can make the same point
about the unconvincing defence of the Nazi war criminals at the post-war trials. Nothing was being said,
by way of defence, when with reference to laws requiring and permitting terrible acts, a defendant would
say ‘what I was doing was authorised by laws in force at the time.’ This is not to deny there were other
defences, such having to do something out of necessity, or being duressed into it. Of course, it is
persuasive to say, in such circumstances, ‘I was scared out of my wits, for myself and my family, if I didn’t
do what I was told’. But an appeal to the fact that ‘I was legally authorised’ cuts no ice at all.
I conclude that a legal positivist has to show us why, in the real world, it would be useful to teach
ourselves to think that there is a sort of justification, in these cases. And, I think, Hart appreciated that his
own theory had to say why it was advantageous to think in this way. In Chapter 9 of The Concept of Law,
although not before, he confronts the question directly and concedes that the choice between possible
theories of law - those that include justice as a criterion of validity and those that do not - is not, to quote
him, ‘one concerning the proprieties of linguistic usage’.[2]
He then went on to make it quite clear that he thought that positivism enabled us to mark out a healthy
distance between ourselves and the demands of the state. He thought that if we viewed questions about
legal validity as something separate from our own moral judgements, we would thereby create a liberal
‘wedge’ between our moral conscience and those in power who were capable of abusing it. The great
merits of, to use his words, ‘clarity’ and ‘candour’ would be secured by viewing law this way, because it
would enable us better to confront the ‘official abuse of power’. To quote, he said that we ‘should
preserve the sense that the certification of something as legally valid is not conclusive of the question of
obedience...’[3] So Hart thought there was moral point in regarding, say, the Poles and Jews Decree, as
‘law’ quite independently of morality, because then we can confront it with our own separately justified
moral outrage. In a sense, it gives us a clear position of where we stand.
I conclude that attention to language - or as it is sometimes called, and differently understood as,
‘conceptual analysis’ - therefore doesn’t prevent us from saying that law is just. And I point to the fact that
Hart himself thought moral reasons determined how we should think of law. So let us confront moral
reasons for seeing whether thinking that the law is just serves a better purpose than thinking of the law in
a way that is clear and candid.
Positivists sometimes concede that there is a moral content to law in one sense, that where it has been
‘incorporated’ into law. But they say, too, that such morality is ‘internal’ to the law, that is to say, entirely
posited by those who do the incorporating. It derives its legal status, therefore, not because it engages
our convictions directly but simply because someone else has inserted it into the law, let us say, for our
benefit.
But putting it this way comes at a cost. What, for example, makes the law of restitution vital is its brute
engagement with genuine situations of injustice. Take the practical question of what to do where
someone makes a profit out of running a business without permission on another’s land. The interesting
question is not, directly, what a judge said, or posited, about whether some, or all, profits, should go to the
land-owner in the past. In all probability, no judge had said anything on the matter. The interesting
question, rather, is about the justice of such a payment. Again, where police act illegally to gather cogent
evidence in the course of a criminal investigation, the interesting point is directly whether it is fair to
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punish someone using such evidence. Or, we can take the question of whether a person who kills
another under extreme duress, - say, where a terrorist with a gun tells him to - should be convicted of
murder. The question is directly, again, whether it is morally right to send a person to prison for life in
such circumstances.
The kind of clarity and candour which is necessary to establish the liberal ‘wedge’ between citizen and
state that Hart was talking about, has little or no place in these fairly typical sorts of case. They each
require direct engagement with the justice of what the state, through its judges, is entitled, or has the
duty, to do. And, given this, it is not surprising that Hart relegated these sorts of arguments to the
periphery. He thought these cases were not the cutting edge of law, but the back end of the knife.
Such cases – the ones to which Ronald Dworkin drew our attention as ‘hard cases’
• are those in which lawyers centrally display their forensic skills in taking sides in what is accepted
by everyone to be a controversial matter. Such cases bring out the ‘argumentative’ side to
lawyers – their skills to argue for - as I’ve suggested sounds sensible - a just decision. These
skills, I believe, are integral to a good lawyer’s convictions and, for a large part, arise from their
innate, and then matured, sense of what is just.
So I urge an attitude here, an ‘argumentative attitude’ to law that unites both knowledge of law and a
commitment to it morally. This, I suggest, is what the fully formed ideal is of being ‘lawyerlike’. It urges a
seamless connection between those judgements lawyers make about what the law requires or allows,
and those moral judgements, of personal conviction, lawyers make about justice. The judicial role. All the
arguments I’ve so far touched upon introduce the idea of the judicial role, upon which all other legal
arguments depend, including those of the advocate, of the academic, and of the law student. The judge’s
role is to dispense justice, in the same way as the doctor’s role is to heal. The idea of a judge who
always dispenses injustice turns the idea of judging onto its head. It is therefore not surprising that the
overriding judicial discretion a judge has is not to allow his court to become an instrument of injustice.
The analogy with doctors supports this argument well. Take what the German medical doctors were
doing in the medical barracks at the Auschwitz concentration camp. They dispensed torture and death –
the opposite of healing
• under the guises of Aryan ‘purification’ and medical experimentation. It is easy to conclude that
this was bogus doctoring and frequently not-so-disguised sadism.
Martin Amis makes this point very graphically in his under-rated book Time’s Arrow. The camps were
about the worst of human nature, and the role of doctor had become a work of savagery. Amis concludes
that the only logical way to understand what happened is to assume, absurdly, that, somehow, Time had
started to go backwards. And so Auschwitz becomes a symbol of life-enhancement, the story of the
Auschwitz camp going backwards in time. The injection of poison by a doctor into a healthy person is
now the withdrawing of poison from a dead body, so restoring it to life. Smoke from surrounding
paddocks gently rises to the sky where it is gathered and inhaled through large funnels. After a fiery
process, newly formed but lifeless bodies are carried to chambers where death is sucked from them and
life restored. They are then showered, clothed, directed to waiting members of their families and sent
back, by a peculiar system of reversing trains to their homes all over Europe. This, Amis concludes, is
the only sense that can be made of such a monstrosity of justice and healing.
If we believe that legal judgements cannot directly engage our moral convictions, we lay the ground for an
undesirably detached form of judgement. If you are a judge, positivism erodes your understanding of the
judicial role.
If your moral attention doesn’t engage with your understanding of what the law is in hard cases, you are
more likely to look outside your own judgement as to what the law permits or requires. You are likely to
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succumb to the disease of unqualified deference to the judgements of others. And the sinister form of
that, as we’ve seen, lurks in the defence ‘I was only obeying orders.’
Don’t expect a set of guidelines! You’ll only get what someone else says, and that must be the wrong
way to deal with fundamental moral issues. No one thinks that it is a sufficient justification for taking a
moral position to say, ‘it was what I was told’, or ‘it is what other people think’. It can be a subsidiary
justification, as where we defer out of moral respect for others, but that employs moral respect, not what
others have said or thought. Like all of us, judges need to develop a conscious understanding of the
moral convictions they in fact hold. They might conclude, as a part of those convictions, that being
deferent, out of respect to some other institution, will often be the right thing to do. My point, though, is
that whether such deference is right, is a question that employs moral conviction.
Real justice is about real equality.
I now quite clearly need to tell you what I think justice is. That idea is concerned with that dimension of
morality that brings proportion, balance and distribution into our dealings with each other. I think it is
fundamentally about equality. I think, too, that by understanding equality properly we get insights into the
importance we attach to freedom, although it is not my plan here to tease out that particular connection
beyond a sketch. I think, too, that rules loom large in all accounts of law because they instantiate the
moral injunction that like cases be treated alike, so preserving justice’s concern with proportion.
Unfortunately, the idea of equality appears to clash with that of freedom. Equality makes people think of
bureaucratic, freedom-squashing levelled-down socialism. Freedom, on the other hand, makes people
think of an entrepreneurial freedom to exploit. And so people think, stereotypically, that equality and
freedom oppose each other.
But no one wants the ‘levelled down’ society. Nor, I believe, do any of us want a society in which we
must consider the psychological type of the entrepreneur a grade up from the rest of us. I think the
reconciliation of the ideas arises from a proper understanding of the meaning of equality.
We should first be aware of the comparative nature of equality, that idea of proportion or balance, to
which I referred. People aren’t just ‘equal’ but have to be ‘equal to’ or ‘equal with’ someone else. This
idea of comparison causes problems because, in obvious ways, thinking of human beings as ‘equal’ is
absurd. They are so very different. Some are big, some are idiots, some are truly horrible, yet others are
really, really, nice. Some are insane. John Minnoch of Washington State weighed over 30 stones.
Princess Pauline in the Guinness Book of Records was only 24 inches high. There are ugly people, nasty
people, atheists, rich people, beautiful people, wicked people, and a whole lot of people who have
absolutely no distinguishing feature at all. These reasons have made many reject equality as an ideal
altogether.
Jeremy Bentham – who was the founder of the utilitarian doctrines so widely used by governments
throughout the world today - firmly rejected basing equal rights physical difference, or circumstances. In
his work Anarchical Fallacies in 1795, he exclaimed that, if we really were to regard people as equal in
these sorts of way, it would follow that we would have to equate the sane with the insane. If we did that
equation, he said, to quote: ‘The madman has as good a right to confine anybody else, as anybody else
has to confine him. The idiot has as much right to govern everybody, as anybody has to govern him.’[4]
The obvious answer to Bentham’s objection is that what is common to all people is their humanity -
everyone is a human being - and it is that in respect of which each person is equal. Thinkers have
pointed out, however, that to say that we should treat all people in respect of their humanity is something
we can say perfectly well without any reference to equality. The moral injunction, in other words, is only
that you should treat people with the respect that humanity requires. ‘Equal’ adds nothing more, it is said,
than a reminder that it is all people, not just some, who are entitled to respect.
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Given this criticism, we can try to give a more substantial account of equality by judging the worth of a
person’s life and then employ equality’s comparative idea. We would compare the worth of one person’s
life with the worth of another’s say, by comparing people’s happiness or even just how much money they
have. We compare proposed government policies and then say: ‘this is the better policy from the point of
view of equality because it will bring about more equality than the other.’ In this way, we give an equality
content to the idea that ‘human beings should be treated with equal humanity’.
But trying to isolate a distinct moral principle of equality in the outcome for people of their overall feelings
of welfare, or their wealth, doesn’t work. If you compare two outcomes, say of well-being of differing
amounts between two individuals, or two groups, you discover that levelling people down satisfies the
equality requirement just as much as levelling them up. Bluntly, if half of the community is physically
disabled we can simply equalise matters by disabling the rest.
It follows, in my view, that if we are to hold fast to an ideal of equality, it cannot be to equality defined as
outcomes for people’s lives. I suggest, instead, that we need to know more about, not the outcome for a
person’s life, but how that person has been treated.
This approach to equality understands it as a relationship between ourselves and others. If we have
genuinely been treated with respect - if we have been treated fairly - then we don’t have a grievance
about justice. When I turn the focus this way, we see that equality is implied in the common sort of
complaint that goes ‘I’m a person, too’, or ‘Try to see it from my point of view’, or ‘Be fair to me.’ Seen this
way, I think, treating a person as an equal means ‘acting in a way in which at the forefront of your mind is
the fact that the other is, in some important aspect, equal to yourself’.
The direction of our attention this way preserves the idea that equality is comparative, by making the
comparison now between ourselves and someone else – and not between two people external to us. I
could usefully call this idea ‘first person equality’, to distinguish it from the equality of outcomes in
comparing second and third persons, or groups. But as it expresses what I think is the nerve of morality, I
call it ‘real’ equality. Real equality could not possibly allow leveling down by physically disabling people.
But it might allow leveling down on some occasions. For example, a community might be more equal in
my sense if it did without a racially segregated skating rink. And, in many cases, it would be reasonable
to assume a distribution of real equality from an initial survey that measured outcome equality. The point
I want to emphasise is that equality of outcomes cannot be the test of whether a person has been treated
with due moral concern, for only the deeper principle can decide that. The directness of the appeal that
others are ‘the same as me’ has a powerful intuitive hold on us. That intuition is powerfully expressed in
terms of equality because it means denying the Nietzschean, and then Aryan-nazi morality of grading
people. Real equality prevents the mistaken and unpleasant way of supposing that because people differ
in their characteristics they can be distinguished in terms of those less or more deserving of humane
treatment. Essentially, equality as I’ve characterised it, is a principle of empathy.
Perhaps the brute sentiment of what I’ve expressed more formally is contained in the idea of ‘he who is
without sin, should cast the first stone.’ As I’ve said, the test of treating another as an equal is to put you
in their position. You then understand that others are not ‘higher’ or ‘lower’ grade people, merely because
they have or lack certain qualities, or their personal circumstances are different. You can have contempt
for others’ dispositions, tastes, actions, omissions and styles, but not contempt for the person in whom
these dispositions, tastes, and so on reside.
Although it is not strictly necessary for my overall point, I should make a short remark about what I think
are the characteristics of the object of our empathy. I think that it means recognising the other as a self-
initiator of action, as having its own will. It also means, I think, recognising another as a being that can
suffer in a number of ways through physical pain, and through pain’s psychic cognates, such as hunger
and frustration. Important to these considerations is the idea of self-sovereignty, or self-initiation directing
a - perhaps very limited – conscious plan for the future.
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We well understand what pain is, what it is to be frustrated, and particularly that state where we are
unable to establish ourselves in a way that marks us out as our own. And, it is in this ability to understand
the other in terms of their being able to initiate - or endorse - what marks out their life as their own, that, I
think, shows us how important freedom is. From that idea, I think, the richness of liberalism flows, in the
possibilities of diversity, cultural or otherwise, and what thinkers now call - often unclearly - moral
pluralism. But, as you can see, I derive freedom from equality and do not set it up in opposition.[5]
Democracy and the public and the private. You might note that the appeal I make here, is not quite an
appeal to rationality. I believe recognition of this point is more strongly asserted in the philosopher David
Hume than elsewhere and I concede that, in the end, you cannot appeal to more than this, and that some
people, such as Fred West, just do not see. Many feminists, though, identify this point in the idea of
‘caring for others’. However, I think that requirement is too psychological, and probably too self-indulgent,
for recognising another is more that just identifying a feeling in oneself. But caring’s general tenor is right
because of its identification of morality with directing people to the particularity, or uniqueness, of people.
This principle that we should treat others as our equals makes good sense of the public structure of
justice, and just institutions and, further, the distinction between our public and private duties.
First, we can’t personally look after every other single person by treating them as equals. In fact, our
treating people from their point of view will often require that we pay special attention to those people
immediately proximate to us. It is clear, too, that we have special duties towards our family, our friends,
our associates, or, in short, our neighbours, although those duties themselves require equality of respect.
This idea, I believe, best explains the famous neighbour principle in the law of tort first formulated by Lord
Atkin in 1932 in Donoghue v. Stevenson. We have duties to others not to omit to treat them as our
equals. That there are such circumstances of responsibility for omissions is supported by the intuitive
trust we have in the parable of the Good Samaritan.[6] The neighbour principle makes use of this idea
because it relies fundamentally on the test that who is your neighbour is not the person whom you
actually thought would be affected by your act. It is, instead, the person whom you ought reasonably
have contemplated. So, when you breach that duty, liability is imposed for your omission to act properly.
But personal liability ceases just out of reasonable contemplation’s reach. We should not define that
point by a blunt standard such as what would prevent the courts from clogging up with too many litigants
seeking justice. Nor do I think we should define it by the even cruder yardstick of what judicial decision
would contribute most to the gross domestic product. Rather, I think, as I have argued, a person’s
liabilities are defined by respect to him, as a person, by duties that are just, fair, and reasonable to
impose upon him - in short, by considerations that take into account his own point of view.
Second, however, it is our ready perception of real equality in these personal relationships which
motivates our acceptance of a public structure of justice. At the point at which neighbourly proximity is
exceeded, the duty to treat others becomes a communal and public duty. We have a duty towards those
people who are not our neighbours in the important and significant sense that it is as though,
metaphorically, we had delegated that task to the communal institution of the state. It follows, I think,
that, if we take seriously the idea that we should treat others as our equals, we must also support a
political structure that imposes a duty on the state to treat all of its citizens as equals. That duty, like the
duty in tort, extends to a duty not to omit to treat its citizens as equals.
We can go further than this. If the state is, in the sense I’ve described, a metaphorical delegate for
treating people as equals, it must also follow that each of us has, as part of our own duty of equality, a
duty to ensure that the structure of delegation, the process of decision-making, as well as the decisions
themselves, are consistent with that duty. The closest we have got to a structure which expresses this
principle of delegation is, I believe, that of democracy. Respecting people as equals, with their own point
of view, with their own sense of what they wish to endorse in their own lives, will naturally result in a
political structure which respects the individual. Obvious ways in which we engineer that respect is by
recognising, in the idea of ‘one person, one vote’, that each person has an equal say in who becomes a
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public official. A lot follows, since official duties and powers will be justified derivatively from equality of
respect. So the democratic objection to hereditary powers is based upon the idea that it is wrong that
some people have a status that implies grading. And official powers will only extend as far as making
decisions consistent with treating people with equal respect. Fleshing out that idea has been, of course,
the often unrecognised background from arguments about the extent to which the public is entitled to
know things that the state knows, to arguments about the proper extension of the criminal law in limiting
people’s decisions about their private lives.
The judiciary. The argument from equality goes even further, I think. Equality grounds institutions that
are more appropriate to monitoring equality of respect than legislatures. I have in mind the judiciary.
Take, for example, the idea of judging as having meaning and force independently of any institutional
design
• as when a father acts as a judge in a dispute between his children, or someone judges the local
flower show. The father can’t resolve the dispute in favour of one child on the ground that he likes
that child better. The flower show judge can’t say that the prize goes to someone solely on the
ground that she is his wife. To judge means being impartial in that way that does not allow one of
the parties a special step – or grade - up. To do otherwise, I think, contradicts the requirement for
equality of respect that is fundamental to the idea of judging.
It is no different when a judge is part of the institution of the law. No judge of any sort will deny that it is
his duty to be fair and impartial. Nor will a legal judge say that the legal system of which he is an integral
part is systematically unjust. Therefore, if any institution morally coheres with democracy, in the sense in
which I’ve characterised it, it is the judiciary. It is not surprising, therefore, that in totalitarian regimes, or
regimes which are on the perilous slope towards them, we make criticisms that the judges are partial, or
that they have become ‘mouthpieces for the government.’ Sometimes we say they are ‘puppet judges’, or
run ‘kangaroo courts’, or, more generally, that they have ‘lost their independence’. These ideas are part
of what we mean by the corruption of the judiciary. Looked at in the ideal, the judiciary derives its moral
legitimacy from the same equality source as legislation. I think it follows that there is an argument for
saying that judges can, in principle, assess whether legislation meets the test of equality of respect. But
there is an argument from the real world, too. There is good evidence that majorities have an inbuilt
tendency to bully – what John Stuart Mill called the ‘tyranny of the majority’. Then, we might ask simply,
which body is the best one, empirically speaking, for determining whether legislation meets the equality
test? The elected body that enacted it and which has therefore already submerged the minority point of
view? I’m afraid that cannot be a foregone conclusion. The Council of Bishops? The National Union of
Journalists? The East Cheam Conservative Club?
The following sounds more promising: an institution whose direct responsibility is, and always has been,
to the ideal of acting impartially in considering the point of view of a person who has come to ‘get justice’.
Empirically, it seems to me, the judges win hands down. If so, the argument that judges shouldn’t make
judgements about flawed legislation because they aren’t elected can be completely turned around.
Considerations drawing from the real world might now compel us to say that it follows from properly
understood equality of respect that democracy requires that judges not be elected. Real equality is what
rule following is about. I need now to bring together my claims that justice is integral to law and that
equality is integral to justice. I’ll do this by saying that I think that rules, which are clearly integral to law,
express equality, by applying a moral principle of treating like cases alike.
When taxed by Fuller that justice was integral to law, Hart answered by drawing a distinction between
‘formal’ and ‘substantive’ justice. Rule following, he said, was integral to law, and the idea of ‘treating like
cases alike’ belonged to both justice and rule following. This idea, of treating like cases alike, was part of
the idea of justice, true, but only the formal part, which was not real justice. Formal justice was, he said,
‘compatible with great iniquity’ as where, in apartheid South Africa, judges would stick to the formal
requirement of treating like cases alike, by applying the appropriate rules to blacks and then the
appropriate rules to whites. So, Hart concluded, the apartheid law could be substantively unjust, which
was its significant failing, but formally just.
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I can’t accept Hart’s argument. With his example of apartheid, he only uses the irrelevant distinctions of
being black and being white. This part employment of irrelevance is necessary to make his argument
compatible with his saying that there was rule following at all in South Africa. If Hart hadn’t specified any
likeness at all between people, he would have ended up without rules at all, only arbitrary, singular,
particularistic directions. Put another way, to say that rules apply to people is to recognise people as
equals in some, admittedly rather unspecified, sense. But when we say ‘thousands died in an earthquake
in Turkey’ our use of the numerical term implies our acceptance that the differences between people in a
tragedy like this are irrelevant. It would be quite different if we said ‘532 politicians and high-ranking
military personnel’ died and then, as an afterthought, said ‘and quite a few thousand peasants’.
Or, to use the example Hart uses himself, from Huckleberry Finn: when Aunt Sally asked Huck if the
explosion of a steamboat boiler had hurt anyone, he replied ‘No, ma’am. It killed a nigger’, to which she
replied ‘Well it’s lucky because sometimes people get hurt.’ In really terrible situations, this way of talking
degenerates utterly, to the point where people are characterised without even their most basic spatio-
temporal identities. Anatoli, in his great book Babi Yar, an account of life during the German occupation
of Kiev during the second world war, described how the Ukrainian police would refer to prisoners
condemned to death as ‘shapes’ or ‘shadows’. We are also too familiar with the description of human
beings as black or white ‘trash’.
A general way of putting this point is to say that we cannot discover what ‘treating like cases alike’
amounts to unless we first choose some way of identifying what treating like cases alike means. For law,
given the moral reasons I’ve put for saying that we should think of the law as just, I think the meaning is to
be found in the idea of real equality. This general point about rule following was brilliantly put by the
German philosopher Wittgenstein. How do we discover the rule by virtue of which we continue the series
2, 4, 6 ...? We don’t find it by just looking at the pattern, for any number or symbol (or nothing) could
follow the number six. The series could be 2, 4, 6, 8, 10, 12 …but it could equally be 2, 4, 6, 2, 4, 6 ... or
2, 4, 6, 6, 4, 2 ...We don’t know, until we’ve identified the principle which directs further application of the
rule, and its identity is not apparent just from looking. Many black letter lawyers make the mistake of
assuming that, by looking - by only looking - at the pattern, will they find the right application somehow
presented to them. The result must frequently be arbitrary, and, therefore, unjust. Or somehow the
lawyer intuits the answer but fixes the justification in some unrule-like explanation that, for example, the
answer is one of ‘public policy’.
I believe that, for law, the subject matter of which is the directing and empowering of people, the ideas of
real equality and rule following are closely connected. In one direction, impartial concerns determine the
rule-like quality of law. In the other direction, the rule-like quality of law shows an analytical connection
between the concept of law and what I’ve called the nerve of morality. The more rule-like is the law, the
less it instantiates the callous unconcern of deferential grading and the drawing of arbitrary distinctions.
I’m sure that Fuller was groping for this point when he said that evil aims – and he had here in mind the
Nazi legal system – ‘lacked an inner logic’. To be put in its place, he thought, was a set of principles
defining a clear ‘consistency in dealing’ between the state and its citizens. And although I don’t think
Fuller went far enough in specifying the correct conditions of justice in equality, one can discern a
reference to humanity’s requirements of communication of intention, or advance notice, or fairness in
treatment, in his account.
It is, too, in the set of ideas that emerge from equality, properly understood, that I think the appeal of the
ideal of the ‘rule of law’ lies. This is not the seemingly uni-directional, austere and iron-like sign it is often
taken to be.
It is more human than that, and communal in concept. It is the idea that each person is to be treated as a
person in his or her own right, equally deserving of dignity and respect, and that no person is either
outside the law, nor above the reach of the law.
Equality’s distribution of decision-making. Now, a complication I’ve so far left untouched – on purpose,
because it is not in conflict with what I’ve argued to be the fundamental moral principle behind law -
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concerns other aspects of rules, and the direction they can give. I’ve focused so far exclusively on the
idea that real equality is the major determinant of the content of rules. I’ve done that because I think that
too much jurisprudence focuses on the narrower issues raised within an assumption that law’s existence
is a foregone conclusion, one of historical fact. I’ve sought a more abstract account in terms of the
fundamental motivating force of justice. However, although the thrust of my lecture has been to establish
equality as the background force, that principle is often submerged beneath surface considerations. This
is because the structure of justice requires a distribution to officials of the power to make decisions about
equality.
We should be clear that the democratic principle means: that the legislature has acted, itself instantiates
equality, since the weight of the democratic majority requires great deference to what the legislature has
done. Nevertheless, the legislature can only have the right to act within the perimeter fence set by
justice’s requirement of equality of respect. So the legislature has the right that we assume to a high
threshold that what it did was within those perimeters. That must be what we mean by the legislature’s
right to pass legislation. If the judiciary is to be at all deferential, it is to be deferential to that ideal, but it
should be, too, in the realisation that that ideal is itself an elaboration of the principle of equality. Of
course, judges should follow statutes, but it means that where there is a difficulty of interpretation, the
right interpretation will be that which best instantiates the requirement of justice. In clear cases, in other
words, where the breach with equality is stark and obvious – for example, where the legislature abolished
the right to vote – then the judiciary must, in principle, have the power and duty to say that such
legislation is invalid. I’ll make a similar point about the common law, for the judiciary holds the distributed
power to decide what is just, but duly deferential in the way I just described. This way of understanding
matters makes what judges do much clearer.
It will mean that sometimes, in breach of equality at a less fundamental level, a judge might have the
duty, in deference, to follow a bad precedent set by a higher court.
The judge interprets the previous cases in other ways, equality, however, again being the driving force.
There is, for example, the commonly invoked and important principle of certainty. This principle, however,
like the increasingly recognised principle of proportionality, and, incidentally, as I’ve argued, equality of
outcomes, means nothing unless the moral principle behind it is spelled out. Being certain that you will
be treated unfairly is as certain as the certainty that you will be treated fairly. Being treated in proportion
to what you did is consistent with treating you proportionately the other way from what you’d expect, say,
for example, where punishments become greater the less serious the offence.
But certainty does make sense when we see it as a way of treating people as equals. If people are led to
believe that they will be treated in a particular kind of way, then treating them fairly might require that they
be treated that way. This is the basis of what lawyers call the ‘reasonable expectation’ principle. That
principle underlay the case of Lloyd’s Bank v. Bundy. A trusting old man, concerned for his son’s
business, put full trust in his bank to give him advice as to whether it was wise for him to raise money to
lend to his son against the security of his own farm. There was, perhaps, an element of duress, and
perhaps a conflict of interest on the part of the bank. But the money was handed over, the son’s business
failed, and the old man was faced with the forced sale of his farm. From the bank’s point of view, there
was a reasonable expectation that its money would be secured according to securities law. But, if I’m
right about equality, Bundy’s point of view is in competition with that, and so certainty could not be a
foregone conclusion, although it weighed heavily.
It is also a generally under-recognised point that judges pick the brains and borrow the perceptions of
other judges. Certainty is often not an issue in such cases, particularly those cases lacking a property
element. Frequently, I think, the judge understands the previous law as an already morally worked-out
example, in much the way that a scientist will build upon other scientific experiments. The previous judge
has dealt with a similar sort of case and the instant judge wants to borrow from that other judge’s
experience and moral perception. This is natural and, indeed, economically wise, for it saves a great deal
of time. It explains the attractiveness, indeed relief, in finding a case in the reports in which the facts are
almost the same as your client’s.
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You can now see the way to argue it from what has gone on in that case. You don’t have to assume it
states the law, just that the participants in argument in the case have been through this sort of thing
before. You now use their research and judgement to make your own judgement as to what equality
requires.
This rather straightforward way of using precedents to produce arguments explains why ‘persuasive’
precedents - that is, precedents that the judges supposedly don’t have to follow - are so important. The
fact that this happens only obviously when judges refer to cases outside jurisdiction, should not hide this
prominent use of jurisdictional precedents. Here, Blackstone’s much derided reference to the
‘accumulated wisdom and tradition’ of the common law makes a lot of sense.
Above all, though, I want to emphasise real equality as a direct driving force in interpreting the common
law. It should be in all of the truly innovative cases. X can’t argue for the same treatment as Y, if Y was
treated wrongly.
Moreover, he can’t argue that he should be treated the same as Y, if Y was treated rightly, for there is no
need. He can simply make the direct claim that he should be treated as an equal.
The implication for judging is that it means there is no justification for following precedents blindly.
Popularly, that means that the merits of each case should be considered and exceptions should be
understood as either more precise, or more economically expressed, applications of the rule. Mercy
therefore won’t temper justice but, instead, be part of justice. The idea that justice and humanity can
conflict, therefore, completely disappears. For, if mercy really is required in order to treat someone as a
person, justice should have taken account of that fact.
This point makes practical sense. In R. v. Dudley & Stephens, in terrible conditions of deprivation, the
defendants killed and ate the cabin boy of the ship which had sunk leaving them together in a lifeboat.
They were convicted of murder, but their life sentences were commuted by pardon because, clearly,
these were extreme circumstances.
Why this elaborate way of doing things? Why say ‘justice required conviction’ but ‘mercy’ required a
pardon? It shows, I think, a basic misunderstanding of the nature of both law and morality to suppose
that one might say ‘but that would mean the English law allows people to eat people’. Of course not.
This was a truly exceptional set of circumstances, and one which, if we think humanely, meaning - from
the points of view of the defendants, as like us - we can understand. This means, not that there is an
exception to ‘the rule’ about murder, but that, properly understood, the rule prohibiting murder does not
extend to the sorts of circumstances in which Dudley and Stephens found themselves.
Conclusion
I must now wind up this long and abstract story. I have argued that neither the way we happen to talk,
nor advantages of clarity and candour about ways in which the state manipulates its huge coercive
powers, are sufficient reasons for submerging our direct engagement, as lawyers, in questions of justice.
I’ve also argued that, as the nerve centre of morality, equality drives our structures of justice in a way that
makes sense of the fact that law is primarily a rule-centred activity.
I think two things follow from my account. First, that we should face disagreements arising in the long
running debate between the legal positivists and their critics, primarily as disagreements about moral
merits. Too many positivists shy from expressing first-order moral judgements in their theorising about
law. Perhaps many sense the undesirability of a perceived subjectivity of it all. They might want to say
‘adding a charge to language’ adds no more than a kind of ‘feel’ to it, which lacks objectivity. But I think
that wondering how knowledge is possible about moral perception is a pointless exercise in this field. No
theory of morality will convince me, for example, that torturing children is permissible. I feel that
epistemological worry here is a little like thinking that because the thermos flask doesn’t know when to
keep things hot and when to keep them cold, it follows that things in the thermos can’t be hot or cold.
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Finally, I think that judges determine all things legally valid, and their decisions, therefore, create the
subject-matter for the lawyers, and all that goes on in law schools. I therefore think that judges, above all,
can’t do their job properly unless they are prepared to join their convictions about morality, about
democracy, and, above all about justice, to the decisions about how we are all to live as equals.
[1] Reichsgesetzblat (1941), I, 759
[2] ‘Plainly we cannot grapple with this issue if we see it as one concerning the proprieties of linguistic
nd
usage.’ The Concept of Law, 2 ed. p.209. Compare this with what he says in the Preface about the
importance of examining ‘standard uses of relevant expressions.’
[3] The Concept of Law, 2nd ed. p.210.
[4] Anarchical Fallacies in Waldron, ed. Nonsense Upon Stilts, p.51
[5] Paul Johnson in an article attacking my lecture wrote in The Spectator, 29 January 2000, that my
invocation of equality would encourage evil regimes such as that of Soviet communism. How? The
equality I clearly favour is not of lowered outcomes, nor disrespect. Ironically, given Johnson’s well-
known Catholicism, its contours are manifest in the New Testament.
[6] The Samaritan, incidentally, was considered of lower grade than the priest and the Levite, the
passers-by who omitted wrongly to assist the person who had been robbed. Fred McElrea reminded me
of this.
Can there be a requirement of morality in Land Law ?

A reading of the following article by Oliver Radley-Gardner on the implications of Mortgage Corporation
Services v. Shaire 2000 will be relevant.
Chargees and Family Property
Oliver Radley-Gardner,
College Lecturer, Pembroke and Somerville Colleges, Oxford.
Summary
The decision in The Mortgage Corporation v Silkin, The Mortgage Corporation v Shaire [2000] 1 FLR 973,
contains a thorough examination of the changes brought about by the Trusts of Land and Appointment of
Trustees Act 1996. It shows a shift in the balance between secured creditors and homeowners. After
initial doubts about the substantive effect of the Act, the case appears to support the view that the courts
have been equipped with a useful and more flexible tool to tailor outcomes to suit the particular facts of
the case. In so doing, the case suggests a workable practical solution to the problems arising from the
often simultaneous functions of family property as both a home and as an asset in commercial
transactions.
Introduction
“The conceptual framework supplied by the law of real property, and especially that of co-ownership
interests in land under the 1925 Law of Property Act, was not drafted to deal with the problems of a
modern-day owner-occupying population...Instead, it has been largely left to the judges to refashion a
conceptual framework devised in the early twentieth century to deal with problems created by the
demographics of the late twentieth century (Dewar, 330).”
As the author of this passage goes on to observe, the Trusts of Land and Appointment of Trustees Act
1996 is the one notable instance where Parliament has intervened. The effect of the Act was considered
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in the recent decision of Shaire, in the context of applications to order sale of the family home by a
mortgagee who has acquired only one of the co-owner’s beneficial interests. The case decided that
sections 14 and 15 of the 1996 Act give the court greater flexibility than they previously had under the
Law of Property Act 1925, s 30 when asked to exercise their discretion on such an application. Although
concerns have been raised concerning this approach (Pascoe, 315, 327-328) this note seeks to show
that Neuberger J’s application of the statute is not only in line with expectations, but also to be
(cautiously) welcomed.
Nature of the Problem

Domestic property is both a home and an asset. As a home, frequently financed by a mortgage, its
function is to provide a stable and reasonably permanent base for the family. As an asset, the house
represents much of the co-owner’s capital, is used as security for loans and is targeted by creditors as the
most permanent and easily identifiable asset of the debtor. This duality of family property lies at the heart
of many of the problems with which courts are faced in this context. Disputes between those interested in
occupying the home and those interested in its cash value alone generally fall into three categories:
Disputes between the co-owners themselves, usually where one of the co-owners wishes to sell up and
move on while the other party wishes to remain in the home (with a special regime on divorce: see Smith
pp301-302 for an outline).
Applications by creditors who have acquired a beneficial interest from one of the co-owners. This might
arise where a creditor enforces a charging order against the judgment debtor’s beneficial interest, or
where one co-owner has fraudulently executed a mortgage of the jointly owned property of which the
other co-owner is unaware.
When a trustee in bankruptcy is appointed and, in pursuance of his statutory duty (Insolvency Act 1986, s
305(2)) seeks to sell the bankrupt’s share in the home in order to satisfy his creditors as soon as possible.
The Shaire case examines the relationships between these types of disputes under the new regime.
Shaire: The Facts
The case turns on the depressingly common occurrence of a fraudulent mortgage of the home by one co-
owner. Mr and Mrs Shaire, who were beneficial joint tenants of the matrimonial home subject to a
mortgage in favour of Abbey National, were divorced in 1987. As part of the divorce settlement, Mr Shaire
agreed to sell his share in the property to Mrs Shaire and one Mr Fox, with whom she had started a
relationship in 1986 and who had subsequently moved in with her. On the evidence, it was held that they
were intended to be joint owners of Mr Shaire’s interest. In total, Mrs Shaire had a 75% interest in the
house. In order to buy her ex-husband out, Mrs Shaire and Mr Fox took out a second mortgage with
Chase Manhattan. This second mortgage, over half the house, was considerably higher than the first,
reflecting the increase in the house’s value. The mortgage was applied roughly equally to three purposes:
to buy out Mr Shaire, to redeem the Abbey National mortgage and to provide funds. Mr Fox died in 1992.
It was subsequently discovered that he had fraudulently taken out two more mortgages, forging Mrs
Shaire’s signature on the relevant documents. Mrs Shaire had no knowledge of their existence. The first
mortgage was in 1988 with First National Bank, the money from which Mr Fox used personally. In 1990, a
second mortgage was taken out with the claimant, TMC, with which the Chase and FNB mortgagees
were redeemed. Mr Fox spent the surplus.
Mrs Shaire denied any direct liability under the TMC mortgage, which was held by the court to bind only
Mr Fox’s 25% share. She did agree, however, that she was indirectly liable to TMC, in that the TMC
mortgage had been used to pay off the Chase mortgage. TMC was subrogated to the Chase mortgage to
the extent of Mrs Shaire’s beneficial interest, that is, 75%. TMC brought separate actions against its own
(Silkin) and Mrs Shaire’s solicitors, however these were not in dispute in the present case.
Shaire: The Decision

Neuberger J was faced with the following question: Should the property be sold to satisfy the innocent
mortgagee, retained in order to provide a home for Mrs Shaire, or could some intermediate ground be
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found? To answer this question, he had to decide whether the 1996 Act had changed the law relating to
disputes between creditors and homeowners.
The Old Law

As a starting point, it may be useful to briefly consider the way in which the caselaw under the Law of
Property Act 1925, s 30 developed. The section provided that ‘any person interested’ under a trust for
sale ‘may apply...for an order directing the trustees for sale to give effect thereto, and the court may make
such an order as the court thinks fit’. This statutory regime originally applied equally to applications by co-
owners, secured creditors or trustees in bankruptcy. With regard to disputes between co-owners, the
courts had developed a settled approach, which allowed them to mitigate substantially the hardships that
could arise from an application of the strict logic of the trust for sale. This approach entailed finding a
“collateral” or “secondary purpose”, which allowed them to rebut the statutory presumption in favour of
sale.
The approach with regard to third party secured creditors who had become interested in the home was
much more uneven. Three separate approaches are discernible in the caselaw (see TSB Bank Plc v
Marshall, Marshall and Rodgers [1998] 2 FLR 769 (County Court)).
1. Sale ordered except in exceptional circumstances.

This is the terminology which seems to have been accepted by most commentators. This test was applied
where either a secured creditor or the trustee in bankruptcy of a beneficiary sought sale (see Megarry and
Wade 2000, para 9-069, and the observations of Neuberger in Shaire at 986-987). Under this approach,
the collateral purpose doctrine applied as between the co-owners while they were still joint owners and
joint occupiers. However as soon as joint ownership was interrupted by alienation of a share in the
beneficial interest by one of the parties, the collateral purpose became irrelevant. The party resisting sale
had to point to an exceptional circumstance instead. The courts took an extremely restrictive view of what
amounted to an exceptional circumstance, so that such discretion as there was, was exercised within a
very narrow compass (for a recent account of the cases, see Miller 1999). The reason for treating these
claimants in the same way apparently rested on the assumption that the commercial hardship suffered by
secured creditors and unsecured creditors claiming through the trustee in bankruptcy could be equated.
The inability to liquidate their securities could have potentially the same deleterious consequences for
mortgage lenders (and their shareholders) as for other creditors.
2. Subsisting collateral or secondary purpose.

A second approach, expressed most clearly in Peter Gibson LJ’s judgment in Abbey National v Moss
[1994] 2 FCR 587 at 597-598, sought to put a secured creditor in the same position as the co-owner from
whom he had derived his beneficial interest. This approach was, of course, more favourable to the
occupant who was resisting sale, who had only to demonstrate a subsisting collateral purpose which did
not in any way have to be exceptional. Essentially, this approach seems to rest entirely upon the nemo
dat quod non habet principle (ibid. 597: ‘The assignee cannot normally be in a better position than the
assignor’). If the original co-owner was bound by a collateral purpose, then, so long as the act of
alienation did not end that purpose, the third party to whom the beneficial interest was transferred was
equally bound. This second approach gave rather greater protection to occupiers than the first. However,
whatever its merits, it is doubtful that this application of the collateral purpose doctrine to all cases
reflected the law as it stood.
3. Discretion to do justice in the case in hand.

Finally, there were some judicial pronouncements which, explicitly or by implication, supported a
discretionary approach when dealing with applications under section 30. According to this approach the
court could “look into all the circumstances of the case and consider whether or not...it is right and proper
that such an order shall be made”. Despite isolated pronouncements in favour of such a discretion, this
approach was never seriously adopted by the courts. The Court of Appeal explicitly rejected it in Bankers
Trust Co v Namdar [1997] EGCS 20, acknowledging that the weight of authority was against it.
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The courts’ lack of discretion extended to the form of the final order made. It could either order or refuse
sale. Any orders beyond this were only permissible to the extent that they were ancillary to an order for
sale (Law Com No 181, at para 12.4; Dennis v McDonald [1982] Fam. 63 at 73). Thus even if the courts
had been granted a wide discretion, they would have lacked the remedial powers to make full use of it.
The effect of the Trusts of Land and Appointment of Trustees Act 1996
Had the old law applied in the Shaire case, it is clear that Mrs Shaire would almost certainly have failed in
her claim as there were no exceptional circumstances evident. There was some authority that the old law
should still apply. This was based on the functional similarity of the Law of Property Act 1925, s 30 and
section 14 of the 1996 Act, (TSB Bank Plc v Marshall, Marshall and Rodgers [1998] 2 FLR 769). This
view was rejected by Neuberger J. He gave a number of reasons for so doing (Shaire, 988-990) which
can be grouped under two headings:
Legislative intent. Neuberger J first considered whether Parliament had intended there to be a change in
the substantive law by the introduction of the 1996 Act, or whether its effect was merely to restate the
legal position as it stood. There were strong reasons for thinking the former. The Law Commission clearly
took the view that the legal position would be altered by the proposed reform, observing that their
proposals should ‘clear the way for a genuinely broad and flexible approach’ (Law Com No 181, para 12.5
and 13.6). It is also implicit in the scheme of the Act that some form of substantive change was intended.
Section 15 contains a non-exhaustive list of the sorts of factors which a court has to take into account
when faced with an application for sale. Furthermore, under section 15(1), the interests of a chargee (in
(d)) are to be given the same weight as those of minor children residing in the house (in © ). The
recognition of interests of children may itself have been a change in the law (Rawlings v Rawlings [1964]
P 398, 419, but compare Burke v Burke [1974] 1 WLR 1063, 1067), but the equation of their interests with
those of secured creditors was certainly a novel departure. Additionally, after 1996 an entirely separate
regime applied to applications for sale by trustees in bankruptcy (section 15(4) of the 1996 Act and the
Insolvency Act 1996, s 335A. Section 335(3) expressly limits the exceptional circumstances test to
disputes between occupying co-owners and trustees in bankruptcy). Taken together, this must be seen
as a clear indication that chargees are no longer to be equated with trustees in bankruptcy, but are
subject to the new and more flexible regime applying to disputes between co-owners.
Underlying policy. Finally, it is to be noticed that the shift in terminology, from “trust for sale” to “trust of
land”, itself implies a change in policy, a view for which Neuberger J cites academic and judicial support
(Megarry and Wade 2000, para 9-064; Emmet 1999, para 22-035; Peter Gibson LJ’s obiter observation in
Banker’s Trusts Co v Namdar [1997] EGCS 20). The governing statutory scheme is no longer founded on
the premise that land is simply an investment, but also acknowledges that it can serve as a home. It
follows from this that the court needed to be equipped with new tools to give effect to this more realistic
policy (Law Com No 181, para 12.3).
This led Neuberger J to observe that as a consequence the old cases “have to be treated with caution, in
the light of the change in the law, and in many cases they are unlikely to be of great, let alone decisive,
assistance” (Shaire, 991).
The Balancing of the Various Interests

The new discretionary approach was described as follows: “Once the relevant factors to be taken into
account have been identified, it is a matter for the court as to what weight to give to each factor in a
particular case” (Shaire, 990). This acknowledges the fact that in these cases it is wrong to look for an
outright victor (In fact, Neuberger J was forced to make a ruling as to who had ‘won’ for the purposes of
costs, but was adamant that this had no bearing on any order he would be minded to make, were he
called upon to do so: ibid, 995-996). Correctly analysed, these cases deal with the conflicting interests of
two innocent parties, both the victim of fraud. The role of the court is to safeguard all of the parties’
interests as far as possible.
Neuberger J clearly set out the grounds which led him to his conclusion on the facts before him (ibid. 992-
992). First, the factors relevant to the section 14 application for sale were given in sections 15(1) and (3).
Two of these were relevant. TMC’s interest under section 15(1)(d) was plainly to have the property sold
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as soon as possible. Under section 15(3), the interest of the holder of the majority of the beneficial
interest, Mrs Shaire, was to retain the home.
Secondly, Neuberger J assessed the relative strengths of these criteria in the case at hand. Mrs Shaire’s
strongest argument was based on the fact that she had an emotional attachment to the house. It had
been her home for 25 years. Financially, its sale would not have resulted in great financial hardship. One
further argument raised against sale by Mrs Shaire, that TMC were at fault for not taking sufficient care
when granting the mortgage, was given short shrift by the court. Both parties were equally innocent, and
nothing would be gained by attempting to allocate fault in such circumstances.
TMC, on the other hand, had strong commercial arguments in favour of sale. The judge accepted their
argument that the house was substantially larger than Mrs Shaire needed and, even if her son moved in
with her, a much smaller house would have sufficed. Such a house could easily be bought with the
proceeds of sale of her 75% beneficial interest. Furthermore, as Mrs Shaire had no intention to sell her
house, TMC were tied into a 25% beneficial interest producing no income. Additionally, that beneficial
interest was itself vulnerable as there was no control over the maintenance or insurance of the house
except through the subrogated Chase Manhattan mortgage. This mortgage could, however, be redeemed
at any time. TMC contended that even if sale was not ordered, they were entitled to some form of
financial compensation for being kept out of occupation of the property. It was not clear on the evidence
whether Mrs Shaire had the means to make such payments. Neuberger J left this issue open.
The Order
Rather than imposing an order, Neuberger J instructed the parties to attempt to come to an arrangement
on the basis of his findings. This is understandable, as the precise financial position of Mrs Shaire, the
value of the house and the nature of the local housing market were not known to the court. It is also a
clear indication to future litigants that the courts will come to a conclusion based on common and
commercial sense which well advised parties ought to be able to anticipate. This resource-saving attitude
is entirely in line with one of the incidental objectives of the Law Commission reforms, to “assist in
encouraging settlements out of court” (Law Com WP No 94, para 10.9).
As a basis for negotiation, the court provided an outline of the type of order it would have been minded to
make. A brief examination of the proposed order, quite unlike any available under section 30, is
instructive. The starting point for Neuberger J was to recognise that TMC were “in the business of lending
on property” (Shaire, 994). Any order made had to reflect this, as anything else would have defeated
TMC’s needs entirely. The scheme therefore proposed was the following: TMC’s 25% share in the house
would be converted to a secured loan and added to the subrogated 75% Chase Manhattan mortgage.
Mrs Shaire would then be obliged to repay that loan at an appropriate rate of interest. In return she would
retain her house. As Neuberger J pointed out such an arrangement was entirely contingent upon the
ability of Mrs Shaire to make such payments. The judge made clear that if Mrs Shaire could not afford
these repayments or if TMC could not accept such terms, sale was the only option open. Given the value
of the house at issue and, unusually, the slight hardship this would have caused Mrs Shaire, this was an
acceptable last resort.
Evaluation
Although the fact-driven cases on the exercise of the court’s discretion under section 15 are likely to be at
most persuasive authorities, some broader strands of principle can be tentatively drawn from Neuberger
J’s judgment. When secured creditors apply for sale the asset/home dichotomy becomes acute. The
more sophisticated approach present in Shaire will allow the courts to identify cases where retention of
the home is both financially feasible and necessary with regard to the needs of, as a starting point, the
remaining co-owner occupants. The frequently unjust blanket bias towards sale is no longer apparent, in
that regard can be had to the welfare of the parties resisting sale where appropriate.
Underpinning the jurisdiction with regard to sale is a still a distinct but much more defensible
“commercialist bias”. A defending owner-occupier must be able to demonstrate the ability to make
appropriate payments under a restructured loan (potentially less favourable to the mortgagee than the
original agreement) before the courts will consider refusing sale. A survey of the old caselaw would
suggest that it will only infrequently be the case that this condition is satisfied. Clearly if there is no
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chance of the mortgagee receiving adequate recompense, sale is the only option, else the viability of
mortgage lending, itself socially desirable, is called into question (see too the not yet fully reported Bank
of Ireland Home Mortgages v Bell [2000] EGCS 151 (CA), which stresses the need to safeguard the
interests of lenders in this context). Even where payments could be made, a secured creditor can still
insist on sale, but only if it can be shown that this would result in no real hardship (as, for instance, in
Shaire, see above). The concern expressed about the effect of the judgment on mortgagees is therefore
somewhat overstated.
The decision will nonetheless be viewed nervously by mortgagees: secured creditors’ applications for
sale are not as certain to succeed as they were under section 30. Orders for sale will be unobtainable
where the co-owner, aside from being in a position to make payments, can also persuade the court that
sale will lead to real hardship. In these circumstances, commercial considerations must bow (albeit as
slightly as possible) to the welfare of the parties. It remains to be seen how “hardship” will compare with
the old “exceptional circumstances” test, however it must be a more generous concept on the
interpretation of the relevant provisions by Neuberger J.
This leads to the one potential difficulty with the judgment, in that lending institutions may now prefer to
bring their application in the context of bankruptcy proceedings. This is the category of dispute where the
“asset” aspect of family property remains paramount. Under the old law there was no difference in the test
applied on an application for sale by either a trustee in bankruptcy or a secured creditor. Although the
courts’ grounds for doing this have been noted, a further reason can also be given. Commonly, secured
creditors will seek the sale of the security only when there has been a default on payments. The reason
for that default on payments is frequently a cash flow problem on the part of the creditor immediately
preceding his insolvency. Secured creditors often used the section 30 route as a more direct method of
satisfying the debt rather than initiating bankruptcy proceedings (Wells 1998, 209). Often (as in Shaire
itself, see 985) the debtor is, in all but name, a bankrupt. It is certainly possible that, in future, secured
creditors will initiate bankruptcy proceedings when the time is right to ensure an almost certain sale,
instead of a taking their chances under a section 14 application, with its concern for the welfare of parties
whom it is practically possible to protect.
This would be regrettable, as it undermines the protection the 1996 Act provides. It is, however, an
inevitable consequence of the fact that in practice the same factual situation often offers these two
alternative routes with diverging aims. What some view as the commercialist bias of the law in this context
might therefore have merely been displaced, however the application of the 1996 Act by Neuberger J,
which dilutes this bias as much as possible outside the bankruptcy setting, gives a welcome but
necessarily imperfect glimpse of the practical reconciliation of the dual nature of family property.
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Utilitarianism
What is utilitarianism?
Utilitarianism is a goal-based theory, which evaluates actions in terms of their propensity to maximise goodness, however
this is defined. Hence, it takes the view that our conception of what is right depends on our conception of what is good,
since a right action is defined as one which produces more good than any alternative. So that only if a person has a
conception of what is good, can he or she have one of what is right?
We can distinguish three components in a utilitarian theory:

(a) A claim about what makes good states of affairs good and bad ones bad. Such a claim should yield a principle for
ranking states of affairs, so that one can tell which of any two given states of affairs is the better. This might be called
the evaluative component.
(b) A claim to the effect that the rightness or wrongs of an action depends on the consequences it produces. This might
be dubbed the consequentialist component.
(c) A claim about whom is to be considered when estimating what the likely consequences of an act will be. As feminists
tell us, it makes a great deal of difference if women are considered as well as men. But what about the rights of
children to have their interests taken into account? And as animal rights supporters remind us, it would make a great
deal of difference to our moral evaluations if we considered the interests of animals as seriously as we do those of
adults.
There is a great variety of utilitarian theories, the differences between which depend on the standard of evaluation that is
adopted, the precise way in which the rightness of an action is made to depend on its consequences, and the view taken
as to who counts. An overall structure of a utilitarian theory comes from Jeremy Bentham (1748-1832).
Bentham and the Utilitarians
Did this entail that, for the positivist, mankind was thrown upon a sea of conflicting moralities with no compass by which
he might legitimately choose to follow or reject these? If natural law was dethroned, could some scientific or rational
standard be found? Hume himself asserted that only utility could supply the answer, but it was left to Bentham to expound
in detail the significance and working of the principle of utility.
Bentham, though he gave credit to Priestly as “the first who taught my lips to pronounce this sacred truth”, gave currency
to its formulation as the principle of the greatest happiness of the greatest number, and sought to make himself the
Newton of the legal and moral world by establishing the principles of an experimental science governing that sphere.
The somewhat crude psychology of the Utilitarians, though plausible to contemporaries, has long been jettisoned, though
the notion of utility still plays an important role in the philosophical justification of ethics. Bentham was a profound thinker,
an acute social critic and an untiring campaigner for the reform of antiquated law, and he became and has indeed
remained, one of the cardinal influences on modern society. By rejecting both natural law and subjective values and
replacing these by standards based on human advantages, pleasures and satisfactions, he provided what may be, as
many think, an insufficient substitute for ethics or aesthetics, but was at least a valuable signpost by which men in society
might direct the external welfare of that society.
Bentham was mainly interested in law reform and he distinguished what he called censorial jurisprudence, or the science
of legislation, from expository jurisprudence. The latter was concerned with law as it is, without regard to its moral or
immoral character. The science of legislation, however, was for him really a branch of morals, being the principles upon
which men’s actions were to be directed to the greatest quantity of possible happiness by rules of a permanent kind, as
distinguished from private morals, which are directed only to oneself.
Bentham’s writings of expository jurisprudence became readily available only 30 years ago. It became apparent that these
are no mere appendage to the Bentham canon. Nor are they mere chips from which Austin was able to build. On the
contrary, there is little of Austin, or, indeed a century of later jurists, which is not foreseen in Bentham. It is apparent from
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Raz, for example that no subsequent writer developed a formal concept of a legal system with such ingenuity. No doubt
lawyers will still read Austin as the fount of nineteenth century positivism.
Attractions of utilitarianism
There are a number of things that make utilitarianism an attractive theory. As a committed critic of utilitarianism, Bernard
Williams points out that since it has no transcendental elements of the kind that, rightly or wrongly, may people associate
with natural law, it has an obvious appeal in a predominately secular society to those who are looking for amoral theory
which is rooted in human nature, and which makes no religious presuppositions. Moreover, it is hard to dispute that its
overall value, happiness, is something that people do value.
To this one might add that related attraction is that utilitarianism seems to be an individualistic theory, which tries to take
the well being of each person into account. In other words, it offers the possibility of combining a respect for individual
development with a concern for the public welfare, which is very attractive to liberals. Indeed, it might seem that it is no
more than the generalisation of a common sense conception of individual rationality. For, as Rawls points out, we
certainly regard it as rational for a man to maximise his interests setting his losses off against his gains. For instance, it
may be necessary for him to incur a short-term loss, in order to achieve the largest possible long-term gains.
We must stress again tat there are as many versions of utilitarianism as there are standards of evaluation; that it is
important to distinguish act-utilitarianism from indirect utilitarianism; that the respects in which utilitarianism has seemed to
be most objectionable to any of its critics have involved its treatment of rights and justice.
UTILITARIANISM – AN OUTLINE
JEREMY BENTHAM (1748-1832)
A. CENTRAL THEME
“Nature has placed mankind under the government of two sovereign masters – pains and pleasures”
The goal of law is utility – “the greatest happiness of the greatest number”
Quantitative comparison of the pleasures and pains is called the “Felicific Calculus”.
The measure of pleasures and pains depend on seven factors.
There are three components in a utilitarian theory:
(a) Consequential component.

(b) Evaluative component.
(c) Individual component.
There are three types of utilitarianism:
(a) Hedonistic.
(b) Act-utilitarianism.
(c) Rule-utilitarianism.
Utility must be the foundation of reasoning by a legislator.
B. FEATURES
1. PRINCIPLES OF UTILITY
It subjects everything to the elements of pain and pleasure. Every action has the inherent tendency to:
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(a) Produce benefit, goodness or happiness, such as riches, friendship, good reputation, power etc. In that case,
pleasure is considered at par with what is good (PLEASURE=GOOD=RIGHT). It approves of an action which not
only promote the happiness of an individual, but also maximizes his pleasures.
(b) Prevent mischief, pain or evil, such as, privation, fear, bad reputation, malevolence and the like. In that case, pain is
equated with evil (PAIN=EVIL=WRONG). It disapproves of an action which is not only against the happiness of an
individual, but also minimizes his pains.
2. MEASUREMENT OF PAIN AND PLEASURE

The rightness or wrongness of any human action is measured in terms of the following factors:
(a) Intensity.
(b) Duration.
(c) Certainty or uncertainty.
(d) Propinquity (speed) or remoteness.
(e) Fecundity (fruitfulness).
(f) Purity.
(g) Extent, ie those who are affected by it.
The measure of pleasures or pains depends on the above seven factors.
3. FELICIFIC CALCULUS
It is a quantitative comparison of the pleasures and pains, which are the likely consequences of an act. Pleasures and
pains are added up so as to ascertain whether the tendency of that act is good or bad.
4. COMPONENTS OF UTILITY THEORY

(a) CONSEQUENTIALISM
Its basic tenets are:
(i) The human conduct, whether it is good or bad, is to be judged by its consequences to the one who is
responsible for the act and others.
(ii) The law, whether it is good or bad is to be judged by its consequences to all the individuals in the society,
which may be present or future.
(iii) Individual pains and pleasures are to be measured for the consequences to individuals and one has to
strike a balance to see which outweighs the other. For instance, the actions of a sadist are condemned by
the utilitarian, because the pleasures of sadism are outweighed by its harmful consequences. This is the
principle of the felicific calculus.
(iv) While calculating this way, one individual pleasure or pain should be counted as no more and no less
than that of any other person.
The utilitarian theory is concerned with future consequences of an act and not the past happenings. For example, a
promise has to be kept because harmful consequences follow if the promise is not fulfilled.
The goal of law is utility, that is the consequence of law should be “the greatest happiness of the greatest number”. A
piece of legislation will be considered as desirable, beneficial and good, if the legislator can foresee its consequences that
it promotes the happiness and welfare of the greatest number in society.
The analysis of pains is made for two purposes:
(i) Social harm of a mischievous act.

Primary consequences
Secondary consequences
(ii) Kinds of sanctions
Physical or natural
Moral or popular
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Political or legal
Religious
Here, Bentham is of the view that since punishment is an artificial pain, it should be proportionate to the mischief sought to
be prevented.
CALCULATING CONSEQUENCES
There are three considerations in this regard:
(a) It is not possible to add up the pleasures and pains and put them in order of merit. Can we calculate which pleasure
is greater than the other?
(b) Since the consequences of an action are infinite, it is not possible to calculate them on the calculus.
(c) Since we have to take into account the interest of everyone so affected, there is no surety that the preferred result
would be a fair one.
J.J.C Smart considers these objections, and attempt to defend utilitarianism against them.
Here again there are three considerations.
The guiding force for every human action is the desire for maximizing happiness. Man always tries to find ways and
means of maximizing happiness and minimizing pain.
The pleasures and pains can be added up and weighed against each other on a felicific calculus.
While making this calculation, one pleasure or pain of an individual should not be counted as more or less than that of
any other.
STANDARD OF EVALUATION
Bentham’s theory of utility is called hedonism because it lays emphasis on pleasures and pains. But can we call all
pleasures as inherently good?
The next question is: For whom is the evaluation done? Whose interests should be taken into consideration? We have to
consider every individual whose interests are affected. We should not ignore anyone.
The functions of law should be achievement of happiness of the society. The law should also provide:
(a) Subsistence. One should put in his labour to get it, and the law cannot do anything directly.
(b) Abundance. There should be a surplus of goods.
(c) Equality. There should be equality in the distribution of wealth.
(d) Security. There should be security of property and contract or expectation.
The first three provisions are very much dependent on the fourth provision
C. TYPES OF UTILITARIANISM
(a) Hedonistic
Bentham’s theory of utility is called hedonistic because it emphasizes pains and pleasures. G.E.Moore says it can also be
called non-hedonistic. Other experiences like those of beauty and knowledge are also good in themselves, besides
pleasure or happiness.
(b) Act-utilitarianism
Bentham holds than act is right, if its consequences are good, ie it produces happiness and prosperity.
Moore calls it ideal act-utilitarianism. According to him, an act is right if in its consequences, it produces something of
intrinsic value like beauty or knowledge.
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(c) Rule-utilitarianism
An act is right if there is conformity to a rule that is generally followed and produces good consequences. Austin in this
regard observes: “Our rules should be fashioned on utility, our conduct on our rules.”
Rule-utilitarianism is of two types:
(i) Ideal rule-utilitarianism

It means we should regulate our actions by those rules, which if generally followed, would have the consequence of
maximizing the welfare.
(ii) Actual rule-utilitarianism

This means we should follow those rules which are actually accepted and followed, and would have the consequence of
maximizing utility.
D. CRITICISMS
1. The categories of 14 pleasures and 12 pains are too simple and crude in themselves. This has involved Bentham
in artificialities by forcing very complicated issues into two straight jackets.
2. It is not correct to say that the motivations for a man are only his senses of pain and pleasure. For some persons,
they often do things without thinking of the consequences. For others, the guiding force for their action is entirely
different. Martyrs, religious persons, suicide bombers, nationalists, terrorists etc.
3. Happiness is subjective and a matter of peace of mind for an individual. The outside factors which can be affected
by a legislator often has no direct concern with it.
4. It is not practicable to have a felicific calculus, that is a balancing of individual interests with communal welfare for
the following reasons:
It is not possible for a person to know all the consequences of a particular act, which may be immediate
or remote.
Pleasure or pain resulting from an action are indefinite. An action may result in immediate pain with a
future hope of happiness or immediate happiness with a future expectation of pain.
It is not possible to apply the felicific calculus because of so many variations. They vary from age to age,
class to class, race to race and state to state
Pleasures and pains of different people in the society cannot be measured or weighed against each
other. It is difficult to balance the pleasure of the majority against pains to the minority.
It is difficult to see how the prosperity or happiness of the majority increases the prosperity or happiness
of the society. Utility seems to equate majority with society as a whole.
The capacity of an individual to choose a particular course of action differs from individual to individual.
Consequently, the theory cannot assist the legislator because he does not know the necessities of an
individual.
What causes happiness may be fleeting or temporary in nature. This in turn makes the law uncertain if it
were to be premised on the desires of man.
5. There is no moral or ethical basis of the theory of utility. Bentham calls natural rights as “nonsense built upon
stilts” and rejects deontological ethics. According to him, the rightness or wrongness of an act is to be decided by
utility, and not by moral or public opinion.
6. The theory is also not concerned with principles of distribution. Everyone is to count for one and nobody for more
than one. The good citizen and the criminal are given equal status.
7. Rawls believes the theory is short-sighted and without vision. The theory, in its endeavour to satisfy the present
generation, may destroy the future generation. It goes against the “just-savings principle” advocated by John
Rawls.
8. The theory is premised on the idea that the law can operate on the “greatest happiness of the greatest number”
principle. This principle is untenable.
9. Russell’s criticism is: If every man pursues his own pleasure, how are we to secure that the legislator shall pursue
the pleasure of mankind in general?”
10. The theory places attention on consequences. However, social background and history are equally important
11. Hart’s criticisms in Essay in Jurisprudence and Philosophy may be summarized as follows:
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Individuals are important only so far as they are the channels or locations where what is of value is to be
found.
Individuals have no worth, because their value is not as persons but as “experiencers” of pain pleasure or
happiness.
The mere increase in total happiness does not take into consideration questions of distribution of
happiness, welfare and the like. The question arises: “Why should we treat is as a valuable moral goal?”
The question of a reasonable individual sacrificing present happiness for later satisfaction is not correct
because it considers an individual’s pleasure as replaceable by the greater pleasure of others.
12. See Dworkin’s argument in “Rights as trumps over utility”
UTILITARIANISM – A COMMENTARY
A. INTRODUCTION
The fundamental principle of Utilitarianism, a tradition in ethics stemming from the late 18 th and 19th-century English
philosophers and economists Jeremy Bentham and John Stuart Mill, is that an action is right if it tends to promote
happiness and wrong if it tends to promote the reverse of happiness – not just the happiness of the performer of the
action but that of everyone affected by it. Such a theory is in opposition to egoism, the view that a man should pursue his
own self-interest, even at the expense of others, and to any ethical theory that regards some acts or types of acts as right
or wrong independently of their consequences. Utilitarianism also differs from ethical theories that make the rightness or
wrongness of an act dependent upon the motive of the agent, for, according to Utilitarians, it is possible for the right thing
to be done from a bad motive.
B. THE NATURE OF UTILITARIANISM

Utilitarianism is an effort to provide an answer to the practical question “What ought a man to do?”. Its answer is that he
ought to act so as to produce the best consequences possible.
1. BASIC CONCEPTS
In the notion of consequences the Utilitarian includes all of the good and bad produced by the act, whether arising after
the act has been performed or during its performance. According to Mill, acts should be classifieds morally right or wrong
only if the consequences are of such significance that a person would wish to see the agent compelled, not merely
persuaded and exhorted, to act in the preferred manner.
In assessing the consequences of actions, Utilitarianism relies upon some theory of intrinsic value: something is held to
be good in itself, apart from further consequences, and all other values are believed to derive their worth from their
relation to this intrinsic good as a means to an end. Bentham and Mill were hedonists, ie they analysed happiness as a
balance of pleasure over pain and believed that these feelings alone are of intrinsic value and disvalue. Utilitarians also
assume that it is possible to compare the intrinsic values produced by two alternative actions and to estimate which would
have better consequences. Bentham believed that a hedonic calculus is theoretically possible. A moralist, he maintained,
could sum up the units of pleasure and the units of pain for everyone likely to be affected, immediately and in the future,
and could take the balance as a measure of the overall good or evil tendency of an action.
2. METHODOLOGIES
As a normative system providing a standard by which an individual ought to act and by which the existing practices of
society, including its moral code, ought to be evaluated and improved, Utilitarianism cannot be verified or confirmed in the
way in which a descriptive theory can, but it is not regarded by its exponents as simply arbitrary. Bentham believed that
only in terms of a Utilitarian interpretation do such words as “ought”, “right” and “wrong” have meaning. Bentham and Mill
both believed that human actions are motivated entirely by pleasure and pain: and Mill saw that motivation as a basis for
the argument that since, happiness is the sole end of human action, the promotion of happiness is the test by which to
judge all human conduct.
One of the leading Utilitarians of the late 19th century, a Cambridge philosopher, Henry Sidgwick, rejected their theories of
motivation as well as Benthams theory of the meaning of moral terms and sought to support Utilitarianism by showing that
it follows from systematic reflection on the morality of “common sense”.
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C. CRITICISMS
Most opponents of Utilitarianism have held that it has implications contrary to their moral intuitions- that considerations of
utility, for example might sometimes sanction the breaking of a promise. To meet such an objection, some philosophers
have defended a modification labelled “rule utilitarianism”. It permits a particular act on a particular occasion to be judges
right or wrong according to whether it is in accordance with or in violation of a useful rule: and a rule is judged useful or
not by the consequences of its general practice. Mill has sometimes been interpreted as a “rule” utilitarian, whereas
Bentham and Sidgwick were “act” utilitarians.
Another objection, often posed against the hedonistic value theory held by Bentham, holds that the value of life is more
than a balance of pleasure over pain. Mill, in contrast to Bentham discerned differences in the quality of pleasures that
made some intrinsically preferable to others independently of intensity and duration. Some philosophers in the Utilitarian
tradition have recognised certain wholly non-hedonistic values without losing their Utilitarian credentials. A British
th
philosopher, G.E.Moore, a pioneer of 20 century analysis, regarded many kinds of consciousness – including love,
knowledge, and the experience of beauty – as intrinsically valuable independently of pleasure, a position labelled “ideal”
Utilitarianism. Even in limiting the recognition of intrinsic value and disvalue to happiness and unhappiness, some
philosophers have argues that those feelings cannot adequately be further broken down into terms of pleasure and pain
and have thus preferred to defend the theory in terms of maximising happiness and minimising unhappiness. It is
important to note however, that even for the hedonistic Utilitarians, pleasure and pain are not thought of in purely sensual
terms; pleasure and pain for them can be components of experiences of all sorts. Their claim is that, if an experience is
neither pleasurable nor painful, then it is a matter of indifference and has no intrinsic value.
Another objection to Utilitarianism is that the prevention or elimination of suffering should take precedence over any
alternative act that would only increase the happiness of someone already happy. Some recent Utilitarians have modified
their theory to require this focus or even to limit moral obligation to the prevention or elimination of suffering – a view
labelled “negative” utilitarianism.
The 20th century has seen the development of various modifications and complications of the Utilitarian theory. G.E.Moore
argued for a set of ideals extending beyond hedonism. The recognition of “act” Utilitarianism and “rule” Utilitarianism as
explicit alternatives were stimulated by the analysis of moral reasoning in “rule” Utilitarianism terms by Stephen Toulmin, a
British philosopher of science and moralist and by the analysis by john Rawls, a Harvard moral philosopher, of the
significance for Utilitarianism of to different conceptions of moral rules. “Act” Utilitarianism, on the other hand has been
defended by J.J.C.Smart, a British-Australian philosopher.
D. EFFECTS OF UTILITARIANISM IN OTHER FIELDS

The influence of Utilitarianism has been widespread, permeating the intellectual life of the last two centuries. Its
significance in law, politics, and economics is especially notable.
The Utilitarian theory of the justification of punishment stands in opposition to the “retributive” theory, according to which
punishment is intended to make the criminal “pay” for his crime. According to the Utilitarians, the rationale of punishment
is entirely to prevent further crime by either reforming the criminal or protecting society from him and to deter others from
crime through fear of punishment.
In its political philosophy, Utilitarianism bases the authority of government and the sanctity of individual rights upon their
utility, thus providing an alternative to theories of natural law, natural rights or social contract.
Generally, Utilitarians have supported democracy as a way of making the interest of government coincide with the general
interest; they have argued for the greatest individual liberty compatible with equal liberty for others on the ground that
each individual is generally the best judge of his own welfare; and they have believed in the possibility and the desirability
of progressive social change through peaceful political processes.
Classical economists received some of its most important statements from Utilitarian writers.
th
As a movement for the reform of social institutions, 19 century Utilitarianism was remarkably successful in the long run.
Most of their recommendations have since been implemented and equally important, Utilitarian arguments are now
commonly employed to advocate institutional or policy changes.
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E. SUMMARY AND EVALUATION
As an abstract ethical doctrine, Utilitarianism has established itself as one of the small number of live options that must be
taken into account and either refuted or accepted by any philosopher taking a position in normative ethics. In
contemporary discussions it has been divorced from adventitious involvements with the analysis of ethical language and
with the psychological theory with which it was presented by Bentham. Utilitarianism now appears in various modified and
complicated formulations. Benthams ideal of a hedonic calculus is usually considered a practical if not a theoretical
impossibility. Present-day philosophers have noticed further problems in the Utilitarian procedures. One of them, for
example, is with the process of identifying the consequences of an act - a process that raises conceptual as well as
practical problems as to what are to be counted as consequences. The question may arise whether the outcome of an
election is a consequence of each and every vote cast for the winning candidate if he receives more than the number
necessary for election, and in estimating the value of the consequences, one may ask whether the entire value or only a
part of the value of the outcome of the election is to be assigned to each vote. There is also difficulty in the procedure of
comparing alternative acts. If one act requires a longer period of time for its performance than another, one may ask
whether they can be considered alternatives. Even what is to count as an act is not a matter of philosophical consensus.
These problems, are however common to almost all normative ethical theories since most of them recognise the
consequences – including the hedonic – of an act as being relevant ethical considerations. The central insight of
Utilitarianism, that one ought to promote happiness and prevent unhappiness, whenever possible, seems undeniable. The
critical question, however, is whether the whole of normative ethics can be analysed in terms of this simple formula.
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AN EXTRACT
John Stuart Mill’s Utilitarianism
Chapter 2: What Utilitarianism Is.
A PASSING remark is all that needs be given to the ignorant blunder of supposing that those who stand up for utility as
the test of right and wrong, use the term in that restricted and merely colloquial sense in which utility is opposed to
pleasure. An apology is due to the philosophical opponents of utilitarianism, for even the momentary appearance of
confounding them with any one capable of so absurd a misconception; which is the more extraordinary, inasmuch as the
contrary accusation, of referring everything to pleasure, and that too in its grossest form, is another of the common
charges against utilitarianism: and, as has been pointedly remarked by an able writer, the same sort of persons, and often
the very same persons, denounce the theory "as impracticably dry when the word utility precedes the word pleasure, and
as too practicably voluptuous when the word pleasure precedes the word utility." Those who know anything about the
matter are aware that every writer, from Epicurus to Bentham, who maintained the theory of utility, meant by it, not
something to be contradistinguished from pleasure, but pleasure itself, together with exemption from pain; and instead of
opposing the useful to the agreeable or the ornamental, have always declared that the useful means these, among other
things. Yet the common herd, including the herd of writers, not only in newspapers and periodicals, but in books of weight
and pretension, are perpetually falling into this shallow mistake. Having caught up the word utilitarian, while knowing
nothing whatever about it but its sound, they habitually express by it the rejection, or the neglect, of pleasure in some of its
forms; of beauty, of ornament, or of amusement. Nor is the term thus ignorantly misapplied solely in disparagement, but
occasionally in compliment; as though it implied superiority to frivolity and the mere pleasures of the moment. And this
perverted use is the only one in which the word is popularly known, and the one from which the new generation are
acquiring their sole notion of its meaning. Those who introduced the word, but who had for many years discontinued it as
a distinctive appellation, may well feel themselves called upon to resume it, if by doing so they can hope to contribute
anything towards rescuing it from this utter degradation.[*]
[*] The author of this essay has reason for believing himself to be the first person who brought the word utilitarian into use.
He did not invent it, but adopted it from a passing expression in Mr. Galt's Annals of the Parish. After using it as a
designation for several years, he and others abandoned it from a growing dislike to anything resembling a badge or
watchword of sectarian distinction. But as a name for one single opinion, not a set of opinions- to denote the recognition of
utility as a standard, not any particular way of applying it- the term supplies a want in the language, and offers, in many
cases, a convenient mode of avoiding tiresome circumlocution.
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The creed which accepts as the foundation of morals, Utility, or the Greatest Happiness Principle, holds that actions are
right in proportion as they tend to promote happiness, wrong as they tend to produce the reverse of happiness. By
happiness is intended pleasure, and the absence of pain; by unhappiness, pain, and the privation of pleasure. To give a
clear view of the moral standard set up by the theory, much more requires to be said; in particular, what things it includes
in the ideas of pain and pleasure; and to what extent this is left an open question. But these supplementary explanations
do not affect the theory of life on which this theory of morality is grounded- namely, that pleasure, and freedom from pain,
are the only things desirable as ends; and that all desirable things (which are as numerous in the utilitarian as in any other
scheme) are desirable either for the pleasure inherent in themselves, or as means to the promotion of pleasure and the
prevention of pain.
Now, such a theory of life excites in many minds, and among them in some of the most estimable in feeling and purpose,
inveterate dislike. To suppose that life has (as they express it) no higher end than pleasure- no better and nobler object of
desire and pursuitthey designate as utterly mean and grovelling; as a doctrine worthy only of swine, to whom the followers
of Epicurus were, at a very early period, contemptuously likened; and modern holders of the doctrine are occasionally
made the subject of equally polite comparisons by its German, French, and English assailants.
When thus attacked, the Epicureans have always answered, that it is not they, but their accusers, who represent human
nature in a degrading light; since the accusation supposes human beings to be capable of no pleasures except those of
which swine are capable. If this supposition were true, the charge could not be gainsaid, but would then be no longer an
imputation; for if the sources of pleasure were precisely the same to human beings and to swine, the rule of life which is
good enough for the one would be good enough for the other. The comparison of the Epicurean life to that of beasts is felt
as degrading, precisely because a beast's pleasures do not satisfy a human being's conceptions of happiness. Human
beings have faculties more elevated than the animal appetites, and when once made conscious of them, do not regard
anything as happiness which does not include their gratification. I do not, indeed, consider the Epicureans to have been
by any means faultless in drawing out their scheme of consequences from the utilitarian principle. To do this in any
sufficient manner, many Stoic, as well as Christian elements require to be included. But there is no known Epicurean
theory of life which does not assign to the pleasures of the intellect, of the feelings and imagination, and of the moral
sentiments, a much higher value as pleasures than to those of mere sensation. It must be admitted, however, that
utilitarian writers in general have placed the superiority of mental over bodily pleasures chiefly in the greater permanency,
safety, uncostliness, etc., of the former- that is, in their circumstantial advantages rather than in their intrinsic nature. And
on all these points utilitarians have fully proved their case; but they might have taken the other, and, as it may be called,
higher ground, with entire consistency. It is quite compatible with the principle of utility to recognise the fact, that some
kinds of pleasure are more desirable and more valuable than others. It would be absurd that while, in estimating all other
things, quality is considered as well as quantity, the estimation of pleasures should be supposed to depend on quantity
alone.
If I am asked, what I mean by difference of quality in pleasures, or what makes one pleasure more valuable than another,
merely as a pleasure, except its being greater in amount, there is but one possible answer. Of two pleasures, if there be
one to which all or almost all who have experience of both give a decided preference, irrespective of any feeling of moral
obligation to prefer it, that is the more desirable pleasure. If one of the two is, by those who are competently acquainted
with both, placed so far above the other that they prefer it, even though knowing it to be attended with a greater amount of
discontent, and would not resign it for any quantity of the other pleasure which their nature is capable of, we are justified
in ascribing to the preferred enjoyment a superiority in quality, so far outweighing quantity as to render it, in comparison,
of small account.
Now it is an unquestionable fact that those who are equally acquainted with, and equally capable of appreciating and
enjoying, both, do give a most marked preference to the manner of existence which employs their higher faculties. Few
human creatures would consent to be changed into any of the lower animals, for a promise of the fullest allowance of a
beast's pleasures; no intelligent human being would consent to be a fool, no instructed person would be an ignoramus, no
person of feeling and conscience would be selfish and base, even though they should be persuaded that the fool, the
dunce, or the rascal is better satisfied with his lot than they are with theirs. They would not resign what they possess more
than he for the most complete satisfaction of all the desires which they have in common with him. If they ever fancy they
would, it is only in cases of unhappiness so extreme, that to escape from it they would exchange their lot for almost any
other, however undesirable in their own eyes. A being of higher faculties requires more to make him happy, is capable
probably of more acute suffering, and certainly accessible to it at more points, than one of an inferior type; but in spite of
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these liabilities, he can never really wish to sink into what he feels to be a lower grade of existence. We may give what
explanation we please of this unwillingness; we may attribute it to pride, a name which is given indiscriminately to some of
the most and to some of the least estimable feelings of which mankind are capable: we may refer it to the love of liberty
and personal independence, an appeal to which was with the Stoics one of the most effective means for the inculcation of
it; to the love of power, or to the love of excitement, both of which do really enter into and contribute to it: but its most
appropriate appellation is a sense of dignity, which all human beings possess in one form or other, and in some, though
by no means in exact, proportion to their higher faculties, and which is so essential a part of the happiness of those in
whom it is strong, that nothing which conflicts with it could be, otherwise than momentarily, an object of desire to them.
Whoever supposes that this preference takes place at a sacrifice of happiness- that the superior being, in anything like
equal circumstances, is not happier than the inferior- confounds the two very different ideas, of happiness, and content. It
is indisputable that the being whose capacities of enjoyment are low, has the greatest chance of having them fully
satisfied; and a highly endowed being will always feel that any happiness which he can look for, as the world is
constituted, is imperfect. But he can learn to bear its imperfections, if they are at all bearable; and they will not make him
envy the being who is indeed unconscious of the imperfections, but only because he feels not at all the good which those
imperfections qualify. It is better to be a human being dissatisfied than a pig satisfied; better to be Socrates dissatisfied
than a fool satisfied. And if the fool, or the pig, are a different opinion, it is because they only know their own side of the
question. The other party to the comparison knows both sides.
It may be objected, that many who are capable of the higher pleasures, occasionally, under the influence of temptation,
postpone them to the lower. But this is quite compatible with a full appreciation of the intrinsic superiority of the higher.
Men often, from infirmity of character, make their election for the nearer good, though they know it to be the less valuable;
and this no less when the choice is between two bodily pleasures, than when it is between bodily and mental. They
pursue sensual indulgences to the injury of health, though perfectly aware that health is the greater good.
It may be further objected, that many who begin with youthful enthusiasm for everything noble, as they advance in years
sink into indolence and selfishness. But I do not believe that those who undergo this very common change, voluntarily
choose the lower description of pleasures in preference to the higher. I believe that before they devote themselves
exclusively to the one, they have already become incapable of the other. Capacity for the nobler feelings is in most
natures a very tender plant, easily killed, not only by hostile influences, but by mere want of sustenance; and in the
majority of young persons it speedily dies away if the occupations to which their position in life has devoted them, and the
society into which it has thrown them, are not favourable to keeping that higher capacity in exercise. Men lose their high
aspirations as they lose their intellectual tastes, because they have not time or opportunity for indulging them; and they
addict themselves to inferior pleasures, not because they deliberately prefer them, but because they are either the only
ones to which they have access, or the only ones which they are any longer capable of enjoying. It may be questioned
whether any one who has remained equally susceptible to both classes of pleasures, ever knowingly and calmly preferred
the lower; though many, in all ages, have broken down in an ineffectual attempt to combine both.
From this verdict of the only competent judges, I apprehend there can be no appeal. On a question which is the best
worth having of two pleasures, or which of two modes of existence is the most grateful to the feelings, apart from its moral
attributes and from its consequences, the judgment of those who are qualified by knowledge of both, or, if they differ, that
of the majority among them, must be admitted as final. And there needs be the less hesitation to accept this judgment
respecting the quality of pleasures, since there is no other tribunal to be referred to even on the question of quantity. What
means are there of determining which is the acutest of two pains, or the intensest of two pleasurable sensations, except
the general suffrage of those who are familiar with both? Neither pains nor pleasures are homogeneous, and pain is
always heterogeneous with pleasure. What is there to decide whether a particular pleasure is worth purchasing at the cost
of a particular pain, except the feelings and judgment of the experienced? When, therefore, those feelings and judgment
declare the pleasures derived from the higher faculties to be preferable in kind, apart from the question of intensity, to
those of which the animal nature, disjoined from the higher faculties, is suspectible, they are entitled on this subject to the
same regard.
I have dwelt on this point, as being a necessary part of a perfectly just conception of Utility or Happiness, considered as
the directive rule of human conduct. But it is by no means an indispensable condition to the acceptance of the utilitarian
standard; for that standard is not the agent's own greatest happiness, but the greatest amount of happiness altogether;
and if it may possibly be doubted whether a noble character is always the happier for its nobleness, there can be no doubt
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that it makes other people happier, and that the world in general is immensely a gainer by it. Utilitarianism, therefore,
could only attain its end by the general cultivation of nobleness of character, even if each individual were only benefited by
the nobleness of others, and his own, so far as happiness is concerned, were a sheer deduction from the benefit. But the
bare enunciation of such an absurdity as this last, renders refutation superfluous.
According to the Greatest Happiness Principle, as above explained, the ultimate end, with reference to and for the sake of
which all other things are desirable (whether we are considering our own good or that of other people), is an existence
exempt as far as possible from pain, and as rich as possible in enjoyments, both in point of quantity and quality; the test of
quality, and the rule for measuring it against quantity, being the preference felt by those who in their opportunities of
experience, to which must be added their habits of self-consciousness and self-observation, are best furnished with the
means of comparison. This, being, according to the utilitarian opinion, the end of human action, is necessarily also the
standard of morality; which may accordingly be defined, the rules and precepts for human conduct, by the observance of
which an existence such as has been described might be, to the greatest extent possible, secured to all mankind; and not
to them only, but, so far as the nature of things admits, to the whole sentient creation.
Against this doctrine, however, arises another class of objectors, who say that happiness, in any form, cannot be the
rational purpose of human life and action; because, in the first place, it is unattainable: and they contemptuously ask, what
right hast thou to be happy? a question which Mr. Carlyle clenches by the addition, What right, a short time ago, hadst
thou even to be? Next, they say, that men can do without happiness; that all noble human beings have felt this, and could
not have become noble but by learning the lesson of Entsagen, or renunciation; which lesson, thoroughly learnt and
submitted to, they affirm to be the beginning and necessary condition of all virtue.
The first of these objections would go to the root of the matter were it well founded; for if no happiness is to be had at all
by human beings, the attainment of it cannot be the end of morality, or of any rational conduct. Though, even in that case,
something might still be said for the utilitarian theory; since utility includes not solely the pursuit of happiness, but the
prevention or mitigation of unhappiness; and if the former aim be chimerical, there will be all the greater scope and more
imperative need for the latter, so long at least as mankind think fit to live, and do not take refuge in the simultaneous act of
suicide recommended under certain conditions by Novalis. When, however, it is thus positively asserted to be impossible
that human life should be happy, the assertion, if not something like a verbal quibble, is at least an exaggeration. If by
happiness be meant a continuity of highly pleasurable excitement, it is evident enough that this is impossible. A state of
exalted pleasure lasts only moments, or in some cases, and with some intermissions, hours or days, and is the occasional
brilliant flash of enjoyment, not its permanent and steady flame. Of this the philosophers who have taught that happiness
is the end of life were as fully aware as those who taunt them. The happiness which they meant was not a life of rapture;
but moments of such, in an existence made up of few and transitory pains, many and various pleasures, with a decided
predominance of the active over the passive, and having as the foundation of the whole, not to expect more from life than
it is capable of bestowing. A life thus composed, to those who have been fortunate enough to obtain it, has always
appeared worthy of the name of happiness. And such an existence is even now the lot of many, during some considerable
portion of their lives. The present wretched education, and wretched social arrangements, are the only real hindrance to
its being attainable by almost all.
The objectors perhaps may doubt whether human beings, if taught to consider happiness as the end of life, would be
satisfied with such a moderate share of it. But great numbers of mankind have been satisfied with much less. The main
constituents of a satisfied life appear to be two, either of which by itself is often found sufficient for the purpose:
tranquillity, and excitement. With much tranquillity, many find that they can be content with very little pleasure: with much
excitement, many can reconcile themselves to a considerable quantity of pain. There is assuredly no inherent impossibility
in enabling even the mass of mankind to unite both; since the two are so far from being incompatible that they are in
natural alliance, the prolongation of either being a preparation for, and exciting a wish for, the other. It is only those in
whom indolence amounts to a vice, that do not desire excitement after an interval of repose: it is only those in whom the
need of excitement is a disease, that feel the tranquillity which follows excitement dull and insipid, instead of pleasurable
in direct proportion to the excitement which preceded it. When people who are tolerably fortunate in their outward lot do
not find in life sufficient enjoyment to make it valuable to them, the cause generally is, caring for nobody but themselves.
To those who have neither public nor private affections, the excitements of life are much curtailed, and in any case
dwindle in value as the time approaches when all selfish interests must be terminated by death: while those who leave
after them objects of personal affection, and especially those who have also cultivated a fellow-feeling with the collective
interests of mankind, retain as lively an interest in life on the eve of death as in the vigour of youth and health. Next to
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selfishness, the principal cause which makes life unsatisfactory is want of mental cultivation. A cultivated mind- I do not
mean that of a philosopher, but any mind to which the fountains of knowledge have been opened, and which has been
taught, in any tolerable degree, to exercise its faculties- finds sources of inexhaustible interest in all that surrounds it; in
the objects of nature, the achievements of art, the imaginations of poetry, the incidents of history, the ways of mankind,
past and present, and their prospects in the future. It is possible, indeed, to become indifferent to all this, and that too
without having exhausted a thousandth part of it; but only when one has had from the beginning no moral or human
interest in these things, and has sought in them only the gratification of curiosity.
Now there is absolutely no reason in the nature of things why an amount of mental culture sufficient to give an intelligent
interest in these objects of contemplation, should not be the inheritance of every one born in a civilised country. As little is
there an inherent necessity that any human being should be a selfish egotist, devoid of every feeling or care but those
which centre in his own miserable individuality. Something far superior to this is sufficiently common even now, to giv e
ample earnest of what the human species may be made. Genuine private affections and a sincere interest in the public
good, are possible, though in unequal degrees, to every rightly brought up human being. In a world in which there is so
much to interest, so much to enjoy, and so much also to correct and improve, every one who has this moderate amount of
moral and intellectual requisites is capable of an existence which may be called enviable; and unless such a person,
through bad laws, or subjection to the will of others, is denied the liberty to use the sources of happiness within his reach,
he will not fail to find this enviable existence, if he escape the positive evils of life, the great sources of physical and
mental suffering- such as indigence, disease, and the unkindness, worthlessness, or premature loss of objects of
affection. The main stress of the problem lies, therefore, in the contest with these calamities, from which it is a rare good
fortune entirely to escape; which, as things now are, cannot be obviated, and often cannot be in any material degree
mitigated. Yet no one whose opinion deserves a moment's consideration can doubt that most of the great positive evils of
the world are in themselves removable, and will, if human affairs continue to improve, be in the end reduced within narrow
limits. Poverty, in any sense implying suffering, may be completely extinguished by the wisdom of society, combined with
the good sense and providence of individuals. Even that most intractable of enemies, disease, may be indefinitely
reduced in dimensions by good physical and moral education, and proper control of noxious influences; while the
progress of science holds out a promise for the future of still more direct conquests over this detestable foe. And every
advance in that direction relieves us from some, not only of the chances which cut short our own lives, but, what concerns
us still more, which deprive us of those in whom our happiness is wrapt up. As for vicissitudes of fortune, and other
disappointments connected with worldly circumstances, these are principally the effect either of gross imprudence, of ill-
regulated desires, or of bad or imperfect social institutions.
All the grand sources, in short, of human suffering are in a great degree, many of them almost entirely, conquerable by
human care and effort; and though their removal is grievously slow- though a long succession of generations will perish in
the breach before the conquest is completed, and this world becomes all that, if will and knowledge were not wanting, it
might easily be made- yet every mind sufficiently intelligent and generous to bear a part, however small and
unconspicuous, in the endeavour, will draw a noble enjoyment from the contest itself, which he would not for any bribe in
the form of selfish indulgence consent to be without.
And this leads to the true estimation of what is said by the objectors concerning the possibility, and the obligation, of
learning to do without happiness. Unquestionably it is possible to do without happiness; it is done involuntarily by
nineteen-twentieths of mankind, even in those parts of our present world which are least deep in barbarism; and it often
has to be done voluntarily by the hero or the martyr, for the sake of something which he prizes more than his individual
happiness. But this something, what is it, unless the happiness of others or some of the requisites of happiness? It is
noble to be capable of resigning entirely one's own portion of happiness, or chances of it: but, after all, this self-sacrifice
must be for some end; it is not its own end; and if we are told that its end is not happiness, but virtue, which is better than
happiness, I ask, would the sacrifice be made if the hero or martyr did not believe that it would earn for others immunity
from similar sacrifices? Would it be made if he thought that his renunciation of happiness for himself would produce no
fruit for any of his fellow creatures, but to make their lot like his, and place them also in the condition of persons who have
renounced happiness? All honour to those who can abnegate for themselves the personal enjoyment of life, when by such
renunciation they contribute worthily to increase the amount of happiness in the world; but he who does it, or professes to
do it, for any other purpose, is no more deserving of admiration than the ascetic mounted on his pillar. He may be an
inspiriting proof of what men can do, but assuredly not an example of what they should.
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Though it is only in a very imperfect state of the world's arrangements that any one can best serve the happiness of others
by the absolute sacrifice of his own, yet so long as the world is in that imperfect state, I fully acknowledge that the
readiness to make such a sacrifice is the highest virtue which can be found in man. I will add, that in this condition the
world, paradoxical as the assertion may be, the conscious ability to do without happiness gives the best prospect of
realising, such happiness as is attainable. For nothing except that consciousness can raise a person above the chances
of life, by making him feel that, let fate and fortune do their worst, they have not power to subdue him: which, once felt,
frees him from excess of anxiety concerning the evils of life, and enables him, like many a Stoic in the worst times of the
Roman Empire, to cultivate in tranquillity the sources of satisfaction accessible to him, without concerning himself about
the uncertainty of their duration, any more than about their inevitable end.
Meanwhile, let utilitarians never cease to claim the morality of self devotion as a possession which belongs by as good a
right to them, as either to the Stoic or to the Transcendentalist. The utilitarian morality does recognise in human beings
the power of sacrificing their own greatest good for the good of others. It only refuses to admit that the sacrifice is itself a
good. A sacrifice which does not increase, or tend to increase, the sum total of happiness, it considers as wasted. The
only self-renunciation which it applauds, is devotion to the happiness, or to some of the means of happiness, of others;
either of mankind collectively, or of individuals within the limits imposed by the collective interests of mankind.
I must again repeat, what the assailants of utilitarianism seldom have the justice to acknowledge, that the happiness
which forms the utilitarian standard of what is right in conduct, is not the agent's own happiness, but that of all concerned.
As between his own happiness and that of others, utilitarianism requires him to be as strictly impartial as a disinterested
and benevolent spectator. In the golden rule of Jesus of Nazareth, we read the complete spirit of the ethics of utility. To do
as you would be done by, and to love your neighbour as yourself, constitute the ideal perfection of utilitarian morality. As
the means of making the nearest approach to this ideal, utility would enjoin, first, that laws and social arrangements
should place the happiness, or (as speaking practically it may be called) the interest, of every individual, as nearly as
possible in harmony with the interest of the whole; and secondly, that education and opinion, which have so vast a power
over human character, should so use that power as to establish in the mind of every individual an indissoluble association
between his own happiness and the good of the whole; especially between his own happiness and the practice of such
modes of conduct, negative and positive, as regard for the universal happiness prescribes; so that not only he may be
unable to conceive the possibility of happiness to himself, consistently with conduct opposed to the general good, but also
that a direct impulse to promote the general good may be in every individual one of the habitual motives of action, and the
sentiments connected therewith may fill a large and prominent place in every human being's sentient existence. If the,
impugners of the utilitarian morality represented it to their own minds in this its, true character, I know not what
recommendation possessed by any other morality they could possibly affirm to be wanting to it; what more beautiful or
more exalted developments of human nature any other ethical system can be supposed to foster, or what springs of
action, not accessible to the utilitarian, such systems rely on for giving effect to their mandates.
The objectors to utilitarianism cannot always be charged with representing it in a discreditable light. On the contrary, those
among them who entertain anything like a just idea of its disinterested character, sometimes find fault with its standard as
being too high for humanity. They say it is exacting too much to require that people shall always act from the inducement
of promoting the general interests of society. But this is to mistake the very meaning of a standard of morals, and
confound the rule of action with the motive of it. It is the business of ethics to tell us what are our duties, or by what test
we may know them; but no system of ethics requires that the sole motive of all we do shall be a feeling of duty; on the
contrary, ninety-nine hundredths of all our actions are done from other motives, and rightly so done, if the rule of duty
does not condemn them. It is the more unjust to utilitarianism that this particular misapprehension should be made a
ground of objection to it, inasmuch as utilitarian moralists have gone beyond almost all others in affirming that the motive
has nothing to do with the morality of the action, though much with the worth of the agent. He who saves a fellow creature
from drowning does what is morally right, whether his motive be duty, or the hope of being paid for his trouble; he who
betrays the friend that trusts him, is guilty of a crime, even if his object be to serve another friend to whom he is under
greater obligations.
But to speak only of actions done from the motive of duty, and in direct obedience to principle: it is a misapprehension of
the utilitarian mode of thought, to conceive it as implying that people should fix their minds upon so wide a generality as
the world, or society at large. The great majority of good actions are intended not for the benefit of the world, but for that of
individuals, of which the good of the world is made up; and the thoughts of the most virtuous man need not on these
occasions travel beyond the particular persons concerned, except so far as is necessary to assure himself that in
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benefiting them he is not violating the rights, that is, the legitimate and authorised expectations, of any one else. The
multiplication of happiness is, according to the utilitarian ethics, the object of virtue: the occasions on which any person
(except one in a thousand) has it in his power to do this on an extended scale, in other words to be a public benefactor,
are but exceptional; and on these occasions alone is he called on to consider public utility; in every other case, private
utility, the interest or happiness of some few persons, is all he has to attend to. Those alone the influence of whose
actions extends to society in general, need concern themselves habitually about large an object. In the case of
abstinences indeed- of things which people forbear to do from moral considerations, though the consequences in the
particular case might be beneficial- it would be unworthy of an intelligent agent not to be consciously aware that the action
is of a class which, if practised generally, would be generally injurious, and that this is the ground of the obligation to
abstain from it. The amount of regard for the public interest implied in this recognition, is no greater than is demanded by
every system of morals, for they all enjoin to abstain from whatever is manifestly pernicious to society.
The same considerations dispose of another reproach against the doctrine of utility, founded on a still grosser
misconception of the purpose of a standard of morality, and of the very meaning of the words right and wrong. It is often
affirmed that utilitarianism renders men cold and unsympathising; that it chills their moral feelings towards individuals; that
it makes them regard only the dry and hard consideration of the consequences of actions, not taking into their moral
estimate the qualities from which those actions emanate. If the assertion means that they do not allow their judgment
respecting the rightness or wrongness of an action to be influenced by their opinion of the qualities of the person who
does it, this is a complaint not against utilitarianism, but against having any standard of morality at all; for certainly no
known ethical standard decides an action to be good or bad because it is done by a good or a bad man, still less because
done by an amiable, a brave, or a benevolent man, or the contrary. These considerations are relevant, not to the
estimation of actions, but of persons; and there is nothing in the utilitarian theory inconsistent with the fact that there are
other things which interest us in persons besides the rightness and wrongness of their actions. The Stoics, indeed, with
the paradoxical misuse of language which was part of their system, and by which they strove to raise themselves above
all concern about anything but virtue, were fond of saying that he who has that has everything; that he, and only he, is
rich, is beautiful, is a king. But no claim of this description is made for the virtuous man by the utilitarian doctrine.
Utilitarians are quite aware that there are other desirable possessions and qualities besides virtue, and are perfectly
willing to allow to all of them their full worth. They are also aware that a right action does not necessarily indicate a
virtuous character, and that actions which are blamable, often proceed from qualities entitled to praise. When this is
apparent in any particular case, it modifies their estimation, not certainly of the act, but of the agent. I grant that they are,
notwithstanding, of opinion, that in the long run the best proof of a good character is good actions; and resolutely refuse to
consider any mental disposition as good, of which the predominant tendency is to produce bad conduct. This makes them
unpopular with many people; but it is an unpopularity which they must share with every one who regards the distinction
between right and wrong in a serious light; and the reproach is not one which a conscientious utilitarian need be anxious
to repel.
If no more be meant by the objection than that many utilitarians look on the morality of actions, as measured by the
utilitarian standard, with too exclusive a regard, and do not lay sufficient stress upon the other beauties of character which
go towards making a human being lovable or admirable, this may be admitted. Utilitarians who have cultivated their moral
feelings, but not their sympathies nor their artistic perceptions, do fall into this mistake; and so do all other moralists under
the same conditions. What can be said in excuse for other moralists is equally available for them, namely, that, if there is
to be any error, it is better that it should be on that side. As a matter of fact, we may affirm that among utilitarians as
among adherents of other systems, there is every imaginable degree of rigidity and of laxity in the application of their
standard: some are even puritanically rigorous, while others are as indulgent as can possibly be desired by sinner or by
sentimentalist. But on the whole, a doctrine which brings prominently forward the interest that mankind have in the
repression and prevention of conduct which violates the moral law, is likely to be inferior to no other in turning the
sanctions of opinion again such violations. It is true, the question, What does violate the moral law? is one on which those
who recognise different standards of morality are likely now and then to differ. But difference of opinion on moral
questions was not first introduced into the world by utilitarianism, while that doctrine does supply, if not always an easy, at
all events a tangible and intelligible mode of deciding such differences.
It may not be superfluous to notice a few more of the common misapprehensions of utilitarian ethics, even those which
are so obvious and gross that it might appear impossible for any person of candour and intelligence to fall into them; since
persons, even of considerable mental endowments, often give themselves so little trouble to understand the bearings of
any opinion against which they entertain a prejudice, and men are in general so little conscious of this voluntary ignorance
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as a defect, that the vulgarest misunderstandings of ethical doctrines are continually met with in the deliberate writings of
persons of the greatest pretensions both to high principle and to philosophy. We not uncommonly hear the doctrine of
utility inveighed against as a godless doctrine. If it be necessary to say anything at all against so mere an assumption, we
may say that the question depends upon what idea we have formed of the moral character of the Deity. If it be a true
belief that God desires, above all things, the happiness of his creatures, and that this was his purpose in their creation,
utility is not only not a godless doctrine, but more profoundly religious than any other. If it be meant that utilitarianism does
not recognise the revealed will of God as the supreme law of morals, I answer, that a utilitarian who believes in the perfect
goodness and wisdom of God, necessarily believes that whatever God has thought fit to reveal on the subject of morals,
must fulfil the requirements of utility in a supreme degree. But others besides utilitarians have been of opinion that the
Christian revelation was intended, and is fitted, to inform the hearts and minds of mankind with a spirit which should
enable them to find for themselves what is right, and incline them to do it when found, rather than to tell them, except in a
very general way, what it is; and that we need a doctrine of ethics, carefully followed out, to interpret to us the will God.
Whether this opinion is correct or not, it is superfluous here to discuss; since whatever aid religion, either natural or
revealed, can afford to ethical investigation, is as open to the utilitarian moralist as to any other. He can use it as the
testimony of God to the usefulness or hurtfulness of any given course of action, by as good a right as others can use it for
the indication of a transcendental law, having no connection with usefulness or with happiness.
Again, Utility is often summarily stigmatised as an immoral doctrine by giving it the name of Expediency, and taking
advantage of the popular use of that term to contrast it with Principle. But the Expedient, in the sense in which it is
opposed to the Right, generally means that which is expedient for the particular interest of the agent himself; as when a
minister sacrifices the interests of his country to keep himself in place. When it means anything better than this, it means
that which is expedient for some immediate object, some temporary purpose, but which violates a rule whose observance
is expedient in a much higher degree. The Expedient, in this sense, instead of being the same thing with the useful, is a
branch of the hurtful. Thus, it would often be expedient, for the purpose of getting over some momentary embarrassment,
or attaining some object immediately useful to ourselves or others, to tell a lie. But inasmuch as the cultivation in
ourselves of a sensitive feeling on the subject of veracity, is one of the most useful, and the enfeeblement of that feeling
one of the most hurtful, things to which our conduct can be instrumental; and inasmuch as any, even unintentional,
deviation from truth, does that much towards weakening the trustworthiness of human assertion, which is not only the
principal support of all present social well-being, but the insufficiency of which does more than any one thing that can be
named to keep back civilisation, virtue, everything on which human happiness on the largest scale depends; we feel that
the violation, for a present advantage, of a rule of such transcendant expediency, is not expedient, and that he who, for
the sake of a convenience to himself or to some other individual, does what depends on him to deprive mankind of the
good, and inflict upon them the evil, involved in the greater or less reliance which they can place in each other's word, acts
the part of one of their worst enemies. Yet that even this rule, sacred as it is, admits of possible exceptions, is
acknowledged by all moralists; the chief of which is when the withholding of some fact (as of information from a
malefactor, or of bad news from a person dangerously ill) would save an individual (especially an individual other than
oneself) from great and unmerited evil, and when the withholding can only be effected by denial. But in order that the
exception may not extend itself beyond the need, and may have the least possible effect in weakening reliance on
veracity, it ought to be recognised, and, if possible, its limits defined; and if the principle of utility is good for anything, it
must be good for weighing these conflicting utilities against one another, and marking out the region within which one or
the other preponderates.
Again, defenders of utility often find themselves called upon to reply to such objections as this- that there is not time,
previous to action, for calculating and weighing the effects of any line of conduct on the general happiness. This is exactly
as if any one were to say that it is impossible to guide our conduct by Christianity, because there is not time, on every
occasion on which anything has to be done, to read through the Old and New Testaments. The answer to the objection is,
that there has been ample time, namely, the whole past duration of the human species. During all that time, mankind have
been learning by experience the tendencies of actions; on which experience all the prudence, as well as all the morality of
life, are dependent. People talk as if the commencement of this course of experience had hitherto been put off, and as if,
at the moment when some man feels tempted to meddle with the property or life of another, he had to begin considering
for the first time whether murder and theft are injurious to human happiness. Even then I do not think that he would find
the question very puzzling; but, at all events, the matter is now done to his hand.
It is truly a whimsical supposition that, if mankind were agreed in considering utility to be the test of morality, they would
remain without any agreement as to what is useful, and would take no measures for having their notions on the subject
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taught to the young, and enforced by law and opinion. There is no difficulty in proving any ethical standard whatever to
work ill, if we suppose universal idiocy to be conjoined with it; but on any hypothesis short of that, mankind must by this
time have acquired positive beliefs as to the effects of some actions on their happiness; and the beliefs which have thus
come down are the rules of morality for the multitude, and for the philosopher until he has succeeded in finding better.
That philosophers might easily do this, even now, on many subjects; that the received code of ethics is by no means of
divine right; and that mankind have still much to learn as to the effects of actions on the general happiness, I admit, or
rather, earnestly maintain. The corollaries from the principle of utility, like the precepts of every practical art, admit of
indefinite improvement, and, in a progressive state of the human mind, their improvement is perpetually going on.
But to consider the rules of morality as improvable, is one thing; to pass over the intermediate generalisations entirely,
and endeavour to test each individual action directly by the first principle, is another. It is a strange notion that the
acknowledgment of a first principle is inconsistent with the admission of secondary ones. To inform a traveller respecting
the place of his. ultimate destination, is not to forbid the use of landmarks and direction-posts on the way. The proposition
that happiness is the end and aim of morality, does not mean that no road ought to be laid down to that goal, or that
persons going thither should not be advised to take one direction rather than another. Men really ought to leave off talking
a kind of nonsense on this subject, which they would neither talk nor listen to on other matters of practical concernment.
Nobody argues that the art of navigation is not founded on astronomy, because sailors cannot wait to calculate the
Nautical Almanack. Being rational creatures, they go to sea with it ready calculated; and all rational creatures go out upon
the sea of life with their minds made up on the common questions of right and wrong, as well as on many of the far more
difficult questions of wise and foolish. And this, as long as foresight is a human quality, it is to be presumed they will
continue to do. Whatever we adopt as the fundamental principle of morality, we require subordinate principles to apply it
by; the impossibility of doing without them, being common to all systems, can afford no argument against any one in
particular; but gravely to argue as if no such secondary principles could be had, and as if mankind had remained till now,
and always must remain, without drawing any general conclusions from the experience of human life, is as high a pitch, I
think, as absurdity has ever reached in philosophical controversy.
The remainder of the stock arguments against utilitarianism mostly consist in laying to its charge the common infirmities of
human nature, and the general difficulties which embarrass conscientious persons in shaping their course through life. We
are told that a utilitarian will be apt to make his own particular case an exception to moral rules, and, when under
temptation, will see a utility in the breach of a rule, greater than he will see in its observance. But is utility the only creed
which is able to furnish us with excuses for evil doing, and means of cheating our own conscience? They are afforded in
abundance by all doctrines which recognise as a fact in morals the existence of conflicting considerations; which all
doctrines do, that have been believed by sane persons. It is not the fault of any creed, but of the complicated nature of
human affairs, that rules of conduct cannot be so framed as to require no exceptions, and that hardly any kind of action
can safely be laid down as either always obligatory or always condemnable. There is no ethical creed which does not
temper the rigidity of its laws, by giving a certain latitude, under the moral responsibility of the agent, for accommodation
to peculiarities of circumstances; and under every creed, at the opening thus made, self-deception and dishonest
casuistry get in. There exists no moral system under which there do not arise unequivocal cases of conflicting obligation.
These are the real difficulties, the knotty points both in the theory of ethics, and in the conscientious guidance of personal
conduct. They are overcome practically, with greater or with less success, according to the intellect and virtue of the
individual; but it can hardly be pretended that any one will be the less qualified for dealing with them, from possessing an
ultimate standard to which conflicting rights and duties can be referred. If utility is the ultimate source of moral obligations,
utility may be invoked to decide between them when their demands are incompatible. Though the application of the
standard may be difficult, it is better than none at all: while in other systems, the moral laws all claiming independent
authority, there is no common umpire entitled to interfere between them; their claims to precedence one over another rest
on little better than sophistry, and unless determined, as they generally are, by the unacknowledged influence of
considerations of utility, afford a free scope for the action of personal desires and partialities. We must remember that only
in these cases of conflict between secondary principles is it requisite that first principles should be appealed to. There is
no case of moral obligation in which some secondary principle is not involved; and if only one, there can seldom be any
real doubt which one it is, in the mind of any person by whom the principle itself is recognised.
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Learning Outcomes
By the end of this chapter the students should be able to:
- identify the central themes in feminist jurisprudence
- discuss the work of several key feminist scholars
- give an account of the history of theorising in this area
- apply feminist scholarship to certain key examples of legal practice.
Essential Reading
1. Lloyd’s Introduction to Jurisprudence, Chapter 13
2. Morrison, Chapter 17, Understanding Feminist Jurisprudence.
Further Reading
1. Barnett, H. Introduction to Feminist Jurisprudence
Introduction
Feminism is not to be understood as a legal theory in the sense that Hart or Kelsen may be understood.
Rather, it is a collection of thoughts and views of various writers who represent the varied and complex
interests of the female within society. They seek to create an awareness amongst women of their rights
in society and to raise “female consciousness” in the midst of traditional male dominated areas, though
being female is not a prerequisite for being a feminist.
Their common purpose is to provide critical perspectives and ideas towards a change for the better of a
woman’s position in society.
It is difficult to pinpoint a common theory of feminism, since the writers write about diverse issues and
therefore the discussion here would centre mainly on matters pertaining to law (& jurisprudence).
THEMES OF FEMINISM
Exposing the Patriarchal Society
(A society where political, social, economic, legal and moral standards are set by men, reflecting the male
intellect and understanding of matters regulated by men and where these standards have become the
norm or starting point for all discussions and entrenched into society in a way that it becomes the
unquestioned and internalised ‘correct’ viewpoint. In short, a society seen through a “male” filter.)
1. Traditional jurisprudence has been basically a collection of masculine thought. This is because a
large part of jurisprudence has been concerned with analysis of logic, conceptualisation and a fetish for
definitional analysis of legal concepts, e.g. the formalistic theories like positivism.
In jurisprudence, these have been the “correct arguments” but according to feminism it is correct because
it conforms to a male view of life, i.e. an ordered, systematic and logical look at law.
Feminist criticise this approach as being the product of male dominated jurisprudence, and this is due to
the general differences between the two sexes. Males generally disregard issues pertaining to emotion,
compassion and other humane factors and these may have an influence in the way men structure their
laws. This is demonstrated by the fact that throughout the law there has been an aim of achieving
certainty and rationality e.g. judicial precedents, etc.
However in trying to view law a logical process, very often matters of substance and purpose in the
contents of law are often ignored as being outside the scope of jurisprudence, whereas such views are
more likely to appeal to a female. Therefore, the feminists say that the legal system is the product of
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patriarchal relations at the root of society and that this is the correct approach and that women who think
differently are generally regarded as weak, irrational and emotional.
2. Even ideals of society and its thoughts (not just the methods) are “abstract masculinity” in a
sense that our understanding of philosophical and scientific thought has been based on the male view of
the world, and therefore we would not understand fully the nature of social relations.
In fact, talk on society and reform has not been successful because it can only be half correct. Women’s
perspective towards the issues in society has been largely ignored since it would not be in conformity.
The ideals and intellectual thought of a patriarchal intelligence can be seen for e.g. in the idea of the rule
of law. Even in jurisprudence we have come across concepts like “the seven basic goods’ or “the
minimum content of natural law’ etc. which if analysed closely does appear to be patriarchal.
3. According to Carol Gilligan, male thought on ethics has generally been considered as superior to
feminine understanding and values. She argues that women will never be ‘up to the mark’ even in moral
reasoning since a woman would also look at relationships, compassion and care rather than principles
strictly and therefore women are considered irrational.
4. From the above, feminists conclude that what is “normal” is male created, and that society is so
male dominated that there is pressure on women to adhere to this, i.e. to think like men and this provides
for many of the inequalities between the sexes today.
Therefore by allowing women to do the things men do is not true equality. What is required is that men
recognise a woman’s point of view and accept a change in attitude.
Catherine Mackinnon: ‘Why should you have to be the same as a man to get what a man gets simply
because he is one? Why does maleness provide an original entitlement, not questioned on the basis of its
gender, so that it is women—women who want to make a case of unequal treatment in a world men have
made in their image...—who have to show in effect that they are men in every relevant respect,
unfortunately mistaken for women on the basis of an accident of birth?’. C. MacKinnon, Feminism
Unmodified: Discourses on Life and Law (1987) at 37.
“Male” versus “Female” characteristics
What must be understood here firstly is that feminists claim that society and law itself has developed from
the male psyche and hence it exhibits only male characteristics and therefore caters mainly to the male
viewpoint. Hence the term “patriarchal society”.
Feminists emphasise the need for the law to be more aware of the differences between what are male
and female characteristics, therefore the need to recognise that the law has been largely reflective of the
male psyche somewhat unfairly. The argument is that by including the female viewpoint, the law and the
justice system would be enriched.
It must be noted that the terms male and female are being ascribed to different forms of thinking and
intelligence and feminists argue that this is the first step in uncovering the patriarchal domination of
society.
Male characteristics
1. The conception is that males are more logical and rational.
2. Generally regarded as the more dominant sex.
3. They think in more formal terms with little emphasis on matters of the heart. E.g. compassion and
emotions. Judges trained to decide cases by precedent, logic etc but not by consideration of the
more fluid and emotional factors inherent in the case.
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4. Objective – They think about issues objectively and they prefer certainty. Objectivity here refers
to a detached viewpoint.
5. Male sense of justice is synonymous with punishment, retribution or deterrence.
Female characteristics
The misconception in the present system
1. More in tune with matters of emotion and compassion

2. Prefer arguments of substance and rely more on intuition
3. Considered the weaker sex – because they are more emotional
4. They are more involved rather than detached
5. Ethic of care rather than justice (Gilligan)
These characteristics are considered not “normal” or not “rational” because the male characteristics are
accepted as the rational and correct ways of thinking. Because a woman reacts differently or thinks
differently or has contrasting priorities than a man, she is considered “irrational because she is acting
contrary to the accepted norms of the Patriarchal society and legal system.
For example:
Positivism: very formal and provides clear definition and certainty is something a male yearns for and he
hates confusion. It is correct from a male view to have an ordered and systematic and logical system of
law and this can be seen in everything we study about law and legal procedures.
Most jurisprudential thought reflects much of the same male preoccupation of finding order or devicing a
system: “7 basic goods”, “8 desiderata”, “primary rules and secondary rules”, “norms and the grundnorm”,
etc.
Feminists therefore seek to raise consciousness with regard to this male domination and they hope with
such realisation that true reform can be undertaken and that the system and society can benefit from the
input from the other half of the world. Where all this while male thought has dominated, social problems
have not been resolved, therefore it may be to everyone’s benefit to take into account women’s
perspective.
None of these male jurists talk about the importance of human relations, family values, etc. These
matters are pertaining to human emotion and hence not logical. Men therefore regard this as not within
the ambit of law as it is irrational.
5. The substantive law itself contains situations which are not flattering to women for example:
a) Discrimination
Feminist argument is that their demand for equality for example in employment should be viewed as a
question of rights and therefore cannot be overridden (see John Rawls)
Often there is a right given to women to apply for any job. In fact there is legislation to prevent sexual
discrimination. However the statutes merely prohibit discrimination on the basis of gender, but often there
are loopholes which allow employers to escape liability, for e.g. by coming up with policies which indirectly
make it difficult for women in seeking employment.
But feminists want no discrimination and no loopholes. This is difficult as employers could specify a job
description or work condition which makes it difficult for a woman. Although the law today covers sexual
discrimination, there are loopholes in the law i.e. where an employer can justify it on grounds which are
not sexual on the surface, e.g. by specifying a job which in effect only a male is likely to be qualified.
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b) Lack of protection in gender specific injury cases
Here the allegation made is that the legal system does not recognise the special types of injuries faced by
women which may not be within male understanding e.g sexual harassment, pornography, vulgarity,
marital rape, domestic violence is generally viewed either as trivial, private or participatory.
The Judiciary and the legislature has failed to recognise that matters that males consider trivial can be
serious issues for women, especially in matters which are gender specific. For example the use of
vulgar/suggestive remarks in conversation are not regulated even if women are offended because men do
not understand the problem.
In recent times, the judiciary and the legislature have been opening up to the possibility of a female
perspective.
c) Sexual harassment
The courts view such cases very seriously and legislation has been passed to prevent sexual harassment
especially in the workplace.
d) Domestic violence
In the past, the law was reluctant to interfere in a man’s quarrel with his wife despite the existence of
violence. Today there have been many changes made in the law in this regard.
e) Rape
Perhaps the most controversial is the law on rape and the argument here is that the law fails to recognise
the special circumstances of rape when compared to other violent crimes, both in its substance and
procedure. Very often it is the victim who is put on trial. The rape victim is wrongly treated just like any
other victim of violence and the law refuses to consider that it is a special kind of violence. Frequently the
issue of consent is linked to the presence or absence of a physical struggle, but feminists assert that rape
is not a crime of violence but a special kind of violation which a male mind may not completely
comprehend.
The rules of evidence also do not afford much protection for the victim. In fact the rape victim is probably
going to be embarrassed in court. Not only is a rape victim humiliated and embarrassed in court, she is
also considered less reliable than other victims of crimes. There is an inherent bias in the minds of
judges when dealing with rape victims.
The requirement of a mandatory corroboration warning that used to exist in English Law when dealing
with a rape victim’s testimony is illustrative of the system’s suspicion of allegations of rape and sexual
assault. But, as a result of Section 32 of the Criminal Justice and Public Order Act 1994, the
corroboration warning is no longer mandatory.
The celebrated case of R v R (1992) (marital rape), is one that students would be familiar with. The
House of Lords kept in step with the changing times and held that the non consensual sex between a
husband and wife can amount to rape. Similarly today the legislature has extended some protection to
victims of sexual offences by limiting the range of cross examination questions that can be hurled upon
them. In particular the sexual behaviour of the victim is one that cannot be led in evidence or cross
examined upon without the leave of the Court. Leave is granted under very limited circumstances under
the Youth Justice and Criminal Evidence Act.
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f) Provocation
The defence of provocation is not available to a wife who has been subject to constant and repeated
abuse over a period of time. This is a result of the male perspective on premeditation and sudden loss of
control. Men are familiar with the idea that they lose control of themselves in a split second because of a
grave and sudden provocation. The idea of a “slow burn” is one that the male psyche does not
immediately relate. The particular problem of a wife battered over a long period of time and who
eventually assaults her husband or kills him is seen as one that gives her enough time to contemplate
and carry out the killing in a premeditated fashion. The notion that there could be a lack of premeditation
in this scenario is one that the patriarchal judicial system has not fathomed.
In R v Kiranjit Ahluwalia, the House of Lords recognised that the condition known as the “battered wife
syndrome” could afford the wife of the defence of Diminished Responsibility. To some degree, this
represents the changing attitudes of the courts to women’s concerns and an attempt to understand the
female psyche and give it a voice within the matrix of the law.
Historical survey of the Feminist movement

The Early period
The earliest formulations of Feminist thought can be traced to such thinkers as as Lady Mary Wortley
Montagu and the Marquis de Condorcet. The utilitarians such as Jeremy Bentham and John Stuart Mill
are also known to have championed the rights of women which in the early days involved a call for equal
treatment under the law.
The first work that can be classified as clearly feminist is Mary Wollstonecraft's A Vindication of the Rights
of Woman (1792).
Late 19th century
The organised Feminist movement can be traced to the first women's rights convention at Seneca Falls,
New York, in 1848.
Emmeline Pankhurst was one of the founders of the suffragette movement and aimed to reveal the
institutional sexism in British society, forming the Women's Social and Political Union (WSPU). Often the
repeated jailing for forms of activism that broke the law, particularly property destruction, inspired
members to go on hunger strikes. Due to the resultant force-feeding that was the practice, these
members became very ill, serving to draw attention to the brutality of the legal system at the time and to
further their cause. In an attempt to solve this the government introduced a bill that became known as the
Cat and Mouse Act, which allowed women to be released when they starved themselves to dangerous
levels, then to be re-arrested later.
Other notable 19th-century feminists include, Emma Goldman, Elizabeth Cady Stanton and Margaret
Sanger.
The Feminist movement in the Arab world saw Egyptian jurist Qasim Amin, the author of the 1899
pioneering book Women's Liberation (Tahrir al-Mar'a), as the father of Arab Feminist Movement. In his
work Amin criticized some of the practices prevalent in his society at the time, such as polygamy, the veil,
or women's segregation, and condemned them as un-Islamic, and contradicting the true spirit of Islam.
His work had an enormous influence on women's political movements throughout the Islamic and Arab
world, and is read and cited today. Less known, however, are the women who preceded Amin in their
feminist critique of their societies. The women's press in Egypt started voicing such concerns since its
very first issues in 1892. Egyptian, Syrian and Lebanese women and men had been reading European
feminist magazines even a decade earlier, and discussed their relevance to the Middle East in the
general press.
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20th century
Many countries began to grant women the vote in the early years of the 20th century, especially in the
final years of the First World War and the first years after the war. The reasons for this varied, but
included a desire to recognise the contributions of women during the war, and were also influenced by
rhetoric used by both sides at the time to justify their war efforts. For example, since Wilson's Fourteen
Points recognised self determination as a vital component of society, the hypocrisy of denying half the
population of modern nations the vote became difficult for men to ignore.
The 1920s were an important time for women, who, in addition to gaining the vote also gained legal
recognition in many countries. However, in many countries, women lost the jobs they had gained during
the war. In fact, women who had held jobs prior to the war were sometimes compelled to give up their
jobs to returning soldiers, partly due to a conservative backlash, and partially through societal pressure to
reward the soldiers. Many women continued to work in blue collar jobs, on farms, and traditionally female
occupations. Women did make strides in some fields such as nursing.
In both World Wars, manpower shortages brought women into traditionally male occupations, ranging
from munitions manufacturing and mechanical work to a female baseball league. By demonstrating that
women could do "men's work", and highlighting society's dependence on their labour, this shift
encouraged women to strive for equality. In World War II, the popular icon Rosie the Riveter became a
symbol for a generation of working women.
The rise of socialism and communism advanced the rights of women to economic parity with men in some
countries. Women were often encouraged to take their place as equals in these societies, although they
rarely enjoyed the same level of political power as men, and still often faced very different social
expectations.
In some areas, regimes actively discouraged feminism and women's liberations. In Nazi Germany, a very
hierarchical society was idealized where women maintained a position largely subordinate to men.
Women's activism was very difficult there, and in other societies that deliberately set out to restrict
women's, and men's, gender roles, such as Italy, and much later Afghanistan.
Early feminists and primary feminist movements are often called the first wave and feminists after about
1960 the second wave. Second wave feminists were concerned with gaining full social and economic
equality, having already gained almost full legal equality in many western nations. One of the main fields
of interest to these women was in gaining the right to contraception and birth control, which were almost
universally restricted until the 1960s. With the development of the birth control pill feminists hoped to
make it as available as possible. Many hoped that this would free women from the perceived burden of
mothering children they did not want; they felt that control of reproduction was necessary for full economic
independence from men. Access to abortion was also widely demanded, but this was much more difficult
to secure because of the deep societal divisions that existed over the issue. To this day, abortion remains
controversial in many parts of the world.
Many feminists also fought to change perceptions of female sexual behaviour. Since it was often
considered more acceptable for men to have multiple sexual partners, many feminists encouraged
women into "sexual liberation" and having sex for pleasure with multiple partners. The extent to which
most women in fact changed their behaviour, first of all because many women had already slept with
multiple partners, and secondly because most women still remained in mainly monogamous relationships,
is debatable. However, it seems clear that women becoming sexually active since the 1980s are relatively
more sexually active than previous generations.
These developments in sexual behavior have not gone without criticism by some feminists. They see the
sexual revolution primarily as a tool used by men to gain easy access to sex without the obligations
entailed by marriage and traditional social norms. They see the relaxation of social attitudes towards sex
in general, and the increased availability of pornography without stigma, as leading towards greater
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sexual objectification of women by men. Catharine MacKinnon and Andrea Dworkin gained notoriety in
the 1980s by attempting to classify pornography as a violation of women's civil rights.
There is a so called third wave, but feminists disagree as to its necessity, its benefits, and its ideas. Often
also called "Post-Feminist," it can possibly be considered to be the advancement of a female discourse in
a world where the equality of women is something that can be assumed—rather than fought for.
Contemporary feminist approaches
In many areas of the world women are still paid less than men for equivalent work, hold much less
political and economic power, and are often the subject of intense social pressure to conform to relatively
traditional gender expectations. Feminists continue to fight these conditions. The most high profile work is
done in the field of pay-equity, reproductive rights, and encouraging women to become engaged in
politics, both as candidates and as voters. In some areas feminists also fight for legislation guaranteeing
equitable divorce laws and protections against rape and sexual harassment. Radical feminism was a
significant development in second wave feminism, viewing women's oppression as a fundamental
element in human society and seeks to challenge that standard by broadly inverting perceived gender
roles along with promoting lesbian and gay rights.
In the Arab and Islamic world, feminist movements face very different challenges. In Morocco and Iran, for
example, it is the application of Islamic personal status laws that are the target of feminist activity.
According to Islamic law, for example, a woman who remarries may lose custody over her children;
divorce is an unqualified male privilege; in certain countries polygamy is still legal. While not attacking
Islamic law itself, these women and men in different Islamic countries offer modern, feminist, egalitarian
readings of religious texts. In Egypt feminist gynecologist Nawal al-Sa'dawi centers her critique on the
still-prevalent custom of female genital mutilation. Feminist groups in other African countries have
targeted the practice as well.
One problem feminists have encountered in the late 20th century is a strong backlash against perceived
zealotry on their part. This backlash may be due to the visibility of some radical feminist activism that has
been inaccurately perceived as representing the feminist movement as a whole. Many women, and some
men, have become reluctant to be identified as feminists for this reason. Outside of the West, feminism is
often associated with Western colonialism and Western cultural influence, and is therefore often
delegitimized. Feminist groups therefore often prefer to refer to themselves as "women's organizations"
and refrain from labeling themselves feminists.
FEMINISM : DOES IT HAVE A FUTURE ?
Can feminism be viewed as a viable school of thought that can be relied upon in our quest for an
alternate vision of society. humanity and institutional structures? Whilst feminism may strike the reader as
a cause with many disparate aims and agendas it is no doubt not an endeavor without precedents.
I find much wisdom in the work of feminists that is both edifying; and distinct from that of systematic
philosophers. An offshoot of the Critical Legal Studies tradition, it is instructive in the sense that it avoids
universals, and enriches one’s perspective by the plenitude of particularity: and wealth of insight that can
be gained when one forgoes the quest for absolutes and accepts and acknowledges instead, the
particular.
In this paper, I would like to deal with what I consider to be the two main obstacles in giving feminism
greater or more serious impetus. Feminism not surprisingly is perceived of as being about women and for
women. The very subject of feminism thus is about women and as such the very substance of feminism
appears to concern itself with the political ethical psychological institutional spiritual ~d experiential
expressions of women, for women. Men. then are a problem. Where does the male fit in this debate? Is a
man capable of acting. thinking,writing, studying and feel mg for and about women? On the face of it
then, masculinity is an impediment that is a potentially theoretical as well d' practical obstacle to one
being a feminist and doing feminism.
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This sort of thinking occupies center stage to a cultural feminist. Women reason based on the ethics of
care that is somewhat interlinked with the biology of pregnancy and breast-feeding. Men, conversely
emphasize separateness and individuation. which are elements of masculinity that presently color our
legal system. CulturaI feminism as espoused by the likes of Carol Gilligan thus has a very exclusionary
character that seeks to deny a man from being a feminist. whilst in some ways being regressive rather
than progressive to the emancipation of women.
The second obstacle in bringing the discourse of feminism to the core is in my considered opinion the
strategy adopted by MacKinnon. via her "consciousness-raising" efforts that aim to capitalize on
experiences that are very specific and deemed particular to women per se.
The idea of masculinity:
One understanding of the idea of masculinity is that it is an impediment to being a feminist. Typically such
masculine characteristics are thought to include a tendency to dominate others, a tendency toward
violence an excessive reliance on rationality and narrowly construed objectivity over independence a
distaste for emotion and a thinking pattern that is contractual in moral matters and personal relationships.
Trained or predisposed to masculinity. it is argued that men may have a hard time in unlearning these
behavioral and emotional patterns and may not be able to replace them with feminist traits and values.
I have three problems with this:
First, masculinity to my mind is variable, contextual and defined in multiple ways. What counts as
masculine is dependent on the gender order in place and can thus shift from one context to another. I ~
no doubt aware that there exists in society a general agreement amongst various cultural groups on what
traits are masculine and conversely those that are deemed as feminine. This has given rise to a gender
ideology of sorts that is shared by otherwise disparate groups.
When a boy plays with a doll he is dubbed a “sissy. a faggot or a homo". To be a feminine boy is a very
unpleasant experience. Similarly assertive women are castigated as tomboys, butchers. dykes or ball
breakers”. Interestingly enough this classificatory scheme is not limited to patriarchal culture. How would
you label a woman who is at the pinnacle of a corporation'? What sort of traits must a woman who has
ruthlessly climbed the corporate ladder possess'?
My point here is that in some cases at least, the distinction between masculine and feminine
predisposition's are rendered inaccurate by the observation that one is able to make of actual persons
and actual behaviors. In fact worries about masculinity and femininity usually result in us attempting to
train people into or out of masculinity and femininity. This surely calls into a question the descriptive
accuracy of the male and female characteristic.; as espoused by cultural feminism. Are characteristics
inborn. conditioned or intimated via a learning process?
Secondly, it appears largely unclear what 'being masculine' actually encompasses. To eliminate or
chastise something as a 'male-identified" practise may end up eliminating a number of useful tools for the
purposes of feminist practice. As an illustration of this. consider the feminist idea of reaching decisions via
consensus. This is supposed to act as an antidote to the masculine power hierarchies present in most
political and legal institutions. Procedures such as majority voting for instance must be questioned at
worst and eliminated at best. Whilst consensus may be an appropriate decision-making tool for small
groups it may have potentially chaotic consequences when deployed in the context of large groups. Either
no consensus will be reached, or discussions may continue interminably.
My third and final point on this issue is that masculinity is not exclusive to men or women. The converse, I
believe is true as a far as femininity is concerned. N4asculinitv can be used where appropriate I am
certain. to advance the goal of feminists. It something is ' male-identified'~. that in itself ought not to
render it as useless or unworthy. If some behavior. attitude. practice or perspective is harmful. we should
be able to spell out why it is harmful without merely pointing to its gendered associations. After all, a
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female sexual offender is bad not because she acted like a man. but because she hurt someone.
Similarly. why should one not adhere and propagate hierarchical style of management if it is able to
produce the best results possible. for a feminist goal?
As long as we associate masculinity or femininity with history and culture. it cannot to my mind, be
deemed worthy or relevant as a practice or attitude for feminist use. I find no allure in feminism being
synonymous with essentialist, exclusionary. and confrontational and statist practices that match up very
nicely with their so-called characterization of masculine behavior. as Catherine MacKinnon and Andrea
Dworkin would presumably find.
Experience and Feminism
The idea of experience is more of an epistemological rather than a psychological impediment to the
perpetuation of feminist ideals. Radical feminism more or less is beholden to this idea The perception one
gets from here is that men. regardless of their beliefs, attitudes and behavioral characteristics cannot be
feminists because they don’t know what it is like to be woman. Men cannot grasp the specificity of
feminism in terms of its articulation in theory and practice.
Men aren't and shouldn't be IN feminism: the feminist space is not theirs and not for them to see.
If similarity of experience is thus a grounding factor. then the assumption that necessarily follows is that
the subject of feminism must render the epistemic and proprietary exclusion of men from the feminist
circle.
I find much difficulty in accepting this proposition. Early radical feminism began to distinguish itself from
other liberation movements associated with the Left by claiming that women were no~ oppressed simply
as incidental members of racial or class groups. but as women. In recognizing that women were
maltreated and marginalized in a variety of different contexts because of their gender, it became apparent
that what was needed was a political movement that would address specifically the oppression of
women. Just as class liberation had Marxism. women's liberation would also be in need of a theory.
One of the main purposes of a theory to back up a political movement is to explain how ~" particular
group of people form a definable and locatable group; and how the members of such a group are
oppressed. As an early concern therefore. being a woman was a factor that was central to the feminist
tradition. What however was the basis of women S connection and oppression'. There appears to have
been much difficulty in the formulation of an objective definition of women’s oppression and connection.
Class oppression could more or less be defined in terms of economics. Racial oppression could be
defined at the other extreme in terms of skin colour. Women however were scattered amongst oppressed
and oppressor groups.
Of course individual women were oppressed. but there were also white women, rich women, working
women and leisure class women. How then were women as women oppressed? Eventually. the
objective definition of oppression appears to have been replaced instead by the defining of oppression
on a subjective basis. As such. feminists began to focus centrally on the issue of experience.
Women defined their own oppression as they experienced it,' and the idea of experience was very
important because of the need for some kind of evidence that women were oppressed as Judith Grant
explains.
Is there some core experience that is common to all women? Women have a wide variety of experiences
that are based on their relative position in other economic, racial, religious and education groups: as well
as via their individual beliefs commitments and idiosyncratic sensibilities. Some women may assume that
mothering or maternal sensibilities are a universally shared experience. Is it? Sonic women never have or
desire maternal instincts or sensibilities. others even argue that motherhood and labor is the source of all
oppression. Some may seek liberation through communist ideals. yet others may find it feasible to do so
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by corporate capitalist powermongering. Some women fight for abortion rights, others tend to be pro-life
advocates.
Doesn't the variability of experience hinder rather than unite women as an oppressed group?
In an effort to criticize and explain the experiences of women who did not feel oppressed. or who rejected
or fought against feminism. the notion of "false conscious” was developed. This basically is an idea that
some women were so steeped in patriarchal ideology that they could not see their own oppression. Such
women are referred to as male-identified; and thus in need of consciousness- raising.
While the notion of false consciousness is reasonable and no doubt harmonizes with the intuition that
someone can be deceived about their own experiences. it presupposes then by sheer logic, the existence
of a true consciousness at will enable a person to get an accurate understanding of his own experiences.
But this leads us back thus to the proposition that some objective notion of what counts as oppression
does actually exist. Otherwise, how does one measure up to the task of interpreting this 'experience'?
This of course, as elucidated upon earlier is an insurmountable problem.
As Joan Scott further points out. is not experience in itself already an interpretation and in need of
interpretation? What counts as experience is thus neither self-evident not. straightforward it is always
contested. and always political.
Further the problem with subjective experience is not merely its conceptual coherence but its political
efficacy and relevance in transforming society. The test of good feminist theory is based on whether it
reflects the female experience rather than whether it would help in the liberation of women. This identity
focus is misleading since surely having a woman's experience cannot be said to make one a feminist.
What thus should feminism be synonymous with?
My conclusion is that feminism should be about gender and the structures of sexism and oppression that
arises from the hierarchical evaluations of gender. To be viable as a critical strategy however. is must be
characterized by an adherence to a set of beliefs and political positions. which aptly eliminate gender-
based power. Feminism must be based on gender and gender based oppression as opposed to female
oppression per se I do riot see a future for feminism as long as it is portrayed as unique and exclusory
and thus aimed at releasing and magnifying the essential qualities of women.
When we employ feminist philosophy as one that focuses on gender for the purposes of critical analysis
feminism it turns out is something that WE ALL CAN DO. We must poster the suggestion that what makes
a feminist is belief action and position, not the subjectivity of one’s experience, conceptions of masculinity
and an appreciation of one's objective gender identity.
MORE ON FEMINISM
Simply stated, feminism is a movement which attempts to challenge the orthodoxy of the patriarchy
system. Its task, loosely defined. is to question the perception that man is naturally the bread-winner who
figures prominently in the public life while woman, as man’s private property, is subjugated to domestic
sphere whose responsibility is reproduction, child-bearing and housework. Morrison, in Elements of
Jurisprudence, at p.243, attempted a more technical definition of feminism:
We can treat as a working definition feminism as the self-conscious (sometimes 'unconscious') creation
and vindication of representations of the feminine and the position of women in social reality by women
themselves in contrast the accepted 'common sense or 'everyday' notions which are taken as imbued
with masculine conceptions.'
Law features prominently in this movement because initially, it is believed that law, as neutral and
autonomous rules backed by sanction, could transform the male-dominated society into one which takes
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into account the values and experiences of women. However, early feminists ran into the difficulty of how
to use law as an effective weapon against the current patriarchal system. Should they opt for equality of
treatment under the law, or because of their biological or gender differences, should they strive for legal
recognition of their differences?
While this equality/difference dilemma engendered the search for a feminist jurisprudence in the first
place, subsequently feminists argue that the law's claim to neutrality and universality is flawed, because it
fails to take into account the experience and perceptions of women.
Some writers describe the search of a feminist jurisprudence as a sort of an archeological dig into the
herstory of women and the law, a modern quest for the Holy Grail. As will become clear later, currently,
there is a cloud of pessimism surrounding the quest, as doubts arise as to whether the Grail ever exists in
the first place. Perhaps, only the swashbuckling crusader, Indiana Jones, could ever find it.
First wave: Liberal feminism
The equality/difference debate was initially conducted in an environment when legislative reform is seen
as the solution for feminism from mid nineteenth century until the 1 970s. The presumption is that
rationality is the common attribute of all human beings and what separates them from the realm of nature,
thus requiring respectful treatment. Under this form of liberalism law is seen as rational and gender
neutral, which treats the equality of beings, men or women, as its highest goal.
When feminism became an organized force which demand for equal rights such as rights of citizenship,
voting and entrance into universities, the quest for such rights was fought within the patriarchal and
capitalist system. The system itself was not challenged. Feminists challenge legislation which extends
rights to categories of man but expressly excluded woman, claiming that women had been deprived of
assuming their rightful place in society as non-differentiated equals of man.
This political battle for formal equality intensified during the 60s and 70s of this century, a period of social
optimism with expansive legislative activity to redress the social inequality inflicted on women. However,
this all out blanket solution of equality to all woman under the law runs the risk of ignoring the biological
difference between male and female. This is exemplified by the great difficulties faced by the English
Employment Appeals Tribunal which adopted an equality approach to sex discrimination, in comparing
the situation of a pregnant employee with her male counterpart.
In Webb V EMO Cargo (UK) Ltd, the House of Lords affirmed the Court of Appeal's decision that a
woman who was dismissed from employment because of her pregnancy was not unlawfully dismissed
from her employment, since, comparing her with a man with a temporary physical disability who would
also have been unable to work, the man would also have been dismissed as well. The ECJ had
subsequently ruled that English law is inadequate here.
Critique of liberal feminism
Despite the extensive legislative reforms in Western countries, they failed to achieve as much as they
promised. The law reforms are said to create a double-edged ' sword. Much as legal rights could be
conferred on women, such as rights for abortion, it could also be countered by rights of foetus. Whatever
law can give, it could be taken back by counter claims of competing rights. Moreover, as the EAT's case
suggests, a blanket treatment of 'formal equality to women as the solution may be more detrimental to
women, ignoring some of their basic differences compared to men.
The influx of women into the world of law leads to further realisation that law and legal method are shot
with ' maleness'. The standard of law is premised upon the standard of male, with legal concepts such as
criminal law defence of provocation ignoring the fact that women's reaction to provocation is not an
instantaneous, but more often than not. a slow-burning process: R v Thornton [1992] 1 All ER 306 and R
V Alluwalia [1992] 4 All ER 889.
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Feminists began to doubt the law/sexist distinction by arguing that law and sexism are not separable. Law
is not only operated by sexists, but is inherently sexist. It is in the image of the masculine that law is
rational, logical and emotional. Furthermore, it is asserted that gender oppression is not just a matter of
the gender of those operating the law, but is grounded in patriarchal culture which originates in the
development of the notion that woman is a form of private property for man.
The positivist analysis that things in this world presenting themselves to one as truth-in-themselves is
challenged. The work of legal positivists, whose legal reasoning is based on analysis drawn from the
supposed truisms of life, is increasingly seen as merely bringing out masculine legal theory from
masculine imbued practices of life; it makes assumptions grounded in a male experience of life.
The 'maleness ' of law is further revealed through research on the psychological development of children.
The research suggests a difference in moral reasoning between male and female. It shows that female
tends to reason according to emotions and responsibility for stable conditions to prevent someone getting
hurt. Meanwhile, male acts according to what they think is just. The latter are more rational, less
emotional, and have a stronger sense of justice. Law' is thus male, because it is based on the male's
moral reasoning, which emphasizes on objectivity impartiality and rationality.
Catherine MacKinnon's radical feminism
Marxist theory of law offers an explanation of why such psychological research revealed such differences
in moral reasoning. According to Catherine MacKinnon, Harvard's leading Marxist feminist, in 'Feminism,
Marxism. Method and the State' (1982) at p.515, the theory of gender oppression mirrors that of class
oppression:
'sexism is feminism what work is to Marxism, which is one's own, yet most taken away'.
She further asserts that although sexuality is a pre-cultural attribute, women's sexuality was being
distorted and manipulated through the process of alienation and exclusion of experience. Out of the
simple difference in sexuality comes a domination through differences:
'Difference is the velvet glove on the iron fist of domination. The problem then is not that
differences are not valued; the problem is that they are defined by power. This is as true when
difference is affirmed as whet' it is denied, when its substance is applauded or disparaged, when
women are published or protected in its name.'
- MacKinnon, Towards a Feminist Theory of the State, at p.219.
The culture developed from such domination and alienation of experience is one that reflects
the interest of one particular gender and this in turn is presented as an objective truth, the only possible
reality. Women are objectified as sexual objects for men and this is reflected in law, a product of this
male culture. MacKinnon uses rape law to demonstrate that rape is seen as a crime, only from male's
perspective in that it requires penetration (sexual intercourse from the male's perspective) without
consent, thus requiring some form of guilty intent. Hence, accusation of rape without violence is
something man could riot apprehend.
Since it is the form of law, not its content that requires changing, the blind faith in the
objectivity of law explains why attempts of law reform was futile. The 'equality for woman' approach
leaves the law as it is, but seeks to find the most successful way of squeezing the interest of woman
past the legislators and the judiciary. Since man is the norm against which' woman as equal ' are
measured, it is inevitable that this approach failed to tackle the problem of the power of law as a male
ideology.
If it is the form of law which requires changes, woman’s true social experience must be revealed to
produce an alternate form of law. The solution seems to lie in constructing a female epistemology in order
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to transform the form of law and prevailing concepts of justice. which is essentially imbued with male
values, in order to accommodate female ways of thinking.
Carol Gilligan's cultural feminism
Carol Gilligan, in her book In a different voice, suggest that the ethics of care, woman's mode of
reasoning, which values connectedness and prevention of harm, must be instated alongside the ethics of
justice, which emphasizes on separateness and individuation; elements of masculinity currently prevailing
in our legal system. Thus she said:
Men respond to the natural state of equality with an ethic of autonomy and rights. Women respond to the
natural state of inequality with an ethic of responsibility and care.
Meanwhile, some believe that women, with the common experience they had, are more suitable to set the
standard of justice because feminism stresses equality of 'outcome rather than equality based on a priori
abstract concept which stands regardless of its results.
These approaches are similar in that they all start from where women are now and give the impression
that women's way of doing. ..things are different from their male counterpart. An important criticism by
MacKinnon in her book Feminism unmodified. Discourses of life and law( 1987), is that to affirm and
glorify such differences is to affirm the domination of male. This is because these approaches assume
that woman’s experience is natural but in truth, such experience is socially constructed by male
epistemology and presented as an objective truth.
Viewed this way, Gilligan's work is regressive. In Deconstructing Gender (1982) 87 Michigan Law Review
797, Joan Williams illustrates how Gilligan has been used in litigation to women's detriment. In an
American case called EEOC v Sears, Sears successfully argued that women were unrepresented in
higher paying commission sales jobs because women 'lacked' interest in sales, not because Sears was
discriminating against them. Gilligan was cited in expert testimony to support Sear's argument that
women have different career aspirations to men which make them less interested in high powered jobs.
In other words, according to Gilligan's critics, she has confused gender difference with biological
difference. Gender difference is a product of male epistemology while biological difference is the pre-
cultural fact which distinguishes male from female in the first place. The latter does not determine the
former. For MacKinnon, Gilligan does not describe what women actually, but what women have been
socialised to be. Gilligan therefore describes and then reifies gender oppression as socially constructed
by male.
MacKinnon's strategy
According to MacKinnon, since sexuality as revealed from biological differences is the common factor of
all female, they could collectively and critically challenge and reconstitute the form of law. MacKinnon,
employing Marxist terms, called this consciousness-raising. She argued that what women have in
common ( sexuality ) is more significant than their own differences. This makes 'consciousness-raising' a
feasible option for the feminism movement.
A critique to MacKinnon's view
MacKinnon's theory is an ambitious one. It seeks to explain the oppression of women at all times. But
such a prescription for feminist jurisprudence is problematic and unconvincing. While MacKinnon correctly
pointed out that the gender difference is ' non-essential ' but merely a social construct by the male, her
'consciousness raising' thesis implies that since biological differences is an essential feature separating
women from men, it is possible to tap the common experience of all women,. How this essential, pre-
cultural femaleness could be obscured and alienated by men remained unexplained.
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As with other grand theorists, she also failed to acknowledge the fact that women's experience is
manifold. The experience of a western white female might not be the same as a Black or Asian woman.
By reducing the law to simply a tool of oppression against all women, she failed to address the possibility
of race and class oppression, or religious and sexual preferences. In that way, her feminist movement
could be potentially oppressive due to its totalizing fiction, spreading an ideology that all women have
common experience. As Sherry writes:
'We have more than one voice and no one can articulate an unquestionable truth about women. This
notion of different women’s voices is intensified if we consider that so far as it has been predominantly
white, middle class women who have been generating feminist theory. What one middle class, white
woman claims as her reality may not be the reality of another middle class. white woman, let alone the
reality of a black woman, an Asian woman or a working class woman I do not mean this argument to
smack of overly pedantic 'political correctness, I simply mean that in claiming a feminist theory for all
women, we then run the risk of being as presumptuous and blinkered in relation to other women as men
have hitherto been to us.'
Furthermore, even if a unitary female experience exists, how could MacKinnon be sure that what
consciousness-raising reveals is actually the female experience at pre-cultural state, but not the one
constructed by man? By following the modernist approach of grand theorizing, MacKinnon herself is guilty
of employing a male methodology (Marxist theory) to construct a female epistemology which alters the
form of law.
Like the liberal feminists, the Marxists feminists have entered a game, although at' a higher and
conceptual level, whose rules are determined by masculine requirement and the positivist tradition. Her
female epistemology is merely an assertion of a positive rival norm to that of men. The image of feminist
liberation is still cast in the dominant white masculine mode.
Postmodernist's feminism
So we have entered an era of postmodernism, where the conventional differentiation of sexuality as male
or female is contended to be a social/cultural construct, non-essential and thus not the cause of women's
oppression as what MacKinnon would have us believed. Medical knowledge of how chromosomes shape
sexuality informed us that there is no clear-cut distinction between male and female. Postmodernist argue
that maleness and femaleness in a person is a matter of degree. Hence they reject that there exists a
single characteristic universal to one sex only.
Is the feminism movement futile then to the postmodernists?
Even if the heterosexual dichotomy is upheld, postmodernists argue that law is too multifaceted, as
human nature is, to be masculine. Therefore, the task of feminist lawyers so says the postmodernists is
not to resort to law but to deconstruct any generalizable or universal claims of any sort, including the
quest for the grand theory of feminist jurisprudence?.
According to the post-modernists, difference must be simultaneously upheld and deconstructed to get out
6f the vicious circularity of the equality/difference debate. If law is a product of the cultural epistemological
Systems, resort to law is useless unless we could also change the way we understand what we
understand. Nonetheless, this is not to undermine the usefulness of law as providing a forum of discourse
for the postmodernists which could further deconstruct any proclaimed truth.
However, some feminists believe that the postmodernists' rejection of grand theorising or any objective
truth is another ideology, perhaps created by male, which may lead to an inclination to refuse any
systematic documentation of any particular form of difference or identity against the hegemonic
mainstream, just when women have begun to gain some ground. They believe that Postmodernists'
approach would relegate the feminist struggle into a project, like any others, which deconstruct any
objective truth. but offers nothing in return to further the interest of the female. In this light,
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Postmodernism creates suspicion as though it is another strategy by the hegemonic mainstream to curb
any challenge to their stronghold of power.
Conclusion:
While the postmodernists' approach reflects on the failure of any generalised scientific theory of law, it
fosters a sense of self-defeatism in our pursue of knowledge by overemphasizing the relativity of truth.
Their challenge of the conventional differentiation of sexuality between male and female may have far-
reaching effect on how we view the concept of sexuality, for example, whether we should legalize
homosexual marriage? Their skepticism on anything conventional generates disbelief amongst us on the
law as a worthy institution in the society Their challenge to the present science of epistemology while
reluctant to device a new way of explaining tile world creates havoc and deprives us of any objective
standard to rely upon.
Therefore, it is submitted that while the liberal feminists' struggle for equal treatment under the law did not
eliminate the maleness of law, generalization of all the differences of women into a common identity
called feminism as contended by the Marxist feminist school is also unworkable. But Postmodernism's
rejection of the equality/difference approach leads us no where.
The dilemma is identified, should we reject the processes of modernity' or should we regenerate it? Or
perhaps, we have yet to understand the difference that makes a difference between man and woman
So can the Holy Grail ever be found? Is there truth out there? If the statement 'there is no truth' captures
the mood of contemporary jurisprudence, adopting a realist standpoint, maybe truth can only be proved
retrospectively when we look back at history, or herstory. Since truth is a relative concept, I believe that
despite the present pessimism, the quest of a female jurisprudence must remain a worthy enterprise in
order to change the common perception on women. In each different feminist school of thought, be it the
traditional liberal feminism, MacKinnon's radical feminism, Gilligan's cultural feminism and even the
postmodernist's feminism, we find different and yet incisive illumination of the human condition.
Is it useful to adopt a confrontationist approach on feminist jurisprudence? Is it necessary to claim that

female epistemology, if put into practice, would fare better than the prevailing male counterpart? Is there
a need for revolution? Or is reconciliation the key to understanding feminist jurisprudence? Can feminism
play a complementary role? As the sixteen century reformist Martin Luther once said:
When God created woman, he made her not out of man's foot, to be downtrodden, nor out of his head, to
rule over her, but out of his ribs, to be close to his heart'
Perhaps, we do not have to lament over the fact that so far the 'Holy Grail' has not been found because
what is more important is the process of searching for one. In the quest for the feminist jurisprudence,
feminists of different ideology talk to the politics of the ‘other', or that which the law has often served to
constrain and render silent. As Morrison wrote: “in this sense, whatever one thinks of any one feminist
writer, feminism serves as the demand to consider who we are, and who a truly social 'we might be.”
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Marxism & Karl Marx
“Your jurisprudence is but the will of your class made into a law for all, a will whose essential character
and direction are determined by the economic conditions of existence of your class Behind your
jurisprudence is your concern for the maintenance of your economic superiority. Your law is a mere
expression, a rationalization, of that concept.”
“All fixed, fast-frozen relations, with their train of ancient and venerable prejudices and opinions are swept
away, all new-formed ones become antiquated before they can ossify. All that is solid melts into air, all
that is holy is profaned, and men at last are enforced to face the real conditions of their lives and their
relations with their fellow men.”
Marx and Engels, The Communist Manifesto
(1848)
Overview
Marxism is a complex theory that encompasses theories of law, economics, of government and
administration, history and sociology. Try to think of Bentham and his theory of government and
utilitarianism. They are similar in the sense they try to influence through doctrines of practise. One can
also cross refer to Kelsen’s Pure Theory of Law which tries to provide a scientific dimension to law.
Marxism in this sense is stripping bare the ideology that clothes the bare bones of law, exposing the
reality that law is merely a tool for suppression. Try not to think of Marxism as merely focussing on
economics and law. An avid student of Marx will unravel the complex interconnecting theories of Marx
especially the theory on government and law, and his theory of history and evolution. It is this latter part of
Marxism that is still relevant today and will continue to be as his theory provides us with a method upon
which to further our understanding of the phenomenon we call law.
Learning Outcomes
By the end of this Chapter a student ought to be able to:
- outline Marx’s ideas of ideology, economy and society and identify the philosophical tradition out of which
Marx’s thought emerges
- describe Marx’s ideas of law and of the state
- explain the development of Marx’s theories of ideology, economy and law by modern Marxists such as
Louis Althusser
- and consider how Marx’s thought might be relevant to a contemporary theory of international law.
Essential Reading
• Lloyd, D. and Freeman, M. Introduction to Jurisprudence. (London: Sweet and Maxwell, 2001) seventh
edition. Pg 953 – 990.
Further Reading
• Morrison, W. Jurisprudence: from the Greeks to post-modernism. (London: Cavendish Publishing, 2000)
Pg 247 – 274.
• Lloyd, D. and Freeman, M. Introduction to Jurisprudence. (London: Sweet and Maxwell, 2001)
seventh edition. Pg 990 – 1039.
1. Introduction
It is common to see first year law students, certain lawyers and even some eccentric academicians to
approach law as if it is a plain fact; comprising of merely a body of rules which are accepted. Dworkin
changes this perception by introducing a more controversial view of law which encourages us to construct
the most convincing arguments for one set of principles rather than the other. This ‘internal point of view’
we can call the normative view of law. On the other hand, there is the sociological movement, which looks
into the place of law in the society in which it functions.
Marx bridges these two domains. This means that Marx believes that inherent in the question of whether
or not one legal principle is better than the other - the reasons a contractual exclusion clause is valid or
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not - depends on the social context in which the answer is given. This is because, the law itself is the
product of a particular society rather than that society itself is the result of the law.
Marxism as Praxis
According to Marx, philosophers spend too much time interpreting the world; the point, however, is to
change it! This combination of theory and practice is known as praxis. An fullblooded understanding of
jurisprudence goes beyond the static analysis but encompass a study of the nature of law within a society
influx.
2. Preliminarily Issues
The term ‘Maxxism’ is problematic because there is no single ‘ready-made’ Marxist theory or analysis of
law and state. Some consider it a philosophy; others label it a sociology, a religion or even a mystification.
Not only did Marx fail to construct a specific body of work on law; his understanding of law is a ‘subset of
the general intellectual approaches to society which he held at different times in his life, the orthodox
Marx had been opened up to more recent trends contributed by Evgeny Pashukanis, Althusser, Karl
Renner and Grarnsci.
It is then helpful to read Marx in context and view him from different themes:
1. the humanist, who writes against exploitation, who argues that the conditions of modern society do not
go far enough to liberate man, to serve ‘real’ human interests;
2. the social scientist, who proclaims that his final theories embody ‘laws of social change’ and are a ‘true’
depiction of the human condition, who further claims to have discovered the ‘essence’ of capitalism and
social history;
3. the rhetorician, who sometimes writes quickly and freely, striving to stir the reader into action and
revolution - ‘workers of the world unite!’
The quest to identify a single Marxist theory or analysis is futile since they seem to ‘operate at different
levels’ in sequential order, but not necessary a historical periodisation.
• The early Marx believes that Law is a great progressive force. Law is a reflection of society’s thinking
and an instrument for the society to express their hopes and values. This brims with legal naturalism. You
should read some of Morrison’s analysis of this ‘idealist’ Marx.
• The later Marx appears to downgrade the role of law. Law is merely part of a superstructure’ of a
society, part of the ideologies of the society which are relatively unimportant as compared to the driving
force of the base. This shows a distrust for “legal fetishism”. This is the Marx which is popularly identified.
Collins distinguishes two views on Law of the later Marx;
a) class instrumentalism - ‘here the law is seen as a weapon in the class struggle. Law is an instrument
in the oppressing the lower social class and a conflict model of social development is most appropriate’.
b) economic determinism - ‘this is a more complex vision, which sees law as not simply as an
instrument of class domination, a tool of the ruling class, but as a phenomenon produced and reproduced
by the most important driving forces for socio-political cultural changes in a society (for Marx the
economic mode of production).”
These two distinctions itself is too sweeping as conceals the wide range of ‘marxist analysis’, whether the
traditional or modern accounts. Hunt summarises it under six general themes:
i. Law is inescapably political or law is one form of politics

ii. Law and state are closely connected; law exhibits a relative autonomy from the state
iii. Law gives effect to, mirrors, or is otherwise expressive of the prevailing economic relations; the legal
form replicates the forms of economic relations.
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iv. Law is always potentially coercive or repressive and manifests the state’s monopoly of the means of
coercion.
v. The content and procedures of law manifest, directly or indirectly, the interests of the dominant
class(es) or the power bloc.
vi. Law is ideological; it both exemplifies and provides legitimation for the embedded values of the
dominant class(es)
Hunt clarifies that some of the themes conflict and some reinforce each other. There is no ‘correct’
interpretation of Marxism. Try to look out for these themes when we go into Marx proper below.
3. Karl Marx and the Background of Modernity

The young Marx wrote during the time of the radical Enlightenment and Modernity. You would remember
from your Natural Law lectures that Modernity is form of cultural support for a society in a particular period
of time where there is a deep distrust of the cosmic order, religion, God or anything transcendental. The
quest for answers to problems of the human condition does not lie with religion but by an analysis of a
‘human society, history, human failings and power relations, all of which lies in the empirical world. To
Morrison; ‘For Marxism we are of this world and the world is a unity.” The shift is towards worldly
‘historical materialism’; “[God’s] chosen people are replaced by the proletariat, and the justice of the
kingdom of God by the classless society of communism.
How does Marx develop his theory of a classless society? An answer is never complete without an
understanding of the influence of Hegel.
4. The Influence of Hegel and Dialectics

We heeded the caveat earlier on the evolutionary of Marx’s theory. But how does Marx depart from his
earlier view that Law is an instrument of progress to a later view which argues that law is unimportant in
modern society? The clue to the answer is in the influence of Hegel and dialectics’7 (which simply means
to argue or debate).
Dialectics is the opposite of metaphysical speculative reasoning used by natural law theorists.
Dialectics involve:
• thinking of nature as an integrated whole, where nothing exists in isolation.

• Nature, as a whole, is in a state of continuous movement and change according to the ways of life in
societies - you can call this the development or progress of history.
• In this phenomena, internal contradictions are inherent; there would be struggle between opposites or
opposing modes of interpretation.
• the tension and conflict between opposites (the thesis and the anti-thesis) is resolved in a synthesis
which absorbs, modifies, negates or preserves both thesis and anti-thesis.
Hegel thinks that society progresses towards the completion of the human task and the creation of true
human peace by progressing unfolding of the ‘spirit’ or ‘Geist’. The human task is complete where human
freedom is realised. It is important to note that the idea of freedom here is very different from the liberals.
The Liberal advocate freedom to mean the respect of their choice or preference such as to buy designer
goods or to watch pornographic materials or to shout obscenities. The Hegelien idea of freedom looks
beyond these immediate forms of freedom. The devotees of Hegel demands a true reason for your
choice. It might be that, really, your choice is not ‘your own’ but is dictated by advertising campaigns and
other marketing techniques.’ You are a slave to fashion and are ‘not free’ in the true sense of the word as
your choice arises out of manipulation. Thus, for Hegel, true freedom consist in fulfilling yourself as a
rational individual.’
Hegel also thinks that there is an important external presence outside the conflicting aspects of everyday
life which unifies and gives meaning to existence. Religion would attribute it to God but Hegel see it in the
‘spirit’ or ‘Geist’ of society.
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4.1.Marx and the Inversion of Hegel: Dialectical Materialism
Marx was taken up by dialectics and concluded that capitalism is only a temporary or transient phase of
human development where ‘alienation’ occurs. However, Marx’s dialectic was different from Hegel’s. Marx
inverted Hegel. He replaces Hegel’s primacy with the spirit or ‘Geist’ with ‘materialism’ which has its basis
in social existence. Although still a keen admirer of Hegel, Marx wrote that his dialectic was; “not only
different from the Hegelien, but its direct opposite. To Hegel the life process of the human brain, i.e. the
process of thinking, which, under the name of “the idea”, he even transforms into an independent subject,
is the demiurgos of the real world, and the real world is only the external, phenomenal form of “the idea”.
With me, on the contrary, the ideal is nothing else than the material world reflected by the human mind
and translated into forms of thought. With Hegel [the dialectic] is standing on its head. It must be turned
right side up again if you would discover the rational kernel within the mystical shell.”
Marx’s combination of Hegel’s dialectic and a materialist theory of knowledge produced dialectical
materialism. Materialism is the foundation of existence as it controls our mind and not the other way
around. Matter is primary. Mind is collateral because it is a reflection of matter. Lenin says;
“The material world perceived by the senses to which we ourselves belong is the sole reality our
consciousness and thought , however supra-sensible they may seem, are merely the products of a
material and corporeal organ, the brain. Matter is not a product of the mind, but the mind itself merely the
superior product of matter.”
We shall see how Marx applies this’ dialectical materialism’ to human relations within society - a historical
study of societal evolution and progrmssion - a method Marx labels historical materialism.
But before that it is important to answer a question: What is the underlying material truth of social
existence - the social setting? Marx’s answer would be that the social existence is being represented by
the mode of economic production in the social system.
5. The Mode of Economic Production

To understand the mode of economic production is to understand the way in which societies produced
and reproduced the basic goods and services which constituted their wealth. A deep understanding of
this would shed light on other things that are going on in those societies: their characteristic laws,
religious, moral, artistic and cultural principles. Marx says; “It is not the consciousness of men that
determines their existence, but their social existence that determines their consciousness.”
The young Marx held two related things: that society should distribute its goods according to the principle
of ‘from each according to his ability and to each according to his needs’; and that true human freedom
was only possible if people obtained real control over their working environment. Such a material aspect
of their working life that moulded their ideas about themselves and their societies. If the material
environment is slow to progress, then the progress of human freedom would be stunted. Hence, to fully
realise the ideals of human freedom and justice, there must be a progression seen in the ability of
humans to have material control over working life.
Marx thought that production under capitalism is regulated by economic laws. The ‘capitalist class’ own
the ‘means of production’. This class of persons derive surplus value from labour of those who do not own
property or other ‘means of productions (the working class here is referred to as the proletariat) but had to
sell their labour power - to sell themselves. The capitalist takes the profit. In return the worker gets wages.
This is a basic set-up of the relations of production characteristic of capitalism. Hence, in the drive to
increase surplus profits, the capitalist class must intensify the exploitation of the proletariat.
This leads to alienation; where man is alienated from the products of his activity since these belong to the
capitalist; he is alienated from the products of his activity itself and also alienated from his essential
nature from other men.
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Hence, to Marx, social justice and individual freedom was only achievable by movement away from the
capitalist system to another. This was to move to a system in which those who worked on the means of
production actually control it. There must be a move towards socialism.
Marx, distinct from other socialists of the time, thought that it was futile to convince people that socialism
and communism were morally superior simply by describing the pros and cons of each system. He wants
action - Praxis! He prefers to trace the movement through the material stages. This could be seen in
Marx’s historical materialism.
6. Historical Materialism
Marx does not provide a blueprint of a specific Utopian ‘pure’ communist society. His was a total social
theory for which the primary subject of study was capitalism. Initially, capitalism would be attractive and
provide wealth for all. In a capitalist society, people are allowed to own capitalist property - the modes of
production - like land or factories. Consistent with the concept of ownership, they are entitled to alienate it
or to earn returns from it in the same way as they can from any other property of their own. This system of
private property would work well initially. The property owners (the capitalist class) makes a profit and
dividends while workers drew wages for their labour.
But, later, tensions or contradictions appear. As capitalism matures, the provision of wealth would
gradually decline. Marx argued that the profit margin would decline. Social revolutions would take place
as new inventions result in a clash with existing relations of productions. Therefore, in changing the mode
of production, they change all their social relations. The hand-mill gives you society with a feudal lord; the
steam-mill, society with the industrial capitalist.
The technical capacity of capitalism outgrows the framework within which it has hitherto worked well. At
this stage of the development, society’s productive forces come into ‘conflict’ with the existing relations of
production. In other words, the relations of productions become their fetters.
In this second phase, capitalism is doomed to encounter crises. The proletariats’ misery would heighten
as the level of exploitation in the name of profits intensify. In order to prevent further decline to their profits
and dividends, the capitalist class would be forced to save upon the wage bill by retrenching workers and
by increasing the pressure to work harder on the remaining workers. Small capitalist business would also
be swallowed by larger business or be forced out of business. The base demand would shrink for the
goods that the economy could produce, leading to chronic underproduction, under-consumption, and high
employment. This would lead to crises of overproduction.
Society is polarised leading to the intensification of the immiseration of the working proletariat. The
confrontation between the social classes would heat up as the division between who benefits and who
loses out from the system becomes more defined and clearer. Those who lost out from the system - the
proletariats - would learn from their struggles and are able to attain a level or organisation which enables
them to confront their ‘masters’; to’ expropriate the expropriators.’ The workers would insist on an
alternative system which guarantees greater control - an association in which the free development of
each is the condition for the free development of all. An insistence on an inevitable movement from
capitalism to socialism.
Marx gives us a history of class struggles. It is the unresolved social contradictions within the system that
lead to higher stages of development.
“No social order is ever destroyed before all the productive forces for which it is sufficient have been
developed, and new, superior relations of production never replace older ones before the material
conditions for their existence have matured within the womb of the old society. Therefore mankind always
takes up only such problems as it can solve ... these problems arise only when the material conditions
necessary for its solution already exists or are at least in the process of reformation.”
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The contradictions of capitalism of which the only resolve is revolution. Here, Marx assumed the prophetic
role24 the working class would unite and form first a socialist and, ultimately a classless communist
society. It is only at this stage that man’s essence would be realised.
7. The Role of Law

What role does Law play in the unfolding of historical materialism? We have witnessed how the evolution
of societies is being shaped by changes in the mode of production. The role of law would also be shaped
by this modes of production. It follows that as society evolve from a capitalist to socialism, law would also
evolve in two phases. Remember, the early Marx who wants to view law as a progressive tool. However,
in the later phases it would be one of the elements contributing to the crisis for that society. This could be
explained by Marx’s view of the real basis of social order - the economic foundation.
As illustrated above, the failure of capitalism is sparked off by the legal and political principle making
property in capital identical to any sort of property; perfectly alienable and exchangeable against other
commodities so as to maximise ones’ return. This is made possible by the law of property which is shown
to be a fetter to further development of the productive forces of society. In other words, the legal
institution, by expressing the political legitimacy of private property, is an obstacle to the societal search
for a way of producing all that is capable of producing and selling it to all those capable of consuming
what is produced.
Upon this foundation erects a legal and political superstructure. We shall now go into greater detail Marx’s
two level model.
7.1. The Two-Level Model

Marx distinguished between the economic base, or infrastructure of society.
• The economic base consists of forces of production, or technology, and relations of productions, which
comprise relations of ownership and authority over people and property.
• The superstructure of law is made up of institutions of law, morality, religion, art, politics, etc. You would
remember how Marx insists that it is the material world – the mode of production of material life conditions
- that controls our mind and consciousness. Therefore, to Marx, the superstructure which consists of the
institutions of law, morality, religion, politics, etc., cannot be understood in isolation from its base or
infrastructure. It is determined and moulded by the economic base. This is obvious from Marx’s
celebrated passage;
“[T]he mode of production of material life conditions ... the social, political and intellectual life process in
general. It t is not the consciousness of men that determines their being, but, on the contrary, their social
being that determines their consciousness.
It is important to return to Marx’s analysis of historical materialism. We find that in the initial stages of
capitalism, the elements of the superstructure and the base function together in a complementary way.
The eventual tension that appears and its eventual movement of the base or foundation is hampered and
veiled by the seemingly stable superstructure. Ultimately, the foundation shifts and becomes so unstable
that the entire superstructure collapses. (You ought to read the contemporary Marxist, Karl Renner on this
point below)
7.1.1. Problems with Base and Superstructure

Commentators often refer to this relationship as a mere metaphor. The metaphor is not without its
problems:
a) Is the material base confined to economics alone or does it include the law? It has been noted by
critics that economic relations are themselves defined by law (part of the superstructure). If this is so,
wouldn’t the base be built upon a superstructure?
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Indeed it has been argued by Althusser, a contemporary French Marxist, that law does shape and
establish economic relations but the fate of the society is determined by the economy ‘in the last
instance’. You may read a brief account of Althusser’s thoughts below.
On another plane, Plamenatz argues that economic relations cannot be described without reference to
legal rules . Indeed it would be difficult to call someone a slave - a non-person - without an understanding
of rights and ‘legal personality’. An complete understanding of who is a ‘landowner’ necessitates the
vesting of a complex bundle of ‘legally conferred rights.
Cohen retorts that we should regard the base as consisting exclusively of material factors. This is
because we should read any reference to ‘rights’ or ‘duties’ as non legal, but merely as ‘powers . In other
words, Cohen thinks that ‘the base is divorced from legal rights, which are only created subsequently in
order to stabilize and protect the new relations of production. This somehow simmers the debate.
However, we could still demand an explanation as to the need for normative legal recognition, found in
the superstructure, if the naked-extra power is effective. This still leaves us ‘wondering whether base and
superstructure can be separated.
b) This brings us to the second problem; what is meant by the ‘superstructure’? Williams highlights Marx’s
usage of it in three senses: (i) the legal and political forms which express existing real relations of
production; (ii) forms of consciousness which express a particular class view of the world; (iii) a process in
which, over a whole range of activities, men become conscious of a fundamental economic conflict and
fight it out.
What is clear, however, is that as far as the law is concerned, there is no doubt that Marx conceived it as
belonging to the superstructure of any society.
c) Finally, what it the relationship between base and superstructure and the law? The later Marx had two
broad views of this relationship.
• ‘Economic Determinism’ or sometimes known as ‘crude materialism’: Law is a phenomenon which

reflects - produced and reproduced - by the driving force of the base.
• ‘Class lnstrumentalism’: law is a direct expression of the will of the dominant class. It is used as a
weapon in oppressing the lower social class. The law is a manifestation of false consciousness in
maintaining the inequality of a class-divided society. Law functions to maintain and support the power and
privilege of dominant economic and political interest. The problem with this analysis is that it assumes
that it is actually possible that law represents the value consensus of the dominant class. Collas suggests
the abandonment of the base and superstructure model and analyse these issues on the Marx’s
alternative theory of law as ideology.
7.2. Law as Ideology

Two features of law stands out in Marx’s historic account. During the early unproblematic and
complementary capitalism stage, law as ideology allows society to function successfully. But it also hides
the true relationship of power in the economic process of production and general social control from those
concerned. Legal ideology can be thought of “... not as legal doctrine itself but as the ‘forms of social
consciousness’ reflected in and expressed through legal doctrine. It gives us false consciousness.
For example, if we look at the doctrine of freedom of contract, prima facie, freedom is only seen by
definition. This means that we understand freedom of contract to mean the liberty to incorporate any
terms into the contract provided that there are no vitiating factors like duress, blackmail, fraud, etc.
However, the definition of law cannot cover all aspects of the market forces. Hence, impediments and
injustice such as a carefully worded exclusion clause, or a standard employment form which provides for,
upon determination of the market forces, starvation wage, would not receive legal redress. They become
invisible to the law.
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This is obvious in certain democratic countries which guarantee equality before the law. This liberal idea
of guaranteeing equal rights to vote, fair trial and freedom from arbitrary arrest, argues Marx only solves
the problems viewed from its narrow legal scope. The law is incapable of solving wider social problems
existing in the ‘bigger picture’ like social inequalities, stemming from, racial or sexual prejudice that some
citizens show others in private dealings. These miscarriages are simply not addressed by the law.
As a result, the victims of these social injustice, who are forced to accept starvation wages or are denied
employment or equal pay because of their race and sex, receive no legal redress. By definition, hence to
the eyes of the law, there is simply no infringements of freedom or equality. Such social pressures and
inequality are invisible to law. Law here not only gives a false consciousness of the real social relations
but it systematically excludes certain social relations from attention. It is ideology. It is a device to assume
control by the state and other leading institutions such as family, school, company to assume real control.
Ideology is unstable.’ We have seen that in the early capitalist society, it serves to complements the
process of capitalist production. It rests on a stable foundation. However as the economic foundation
shifts as capitalism matures, it contributes to the crisis experienced by the capitalist.
Hence, the Marxist is never satisfied asking the normative question, is this a valid contract? or, Is the
exclusion clause reasonable? or, Does that amount to discrimination? etc. The Marxist would say: Is this
a social relation that is left out by legal definition? Does the definition and arrangement serve the interest
of the dominant class? Etc.
Let’s take the tort of negligence, for example. The relatively recent disapproval of Lord Wilberforce’s two-
stage test in Anns v Merton, in Murphy v Brentwood was hailed as a triumph of rights and freedom over
policy. This is close to the ‘internal’ idea of rights and freedom advocated by Dworkin. The law which now
embodies the principles of ‘forsee....bility, proximity and; fair just and reasonable’ now allows an injured
litigant to sue in respect of defective product cases. The law now protects the rights of the litigants against
policy.
But it is still obvious that in cases which concern local authorities, there is, in fact, an increase in the
refusal to find liability on their part. Right now, the local authorities can hide behind the ‘justification’ in
Caparo v Dickman ‘s ‘three pronged test’ to avoid liability. Dworkin would find no trouble in thinking that
there is no negligence because of the ‘legal justification’. Marx, on the contrary would say that law is
failing in its own terms, since it pretends to offer a right which it then allows to be overridden for reasons
incompatible with that right. In short; law legitimises the existing social structure. Marx says this of the
bourgeoisie;
“Your jurisprudence is but the will of your class made into a law for all, a will whose essential character
and direction are determined by the economic conditions of existence of your class Behind your
jurisprudence is your concern for the maintenance of your economic superiority. Your law is a mere
expression, a rationalization, of that concept.”
Not only does the law fall short of its promise, the capitalist and the state may, in turn, justify an increase
in pressure on the workers to maintain the rate of profit by cutting wages by reason of that law. This
shows how laws are fashioned as a functional framework for the production of its economy; and then as
the economy matures; it turns ugly and has the potential to destroy the relations of production they were
designed to serve. Law as ideology breeds contradictions.
Marxism points out that the mistake which liberal jurisprudence commits is to hold on to the bourgeois
image legal fetishism; the legal realm as autonomous and self-contained as the expression and continual
search for justice. This superstructure image obscures the reality of class conflict. It is important to note
that law deserves more sophistication than the label, ‘crude materialism’. It does not just an obvious
reflection of the economic base. If so, it would lose its capacity to ring honor and respect. Therefore, law
is an indirect reflection of economic conditions; sophisticated adjustments need to be made to portray an
ideology of justice. This is clear from Engels’ letter to C Schmidt after Marx’s death;
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“In a modern state, law must not only correspond to the general economic condition and be its
expression, but must also be an internally coherent expression which does not owing to its inner
contradictions, reduce itself to a naught. And in order to achieve this, the faithful reflection of economic
conditions suffers increasingly. All the more so the more rarely it happens that a code of law is the blunt,
unmitigated, unadulterated expression of the domination of a class - this in itself would offend the
‘conception of right’
Law is garbed in an ideology of right, of progress, of social interest, to conceal reality of domination. The
secret of domination is to hide the domination. This domination is what Italian Marxist, Gramsci (see
below for a brief account of Gramsci’s work) term ‘hegemony’ – where compliance by the dominated to
the wishes of the dominating is made effective through a false device which attempt to serve the best
interest of the dominated.
8. Marxism and The State

Having understood the role of law as ideology, it follows that the state itself is illusionary, being part of the
superstructure. It is a political organisation. This, Marx believes, stem from their historical role to be the
concentration of organised power.
The State did not initially exist. It is brought about only by the division of labour and the corresponding
widening gap between classes. It arises to mediate conflicts between individuals themselves and as a
group, particularly on the issue of private property. The state then exchanges social protection in return of
individual freedom.
In a capitalist society, the State represents the organised power of one class, the bourgeoisie, for the
oppression of another. It also uses the legal, political and other ideological apparatus against those who
seeks to quash the existing capitalist order.
However, as we all know, the State, belonging only to the superstructure is unstable and temporary. Marx
predicts that it will gradually disappear when a triumphant proletariat revolution replaces the ‘government
of persons by the administration of things.’ When class instrumentalism disappears - during the
transitional time from capitalism to socialism – we would have no need for law which is, in the end,
nothing more than a tool of class oppression.
As man develop into a ‘group creature’ he would have no further need for rules or codes. The institution
of law would wither away.
9. Marx after the Collapse of Marxism

Communism collapsed in Europe after the fall of the Berlin wall and the opening of the east bloc.
Elsewhere, in 1989 and 1990, we witnessed the challenge against the Soviet Empire which began in
1917.It is ironic that countries which practiced full-blown capitalism like the U.S.A. has not experienced
the revolution that Marx prophesied. Rather capitalism evolved and strengthened itself in countries where
Marx predicted revolution. The capitalist West outperformed the socialist/Communist countries. This is
apparent in the post-cold war collapse of the economy of the U.S.S.R. due to massive arms build up,
whereas the U.S. economy has gone from strength to strength.
It is ironic that the capitalist West, contrary to Marx’s prediction, ‘humanised themselves’. It could be seen
that aspects of Marx’s 10 points of the post- revolution programme for social reform in the Communist
Man jfesto has assisted the reform of the West without the occurance of a revolution predicted by Marx.
This could be contrasted with Lenin’s characterisation of these reforms as ‘bribes to the working class of
capitalist countries which needed to be fought against on an international level. Little could hide the fact
that as the Soviet experience under Lenin and then Stalin makes a pale mockery of Marx’s hopes. Marx’s
prediction of the State and law withering away were side-stepped. The supposed temporary ‘proletarian
law’ continued to exist indefinitely. Marxist-Leninist policies were directed towards sustaining the
existence and legitimacy of the Soviet State under the justification of modernisation to counter capitalist
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imperialism. The Soviet modernisation comes with a heavy price - purges and vast inhumane systems of
administration.
The potent combination of Stalism-Lenism-Marxism is a failed political project, showing a complete

insensitivity to human rights. This brutality survives in China where the Tiananmen Square massacre
contributed to a rewriting of Marxian history.
Marxism is a case of missed-chances. As contrasted with the ‘humanised’ capitalist West, countries that
tried to adopt Marxism failed to deliver the range of economic, social and political liberties in a relatively
more effective and comprehensive way. Rather, communist states become burdened with ‘stifling
bureaucracy and regulation; the banner of equality meant standardisation43 rather than equal dignity, to
enjoy freedom meant being a member of the party.’
9.1. Marx’s Critical Legacy

Does this mean that Marx has got no purpose? Can we say that ‘Things have not worked out the way
Marx predicted?
This, to Morrison, is an ‘understatement’. It is misleading to point all fingers at Marxism for it is only guilty
by association. Marxism is not to be confused by Lenism nor the Stalinist Communist policies. The Soviet
era may be over, along with the crumbling of the east bloc, but Marxism remains intact!
It is undoubted that Marx’s science of prediction may be false historicism but he has left us a ‘critical
legacy’; a ‘sobering case study of the fate of the scientific approach to explaining humanity and the
historical human condition.’
Without Marxism, the critique of capitalism would vanish. Capitalist system has undergone evolution and
is strong enough to withstand a revolution or an economic crisis. The change in organisation of banking
and government investment manage to douse any form of overheating to the economy. Some critics
would say that Marx did not give enough attention to the role of the state.
The impact of Marx’s critical insights did not go down with the Berlin Wall and the collapse of Soviet
Union. The ripples that Marx stirred ‘go beyond his immediate political following’ and seeped into our
everydagy critical conversations which have ‘energised social democratic and liberal thought.’ Morrison
says;
“Among these was a uniquely powerful image o the global energy ad unrelenting expansiveness of
capitalism, an unforgettable focus upon the authority relations of modem industry, and a dramatisation of
the structural antagonism generated by its productive process. The imaginative power within which Marx
highlighted the dizzying volatility of modem economic and social life provided some of the basic premises
of modernism in both literature and the arts as well as politics. At the most general level, Marx’s work has
entered our language, transforming our questions about the world.”
These words are not merely rhetorical. It shows that Marx should not be confined and forgotten; to be left
with the ruins of what was once Communist countries. It strives to meet the challenges of the post-
industrial world. Marx lurks in the post-industrialism West, where workers draw a higher salary and enjoys
various corporate benefits where a basic tension regarding work has become ever more apparent. Indeed
work plays a central role in a person’s life.
Marx could be seen as an essential commentator on modernity. The Marxian analysis must broaden its
approach to law beyond class instrumentalism but its role and social development; how law shapes and is
shaped by the economic structure of society.
The ‘humanist’ aspect of Marx is highlighted by the ‘true Liberals’; of exposing the dehumanising
consequences of capitalism in the modern society. Concepts such as ‘alienation’ and ‘class
consciousness’ are not a relic of the past capitalist order. They are, as Renner sees, taking a new form.
Marx’s thoughts gives hope to the liberation of the human potential through ‘praxis’.
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In a post-industrial world, new problems arise, in addition to old ones. A new form of Gramscian
‘hegemony’ emerges. Laws relating to Sex Discrimination, rules governing exclusion clauses, hire-
purchase and credit purchase, the advent of credit cards and plastic money, the media, and even labour
law - all aspects of a modern capitalist-post industrial society - form a new kind of silent domination. Has
this spawned a new form of alienation and exploitation? Indeed, Karl Renner calls for a reexamination of
these laws; to penetrate its veil of autonomy. Marx’s critical legacy provides the concepts and tools of
intellectual analysis to confront these new conditions.
10. Post-Capitalist Order? The Need for a New Prophecy

Morrison provides an interesting account of the post-capitalist order. He quotes Peter Drucker as saying
that Marx would have focussed On Knowledge and not On Capital (Das Kapita!) if he were to write today.
We live in a post-capitalist society. In an information age where the basic economic resource - the ‘means
of production’ - is no longer capital, nor natural resource, nor labour; it is, and will be, knowledge.
In a post-capitalist society, it is the highly educated person reigns supreme. It is an era of paper
qualification chase. Education is not confined to formal education but knowledge of vital information. We
have entered an age where there is freeflow of information via, the web (the Internet), information is
transmitted in the twinkling of an eye in the age of office automation like the fax, teleconferencing and
cellular phones. The one who has access to information wins.
The post-capitalist age might cut both ways. It might finally free the ‘proletariats’ from exploitation as
labour saving devices such as robots become a norm. On the other hand, it might be ‘hell wherein the
vast majority of he population - who had previously been the ‘workers’ - are no longer needed. The post-
capitalist age moves swiftly too. Even as you are reading this chapter pack, there are talks of developing
IBM’s RIS 6000 ‘Deep Blue’ supercomputer as a superior replacement of the human mind. The thought of
the intellectual and knowledgeable worker losing his or her central place in a post-capitalist order is
chilling.
What happens to the ‘worker’ in post-modernity?
Morrison argues that Marx’s exploited and alienated ‘proletarian’ has moved either;
• into a member of the ‘affluent working class’. This class of workers is colloquially known as ‘yuppies’.
You ought to read the Frankfurt School’s Marxian analysis on this aspect; or
• into the new middle-class as a result of the productivity revolution of this century, along with the legal
structure of the welfare state; or
• become surplus, creating a new ‘underclass’.
The advent of robotics in the industry sparked off by the management and information revolutions of the
late 1960s would lead to the decline of ‘blue collar’ workers. It is predicted that by the next millennium,
traditional workers would account for no more than a small proportion of the workforce. Morrison adds
that ‘globalisation and the speed of technological change threatens to dramatically change the life
chances of vast sections of the population world-wide.
Perhaps we have to readjust and widen the focus of Marxian analysis on a world scale. The prophesied
decline in traditional workers - the ones who make and moves goods –in developed countries would
cause immiseration of third world countries. The headlines are filled with news of ‘sweatshops’ in certain
Asian countries. This would widen the gulf between the rich and poor countries. Labour exploitation,
indebtedness (to the IMF or the World Bank) by economy stricken countries like Thailand and Indonesia
and intimidation rears its ugly head in a global scale and would have to be combated.
We see that ‘new conflicts have emerged while old ones persist’. Marx have left us with a critical legacy to
address such issues; to analyse the increasing dialectics of a global environment and local situation.
10.1 Later Marxist Analysis of Law

It is hoped that a gist of Freeman’s summary would be helpful to you.
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Karl Renner
The famous Austrian marxist, in his The Institutions of Private Law and their Social Functions, provided a
systematic study of Marxism. He argues that legal concepts are often defined in a way that conceals their
real social function (The meaning of social function is narrower than Hart’s distinction between power-
conferring rules and duty imposing ones). He wants to show that the conservatism, uniformity and stability
of legal concepts, like property and contract, is illusory because their social functions had undergone
considerable change and adaptation. Therefore, to understand legal concepts, one had to ‘penetrate its
economic base’.
His historical method demonstrate how in a medieval society the concept of ownership was simple where
the ‘place of production and the place of consumption was the same. Take the farmer for instance, not
only does he own the farm but he personally works there and harvests it. Here, ownership represented its
economic base. However, when ownership became more complex - capitalism - it no longer reflects with
the base of personal work, but becomes a source of a new power of command. Take a worker who works
in a television factory. Although he puts in effort to produce a television set, it does not belong to him but
the capitalist. He is paid wages or salary by the capitalist. Here, he is subject to a quasi-public authority
which arises out of his contract of service.
Here the juristic institution of ownership has not changed but its function has. The owner of certain things
- the capitalists - becomes a quasi unelected government which rules upon the workers. The contract of
service, sale and purchase agreements, loan, tenancy and hire purchase contracts become
complementary legal institutions. With a swift stroke, Renner demonstrates that the concept of private
ownership has transformed into an institution of public law.57 (Perhaps many of you could relate to office
politics here!)
It could be argued that the 20 century witnessed various reexamination of property to protect tenants (The
Rent Acts), employees (such as the establishment of Trade Unions and the tightening of Labour Laws)
and consumers (various commercial statutes such as The Sale of Goods Act 1979, The Unfair Contract
Terms Act 1977, The Consumer Protection Act and The Consumer Credit Act, to list a few). Nevertheless,
this has not altered the power of property much and neither has it changed issues of control which still
rests comfortably with the capitalists.
Some might argue that Renner’ s ‘marxian analysis’ is a significant departure from the more orthodox
Marx. We know that Marx places law as part of ideology in the superstructure. On the other hand, Renner
suggests that ‘legal forms can remain unchanged despite economic transformation in society’. Freeman
argues there is no conflict.58 It is just that Renner provides a deeper reading of Marx and noted that the
base and superstructure were merely ‘metaphors’ which merely serve to ‘illustrate the connection and not
to define in its exact terms
Renner’s contribution is significant as it shows that law might become a tool of reshaping social
conditions. It demonstrates that the relationship between law and the economy is more subtle and
sophisticated as could be seen in the development of English doctrine of estates which led to a more
rapid shift from feudal to capitalistic relations as contrasted with Roman Law.
Antonio Gramsci
He was the founder of the Italian Communist Party. The most important of Graxnsci’ s thoughts were
developed while being imprisoned under Mussolini, which led to the posthumous publishing of his Prison
Notebooks.
Gramsci believes in ‘ideological hegemony’. This ‘hegemonic’ force is made up of the consent of all,
including the exploited, by the linked institutions of ideology such as education, the law, and particularly
the media. This analysis, which encompasses ideology, politics and culture is far wider than the traditional
Marxist theory of power in a capitalist society.
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Thus, Gramsci argues for a true consciousness - ‘consciousness transformation’ – of cultural, political
and other forms of social identity, as well as to overcome capitalist control of the means of production, to
be liberated from this ‘hegemonic force’. The thoughts of Gramsci is perhaps most relevant today where
advertisement and media plays a central role. Haven’t you being swayed, rather unconsciously, into
buying a worthless product that is way overpriced though Mail Order or the TV Media? Do you really want
it?
Louis Althusser
Althusser, a French philosopher, had inspired a school which aims to maintain a more ‘orthodox’ analysis
of Marxism. This school tries to merely refine Marx’s analyses of the relationship between law, politics,
and culture and whether they are all under the ultimate influence of the mode of production. They argue
that the ‘particular characteristics of laws in certain stages of society do not originate with those stages,
but instead interact with society in a way that brings out its salient characteristics.’6’ Let us take ‘freedom’
as an example, it predates capitalism. Capitalism merely highlights some particular salient characteristics
of freedom such as ‘a free market’. However, this merely emphasises only one aspect of freedom and
obscures the rest of the other characteristics of freedom. Hence, capitalism does not give us absolute
freedom.
The Frankfurt School

This school led by cult figure Marcuse, emphasised that domination and repression were not simply a
function of control of the means of production by a particular class. It is also subject to the control of
technocrats. Technology is itself a force of production yielding wealth for the ‘ruling class’ to buy off the
working class by turning them into consumer robots. 62’ As a result, the working class are ‘cooped’ to
capitalism. Therefore, this school has lost faith in the ‘internal’ working class - for example, the yuppies -
who cannot shake away from capitalist wealth.
The attention is turned to persecuted minorities, who stands ‘outside’ society, such as students and even
blacks and radical feminists.
Evgeny Pashukanis
Pashukanis is the soviet jurist and Vice-Minister of Justice who commands the most attention. He argues
that bourgeois law would continue during the period of transition to socialism even though capitalist
exploitation had disappeared. He thinks that the so called ‘proletarian law’ was merely an empty
metaphor because all law would wither away as the State itself withers away.
He was criticised by party legal theorists who maintained that, according to the official Marxist theory, the
State creates its own law so as to protect the dominant class and that there could be no law independent
of the State. ‘Law is nothing without a mechanism capable of enforcing observance of the norms of law’.
So the party hardliners reminded Pashukanis that a ‘proletarian law’ was essential to strengthen the
power of the new State (which includes its punitive organs like criminal law) in this transitional period.
Bourgeois law would only disappear when the proletariat and peasantry finally broke the power of the
capitalist exploiters. (It is interesting that no one socialist State has achieved full communism and the
proletarian law, which is supposed to be transitional, still exists)
He disappeared in the Stalinist purge in 1937 following his denunciation as an ‘ideological.wrecker’.
11. Critiques
It is very easy to criticize Marx at a superficial level. Most unsophisticated criticisms tend to get Marx
wrong or simply emphasises too much on one aspect of Marx that it distorts his overall philosophy. Listed
below are a few criticisms in this superficial manner
• Marxism is irrelevant to Western societies. Everyone today, at least in the western societies, are much
better off than they were when Marx wrote. Remember, Marx’s claims are not about the level of poverty.
His idea of welfare hinges on the relative positions of social groups - class instrumentalist; about the
widening gap we can expect between the rich and the poor. The question of, ‘who gets what?’ is only of
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ancillary interest to Marx. His concern centres on the question, ‘who controls the conditions of peoples’
productive life?’ Finally, he was one of the first to prophesy the doom of capitalism to bring about under-
utilisation of productive capacity, complemented by its under-utilisation of its working population. Any
critic worth his salt would have to refute this thesis, fails take seriously what Marx argued. Consider
legislation on sex discrimination.
It is initially aimed to protect workers. However, it is severely weakened by the imperatives of capitalist
production. The employer could still produce a justification for ‘discrimination’ that is unrelated to the sex
in question. For example, discrimination could be justified on grounds of ‘economic necessity.’ Here, the
protections supposedly afforded against sex discrimination fail at the point at which they are meant to
promise the most - in the realm of day to day work. Marx would argue the same about health and safety
legislation; laws giving trade union rights; laws relating to dismissal; and even, as we have discussed
above, laws that govern the negligence of workmen and defective buildings, etc.
Indeed, Karl Renner argues that even legislation purporting to protect the consumers from indiscriminate
guarantees and exemption clauses and laws protecting debtors under a hire purchase, conflict with their
initial aims. At the end, it just serves to fetter the real freedom of the consumers. You ought to think of
some examples. Can you find some provisions under the Unfair Contract Terms Act 1977?
Law is not a passive reflection of the economic base. It is very common, but at the heavy price of
distortion, to say that some laws, like criminal law, do not really reflect the economic base. Marx never
said that it was. It would be misleading to label law as mere ‘crude materialism’. Marx, Engels and many
contemporary Marxists go through great pains to show that law, like any other elements of the
superstructure, have their own relative autonomy. This, however, does not mean that they embrace legal
fetishism. The economic base - the mode of production -merely sets the framework within which the major
characteristics of law become salient only ‘in the last instance’. Indeed, Engels and Althusser hold this
view. This is very different from the view that each and every detail of that body of law could be explained
by the mode of production - a view no one holds.
• Communism makes us Lazy. This is, itself a crude and lazy account of Marxism. This was never Marx’s
aim to comment on the human frailty of laziness. Marx’s legacy is just for us to realise the ultimate human
freedom - to be able to reap the benefits of your work. Thus, it makes no sense to say that capitalism is to
be preferred because it encourages people to work hard and increase surplus profits, because the
workers would be ‘alienated’ from the product of your labour. This brings us back to the model of
capitalism that is the subject of Marx’s historical materialism. A Marxist could easily retort, ‘Why are you
working so hard for your boss who ultimately reaps the benefit of your labour?’ or ‘You are merely being
exploited by your industrialist boss’. Laziness is not a defect inherent in a Marxian theory but a defect
inherent in a lazy person.
It is crystal clear that Marxism has no room for lazy persons as seen from his early belief in a principle of
justice ‘from each according to his ability, from each according to his needs’. This is a communitarian
ideal that envisaged a society ultimately composed of spontaneously cooperating individuals.
It is suggested that you should develop from these powerful critical themes, if you want a balanced
picture.
a) The Mode of Production does not even have the broadly determining role in relation to law that Marxist
give it. The law is not simply relatively autonomous. In fact, it evolves in no way that is subordinate to the
imperatives of capitalist production. You might want to consider whether law is, as Dworkin argues, about
integrity and based on the political principle of treating people with equal concern and respect.
b) Marx was Insensitive to the Importance of Human Rights. We noted above that Marx embraces the
principle of ‘from each according to his ability, from each according to his needs’; an ideal vision of co-
operating individuals who would have no need for basic law or basic rights against one another in a
communist society. This image downplays the importance of human rights and the other apparatus of
democratic control over state power. Is the issue of human rights, as Marx argues, merely a transient
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one? You should relate this to Marxist history of purges and the Gulag in the former Soviet Union. Events
which left its mark in political history of recent years such as the Tiananmen Square massacre is not so
easily forgetten or forgiven.
This powerful criticism meets an equally forceful defence that ‘Marx was no more responsible for the
Gulag (or Tiananmen) than Nietsche for Auschwitz.’ The hopes of Marx were not entirely shared by
Lenin, Stalin or Mao. The problem is that Marx never provided a blueprint of Utopian Communism. He
starting point is just a commentator on the hopes and fears of modernity - of capitalism. Gorbachev’s
‘perestroika’, China’s ‘open door’ policy by the late Deng Xiaoping and the return to ‘ideology’ by
President Jiang Zemin were never envisaged by Marx. So does the inhumanity that followed the ‘Great
Leap Forward’.
c) Law Plays a Puzzling Role in Marx‘s Theory. It seems that law is at once crucially part of the mode of
production, giving it its structure; and at the same time part of the superstructure, and hence explained by
the superstructure.
Do refer above on the debate between Plamanatz and Cohen (See 7.1.1.). It is true that the base
consisting of capitalism could only make sense if there are laws which grant the right to own private
property. A complete understanding of who is a ‘landowner’ necessitates the vesting of a complex bundle
of ‘legally conferred rights. At the same time, law is argued by Marx to occupy the superstructure.
Cohen’s defence that such ‘rights’ and ‘duties’ pertaining to private ownership does not stem from ‘legal
rights’ but merely arise out of a factual ability or disability, is unhelpful because it still begs the question as
to the need for normative legal recognition, found in the superstructure, if the naked power is effective.
This still leaves us ‘wondering whether base and superstructure can be separated.
Comments
As with other areas in Jurisprudence, there will be a question on Marx every year. The trend in recent
years has been to query the student on whether in today’s world Marxism has anything further to offer us
whether or not Marxism furthers our understanding of law. The student will do well to appreciate how
Marxism can apply in today’s modern context especially where the Marxist or Socialist states have all but
declined into oblivion.
Karl Marx
by Harold Laski
No name in the history of social ideas occupies a place more remarkable than that of Karl Marx. Save
Machiavelli and Rousseau, no thinker has been the subject of a condemnation so unsparing, and, like
Rousseau, it has been his fortune to preside after death over a revolution conceived in his name. His
books have received from a chosen band a scrutiny as earnest as ever the Bible or the Digest have
obtained. Yet the precise grounds of the position he occupies among "Socialists is a more complex
problem than is usually assumed. His theory of value is no more than a formidable adaptation of a
concept already worked out in full by a group of English predecessors. Men like Harrington and James
Madison realized, hardly less clearly than he, the significance of the materialist interpretation of history.
His appreciation of the fact of class antagonism had been anticipated in detail by Saint-Simon. Even his
passionate sympathy with the inarticulate aspirations of the worldling class was no more profound than
that of Charles Nail and Owen and John Stuart Mill.
His position, indeed, cannot be appreciated unless it is seen in its historical perspective. Born between
too revolutions, he utilized the method produced by the reaction from the excesses of France to the
service of its fundamental principles. The disciple of Hegel, he was the first of those who felt his master's
influence to apply his dialectic to the analysis of social facts. Hardly less important was the material of
which he made use. Beginning to write when the full implications of capitalism were becoming visible, he
utilized its own description of its economic consequences as the proof of its moral inadequacy. The
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evidence was impressive and complete; and the induction therefrom of a social order at once new and
inevitable, suited to a nicety the yearnings of his generation.
The main result of the Hegelian movement was to lend a new sanction to philosophic conservatism. The
impact of the revolutionary wars seems to have turned the mind of its founder towards the justification of
established order. In that sense, Hegel is a chief of reactionary romanticism, and his affinity to men like
Burke and Savigny is obvious. Yet the essence of Hegelianism is, at the same time, the idea of evolution,
and, to an age which, as with de Maistre, was chiefly concerned with finding the basis of a permanent
social scheme the notion of evolution was a definitely radical one. For Hegel insists on the impermanence
of institutions. Each age is its predecessor with a difference. There is a change of tone and outlook, a
tendency to emphasize the antithesis of what has been characteristic of the earlier period. To the period
of religious intensity there succeeds the age of religious indifference; Bossuet begets Voltaire, as Lord
Eldon implies the reforming zeal of Henry Brougham. The law of life is the warring of contradictions, with
growth as its consequence. This process, which Hegel called dialectic, is, as it were, a kind of rhythm
which moves from the concrete hardness of some definite idea to its opposite; from that repulsion it shifts
towards a synthesis in which the two first stages interpenetrate each other to form a new concept by their
union.
This notion is the ruling method of Marxian thought. Obviously enough, it provides a means whereby the
foundations of any given social system may be criticized at their base. For if we can be certain that any
interpretation of a period is necessarily a partial view, we have only to emphasize its antithesis to call
forth the possibility of a new standpoint. Hegelianism, for example, might insist on the moral adequacy of
the Prussian State. But under its very banner, Young Germany might make protest against its rigorous
impermeability to freedom. Where Hegelian doctrine had emphasized birth and position, Young Germany
could point to the frustration of talent and the tragedies of the poor. Where it insisted on the value of
religion, the newer thinkers might question the very foundations of faith. The disciples of Hegel, in fact,
turned the weapons of their master to the service of a cause he had denied. Strauss and Feuerbach,
Bruno Bauer and Heine are essentially a part of the same general tendency of which Marx is the
representative in social ideas. They are the heralds of revolt against the reaction. Their difference from
Marx consists in their failure to see the political implications of their position. Marx grasped: them from the
outset; and the Hegelian dialectic in his hands is an effort at the overthrow of the existing social order.
The time, indeed, was singularly fitted for the ideas of which he was the protagonist. The shadow of two
French Revolutions bestrode Europe like a colossus; and the very reaction they had provoked was
compelled to make grudging concessions to ensure even its temporary survival. The mood of the people
was everywhere bitter and discontented; and the criticism of existing institutions secured a widespread
and eager welcome. In France, the work of Saint-Simon and Fourier and Enfantin had shown how prolific
of novelty the revolution remained; and its influence was hardly less apparent in the new liberalism of
Sismondi and the Catholic experiments of Lamennais. England was in the throes of a convulsion not the
less profound because it was silent. Bentham had at last come into his own; and, under the stress of his
urgent protests English institutions were being transformed into the organs of a middle-class state. The
relics of feudalism had at last submitted to the assaults of Ricardo and his school; and the newborn
industrialism, even if, to an observant eye, it seemed but the grim doctrines of Calvin translated to an
economic sphere, completely altered the atmosphere of social life.
The revolution, indeed, did not achieve its purpose without suffering As early as 1805, Charles Hall had
uttered a remarkable protest against the implications of the new civilization and that half-forgotten school
of economists who form a link between the individualism of Bentham and the co-operation of Owen, were
riddling its protective armour in the name of social justice. The masses had regarded the Reform Act of
1832 as the prelude to the greatest happiness of the greatest number; and their disappointment
expressed itself in the revolutionary activity of the trade unions and the formation of the Chartist
movement.Thinkers like William Thompson and J. F. Bray, noble-minded agitators like Francis Place and
William Lovett, are every whit as indicative of the new capitalism as the great merchants and the
incredible machines of Lancashire and Yorkshire. The Industrial Revolution reaped what it had sown. It
ground a whole generation into intolerable despair, and dreams of its destruction were the sole refuge of
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its victims. Those dreams were the background which made possible the emergence of Karl Marx. They
gave him the foundation of his social philosophy.
Karl Marx was born at Treves on May 5th, 1818, of Jewish parents who were descended on both sides
from rabbinic ancestors. Neither his father, who was a lawyer, nor his mother seems to have had any
special ability; and Marx himself was the only one of several children who attained intellectual distinction.
When he was six years old, the family was converted to Christianity, not, it appears, from any desire to
avoid the stigma then attached to the Jewish faith, but as a result of that romantic idealizing of Christianity
of which Chateaubriand was the most famous representative. It is not easy to measure exactly what
influence this change had upon Marx. If it later opened to him avenues that would otherwise have been
closed, he never availed himself of them. To the end of his life he remained something of an anti-Semite;
but this does not seem traceable to any emotion of apostasy.
Marx's childhood was passed in the normal atmosphere of a patriotic lawyer's life. His father was a
zealous Prussian, to whom the defeat of Napoleon offered the opportunity, of which his son did not take
advantage, of a lyrical hymn to Prussian victory. He went to the grammar school of his native town, where
his ability was immediately marked by his teachers. There too, he was. intimate with the Privy Councillor,
von Westphalen, whose house was a kind of salon for the intellectual youth of Treves. At least Marx
learned there a love of literature and the dedication of his doctor's thesis is testimony to his grateful
regard for his future father-inlaw. For even before his departure, in 1835, to Bonn University, he had
become secretly engaged to Jenny von Westphalen, whose beauty and strength of mind had awakened
in him an affection which did not diminish through life.
Marx remained a year in Bonn, studying jurisprudence; but he seems to have devoted himself to the more
convivial side of the University, and it was not until his removal to Berlin, in 1836, that he threw himself
into intellectual work. Berlin was then at the very height of its reputation; and the influence of Hegel was
still paramount in its instruction. No sort of learning seems to have come amiss to Marx. History and
philosophy geography and jurisprudence, literature and Aesthetic, all of them aroused in him the typical
enthusiasm of an undergraduate in search of omniscience. Nor--it is a grateful thought--did he fail to write
poetry; and if his verses are a fair index to his state of mind, he was full of a restless insatiability for
knowledge, and a zealous desire to solve the problems of the universe, from which at least there must
have been derived many hours of happy work. He tried his hand at composing philosophic systems. He
attempted to compile an outline of jurisprudence. He went hardly at all into society, and it was not until the
winter of 1837 that his experiments resolved themselves into a settled system. He surrendered the neo-
idealism of Kant and took refuge in a complete acceptance of Hegelian metaphysic. That this change
represented for him a very real mental crisis is evident from the passionate, if turgid, letter to his father of
November 10th, 1837. There he summarizes the intense struggle through which he had passed, the
desire "to dive into the deeps of the ocean . . . bringing up chaste pearls into the sunlight."
He was ill and troubled. His poems and short stories were burned; he sought escape from the seductions
of Hegel in discussion at the Graduates' Club, only to find himself the more securely enmeshed therein. It
is the typical intellectual history of an ardent mind, conscious of great powers, and eager to secure a
foothold from which to survey the universe. Not unnaturally, it greatly disturbed his father. He, good man,
was anxious above all to see Karl at work in a lawyer's office, or, even better, in Government service.
Why did he not do as other students, attend his lectures, meet the right people, and embark upon his
future career? He did not understand this mental torment save to see that it involved physical ill-health
and a good deal of miscellaneous reading totally unconnected with the law. But Marx's ideals had already
passed beyond so pedestrian an existence; and his father seems to have reconciled himself to the new
ambitions. Marx determined upon a University post, and for that purpose devoted himself to the study of
philosophic jurisprudence. With friends like Bruno Bauer and Friedrich Koppen, he buried himself in study
and discussion. A thesis was written on the philosophical systems of Democritus and Epicurus, and in
1841 Marx became a doctor of the University of Jena. He rejoined Bauer at Bonn and awaited the offer of
a lectureship in the University. Had that offer come, the history of European Socialism might have been
very different. But the Prussian educational system did not look with affection upon eager young men
whose views did not square with orthodox teaching. The post did not arrive, and it was shortly enough
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obvious that it was not likely to arrive. An academic career being thus impossible, Marx set to work to find
a living in journalism, and in 1842 an opportunity of an attractive kind presented itself.
The first number of the Rheinische Zeitung was published on January 1st, 1842, and Marx was a warm
friend of the editor, who had met him at the Graduates' Club in Berlin. Invited to assist, he wrote
philosophical articles which not only brought him to the notice of a wider circle, among whom were men
like Feuerbach and Moses Hess, but also secured for him the direction of the journal on the retirement of
its first editor in the next October. Thereby Marx was compelled to deal, and for the first time, with
immediate political issues. He came into contact with French and German Socialism, then in their Utopian
stage. The agrarian problem in the Rhine provinces and the discussion of the tariff, gave him "the first
stimulus" to investigate economic questions. French socialist ideas were already being discussed in the
paper, but Marx, as always, determined upon a thorough grasp of the issue, did not as yet pronounce
upon their worth. An editor who takes time to make up his mind is obviously lost; and the directors of the
paper decided to make a change in its management. Marx, who had just married, seems to have
resigned without regret, and to have buried himself for the next two years in those economic studies from
which he emerged a Socialist.
Of the inner history of those years we know practically nothing. Certain alone it is that as early as May,
1843, he detected within society "a breach which the old system cannot heal"; and it was not long before
he showed in his letters an intimate knowledge of Fourier, Proudhon and Cabet. Already he had done
with Utopias; the problem was "to explain the struggles and yearnings of the time." In the winter of 1843,
when he had settled with his wife in Paris, he wrote the introduction to Hegel's Philosophy of Law, which
remains, perhaps, his profoundest piece of technical criticism. Already he was thinking in terms of
revolution, and insisting that the task of the proletariat was to free itself from the existing social order.
Poverty he viewed, thus early, as the artificial product of a bourgeois society; and the denial of the right to
private property had become for him the fundamental avenue of release. But we catch glimpses only of
this time. All that can be said with certainty is the fact that reflection had made him a Socialist. He had
realized, too, the inadequacies of the abstract remoteness of French Socialism. He had seen that the
political state was, at any given time, the reflection in structure of the ideas of that epoch. He had realized
that the main need was to make plain to the mass of men the implications of the state, and the end to
which their half-conscious struggle should lead them. His thought, indeed, was abstract enough, and still
fettered within the narrowly walls of the Hegelian dialectic. But at least it was moving forward.
Meanwhile, the problem of how to live had still to be solved. He had gone to Paris in October, 1843, to
become editor of the Franco-German Year Books. But that periodical lasted only for a single issue, and,
for Marx, its chief importance was the appearance therein of a long and frankly, bad article by Friedrich
Engels on political economy. The article led to correspondence between them, and in the autumn of
1844, Engels went to Paris to visit Marx. That visit was the commencement of a friendship which even
death did not terminate. Friedrich Engels was the son of a rich manufacturer in the Rhineland. His father
owned a cotton mill near Manchester, to which, in 1842, Engels had been sent to study English business
conditions. He was already an eager critic of social conditions, and how carefully he observed the life
about him, his Condition of the Working Classes in England in 1844, which he published in 1845, bears
witness. A sympathizer with the Chartist Movement, and a contributor to Owen's New Moral World, he
was exactly in the frame of mind to be receptive to Marx's ideas. And his personal qualities admirably
fitted him to be the complement of Marx. Thoroughly loyal, without an atom of personal ambition,
generous, and self-effacing, practical and energetic, he brought to Marx all the necessary characteristics
of a Fidus Achates. His unstinting literary assistance hardly less than his constant financial aid were the
materials which determined Marx's future career. It is, indeed, almost impossible to disentangle the
labours of the two. Clearly enough, it was to Engels that Marx owed both his knowledge of English blue-
books as a source of economic theory, and his introduction to the work of the English socialist school.
Without Engels, too, it would have been difficult for Marx to undertake the research to which the first
volume of the Capital bears witness; and the posthumous publication of the two latter volumes was the
tribute that Engels paid to the memory of his master. That Marx would have been an important figure
without Engels is clear enough; but the aid rendered by the latter made all the difference between the
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comparative calm of London and the restless wanderings of which hapless exiles like Bakunin were the
miserable victims.
The sudden end of the Franco-German Year Books made Marx turn to more solid production. The Holy
Family (1845) is important, not only because it contains the first clear outline of the materialistic
conception of history, but also because its attack on Bruno Bauer is evidence that Marx had already
broken with the young Hegelians. He had come to place all his faith in the significance of mass-
movements. where Bauer believed that the ideas by which mankind is moved cannot hope for more than
superficial understanding from the mass and depend for their success upon the efforts of great men.
Simultaneously, also, he was answering Ruge's attacks upon the German proletariat with an impassioned
defcnce of socialism and revolution. Weitling is held up as proof of proletarian virtue against the
mediocrity of the political literature of the German bourgeoisie. And in the polemic against Ruge it is
insisted that the time for political revolution, the only revolution of which the German bourgeoisie is
capable, had passed; the capacity of Geimany is the capacity of its workers, and it is to a social revolution
that Marx directs attention.
This Paris period is important not only for the advent of Engels. Mingling with the German workers then
living in Paris, Marx naturally met those who were already in sympathy with his own views. From them to
Proudhon was a natural step, for Proudhon was already the dominant socialist influence in France.
Proudhon was interested in the Hegelian dialectic, and he and Marx spent countless hours in discussing
its application to social science. But this fruitful intercourse was interrupted by his expulsion from France
(January, 1845) at the demand of the Prussian Government. Marx went from Paris to Brussels, where he
remained, but for short intervals, until the outbreak of the revolution of 1848. Engels gave him a selection
of his library and Marx devoted himself to the composition of his singularly able and unpleasant criticism
of Proudhon. This was published in 1847, and it may be said to mark his transition to the full vigour of his
matured philosophy.
Proudhon's reputation as a social philosopher has undergone an interesting reconstruction in our own
day. (1) As an economist he has hardly survived the analysis of Marx. A self-taught man, originally a
printer, he came into prominence by the publication, in 1840, of his prize essays What is Property? in
which, with much brilliance of style and no small genius for paradox, he repeated in the economic sphere
the substance of those criticisms of social organization which Rousseau had expressed in a prize essay
not less famous. But Proudhon's aspirations were not limited by his knowledge. With undoubted ability
and with a real gift of social insight, he yet lacked that rigorous training in the method of intellectual inquiry
without which the production of a logical system is rarely possible. Discovering the work of Hegel, he
attempted an interpretation of social life in terms of the dialectic. It is, broadly, a mass of ill-arranged
jargon with some brilliant asides. But the work was written while in contact with Marx, and the Philosophie
de la Misère is the exposition of exactly that type of Utopia-mongering which aroused Marx's anger. It
depended for its success mainly upon the unconscious ease with which it determines the most complex
economic problems, and the reckless certitude of its own conclusions. It is, indeed, at the same time, a
very attractive book. Proudhon realized, not less keenly than Marx, the evils of capitalism, and he was not
less anxious to point the way to an economic order of which the motives were freedom and justice. In the
Du Principe Fédératif and the Justice dans la Revolution, indeed, he outlined a type of federalism of
which the suggestiveness is immense; and it would be legitimate to argue that not the least significant
source of the ancestry of Guild Socialism could be traced to his; writings.
But the conflict between Marx and Proudhon was an inevitable one. At bottom, the ideals of Proudhon
were those of a peasant socialism, in which the authority of a central state was reduced to a minimum; he
was reformist in outlook, despite the vigour of his phrases, and his economic views were always
subordinate to certain ethical assumptions. Marx was the typical representative of the new industrialism,
and the source of change for him was solely to be traced to developments in industrial technique.
Authoritarian and materialist in both outlook and temper there was no real contact between Proudhon and
himself. Marx, moreover, was a trained scholar, to whom the luxuriance of Proudhon's speculations was
never an adequate substitute for fact. He was able without difficulty to show that Proudhon understood
neither the theory of value nor the process of production. At bottom, as he insists, Proudhon had done
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little more than urge, first that labour was the source of value, and next that riches and poverty co-exist.
Proudhon could see that the source of economic injustice lay somewhere within the system of production,
but he could not, with any clarity, explain its development. Marx overwhelmed him with ridicule, abuse,
and sarcasm, and it must be admitted that from the standpoint of an economist, right is on his side. And
Marx's answer, the Poverty of Philosophy, is noteworthy also for its firm grasp of the economic processes
of history and for his insistence upon the part that an oppressed class has always played in the
development of any system founded upon class antagonism. But the main value of the book consists less
in any positive doctrine that it announces than in the atmosphere by which it is permeated. It is definitely
revolutionary, and it is revolutionary because it is historical. Its lesson is the argument that social
evolution implies economic revolution. That was a new note to strike in the history of European Socialism.
The controversy with Proudhon was the natural prelude to the Communist Manifesto. It had been evident
to Marx, for several years before 1848, that Europe was on the verge of revolt. England was passing
through a period of intense agitation. Socialism was growing in Germany by leaps and bounds; and the
lyrical falsifications of Lamartine seemed to the Paris workmen infinitely preferable to the mediocre
corruption of Guizot and Louis Philippe. Marx, indeed, did not see that the political situation was far too
complex to admit of an interpretation in uniform terms. Democratic nationalism like that of Mazzini,
individualist republicanism like that of Ledru-Rollin, such hostility to dynastic oppression as Kossuth
embodied, state socialism as typified by Louis Blanc--the forces of upheaval were too various and
incompatible to admit of any continuous co-operation. Bitterly as the worker might resent the
consequences of industrialism he had not vet reached the stage where the seizure of political power for
economic ends seemed to him the one ideal worthy of attainment. And he was to no small degree, still
attracted by the kind of unrealistic thinking of which Robert Owen was so prolific, the sense that the
difficulties of the time might be evaded by extra-political organization. Marx realized that this attitude was
definitely unconstructive. The seizure of the State was to him the starting point of successful effort, and
when Frederic William IV summoned the United Assembly in February, 1847, it was not unnatural for him
to assume that the hour for action was at hand.
From the outset of his life in Brussels Marx had mingled with the German socialist residents there. He had
come into contact with the League of the Just, an organization of German workers with branches in the
chief European towns. This society, founded in 1836, had in 1840 moved its headquarters to London,
probably to escape the unwelcome attentions of the political police. The attention of the London group
had been drawn to Marx by the members in Paris and Brussels. The London branch commissioned
inquiries to be made about him, and when the first Congress of the League was held in London in the
summer of 1847, Engels and Wilhelm Wolff, the latter, through Engels, a disciple of Marx, were present at
its deliberations. Engels had spent the year in efforts at revolutionary propaganda in Paris and the
Rhineland; and it is probably due, in the main, to him that the League of the Just was transformed into the
Communist League. The ground was thus prepared for Marx, who appeared at the second Congress,
also in London, in December, 1847. Engels had already conferred with him as to the ground to be taken
there; and he had sent Marx the outline of a programme to be offered to the Congress for acceptance.
Engel's outline contains the substance of the famous manifesto; but it lacks the ringing challenge and firm
grasp of its successor. At the Congress, Marx and Engels were commissioned to draw up a programme.
They were prepared for the effort; and the German edition of the Communist Manifesto appeared a few
days before the outbreak of the Paris revolution.
It is not easy to over estimate the significance of the Manifesto. It gave direction and a philosophy to what
had been before little more than an inchoate protest against injustice. It began the long process of
welding together the scattered groups of the disinherited into an organized and influential party. It freed
Socialism from its earlier situation of a doctrine cherished by conspirators in defiance of government and
gave to it at once a purpose and an historic background. It almost created a proletarian consciousness by
giving, and for the first time, to the workers at once a high sense of their historic mission and a realization
of the dignity implicit in their task. It destroyed at a stroke both the belief that Socialism could triumph
without long preparation, and the hope that any form of economic organization was possible save that
which was implicit in the facts of the time. It insisted upon no natural rights. It did not lay down any
metaphysic. It was, on the contrary, a careful and critical historic survey of the institutional process
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regarded as a whole. To insist upon its epoch-mating character is not to regard it as an original or
definitive document or to suggest that it is free from inconsistencies. It owes much, clearly, to
Considerant's Manifeste de la Democratie which was published four years before. (2) There have been
Utopian socialisms in despite of Marx; and we are doubtless not at the end of them. The belief in natural
rights revives with every age of discontent, and it would be possible to prove that the idea of natural rights
is
necessarily implicit in the juridical structure of Socialism. Nor is its treatment of the middle class at all
adequate. At one point it is subject to a vituperation so scathing and relentless, as to make it seem the
nurse of all social evil. At another its great historic achievements are exalted beyond all praise. Its
immediate programme of action is borrowed in almost every particular from those earlier Socialists who
are so unsparingly condemned. Nor can Marx's claim that he substituted "a critical insight into the facts,
progress and general results of the actual social movement" for the systems of his predecessors, be
entirely accepted; for, after all, it is not the least merit of Fourier and Saint-Simon that they had described
with not less sober accuracy than that of Marx the economic conditions of their time. Even the use of the
class-war as the key to history was brilliantly in the Genevan Letters of Saint-Simon. Yet the general
superiority of the Manifesto to previous Socialist writing is incontestable. It contains, broadly speaking,
four definite groups of ideas. Beginning with a history of the growth of the middle class it recounts its
victory over feudal privilege, its emergence into the full development of capitalistic enterprise, and its
necessary result in a revolutionary proletariat. A second section deals with the philosophic interpretation
of this history. It argues that the doctrine of the class struggle, the necessary and inevitable conflict
between the bourgeoisie and the proletariat, with the consequent revolutionary role that is assigned to the
latter, are the plain deductions to be drawn. Ways and means are then discussed, the main object of
which is to bring within the ambit of state control the whole economic life of the
people. There then follows a criticism of previous Socialist literature of which it must be said that, forcible
and eloquent as it is, much of it is inaccurate and the whole unfair. No description can do justice to the
brilliant vigour of the whole. Every phrase of it is a challenge, and much of it has the same moving
passion that distinguishes the exordium of the Social Contract or, in a very different type of polemic, the
Paroles d'un Croyant of Lamennais. It is the book of men who have viewed the whole process of history
from an eminence and discovered therein an inescapable lesson. It is at once an epilogue and a
prophecy—an epilogue to the deception from which the workers suffered in the Revolution of 1789 and a
prophecy of the land of promise they may still hope to enter. A movement that could produce a challenge
so profound came hardly less to fulfil than to destroy.
It had hardly appeared before the Revolution broke out in Paris, and Marx, as a precautionary measure,
was banished from Brussels by the Belgian Government. "Tyranny has banished you," wrote the French
Provisional Government, "but a free France opens her gates to you." Marx proceeded to Paris, but
remained there only a short time. Germany was already seething with revolt, and the natural vantage-
ground for him was obviously the Rhineland. Gathering about' trim the members of the Communist
League Marx went to Cologne where the editorship of the revolutionary paper, the Neue Rheinische
Zeitung, was entrusted to him. Brief as was its life, its substance was not merely brilliant but of great
significance as an indication of the Marxian tactic. Engels and Wilhelm Wolff were its chief contributors,
and Freiligrath and Lassalle sent poems and essays. Mehring has published a selection of the chief
articles of Marx in this paper. Dominantly, they insist upon three ideas: the disarming of the bourgeoisie,
the erection of a revolutionary terror "to abridge and concentrate the hideous death agonies of society,"
and the creation of a revolutionary army. There is no room in Marx's thought, save perhaps as an
ultimate, for any democratic system. Revolution opposes counter-revolution, and a reign of terror is the
path to triumph. Liberty is dismissed as a purely bourgeois ideal, which impedes proletarian advance to
its goal. The idea of a general upheaval, Russia linking hands with France, Berlin uniting with Vienna, is
emphasized, though it should be added that Marx had no full realization either of the difficulties the
Revolution would encounter, or the speediness of its destruction. The paper hardly lived for a year, when
troubles with the censorship put an end to its existence, Marx left Cologne and returned to Paris, but only
to witness the bloody suppression of the days of June. Banished by the French Government in July,
1849, to a remote corner of Brittany, he decided to move to London. Thither he went with his family, and
he remained in England, with one or two brief intervals, for the rest of his life.
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Marx's London period is, creatively, the most important part of his career; but it was a difficult and tragic
struggle for existence, and his work was accomplished only by heroic effort. For the first ten years, the
family was hardly over the verge of starvation, and Marx had even to pawn his clothes for necessary
expenses. For was his intellectual environment easy. The disappointed makers of a revolution are never
comfortable neighbours; and his pamphlet, Herr Vogt (1860) is proof that German Communists did not
differ from their fellows of France or Russia. ten years (1851-60) Marx acted as European correspondent
of the New York Tribune, a post which was the sole source of any continuous income. It was, however,
very poorly paid, and if the selection of his articles therein published by Eleanor Marx after his death is at
all representative, it is clear that the taste of the American reader has changed in remarkable fashion
since the 'sixties. For Marx does not abate one iota of his convictions in his correspondence; and the
manner of interpretation is that of the philosopher rather than the journalist.
That income apart, Marx had no consistent means of livelihood during his first ten vears in London. Then
came one or two family legacies, and a generous tribute from Wilhelm Wolff; later, Engels was able from
his own means to allow Marx some three hundred and fifty pounds a year. Yet, with all their penury, these
were not unhappy years. His wife seems to have had a real genius for deriving contentment from
misfortune; judges like Heine and Paul Lafargue paid her the tribute of profound admiration. His children
were growing up, and Marx was passionately fond of his children. Their nurse, Helene Demuth, was a
source of infinite help and comfort, and there was always the sure knowledge of the inevitable triumph of
the revolutionary cause.
For Marx did not share in the sense of depression which fell upon Liberals after the failure of 1848. He
shut himself in the British Museum and, sometimes working sixteen hours a day, set himself to the
composition of a socialist economics. One or two minor pamphlets were written, as the unsparing
denunciation of the coup d'etat of 1851, which he called the Eighteenth Brumaire of Louis Bonaparte
(1852) and the Critique of Political Economy (1859) which is important in part because it is the
groundwork of the Capital itself and in part because of the valuable light it throws upon his own
conception of his method. But outside his relations with the international, it was to the Capital that these
years were devoted. And they were years of unremitting and devoted service. He was at the Museum as
it opened and never left until the attendants turned him out. A chosen band of helpers, all fellow-exiles,
used to accompany him and aid in the researches he conducted; though it should perhaps be added that
they were not admitted as assistants until they had shown their agreement with Marx and passed certain
craniological tests. Phrenology was not typical merely of the Utopian period of Socialism. Marx, moreover,
never considered the exchange of conviction for comfort; offers of position came to him, as when Buchar
sounded him, possibly on Bismarck's behalf; but he never dreamed of desertion. There is certainly no
more remarkable instance of great sacrifice for intellectual discovery than that of which Marx's life is a
record. Darwin, it is true, devoted twenty years to the testing of his hypotheses, but he had ample means
at his command. Marx was surrounded by difficulties, of which not the least was the knowledge that his
self-imposed task condemned his wife and family to profound suffering. Neither he nor they seemed to
have flinched from the consequences, and one may judge not unfairly that their pride in his work was for
Marx his happiest achievement.
Of Marx's intellectual environment in London, we know all too little. Men like John Stuart Mill he never
met, though he was on friendly terms with the leading trade unionists as Odger and Applegarth. With the
latter, however, he had no intimate political relations, and in the contemporary history of English labour,
his name has no large place. That, perhaps, was natural enough; for English trade unionism was then a
system of compromises with which Marx's revolutionary dogmas had little connection. For the most part
his affiliations were with Engels and the German exiles in London, though only the former seems to have
enjoyed his full confidence. He had, moreover, a close relation-ship with that mysterious figure, half
fanatic and half-knight-errant, David Urquhart, whose loathing of Russia Marx seems fully to have shared.
Both of them saw spies at every street corner, and at one time or another, in each case without a shadow
of justification, Marx was able to convince himself that Herwegh and Bakunin were government
emissaries. It is, of course, sufficiently intelligible that an exile who had himself been the object of police
attentions should live in an atmosphere of nervous suspicion; but it is a regrettable corollary of Marx's
accusations that both Herwegh and Bakunin belonged to different sections of the Socialist party. Marx
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never welcomed opposition or rivalry; and he Noms too prone to assume that a doubt of his rightness was
a doubt also of his opponent's integrity. Yet it must be counted to his great credit in these years that he is
in no small degree responsible for the .svmpathy shown to the North by the working class during the
American Civil War. It was Marx who advised the union of the labour leaders with Cobden and Bright to
arouse the enthusiasm of the trade unions; and it was Marx who proposed in the General Council of the
International, that a vote of congratulation be sent to Lincoln, on his reelection as President of the United
States. Marx played some part also in arousing the trade unions to protest against the brutal suppression
by Russia of the Polish revolt of 1863.
But, apart from the preparation of Capital, Marx's chief occupation in London was with the early stages of
the First International. In 1862 a group of Paris workmen paid a visit to the London Exhibition of that year.
A trade union committee received them and a joint international Council was founded. When the Polish
rebellion of 1863 broke out, it was this Council which prepared the gigantic protest meetings against
Russian barbarity which represented the first intervention, failure though it was, of British labour in foreign
politics. It was in connection with this campaign that Odger, a member of the Junta, suggested that the
needs of the working class involved the holding of regular international meetings. The idea was taken up
with enthusiasm and a great meeting was held in London in September, 1864, to organize the movement.
Marx, who had held rather aloof from the initial stages was present at the meeting, and joined the
Founders' Committee that was created. He perceived at once the significance of the new movement, and
though he seems to have had little but contempt for its leaders, he was appointed to draw up the
inaugural address. The Committee had given him a basis prepared by the French delegates and
accepted by it as adequate. Marx, characteristically enough, destroyed the basis, and produced instead
an address of his own detailing the progress of the working class in England during the past thirty years,
and insisting that its meaning must be read in terms only of his own theories. It is, in fact, a new edition of
the Communist Manifesto, with the revolutionary period of trade unionism as the basis of its deductions
instead of universal history. The special interest of the address, however, lies in Marx's use of the history
of the Factory Acts as a proof of the value of working-class agitation. "In the bright sunlight of day," he
said, "the bourgeois political economy was here vanquished for the first time by the political economy of
the working class." The Factory Acts were, indeed, revolutionary in the sense that they were a direct
admission of the inadequacy of laissez-faire; but their passage was hardly due to the type of influence
Marx had in mind. At least in other moods he would not have called Lord Shaftesbury a revolutionary
Communist.
Marx henceforward devoted much energy to the International, and as he hurried it forth from its cradle, so
he may be said to have hastened it towards the grave. Its origin began in dissension--the struggle
between the idealist nationalism of Mazzini and the revolutionary and class-conscious aggressiveness of
Marx. On the latter's victory Mazzini withdrew, though with characteristic selflessness he advised his
followers to continue their support. Marx henceforth dominated the organization, though he waged a
continuous warfare to maintain his supremacy. To him, the movement was essentially an effort to
propagate the ideas of the Communist Manifesto and thus to prepare the way for the revolution. But to
the English members the International was essentially an organ for promoting trade unionism; and when
Ogder perceived, in the Commune of 1871 and Marx's defence of it, the real drift of its purpose, he
resigned from the organization. The English section always remained aloof from the directorate; for it was
that special brand of Radicalism of which William Lovett was perhaps the finest representative that they
were really concerned to foster. Nor was the English section the only difficulty. For the first two years, the
followers of Proudhon were not able rivals, and they had no sympathy with Marx's idea of a direct and
immediate political revolution. They were, moreover, hostile to Communism; and racial differences played
their part. Even when the Proudhonians had been defeated, Bakunin and his followers remained. They
were anarchists and bitterly opposed to the centralized dictatorship of which Marx was the exponent; and
there were grave differences between them on the degree to which property was to be confiscated.
Bakunin, it must be admitted, was as difficult as Marx himself in colleagueship. He founded a rival
organization and did much intriguing against Marx when he was readmitted on its abandonment. By 1872
his influence had so increased that a frontal attack upon him was impossible. In the Hague Congress of
that year, Marx therefore proposed the removal of the headquarters to New York. The motion was
carried; but it was obviously impossible to direct European Socialism from a position three thousand miles
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away. By 1875 the International was extinct; and hostile as were the attentions given to it by the
Governments of Europe, it rather perished of internal dissension, tile struggle between two powerful and
antithetic personalities, than from external attack. Not, however, before it had rendered one great service.
The Second Empire perished in the defeat of Sedan, and the provisional government created by Thiers
was not merely hostile to a democratic reorganization, but even looked forward to the building of a new
monarchy. The working men of Paris had no sympathy with these ideas; and the Commune was their
answer to them. The effort lasted only seven weeks, when it was overthrown amid scenes of unexampled
butchery.
Marx had been definitely hostile to its inception. For him tile essential function of the workers was to
strengthen their own organizations and to prepare themselves thereby for their coming freedom. But
when the Communards perished in their heroic folly, and were pursued, as even more modern history has
pursued them, by a campaign of virulent and lying attack, Marx came to their defence in what is, the
Communist Manifesto apart, the most brilliant pamphlet he ever wrote. The Civil War in France, published
as an official statement of the International, is, of course, a partial and incomplete view of the complicated
events it narrates; but nothing that has been written since so admirably depicts the ideas and sentiments
by which the Communards were inspired, or more energetically displays the savage brutality with which
they were treated. The defence was the more generous when Marx's low opinion of the French Socialist
movement is remembered, as also his conviction that Sedan was the just price of Bonapartist imperialism.
Yet even in the hour of a victory he welcomed, Marx addressed the German workers in a manifesto which
demanded a fair and honourable place for the vanquished.
Meanwhile, the great labour of his life had been partially completed by the publication, in 1867, of the first
volume of the Capital. It cannot be said to have received the welcome it deserved. Written, of course, as it
was in a German particularly cumbrous and involved in structure, it was necessarily caviare to the
multitude. The Saturday Review perceived the value of the material of which it made use; though not
even Professor Beesly's persuasiveness could induce George Henry Lewes to insert a long notice from
Engels in the Fortnightly. Russian and French translations soon followed; and in Russia, particularly, the
book soon made its way to that position of commanding influence it has never lost. Marx, it must be
remembered, was already well-known in Russia. Belinsky had already praised the Franco-German Year
Books; Annenkov had published a long critique from Marx on Proudhon; and his relations with Herzen
and Bakunin had made him a notable figure among international Socialists. In Germany the book seems
to have made its way but slowly; and the second edition (1873) contains a long protest by Marx against
what he deemed an organized conspiracy of silence. It had, of course, presently to undergo the inevitable
attack incidental to all learned German controversy--on the ground that its doctrines had been anticipated;
and Marx was ludicrously assumed to have stolen his thunder from Rodbertus. But within five years from
its publication Capital had become the pivotal part of German Socialist literature, and his name assumed
the position from which ail other socialists might be surveyed.
Marx, was not, however, destined to complete it. The long struggle against poverty had left its mark upon
his frame, and the last twelve years of his life were an incessant fight against pain and disease. Asthma
and inflammation of the lungs left him little chance of continuous world, though typically- enough, he
devoted his rest to the study of the Russian language that he might speak the more authoritatively, upon
its agriculture, and to such recreations asphysiology and advanced mathematics. He wrote, too, in 1875,
his Criticisms of the Gotha Programme, which contains, perhaps, the clearest statement of his attitude
towards the transition to Socialism. He was able, further, in 1877-8, to do something towards preparing
the second volume of Capital for the press. But visits to Karlsbad and Algiers did not improve his
shattered health; and he did not lift his head again after the death of his wife on December 2nd, 1881. To
her, Marx had intended, as Engels has told us, to dedicate the completed structure of his work. He had no
strength for the effort. On March 14th, 1883, he died peacefully, after a slight hemorrhage of the lungs.
His old nurse, Helene, and Engels were present at his death; and three days later he was laid to rest in
the cemetery at Highgate. Engels and Wilhelm Liebknecht spoke at his graveside; and the former
devoted the remaining twelve years of his life to completing the unfinished edifice of his master. Marx
would have wished no other wreath upon his tomb.
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Marx's personality is no easy one to dissect. There is no trace of the rebel in his inheritance; and his early
education would have fitted him for any career rather than the one he chose. If he became the head and
centre of the destructive forces of Europe, that was the inevitable outcome of the reactionary regime into
which he was born; and he would doubtless have countered that description by insisting that destruction
is the parent of creativeness. His work dealt with the historic foundations of the permanent source of
revolution, and the only weapon, as we realized, for flesh that has mortified is the knife. The view that
makes of him the compeer of Darwin, the discoverer of the universal law of economic evolution, has not a
little truth in it; but it is less true than that which places him alongside of Rousseau and Carlisle, as one of
the great prophets of the human race.
For it is essentially by the qualities of the prophet that he is distinguished. He was unmoved by oracles
other than his own. Impatient of difference; as with Proudhon and Bakunin, contemptuous, as his
correspondence with Engels shows, of all who did not think exactly in is fashion, he never learned the
essential art of colleagueship. He was too prone to regard a hostile view as proof of moral crime. He had
not a little of that zest for priority he was so unwilling to recognize in the discoveries of others. He was
rarely generous in his recognition of intellectual stimulus. With Marx, to enter a movement was to
dominate it; and he was incapable of talking the second place. "Hatred," wrote Mazzini of him, "outweighs
love in his heart, which is not right even if the hatred may in itself have foundation." There is a penetrating
truth in that criticism. Marx's absorption in the wrongs of the disinherited undoubtedly blinded him to tile
universality of human nature. He had brooded so long over the method of their redress, that he became
incapable of weighing the value of alternative channels. He never realized how partial and incomplete
were the views upon which he based his conclusions; and vast and patient as were the researches he
undertook, he was not always exact in his measurement of evidence.
He is, in fact, a noble, but not an attractive figure. That there was a Marx eminently lovable in himself, the
testimony of friends makes certain; but it was not the Marx of public life. There is something unhealthy; in
the venom with which he assails early friends like Bruno Bauer, or not less ardent seekers after light like
Proudhon. His accusations against Proudhon even when the temptation to destroy is remembered were
singularly ungenerous. Learned, courageous, capable of profound sympathy with the mass of men, he
was never able to grasp the secret of dealing with individuals. Much, is to be pardoned to an exile who
never enjoyed comfort, and had often risked his personal safety but Mazzini was able to emerge from
trials not less difficult with a sweetness unembittered. Nor could Marx accustom himself to the necessary
compromises of political life. One is tempted to feel that Marx confined his introspection to other men, and
never attempted that sober examination of self which is often the beginning of political wisdom.
That effort, after all, is fundamental. The unstated assumptions of a thinker's personality are the more
urgent because they do not appear in the printed word. Every great philosophic interpretation is at bottom
a spiritual autobiography, and Marx never realized how greatly his work is a palimpsest within which one
can read the history of his personal experience. It is significant for his books that his early radicalism
should have proved a barrier to his university career. It is significant also that he should have known the
pains and penalties of exile. Nor is it irrelevant that, after thirty years in London, he was still, at the end, a
German stranger testing facts and constructing theories in terms quite alien from the circumstances
around him. The impalpable penumbra of his thought never impressed him, even while it remained the
subconscious touchstone by which he judged the thought and acts of other men. Thus, while he wrote
with superb profundity about the material environment of men's lives, he rarely penetrated into the inner
substance of those lives. With such tracts of experience--religion for example--as were alien from his own
knowledge he could neither sympathize, nor understand. He wrote a philosophy which expresses in the
mass the aspirations of men; but it is not a philosophy, like that of Rousseau which, with all its defects,
springs directly from their deepest emotions. In a sense, that is to say, the seeming logic of his attitude is
deceptive, for it in part rests upon a failure to test his own assumptions, and in part upon an abstract vied
of human nature with which the totality of facts is in direct contradiction.
Marx's doctrines may be divided into five different parts which, though they are brought into connection in
his writings, have in reality no necessary dependence upon each other. Their central economic position is
a theory of value, by which he endeavoured to explain the methods by which the workers are exploited
under capitalism; and as a corollary, a view of the increasing concentration of capital from which he
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derived important consequences in his prophecy of the future. Historically it is an attempt to explain the
growth of movements and institutions entirely in economic terms. Predominantly, Marx insists, the
antagonism of classes is the motive-power which underlies the historic process; and it is to the impulses
which are at work in the satisfaction of economic demand that all changes are to be traced.
Philosophically, this view results in a purely materialistic view of human nature--a view, be it noted, which
has obvious and important connections with the general attitude of the Benthamite school. Politically, the
doctrines of Marx resolve themselves into a defcnce of revolution as the method by which the workers are
to attain to power, and dictatorship as the method by which they so consolidate it as ultimately to secure a
condition of general freedom.
Upon Marx's theory of value it is not necessary to spend much time. It has not stood the test of criticism; it
is out of harmony with the facts, and it is far from self-consistent. It represents essentially a narrow
interpretation of some loose sentences of Ricardo. The latter had argued, with certain qualifications, that
the value of any commodity is to be measured by the quantity of labour which goes to its production.
Marx, however, ignored the qualifications, and the proof he offered of the thesis is essentially different
from that of Ricardo. Exchange value, he argued, is not the singular quality of the commodity in which it
inheres. Exchange value is the quality which it possesses alike with all other qualities for which it can be
exchanged. Since human labour is the only quality which all commodities possess in common, human
labour must be the measure of exchange value. And, be it noted, by human labour is meant
"undifferentiated human labour," it is a quantitative and not a qualitative equation. It is a measure simply
of effort in time and not of effort in result or quality of result. Labour is paid differently simply in relation to
the different amount of labour "congealed " in any given commodity produced. That which will suffice to
produce the necessaries of life for the labourer is therefore the price of labour power. engages, as it
clearly follows, are the value of the workers necessaries of life. But the worker produces in a day more
than suffices for his necessaries of life. If we assume that by working six hours each day the worker can
produce his necessaries, while his working day is eight hours long, then the value of what he produces is
as eight hours is to six, is, that is to say, one-third greater. Marx termed this extraproduction surplus-
value, and he assumed that the capitalist, taking his surplus as his profit, robbed the worker of it. For by
buying labour-power at its market price! the capitalist at once grows rich and exploits his workers. And in
any capitalistic society, especially where there is free competition, this is bound to be the case; from
which it of course follows that only by the
abolition of capitalism can we stop the exploitation of labour.
It is unnecessary to dwell at any length upon the fallacies implicit in this analysis. As a matter of logic,
Marx had no right to assume that the quality of labour is, other differences being subtracted, the common
basis of measurement. Nor did he mention that in addition to labour, all commodities to have value must
have this at least in common, that they satisfy some need. Utility, in other words, is a necessary factor in
value; it would be impossible to produce aeroplanes except upon the assumption that some people
wanted to fly in them. Nor can " undifferentiated human labour " be taken as a measure of value. It is an
economic platitude that differences in wages are not merely due to differences in the effort in time of
production. It costs no less to produce a bad carpenter than a good one, but the quality of a good
carpenter's world has a value quite apart from cost as effort; it has the type of value which the economists
call a quasi-rent, and this quasi-rent appears in the value-in-exchange of the product.
Nor is this all. Wherever there is a type of production the phenomena of which result in rent, the
measurement of value is not the mean cost of production but the marginal cost of production. Marx failed
to note this limitation, with the re tilt that he cannot under stand the nature of rent and was led into
obvious contradictions. (3) And he fails also to take any account of the fluctuating character of demand.
He seems to have regarded demand as purely static, and falls, as a consequence, into all the difficulties
which Bohm-Bawerk and the Austrian school have emphasized. To say, moreover, with Marx that the
"cost of a labourer is the socially necessary cost," the lowest cost, that is, at which he can be produced, is
immediately to bring within purview tests of his hypothesis which he entirely failed to apply. For if wages
represent the cost of necessaries, the existence of a proletariat whose wages are above the bare cost of
necessaries clearly invalidates the whole process. hand, in fact, the question of a wages level is an
historical problem in which logical considerations do not play the whole part. Social conscience, for
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example, as with the Trade Boards, may insist upon a rate of wages historically above "the socially
necessary cost," and trade unions may by the combined strength they represent, lead to the same result.
If a state, even though it be a capitalistic state, chose to adopt a policy of a minimum basis of civilized life,
in which a wage-standard was fixed, the iron law of wages, which Marx deduced from his theory of value,
would immediately be obsolete.
It must not be forgotten, moreover, that in the Marxian analysis whatever does not appear as wages, is
always regarded as unearned profit. Of rent and interest this is, perhaps, no unfair account, but it is
outside the evidence of facts to argue that the task of directing business, the work of the entrepreneur, is
not to count as labour and does not create value. Even when a suspicion of this impossibility dawned
upon Marx, he dismissed the earnings of direction simply as cunning, (4) and argued that all profits
contain an element of surplus value which differs from interest, wages and payment to the entrepreneur.
But if profits are not a payment for work then it should surely follow that the capitalist must take it also;
otherwise he is gifted with a quality of moderation with which Marx does not normally endow him.
In such a general background, the Marxian theory of value seems clearly untenable not less on theoretic
grounds than from an analysis of the facts of business. et it is equally undeniable that Marx's view has
obtained the assent of a whole class of society to its truth; and it is, therefore, worth while for a moment to
inquire exactly what magic it possesses from which its strengthening hold is derived. That, it may be
suggested, is simple enough. Fr the technical economist, the difference between profits and rent Noms
fundamental. Men like Ricardo and Nassau Senior saw a natural distinction in source of origin which
manufacturers like Bright embodied in the legitimate earnings of a hardworking mill-owner, whatever his
wealth, and the illegitimate because unearned income of a land-owning duke. They saw it the more
clearly when, as in the period of Marx's own maturity, they were struggling to free his business from the
environment of a hostile squirearchy. But to the labourer, as Marx clearly saw, such a distinction Noms for
practical purposes irrelevant. The world was divided for him into those who lived by wages and those who
did not. Those who lived by wages were poor, those who did not live by wages were rich. Assume, as
Marx assumed, that the surplus theory of value is true, and the riches of those who do not live by wages
are due to the poverty of those who do. The worker was able to see that he was poor; he saw also that he
produced more than he could consume, and that his surplus production was divided among a relatively
small class of rich, and often idle, men. A theory such as Marx's inevitably appealed to him as the natural
explanation of his oppressed condition. He clung to it, not by virtue of any logical estimation of its
theoretic adequacy, but because it summarized the most poignant experience he knew. The Marxian law
of wages, moreover, will, from its very nature, win new adherents at every period of commercial
depression. At any moment when there is a decline in the effective demand for commodities, or when the
strength of trade union resistance is at a low ebb, the impact of capitalism upon the wage-earner will
closely resemble what Marx insisted is its
normal relation; for few business men have imagination enough to realize that there are other ways to the
rehabilitation of markets than the reduction of price by means of lower wages. Inevitably, therefore, the
worker will move from the acceptance of surplus value to the philosophy which Marx constructed as its
natural environment.
The law of the concentration of capital stands upon firmer ground. The greater the degree of complexity
involved in the productive process, argues Marx, the fewer will be the number of persons controlling its
instruments. Everything contributes to the intensification of this process. New means of communication
are established, the problems of which are beyond the solution of the small capitalist. Important
mechanical inventions are beyond his financial means. Territorial consolidation destroys the local market
in which he was once a privileged person. The process, indeed, is neither immediate nor direct. It took the
bourgeoisie three centuries to expropriate the artisan and create the proletariat. But once the process had
begun, the development was inexorable. Over production created a new army of reserve workers. The
substitution of pasture for arable farming concentrated a large rural population in the towns. The
economies of large scale production forced hitherto independent producers into the ranks of the wage-
earners. The capitalistic system moves from a national to an international character; its market becomes
the world. Its nature involves increasing centralization, until the control of the forces of production reaches
a point where its further development in private hands is impossible. For alongside the development of
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accumulation is the increase of the proletariat. The workers cannot any longer endure the misery that is
involved in the capitalist regime. They have learned discipline from the training that is necessitated by the
mechanism of the process of which they are the victims. "The knell of capitalist private property then
sounds. The expropriators are expropriated." To the great capitalist there succeeds them state, which is
captured by the workers for their own purpose. The result of capitalism is, in fact, its own destruction. It
produces, in Hegelian fashion, its own antithesis. The very condition of its growth is that it should involve
the laws which imply its inevitable ruin.
We need not accept the conclusion of the argument to insist on the important truth that it contains. The
wastage of competition in large scale enterprise is a commonplace of modern business, and the trust or
cartel is the characteristic symptom of industrial development. There are, indeed, certain important
limitations to the simplicity of the Marxian view. The growth of joint stock enterprise distributes over a
wider circle the number of those interested in the receipt of profits, even while it limits those who actually
control the industrial process itself; while there are many minor industries, of which photography and the
repair of motorcars are examples, in which the tendency is to the increase of small firms rather than to the
development of great ones. But parallel with this evolution has gone a very striking centralization of credit
which concentrates in continuously fewer hands the finances of the community. Agriculture, indeed,
despite the large-scale farming of Western America, and the development of agrarian co-operation,
remains persistently individualist in temper. (5) Yet, on the balance of inquiry it is impossible to deny the
emergence of an increasingly collectivist spirit. And its reaction upon industry is the more important
because it leads, without question to the demand by the workers of certain nominal standards from the
state which are increasingly insisted upon as the condition of business enterprise. Nor is that all. It
becomes obvious that certain industries are, from their very nature, too vital in their results to be left to the
chaotic possibilities of private effort. If the expropriators are not actually expropriated, there comes, as
with mines and railways, a demand for some form of nationalization, and just as the investigations of the
'thirties and 'forties produced the Factory Acts, so it is legitimate to argue that the results of inquiries like
the Coal Commission of 1919, and the Dockers' Inquiry of 1920, are likely to put a term to the
continuance of private enterprise. Capitalism, in fact, prepares monopolies which immediately affect the
community towards some form of state administration.
So regarded, of course, this view does not involve the theory of revolution which Marx regarded as the
inevitable corollary of capitalistic concentration. It need not, indeed, involve a transition towards a
socialistic state at all. All that would seem to be implied would be the removal of industries essential to the
welfare of the community from the danger of exploitation by private interests. The logic of a necessary
conflict resultant upon the concentration of capital is derived by Marx from other sources. It is the corollary
of his interpretation of history. That, broadly speaking, may be summarized by saying that all the
phenomena of history are the result of economic motives. To them are traceable legal and social
institutions not less than the religion and philosophy of each age. The system of production is the ultimate
factor, in short, by which the mass of human relationships is determined. Protestantism, Engels wrote, is
"essentially a bourgeois religion"; so too, in a feudal period vie should expect the legislation to reflect not
general ideas of right, but those ideas of right which are compatible with the maintenance of feudalism.
But ideas change, and in Marx's view, the source of change is to, be discovered in the transformation of
one economic system into another. A new external world produces new internal ideas. Let women enter
industry in the mass and, as Mr. Bertrand Russell has pointed out, ideas which not even the logic of Plato
and Stuart Mill could make obvious, become accepted without question. Two hundred years ago, it was
unthinkable that a peer should go into the city; to-day, finance has enmeshed political life within its fold,
so that no company prospectus is complete until the peerage is represented there.
No one can doubt the very large measure of truth in this outlook. No one can write the history of English
Puritanism, of the struggle for toleration, or of the American Revolution, without making the defence of an
economic incentive fundamental to their explanation. But it is equally clear that the insistence upon an
economic background as the whole exclamation is radically false. No economic motive can explain the
suicidal nationalism of the Balkans. The war of 1914 may have been largely due to conflicting commercial
imperialisms; but there was also a competition of national ideas which was at no point economic.
Historically. too, the part played by religion in the determination of social outlook was, until at least the
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peace of Westphalia, as important as that played by material conditions. Luther represents something
more than a protest against the financial exactions of Rome. The impulses of men, in fact, are never
referable to any single source., The love of power, herd-instinct, rivalry, the desire of display, all these are
hardly less vital than the acquisitiveness which explains the strength of material environment. Engels,
indeed, seems to have realized the narrowness of the orthodox view, for in the later years of his life he
insisted that the dominant part ascribed by Marx to the economic motive was due mainly to its neglect by
his opponents, "and there was not always time, place and opportunity to do justice to the other
considerations." But with Marx the economic motive is not only final, it is final in a particular way. "The
only durable source of faction," said Madison, "is property," and, for Marx, the emergence of private
property in history is the beginning of the class struggle. Immediately society can be divided into those
who do, and those who do not, possess private property, a power is released which explains the changes
of history. For the class which possesses property moulds the civilization of that society in the service of
its own interests. It controls the government, it makes the laws, it builds the social institutions of the
commonwealth in accordance with its own desires. Slave and free man, master and servant, these have
been the eternal antitheses of history. With the advent of capitalism the struggle is at once simplified, and
made more intense. Thenceforward, the final stage of the class-war, the struggle between bourgeoisie
and proletariat, emerges. And just as each social order of the past has secreted within its womb the germ
of its successor, as for example, feudalism produced capitalism, so does the latter contain within itself the
germ of its communist successor. "Capitalism," said Marx, "produces its own gravedigger." The conflict, in
his view, was an inevitable and a bitter one, and it was bound to result in the victory of the proletariat.
"The bourgeoisie," he wrote in the Communist Manifesto, "is incapable of continuing in power because it
is incapable of securing a bare subsistence to its slaves"; and the result is a growing sense of revolt in the
worker who ultimately, by a revolutionary act, assumes the reins of power.
In a large sense, it is obvious that the substance of this interpretation is accurate. The fact of the class
struggle, as Marx himself pointed out, is a commonplace of historians and economists; and it may be
added that to deny its importance is to make history unintelligible. Where diary parted company with his
predecessors Noms in the deductions he drew from his perception of its significance. For whereas with
men like Madison and Guizot, the fact of conflict produced a sense of horror at its implications, and a
search for a technique that its dangers might be obviated, with Marx the conflict was fundamental and
both its method and ultimate outcome were to him alike obvious. Whereas with Madison there is an ever
present uncertainty whether a just victory may not suffer betrayal, or a wrong object be pursued, with
Marx the process is predetermined and, save for a brief period in 1870, no hesitation seems to have
crossed his mind.
The method by which the proletariat was to secure power lies at the very root of Marx's doctrine; and it
has been in our own day, perhaps, the main source of his influence. The method was revolution, and a
dictatorship of iron rigour would consolidate the new system until the period of transition had been
effectively bridged. Marx did not blind himself to what all this implied. The history of capitalism was the
history of a relentless defence of each phase of the rights of property. They were maintained by methods
at each point unconnected with ethical demands. If the conflict was extreme as in the days of June, 1848,
or the Commune of Paris, the last ounce of misery was wrung from its opponents, that capitalism might
be secure. A period of comparative quiescence may produce the concession of social reform, but this is
merely deception. Once a really vital point is touched by the workers' demands, they are met by armed
resistance. That means, of course, that only by conscious violent intervention can communism be
realized. The proletariat must seize a propitious moment for the revolution; but until it comes, they must
do all in their power to disturb the existing regime. Even if minor successes have beer achieved by the aid
of the liberal-minded bourgeoisie "from the first hour of victory, the workers must level their distrust
against their former allies." They must create a working-class organization of their own workers'
committees, local workers' councils, to oppose proletarian institutions and their influence to those of the
middle-class state. The Communists must arm the proletariat and do all they can to cut down the army of
the State as the chief weapon of defence possessed by the bourgeoisie. Where the workers are in the
militia, they must form within it secret organization to obtain its control. They must form their own
independent, if hidden, military force and acquire arms by every method. Influential democrats to whose
word the working class seems to respond, must be discredited. The old social order, in fact, must be
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attacked at every point. Communists have two functions only, to prepare for the revolution, and to
consolidate it successfully when it has been prepared. They must think of themselves not as realizing an
ideal, but only as setting free the elements of a new society concealed within the womb of the old.
The period of consolidation, moreover, must be a period of iron dictatorship. Marx had no illusions about
the possibility of a democratic governance in such an hour. The ideals of freedom were impossible to
maintain until the ground so conquered had been made secure. Revolution provokes counter-revolution;
and a victorious proletariat must be on its guard against reaction. Revolution, in fact, demands of the
revolutionary class that it secure its purpose by every method at its disposal. It has neither time nor
opportunity for compassion or remorse. Its business is to terrorize its opponents into acquiescence. It
must disarm antagonism by execution, imprisonment, forced labour, control of the press. For as it cannot
allow any effort at the violent overthrow of what it has established, so must it stamp out such criticism as
might be the prelude to further attack. Revolution is war, and war is founded upon terror. The methods of
capitalism must be used for the extinction of capitalism. For as capitalism has made of life itself the
cheapest of commodities, there need be no repining at its sacrifice, and the result, in any case, is worth
the cost, since it destroys the possibility of future sale. It would have been a wanton betrayal of trust, said
Marx of the Paris Commune, to observe the traditional forms of liberalism. The end, in fact, is too great to
be nice about the means employed. Nor can we expect that a peaceful revolution is possible. While Marx
had certain doubts of England, on the whole he was certain that a violent struggle was inevitable. The
workers might capture Parliament at the polls; but political power of that kind is in any case a shadow,
and were it used for an assault upon property, it would inevitably provoke an armed resistance. Marx
indeed, went further and was openly contemptuous of democracy. It was a bourgeois invention unrelated
to the real, and used only to deceive the people. Again and again the proletariat is betrayed; and
throughout Marx's writings there is the assumption that reliance must be placed upon a class-conscious
minority. For in his view there is no place in history for the majority principle; the record of States is the
clash between determined
minorities, contending for the seat of power. To introduce considerations of consent, to wait on in the
belief that the obvious rightness of communist doctrine will ultimately persuade men to its acceptance, is
entirely to ignore reality. The mass of men will always acquiesce in, or be indifferent to, whatever
solutions are afforded. Communists must proceed upon the assumption that nothing matters save the
enforcement of their will. Upon the end this revolution is to serve, the forms its purpose will adopt, Marx
has written but little. Obviously, with justice on his side; for speculation in distant historical futures is the
worst form of gambling It was with the destruction of capitalism and the period of transition therefrom that
he was mainly concerned. A new productive system was bound to involve new institutions which no man
could foresee. That the Communist maxim, "From each according to his powers, to each according to his
wants," would become operative was, of course obvious to him; that performance would be measured in
terms of labour-time (a possibly inconsistent hypothesis) he took for granted. But he was always emphatic
that the future must settle itself. He insisted that the measure of distribution would be necessarily unequal
in the period of transition. You may, as he saw, destroy by catastrophe, but creation is not an immediate
and spontaneous process. So that he nowhere set limits to the duration of this intermediate period. It was
necessary to wait until the habits engendered bv a new productive system created a psychology in which
the dogma of equality superseded the bourgeois hypothesis of individual rights. The main thing was the
destruction of a regime in which classdistinction made possible the servitude of the many. It was possible
to have confidence in an order in which the whole force of social effort was deliberately placed at the
disposal of the common welfare.
A generation which has seen this doctrine supported by machine-guns and bayonets is unlikely to belittle
its importance. Nor can it be denied that not a little of social evolution has taken the course Marx
predicted. Anyone who reads the history of the industrial struggle in Colorado or West Virginia will find it
difficult to discover a limit of unreason which capitalism is not willing consistently to overpass. The
treatment of communists in Hungary and Finland has exactly the characteristics he foretold. An isolated
community like the miners of South Wales becomes, naturally communist in the background of
incompetence and ill-treatment from their employers. And representative government, at least in its
classical form, seems unlikely to justify the high hopes of its Benthamite exponents. Every country in the
world that has experimented with universal suffrage has experienced a sense of disillusion. It is even
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commonplace to argue that reason has little place in political struggle, and to pin faith to an irrational
impulse which seeks no more than the satisfaction of individual desire. If there has been an improvement
in the general standard of civilization, an increasing unwillingness, for example, to inflict unnecessary
pain, there are no signs of the mitigation of the class conflict. On the contrary, the events of the last
decade point directly to its exacerbation; and we have obviously entered upon a period in which the rights
of property are challenged at their foundation. Certainly it is unquestionable that the purchase-price of
capitalist survival is the offer of concessions which a generation ago would have seemed not less
unnecessary than unthinkable. Yet the approximation of the general atmosphere to the condition Marx
had in view hardly justifies the principles upon which he placed his reliance. To begin with, the
preparation for revolution is a qualitatively different problem from what it was in the days of the Paris
barricades. It is possible in a mood of defeat for a civilian population to destroy a regime which the army
and navy no longer uphold, and, as was demonstrated long ago by Cromwell, a military force which is
dissatisfied with its civilian superiors can without difficulty become their master. But for a party of men in
the position of communists in the modern State, the situation is very different. Unless they are the
majority and, consequently, the government, the hostility of the army and navy is certain. Nor can they
obtain, on any large scale, the necessary equipment for insurrection. They would have to obtain control of
the national arsenals; and that would mean the dispersion of forces in any case small by hypothesis.
They would have to meet in the people at large at least a mood of acquiescence. They would have to
guarantee a supply of food, which, in any but a dominantly agricultural society, would be practically
impossible if international credit was seriously impaired by the revolution. Even if we regard a general
strike as tantamount, in the conditions of modern industry, to a revolution the difficulties are
overwhelming. A general strike might well succeed as a protest against war, for its penumbra might, in the
future, arouse emotions of determination that would be irresistible. But upon any less dramatic issue, it
seems tolerably certain that once again, the army and navy must be in the control of the strikers if
success is to be assured. For a modern army can supply all services connected with transportation; it can
secure the distribution of food, and the problem of fuel is becoming less and less a matter of mining coal.
The Marxian view of a secretly armed minority assuming power at a single stroke is unthinkable in the
modern state. It would have to imply either the existence of a government so weak that it had practically
ceased to be a government at all, or, what perhaps, an equivalent, a population actively sympathetic to
the revolutionary minority. The resources of publicity in modern civilization make impossible the private
preparation of the gigantic effort assumed by the Marxian hypothesis. But this is only the beginning of the
difficulty. Marx assumed throughout his analysis a system of compact states the life of which was mainly
determined by economic considerations, and each relatively independent of its neighbours. Each of these
assumptions is only partially true of the modern world. A State like England, which is wholly dependent on
foreign trade, could not undergo a successful revolution except upon the assumption that her neighbours
viewed its results with benevolence. Such an attitude on the part, for instance, of America is very unlikely,
and the rupture of Anglo-American Trade would be fatal to any revolution in this country. For is that all. It
is quite clear that the division a revolution would imply must, in its workings, be very partially determined
by economic considerations. In a country like America, for example, there would be at least three other
factors of vital importance. An American communist revolution would have to cope with problems of
distance which would probably render it abortive at a very early stage. It would not, as in France, be a
matter of the immense impact of the capital on the life of the nation; Washington is relatively insignificant
in the perspective of America. To control the whole continent would involve controlling the most
complicated railway system in the world. And even if that difficulty could be surmounted, a complex of
nationalist differences would have to be assuaged. German, French, English, Irish, Polish, these have
their special characteristics which the American capitalist has been able to exploit to their common
disadvantage; it is difficult to see how an appeal to a communist minority of each would result in the
transcendence of these differences. Even then, the religious problem remains; and the hold of the
churches upon the mind, particularly, of the Latin peoples would not be easy to loosen. For Marx, insisting
only upon the economic motive, it is easy to ignore these difficulties, but it is far too narrow an outlook not
to realize at the outset that appeal can be made to other incentives every whit as strong. And even if it
were argued that Marx could in our own time assume that the day of such prejudice as nationality and
religion engender is passing (which is doubtful), and that the barriers built by economic difference are
now alone important, his conclusions would not follow. For in a period of universal suffrage, it ought then
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to be possible to capture the seat of power at the polls, and throw upon the capitalist the onus of revolting
against a socialist democracy.
There are, however, other approaches to the problem which Marx did not adequately consider. There is,
in the first place, the general result upon society of the practice of violence, particularly when the
destructive nature of modern warfare is borne in mind; and, in the second, there is the special
psychological result upon the agents of the opposing forces in such a regime. Marx did not consider these
possibilities, in part because he judged that, in any case, the conflict was inevitable, and also because he
was convinced that whatever sacrifices had to be made would be ultimately justified by the result. Such
an attitude is, of course, simply an instance of his general failure to weigh sufficiently the substance of a
political psychology. In part, also, it is the corollary of a determinism which the facts in issue at no point
justify. For it is obvious that if revolution, with its attendant violence, is justified for any cause in which you
happen to believe profoundly, no modern state can hope for either security and order. The war has shown
clearly that the impulses of savagery which are checked by peace are, when loosed, utterly destructive of
the foundations of a decent existence. If life became an organized and continuous jacquerie, civilization
could quite easily be reduced to the state where, as in Mr. Wells's imaginary but far from impossible
picture, some aged survivor may tell of an organized Europe as a legend which his grandchildren cannot
hope to understand. Violence, on the grand scale, in fact, so far from proving an avenue to communism,
would be the one kind of existence in which the impulses demanded by a communist state had no hope
of emergence. For the condition of communism is the restraint of exactly those appetites which violence
releases; and Marx has nowhere indicated how this difficulty could be met.
Even beyond this issue, a further point must be raised. Marx has assumed the seizure of power, and a
period of rigorous control until the people are prepared for communism. But he has not shown what
approximate length that period is to be, nor what certainty we have that those who act as controllers of
the dictatorship will be willing to surrender their power at the proper time. It is a commonplace of history
that power is poisonous to those who exercise it; there is no reason to assume that the Marxian dictator
will in this respect be different from other men. And, ex hypothesi, it will be more difficult to defeat his
malevolence since his regime will have excluded the possibility of opposition. No group of men who
exercise the powers of a despot can ever retain the habit of democratic responsibility. That is obvious, for
instance, in the case of men like Sir Henry Maine and Fitzjames Stephen, who, having learned in India
the habit of autocratic government, become impatient on their return to England of the slow process of
persuasion which democracy implies. To sit continuously in the seat of office is inevitably to become
separated from the mind and wants of those over whom you govern. For the governing class acquires an
interest of its own, a desire for permanence, a wish, perhaps, to retain the dignity and importance which
belong to their function; and they will make an effort to secure them. That, after all, is only to insist that
every system of government' breeds a system of habits; and to argue as a corollary, therefrom that the
Marxian dictatorship would breed habits fatal to the emergence of the regime Marx had ultimately in view.
The special vice of every historic system of government has been its inevitable tendency to identify its
own private good with the public welfare. To suggest that communists might do the same is no more than
to postulate their humanity. And it may be added that if they surrendered power at a reasonable time, the
grounds for so doing, being obviously in their nature non-economic, would thereby vitiate the truth of the
materialistic interpretation of history.
All this, it is worth noting, is to omit from consideration the ethical problems that are involved. It is obvious,
for example, that it involves the complete erosion of the whole historic process. But the erosion of
responsibility in the governing class is the destruction of personality in their subjects. In such a regime
notions of liberty and equality are out of place. Yet it is obvious that the two main defects of capitalism are
its failure to produce liberty and equality for the mass of humble men and women. Marx, that is to say,
contemplated a condition which reproduces exactly the chief vices of capitalism without offering any solid
proof of their ultimate extinction. For, after all, the chief effort that is worth making is towards a civilization
in which what Mr. Graham Wallas has termed, " the capacity of continuous initiative," is implied in the fact
of citizenship. It is clear enough that the possibility upon which the existence of that capacity turns is a
wide distribution of power. A man whose thought and acts are at the disposal of other men is deprived of
his personality, and that deprivation is implied in the rigorous centralization to which Marx looked forward.
Unquestionably, he was right in his insistence that the distribution of economic power in a capitalist state
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makes the enjoyment of such personality impossible to most; but it does not seem any more likely to
emerge in the successor to it that he contemplated. We may go further and argue that it is impossible in
any state where the main purpose of, and motive to, effort, is the increase of material wealth. No society
can realize itself in any full sense of the word until the mainspring of its existence is a capacity to value
things of the mind as more precious than material commodities. That involves a sociology in which the
economic motive which Marx emphasized is appraised at a low level. Obviously, to achieve the condition
in which that appraisal is possible, involves an educational system far different, both in scope and
purpose, from what we now have. It involves a complete transformation of values, in which things like the
wider appreciation of art, the study of science and philosophy. the release, in short, of the creative
energies of men from their present bondage, are regarded as the main and immediate effort of political
organization.
Yet, if historic experience is to count for anything-- and Marx's philosophy is nothing if not the
interpretation of historical experience--it is exactly this transformation of values which cannot take place in
the development Marx had in view. The barbarian invasions of Rome did not produce a great art and a
great culture, they produced the dark ages. The Thirty Years' War impeded constructive effort in Germany
until the threshold of the nineteenth century. Nor has our own experience been different. The idealism of
1914 has perished before the greater strength of the purely destructive forces released in the struggle.
What we have realized is how tenuous and fragile are the bonds of civilization, how little likely they are to
be reinforced by any effort save that of peace. In such a background, the conflict that Marx envisaged
looms before us as the harbinger of precisely those evils from which we are seeking release. It
emphasizes in men the impulses against which civilization is a protest. That wrong can be wiped out with
wrong, that we are to regard ourselves as the victims of blind and impersonal forces against which it is
useless to strive, that the possessive impulses of men cannot be transcended by creative effort--these
and things like these are a gospel of impossible despair. In that aspect, surely, the older socialists were
right who made the basis of their creed a doctrine of right and fraternity and justice. For right and
fraternity and justice imply love as their foundation; they do not spring, even at the last vain striving from a
doctrine founded upon hate.
The real power and influence of Marx lie in a direction essentially different from what is generally
assumed. He was the first thinker to expose in all its hollowness the moral inadequacy of a commercial
civilization.: He showed that in any society where the main effort is the attainment of wealth, the qualities
that are basically noble cannot acquire their full vigour. He did, in fact, for the economic relationships of
peoples what Grotius did for their international relationships. He founded both a science and an ideal. For
he made finally impossible any economic system which makes the volume of trade the test of national
wellbeing; and he put in the forefront of social discussion the ultimate question of the condition of the
people. And he performed the incalculable service to his generation of bringing to it a message of hope in
an epoch where men seemed to themselves to have become the hapless victims of a misery from which
there was no release. In every country of the world where men have set themselves to the task of social
improvement, Marx has been always the source of inspiration and prophecy.
His weaknesses, of course, are obvious and important. "He diagnoses a disease admirably," says Mr.
Wells, in an excellent phrase, "and then suggests rather an incantation than a remedy." Yet the diagnosis
is an essential part of the cure. No one can read unmoved the picture he drew of the results of the
Industrial Revolution. Massive in its outline, convincing in its detail, it was an indictment such as neither
Carlyle nor Ruskin had power or strength to draw. It is relatively unimportant that his explanations of the
phenomena he depicted have not stood the test of criticism. What is vital in the whole was his perception
that a society dominated by business men and organized for the prosperity of business men had become
intolerable. Hardly less splendid was his insistence that no social order is adequate in which the collective
energies of men are not devoted to their common life. It does not matter that such perception had been
given to others, that such insistence was not new. No thinker of the nineteenth century drove home the
lesson with force so irresistible or with urgency so profound. Even his advocacy of catastrophic revolution
has this much of truth in it that a point is reached in the development of any social system where men will
refuse to accept any longer a burden they find too great to bear; and, in that moment, if they cannot
mitigate, they will become determined to destroy. The condition, in fact, upon which a state may hope to
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endure is its capacity for making freedom in each generation more widespread and more intense. Where
Marx was wrong was in his belief that the catastrophe was, in itself, worthy of attainment and in his
emphasis upon its ultimate benefit. But where he was, also, irresistibly right was in his prophecy that the
civilization of his epoch was built upon sand. And even the faults of his prophecy may be pardoned to an
agitator in exile to whom the cause of the oppressed was dearer than his own welfare. At bottom, the
main passion by which he was moved was the passion for justice. He may have hated too strongly, he
was jealous, and he was proud. But the mainspring of his life was the desire to take from the shoulders of
the people the burden by which it was oppressed. He realized that what, in all varieties of time and place,
has caused the downfall of a governing class, has never been some accidental or superficial event. The
real cause of revolution is the unworthiness of those who controlled the destinies of a people. Indifference
to suffering, selfishness, lack of moral elevation, it was for those defects that he indicted the class from
which he sprang. He transformed the fears of the workers into hopes, he translated their effort from
interest in political mechanisms to interest in social foundations. He did not trust in the working of laws, he
sought always for the spirit that lay behind the order of which they were the expression. He was often
wrong, he was rarely generous, he was always bitter; yet when the roll of those to whom the
emancipation of the people is due comes to be called, few will have a more honourable, and none a more
eminent place.
SOCIOLOGICAL APPROACHES TO LAW

Introduction:
The approach taken in sociological jurisprudence is to treat law as a social phenomenon. The connection
between the concept of law and society is that different kinds of society produce different kinds of law and
that laws perform the task of social control. It was thought that by utilising techniques used in the social
sciences and knowledge obtained from social research, a more effective science of law could be found.
MAX WEBER (1864-1920)

Weber stressed the need for social theory to break through materialist and idealist models of explanation
for different social conditions. However, his interests were not revolutionary oriented like Marx, nor
scientifically directed at the establishment of a science of society like Durkheim, rather, his sociology is
inspired by the concrete political concerns of Weber as a citizen of Germany. He examined the ways in
which German political life should be ordered with the advent of bureaucracy and industrial capitalism and
the decline of traditional world-views.
One of Weber’s most famous contributions to sociology is his approach to politics, bureaucracy and the
state. Political societies exercise their might over a territory by the threat or use of force, and by reference
to some kind of legitimacy.
Political legitimacy can be of three kinds:

1) Traditional authority is based on the belief in the age-old sanctity of power;
2) Legal domination is typical for the bureaucracy of the state; and
3) Charismatic domination is based on the belief in the extraordinary qualities of a person.
When a political society uses force in such a way that it results in a successful monopoly over force, there
is a state. Weber defines the state as a compulsory association, which organises domination. It has been
successful in seeking to monopolise the legitimate use of physical force as a means of domination within
a territory. The domination of the state implies that its subordinates belief in the legitimacy of their
subordination.
To secure its legitimate monopoly over force, the state has combined the material means of organisation
in the hands of its leaders, and it has "expropriated all autonomous functionaries of estates who formerly
controlled these means in their own rights. The state has taken their positions and now stands in top
place".
The crucial elements in Weber’s definition of the state, then, refer to
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1) the legitimate use of force,
2) the territorial boundaries which delineate the state’s domination, and
3) the appropriation of the means of control.
First, Weber contends that the modern state cannot be defined in terms of its ends, but only in terms of its
means: the state has acquired a monopoly over the use of force. Unlike the commonly held view at
Weber’s time of viewing the state as one of the noblest of man’s creations, the means of the state should
in Weber’s view be conceived in terms of violence and coercion. The threat or use of physical force is not
the only means of the state but it is specific to the state.
The appropriation of the means of violence is necessary for the formation of the state, but it is not
sufficient for its further development. States also fulfil the following functions: the enactment of law
(legislation), the protection of personal safety and public order (police), the protection of vested rights
(administration of justice), the cultivation of cultural interests (in the administration), and the organised
armed protection against outside attack (the military).
Second, Weber holds the view that the state has a monopoly of force within a given territory. The
authority of the state is binding within a particular territorial area only.
As a third element in Weber’s definition of the state, he contends that the right to use force is given to
other institutions only to the extent to which the state permits it.
Legal legitimacy rests on the validity of impersonal norms that have been consciously established in the
context of purposive or value rationality. Only within modern capitalist societies, do bureaucracies take on
this form, directly affected by the division of labour: bureaucracies are specialisation and therefore
efficient.
Weber’s sociology of law is intimately related to his notion of state and bureaucracy. The state not only
has a monopoly of force, it is also a political community that successfully claims a legitimate monopoly of
force. State domination is legitimated by legality, the belief in the rational validity of legal rules. This
rational-legal legitimisation derives from the systemic rationalisation of law and constitutionalism, from
bureaucracies and from doctrines of sovereignty.
Weber is clearly directed against materialist and idealist interpretations of law. He defines law in the
following way: "An order will be called law if it is externally guaranteed by the probability that coercion
(physical or psychological), to bring about conformity or avenge violation, will be applied by a staff of
people holding themselves specially ready for that purpose".
The element of staff, the organised coercive apparatus including "judges, prosecutors, policemen, or
sheriffs" is decisive (not coercion itself). This does not mean that legal legitimacy is always tied up to the
state, and it does not always imply adherence to law. The criminal, for instance, also recognises the
legitimacy of law, namely because he has to carefully plan the execution of a crime, he is aware that it is
a violation of law. The coercive apparatus does not have to be a political agency; there must simply be a
body that applies sanctions, whether bound to the state or not.
In spite of the attention Weber pays to the legitimacy of law, which resides in the legal subjects, he
interprets the law positivistically as a set of reliable techniques for producing legally consistent answers.
Rationalised law is formal, abstract, exemplifying the disenchanted modernised world. A sense of justice
may play a role in the development of law, but such an emotional factor "cannot be expressed except in a
few very general and purely formal maxims".
Legal formalism can be challenged by social law, based on emotionally coloured ethical postulates like
justice or human dignity, but this value-irrationalism has equally been opposed by attempts to re-establish
objective standards of value and law as a technical tool. The legal-rational authority of the state’s
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bureaucracies is governed by procedures, by a system of laws, not of men, which formally regulates
social affairs.
The rise of modern rationalised law Weber attributes to economic and political factors. Rational law is
guided by general rules to create stable, predictable and patterned regularities in social actions and social
institutions. Rationalised law is executed in the bureaucratic apparatus of the state, but it also serves the
free-market economy. Specifically, law prevents a war of all against all on the economic battlefield.
A rational free-market economy is not possible without the legal order of the state, but contractual
freedom leads to the free use of resources without legal restraints: "The market is a relationship which
transcends the boundaries of neighbourhood, kinship group, or tribe". Laws leaving everything free to the
market imply "a relative reduction of that kind of coercion, which results from the threat of mandatory and
prohibitory norms".
The approach therefore is one in which law is closely related to the concept of capitalism. This in itself
represents a weakness in Weber’s approach. It is committed to the model of capitalism and laissez-faire
th
economics. By the 20 century, the notion of welfare states emerged and it became apparent that
Weber’s concept could not be applied satisfactorily.
England therefore proved to be an ‘enigma’ to Weber. England demonstrated the non-determinant role of
economics in the development of law yet at the same time it was a system that fell short of his idea of
formal rationality. Weber explains his way out of this by stating that his approach was merely defining the
ideal type of capitalistic law and thus there could be variables. This then strengthens his position and
theory as being amenable to variations that reflect differing societies.
Weber’s discussion on the relationship between law and capitalism is interesting in its own right and in
connection with Marx. Weber, unlike Marx was not prepared to explain law as being determined solely by
economic forces. Although influenced by economic factors, law was fairly autonomous and in some cases
it was law that influenced economic forces. Perhaps the value to Weber’s contribution is the recognition
placed on the rationalist legal order as being a critical element in capitalist society.
.
EMILE DURKHEIM (1858-1917)
Durkheim’s theory of modern society forms a hierarchy of processes and institutions ranging from the
particularise of individual life to the universalise of culture. At the most general level, culture refers to the
cognitive, moral and aesthetic representations of collective life that inform the rest of society.
It refers to what Durkheim described as the "collective consciousness", society as it thinks of itself, the
morality of society which regulates the social institutions as well as economic life. Beneath culture, the
state and the law represent this universal culture in a more particularistic way and organise the lower
levels of the educational, occupational and domestic institutions. The individual is at the bottom of the
social hierarchy.
Some central elements emerging out of this scheme are Durkheim’s notion of culture and morality, state
and politics, law and punishment, the corporation or occupational group, and the characteristics of
modern economic life
The purpose of Durkheim’s work on the division of labour is to construct a positivistic science of morality
and discover how social solidarity can be maintained despite the growing autonomy of the individual
resulting out of the division of labour. Economic forces have lead not only to a functional differentiation of
labour but also to differentiation processes in all other domains of society. Durkheim argues that this is
the result of an evolution from mechanical to organic societies.
Mechanical societies are composed of similar replicated parts (families, hordes, and clans). The collective
conscience, defined as "the totality of beliefs and sentiments common to the average members of a
society", reflects this "solidarity by similarities": the collective practices and beliefs of the group are shared
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by all of its members, and any offence against the collective consciousness is perceived a threat to the
entire social order.
Durkheim argues that in the course of history organic society made progress in the proportion to which
mechanical society has regressed. Organic societies are made up of functionally different organs, each
performing a special role. The collective consciousness of this social type has a different hold on the
individual: the bonds to tradition and family are loosened, but the individual now has the social duty to
specialise and to concentrate his range of activities. The collective consciousness in modern societies still
has a hold on individuals, if only to affirm their individuality.
The causes of this evolution to a society characterised by a functional division of labour are two-fold.
First, "It is because there occurs a drawing together of individuals who were separated from one another,
or at least they draw more closely together than they had been.” Then social relations become more
numerous since "they push out beyond their original boundaries on all sides". Durkheim calls this
"drawing together and the active exchanges that result from it" dynamic or moral density.
Second, the social volume also increases; that is, the total number of members of society becomes
larger. Denser and more voluminous societies, Durkheim argues, necessitate the division of labour
because the struggle for existence becomes more strenuous. As people are drawn together this will
increase competition among them and when they have "ample space at their disposal, they will flee from
one another. [On the other hand] If they cannot go beyond set limits, they will begin to differentiate, but in
a way so that they become still more dependent of one another". Therefore, "the division of labour unites
at the same time it sets at odds; it causes the activities that it differentiates to converge; it brings closer
that it separates".
The secondary factors that account for the development of the division of labour include, first, the greater
independence of individuals in relation to the group. This means that the collective consciousness
becomes progressively indeterminate as societies get larger: "Because they are spread over a much
vaster area, the common consciousness is itself forced to rise above all local diversities, to dominate
more the space available, and consequently to become more abstract".
Another secondary factor in the evolution to organic societies is the weakening of the influence of
tradition. This occurs because in modern societies "individuals are no longer restricted to their place of
origin and free space is opened up, attracting them, they cannot fail to spread out over it". Especially the
growth of the town demonstrates that "The more the group is spread out, although densely concentrated,
the more the collective attention, dissipated over a wide area, becomes incapable of following the
movements of each individual, because attention does not become more intense as the number of
individuals increases. It must oversee too many points at one time to be able to concentrate on any single
one. The surveillance is less careful, because there are too many people and things to watch. There is
therefore a general decrease in social control because the individual’s "more frequent journeys, the more
active communications that he exchanges, the affairs with which he busies himself outside his own
locality, etc., divert his gaze from what is taking place around him. The centre of his life and concerns is
no longer to be found wholly in the place where he lives".
Therefore, "collective surveillance is irrevocably relaxed, the common consciousness loses its authority...
In short, for social control to be rigorous and for the common consciousness to be maintained, society
must split up into moderately small compartments that enclose completely the individual. By contrast,
both social control and the common consciousness grow weaker as such divisions fade".
Along with the division of labour, there is then a general trend for social life to become regulated in a
different way. The economic order itself does not lead to order or disorder; it is the collective
consciousness that accompanies it which determines the cohesion of society. The moralities of
mechanical and organic societies fulfil the function of binding the individual, offering cohesion to the
whole, albeit in different ways, which are themselves, the result of changed conditions in social density
and volume.
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In the Division of Labour, Durkheim conceives law as a manifestation of the collective consciousness.
Hence he uses as a measure for the development from mechanical to organic societies the evolution
from repressive to restitutive law. Repressive law is characteristic for simple and ancient societies. Law is
essentially religious law and infractions against it are immediately punished because they threaten the
existence of the collectivity itself. Crimes that are not religious are less severely punished. The moral
beliefs and justifications on which law and punishment are based are specific but not explicitly specified
since every member of society knows them (the collective consciousness is identical to the individual
consciousness).
In modern societies only criminal law is still repressive: it serves the unconscious function of
strengthening social solidarity. The nature of modern solidarity, however, changed and criminal law
declined in favour of restitutive law. Punishment follows legal violations in a restitutive way so that the
relations between individual and society are restored. Because individuals are more and more
differentiated from one another (they have different professions), legal regulations are more abstract and
general so they can still apply to all different individuals and provide the solidarity necessary for the
cohesion of society: "That alone is rational that is universal. What defies the understanding is the
particular and the concrete".
The growth of commercial law is an index of organic social solidarity: it indicates the need to maintain
relations between differentiated parts (analogous to the specialised functions of the organs of the body),
which are backed up by society. In contract law, for instance, every contract "assumes that behind the
parties who bind each other, society is there, quite prepared to intervene and to enforce respect for any
undertakings entered into". In organic societies it is therefore the state which becomes the organ of
priority to direct the other organs (like the brain). Violating the rules of a contract between individuals is an
offence against the state as the representative body of modern collective conscience.
In a later work Durkheim modifies his view of law and outlines two laws of penal evolution. The first law
stipulates that "the intensity of punishment is greater the more closely societies approximate to a less
developed type - and the more the central power assumes an absolute character". Durkheim thus
reaffirms what he earlier argued in The Division of Labour: the collective consciousness is stronger in
mechanical societies, more loosened in organic societies. He now explicitly links this evolution with the
religious or secular nature of law.
In primitive societies, the collective consciousness is essentially religious and so are their laws. In organic
societies, the law is secularised to refer to some human interest, not an individually held interest but to
mankind in general (analogous to the development of the collective consciousness). Any offence is an
offence against another human and "cannot arouse the same indignation as on offence of man against
God".
However, in the second part of the first law Durkheim states that the nature of political power also
intervenes in the development of the intensity of punishment. The law does not always "automatically"
represent the collective consciousness; it may be "distorted" by the political regime that determines its
contents. An absolutist government which faces no counter-balancing social forces, in particular, may
create and enforce laws which do not correspond to the collective consciousness: the laws may be
repressive, even in a differentiated society characterised by a division of labour. However, Durkheim
asserted, this is not "a consequence of the fundamental nature of society, but rather depends on unique,
transitory, and contingent factors". The political society to be normal, therefore, should always be in
concord with the development of the collective consciousness.
The other "law of law" refers to the fact that "deprivations of liberty, and of liberty alone, varying in time
according to the seriousness of crime, tend to become more and more the normal means of social
control". Durkheim refers to the lack of prisons in primitive societies where, he argues, imprisonment
would not fulfil any need since crimes directly threaten the collectivity and should therefore also be
punished collectively. When with the division of labour collective responsibility gradually declines, the
individual comes to the focus of attention and the deprivation of his freedom is a natural consequence.
197
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Durkheim’s typology is rooted in a priori thinking and empirical data have cast doubt on it. Other
sociologists have cast doubt on the theory that small-scale societies lack the notion of division of labour.
Further, recent opinions suggest that contrary to Durkheim’s hypothesis, repressive laws diminishes in
importance as we move away from modern nation states and that it is almost totally absent in the simplest
societies. Others believe that Durkheim underestimated the repressive aspects of modern law. At
another level, he is criticised for his failure to recognise moral conflicts or that law and morality could
come into conflict with each other. Further, he is criticised for his failure to address issues concerning the
legal processes, of how law is made, applied or enforced. Thus his contribution is rather limited to
providing some measure of understanding of the sociology of law particularly in the realm of crime and
punishment.
198

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L UNIVERSITY

Jurisprudence and Legal Theory

Advance Tertiary College (ATC)

Chapter 1 Natural Law 1

Chapter 2 Positivism – Austin and The Command Theory 25

Chapter 3 H.L.A Hart’s Concept of Law 39

Chapter 4 Hans Kelsen & The Pure Theory of Law 64

Chapter 5 Joseph Raz 89

Chapter 6 Ronald Dworkin 97

Chapter 7 Utilitarianism 129

Chapter 8 Feminist Legal Theory 145

Chapter 9 Marxism & Sociological Theories 160

A. Natural Law – A Point by Point Summary

A. NATURAL LAW – A SUMMARY

2. Approach to Natural Law

3. What is Natural Law

4. Central Themes of Natural Law

5. Decline of Natural Law

6. Revival of Natural Law

7. Application of the principles of Natural Law

(b) UNITED STATES

(c) INTERNATIONAL LAW

8. HART: MINIMUM CONTENT OF NATURAL LAW

Hart seems to have taken a stand as follows:

9. FINNIS’ RESTATEMENT OF THE NATURAL LAW

These basic goods are:

In the end, Finnis makes two assertions in this regard:

10. LON FULLER’S INTERNAL MORALITY OF LAW

11. NATURAL LAW: DIFFERENT NAMES

12. NATURAL LAW: DIFFERENT JURISTS

B. NATURAL LAW THEORIES

C. Classical Natural Law

ii. Plato (c427-347B.C)

iii. Aristotle (384 –322B.C)

C. The Roman Concept of Law

D. The Middle Ages (12th Century to 16th Century)

E. THE 17TH and 18TH Centuries

iii. Locke (1632-1704)

iv. Montesquieu (1689-1755)

vi. Hume (1711-1776)

vii. Kant (1724-1804)

viii. Hegel (1770-1831)

D. Natural Law Theories and Their Application.

Some important considerations.

E. The development of Natural law theories

F. The 'deductive fallacy' argument - the epistomological criticism.

H. The Nazi Grudge-Informer Cases.

I. The HART-FULLER discussion.

The complex moral issues identified.

The moral dilemma

2. THE MEANING OF LEGAL POSITIVISM

The ‘Separation Thesis’.

3. JOHN AUSTIN’S COMMAND THEORY

4. POSITIVE LAW AND POSITIVE MORALITY (THE CLASSIFICATION OF LAW)

5. AUSTIN’S AIMS AND METHODS OF ANALYSIS

6. OTHER CRITICISMS BY PROFESSOR H.L.A. HART IN RELATION TO AUSTIN

 The scope and persistence of laws.

7. THE ROLE OF COERCION IN LEGAL THEORY

At pages 13-15 of The Province of Jurisprudence Determined. A command is defined as ‘a wish

The consequences of Austin’s definition of the command are as follows:-

8. OTHER ARGUMENTS IN DEFENCE OF AUSTIN

Sanctions and power conferring rules.

9. THE AUSTINIAN SOVEREIGN