Understanding Jurisprudence

Denise Meyerson

• Publisher: Routledge-Cavendish
• Year: 2009
• eBook ISBN: 9781135328450
• Edition: 1
• Topic: Law
• Subtopic: Jurisprudence
• Index: Law

Considering general philosophical and theoretical questions about the nature, purpose and operation of law as a whole, this book introduces students to contemporary debates in jurisprudence and encourages them to think in a theoretical and critical way about the nature of law, legal reasoning and adjudication. Discussing wider issues of morality, politics and society with reference to legal cases and examples, it provides as broad a perspective on the law as possible. Key features of this textbook include:

• introductions to each chapter
• analysis of how jurisprudential issues can arise in everyday life
• a wide range of cases to ground the theoretical discussion
• in-depth discussion of the relationship of law to force, morality and politics, as well as of rights, justice and feminist jurisprudence.

The text provides a concise treatment of all the major topics typically covered in an undergraduate course on jurisprudence and succinctly explains the arguments for and against the different approaches to the issues that are raised.

Chapter 1
Law and force

Law is a way of regulating human conduct but it is not the only way. What is distinctive about law’s way of regulating our conduct? How is law able to require certain conduct of us which was not required of us prior to its enactment? These questions are at the heart of many of the jurisprudential debates that will be discussed in this book. In this chapter we will look at the ‘command theory’ of law as articulated by the nineteenth-century British jurist, John Austin. This is the theory that law is distinguished from other social standards, like morality and religion, by the exercise of force. We will also look at the criticisms of the command theory put forward by HLA Hart, whose normative conception of law both transformed jurisprudence and laid the foundation for important later developments in the discipline. Finally, we will discuss the writings of Hans Kelsen, an Austrian legal theorist, whose ‘pure theory of law’ is another classic in the field of jurisprudence.

You should be familiar with the following areas: • Austin’s theory of law as commands laid down by the sovereign and backed up by sanctions • Hart’s theory of law in terms of rules and, in particular, of law as a combination of primary and secondary rules • Kelsen’s theory of law as an order of norms the validity of which rests on a presupposed ‘grundnorm’

1.1 Austin’s command theory of law

The aim of John Austin (1790–1859) was to show ‘not what is law here or there, but what is law’ (Austin, 1863, p 32, Austin’s emphasis), and he believed that he had found the key to answering this question in the command theory of law. Though he was not the first theorist to put forward the command theory – Jeremy Bentham and, before him, Thomas Hobbes and Jean Bodin had spoken of law in similar terms – Austin is generally acknowledged as having provided its fullest exposition. Austin also followed Bentham in aiming to extend the methods of science to the study of social phenomena. He was, in particular, a great admirer of James Mill’s science of political economy and he expressly set out to put the study of law on the same scientific footing.

In his lectures entitled The Province of Jurisprudence Determined, published in 1832, Austin attempts to give an empirical account of law, that is, an account of law in terms of observable occurrences. Austin begins by distinguishing ‘laws properly so called’ from ‘laws by analogy’ (such as the laws of fashion or honour) and ‘laws by metaphor’ (these being the laws of science). He then turns in more detail to the category of laws properly so called and proceeds to make further distinctions within this category.

All laws properly so called are commands, says Austin, a command being an order backed up by a ‘sanction’ (a threat of harm) in the event of non-compliance with the command. Some commands are general – being directed to classes of persons and prescribing types of conduct – whereas some commands are directed to individual people. Furthermore, while all commands issue from a superior (a person or group of persons who has the power to inflict harm) – ‘the term superiority’, says Austin, ‘signifies might’ (Austin, 1832, p 30, Austin’s emphasis) – some commands issue from God, while others issue from humans. And of those which issue from humans, some are laid down by the sovereign in a state, while others (like the commands of a father to his child) are not. Austin goes on to say that it is only those general commands which emanate from the sovereign which are laws ‘strictly so called’ or ‘positive laws’ and it is these laws which comprise the subject matter of jurisprudence.

Who or what is the sovereign in the state? The sovereign, Austin explains, is that person or body of persons which is habitually obeyed by the bulk of society and which does not habitually obey any other person or body. The sovereign may therefore be a specific person, such as an absolute monarch, or a body of persons, such as a democratically elected parliament. In either case, however, the sovereign can be identified as that person or body of persons which habitually receives obedience and does not itself display obedience.

This is therefore Austin’s simple answer to the question posed at the beginning of this chapter: how do we distinguish legal standards from the many other kinds of standards which regulate and govern human conduct? Austin provides a straightforward factual test: laws are distinguished from other standards in being orders laid down by a supreme political superior or sovereign and backed up by sanctions. Here, Austin says, is ‘the key to the science of jurisprudence’ (Austin, 1832, p 21).

This answer is not of just abstract interest. Consider the Australian case of Milirrpum v Nabalco Pty Ltd (the Gove Land Rights case) (1971), in which Austin’s account of law was directly relevant to the legal issues and the court had consequently to pronounce on its adequacy. The plaintiffs were certain aboriginal clans who claimed that a mining company had unlawfully interfered with rights they had under aboriginal customary law to occupy and enjoy certain areas of land in the Gove Peninsula in the Northern Territory. Blackburn J found that the clans in question had a religious basis and a connection with the land. They did not, however, have an internal organisation, were not ruled over by a chieftain, and were not in control of a definable territory. This raised the question whether in their world there was anything recognisable as law, because, if not, their relationship to their land could not amount to a proprietary right and their argument would have floundered at the first hurdle.

Clearly, on Austin’s view, the answer would be ‘No’, since there was no identifiable sovereign authority giving the clans’ customary rules about the use and enjoyment of the land a capacity to be enforced. Austin’s view was, indeed, expressly relied on by the Australian Government in arguing that the clans’ customs were of a religious not a legal nature, and that no invasion of legal rights had therefore taken place. But is Austin correct that force applied by the state is the defining characteristic of law? The court rejected his view and, as we will see, there are powerful arguments in favour of the position it took.

1.2 Hart’s criticism of Austin’s notion of obligation

On Austin’s picture, as HLA Hart (1907–1992) points out, law is to be found in the ‘gunman situation writ large’ (Hart, 1994, p 7). A gunman who accosts you, saying ‘your money or your life’, achieves what he wants by threatening to kill you. We say that you have been coerced or forced into handing over your money. Law, for Austin, is coercive in the same way. The only points of difference are that the gunman’s orders are directed temporarily at a particular individual and the gunman is not the supreme source of commands in the society, whereas, for Austin, laws are general, are obeyed over time and issue from the sovereign. The key notion of a command backed up by a threat of evil is nevertheless shared by both the gunman’s orders and the law’s dictates. For Austin, force or coercion is the essence of law: the state is a gunman on a large scale.

Hart objects to this picture on a number of grounds. For one thing, he argues that it cannot serve to elucidate the concept of legal obligation. Austin does not, it should be emphasised, offer his theory as a psychological explanation of why people obey the law, namely, that they obey out of fear of sanctions. He says, indeed, that even if the sanction is ‘feeble or insufficient’, we remain under a legal duty. We are, in other words, under a legal duty even in circumstances where the threat of punishment is insufficient to motivate us to obey the law. Nor is Austin making the factual observation that disregard of legal obligations usually leads to sanctions. He is making a conceptual claim about the nature of law. His view is that when we say that a person is under a legal obligation this is equivalent in meaning to saying that the person is likely to suffer a harm for disobeying an order issued by the person or body which the majority of people habitually obey. Sanction and legal obligation are, in other words, conceptually related. They are opposite sides of the same coin. Thus Austin writes: ‘[c]ommand and duty are…correlative terms: the meaning denoted by each being implied or supposed by the other’ (Austin, 1832, p 22). Hart disagrees.

If the threat of being killed leads someone to hand over their money to a gunman, then we would describe them as obliged to hand over their money, in the sense that they have no real choice. But we would not, says Hart, say that they were under an obligation to do so or were duty-bound to do so (Hart, 1994, p 82). A gunman has the power to force me to act in a certain way but he has no authority to inflict harm on me and I am therefore under no obligation to obey him. If someone were to disarm him, I would have no further incentive to do what he orders. And if, for some reason, I were to resist the gunman, while this would no doubt lead to my suffering a harm, no-one would suggest that the harm was justified by my resistance. It makes no difference whether it is the state or a lone villain who plays the role of gunman. Threats backed up by sanctions do not translate into legal obligations. They may explain why I comply, but they do not imply that I ought to comply or that it is justifiable to punish me for failure to comply.

1.3 What Austin’s account leaves out

Even if commands backed up by threats were capable of imposing obligations, Austin’s account of law is too simple, according to Hart. It imposes on law a ‘spurious uniformity’ (Hart, 1994, p 49), for it is not the case that all laws order people to do or not to do certain things on pain of a sanction. Austin’s picture comes closest to describing criminal laws which in some ways resemble commands backed up by a threat of punishment. But even criminal laws cannot be seen as analogous to a gunman’s threats, because a gunman is above the law whereas criminal laws have to be obeyed by those who make them. Thus even criminal laws are not appropriately conceptualised in Austin’s top-down way.

Furthermore, there are many laws which are even more difficult to force into Austin’s model. Hart points in this connection to laws which confer powers, whether on private individuals or officials. Such laws do not impose duties or demands which require us to behave in certain ways whether we wish to do so or not. Rather, they provide the means to realise our wishes and they enable officials to act in certain ways.

There are, for instance, laws which empower us to make a will, or to enter into a contract or a marriage. And there are laws which confer power on courts to hear certain matters and on legislatures to make laws. Failure to observe the relevant requirements laid down by these laws leads to legal invalidity, not a threatened harm. If, for instance, someone fails to sign their will, they will not be punished. They will merely have failed to make a valid will. Likewise, if there is a law conferring power on a legislative body to pass laws which have the support of the majority, an attempt to pass a law which did not enjoy majority support would not be punished. It would merely be ineffective. Nor can it be said that legal invalidity is a kind of sanction, for the purpose of sanctions is to discourage certain conduct, whereas legal invalidity is not used for that purpose. Hart concludes that the command theory of law is incapable of adequately accounting for such power-conferring rules.

Hart argues next that there are certain typical features of legal systems that Austin’s concept of sovereignty cannot explain. One such feature is that legal systems make provision for the uninterrupted continuity of law-making power when one law-giver succeeds another. When a new set of legislators take their seats in parliament, the first bills they pass are laws. When an absolute monarch’s son succeeds him, the son’s first orders are laws. But, for Austin, we can talk of law only when there is a habit of general obedience. It follows that when one law-maker succeeds another there is, for Austin, no law until the populace has acquired the habit of generally obeying the new law-maker: there will be an in-between period in which law cannot be made. Austin therefore cannot account for the fact that there is a seamless transfer of authority to the successor law-maker – that the first law made by the new law-maker is already law despite the fact that the new law-maker has not yet received habitual obedience.

A second familiar characteristic of legal systems for which Austin’s concept of sovereignty cannot account, according to Hart, is the fact that laws made by an earlier legislator, now dead or now defunct, can still be valid law even though that legislator is no longer habitually obeyed. When one law-maker replaces another there is no reason to fear that all the old laws have disappeared. A law enacted 100 years ago can still be law today. Yet Austin’s theory has obvious difficulty in explaining this phenomenon. How can the orders of previous law-makers still be law when they are no longer habitually obeyed? The only way in which Austin can attempt to account for this phenomenon is to say that if the new legislator has not expressly repealed the old statute then that amounts to ‘tacitly’ commanding it. In particular, by not interfering when the courts enforce the old statute the new legislator has given a tacit order that it should be obeyed. The trouble with this response, though, as Hart points out, is that it implies that the old law is not law until it is actually applied by the courts during the tenure of the new sovereign. But this is false. A statute does not become law only after it is applied by the courts. It is already law before any cases arise to which it may be applied (Hart, 1994, p 64).

Finally, a third feature of Austin’s theory of law to which Hart objects is the sovereign’s legally illimitable status: since, for Austin, the sovereign does not habitually obey any other person or body, there can be no legal limits on what the sovereign can command. This must, according to Austin, be the case in all societies in which there is law: where there is law there is a legally illimitable sovereign. Austin writes: ‘[s]upreme power limited by positive law, is a flat contradiction in terms…Every supreme government is legally despotic’ (Austin, 1832, pp 212, 225). As Roger Cotterrell explains, this aspect of Austin’s theory follows directly from his definition of law: ‘[e]...

Table of contents

• Contents
• Preface
• Table of cases
• Introduction
• Chapter 1 Law and force
• Chapter 2 Law and morality
• Chapter 3 Law and politics
• Chapter 4 Law and politics
• Chapter 5 Rights
• Chapter 6 Public and private
• Chapter 7 Justice
• Chapter 8 Feminist jurisprudence
• Bibliography
• Index