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RGL 424

STUDY GUIDE

2012

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WELCOME

Hallo! My name is Prof. Andries Raath, and I will also be your lecturer in the second-semester course

Jurisprudence 424.

I have been lecturing since 1979 and have taught this subject at two universities before coming to the

University of the Free State in 1985.

A special word of appreciation and recognition is due to all the colleagues, institutions, and sources

which, in whatever manner, have contributed to the selection and compilation of texts and material

used in this guide. Without their cooperation and contribution, this guide would not have been

possible. Also, a special word of appreciation for the contributions of many colleagues whose insights,

by way of debate and discussion, could fruitfully be used for academic and tuition purposes.

I hope that you will enjoy this semester course and feel confident in the study and application of the

various theories of law that you are about to study.

Please note that copyright subsists in this work in terms of an agreement between eDegree

and the author. No part of this work may be reprodu ced in any form or by any means without

the written permission of the publisher and the aut hor. Any unauthorised reproduction of this

work will constitute a copyright infringement and r ender the doer liable under both civil and criminal law.

LECTURER

Prof. Andries Raath

raatha@ufs.ac.za

051 – 4012620 / 051 – 4019267 (assistant)

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Assessment and Assignments

ASSESSMENT

You will be assessed by means of an assignment and an examination according to the general rules

in relation to subjects taken through the Elearning system of distance education. The assignment will

count 20% and the exam 80% of the overall assessment.

ASSIGNMENTS

WERKSOPDRAG / ASSIGNMENT: RGL 424

Van E-Leer studente word verwag om beide (2) werksopdragte in te handig volgens die datums

deur E-Leer neergelê. Van kampusstudente word verwag om die tweede werksopdrag in die plek

van toets te voltooi. Die redaksionele voorskrifte vir beide werkstukke is dieselfde - kyk die

riglyne vir die tweede werksopdrag hieronder.

E-Learn students are required to submit both (2) assignments on the dates specified by E-Learn.

Campus students are required to submit the second assignment before or on the last day of

September 2012. The editorial requirements for both assignments are the same - see the criteria

for the second assignment below.

Werksopdrag 1 / Assigment 1: Skryf 'n opstel van nie minder as 5 000 woorde waarin u 'n

diepgaande en kritiese vergelyking tref tussen die regsteorieë van John Austin en H.L.A. Hart.

Dui aan welke standpunt u sou steun (indien enige) en gee 'n deeglike motivering vir u

antwoord.

Write an essay of not less than 5 000 words in which you draw a thorough and critical analysis

between the legal theories of John Austin and H.L.A. Hart. Indicate which of the two views (if

any) you would prefer and provide a thorough motivation for your answer.

Werksopdrag 2 / Assignment 2:

Read the following quotations:

Lees die volgende aanhalings:

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“The people of South Africa are committed to the attainment of social justice and

the improvement of the quality of life for everyone. The Preamble to our Constitution

records this commitment......This case grapples with the realisation of these

aspirations for it concerns the State’s constitutional obligations in relation to housing:

a constitutional issue of fundamental importance to the development of South

Africa’s new constitutional order”.

Paragraph 1 of the judgment of Yacoob J in

GOVERNMENT OF THE REPUBLIC OF SOUTH AFRICA AND OTHE RS V

GROOTBOOM AND OTHERS 2000 (11) BCLR 1169 (CC)

CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA, 1996

Preamble

We, the people of South Africa, Recognise the injustices of our past; Honour those who suffered for justice and freedom in our land; Respect those who have worked to build and develop our country; and Believe that South Africa belongs to all who live in it, united in our diversity. We therefore, through our freely elected representatives, adopt this Constitution as the supreme law of the Republic so as to— Heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights; Lay the foundations for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law; Improve the quality of life of all citizens and free the potential of each person; and Build a united and democratic South Africa able to take its rightful place as a sovereign state in the family of nations. May God protect our people. Nkosi Sikelel’ iAfrika. Morena boloka setjhaba sa heso. God seën Suid-Afrika. God bless South Africa. Mudzimu fhatutshedza Afurika. Hosi katekisa Afrika.

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GRONDWET VAN DIE REPUBLIEK VAN SUID-AFRIKA, 1996

Aanhef

Ons, die mense van Suid-Afrika, Erken die ongeregtighede van ons verlede; Huldig diegene wat vir geregtigheid en vryheid in ons land gely het, Respekteer diegene wat hul beywer het om ons land op te bou en te ontwikkel; en Glo dat Suid-Afrika behoort aan almal wat daarin woon, verenig in ons verskeidenheid. Daarom neem ons, deur ons vryverkose verteenwoordigers, hierdie Grondwet aan as die hoogste reg van die Republiek ten einde- Die verdeeldheid van die verlede te heel en 'n samelewing gegrond op demokratiese waardes, maatskaplike geregtigheid en basiese menseregte te skep; Die grondslag te lê vir 'n demokratiese en oop samelewing waarin regering gegrondves is op die wil van die bevolking en elke burger gelyk deur die reg beskerm word; Die lewensgehalte van alle burgers te verhoog en die potensiaal van elke mens te ontsluit; en 'n Verenigde en demokratiese Suid-Afrika te bou wat sy regmatige plek as 'n soewereine staat in die gemeenskap van nasies kan inneem. Mag God ons mense beskerm. Nkosi Sikelel' iAfrika. Morena boloka setjhaba sa heso. God seën Suid-Afrika. God bless South Afrika.

Mudzimu fhatutshedza Afurika. Hosi katekisa Afrika

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1. With reference to the historical development of the jurisprudential notion of ‘social

justice’, discuss how the stated aims in the first paragraph of the Grootboom case as well

as in the Preamble of the Constitution should be reached. Motivate your opinion.

(50)

Met verwysing na die historiese ontwikkeling van die regsfilosofiese idee van ‘sosiale

geregtigheid’, bespreek hoe die gemelde doelwitte in die eerste paragraaf van die

Grootboom saak asook die Aanhef van die Grondwet bereik moet word. Motiveer u opinie.

(50)

2. Read the following:

Lees die volgende:

Nuremberg Law for the Protection of German Blood an d German Honor, September 15, 1935

Moved by the understanding that purity of the German Blood is the essential condition for the continued existence of the German people, and inspired by the inflexible determination to ensure the existence of the German Nation for all time, the Reichstag has unanimously adopted the following Law, which is promulgated herewith: Article 1. 1) Marriages between Jews and subjects of the state of German or related blood are forbidden. Marriages nevertheless concluded are invalid, even if concluded abroad to circumvent this law. 2) Annulment proceedings can be initialed only by the State Prosecutor. Article 2. Extramarital intercourse between Jews and subjects of the state of German or related blood is forbidden. Article 3. Jews may not employ in their households female subjects of the state of German or related blood who are under 45 years old.

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Article 4. 1) Jews are forbidden to fly the Reich or National flag or to display the Reich colors. They are, on the other hand, permitted to display the Jewish colors. The exercise of this right is protected by the State. Article 5. (1) Any person who violates the prohibition under §1 will be punished by a prison sentence with hard labor. (2) A male who violates the prohibition under § 2 will be punished with a prison sentence with or without hard labor. (3) Any person violating the provisions under § 3 or §4 will be punished with a prison sentence of up to one year and a fine, or with one or the other of these penalties. Article 6. The Reich Minister of the Interior, in coordination with the Deputy of the Führer and the Reich Minister of Justice, will issue the Legal and Administrative regulations required to implement and complete this Law. Article 7. The Law takes effect on the day following promulgations except for §3, which goes into force on January 1, 1936. Nuremberg, September 15, 1935 at the Reich Party Congress of Freedom

The Führer and Reich Chancellor Adolf Hitler The Reich Minister of the Interior Frick

The Reich Minister of Justice Dr. Gürtner The Deputy of the Führer R. Hess

2. Should this law be obeyed? Investigate the validity of this law and motivate your

answer by referring to at least four (4) of the natural law theories which you have studied

this year. (50) Behoort hierdie wet gehoorsaam te word? Ondersoek die geldigheid

van hierdie wet en motiveer u antwoord deur na ten minste vier (4) natuurregsteorieë te

verwys wat u hierdie jaar bestudeer het.

(50)

3. The assignment takes the place of the second test opportunity. The assignment must be

submitted on the date set for the second test date for this module. Die werksopdrag neem

die plek van die tweede toetsgeleentheid. Die werksopdrag moet ingehandig word op die

datum wat vir die tweede toetsgeleentheid in die module aangedui word.

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4. The assignment must be thoroughly footnoted and contain a full bibliography. The

editorial style of the Journal for Juridical Science must be followed. Die werksopdrag moet

volledige voetnootverwysings en 'n deeglike bibliografie bevat. Die styl van die Tydskrif vir

Regswetenskap se redaksionele riglyne moet gevolg word.

5. References to the study guide and internet sources may not appear in the assignment.

Al least 10 scholarly articles from academic journals and 5 academic handbooks must be

consulted. Verwysings na die studiegids en internet-bronverwysings mag nie in die

werksopdrag voorkom nie. Minstens 10 artikels uit akademiese joernale en 5 akademiese

handboeke moet geraadpleeg word.

6. In the event of unlawful use of the work of other students and/or plagiarism dissiplinary

steps will be instituted against candidates. In die geval van onregmatige gebruik van

mede-studente se werk en/of plagiaat sal dissiplinêre stappe teen kandidate geneem word.

7. All assignments must be handed in via Blackboard before 12:00 on the said date. Alle

werksopdragte moet voor 12:00 op die genoemde datum via Blackboard ingehandig word.

8. Assignments must contain at least 5000 words – 2500 words for question 1 and 2500

words for question 2. Werksopdragte moet minstens 5000 woorde bevat – 2500 woorde vir

vraag 1 en 2500 woorde vir vraag 2.

EXAM DETAILS

You are requested to bear the following in mind in completing the work and preparing for the

exam:

� You have to study all the work done in the units (that is, the prescribed expositions

contained in this guide or the prescribed textbook).

� You are well advised to summarise the work contained in the prescribed study material

before completing the self-aid questions and other prescribed activities.

� A number of standard-type questions are provided in the text of this guide. You must

make sure that you do these questions on your own. The examination questions will

mostly be taken from these standard-type questions.

� The exam papers will be composed of questions of 12½ marks each, mostly taken from

the standard-type questions in this guide.

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Course Details

PRESCRIBED READING

Prescribed textbook

� Van Blerk, A. 1996. Jurisprudence: An Introduction. Durban: Butterworths.

All references to van Blerk (1996) will refer to this prescribed textbook.

RECOMMENDED READING

Although no specific sources on the Internet are prescribed, you are advised to scan the Web

for information on various topics and authors for further reading. One of the terms that can, for

example, be studied very fruitfully on the Web is the concept of natural law. These electronic

sources are not compulsory for this course and serve as enrichment only.

Students are advised to consult a good dictionary from time to time as the need may arise.

Additional reading can be done by consulting the following very comprehensive work:

� Freeman, M.D.A. 1994. Lloyd’s Introduction to Jurisprudence. 6th edn. London: Sweet

and Maxwell.

Although it is not a prescribed book, it is a handy source of reference. It also contains very

useful extracts from the works of prominent legal philosophers, which will enable students to

read from the original sources.

Older works that are still very useful are as follows:

� Dias, R.W.M. 1976. Jurisprudence. 4th edn. London: Butterworths.

� Stone, J. 1965. Human Law and Human Justice. London: Stevens and Sons.

Any good academic library at a university should have the standard works of reference on most

of the topics dealt with in this course.

COURSE OVERVIEW

Jurisprudence is a complex academic field, covering different areas of legal theorising. In order

to understand the basic structure of the course, the following have to be borne in mind:

� Law is one of the institutions that are central to the human being’s social nature, and a

close relationship between law and social structure is inevitable.

� Because law plays such a major role in human affairs and because of the close relation

between social relationships and law, legal theory inevitably has a high level of

ideological content.

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� Ideology in the jurisprudential realm means that every jurist has his or her own notion of

the subject matter and proper limits of jurisprudence and that the human being’s

approach is governed by his or her “allegiances”, “inarticulate major premises”, or those

of his or her society.

� Such presuppositions are reflected by all theories in jurisprudence, whether natural law,

utilitarianism, or positivism.

� Similar to the fields of history, ethics, psychology, and the other social sciences, law also

reflects the ideologies of its time and place.

� A study of jurisprudence, therefore, necessitates a close and critical look at the

ideological underpinnings of all the major legal theories.

� It also, necessarily, means that there are close links between jurisprudence and other

fields of study, such as sociology, psychology, and anthropology and that these other

fields of science can contribute substantially to our understanding of law.

� Interdisciplinary study and research in the field of jurisprudence has greatly expanded

over the last three decades and has led to the establishment of a centre of social-legal

studies at Oxford and the publication of a number of prominent journals promoting

interdisciplinary research in the field of jurisprudence.

In the light of the foregoing, it can be said that the course Jurisprudence will focus on the

interplay between fields of law and other social sciences and will investigate the most important

legal ideologies that have shaped humankind’s thinking about law and legal theory. A number of

important themes have been chosen for specific consideration in this course. Most of these

themes touch on, or directly involve, the issues of freedom and human rights within the context

of the major legal paradigms, namely, natural law philosophy and legal positivism, for example,

the issue of the moral duty to obey the law and the question of whether the individual citizen

may be relieved from the duty to comply with positive law; the question whether the citizens

may revolt against the legitimate authority of law; the problem of political legitimacy in the

context of jurisprudence; an analysis of the arguments that there are basic human rights that

are guaranteed by moral law or natural law and that rules of law (norms) contrary to

fundamental principles of morality are not entitled to being treated as valid laws at all and that

refusal to adhere to these is both legally and morally justified; an investigation into the nature of

the freedom of the citizen and what measures must be accepted to preserve his or her freedom;

the relation of law to liberty; and the means of giving effect to those basic freedoms that, in a

democratic society, are regarded as an essential part of the “good life” because it is argued that

in such a society, it is not enough that the law should merely confer security on the citizen in his

or her person and property – he or she must be able to express his or her opinions without

restraint, it is said, and to associate with his or her fellow citizens, he or she must be free to

come and go as he or she pleases, and to seek employment of such a kind as he or she would,

he or she must be entitled to enjoy the benefits of what has come to be known as the “rule of

law” – all of which raise legal problems of great complexity within the framework of the modern

state. In this course, an attempt is made to introduce the theories dealing with some of these

more pressing issues.

In modern times, the functioning of the law has been closely associated with the idea of a

sovereign power located in a particular state and possessing authority to make law as it

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pleases. This theory has had important consequences with regard to both national and

international legal systems. Most problematical issues related to individual freedom, resistance

to unjust laws, the role of moral law, and the status of justice in political systems have emerged

since Bodin formulated his theory of sovereignty.

Involved in many of these issues is the dialectical (or conflicting) tension between positive law

and moral law. As mentioned in the foregoing discussion, law and morality are interrelated and

interact on each other in a complex way. Sometimes the possibility of serious divergence

remains between the duty imposed by law and morality in given situations. Dennis Lloyd

identifies three main attitudes that may be adopted towards the possibility of such divergence.

In the first place, some theories state that law and morals must necessarily coincide either

because the moral law dictates the actual content of human law or, alternatively, because

morality is itself what the law lays down. These theories maintain the proposition that, in effect,

only the moral law is valid and that nothing that does not conform to the moral law itself can be

properly regarded as effectively binding law. The second alternative to this has been

propounded by a number of philosophers. Thomas Hobbes, for instance, argued that morality

really means nothing more than obeying the law, so that unjust law is a contradiction in terms.

Hegel’s mystical theory of the moral superiority of the state over the individual also recognised

that the individual could claim no higher right than to obey the law of the state of which he or

she formed an insignificant part.

The second main attitude says Lloyd, is to recognise that human-made law and the moral law

each enjoys a realm of its own, but that the moral law is a higher law and thus provides a

touchstone for the validity of merely human-made law. Conflicts, therefore, need to be resolved,

at least in the last resort, in favour of the moral law, though the consequences that may be

drawn from this solution vary a good deal. For instance, it may be suggested that the human

law is, in case of conflict, certainly nullified, and so the citizen is relieved of his or her moral duty

of obedience. On the other hand, it may be said that this is a matter that must be left between

God and the unjust ruler, but that the citizen’s duty is still one of simple obedience. Broadly

speaking, this theory of the two laws has, from the time of the Hellenistic Greeks up to the

present day, been discussed in jurisprudence mainly in terms of a so-called law of nature, or

natural law, which is regarded as containing precepts of a higher order, whether ordained by

God or part of the natural order of the world. This doctrine has given rise to the important

development of the idea of the “natural rights” of the human, which have played such a large

role in democratic thought since the days of the American and French Revolutions.

The third main approach is that which treats the autonomy of each of the spheres of law and

morality as exclusive, so that neither can resolve questions of validity save in its own sphere.

This theory is presently commonly referred to as “legal positivism”. It insists that the validity of a

legal rule can depend solely on legal criteria, just as moral validity must be ascertained by

applying such criteria as are necessary or appropriate in relation to a system of morality. Those

who support this view generally take a pragmatic view of the moral law, basing it on some such

principle as utility, expediency, tradition, or social custom. For them, any conflict between the

two spheres cannot impugn the legal validity of human-made law or alter the duty of legal

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obedience, though it gives rise to the moral problem of whether the law as it stands ought to be

changed. And, in extreme cases, a conflict between legal and moral duty may have to be

resolved in accordance with the dictates of the conscience of the individual and his or her moral

courage to defy a law which he or she believes to be contrary to what is morally right or just.

Most of the jurisprudential theories, issues, and views discussed in this course are somehow

related to this basic relationship between morality and positive law.

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UNIT 1

Analytical Positivism

Introduction Outcomes Readings Unit Content

LEARNING OUTCOMES

After completing Unit 1, you should be able to do t he following:

� Distinguish between positivism and natural law jurisprudence.

� Know and apply the principles to identify positivistic and legalistic arguments.

� Know the basic arguments in favour of legal positivism contained in the theories of

Austin, Hart, Kelsen, and other influential legalistic approaches to law and jurisprudence.

READINGS

Prescribed reading

• Van Blerk (1996: 27-81)

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UNIT 1: Analytical Positivism

John Austin (1790-1859) and analytical

jurisprudence

Read the following exposition and van Blerk (1996: 27-35), and answer the

accompanying questions.

Austin (1790-1859):

Analytical positivism John Austin was the eldest son of a prosperous Suffolk miller. At 16, he joined the army

and served as a lieutenant in Malta and Sicily until 1812 when he resigned his

commission to study law. The fact that he spent these years in the army has frequently

been pointed to as a factor resulting in his “command” theory of law. He was called to the

Bar in 1818 and for seven years practised as an equity draughtsman in Lincoln's Inn

without success or enthusiasm. He became a friend of Bentham and the Mills and for

some time lived at the intellectual centre of the movement for reform; though Austin, while

remaining a convinced utilitarian, dissented early from Bentham's political radicalism,

which he believed to be founded on ignorance of the lower classes. He was opposed to

the further extension of the franchise.

In 1826 when the University of London was founded, Austin was appointed its professor

of Jurisprudence and spent the next two years in preparation of his lectures, mainly in

Bonn, where he read the newly discovered Institutes of Gaius, the Pandects, and the

works of Hugo, Thibaut, and Savigny, and made friends with Niebuhr and W. von

Schlegel.

His opening lectures in 1828 were attended by John Stuart Mill, George Cornewall Lewis,

Romilly, Erle, Charles Buller, and many others of the Benthamite circle. After this initial

success, however, he failed to attract new students, and in 1832, he resigned the chair in

bitter disappointment.

An expanded version of the first part of the lectures was published in the autumn of 1832,

under the title of The Province of Jurisprudence Determined. No notice was, however,

taken of it outside Austin’s circle of friends, and it was never reviewed by any learned

journal. In 1834, Austin repeated the lectures at the Inner Temple, but with even less

success. He then abandoned the teaching of jurisprudence. Through the influence of his

friends, whom his intelligence and character never ceased to impress, he was given two

official appointments. In 1833, he was appointed to the Criminal Law Commission, but

resigned in frustration after signing its first two reports; and in 1836, he was appointed

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Commissioner with George Cornewall Lewis to advice on the legal and constitutional

reform of Malta. Although the commissioner’s recommendations were adopted, Austin’s

appointment was abruptly terminated at the end of two years. For the next ten years, he

lived abroad. He returned to England in 1848, settling in Weybridge where he died in

1859.

Throughout his life, Austin suffered from recurrent bouts of nervous illness, depression,

and self-distrust, and though Macaulay, John Stuart Mill, and Guizot found him a brilliant

conversationalist, he wrote with difficulty, imposing on himself standards of precision and

clarity that made work a torment. Between the publication of The Province of

Jurisprudence Determined and his death, he published only a couple of articles and a

pamphlet, A Plea for the Constitution, directed against further reform. A second edition of

The Province was published by his wife in 1861; and she reconstructed the main

Lectures on Jurisprudence or the Philosophy of Positive Law from Austin’s notes and

published them in 1863.

Within a few years of his death, it was clear that his work had established the study of

jurisprudence in England. It was Austin, says Stone, who more than a century ago

founded English jurisprudence as a subject of serious legal study! It is now clear that his

influence on the development of the subject in England has been greater than any other

writer. For, as Hart points out, English jurisprudence has been and still is predominantly

analytical in character; other influences, even that of Maine whose Ancient Laws

appeared in the same year (1861) as the second edition of The Province, have been

secondary.

It is true that there is little original in Austin: he was inspired above all by Bentham from

whom he inherited a hatred of mysticism and unreality and a triple passion for

classification, legislation, and codification. The main doctrines of The province of

Jurisprudence Determined can be easily identified in Austin’s predecessors: the

definitions of “law”, “sovereign”, and “political society” can be found almost verbatim in

Bentham and Hobbes, and the conception of the rules of morality as based on the

principle of utility itself being the index of God’s commands is to be found in Paley and

Berkeley and, in a less definite form, in Locke and Hobbes. “Austin’s achievement,” says

Hart, perhaps his greatest heir, “was to segregate these doctrines from the political and

philosophical discussions in which they were imbedded and to restate them with a new

firmness, grasp of detail and precision so that lawyers and political thinkers could not only

understand them but use them to dispel the haze which still blurred the distinctions

between law, morality and religion and obstructed the rational criticisms of legal

institutions”.

From Austin, a line of English analytical jurists has descended: Amos, Clark, Markby,

Hearne, Holland, and Salmond differ very little from Austin in their conception and

arrangement of the subject, even when they oppose his doctrines. In the United States,

Austin’s influence has been less direct; yet his doctrines – modified by the distinctive

American insistence on the central importance of the courts and the subordinate place of

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the legislature – can be easily recognised in so seminal a work as Gray’s Nature and

Sources of Law. On the Continent, his work remained almost unknown until the end of

the last century, and perhaps because of this, Kelsen’s “pure theory” of law, which has

much in common with Austin’s doctrine, made so great an impact on Continental jurists.

Austin’s relation to contemporary English and Germa n legal thought As we have seen, Jeremy Bentham, whose disciple Austin mainly was, sought to expose

the logical absurdities, obscurities, and fictions that hid the living law of England at the

close of the eighteenth century. He reacted mainly to the substance by a lifetime’s

campaign for legal reform. Austin also reacted against absurdities, obscurities, and

fiction; but while Bentham reacted mainly to the substance by a lifetime’s campaign for

legal reform, Austin reacted mainly to the form by a determined effort to extract logical

order from the illogical chaos.

Austin had spent several years of study at German universities before he began to

lecture and, as a result, was influenced by the Roman law system. But even more

importantly, his contact with the German exponents of the Roman law who reached their

greatest power in the middle of the nineteenth century, the Pandectists, must have

quickened his impatience with the unsatisfactory form of English law.

A young lawyer, whose staple training had been on Coke’s Institutes, Blackstone’s

Commentaries, and the chaotic reports of that day, must have been aroused by such

contacts to deep dissatisfaction with the form of English law. Lacking the historical spirit,

like his teacher Bentham, he attributed the chaos not to centuries of piecemeal though

often sweeping change, but rather to loose thinking. And again like Bentham, he

regarded natural law not as a powerful instrument of such change, but as the arch-

example of such looseness. He made the divorce of law from natural law, ethics, and

other kinds of social rules a main task for his new science. By doing this, he did not deny

that law-making needed a science and a philosophy for its exercise, but rather saw the

one in the distinct science of legislation and the other in the principle of utility. All this, in

turn, fitted excellently into the pattern of study of Roman law that he must have observed

in Germany, a pattern devoted to the study of consistency, anomaly, and antinomy.

Austin’s search for an apparatus for logical struct uring of law As Stone points out, that the paramount design in Austin’s mind was that of logical testing

is clear enough from his own work. He states as the main use of his analytical

jurisprudence that the student might perceive the various relations of (the law’s) various

parts: the dependence of its minute rules on its general principles; and the subordination

of such principles as are less general or extensive, to such of them as are more general,

and run through the whole of its structure.

This view of the analytical task is implicit throughout most of Austin’s work, and though he

is rarely explicit on the matter, he does at one point analogise his work to “the mere

process of deduction from given hypotheses”.

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Austin’s concept of law is, therefore, not a description of any actual system, but a model

that reveals the logical consistency of a system. What value is there in thus trying to

present a legal order as a logical, consistent whole? As Dias says, if it is meant to be no

more than an exhibition of co-ordinating skill, it can only provide passing interest for those

who may care to look on. But this was not what Austin attempted to do. He was

concerned with “real” law. What he attempted to do was to show that it was possible to

lay out the constituent parts of legal system in a systematic arrangement, that is, a logical

arrangement of the propositions of law of which it consists.

Although Austin did not mean that his orderly, hypothetical system was a literal

representation of English law or any other actual body of law, it was intended to promote

a better understanding and impart new insights into “real” law. Its value, therefore,

depends on the degree of correspondence between it and “real” (actual) law. Thus

although Austin himself recognised that a distance existed between the logical coherence

of the constituent rules of his hypothetical legal system and the actual legal system of a

particular state, he nevertheless presented his scheme in the belief that, notwithstanding

some discrepancies, there was a sufficient degree of correspondence with actuality. In

this, as we shall see, he is generally considered to have failed.

The science of “General Jurisprudence” To Austin, then, jurisprudence is concerned with the formal analysis of legal concepts. He

maintained (or, as Dias puts it, “paid lip-service” to the idea) that such a study should be

“general”:

I mean, then, by General Jurisprudence, the science concerned with the

exposition of the principles, notions and distinctions which are common to

systems of law: understanding by systems of law, the ampler and more mature

systems which, by reason of their amplitude and maturity, are pre-eminently

pregnant with instruction.

Austin, however, gives no criterion for “amplitude and maturity”. Nor does he explain

whether the “common principles” are those that are, in fact, found to be common or those

that for some reason are treated as being necessarily common. There is, in truth, no

demonstration that the notions that he did put into his book are, in truth, shared by

“ampler and more mature systems”, whatever these may be. The substance of his book

is, in fact, drawn mainly from English law with occasional reference to Roman law. His

jurisprudence was, in truth, chiefly “particular”, at the utmost “comparative”. Since the

legal orders of the Old and New Worlds, as far as Austin knew, were based either on the

Roman or the English common law, he may have supposed that these two, between

them, would furnish a foundation for general jurisprudence. However, as Buckland has

pointed out, Austin and others like him, who profess “general” jurisprudence, seldom

adhere to it.

18

The prefatory character of Austin’s definition of l aw Before addressing himself to the task of analysing the concepts of law (for example,

rights, ownership, etc.), Austin considered it necessary to demarcate the province of “law”

and to distinguish it from considerations as to what it ought to be. In his first six lectures,

published under the title of The Province of Jurisprudence Determined, he set out to

explain and define the fundamental concept of law itself and the fundamental notions

connected with it, in the light of which his subsequent analysis of the concepts of law was

to be conducted. Although Austin’s fame rests largely on what he said in these first six

lectures, their prefatory character should not be lost sight of. Austin considered them to

be only a prologue to the study of jurisprudence, which, to him, meant the analysis of

legal concepts.

“Law properly so called” and “law improperly so cal led” Austin begins his analysis of law by distinguishing between “law properly so called” and

“law improperly so called” and then distinguishing “positive law” or “law simply and strictly

so called” – the subject matter of jurisprudence – from other species of “law properly so

called”.

a) Law properly so called

“A law,” says Austin, “in the literal and proper sense of the word, may be defined as

a rule laid down for the guidance of an intelligent being by an intelligent being

having power over him”. This, then, is law “properly so called”.

He then goes on to define laws properly so called as “general commands”. And he

defines a “command” as the expression of a wish by a determinate person or body

of persons that another person shall do or forebear from doing some act subject to

an evil (or sanction) in the event of disobedience.

Austin divides laws properly so called, or general commands, into laws set by God

(“Divine law” or the “law of God”) and laws set by men to men, to which Austin

applied the term “positive” to distinguish them from the law of God.

Laws set by men to men also fall into two categories. The first consists of laws set

by political superiors (that is, by a sovereign person or sovereign body of persons)

to a member or members of an independent political society wherein that person or

body of persons is sovereign or supreme. This category also includes laws set by

private persons acting in pursuance of rights conferred on them by political

superiors. Austin termed all this “positive law” or “law simply and strictly so called”,

and this was, according to him, the subject matter of jurisprudence. Since positive

laws are species of laws properly so called, they are defined as commands of a

sovereign supported by sanctions.

The second category of laws set by men to men consists of laws set by men to

men neither as political superiors nor in pursuance of rights conferred on them by

such superiors, for example, those set by a master to a servant or the rules of a

19

club. They are still laws “properly so called”, because they are commands, but

Austin distinguished them from positive law by giving them the term “positive

morality”.

b) Law improperly so called

Austin distinguished laws “improperly so called” from laws properly so-called. His

line of thought here may be stated as follows. If the term “law” is understood in its

broadest “vulgar” sense, it will be perceived immediately that many parts of it fail

not only to conform to his definition, but also even to approximate to it. They are

“law” by “metaphor” or “analogy” only, and to call them “law” is not only inexact, but

also misleading and improper.

Austin enumerated two such principal improper uses of the term “law”. Firstly, there

are what Austin called “laws by metaphor”. These are the laws of physical nature,

such as the laws of physics and chemistry. These laws obviously stand in the

starkest contrast with his definition, for they do not proceed from any determinate

human superior (even if they be thought of as emanating from a Divine Being);

they are not directed to human beings or to rational beings at all; and as far as we

know, no sanction is imposed for breach of such laws.

Secondly, there is what Austin called “laws by analogy”. These are the laws of

opinion or fashion. Though they are set by men to men, they fall short of the

definition, for those by whom they are set are not determinate, consisting merely of

a fluctuating body of opinion, prejudice, and emotion; and the threatened evil by

which they are enforced is, for that reason, uncertain in form, in quantity, and in

incidence. Rules of conduct of this nature, among which Austin included public

international law, he also called “positive morality”.

The following table will help you to understand this complex classification:

Law

Laws properly so

called

Laws improperly so

called

1. Laws set by God to men

2. Laws set by men to men

a. as political superiors

b. not as political superiors

Laws by analogy

Laws by metaphor

Law of God

Positive law, or

law strictly so

called

Positive morality

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Independent Political Society: Sovereignty What distinguishes positive law (law “simply and strictly so called”) from the law of God

and positive morality is the fact that positive law is set by a political superior. The starting

point of Austin’s theory is, then, the concept of an independent political society. And he

defines such a society in terms of sovereignty.

Sovereignty, according to Austin, has two “marks”: a positive and a negative one. The

positive mark is that the “bulk” of a given society is in the habit of obedience to a

determinate common superior. The negative mark is that the determinate common

superior is not in the habit of obedience to some other superior. The determinate superior

may be one or a number of persons; and the number who must yield obedience to the

determinate superior must not fall short of a number “which cannot be fixed with

precision, but which may be called considerable or not extremely minute” or “not

inconsiderable”. Both these “marks” are combined in the following proposition:

If a determinate human superior, not in the habit of obedience to a like superior,

receives habitual obedience from the bulk of a given society, that determinate

superior is sovereign in that society, and the society (including the superior) is a

society political and independent.

This definition suffices to distinguish the society in which Austin is interested – that is, the

society that is capable of “law” in Austin’s sense – from all other societies. It distinguishes

society from the traditional family or clan, since the head of the family or clan is, except in

the most primitive groupings, subject in the exercise of his power to the overriding

authority of the larger tribe or people. It distinguishes society from other organisations

such as churches, trade unions, and political parties, since their claim to obedience is

again subject, in theory at any rate, to overriding power and is moreover, in any case,

usually limited to particular purposes, whereas the claim of Austin’s posited superior is

not so limited. Furthermore, it distinguishes the societies in which Austin is interested

from less developed societies in which, as the historians and the anthropologists have

pointed out, it is rarely, if ever, possible to detect any determinate person or persons to

whom the community habitually renders obedience.

The kind of society in which Austin is interested consists, then, of three principle

elements: (1) a group of men defined by reference to specific territory which they

ordinarily inhabit, constituting the Society; (2) certain men among this group constituting

the Sovereign, who render no habitual obedience to others; and (3) the rest of the group,

constituting the subjects, the bulk of whom render habitual obedience to the Sovereign.

Such a group is a “society political and independent” or, better, an independent politically

organised society. Thus Austin sets an immediate and important limit to his logical system

by admitting that he is not interested in “law” emanating from any other kind of society

than this one.

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Sovereignty indivisible and illimitable It follows from Austin’s definition of sovereignty that it is both indivisible and illimitable;

and Austin insists that this is so. There can be only one sovereign, and he must possess

all sovereign power. “If parliament ... be sovereign or absolute, every sovereign power

must belong to that sovereign body.” So, too, sovereign power cannot be legally limited:

Now it follows from the essential difference of a positive law, and from the nature

of sovereignty and independent political society, that the power of a monarch

properly so called, or the power of a sovereign number in its collegiate and

sovereign capacity, is incapable of legal limitation. A monarch or sovereign

number bound by a legal duty, were subject to a higher or superior sovereign: that

is to say, a monarch or sovereign number bound by a legal duty, were sovereign

and not sovereign. Supreme power limited by positive law, is a flat contradiction in

terms.

Sovereign can have no legal rights or duties Austin denied that a sovereign could have either legal rights or legal duties. Rights and

duties, he argued, have to be conferred by the sovereign on someone. To say that the

sovereign has a right or a duty would, therefore, not be sovereign. “A man is no more

able to confer a right on him than he is able to impose on himself a law or duty.”

Constitutional and International Law Obviously, on Austin’s principles neither Constitutional Law nor International Law is law.

Constitutional Law, in so far as it relates to the composition of the sovereign, is not law;

for whether a particular man, or particular body or composition of bodies is habitually

obeyed by the bulk of a society is a question of fact. Moreover, what is commonly called

“Constitutional Law” (meaning the principles on which the sovereign should act) is really

only positive morality, for sovereign power cannot be limited.

So, too, International Law is not law, for ex hypothesi there is so sovereign – no common

determinate superior who is habitually obeyed. International Law, says Austin, “consists

of opinions or sentiments current among nations generally”. It is true, of course, that

sovereigns may abide by it, but they abide by other opinions as well. It is also true that

one sovereign may command another to abide by some rule of International Law and

threaten evil in the case of non-compliance. But this does not make it law. The duties that

International Law imposes are “enforced by moral sanctions: by fear on the part of

nations, or by fear on the part of sovereigns, of provoking general hostility, and incurring

probable evils, in case they violate maxims generally received and respected”. Like

honour and fashion, International Law is merely “positive morality”.

Consideration of some aspects of Austin’s definitio n of sovereignty Dias says that “Austin’s remark that the sovereign has to receive ‘the habitual obedience

from the bulk of a given society’ touches on a valuable point. It reveals somewhat

obliquely the fact that every legal system is ultimately founded on some fact for which no

justification can be adduced in law”. Dias, however, goes on to say that Austin was

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mistaken in insisting on habitual obedience of the “bulk” of a given society. It was, says

Dias, the “habitual obedience” of the judges that, for example, established the

sovereignty of Crown in Parliament in England in the revolution of 1688.

But the idea of a “habit of obedience” is itself open to criticism. It is argued that the term

“habit” is appropriate for a statement of factual conclusions based on observation of

physical events: it is not at all satisfactory when the task at hand is to explain the reason

for which observable regularities occur in the field under examination, and not merely to

describe what those regularities are.

However, the most serious and fundamental criticism levelled against Austin’s theory of

sovereignty is that it is said to confuse “political” (de facto) sovereignty and “legal” (de

jure) sovereignty. It is because Austin failed to make this distinction, so the argument

runs, that he was driven to the conclusion that sovereignty is indivisible and illimitable and

that the sovereign can have neither legal de facto and de jure sovereignty. According to

him, the legal sovereign is “the person (or body) to whose directions the law attributes

legal force ... whose authority is that of the law itself”. The “practical” or de facto

sovereign, on the other hand, is” the person (or body of persons) who can make his (or

their) will prevail whether with the law or against the law”. Admittedly, these two grounds

have a tendency to coalesce”

Sovereignty de facto, when it has lasted for a certain time and shown itself stable,

ripens into sovereignty de jure .... Sovereignty de jure in its turn tends to attract to

itself sovereignty de facto, or, in other words, the possession of legal rights tends

to make the legal sovereign actually powerful. Hence a ruler de facto is always

anxious to get some sort of de jure title .…

Nevertheless, Bryce maintains, the two concepts are distinct. And legal sovereignty,

being the creation of the law, can be divided, limited, and made the subject of rights and

duties.

There can be no doubt that Austin does confuse de facto and de jure sovereignty. Not

only does he, as we have seen, say that sovereignty is a matter of fact; he also proceeds

to the analysis of the British and American constitutions and his principles. And here he

finds himself in considerable difficulty. He knows that, in the United Kingdom, what was

already in his day the most important element in the legislature, the House of Commons,

is not a body of men exercising power in their own individual rights. Members of the

House of Commons are, in a sense, dependent on others: the electors who appoint them.

What is more, there are times when there is no House of Commons in existence, namely,

during dissolution. Austin, therefore, shrinks from saying that there is habitual obedience

to Parliament – King + House of Lords + House of Commons – and that Parliament is,

therefore, sovereign. Instead, he places the sovereignty in the composite body consisting

of King + House of Lords + Electors. But this gets him into worse difficulties, and he is

driven to an artificial, indeed a contradictory, explanation.

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Austin says that a sovereign body, or part of one, need not act directly. It may delegate

some or all of its powers. This delegation may take place in either of two ways: (i)

absolutely, so that for the time being the representatives are completely invested with the

sovereignty of those represented, or (ii) subject to trusts. In the United Kingdom, Austin

says, the electors delegate absolutely:

During the period for which these members are elected, or during the Parliament

of which those members are a limb, the sovereignty is possessed by the King and

the peers, with the members of the common’s house, and not by the King and the

peers, with the delegating body of commons.

On the other hand, when Parliament is dissolved,

the delegated share in the sovereignty reverts to that delegating body, or the King

and the peers, with the delegating body of commons, are then the body wherein

the sovereignty resides.

Austin thus finds himself saying that the place where sovereignty resides depends on

whether Parliament is in being, and thus there is no permanent sovereign.

Although he maintains that in the United Kingdom the electors delegate their powers

absolutely and without trust, Austin cannot accept the full implications of this, for such a

delegation would give power to the House of Commons to

concur with the King and the peers in defeating the principal ends for which it is

elected and appointed. It might concur, for instance, in making a statute which ...

would annihilate completely the actual constitution of the government, by

transferring the sovereignty to the King or the peers from the tripartite body

wherein it resides at present.

Austin, therefore, contradicts himself and says, after all, that there is a trust, albeit a tacit

one enforced only by moral sanctions, that the members of the House of Commons will

not exercise their powers in such a way as would tend to defeat the purpose for which

they are elected. The trust is enforced only by “moral sanctions” because, of course,

legally there is no limit to the powers of Parliament.

Austin thus succeeds in showing that sovereignty remains within the composite body of

King + House of Lords + Electors throughout, but at the cost of contradicting himself more

than once. Unfortunately, what he says is not correct either in fact or in law. In fact,

already in his day the King had no say in making acts of Parliament. In law, the King +

House of Lords + Electors have no power at all. What is more, Austin cannot, without

contradiction, maintain that the electors (Commons) are part of the sovereign, for if they

are, they are both sovereign and subject; and this is incompatible with Austin’s definition

of sovereignty.

The Constitution of the United States presents difficulties of a rather different kind to the

Austinian conception of sovereignty. According to Austin, there cannot be a habit of

obedience to two persons or bodies at the same time. Sovereignty is indivisible. At first

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sight, the existence of the federal constitution of the United States denies the validity of

this proposition, for the spheres of state and federal government are regulated by a

written instrument; but Austin cannot allow this. He cannot allow that the written

instrument is the ultimate source of power. He must have a person or body as sovereign,

and therefore, he finds the sovereignty in the United States in the persons who can

amend the Constitution. To be more exact, Austin holds that the sovereignty in each of

the states and in the whole federation resides in

the states’ governments as forming one aggregate body: meaning by a state’s

government, not its ordinary legislature, but the body of citizens which appoints its

ordinary legislature, and which, the union apart, is properly sovereign therein.

The actual provision for the amendment of the American Constitution is that amendments

must be proposed either by two thirds of both houses of Congress or by a Convention

summoned on the application of two thirds of the state legislatures and ratified either by

three quarters of the state legislatures or by special conventions in three quarters of the

states. It is, therefore, true that the ultimate authority according to the Constitution rests

with the states’ governments; and that, because those governments are elected, the

ultimate authority, in fact, rests with the citizens of the various states. Consequently, on

the assumption that “what the sovereign permits he commands”, Austin was able to say

that every law of the Federal Government or the individual states is ultimately the

command of the states’ governments who might alter it and, in the final analysis, of the

citizens of the states who elected the states’ governments.

It is difficult to see how it can really be maintained that the people of the United States

habitually obey the dictates of a body that acts so seldom. It has been bitingly

commented that “this remarkable body of persons has only issued twenty commands in

one hundred and fifty years, and no one can render personal obedience to such a body,

nor indeed does anyone know who they are”. As Dicey put it, the sovereign in a federal

state is hard to rouse. “A monarch who slumbers for years is like a monarch who does not

exist.” Further, Austin makes no mention of one highly significant proviso of the

constitution, namely, that no state may be deprived of its equal representation in the

Senate without its consent. As such consent is extremely unlikely to be given, the

Constitution is really unchangeable in that particular. And then, what about a constitution

that makes no provision for its alteration and is, therefore, unchangeable? Then there can

be no sovereign in the Austinian sense, because there is no ultimate authority, and as

Jolowicz points out, it is no good saying that there may be a revolution. One could not say

that the bulk of the people, whoever they may turn out to be, will be strong enough to

bring about a revolution. And finally, Austin’s explanation of the sovereign in the United

States raises even more forcibly the same problem that we met with in connection with

the British constitution, namely, if the citizens of the states are the ultimate authority, they

then constitute both the sovereign and the subjects.

There can then be no doubt that Austin did confuse de facto sovereignty with de jure

sovereignty and that this led him into the above difficulties. But was this identification of

de jure with de facto sovereignty a necessary part of Austin’s thesis? Stone maintains

25

that it was not. He argues that Austin’s stress on “the universal, unlimited and illimitable

despotism” of the sovereign is, properly understood, not an assertion that such a

sovereign is to be found, as a matter of political fact, in every actual society which enjoys

a legal system. It is, says Stone, “rather an assertion that such logical coherence as the

propositions of a legal order may have is likely to be most easily and most fully seen if we

arrange them as if they were commands of such a sovereign”. Thus understood, Stone

believes, the Austinian sovereign is a formal postulate, which itself neither threatens

democracy, nor insults primitive communities, nor supports the case of Hobbes, Bodin,

and Machiavelli for the growth of a supreme central power.

Stone says that Lindsay has made almost the same distinction as he, Stone, is making

here. Lindsay distinguishes as perfectly valid and useful that aspect of Austin’s

sovereignty that postulates that there must be an authority, be it single or composite, in

any society that has law in his sense, such that particular laws can be deduced or derived

from it or related to it. The difficulties, he points out, have arisen because Austin thought

of this in terms of a determinate person or persons, instead of leaving that matter, as he

might well have done, quite open. This led him to confuse with the notion of “authority”

the notion of “power” in the concrete sense. And this, in turn, led him to such strange

adventures as the search for the determinate person or body of persons who were

sovereign in the American Union. In short, as soon as Austin went beyond the postulated

nature of his own starting points and sought, instead of an “authority” basing the validity

of law, some “person” or “persons” who yielded “power” and whose commands alone are

valid law, he had moved outside his own proper sphere of discourse. This, says, Stone, is

an “incidental weakness”; it is not Austin’s central thesis. Austin’s main purpose and

contribution, despite occasional lapses, appears to be to suggest a framework for viewing

the propositions of a legal order and a logically self-contained system, not to provide a

theory of how power was or ought to be distributed in society. And it is but to state the

converse of this to say that while political and social science, including sociology of law,

are concerned with exploring the full relationships of social life, Austin was not concerned

with tracing the relations of law behind its immediate source, the political sovereign.

Whether or not Austin’s identification of sovereignty with political power was central to his

thesis, it is quite obvious that the principal reason why his definition of sovereignty took

the form it did was Austin’s adherence to the Imperative or Command Theory. Thus, in

his fifth lecture, he says that “no indeterminate party can command expressly or tacitly, or

can receive obedience or submission”. As Finch puts it: “The personal and direct notion

of a command, central to Austin’s exposition, seems ... to have influenced one of the very

characteristics of the legal authority from which it arises”.

Law as a command The definition of the kind of society with whose law he is concerned is not itself a

sufficient basis for Austin’s system. It is also necessary for him to define which of the

phenomena of that society is, for his purpose, properly to be regarded as law. It is true

that Austin’s sovereign would, by definition, be able to invoke the assistance of the bulk of

26

the community in enforcing his will. He would have, in Austin’s words, “the power of

affecting others with evil or pain, and of forcing them through fear of that evil or pain to

fashion their conduct” according to his wishes. It does not necessarily follow, however,

that law would be identified by reference to that power. Obedience might conceivably be

the result of blind faith or hypnosis or mere learnt (as distinct from innate) psychological

submission tendencies.

Thus, Austin defines law as the sovereign authority’s wish,

relating to the general conduct of the subjects, to which command such sovereign

authority has given legal obligation by annexing a sanction or penalty in the case

of neglect.

This, Austin says, is a “general command” of the sovereign.

Thus, in addition to the sovereign, Austin’s definition of law contains three further

elements: (i) a wish expressed by the sovereign to the subjects, (ii) a penalty attached by

the sovereign to disobedience to the wish, and (iii) the wish to relate to the general

conduct of the subjects.

Laws as species of commands “Laws properly so called,” says Austin, “are commands”. And therefore, by “determining

the essence of law imperative and proper”, we determine “implicitly the essence of a

command”. Of course, Austin does not mean by this that all commands are law: only the

general commands of the sovereign are law. Rather, he means that laws are a species of

command: “Every law or rule ... is a command. Or rather, laws or rules properly so called

are species of commands.”

From this, it follows that an analysis of the concept of a command is necessary. Indeed,

Austin says that this analysis provides “the key to the science of jurisprudence”:

Now, since the term command comprises the term law, the first is the simpler as

well as the larger of the two. But simple as it is, it admits of explanation. And since

it is the key to the science of jurisprudence and morals, its meanings should be

analysed with precision.

Austin, therefore, proceeds to “analyse the meaning of ‘command’”:

If you express or intimate a wish that I shall do or forbear from some act, and if

you will visit me with an evil in case I comply not with your wish, the expression or

intimation of your wish is a command. A command is distinguished from other

significations of desire, not by the style in which the desire is signified, but by the

power and the purpose of the party commanding to inflict an evil or pain in case

the desire be disregarded.

Command and duty, says Austin, are correlative terms:

27

Being liable to evil from you if I do not comply with a wish which you signify, I am

bound or obliged by your command, or I lie under a duty to obey it. If, in spite of

that evil in prospect, I comply not with the wish which you signify, I am said to

disobey your command, or to violate the duty which it imposes.

Command and duty are, therefore, correlative terms: the meaning denoted by

each being implied or supposed by the other.

Thus Austin lays stress on the close interrelation of three elements in law, namely,

“command”, “duty”, and “sanction”:

... command, duty and sanction are inseparably connected terms: each embraces

the same idea as the others, though each denotes those ideas in a peculiar order

or series. A wish conceived by one, with an evil to be inflicted and incurred in

case the wish be disregarded, are signified directly and indirectly by each of the

three expressions. Each is the name of the same complex notion.

An important consequence of this assertion that the ideas of command, duty, and

sanction are “each ... the name of the same complex notion”, is, as Raz points out, that it

excludes the possibility of any internal relation between laws constituting a necessary

element in a legal system. By “internal relation between laws” Raz means the “relation

between laws one or more of which refer to or pre-suppose the existence of the others”.

Indirect or “tacit” commands Like Bentham, Austin also used the theory of adoption to explain the legal force of

statutes of previous sovereigns, delegated legislation, custom, and case law. These, says

Austin, become law by the “tacit command” of the sovereign:

Like other significations of desire, a command is express or tacit. If the desire be

signified by words (written or spoken), the command is express. If the desire be

signified by conduct (by any signs of desire which are not words), the command is

tacit.

Of custom he says that many “admirers” of customary law think that such laws

oblige legally ... because the citizens or subjects have observed or kept them.

Agreeably to this opinion, they are not the creatures of the sovereign state,

although the sovereign or state may abolish them at pleasure. Agreeably to this

opinion, they are positive law (or law, strictly so called) inasmuch as they are

enforced by the courts of justice: But, that notwithstanding, they exist as positive

law by the spontaneous adoption of the governed, and not by position or

establishment on the part of political superiors. Consequently, customary laws,

considered as positive law, are not commands.

But, says Austin, the truth is that:

At its origin, a custom is a rule of conduct which the governed observe

spontaneously, or not pursuance of a law set by a political superior. The custom

is transmuted into positive law, when it is adopted by the courts of justice, and

28

when the judicial decisions fashioned on it are enforced by the power of the state.

But before it is adopted by the courts, and clothed with the legal sanction, it is

merely positive morality....

Nor, says Austin, is case law an exception; and an analysis of case law reveals why

customary law is the creature of the sovereign state:

Now when a judge transmutes a custom into a legal rule (or makes a legal rule

not suggested by custom), the legal rule which they establish is established by

the sovereign legislature. A ... judge is merely, a minister. The portion of

sovereign power which lies at his disposition is merely delegated. The rules which

he makes derive their legal force from the authority given by the state: an

authority which the state may confer expressly, but it commonly imparts by way of

acquiescence. For, since the state may reverse the rules which he makes, and

yet permits him to enforce them by the power of the political community, its

sovereign will “that his rules shall obtain as law” is clearly evidenced by its

conduct, though not by its express declaration.

Declaratory and repealing statutes Austin was somewhat exercised by declaratory statutes (that is, those which merely

declare existing law) and by repealing statutes. He considered that declaratory statutes

are not laws properly so called because they command nothing. Nevertheless, he admits

that they are so intimately connected with positive law as to come within the province of

jurisprudence. Similarly with repealing statutes: “In so far as they release from duties

imposed by existing laws, they are not commands.”

Thus Austin was driven to concede that declaratory and repealing statutes are

exceptions. In this he was, perhaps, unduly hesitant, for as Buckland pointed out, these

statutes could well have been reconciled with Austin’s view. Declaratory statutes could be

treated as repeating earlier commands, while repealing statutes may be said to create

fresh claims and duties by their cancellation of earlier ones and so be said to command a

view that Austin himself anticipated when he said that “for the parties released from

duties are restored to liberties or rights: duties answering those rights are, therefore,

created and revived”.

The sanction It is, as we have seen, the sanction that distinguishes a command from other expressions

of desire. The sanction is described as follows:

the evil which will probably be incurred in case a command be disobeyed or (to

use an equivalent expression) in case a duty be broken, is frequently called a

sanction or an enforcement of obedience. Or (varying the phrase) the command

or the duty is said to be sanctioned or enforced by the chance of incurring evil.

It is clear that Austin regarded the threat of the slightest evil as sufficient. This may be

regarded as somewhat artificial if it were to be inferred that the sanction was, in Austin’s

29

view, to be regarded as a psychological inducement. However, as Stone points out, such

an inference would be incorrect. Austin is not here addressing himself to psychological

inducement, but to finding some distinguishing mark for the purpose of his analytical

theory. Austin, in other words, does not explain why, in his postulated “society, political

and independent”, the bulk of the community do obey the sovereign. But he is quite

definite as to why certain wishes of the sovereign do import a legal obligation. The reason

is that the sovereign has attached to the wish a sanction or conditioned evil and that, by

definition, the sovereign has the power, by reason of support by the bulk of the

community, to inflict that evil. It is obvious that it cannot be the law that holds society

together and keeps the sovereign in his place. It is rather the fact that the sovereign can

maintain his place that gives the law its character as such. Law, as Austin defines it, is

one way in which the sovereign power can be exercised; but logically, by the definition of

sovereignty, it is not the only way.

Petrazcki has argued that a sanction of any kind cannot be essential to a rule of law. For

when Rule 1 with Sanction 1 is transgressed, another Rule 2 with Sanction 2 must come

into play, unless Sanction 1, and with it Rule 1, are to be regarded as mere nullities. But if

Sanction 2 is defied, Sanction 3 would similarly have to operate and so on, ad infinitum.

There would have to be an infinite regression of sanctioning rules if at some point or other

a rule without a sanction (a non-legal rule) is not to be reached. And since regression

could not be ad infinitum, it follows that at some point a rule of law without a legal

sanction would have to be reached.

As Stone says, in purely logical terms, the answer to this is difficult. In sociological terms,

it has been attempted to show that the support given by socio-ethical pressure (“public

opinion”) and by power to the law renders the chance of violation of Sanction 1

comparatively small, of Sanction 2 even smaller, and so on progressively. It is thus

argued that the logical necessity for an infinite regression of sanctioning rules does not

correspond to social reality. But, argues Stone, this sociological support for Austin’s

position (even if we assume that it would be acceptable to him) may, however, prove too

much. For, sociologically, the tendency of the majority in a society to submit to the

exercise of power by a dominating minority may arise from a mere psychological

tendency of submission. If that is correct, then it must be apparent that the mere wish of

Austin’s sovereign, who ex hypothesi has supreme power, would in itself tend to produce

obedience even without the attachment of any sanction. Certainly, the mere addition of a

very slight sanction could not make any difference to the compulsive nature of the

command.

Another distinction that Austin introduced into his definition of law also related to the

element of sanction. He anxiously considered whether a promise of good might give the

sovereign’s wish the quality of law equally with a threat of evil. Logically, it is difficult to

see why it should not. For if the compulsive force of law derives from support of the

sovereign by the bulk of the community, there is no reason why this support should not

stand behind the anticipation of a reward as well as of a punishment. Stone suggests that

“it may have been the negative role of the state in his own age which led him to take

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restraint with the corollary of threat of evil as the exclusive type of law. Whereas even the

modest developments of the social service state which are already visible make it at least

clear that guidance and assistance with its corollary of promise of good may be important,

if not as important”. And this development also draws our attention to the point that, in

terms of its cost to the public purse, threat of evil is probably a much cheaper sanction

than promise of good. Yet it also becomes clearer year by year that much of the legal

regulation in the modern complex and economically organised society is by way of

affording legal facilities whereby the objects may pursue their legitimate objectives. Here

it is men’s pursuit of their own objectives rather than either threat of evil or promise of

good that is the basis of law observance.

Indeed, it is clear that only a small number of laws in most legal systems relate directly to

the application of sanctions, especially if the notion of a sanction is to be defined as a

chance or threat of some evil or harm. It is often pointed out that the type of legal rule that

most nearly approximates to Austin’s model is a rule of criminal law. But there are

important areas of law in which the definition of a sanctioned command breaks down,

since many legal rules are designed to perform altogether different functions. The rules,

which provide facilities to act in certain ways in order that a certain action can produce

legal consequences (for example, contracts, wills), cannot find a proper place in Austin’s

account.

Laws as general commands Commands, says Austin, are of two species:

Some are laws or rules. Others have not acquired an appropriate name ... [and] I

must therefore note them as well as I can by the ambiguous and inexpressive

name of “occasional or particular” commands.

To be law, the sovereign’s command must prescribe a course of conduct; it must be a

general command and distinct from a particular command, which prescribes conduct on

one particular occasion:

[Where a command] obliges generally to acts or forbearances of a class, a

command is a law or rule. But where it obliges a specific act or forbearance, or to

acts or forbearances which it determines specifically or individually, a command is

occasional or particular.

Austin gives the following examples of occasional or particular commands: you command

your servant to go on an errand; a regiment is ordered to attack a post; Parliament

commands that the exportation of certain corn already shipped be not exported. In

contradistinction, the following are general commands and, therefore, laws or rules: you

command your servant always to rise at a certain hour; a regiment is commanded to

exercise daily; Parliament simply prohibits the exportation of corn. Austin criticises

Blackstone who distinguished a law from a particular command on the basis that a law

obliges members of a given community or of a given class generally and that a particular

command obliges a single person.

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Of Austin’s distinction Stone says, “Such a distinction would naturally present itself to

Austin’s mind, writing, as he was, in an age when the tendency of legislation was to

remove interferences and to lay down the general rules of the social game rather than

partake in the playing of it”. Stone goes on to say that this distinction between general

and particular command is “logically unsupportable in the crude form which Austin gave

it”.

Questions

1. Define analytical positivism.

2. Explain Austin’s relation to contemporary English and German legal thought.

3. Make a critical analysis of Austin’s views on “general jurisprudence”, “law properly

and improperly so called”, “political sovereignty”, “law as command”, and “law as

sanction”.

Standard-type question

1. Give a thorough overview of John Austin’s legal positivism. (12½)

Hart’s criticism of Austin’s theory of law

Read the following expositions and van Blerk (1996: 35-45).

Hart’s criticism of Austin’s theory

(Chapters III and IV in Hart 1961)

The variety of laws If we compare the varieties of different kinds of law to be found in a modern system such

as English law with the simple model of coercive orders, a number of objects leap to

mind. These fall into three main groups.

The content of laws The criminal law is something that we either obey or disobey, and what its rules require is

spoken of as a “duty”. If we disobey, we are said to “break” the law, and what we have

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done is legally “wrong”, a breach of “duty” or an “offence”. The social function that a

criminal statute performs is that of setting up and defining certain kinds of conduct as

something to be avoided or done by those to whom it applies, irrespective of their wishes.

The punishment of “sanction” that is attached by the law to breaches or violations of the

criminal law is (whatever other purpose punishment may serve) intended to provide one

motive for abstaining from these activities. In all of these respects, there is at least a

strong analogy between the criminal law and its sanctions and the general orders backed

by threats. There is some analogy (notwithstanding many differences) between such

general orders and the law of torts (delict), the primary aim of which is to provide

individuals with compensation for harm suffered as a result of the conduct of others.

Here, too, the rules that determine what types of conduct constitute actionable wrongs

are spoken of as imposing on persons, irrespective of their wishes, “duties” (or more

rarely “obligations”) to abstain from such conduct. This conduct is itself termed a “breach

of duty” and the compensation or other legal remedies a “sanction”. But there are

important classes of law where this analogy with orders backed by threats fails

altogether, since they perform a quite different social function. Legal rules defining the

ways in which valid contract or wills or marriages are made do not require persons to act

in certain ways, whether they wish to or not. Such laws do not impose duties or

obligations. Instead, they provide individuals with facilities for realising their wishes, by

conferring legal powers on them to create, by certain specified procedures and subject to

certain conditions, structures of rights and duties within the coercive framework of the

law.

The power thus conferred on individuals to mould their legal relations with others by

contracts, wills, marriages, etc. is one of the great contributions of law to social life; and it

is a feature of law obscured by representing all law as a matter of orders backed by

threats. The radical difference in function between laws that confer such powers and the

criminal statute is reflected in much of our normal ways of speaking about this class of

laws. We may or may not “comply” in making our will with the provisions of the Wills Act

as to the number of witnesses. If we do not comply, the document we have made will not

be a “valid” will creating rights and duties; it will be a “nullity” without legal “force” or

“effect”. But, though it is a nullity, our failure to comply with the statutory provision is not a

“breach” or “violation” of any obligation or duty, nor an “offence”, and it would be

confusing to think of it in such terms.

This is also true of powers that are of a public or official rather than a private nature. The

power conferred on a judge does not appear to be of the nature of an order. Similarly, a

statute conferring legislative powers on a subordinate legislative authority exemplifies a

type of legal rule that cannot, except at the cost of distortion, be assimilated to a general

order. For example, if a measure before a legislative body obtains the required majority of

votes and is thus duly passed, the voters in favour of the measure have not “obeyed” the

law requiring a majority decision; nor have those who voted against it either obeyed or

disobeyed it. The same is, of course, true if the measure fails to obtain the required

majority, and so no law is passed. The radical difference in function between such rules

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as these prevents the use here of terminology appropriate to conduct in its relation to

rules of the criminal law.

The range of application Plainly a penal statute, of all the varieties of law, approximates most closely to the simple

model of coercive orders. Yet even these laws have certain characteristics to which the

model is apt to blind us, and we shall not understand them until we shake off its influence.

The order backed by threats is essentially the expression of a wish that others should do

or abstain from doing certain things. It is, of course, possible that legislation might take

this exclusively other-regarding form. An absolute monarch wielding legislative power

may, in certain systems, always be considered exempt from the scope of the laws he

makes; and even in a democratic system, laws may be made that do not apply to those

who made them, but only to special classes indicated in the law. But the range of

application of a law is always a question of its interpretation. It may or may not be found

on interpretation to exclude those who made it, and of course, many a law is now made

that imposes legal obligations on the makers of the law. Legislation, as distinct from just

ordering others to do things under threats, may perfectly well have such a self-binding

force. There is nothing essentially other-regarding about it. This is a legal phenomenon

that is puzzling only as long as we think, under the influence of the model, of the laws as

always laid down by a person or persons above the law for others subjected to it.

Modes of origin The enactment of a law, like the giving of an order, is a deliberate datable act.

Accordingly, theories that use the model of coercive orders in the analysis of law make

the claim that all law can be seen, if we strip away the disguises, to have this point of

resemblance to legislation and so owes its status as law to a deliberate law-creating act.

The theory requires us to accept that until the courts apply customs in particular cases,

they are mere customs and in no sense law. The sovereign who might have interfered

has tacitly ordered his subjects to obey the judge’s orders “fashioned” on pre-existing

custom. This is open to two criticisms. Firstly, it is not necessarily the case that until they

are used in litigation, customary rules have no status as law. “Why, if statutes made in

certain defined ways are law before they are applied by the courts in particular cases,

should not customs of certain defined kinds also be so? Why should it not be true that,

just as the courts recognize as binding the general principle that what the legislature

enacts is law, they also recognize as binding another general principle: that customs of

certain defined sorts are law? What absurdity is there in the contention that, when

particular cases arise, courts apply custom, as they apply statute, as something which is

already law and because it is law?”

The second criticism of the theory that custom, when it is law, owes its legal status to the

sovereign’s tacit order is more fundamental. Even if it is conceded that it is not law until

enforced by the court in the particular case, is it possible to treat the failure of the

sovereign to interfere as a tacit expression of the wish that the rules should be obeyed?

34

Only very rarely is the attention of the legislature turned to the customary rules applied by

the courts.

Synopsis The theory of law as coercive orders meets, at the outset, with the objection that there

are varieties of law found in all systems that, in three principal respects, do not fit this

description. Firstly, even a penal statute, which comes nearest to it, often has a range of

application different from that of orders given to others, for such a law may impose duties

on those who make it as well as on others. Secondly, other statutes are unlike orders in

that they do not require persons to do things, but may confer powers on them; they do not

impose duties, but offer facilities for the free creation of legal rights and duties within the

coercive framework of the law. Thirdly, though the enactment of a statute is in some ways

analogous to the giving of an order, some rules of law originate in custom and do not owe

their legal status to any such conscious law-creating act.

Sovereign and subject: the continuity of law Hart considers that Austin’s theory fails to explain the continuity of law. He illustrates this

criticism thus. Suppose an absolute monarch, Rex, established sovereignty over a

society in the Austinian sense. He may have trouble at first, but the society has settled

down and now, generally, obeys his commands, that is, obedience has become habitual

just as, for example, the citizens are in the habit of reading the newspaper at breakfast. In

this very simple situation, all that is required from the community to constitute Rex

sovereign are the personal acts of obedience on the part of the population. Now let us

suppose that Rex dies, leaving a son, Rex II, who now immediately begins to issue

general orders. The mere fact that there was a general habit of obedience to Rex I in his

lifetime does not by itself even render probable that Rex II will be habitually obeyed. Rex

II’s orders will not be law until a habit of obedience has been established. As there is

nothing to make him sovereign from the start, there will be a period in which no law can

be made.

Although such a state of affairs is, of course, possible, it is nevertheless a “characteristic”

of a legal system “to secure the uninterrupted continuity of law making power by rules

which bridge the transition from one lawgiver to another”. These rules regulate the

succession in advance, naming or specifying in general terms the qualification of, and

mode of, determining the lawgiver. Thus if the rule provides for the succession of the

eldest son, then Rex II has a title to succeed his father. He will have a right to make law,

and his first orders will thus be laws before any habit of obedience has time to establish

itself. It is obvious, however, that we have now introduced a new set of elements of which

no account can be given in terms of habits of obedience to general orders, for in that

world there are no such rules giving the sovereign the right to make law. Thus Hart

concludes:

... the idea of habitual obedience fails, in two different though related ways, to

account for the continuity to be observed in every normal legal system, when one

legislator succeeds another. First, mere habits of obedience to orders given by

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one legislator cannot confer on the new legislator any right to succeed the old and

to give orders in his place. Secondly, habitual obedience to the old law-giver

cannot by itself render probable, or found any presumption, that the new

legislator’s orders will be obeyed. If there is to be this right and this presumption

at the moment of succession there must, during the reign of the earlier legislator,

have been somewhere in the society a general social practice more complex than

any that can be described in terms of habit or obedience: there must have been

the acceptance of the rule under which the new legislator is entitled to succeed.

The persistence of law Hart’s second criticism relates to what he calls “the persistence of law”. Here the question

is the converse of what we have considered under the previous heading. How can a law

made by an earlier legislator still be law for a society that cannot be said habitually to

obey him? The answer, says Hart, is in principle the same. It involves the substitution for

the simple notion of habits of obedience to a sovereign person the notion of currently

accepted fundamental rules specifying a class or line of persons whose word is to

constitute a standard of behaviour for the society, that is, who have a right to legislate.

Such a rule, though it must exist now, may in a sense be timeless in its reference. It may

look backwards as well as forwards. When Rex I dies, his legislative work lives on, for it

rests on the foundation of a general rule that successive generations of a society

continue to respect. This renders unnecessary the unacceptable theory that the

legislation of prior sovereigns is enforced as a result of the tacit expression of the

sovereign’s will. Hart says that if that theory were correct, it would follow that such

statutes are not law until enforced by the courts and that the incoherence of this can be

seen most clearly in its incapacity to explain why the courts of the present day should

distinguish between a Victorian statute which has not been repealed as being still law and

one which was repealed under Edward VII as being no longer law.

Legal limitations on legislative power In the doctrine of sovereignty, the general habit of obedience of the subject has, as its

complement, the absence of any such habit in the sovereign. He makes law for his

subjects and makes it from a position outside any law. There are, and can be, no legal

limits on his law-creating power. The legally unlimited power of the sovereign is his by

definition. The theory, therefore, does not say that there are some societies where a

sovereign subject to no legal limits is to be found, but that everywhere the existence of

law implies the existence of a sovereign with unlimited powers.

The objection to the theory as a general theory of law is that the existence of a sovereign

without legal limits to his sovereign power is not a necessary condition or presupposition

of the existence of law. The conception of legally unlimited sovereign misrepresents the

character of law in many modern states where no one would question that there is law.

Even if we take the case of the single ruler, Rex, it is clear that there may be “the

accepted rule” that no law of Rex shall be valid if it excludes native inhabitants from the

territory or provides for their imprisonment without trial and that any enactment contrary to

36

these provisions shall be void and so treated by the courts. “In such a case Rex’s powers

to legislate would be subject to limitations which surely would be legal, even if we are

disinclined to call such a fundamental constitutional rule a law.” “The courts would ... be

concerned with (this rule) in a way in which they would not be concerned with the other

merely moral or de facto limits on the legislator’s exercise of his power.” Yet in spite of

these legal limitations, surely Rex’s enactments within their scope are laws, and there is

an independent legal system in his society. Such restrictions on the legislative power of

Rex may well be called constitutional; but they are not mere conventions or moral matters

with which courts are unconcerned. They are parts of the rule conferring authority to

legislate, and they vitally concern the courts, since they use such a rule as a criterion of

the validity of purported legislative enactments coming before them. Yet, though these

restrictions are legal, their presence or absence cannot be expressed in terms of the

presence or absence of a habit of obedience on the part of Rex to other persons. If he

seeks to avoid them, he will not have disobeyed anyone; he will not have broken any

superior legislator’s law or violated a legal duty. He will simply have failed to make a valid

law.

Conversely, if in the constitutional rule qualifying Rex to legislate there are no legal

restrictions on his authority to legislate, the fact that he habitually obeys the orders of

Tyrannus, the king of a neighbouring territory, will not deprive Rex’s enactments of their

status as law nor show that they are subordinate parts of a single system in which

Tyrannus has supreme authority.

From the foregoing, we may see a number of points that are obscured by the simple

doctrine of sovereignty:

i) Legal limitations on legislative authority consist not of duties imposed on the

legislator to obey some superior legislator, but of disabilities contained in rules that

qualify him to legislate.

ii) In order to establish that a purported enactment is law, we do not have to trace it

back to the enactment, express or tacit, of a legislator whose authority to legislate

is legally unrestricted or to one who obeys no one else habitually. Instead, we have

to show that it was made by a legislator who was qualified to legislate under an

existing rule and that either no restrictions are contained in the rule or there are

none affecting this particular enactment. iii) In order to show that we have before us an independent legal system, we do not have to

show that its supreme legislator is legally unrestricted or obeys no other person habitually.

We have to show merely that the rules that qualify the legislator do not confer superior

authority on those who also have authority over other territory. Conversely, the fact that he is

not subject to such foreign authority does not mean that he has unrestricted authority within

his own territory.

iv) We must distinguish between a legally unlimited legislative authority and one that, though

limited, is supreme in the system. The legislator’s authority may well be supreme and

restricted.

v) The fact that the legislator is in the habit of obeying another is of no direct relevance as to

whether or not he is sovereign within the legal system.

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The sovereign behind the legislature In the modern world, there are many legal systems in which the body, normally

considered to be the supreme legislature within the system, is subject to legal limitations

on the exercise of its legislative powers; yet, as both lawyer and legal theorist would

agree, the enactments of such a legislature within the scope of its limited powers are

plainly law. In these cases, if we are to maintain the theory that wherever there is law,

there is a sovereign incapable of legal limitation, we must search for such a sovereign

behind the legally limited legislature. Whether he is there to be found is the question that

we must now consider.

In considering this question, it is often overlooked that Austin’s view was that in any

democracy it is not the elected representatives who constitute or form part of the

sovereign, but the electors. Viewed from this perspective, the difference between a legal

system in which the ordinary legislature is free from legal limitations and one where the

legislature is subject to them appears merely as a difference between the manner in

which the sovereign electorate chooses to exercise its sovereign powers. In England,

according to this theory, the only direct exercise made by the electorate of their share in

the sovereignty consists in their election of representatives to sit in Parliament and their

delegation of their sovereign power. By contrast, in the United States, as in every

democracy where the ordinary legislature is legally limited, the electoral body has not

confined its exercise of sovereign power to the election of delegates, but has subjected

them to legal restrictions. Here the electorate may be considered an “extraordinary and

ulterior legislature” superior to the ordinary legislature that is legally “bound” to observe

the constitutional restrictions, and in cases of conflict, the courts will declare the Acts of

the ordinary legislature invalid. Here then, in the electorate, is the sovereign free from all

legal limitations, which the theory requires.

“It is plain that in these further reaches of the theory the initial, simple conception of the

sovereign has undergone a certain sophistication, if not a radical transformation.” The

identification of the sovereign with the electorate of a democratic state has no plausibility

whatsoever, unless we give to the keywords “habit of obedience” and “person” or

“persons” a meaning which is quite different from those which they had when applied to

the simple case; and it is a meaning which can only be made clear if the notion of an

accepted rule is surreptitiously introduced. The simple scheme of habits of obedience and

orders cannot suffice for this. Otherwise, we are driven to say that the “bulk” of the

society habitually obey themselves. Thus the original clear image of a society divided into

two segments – the sovereign free from legal limitation who gives orders and the subjects

who habitually obey – has given place to the blurred image of a society in which the

majority obey orders given by the majority or by all.

To meet this criticism, a distinction may be made between the members of the society in

their private capacity as individuals and the same persons in their official capacity as

electors or legislators. It cannot, however, rescue the theory, even if we are prepared to

take the further step of saying that the individuals in their official capacity constitute

38

another person who is habitually obeyed. For if we ask what is meant by saying of a

group of persons that in electing a representative or in issuing an order they have acted

not “as individuals” but “in their official capacity”, the answer can only be given in terms of

their qualifications under certain rules and their compliance with other rules, which define

what is to be done by them to make a valid election or law. Since such rules define what

the members of the society must do to function as an electorate (and so, for the purpose

of the theory, as a “sovereign”), they cannot themselves have the status of orders issued

by the sovereign, for nothing can count as an order issued by the sovereign unless the

rules already exist and have been followed. Where, as in this case, the sovereign person

is not identifiable independently of the rules, we cannot represent the rules as merely the

terms or conditions under which the society habitually obeys the sovereign. The rules are

constitutive of the sovereign, not merely things which we should have to mention in a

description of the habits of obedience to the sovereign. So we cannot say that in the

present case the rules specifying the procedure of the electorate represent the conditions

under which the society, as so many individuals, obeys itself as an electorate; for “itself

as an electorate” is not a reference to a person identifiable apart from the rules. It is a

condensed reference to the fact that the electors have complied with rules in electing

their representatives. At the most, we might say (subject to the objections above) that the

rules set forth the conditions under which the elected persons are habitually obeyed; but

this would take us to a form of the theory in which the legislature, not the electorate, is

sovereign, and all the difficulties arising from the fact that such a legislature might be

subject to legal limitations on its legislative powers would remain unsolved.

These arguments are fundamental in the sense that they amount to the contention that

the theory is not merely mistaken in detail, but that the simple idea of orders, habits, and

obedience cannot be adequate for the analysis of law. “What is required instead is the

notion of a rule conferring powers, which may be limited or unlimited, on persons qualified

in certain ways to legislate by complying with a certain procedure.”

Question and standard-type question

1. Write an essay in which you explain the most important aspects of Hart’s criticism

of Austin’s jurisprudence. (12½)

39

Hart’s theory of law:

Law as the union of primary and secondary rules

The idea of obligation Hart begins by considering what he calls the “idea of obligation”. He says that the theory

of law as coercive orders, notwithstanding its errors, started from the perfectly correct

appreciation of the fact that where there is law, there human contact is made in some

sense non-optional or obligatory. He says that in choosing this as a starting point, the

theory was “well inspired” and goes on to say that “in building up a new account of law in

terms of the interplay of primary and secondary rules we too shall start from the same

idea”.

He considers that we should begin with the “gunman situation”. A orders B to hand over

his money and threatens to shoot him if he does not comply. The theory of law as

coercive orders starts with this situation and then goes on to say that for the existence of

law, A must be a sovereign habitually obeyed and the orders must be general,

prescribing courses of conduct – not single actions. Legal obligation is, therefore, to be

found “in this situation writ large”. Hart says that in the above situation B is, of course,

“obliged” to hand over his money. Nevertheless, we would not say that he had “an

obligation” or a “duty” to hand over the money. Thus something else is needed for an

understanding of the idea of obligation, for there is a difference between the assertion

that someone was “obliged” to do something and the assertion that he had “an obligation”

to do it.

The statement that a person was obliged to obey someone is, in the main, a

psychological one, referring to the beliefs and motives with which the action was done.

But the statement that someone had an obligation to do something is of a very different

type, and there are many signs of this difference. Firstly, the fact that someone feels

obliged to do something is “not sufficient” to warrant the statement that he had an

obligation to do it. Secondly, a person may have an obligation to do something, although

he does not, in fact, do it, whereas the statement that someone was obliged to do

something normally carries the implication that he actually did it.

Some theorists, Austin among them, seeing perhaps the general irrelevance of the

person’s beliefs, fears, and motives to the question of whether he had an obligation to do

something, have defined this notion not in terms of these subjective factors, but in terms

of the change or likelihood that the person having the obligation will suffer a punishment

or evil at the hands of others in the event of disobedience. This, in effect, treats

statements of obligation not as psychological statements, but as predictions or

assessments of chances of incurring punishment or evil. This, however, obscures the fact

that, where rules exist, deviations from them are not merely grounds for a prediction that

hostile reactions will follow or that the courts will apply sanctions to those who break

40

them, but are also a reason or justification for such reaction and for applying the

sanctions. In other words, says Hart, rules have an “external” and an “internal” aspect.

This distinction, he says, is of great importance for the understanding not only of law, but

also of the structure of any society. When a social group has certain rules of conduct, this

fact affords an opportunity for many closely related yet different kinds of assertion; for it is

possible to be concerned with the rules, either merely as an observer who does not

himself accept them or as a member of the group who accepts them and uses them as

guides to conduct. We may call these, respectively, the “external” and the “internal” points

of view. Statements made from the external point of view are of two kinds. Firstly, the

observer may, without accepting the rules himself, assert that the group accepts the

rules, and thus may from outside refer to the way in which they are concerned with them

from the internal point of view. Secondly, the observer may be content merely to record

the regularities of observable behaviour in which conformity with the rules partly consists

and those further regularities, in the form of hostile reaction, reproofs, or punishments,

with which such deviations from the rules are met. After a time, the external observer

may, on the basis of the regularities observed, correlate deviations with hostile reaction

and be able to predict with a fair measure of success and to assess the chances that a

deviation from the group’s normal behaviour will be met with hostile reaction or

punishment. Such an observer’s description of the behaviour of the group cannot be in

terms of rules at all, and so “not in terms of the rule-dependent notions of obligation or

duty”. Instead, it will be in terms of observable regularities of conduct, predictions,

probabilities, and signs. For such an observer, deviations by a member of the group from

normal conduct will be assigned that hostile reaction is to follow, and nothing more.

Hart considers that those who have defined the notion of obligation in terms of chance or

likelihood have viewed the rules of law only from this external point of view. Although he

does not say so, it would seem that he considers it irrelevant whether they adopted the

first or the second type of external point of view – the fact is that they adopted an external

point of view:

The external point of view may very nearly reproduce the way in which the rules

function in the lives of certain members of the group, namely those who reject its

rules and are only concerned with them when and because they judge that

unpleasant consequences are likely to follow violation. Their point of view will

need for its expression, “I was obliged to do it”, “I am likely to suffer for it ...”, but

they will not need forms of expression like “I had an obligation” or “you have an

obligation” for these are required only by those who see their own and other

persons conduct from the internal point of view. What the external point of view,

which limits itself to the observable regularities of behaviour, cannot reproduce is

the way in which the rules function as rules in the lives of those who normally are

the majority of society. ... For them the violation of a rule is not merely a basis for

the prediction that a hostile reaction will follow but a reason for hostility. (Hart

1961: 88)

It is, of course, true that in a normal legal system, where sanctions are exacted for a high

proportion of offences, an offender usually runs a risk of punishment. Indeed, the

41

connection between these two statements is somewhat stronger than this: at least in a

municipal system it may well be true that, unless in general sanctions are likely to be

exacted from offenders, there will be little or no point in making statements about a

person’s obligations. In this sense, “such statements may be said to presuppose the

belief in the continued normal operation of the system of sanctions such as the statement

‘he is out’ in cricket presupposes, that it does not assert, that players, umpire, and scorer

will probably take the usual steps.” By this, I take it, Hart means that we must be able to

determine from an external point of view that a legal system exists before we can

proceed to discuss the internal aspect of its rules. In other words, the fact that it can be

observed from an external point of view means that the citizens do, in fact, observe it. A

system of rules that nobody observed would be of no interest. Nevertheless, Hart goes on

to say, “it is crucial for the understanding of the idea of obligation to see that in individual

cases the statement that a person has an obligation under some rule and a prediction

that he is likely to suffer for disobedience may diverge”.

To understand the general idea of obligation as a necessary preliminary to understanding

it in its legal form, we must turn to a different social situation which, unlike the gunman

situation, includes the existence of social rules; for this situation contributes to the

meaning of the statement that a person has an obligation in two ways. Firstly, the

existence of such rules, making certain types of behaviour standard, is the normal,

though unstated background or proper context for such a statement; and, secondly, the

distinctive function of such statement is to apply such a general rule to a particular person

by calling attention to the fact that his case falls under it. There is involved in the

existence of any social rules a combination of regular conduct with a distinctive attitude to

that conduct as a standard. A varied normative vocabulary (“ought”, “must”, “and should”)

is used to draw attention to the standard and to deviations from it and to formulate the

demands, criticisms, and acknowledgments that must be based on it. “Obligation” and

“duty” form an important sub-class of this class of normative words, carrying with them

certain implications not usually present in the others. In other words, only a rule can give

rise to an obligation, although not all the rules do so. Rules of etiquette or correct speech

are certainly rules; they are more than convergent habits or regularities of behaviour; they

are taught and efforts are made to maintain them; they are used in criticising our own and

other people’s behaviour in the characteristic normative vocabulary: “You ought to take

your hat off” and “It is wrong to say ‘you was’”. But to use in connection with rules of this

kind the word “obligation” or “duty” would be misleading and not merely stylistically odd.

Rules, says Hart, are conceived and spoken of as imposing obligations:

... when the general demand for conformity is insistent and the social pressure

brought to bear on those who deviate or threaten to deviate is great. Such rules

may be wholly customary in origin: there may be no centrally organized system of

punishments for breach of the rules; social pressure may take only the form of a

general diffused hostile or critical reaction which may stop short of physical

sanctions. ... It may depend heavily on the operation of feelings of shame,

remorse, and guilt. When the pressure is of this last-mentioned kind we may be

inclined to classify the rules as part of the morality of the social group and the

42

obligation under the rules as moral obligation. Conversely, when physical

sanctions are prominent or usual among the forms of pressure, even though

these are neither closely defined nor administered by officials but are left to the

community at large, who shall be inclined to classify the rules as a primitive or

rudimentary form of law.... What is important is that the insistence on importance

or seriousness of social pressure behind the rules is the primary factor

determining whether they are thought of as giving rise to obligations. (op. cit. 84)

Thus the main characteristic of obligation is this seriousness of social pressure. There

are, however, two other characteristics that go naturally together with this primary one.

Firstly, the rules supported by this serious pressure are thought important because they

are believed to be necessary to the maintenance of social life or some highly prized

feature of it. Secondly, it is generally recognised that the conduct required by these rules

may, while benefiting others, conflict with what the person who owes the duty may wish to

do. Hence obligations and duties are thought of as characteristically involving sacrifice or

renunciation, and the standing possibility of conflict between obligation or duty and

interest is, in all societies, among the truisms of both the lawyer and the moralist.

The above characteristics of obligation must not, however, lead one to conceive of

obligation as essentially consisting in some feeling of pressure or compulsion

experienced by those who have obligations. The fact that rules of obligations are

generally supported by serious social pressure does not entail that to have an obligation

under the rules is to experience feelings of compulsion or pressure. Hence it is not

contradictory in saying of some hardened swindler, and it may often be true, that he had

an obligation to pay the rent, but felt no pressure to pay when he made off without doing

so. To feel obliged and to have an obligation are different, though frequently concomitant,

things. From this, I understand Hart to mean that we may determine whether a rule gives

rise to an obligation objectively, namely, by observing the amount of social pressure

behind it. This does not, however, mean that every member of the society must feel

obliged to conform.

Hart then goes on to say:

... an advocate of the (predictive theory) may well ask why, if social pressure is so

important a feature of rules of obligation, we are yet so concerned to stress the

inadequacies of the predictive theory; for it gives this very feature a central pace

by defining obligation in terms of the likelihood that threatened punishment or

hostile reaction will follow deviation from certain lines of conduct. The differences

may seem slight between the analysis of a statement of obligation as a prediction,

and the assessment of the chances, of hostile reaction to deviation, and our own

contention that though the statement presupposes a background in which

deviations from rules are generally met by hostile reaction, yet its characteristic

use is not to predict this but to say that a person’s case falls under such a rule. ...

Until its importance is grasped, we cannot properly understand the whole

distinctive style of human thought, speech, and action which is involved in the

43

existence of rules and which constitutes the normative structure of society. (op.

cit. 86)

What I think Hart is saying here is that, although those rules behind which there is

considerable social pressure may be said to give rise to obligations, when we speak of a

person having such an obligation, we view the rule internally and are therefore not merely

saying that such social pressure is likely to be brought to bear on him. We are saying that

he falls within the terms of a particular rule and that should he not obey it, hostile reaction

will be brought to bear on him as a result of such refusal on his part. We may thus

determine whether a rule gives rise to an obligation by assessing the amount of pressure

brought to bear behind it. When, however, we speak of a person “having an obligation”,

we are not assessing this pressure. Instead, we are simply assuming its existence, and

by using the rule internally, we are saying that the particular person falls within the

particular rule.

The elements of law Hart says that it is possible to imagine a society without a legislature, courts, or officials of

any kind. Indeed, there are many studies of primitive societies that not only claim that this

possibility is realised, but depict in detail the life of a society where the only means of

social control is that general attitude of the group towards its own standard modes of

behaviour in terms of which we have characterised rules of obligation. It is, however,

plain that only a small community closely knit by ties of kinship, common sentiment, and

belief, and placed in a stable environment, could live successfully by such a regime of

unofficial rules. The rules by which the group lives will not form a system, but will simply

be a set of separate standards, without any identifying or common mark, except of course

that they are the rules that a particular group of human beings accept. They will, in this

respect, resemble our own rules of etiquette. Hart considers that such a system suffers

from three major defects. Firstly, if doubts arise as to what the rules are as to the precise

scope of some given rule, there will be no procedure for settling this doubt, either by

reference to an authoritative text or to an official whose declarations on this point are

authoritative. This is so because such a procedure and the acknowledgment of either

authoritative text or persons involve the existence of rules of a type different from the

rules of obligation or duty that ex hypothesi are all the group has. We may call this defect

in the simple social structure of primary rules its uncertainty. Secondly, the rules are

static. The only mode of change in the rules known to such a society will be the slow

process of growth, whereby courses of conduct once thought optional become first

habitual or usual and then obligatory, and the converse process of decay, when

deviations, once severely dealt with, are first tolerated and then pass unnoticed. There

will be no means, in such a society, of deliberately adapting the rules to changing

circumstances, either by eliminating old rules or introducing new ones. This is because

the possibility of doing this presupposes the existence of rules of a different type from the

primary rules of obligation by which alone the society lives. Thirdly, this form of social life

is inefficient. Disputes as to whether an admitted rule has or has not been violated will

always occur and will in any but the smaller societies continue interminably if there is no

44

agency especially empowered to ascertain finally, and authoritatively, the fact of violation.

Lack of such final and authoritative determinations is to be distinguished from another

weakness associated with it. This is the fact that punishments for violations of rules and

other forms of social pressure involving physical effort or the use of force are not

administered by a special agency, but are left to the individuals affected or to the group at

large. It is obvious that the waste of time involved in the group’s organised efforts to catch

and punish offenders and the smouldering vendettas which may result from self-help in

the absence of an official monopoly of “sanctions” may be serious.

The remedy for each of these three main defects in the simplest form of social structure

consists in supplementing the primary rules of obligation with secondary rules, which are

rules of a different kind. “The introduction of a remedy of each defect might, in itself, be

considered a step from the pre-legal into the legal world; since each remedy brings with it

many elements that permeate law: certainly all three remedies together are enough to

convert the regime of primary rules into what is indisputably a legal system. We shall

consider in turn each of these remedies and show why law may be most illuminatingly

characterized as a union of primary rules of obligation with such secondary rules” (op. cit.

91). Before doing so, however, we should note that though the remedies consist in the

introduction of rules that are certainly different from each other as well as from the

primary rules of obligation that they supplement, they have important features in common

and are connected in various ways. Thus they may all be said to be on a different level

from the primary rules, for they are all about such rules, in the sense that while primary

rules are concerned with the actions that individuals must or must not perform, these

secondary rules are all concerned with the primary rules themselves. They specify the

ways in which the primary rules may be conclusively ascertained, introduced, eliminated,

varied, and the fact of their violation conclusively determined.

The simplest form of remedy for the uncertainty of the regime of primary rules is the

introduction of what we will call a “rule of recognition”. This will specify some feature or

features, possession of which by a suggested rule is taken as a conclusive affirmative

indication that it is a rule of the group to be supported by the social pressure it exerts. In a

developed legal system, the rules of recognition are, of course, complex. While in the

case of a legal system in the first stage of development the rule of recognition may

identify those rules that are law by reference to a text or a list, in a developed legal

system the rules of recognition are more complex. Thus they may refer to some general

characteristic possessed by the primary rules. This may be the fact of their having been

enacted by a specific body, or their long customary practice, or their relation to judicial

decisions. Moreover, where more than one of such general characteristics is treated as

identifying criterion, provision may be made for their possible conflict by their

arrangement in an order of superiority, as by the common subordination of custom or

precedent to statute, the latter being a “superior source” of law. Hart says, however, that

even the acceptance of an authoritative text, that is, the rule in its simplest form,

“introduces, although in embryonic form, the idea of a legal system: for the rules now are

not just a discreet unconnected set but are, in a simpler way, unified”.

45

The remedy for the static quality of the regime of primary rules consists in the introduction

of what we shall call “rules of change”. The simplest form of such a rule is that which

empowers an individual or body of persons to introduce new primary rules for the conduct

of the life of the group, or of some class within it, and to eliminate old rules. Plainly, there

will be a very close connection between the rules of change and the rules of recognition:

for where the former exists, the latter will necessarily incorporate a reference to legislation

as an identifying feature of the rules, though it need not refer to all the details of

procedure involved in legislation.

The remedy for the inefficiency of the regime of primary rules consists of secondary rules

empowering individuals to make authoritative determinations of the question whether, on

a particular occasion, a primary rule has been broken. It should be noted, of course, that

a system that has rules of adjudication is necessarily also committed to a rule of

recognition of an elementary or imperfect sort. This is so because, if courts are

empowered to make authoritative determinations of the fact that a rule has been broken,

these cannot avoid being authoritative determinations of what the rules are. The

efficiency of a regime of primary rules is also remedied by the introduction of further

secondary rules specifying or at least limiting the penalties of violation and empowering

other officials to carry out these penalties.

Hart now states:

If we stand back and consider the structure which has resulted from the

combination of primary rules of obligation with the secondary rules of recognition,

change and adjudication, it is plain that we have here not only the heart of a legal

system, but a most powerful tool for analysis of much that has puzzled both the

jurist and the political theorist. (op. cit. 95)

He says that such concepts as obligation and rights, validity and source of law, legislation

and jurisdiction, are best elucidated in terms of this combination of elements. He says

that the reason why an analysis of these terms of primary and secondary rules has this

explanatory power lies in the fact that most of the obscurities and distortions surrounding

legal and political concepts arise from the fact that these essentially involve reference to

what we have called the internal point of view: the view of those who do not merely

record and predict behaviour conforming to rules, but use the rules as standards for the

appraisal of their own and others’ behaviour.

Question and standard-type question

1. Critically investigate Hart’s view of law as the union between primary and

secondary rules, and give your motivated opinion on the question of whether Hart

solved the defects in Austin’s legal positivism. (12½)

46

Hans Kelsen’s “Pure Theory of Law”

Read van Blerk (1996: 45-54), and answer the accompanying questions.

Standard-type question

1. Write critical notes on Kelsen’s contribution to legal theory, and reflect on the

tenability of his views on the “purity of law”. (12½)

Pound’s sociological jurisprudence

Read the accompanying exposition, and answer the questions following.

Pound’s sociological jurisprudence In America, an Interesseniurisprudence, strikingly similar to that of the Tübingen School,

was developed against the background of a very different legal system, training, and

tradition. There were, however, two important common factors. In the first place, in

America, as in Germany, sociology made rapid headway. Indeed, the Americans took up

the study of sociology with unparalleled enthusiasm. In the second place, in America the

law school and the jurist enjoy a status akin to that of the jurist on the Continent. These

factors combined to produce an American movement in sociological jurisprudence of

considerable influence. Without doubt the greatest exponent of his school was Roscoe

Pound (1870-1964).

Pound began his career as a botanist, receiving his Ph.D. in botany in 1897 from the

University of Nebraska. In 1889, he went to the Harvard Law School. This was the only

year of formal law study he ever undertook. Nevertheless, it was law that claimed his

interest. On returning to Nebraska, he practiced law. In 1901, he was appointed a

Commissioner of the Supreme Court of Nebraska – a position which he held for the next

two and a half years. During this time, he also started his career in law teaching as a

member of the Faculty of the University of Nebraska Law School. In 1903, he resigned

from the Supreme Court Commission and became Dean of the Nebraska Law School. In

1906, his address to the annual meeting of the American Bar Association, “The Causes

of the Popular Dissatisfaction with the Administration of Justice”, gave him national fame.

He then moved to North Western University and later to the recently established

University of Chicago Law School. In 1910, he returned, as the Story Professor of Law, to

the Harvard Law School, but in 1913 he was appointed to the Carter Professorship of

General Jurisprudence, a chair he held for more than twenty-three years, until he was

appointed University Professor at Harvard University. He did not retire from Harvard until

1947, when he was in his seventy-seventh year. After that, there was an interlude, first

47

with work in China before the revolution and then for a few years at the newly established

law school at the University of California in Los Angeles.

His only rival to the claim of being the most prolific writer in the whole history of law is

Kelsen. The 1941 bibliography of his writings – complete through to his 70th birthday –

included 773 items, of which 256 were recorded as books and major papers. This

bibliography was supplemented in 1960. This included 283 items, written after Pound was

70 years old, of which 47 were listed as books and major papers.

Pound and the sociologists Pound’s interest in sociology was aroused by the work of three early American

sociologists: Ross, Ward, and Small.

Edward A. Ross joined the faculty of the University of Nebraska in 1901 after resigning

from Stanford University. He had an almost evangelical fervour to communicate the vital

messages he believed were contained in the newly emergent study of sociology, a field

which he said “does not meekly sidle among the established sciences dealing with the

various aspects of social life [but] aspires to nothing less than suzerainty”. After searching

his mind for ideas concerning “the linch-pins which hold society together”, he had, in

1894, conceived the plan of intensively delineating systems of “social control”. In

concentrating on the implications of the postulate that all groups and institutions

constantly exert manifold pressures on their units, Ross felt that he had “stumbled on a

great social secret”. His Social Control, published in 1901, became one of the classics of

early American sociology. The book represents an elaborate inventory of the methods by

which society induces conformity into human behaviour, written in a highly pungent style,

which Laski considered to be “an insult to God”. Considerable attention is paid to the role

of public opinion and law as the two most important means of controlling individuals.

Public opinion, Ross notes, may be aligned with morality, sensitive to the moment, and

flexible enough to control actions even before they occur, but its weakness lies in its

fitfulness. Law, with its “blade ... playing up and down in its groove with iron precision”, is

considered by Ross to be “the most specialized and highly finished engine of control

employed by society”. But, like most sociologists, Ross denigrated the influence of law

when weighed in the balance against public opinion, finding law “hardly so good a

regulative instrument as the flexible lash of public censure”. In 1906, Pound wrote to

Ross: “I believe you have set me in the path the world is moving.”

Part of Ross’s influence was undoubtedly in the direction of forcefully advocating to

Pound the views of Lester F. Ward, the man to whom Ross dedicated Social Control.

Ward is often considered “the father of American sociology”. Society, Ward believed,

should not drift aimlessly to and fro, backwards and forwards, without guidance. Rather,

the group should carefully study its situations, comprehend the aims it deserves to

accomplish, scientifically study the best methods for the attainment of these, and then

concentrate social energy on the task set before it.

48

Pound credited Ward’s influence on sociological jurisprudence as lying primarily in the

turning of sociology in the United States from biology toward psychology. The biology

was essentially the mechanical view espoused by Herbert Spencer, who saw law as an

instrument of little importance in a process of social evolution on Darwinian principles.

Though Ward never totally repudiated these views, he placed great emphasis on the

possibility of intervening in the process of social evolution and undercutting its general

inelasticity. Ward made a basic distinction, for instance, between pure sociology, a

theoretical undertaking seeking to establish the principles of the science, and applied

sociology, which “deals with artificial means of accelerating spontaneous processes of

nature”. Like Ross and other early sociologists, Ward saw much value in his views for the

legal process and for lawmen. Legislators, Ward believed, should be trained sociologists

so that sociological principles could be employed on behalf of social reform. Ward

conceded that legislatures would probably have to be maintained, but he thought that

“more and more they will become a merely formal way of putting the final sanction of

society on decisions that have been worked out in the ... sociological laboratory”. The

problem of ethics, for Ward, revolved around means to reduce friction in social action, a

view closely paralleling Pound’s emphasis on the end of law as “a continually more

complete and effective elimination of waste – a precluding of friction in human enjoyment

of goods of existence ...”.

The third pioneering sociologist whose views had a considerable impact on Pound was

Albion W. Small who, in the compact world of early sociologists, was a regular

correspondent of both Ward and Ross. Small, too, was a firm believer in social

engineering; for him, sociology had its raison d’être in its potential service as a guide to a

scientific programme of social reform. Small was also concerned, well before Pound was

writing in this vein, with the classification and analysis of human interests as a step in the

process of social melioration. Interests were seen as the universal human practivity and

approached with an almost biblical tone. “In the beginning,” he wrote, “were interests”. An

interest was defined as an unsatisfied capacity, an unrealised condition of the organism,

a tendency to secure satisfaction of an unsatisfied capacity. In its subjective phase, an

interest was a desire and, in its objective phase, a want, developed when the individual

knew something, felt something, or willed something. Therefore, the entire individual or

social process consisted in developing, adjusting, and satisfying interests. These

interests were designated according to six categories: (1) health, subsuming under it

food, sex, and work; (2) wealth; (3) sociability; (4) knowledge; (5) beauty; and (6)

rightness. Each interest, for Small, tended to be absolute and to seek satisfaction

regardless of others, and the social process resolved itself in a continual formation of

groups and institutions around interests, with social life becoming a perpetual equating

and adjusting of interests.

Small’s conception of the State is noteworthy as well in terms of Pound’s later

enunciation of the ideas and elements of sociological jurisprudence:

Civil society organized as the State is composed of individual and group factors,

each of which has itself ... interests seemingly distinct from the interests of others.

Thus the State is a union of disunions, a conciliation of conflicts, and a harmony

49

of discords. The State is an arrangement of combinations by which mutually

repellent forces are brought into some measure of concurrent action.

Like Ward, Small believed that sociology was ideally suited to adjudicating among the

varied interests impinging one on an another by bringing to bear its scientific insights, and

he attempted to blend his concern with both science and social reform by means of the

following ingenious method of choosing among social values: “The most reliable criterion

of human values which science can propose would be the consensus of councils of

scientists representing the largest possible variety of human interests, and co-operating

to reduce their special judgments to a scale which would render their due to each of the

interests of their total calculation.”

Ward, Ross, and Small did not appeal solely to Pound as a lonely adventurer into an

adjacent and novel academic discipline. That the times were agreeable to such an

enterprise can clearly be seen from the hearing given to each of the above sociologists

by legal figures of the time such as Justice Holmes. Although he thought that Small was

“unoriginal”, Holmes was greatly impressed with the work of Ross and Ward.

Holmes’s and Pound’s reaction to the sociologists and they, on their part, to the legal

scholars who took an interest in their ideas may be summarised as follows: firstly,

because of the congruence of learning and interest between members of the two

disciplines, the jurists could be and were interested in cultivating knowledge of

sociological writings; secondly, the sociologists, in general, were receptive to these

attentions and felt that they had much to contribute to the resolution of legal problems

and what they saw as a somewhat static and anachronistic legal system; thirdly, the

sociologists did not believe that there were any particular insights within the law or to be

derived from legal processes or scholarship that could be germane to their work – their

interest in law can be said to have been rather condescending; fourthly, it appears

evident that it remained for an individual such as Pound to capitalise on this

interdisciplinary congruence by bringing back to law and incorporating within it, with the

legitimacy of his learning and status, segments of the sociological world which, with

editing, could fill an important place in jurisprudential thought; and lastly, even in

cosmopolitan legal circles, there was considerable real and latent reluctance to accept as

meaningful and worthwhile the sociological position of the time.

Pound’s sociological jurisprudence Pound’s initial statement on sociological jurisprudence, completed in Nebraska in 1907,

embodied a stirring call for research into legal questions. Though there was much

research in other fields, Pound noted:

no one is studying seriously or scientifically how to make our huge output of

legislation effective. There are no endowments for juridical research. There are no

laboratories dedicated to legal science whose bulletins shall make it possible for

the scholar to obtain authoritative data and for the lay public to reach sound

conclusions. No one thinks of establishing them.

50

The time was now ripe for a new approach, which Pound denominated the “sociological

tendency” and found well underway in Europe with the work of Stammler, Ehrlich,

Gumplowicz, Vaccaro, and Grasserie. Pound directed his polemics primarily against law

teachers, “legal monks who pass their lives in an atmosphere of pure law”, teaching

“traditional pseudo-science” unsuited to “a restless world of flesh and blood”.

Later Pound, intermingling rather indiscriminately a number of creeds and calls,

expounded the goals of sociological jurisprudence as including: (a) study of the actual

social effects of legal institutions, legal precepts, and legal doctrines; (b) sociological

study in preparation for law-making; (c) study of means of making legal precepts effective

in action; (d) study of juridical methods; (e) a sociological legal history; (f) recognition of

the importance of individualised application of legal precepts; and (g) in English-speaking

countries, a Ministry of Justice.

To bring social reality and legal processes into closer harmony, Pound shortly thereafter

began to add jurisprudential flesh to the bones of his initial statement on sociological

jurisprudence and to construct a theory of sociological jurisprudence. It was to be a vast

product of a long creative lifetime, almost impossible to summarise adequately.

Social control and social engineering The starting point of sociological jurisprudence was the concept of social control, “the

pressure on each man brought to bear by his fellow men in order to constrain him to do

his part in upholding civilized society and to deter him from anti-social conduct, that is,

conduct at variance with the postulates of social order”. Without organised social control,

man’s aggressive self-assertion would prevail over his co-operative social tendency and

civilisation would come to an end. Pound could only agree with Aristotle’s belief that man

is inherently the fiercest of beasts. Law was seen as a highly specialised form of social

control whose purpose was “social engineering”, the adjusting of relationships to meet

prevailing ideas of fair play. Other segments of the network of social control – such as

morals, religion, and education – interact with law to regulate human behaviour in varying

combinations of strength, depending on the temper of different kinds of societies in

different historical epochs.

The aim of social engineering is, then, to build as efficient a structure of society as

possible, which requires the satisfaction of the maximum wants with the minimum of

friction and waste. It, therefore, involves the balancing of competing interests. In a much-

quoted statement delivered in 1922 during the Storrs Lectures at the Yale Law School,

Pound said:

For the purpose of understanding the law of today I am content with a picture of

satisfying as much of the whole body of human wants as we may with the least

sacrifice. I am content to think of law as a social institution to satisfy social wants

– the claims and demands involved in the existence of civilized society – by giving

effect to as much as we may with the least sacrifice, so far as such wants may be

51

satisfied or such claims given effect by an ordering of human conduct through

politically organized society. For present purposes I am content to see in legal

history the record of a continually wider recognition and satisfying of human wants

or claims or desires through social control; a more embracing and more effective

securing of social interests; a continually more complete and effective elimination

of waste and precluding of friction in human enjoyment of goods of existence – in

short, a continually more efficacious social engineering.

Therefore, in order to achieve the purposes of the legal order, there has to be (a) a

recognition of certain interests, individual, public, and social, (b) a definition of the limits

within which such interests will be legally recognised and given effect to, and (c) the

securing of those interests within the limits defined. When determining the scope and

subject matter of the system, the following five things are required to be done: (i)

preparation of an inventory of interests, classifying them; (ii) selection of the interests

which should be legally recognised; (iii) demarcation of the limits of securing the interests

so selected; (iv) consideration of the means whereby laws might secure the interests

when these have been acknowledged and delimited; and (v) evolution of the principles of

valuation of the interests.

Pound’s theory of interests A theory of interests, labelled Pound’s “most important contribution to legal philosophy”

and “one of the most significant ideas of the century”, is, therefore, central to sociological

jurisprudence. For the purposes of the legal system, an interest is defined as “a claim, a

want, a demand of a human being or group of human beings which the human being or

group of human beings seeks to satisfy and of which social engineering in a civilized

society must therefore take account”.

To determine interests, Pound does not follow the lead of the social psychologist and

search out instincts, drives, or behaviour tendencies; nor does he look to sociological

questionnaires or other methods of attitude measurement; Pound rather relies almost

exclusively on the assertions that persons make in legal proceedings and press in

legislative proposals as true indicators of their interest vis-à-vis the legal system. It is, in

other words, the task of the jurist to assist the legislature and the courts by determining,

classifying, and expatiating on the interests protected by law. Pound’s arrangement of

these interests, which he elaborated in exhaustive detail, was as follows.

a) Individual interests

These are claims or demands or desires involved in, and looked at, from the standpoint of the individual life

immediately as such. They concern the following:

i) Personality. This includes interests in (a) the physical person, (b) freedom of will, (c)

honour and reputation, (d) privacy, and (e) belief and position.

ii) Domestic relations. It is important to distinguish between the interests of

individuals in domestic relationships and those of society in such institutions

as family and marriage. Individual interests include those of (a) parents, (b)

children, (c) husbands, and (d) wives.

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iii) Interests of substance. These include interests of (a) property, (b) freedom

of industry and contract, (c) promised advantages, (d) advantageous

relations with others, (e) freedom of association, and (f) continuity of

employment.

b) Public interests

These are claims or demands or desires asserted by individuals involved in, or looked at, from the standpoint of

political life. There are two of them:

i) Interests of the state as a juristic person. These include (a) the integrity, freedom of

action, and honour of the state’s personality, and (b) claims of the politically

organised society as a corporation to property acquired and held for corporate

purposes.

ii) Interests of the state as guardian of social interests. These seem to overlap with the

next major category.

c) Social interests

These are claims or demands or desires, even some of the foregoing in other aspects, thought of in terms of social

life and generalized as claims of the social group. This is definitely the most important category, since most, if not

all, of the interests in category (a) would be statable here from a social, rather than an individual, point of view.

Social interests are said to include the following:

i) Social interest in the general security. This embraces those branches of the law that

relate to (a) general safety, (b) general health, (c) peace and order, (d) security of

acquisitions, and (e) security of transactions.

ii) Social interest in the security of social institutions, which comprise (a)

domestic institutions, (b) religious institutions, (c) political institutions, and (d)

economic institutions. Divorce legislation might be adduced as an example

of the conflict between the social interest in the security of the institution of

marriage and the individual interests of the unhappy spouses. Pound pointed

out that the law has, at times, attached disabilities to the children of

illegitimate and adulterous unions with the object of preserving the sanctity

of marriage. Then again, there is tension between the individual interest in

religious freedom and the social interest, at any rate in some countries, in

preserving the dominance of an established church.

iii) Social interest in general morals, which covers a variety of laws, for

example, those dealing with prostitution, drunkenness, and gambling.

iv) Social interest in the conservation of social resources. “The claim or want or

demand of society that the goods of existence shall not be wasted, that

where all human wants may not be satisfied, in view of infinite individual

desires and limited natural means of satisfying them, the latter be made to

go as far as possible, and to that end that acts or courses of conduct which

tend needlessly to impair these goods shall be restrained.”

This social interest clashes, to some extent, with the individual interest in

dealing with one’s own property as one pleases. It covers (a) conservation of

natural resources and (b) protection and training of dependants and

defectives, that is, conservation of human resources.

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v) Social interest in general progress. “The demand that the development of

human powers and of human control over nature for the satisfaction of

human wants go forward; the demand that social engineering be

increasingly and continually improved; as it were, the self-assertion of the

group towards higher and more complete development of human powers.”

This has three aspects: (a) economic progress, which covers (i) freedom of

use and sale of property, (ii) free trade, (iii) free industry, and (iv)

encouragement of invention by the grant of patents; (b) political progress,

which covers (i) free speech and (ii) free association; and (c) cultural

progress, which covers (i) free science, (ii) free letters, (iii) free arts, (iv)

promotion of education and learning, and (v) aesthetics.

vi) Social interest in the individual life. “The claim or want or demand of society

that each individual be able to live a human life according to the standards of

the society.” It involves (a) self-assertion, (b) opportunity, and (c) conditions

of life.

The means of securing interests What are the means by which these interests are secured? These consist of the device of

the legal person and the attribution of claims, duties, privileges, powers, and immunities.

There is also the remedial machinery behind them, which aims at punishment, sometimes

at redress, and sometimes at prevention.

The “weighing” or “balancing” of interests and Poun d’s “jural

postulates” How, in any given case, are the interests involved to be balanced or weighed? Interests,

says Pound, should be weighed “on the same plane”, as it were. One cannot balance an

individual interest against a social interest, since that very way of stating them may reflect

a decision already made. One should transfer the interests involved onto the same

“plane”, preferably – in most cases – to that of the social plane, which is the most

general. Thus freedom of the person might be regarded as an individual interest, but it is

translatable as an interest of the society that its members should be free.

All of this is, of course, not very helpful. Pound did, however, advance a number of “jural

postulates” to supplement his survey of interests. Here he adopted the viewpoint of

Kohler that “every culture has its definite postulates of law, and it is the duty of society

from time to time, to shape the law according to these requirements”. Jural postulates,

things which “in civilized society men must be able to assume”, are values found in

individual cultures and, as such, can influence the choice between rival interests pressing

for recognition. Thus Pound distinguished between “natural natural law” and “positive

natural law”. The former is “a rationally conceived picture of justice as an ideal relation

among men, of the legal order as a rationally conceived means of promoting and

maintaining that relation, and of legal precepts as rationally conceived ideal instruments

of making the legal order effective for its ideal end”. The latter is “a system of logically

derived universal legal precepts shaped to the experience of the past, postulated as

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capable of formulation to the exigencies of universal problems and so taken to give legal

precepts of universal validity”. Pound (in 1919) noted five such jural postulates of

contemporary society. Men, he said, should be entitled to assume: (1) that others will not

commit intentional aggressions on them; (2) that they may control, for beneficial

purposes, what they have discovered, appropriated to their own use, created, and

acquired; (3) that those with whom they deal will act in good faith, that is, carry out

promises, carry out undertakings according to the expectations which the moral

sentiment of the community attaches thereto, and restore unjust enrichments; (4) that

others will act with due care and not create unreasonable risk or injury; and (5) that

others will keep under proper control property that is likely to inflict damage if it escapes.

The extent to which effect can be given to the choi ce Assuming that a choice has been made, the extent to which it can be given effect in any

given case depends on the texture of the legal institutions that are involved. Some are

more flexible than others and permit a freer play for the balancing process. Pound

classified the institutions of the law as follows. There are, firstly, rules, which are precepts

attaching definite consequences to definite factual situations. Secondly, there are

principles, which are authoritative points of departure for legal reasoning in cases not

covered by rules. Thirdly, there are conceptions, which are categories to which types or

classes of transactions and situations can be referred and on the basis of which a set of

rules, principles, or standards becomes applicable. Fourthly, there are doctrines, which

are the union of rules, principles, and conceptions with regard to particular situations, or

types of cases, in logically interdependent schemes so that reasoning may proceed on

the basis of the scheme and its logical implications. Finally, there are standards

prescribing the limits of permissible conduct, which are to be applied according to the

circumstances of each case.

Consideration of some aspects of Pound’s theory The foregoing, barely representing the encyclopaedic contents of Pound’s jurisprudential

thought, is the substance of Pound’s theory. There can be no doubt that Pound more

than anyone else – at least in Anglo-American jurisprudence – helped to bring home the

vital connection between laws, their administration, and the life of society. There are,

however, many aspects of his work that are open to criticism. What is more, it may be

questioned whether the theory is not as general and abstract as to render it virtually

sterile.

Let us consider, firstly, some of the criticisms that have been raised as to the theory itself.

In the first place, it is said that Pound’s engineering analogy is apt to mislead. How can

we speak of “social engineering” when we do not have a plan of the finished product to

work on? In the second place, it is not interests as such, but the yardsticks with reference

to which they are measured that matter. It is the choice of an ideal or even a choice

between competing ideals that matters and this is a matter of decision and not of

balancing. In the third place, and following from what we have just said, the balancing

metaphor is also misleading. If two interests are, indeed, to be balanced, that

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presupposes some “scale” or “yardstick” with reference to which they are measured. One

cannot simply weigh interests against one another, even “on the same plane”. In the

fourth place, the mere listing of interests is not very important. What is important is the

manner in which the judge translates the activity involved in the case before him in terms

of interest and selects the ideal with reference to which the competing interests are to be

measured.

In the fifth place, how does one know when interests exist? The answer is that particular

interests are given expression by parties in individual disputes. Lists of interests can be

drawn up, not in advance of, but after, the various interests have been contended for in

successive cases. In the sixth place, the recognition of a new interest is a matter of

policy. The mere presence of a list of interests is, therefore, of limited assistance in

helping to decide a given dispute. And, in the seventh place, lists of interests are only the

products of personal opinion. With reference to Pound’s own elaborate scheme, it might

be thought that his distinction between public and social interests is doubtful. Pound’s

own disciple, Stone, has abandoned it. Even the distinction between individual and social

interests is of minor significance. As Pound himself says, in most cases it is preferable to

transfer individual interests to the plane of social interests when considering them.

Finally, the whole theory of social engineering and of the balancing of interests

presupposes a fairly cohesive and mature type of society. It is inapplicable where there

are minorities whose interests are irreconcilable with those of the majority.

We turn now to some more general considerations of Pound’s theory.

Here, and in the first place, it must be noted that Pound’s theory is truly electric. As the

sociologist Geist puts it, “Drawing freely on the works of others Pound was able to create

the paradox of electric uniqueness through adroit recombination of ingredients, the use of

an original label, and the insistence on acceptance of the whole package as a new school

of legal thought”.

In the second place, there can be no doubt that Pound was acutely sensitive to the

relationship between theoretical positions and the conditions and the spirit of the times in

which they emerged. Pound’s own historical research had clearly shown the lethal

consequences for a jurisprudential theory of a major shift in social conditions that

rendered its general rationale obsolete, and he would not, if possible, fall into the trap of

being time-bound. The longevity of Pound’s sociological jurisprudence testifies to careful

attention to the object lessons concerning the historical fate of inflexible positions.

Nonetheless, Pound’s theory, with its entire resiliency and with its great hospitality to

shifts in the social fabric, has proved almost by definition too pliant and too general for the

empirical research essential to its continued growth, however effective and telling the

theory became as a pedagogical weapon.

It has been said that, by tying the development of sociological jurisprudence to the

progress of sociology, Pound built into his theory a permanent impermanence. At the

same time, however, the theory was placed beyond the ability of Pound himself and,

56

apparently, of his followers to maintain the necessary liaison with scholarship in sociology

and to reckon with the disinclination of sociologists to provide the theory with intellectual

nourishment. In truth, the bridge between jurisprudence and sociology, never too stable,

collapsed almost totally as sociology turned from the Ward-Ross-Small type of

speculative, yet rather systematic, form of social analysis towards greater methodological

precision, towards research stressing informal groups rather than institutional patterns,

and towards ethical neutrality and the avoidance of value-laden issues. Evidence of this

estrangement between law and sociology appears on all sides during the period between

1920 and the Second World War and continues today. Although over those twenty years

or so there were signs of a growing rapprochement, sociologists to date have paid

virtually no attention to Pound’s doctrine.

Self-aid questions

1. Explain the jurisprudential connection between Roscoe Pound and the sociologists.

2. What do social control and social engineering in Pound’s system entail?

3. Give a brief account of Pound’s theory of interests.

Standard-type questions

1. Analyse Roscoe Pound's contribution to jurisprudence. (12½)

2. Make a critical assessment of Pound's theory of interests in the development of

legal positivism generally. (12½)

American Realism

Read the accompanying exposition and van Blerk (1996: 55-81).

American Legal Realism The American realist movement has been said to be a “radical wing of the sociological

school of Law”. It is also a branch of legal positivism, being sometimes referred to as a

philosophy of “pragmatic positivism” to distinguish it from “analytical positivism”. There

has been some debate as to whether this “movement” can be said to constitute a “school”

of legal philosophy. It seems to be generally agreed that it does not. In the first place, it is

not composed of a group of people with an identical creed and a unified programme. Se-

condly, it has been pointed out, and by certain of the leading realists themselves, that the

57

realist movement is concerned not so much with a philosophy as to what law is, but

rather with a philosophy concerning “thought and work about law”. Thus it is often said, in

particular by analytic positivists, that the work of the American realists is largely

“complementary” to the work of the analytic positivists. It might be thought, however, that

this last mentioned opinion arises rather from wishful thinking than from any proper

analysis of the two philosophies.

The beginnings of American realism can be found in the work of Gray (1839-1915).

Although an exponent of analytical positivism, Gray emphasised the court rather than the

legislator as the centre of law. Thus, he agreed with Austin as to “the recognition of the

truth that the law of a state, or another organised body, is not an ideal, but something

which actually exists. It is not that which is in accordance with religion, or nature, or

morality, it is not that which it ought to be, but that which it is” (Gray 1909: 213). But he

did not accept the command theory of law and was thus able to move legislation from the

central position that Austin had given it. Gray drew a basic distinction between “law” and

“sources of law”. To him, the statute, together with precedent, equity, and custom, is but a

“source of law”. Law itself is what the persons acting as judicial organs of the state lay

down as rules of conduct. “To determine rights and duties, the judges settle what facts

exist, and also lay down rules according to which they deduce legal consequences from

facts. These rules are law” (op. cit. 231). As Dias points out, “pushed to its logical

conclusion, the obvious implication of this is that even a judicial decision is ‘law’ only for

the parties in the instant dispute and thereafter becomes a ‘source of law’, since

everything will depend on the interpretation that is put on it in a later decision”.

Gray considered that the correctness of his definition was demonstrated by the fact that

there had been many cases in which it was impossible to fix the law before the court laid

it down one way or the other. He denounced the “childish fiction” that common law judges

only state the law as it is, but do not make it. Thus he denied the mechanical aspects of

analytical positivism and, instead, emphasised the personal and other “non-legal” factors

in law. It was this change of emphasis that inspired the realist movement.

The realist movement was first made articulate by Oliver Wendell Holmes (1841-1935) in

a famous paper, “The Path of the Law”, which was first published in 1897. Here he gave

an empirical and what is also frequently said to be a “sceptical” definition of law:

Take the fundamental question, what constitutes the law.... You will find some text

writers telling you ... that it is a system of reason, that it is a deduction from

principles of ethics or admitted actions, or what not, which may or may not

coincide with the decision. But if we take the view of our friend, the bad man, we

shall find that he does not care two straws for the action or deduction, but that he

does want to know what Massachusetts or English courts are likely to do in fact. I

am much of his mind. The prophecies of what the courts will do in fact and

nothing more pretentious are what I mean by the law.

Thus, if one wishes to know what law is, one should view it through the eyes of a “bad

man”, who is only concerned with what will happen to him if he does certain things. Thus

58

it is a definition in terms of consequences and one that, although maintaining the

distinction between law and morality so fundamental to positivism, demolishes the

certainty of analytical positivism.

It is usually pointed out that Holmes could not have been purporting to give a final

definition of law, for neither as a jurist nor as a judge did he adhere to such a credo. What

is more, in the very same paper, he proceeded to insist on the need to restrict the area of

uncertainty in the law and the need for more theory. “We have too little theory in the law

rather than too much.” Nevertheless, as Friedmann says, the statement that law is no

more than the prophecies of what the courts will do “came to be something like a gospel

for the followers of realism in jurisprudence who, however great their scepticism and

sarcasm in regard to other jurists and their doctrines, followed this and some similar

statements of Holmes J. with almost religious fervour” (Friedmann 1967: 294).

Perhaps the most characteristic facet of the realist movement is that it has sought to

minimise the normative or prescriptive element in law. “Law appears to the realist as a

body of fact rather than a system of rules, a going institution rather than a set of norms”

(Bodenheimer 1962: 116). Both the leading exponents of realism, Karl Llewellyn (1893-

1962) and Jerome Frank (1889-1957), at least in their earlier writings, went so far as to

exclude rules from law altogether. Thus, Llewellyn argued, “the theory that rules decide

cases seems for a century to have fooled, not only library-ridden recluses, but judges”.

He proposed that the focal point of legal research should be shifted from the study of

rules to the observance of the real behaviour of law officials, particularly the judges:

“What these officials do about disputes is, to my mind, the law itself” (Llewellyn 1951: 3).

He originally outlined the principle features of the realist approach in a number of points

of which the following are the most important.

i) There is no realist school; realism means a movement in thought and work about

law.

ii) Realism means a conception of law in flux and as a means to social ends, so that

any part is to be examined for its purpose and effect. It implies a concept of society

that changes faster than law.

iii) Realism assumes a temporary divorce of IS and OUGHT for purposes of study.

Value judgments must always be appealed to in order to set an objective for any

inquiry, but during the inquiry the description has to remain as largely as possible

uncontaminated by the desires of the observer or by ethical aims.

iv) Realism distrusts traditional legal rules and concepts in so far as they purport to

describe what either courts or people are actually doing. It accepts the definition of

rules as “generalised prediction of what the courts will do”. In accordance with this

belief, realism groups cases and legal situations into narrower categories than was

the practice in the past.

v) Realism insists on the evolution of any part of the law in terms of its effect.

Certain lines of approach correspond to these points of programme, of which Llewellyn

mentions the following in particular:

59

a) A “rationalisation” that does not take the lawyer's arguments at their face value, but

rather as the art of the trained craftsman to make a decision plausible after he has

reached it. b) To discriminate among rules with reference to their relative significance.

c) To replace general legal categories by specific correlations of fact-situations.

d) This approach involves a study of personal as well as of quantitative factors in the law. By

the study of the personality of judges as well as by statistical inquiries into the remedies

available in certain situations, realism hopes to predict with more certainty what the courts

will do after it has shattered the traditional belief in certainty by its attack on the logical

consistency and water tightness of the legal system. (See Llewellyn 1931: 1922.)

All of this leads to the conclusion that there must be much greater emphasis on the social

effects of law, and of legal decisions in particular, in relation to the particular part of the

community that is affected.

Later Llewellyn modified his views to some extent in that he withdrew the statement that

“What these officials do about disputes is, to my mind, the law itself”. In his more recent

writings, he placed a somewhat greater stress on the importance of normative

generalisation in law, pointing out that the rule part of the law is “one hugely developed

part” of the institution, but not the whole of it (Llewellyn 1959: 1286).

Jerome Frank presented the realist view in its most radical form (see especially Frank

1949). The rules of law, he argued, are not the basis of the judge’s decision. Judicial

decisions are conditioned by emotions, intuitive hunches, prejudices, tempers, and other

irrational factors. The knowledge of legal rules will, therefore, offer little help in predicting

the decisions of a particular judge. “No one knows the law about any case or with respect

to any given situation, transaction, or event, until there has been a specific decision (judg-

ment, order or decree) with regard thereto.” Until a court has passed on some particular

question, no law on that subject is as yet in existence. Prior to such decision, the only law

available is the guess of the lawyers as to what the court might do. “Law”, then, as to any

given situation is either (a) actual law, that is, a specific past decision as to that situation

or (b) probable law, that is, a guess as to a specific future decision. Roscoe Pound has

characterised this view as the “cult of the single decision”.

It is clear that, according to this view, even the most certain aspect of law – a court

decision – is something very uncertain and almost unpredictable. But, argued Frank, this

uncertainty should not be deplored for much of it is of immense social value. In the

traditional teaching and presentation of the law, Frank discerned a desire for certainty,

which he likened to the infant's craving for infallible authority (the father complex).

Lawyers in general, and judges in particular, have clung to the myth of legal certainty, by

establishing a fictitious system of precedents or of complete codifications, hiding from

themselves and others the fact that every case is unique and requires creative decisions.

Analytical jurisprudence expresses this childlike desire for certainty and stability. If men

would relinquish their desire for a father substitute, they would acquire a much sounder

attitude toward the law. Frank’s own ideal is the “completely adult lawyer” typified by

60

Holmes. Such a judge needs no external authority to support him; he has a “constructive

doubt”, well developed in the natural sciences, which enables him to develop the law in

accordance with advancing civilisation.

After Frank had ascended to the bench of a federal appellate court, he shifted his

attention from the rule aspect of the law to the scrutiny of the fact-finding process in the

trial courts. This led him to divide the realists into two camps, namely, the “rule sceptics”

and the “fact sceptics”. The “rule sceptics” reject legal rules as providing uniformity in law

and try, instead, to find uniformity in rules evolved out of psychology, anthropology,

sociology, economics, politics, etc. The rules that they maintain that they thus obtain are

rules by which to predict judicial behaviour. Frank called this brand of realism the left-

wing adherents of a right-wing tradition, namely, the tradition of trying to find uniformity in

rules. These theorists are thus led to account for the uncertainty in the law on the basis of

rule-uncertainty. Frank, although he had once been an adherent of this branch of realism,

became convinced that even to seek uniformity in this way was to ignore reality. The “fact

sceptics”, among whom Frank now ranked himself, abandon all attempts to seek rule-

certainty. Frank was lead to this view because he had come to the opinion that trial-court

fact-finding was anything but a certain process. He pointed to the innumerable sources of

error that may enter into a determination of facts by a trial court. There may be “perjured

witnesses, coached witnesses, biased witnesses, witnesses mistaken in their observation

of the facts as to which they testify or in their memory of their observations, missing or

dead witnesses, missing or destroyed documents, crooked lawyers, stupid lawyers,

stupid jurors, prejudiced jurors, inattentive jurors, trial judges who are stupid or bigoted

and biased or ‘fixed’ or inattentive to testimony”. Many of these factors, he said, and

above all the impenetrable and unique personality of the judge, make every lawsuit in

which conflicting testimony is presented a highly subjective affair. Although Frank made a

number of positive proposals for the rationalisation and improvement of trial court

procedures, he was convinced that, notwithstanding such reforms, a large element of

irrationality, chance, and guesswork would always inhere in judicial fact-finding, making

predictability of the outcome of lawsuits well-nigh impossible.

As Frank’s belief in the certainty of facts vanished, so, too, did some of his doubts as to

the existence of rules. He admitted that many legal rules are settled and certain and that

the precedent system possesses considerable value. He recognised the necessity of

legal rules as general guideposts for making decisions and declared that the rules

embody important policies and moral ideals. Nevertheless, he maintained that the

objective legal norms are, in many instances, frustrated by the “secret, unconscious,

private, idiosyncratic norms” applied in the fact-finding process by trial judges or jurors.

Furthermore, judges often play havoc with the precedent system, with the consequence

that the uniformity and stability that the rules may seem to supply at first are frequently

rendered illusory in practice.

61

Self-aid questions

1. What does "Legal Realism" mean?

2. What are the main features of "Legal Realism"?

3. What are the main points of difference between the "rule sceptics" and the "fact

sceptics"?

Standard-type questions

1. How is American Legal Realism attached to legal positivism generally? (12½)

2. Write notes on the main streams of American Legal Realism, and explain its

contribution to jurisprudence. (12½)

62

References

This reference list is simply an indication of the sources used to compile this unit and is not

intended as an additional or recommended reading li st. There is no need to consult these sources,

but should you wish to do so, please contact the le cturer to give you some guidance.

� Bodenheimer, E. 1962. Jurisprudence: The Philosophy and Method of the Law.

Cambridge, MA: Harvard University Press.

� Frank, J. 1949. Law and the Modern Mind. London: Stevens & Sons.

� Friedmann, W.G. 1967. Legal Theory. 5th edn. London: Stevens & Sons.

� Gray, J.C. 1909. The Nature and Sources of the Law. New York: Columbia University

Press.

� Hart, H.L.A. 1961. The Concept of Law. Oxford: Oxford Clarendon Press.

� Llewellyn, K.N. 1931. ”Some realism about realism – responding to Dean Pound”.

Harvard Law Review 44.

� Llewellyn, K.N. 1951. The Bramble Bush: On Our Law and Its Study. New York: Oceana

Publications.

� Llewellyn, K.N. 1959. “Law and social science, especially sociology”. Harvard Law

Review 62.

� Van Blerk, A. 1996. Jurisprudence: An Introduction. Durban: Butterworths.

63

UNIT 2

Modern and Post-Modern Theories of Law

Introduction Outcomes Readings Unit Content

INTRODUCTION

The layout of Unit 2 is as follows:

Unit 2.1: The Modern Opponents to Natural Law Theory

Unit 2.2: Reconstruction Theories of Law and the Rebirth of Natural Law

Unit 2.3: Liberalism, Libertarianism, and Socialism

Unit 2.4: Post-modern Theories of Law

LEARNING OUTCOMES

After completing Unit 2, you should be able to do t he following:

� Know the most important issues involved in the development of the various modern and

post-modern jurisprudential theories.

� Understand the most important issues underlying the development in the transition from

modern to post-modern theories of law.

� Explain the themes and trends in jurisprudence that emerged in this period of transition to

the more recent theories of law and jurisprudence.

� Critically evaluate the role of modern opponents to natural law theory in preparing the

way for post-modern approaches to jurisprudence.

� Critically reflect on the contribution of Austin, Hart, and Kelsen in preparing the way for

post-modern rejection of natural law approaches to law and justice.

� Understand the opposition of American Realism to natural law theory and its role as “first-

wave” postmodernism.

� Have an understanding of Ronald Dworkin’s efforts in reconstructing the deconstructive

legacy of American Realism.

� Critically appreciate the emergence of natural law theory as a result of reconstructionism

in jurisprudence.

� Understand the newly emerging wave of liberalism, libertarianism, and socialism in the

field of jurisprudence.

� Know and understand the post-modern resistance to both natural law theory and legal

positivism.

� Critically analyse the contribution of the various streams of postmodernism in

jurisprudence.

� Analyse and understand the contribution of Critical Legal Studies to the development of

an alternative approach to law and justice.

� Relate legal feminism to the broader field of postmodernism.

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� Critically analyse the issues at the root of the communitarian debate.

� Understand the contribution of legal hermeneutics to jurisprudence with particular

emphasis on the field of constitutional law.

READINGS

Prescribed reading

• Van Blerk (1996: 27-230)

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UNIT 2: Modern and Post-Modern Theories

of Law

Unit 2.1: The Modern Opponents to Natural Law

Theory

This unit has two important sections and is based on Chapters 2-3 of van Blerk (1996: 27-54, 55-81).

You will need approximately seven hours to complete this unit.

Introduction

This unit has two themes:

� The opposition of Austin, Hart, and Kelsen

� The opposition of the American Realists

It is important that you study these two components very well before answering the questions. Make sure

that you know the meanings of the terms used and follow the author‘s explanation.

The opposition of Austin, Hart, and Kelsen

Read van Blerk (1996: 27-54).

Questions

3. Why are these authors called “twentieth-century positivists”? Motivate your answer

by referring to the general features of positivism and legalism, which you have

already studied.

4. Did Hart and Kelsen succeed in “transcending” the inherent imperative character

and legalistic elements in Austin’s theory of law? Refer to the section on legal

positivism.

Standard-type questions

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5. Why do you think the author deals with the theories of Austin, Hart, and Kelsen

under the heading of “The empire of darkness and the region of light”? (12½)

6. Write an essay in which you explain the main points of opposition by Hart and

Kelsen to Austin’s theory and consider the general acceptability of their efforts from

a jurisprudential point of view. (12½)

The opposition of the American Realists

Read van Blerk (1996: 55-81).

Self-aid questions

7. Why does the author refer to the “challenge” of realism?

8. Why is it said that realism gave expression to a new form of scepticism?

9. Why were the ideas of psychology and rights scepticism so attractive to the

American judiciary?

Standard-type questions

10. “A major theme of realist writing was the investigation of improved techniques for

the prediction of decisions.” Comment critically on the efforts of the realists to

predict the outcome of court decisions. Do you think that this is a scientific

approach to jurisprudence? Also reflect on the question of whether one is really be

able to predict the outcome of a court case in the ordinary course of events. (12½)

11. Write an essay in which you express your opinion on the question of whether

American Realism succeeded in overcoming the negative aspects contained in the

approach of the Historical School of Law to legal conceptualism. (12½)

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Unit 2.2: Reconstruction Theories of Law and the

Rebirth of Natural Law

This unit is based on Chapters 4-5 of van Blerk (1996: 83-108, 109-125). You will need approximately six

hours to complete this unit.

Introduction

This unit places the emphasis on the efforts of reconstruction theory and natural law theory to combat the

deconstructive analysis of American Realism and the negative implications of this theory without providing

a positive alternative.

Ronald Dworkin and reconstruction

Study van Blerk (1996: 83-107).

Self-aid questions

12. Do you agree that the “conflation of law and politics, exposed by the American

realists, had turned the ardour for demonstrating the neutral, rational and objective

application of legal doctrine, characteristic of the period of conceptualism and

formalism, on its head”?

13. What did Dworkin’s assault on Heart’s model of rules entail?

14. Determine what Dworkin’s views on the discretion of judges, his distinction

between principle and policy, and the notion that rights are antecedent to

legislation entail.

15. Why is Dworkin’s theory called a model of “constructive” interpretation?

16. Why are the ideas of integrity and community so important to Dworkin?

17. What does the idea of the “interpretive community” entail?

18. Do you think that Dworkin’s theory permits judges too much freedom?

19. Consider the possibility of applying Dworkin’s theories to the South African

constitutional system.

Standard-type questions

20. Discuss Dworkin’s approach to the interpretation of law. (12½)

21. Consider the possibility of transposing Dworkin’s approach to the South African

context. (12½)

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The rebirth of natural law

Study van Blerk (1996: 109-125).

Self-aid questions

22. Write a paragraph on Fuller’s views on fidelity to law and law as purposive.

23. Briefly explain the theory of natural law devised by John Finnis.

24. Finnis identifies seven so-called “basic human goods or forms of human

flourishing”. What is the role played by these seven “goods” in his theory of law?

25. In which ways did Finnis contribute towards a “rebirth” of natural law theory?

Standard-type questions

26. Write an essay in which you discuss the rebirth of natural law theory in the light of

the Second World War and the crimes against humanity committed by the Nazis.

(12½)

27. “Fuller makes use of natural law to defend his argument, but he makes it clear that

he does not mean classical natural law.” Discuss and critically explain the nature,

content, and implications of Fuller’s natural law theory. (12½)

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Unit 2.3: Liberalism, Libertarianism, and

Socialism

This unit is based on Chapter 6 of van Blerk (1996).

You will need approximately five hours to complete this unit.

Introduction

In this unit, the emphasis is on the contribution of liberalism, libertarianism, and socialism to the

emergence of a new interest in issues pertaining to social justice. Although attempts to define the concept

of social justice emerged as early as the time of Aristotle, definitions of social justice in terms of individual

freedom or collective interests have remained contentious throughout the ages. Even though it was

generally accepted throughout the centuries that justice and fairness are two qualities that societies should

pursue and that the meaning of justice and fairness is to give to people what they deserve, there was no

general acceptance what they deserve.

In recent times, one of the most important issues has been the question of whether social justice can be

obtained when the allocation of goods/benefits is grounded in merit within society. The views of liberalists,

libertarians, and socialists differed widely on this issue.

The theories of Rawls, Nozick, and

contemporary socialists

Study van Blerk (1996: 127-145).

Self-aid questions

28. Explain the terms “welfare liberalism”, “libertarianism”, and “socialism”.

29. Make a brief summary of John Rawls’s theory on justice.

30. What does Nozick’s theory of “entitlement” entail?

Standard-type questions

31. Make a critical comparison of the theories of John Rawls and Robert Nozick. Which

of these theories would you support? (12½)

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32. Write notes on the meaning of the following concepts in Rawls’s theory of social

justice: (a) justice as fairness; (b) the principles of social justice; (c) the “original

position”, and (d) the “veil of ignorance”. (12½)

33. It is often stated that Robert Nozick, in his famous work, Anarchy, State and

Utopia, has a strong inclination towards eighteenth-century individualism and

nineteenth-century laissez-faire capitalism. Do you agree with this? In which

respects would his approach to social justice differ from John Locke’s? (12½)

34. With reference to the views of contemporary socialists, write notes in which you

critically reflect on the tenability of these theories and the role they could play in

providing a framework for furthering social justice. (12½)

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Unit 2.4: Post-modern Theories of Law

This unit is based on Chapters 7-10 of van Blerk (1996).

You will need approximately ten hours to complete this unit.

Introduction

Postmodernism is a critical movement/theory that originally made its appearance especially in

art, architecture, and literature. Later it was also transplanted to the field of jurisprudence in as

far as the idea of deconstructing existing value systems was also applied to the field of law. In

order to understand the basic ideas underlying postmodernism, the following basic

ideas/concepts/approaches to science in general and law in particular must be understood:

� As a critical theory, postmodernism directs itself, in the first place, against the ideas of

modernism, liberalism, and capitalism.

� Postmodernism seriously questions the underlying values of modernism.

� It wants to dispense with any fixed and fundamental principles or universally accepted

standards for the judgement of phenomena in society.

� According to the followers of this movement, we must accept the fact that there are no

universally accepted standards, truths, methods, or techniques.

� All that remains is an abundance or multiplicity of perspectives on the same phenomenon

or problem, without one perspective or opinion being more acceptable than all the others.

� In the light of the foregoing, postmodernism rejects views such as those of classical

Marxist jurisprudence, namely, that law is an expression of economic relations, and the

idea of the Enlightenment that human reason is the basis for justice in society. For

postmodernism, both these views are examples of absolute and set standards, which are

incompatible with their own views.

� Applied to jurisprudence, it means dispensing with juridical fundamentals for the

judgement of legal problems or legal phenomena.

� A variety of movements and theoretical views can be placed under the broad heading of

“postmodernism”, even if they do not necessarily adopt all the tenets of “postmodernism”.

� Deconstruction is one of the most prominent features of most streams of postmodernism,

originating in the field of literature with Jacques Derrida taking the lead, and gaining

acceptance in jurisprudence since the beginning of the 1980s (cf. Balkin 1987).

� The aim of deconstruction is to expose and deconstruct, that is, to break down, the

hierarchical differences into ideas or basic units and to “reconstruct” these into other

(more acceptable) forms.

� Examples of hierarchical rules or ideas are, inter alia, contained in statements such as

the following: A is the rule, and B is the exception; A is true, and B is false; A is the

general case, and B is the special case. In all of these examples, A is, according to

deconstructive practice, placed hierarchically “higher”, that is, in a preferential position to

B.

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� Deconstruction wants to draw the attention to these predispositions and preferences and

do away with stereotyped differentiations because they blind our view to other

possibilities, which may be equally acceptable.

� In the field of legal interpretation, postmodernism strongly opposes the idea of

interpretation according to one dominant approach or idea, that is, using the so-called

“intention of the legislature” or the “golden rule” of interpretation as models of

interpretation, but that various equally valid possibilities for interpretation exist, without

one enjoying preference over the other – which means that, according to postmodernism,

there is no such thing as the “original” meaning of legal texts; it is argued that the

intention of the legislature is only present with the making of the law; thereafter it is lost

forever to those who must interpret the law.

� After the formulation of law, changing political, economical, or social circumstances occur,

which must be taken into account when interpreting the law – all that is then at the

disposal of the legal expositor is the text of the law, which must be interpreted in the light

of new circumstances.

� Deconstructionists wish to demonstrate that the meaning of a legal text or other legal

document must never be dependent on a single predominant meaning, for example, the

intention of the legislature, but that various equally valid possibilities for interpretation

exist, without enjoying preference over the other, based on the premise that there is no

such thing as the original meaning of texts.

� Since the 1970s, the Critical Legal Studies (CLS) Movement has taken root in some of

the foremost faculties of law at universities in the USA. The most prominent exponent of

this movement is Duncan Kennedy (see Kennedy 1976) and Roberto Unger (see Unger

1975 and 1986). This movement is also strongly influenced by the Frankfurt School of

New Marxism, the school of American Realism, and deconstruction jurisprudence

(discussed above). Generally speaking, a distinction is drawn between a moderate and a

radical stream in the CLS Movement. The radical position within CLS is strongly reliant on

deconstructionism and argues that law or any other social institution has no objective

structure, that is, a structure that is separate from the perceptions of individuals and that

is held up as the only norm. Therefore, legal norms and doctrines have no fixed

meanings, but are rather empty concepts wherein the individual can deposit the meaning

of his or her choice. One meaning is thus as valid as the other, and there is no single

authoritative interpretation of law. The contra-argument sometimes raised that various

judges often agree on the interpretation and application of legal principles and that

judgments are sometimes even predictable is answered by CLS authors that such

phenomena cannot be ascribed to the existence of generally valid and objective legal

principles on which all unanimously agree, but must rather be ascribed to the fact that

judges who agree come from similar socio-economic backgrounds and, therefore, have

the same ethical and political convictions. This common background is, therefore, the

reason why different judges give the same interpretation of legal concepts.

� Within the field of postmodernism, CLS, legal feminism, communitarianism, and

deconstructive interpretation of legal texts are some of the most prominent manifestations

of postmodernism in jurisprudence.

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Critical Legal Studies (CLS)

Read Chapter 7 in van Blerk (1996: 147-170).

Self-aid questions

35. What does the concern of CLS with the ideological character of law entail?

36. How is the relationship between CLS and politics to be explained?

37. Briefly explain the relationship between CLS and American Realism.

38. Why do CLS scholars respond negatively towards the liberal tradition in

jurisprudence?

39. Elucidate the remark that “the revelation that belief structures which rule our lives

are not found in nature but are historically contingent … is … ‘extraordinarily

liberating’”.

40. Why is “trashing” as a jurisprudential method so attractive to CLS scholars?

41. Why is CLS so important to legal education?

42. Give a brief description of the portrait of a typical CLS scholar.

43. Write notes on the applicability of CLS theories to South African jurisprudential

issues.

44. What would, according to your mind, be the strong and weak points of CLS

theories?

Standard-type questions

45. Make a critical assessment of the contents and weak and strong points of CLS.

(12½)

46. Consider the applicability of CLS theories to South African jurisprudential issues.

(12½)

47. Critically discuss the CLS methodological approach to law and legal issues, and

draw a profile of the typical CLS scholar. (12½)

Legal feminism

Read Chapter 8 in van Blerk (1996: 171-192).

Self-aid questions

48. What does the “rejection of patriarchy” within the context of legal feminism mean?

49. Give a brief overview of the various stages in the development of legal feminism.

50. Van Blerk makes mention of the so-called “anti-essentialist abyss”. What does this

mean?

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51. Which methods do the legal feminists use in their approach to jurisprudential

issues?

52. Make a brief assessment of the position of legal feminism in South African

jurisprudence.

Standard-type questions

53. “The equal status promised by the interim Constitution should not, however, lull

women into a false sense of security. Liberation requires more than paper

statements; it requires that those statements be put into action. It is only when

legal rights are translated into reality that they will transform society and women’s

lives for the better.” Comment on this statement, and give your opinion on the

tenability of the author’s views. (12½)

54. Give a critical exposition of the various stages in the development of legal feminism

and the methodology used by this movement in its attack on all forms of patriarchy.

(12½)

Communitarianism

Read Chapter 9 in van Blerk (1996: 193-215).

Self-aid questions

55. What are the sources of this jurisprudential approach?

56. Write brief notes on the various debates raging within the ranks of the so-called

“communitarians”.

57. What is the status of “community” within the ranks of communitarian jurisprudence?

58. What does the “metaethical debate” entail?

59. Give the reasons why communitarians are convinced that communal life and

values are more fulfilling than the individualism that characterises the liberal way of

life.

60. Would you say that Dworkin and Rawls are typical proponents of

communitarianism?

61. How is communitarianism and CLS related?

Standard-type questions

62. Make a critical assessment of the approach, contents, and applicability of

communitarianism as an alternative jurisprudential approach to law.

63. Discuss the various streams of communitarianism in jurisprudence, and state your

opinion on the tenability and usefulness of this jurisprudential theory.

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Legal hermeneutics and deconstruction

Read Chapter 10 in van Blerk (1996: 217-230).

Self-aid questions

64. Why is there a need for a theory of constitutional interpretation?

65. Why has legal hermeneutics become such an important field of study lately?

66. Discuss the various constructing solutions proposed by exponents of legal

hermeneutics.

67. Why are constraints in legal interpretation (particularly constitutional interpretation)

so important?

68. How can deconstruction serve a useful purpose in the interpretation of legal texts?

Standard-type questions

69. Consider the various approaches to legal hermeneutics, and give your opinion as

to the usefulness of this jurisprudential approach to legal texts. (12½)

70. “The hermeneutic vision of meanings common to a shared way of life is discounted

by supporters of the deconstructive approach.” Analyse the implications of this

statement, and consider the usefulness of deconstruction theory for contemporary

jurisprudence. (12½)

References

This reference list is simply an indication of the sources used to compile this unit and is not

intended as an additional or recommended reading li st. There is no need to consult these sources,

but should you wish to do so, please contact the le cturer to give you some guidance.

� Balkin, J.M. 1987. “Deconstructive practice and legal theory”. Yale Law Journal 4.

� Kennedy, D. 1976. “Form and substance in private law adjudication”. Harvard Law

Review 89.

� Unger, R.M. 1975. Knowledge and Politics. New York: Free Press.

� Unger, R.M. 1986. The Critical Legal Studies Movement. Cambridge, MA: Harvard

University Press.

� Van Blerk, A. 1996. Jurisprudence: An Introduction. Durban: Butterworths.

JURISPRUDENCE – RGL424

July to November 2012

Week Unit

Readings

(See the study guide for the relevant cases and

legislation.)

1-2 1. Analytical Positivism Van Blerk (1996: 27-81)

3-4

2. Modern and Postmodern Theories of Law

2.1 The Modern Opponents to Natural Law Theory

Van Blerk (1996: 27-81)

5-6 2.2 Reconstruction Theories of Law and the Rebirth of Natural Law Van Blerk (1996: 83-125)

7 2.3 Liberalism, Libertarianism, and Socialism Van Blerk (1996: 127-145)

8 2.4 Postmodern Theories of Law Van Blerk (1996: 147-230)

9

10

11

12 Revision

Examination