JURISPRUDENCE NOTES

Part 1

Prof Busalile Jack Mwimali

1. Introduction to Jurisprudence

1.1. Definition of Jurisprudence

The term “jurisprudence” comes from the Latin word “juris-prudentia,” which translates to
“knowledge of law” in its broadest sense. Specifically, “Juris” means law, and “prudential” means
skill or knowledge. It, as defined by various jurists, reflects the multifaceted nature and scope of
the field. Here are some definitions provided by prominent legal scholars:

1.1.1. John Austin

John Austin, a legal philosopher associated with legal positivism, defined jurisprudence as “the
philosophy of positive law.” He focused on analysing the essential characteristics of law, such as
its command nature, sovereign authority, and the relationship between law and coercion.

1.1.2. H.L.A. Hart

H.L.A. Hart, another influential legal philosopher, described jurisprudence as “the study of the
concepts of law and the systems of law.” He emphasized the importance of understanding legal
concepts, such as legal obligation, authority, and the rule of recognition, in the analysis of legal
systems.

1.1.3. Roscoe Pound

Roscoe Pound, a legal scholar known for his sociological approach to law, defined jurisprudence
as “a science of law, or the philosophy of law, or a systematic knowledge of the nature, functions,
and purposes of law.” He highlighted the interdisciplinary nature of jurisprudence and its focus on
understanding the social, political, and cultural aspects of law.

1.1.4. Lon L. Fuller

Lon L. Fuller, a legal theorist associated with legal naturalism, characterized jurisprudence as “the
study of law in the concrete.” He emphasized the importance of considering the moral and ethical
dimensions of law, as well as its practical implications for society.

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 1.1.5. Joseph Raz
Joseph Raz, a contemporary legal philosopher, defined jurisprudence as “the conceptual and
normative study of law.” He emphasized the dual nature of jurisprudence, which involves both
conceptual analysis of legal concepts and normative evaluation of legal principles and institutions.

1.2. Nature of Jurisprudence

Jurisprudence, as a field of study, delves into the theory and understanding of law, playing a pivotal
role in shaping our comprehension of legal systems. By exploring fundamental legal principles
like rights, duties, possessions, property, and remedies, jurisprudence offers valuable insights into
the role and function of law within society.

A primary focus of jurisprudence lies in scrutinizing the sources of law, which encompass statutory
law, common law, and constitutional law. Through this examination, scholars and practitioners
aim to develop a deeper understanding of how these sources interact and influence the evolution
of legal systems over time.

Another significant aspect of jurisprudence is its role in elucidating the complex concept of law
itself. While law is often perceived merely as a set of rules and regulations, jurisprudence reveals
its dynamic and multifaceted nature, shaped by a myriad of social, cultural, and political factors.

It’s essential to recognize that jurisprudence isn’t confined to a single viewpoint; rather, it
encompasses diverse perspectives. Some scholars view it as a science, while others regard it as a
social science influenced by historical, cultural, and political contexts. Despite these varied
interpretations, jurisprudence undeniably serves as a cornerstone for understanding legal systems
and guiding the development of legal theory and practice.

1.3. Functions of Jurisprudence

Jurisprudence is indispensable for comprehending legal systems and their societal implications. It
offers a theoretical framework for understanding the law and its underlying principles, guiding
legal practitioners, policymakers, and scholars in their pursuit of justice and equity within society.
Overall, these definitions underscore the diverse perspectives and approaches within
jurisprudence, ranging from analytical and positivist views to more interpretive and critical
approaches. Jurisprudence serves as a foundational discipline for understanding the nature,

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principles, and functions of law, and it provides insights into the complex interplay between law
and society.

1.4. Significance and Need of the Study of Jurisprudence

The study of jurisprudence is not only limited to the development and evolution of law. The
academics who study jurisprudence also make great contributions to other social sciences, such as
political and social sciences. This leads to the overall development of society.

The study of jurisprudence also helps uncomplicate some of the concepts and complexities of the
legal world. It makes them more manageable and rational and thus easier to understand. This can
also lead to a more effective practice of law.

We often call jurisprudence the grammar of the law. It will help a lawyer understand the basic
ideas and reasoning behind the written law. It helps them better understand the fundamentals of
the law and figure out the actual rule of the law.

The lawyer and judges can use jurisprudence as a guide to correctly interpret certain laws that
require interpretation. The study of jurisprudence does not serve only academic purposes. It will
help lawyers and other practitioners in the practical world as well.

It sharpens their legal knowledge. Also, it trains the mind to find alternate routes and channels of
thought in case of difficulty. The law can mean more than one thing, and this exploration is a direct
effect of the study of jurisprudence.

1.5. Two Ways of Study of Jurisprudence

There are two approaches when it comes to the study and analysis of jurisprudence: empirical
approach and a priori approach. The a priori approach starts with generalization in light of which
the facts are examined, while the empirical approach starts with facts and moves to generalization.
A priori knowledge has traditionally been conceived to be the product of insight and reasoning.
Some truths are simply evident to someone who understands them and reflects on them. These
truths are known to be such without being checked in experience. Other priori knowledge is
inferred by evidently correct reasoning (this is deductively correct reasoning), which begins with
priori knowledge. A priori knowledge that is not evident must be obtained by chains of reasoning
that ultimately begin with evident premises. A priori knowledge is the knowledge which Hume

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claimed to be "either intuitively or demonstratively certain." (An Inquiry Concerning Human
Understanding).

In contrast to a priori knowledge, empirical knowledge must be checked in and rest upon
experience. In contrast to a priori truths, empirical truths do not have their status settled by the
conceptual frameworks to which they belong. If an empirical truth had turned out otherwise, the
conceptual framework would not have been affected.

1.6. Scope of Jurisprudence

The scope of jurisprudence extends across various disciplines, including psychology, politics,
economics, sociology, and ethics. This interdisciplinary approach reflects the interconnectedness
between law and society, as the law is intricately intertwined with its environment's social, cultural,
and political fabric.

Moreover, jurisprudence doesn’t solely focus on legal logic; it also delves into broader questions
concerning the nature and origins of law. By studying the various legal systems and traditions and
their evolution over time, jurisprudence provides invaluable insights into the complexities of law
and its practical applications.

It’s important to distinguish between jurisprudence and legal theory. While jurisprudence
encompasses a wide array of topics related to the study of law, legal theory specifically examines
the philosophical content of the law. Legal theory aims to clarify fundamental legal concepts and
discern the essence of law, whereas jurisprudence encompasses a broader spectrum of legal
studies.

1.7. Relationship of Jurisprudence with Other Social Sciences

1.7.1. Sociology and Jurisprudence
There is a branch called Sociological Jurisprudence. This branch is based on social theories. It is
essentially concerned with the influence of law on the society at large particularly when we talk
about social welfare. The approach from sociological perspective towards law is different from a
lawyer’s perspective. The study of sociology has helped Jurisprudence in its approach. Behind all
legal aspects, there is always something social.

However, the Sociology of Law is different from Sociological Jurisprudence.

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 1.7.2. Jurisprudence and Psychology
No human science can be described properly without a thorough knowledge of Human Mind.
Hence, Psychology has a close connection with Jurisprudence. The relationship of Psychology and
Law is established in the branch of Criminological Jurisprudence. Both psychology and
jurisprudence are interested in solving questions such as the motive behind a crime, criminal
personality, reasons for crime, etc.

1.7.3. Jurisprudence and Ethics

Ethics has been defined as the science of Human Conduct. It strives for ideal Human Behavior.
This is how Ethics and Jurisprudence are interconnected:

a. Ideal Moral Code- This could be found in relation to Natural Law.

b. Positive Moral Code- This could be found in relation to Law as the Command of the
sovereign.
c. Ethics is concerned with good human conduct in the light of public opinion.
d. Jurisprudence is related to positive morality in so far as the law is the instrument by which
to assert positive ethics.
e. Jurisprudence believes that Legislation must be based on ethical principles. It is not to be
divorced from Human principles.
f. Ethics believes that No law is good unless it is based on sound principles of human value.
g. A Jurist should be adept in this science because unless he studies ethics, he won’t be able
to criticize the law.
h. However, Austin disagreed with this relationship.

1.7.4. Jurisprudence and Economics

Economics studies man’s efforts to satisfy his wants and produce and distribute wealth. Both
Jurisprudence and Economics are sciences and aim to regulate people's lives. Both of them try to
develop the society and improve the life of an individual. Karl Marx was a pioneer in this regard.

1.7.5. Jurisprudence and History

History studies past events. Development of Law for administration of justice becomes sound if
we know the history and background of legislations and the way law has evolved. The branch is
known as Historical Jurisprudence.

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 1.7.6. Jurisprudence and Politics
In a politically organized society, there are regulations and laws which lay down authoritatively
what a man may and may not do. Thus, there is a deep connected between politics and
Jurisprudence.

1.8. History of the Development of Law and Jurisprudence

The concept of law and justice began in the era of ancient Rome and India. From prehistoric times
to today in the 21st century, it has evolved and grown through many stages.

Some of the first mentions of the concept of jurisprudence are found in ancient Indian texts known
as the Dharmashastra texts. In these times, there was a great belief in the concept of dharmas and
morals.

Then, in ancient Rome, the concepts developed further. They had forms of traditional law as we
see today. Along with this, citizens also abided by a body of oral laws and customs and regulations.

The Roman Empire leads to the rise of various schools of law. As we shall see, from the various
theoretical schools, the practice of law became more advanced and academic.

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2. Natural Law Theory: Classical Natural Law

2.1. Introduction to Natural Law

The term 'natural law' is inherently ambiguous. It refers to a type of moral theory, as well as to a
type of legal theory, despite the fact that the core claims of the two kinds of theory are logically
independent. This ambiguity invites further exploration and understanding. According to natural
law ethical theory, the moral standards that govern human behaviour are, in some sense,
objectively derived from the nature of human beings. According to natural law legal theory, the
authority of at least some legal standards necessarily derives, at least in part, from considerations
having to do with the moral merit of those standards.

The field of natural law is not just rich and diverse, but this diversity is significant. It houses a
number of different kinds of natural law theories of law, each differing from the other with respect
to the role that morality plays in determining the authority of legal norms. This diversity adds a
layer of complexity to the subject, making it a challenging and intellectually stimulating area of
study.

2.2. Evolution and Development of the Natural Law Theory

The use of natural law in its various incarnations has varied widely throughout its history. There
are a number of different theories of natural law, differing from each other with respect to the role
that morality plays in determining the authority of legal norms. We shall deal with its usages
separately rather than attempt to unify them into a single theory.

2.2.1. Plato
Although Plato does not have an explicit theory of natural law his concept of nature, according to
John Wild, contains some of the elements found in many natural law theories. According to Plato,
we live in an orderly universe. At the basis of this orderly universe or nature are the forms, most
fundamentally the Form of the Good, which Plato describes as "the brightest region of being. The
Form of the Good is the cause of all things and when it is seen it leads a person to act wisely. In
the Symposium, the Good is closely identified with the Beautiful. Also in the Symposium, Plato
describes how the experience of the Beautiful by Socrates enables him to resist the temptations of
wealth and sex. In the Republic, the ideal community is, "...a city which would be established in
accordance with nature."

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 2.2.2. Aristotle
What the law commanded varied from place to place, but what was "by nature" should be the same
everywhere. A "law of nature" would therefore have had the flavor more of a paradox than
something that obviously existed. Against the conventionalism that the distinction between nature
and custom could engender, Socrates and his philosophic heirs, Plato and Aristotle, posited the
existence of natural justice or natural right. Of these, Aristotle is often said to be the father of
natural law.

Aristotle's association with natural law may be due to the interpretation given to his works by
Thomas Aquinas Aristotle notes that natural justice is a species of political justice, viz. the scheme
of distributive and corrective justice that would be established under the best political community;
were this to take the form of law, this could be called a natural law, though Aristotle does not
discuss this and suggests in the Politics that the best regime may not rule by law at all the best
evidence of Aristotle's having thought there was a natural law comes from the Rhetoric, where
Aristotle notes that, aside from the "particular" laws that each people has set up for itself, there is
a "common" law that is according to nature.

Universal law is the law of Nature. For there really is, as everyone to some extent
divines, a natural justice and injustice that is binding on all men, even on those who
have no association or covenant with each other. It is this that Sophocles' Antigone
clearly means when she says that the burial of Polymerizes was a just act in spite of
the prohibition: she means that it was just by nature:
Not of to-day or yesterday it is, but lives eternal: none can date its birth." And so
Empedocles, when he bids us kill no living creature, says that doing this is not just for
some people while unjust for others: "Nay, but, an all-embracing law, through the
realms of the sky Unbroken it stretched, and over the earth's immensity.
Some critics believe that the context of this remark suggests only that Aristotle advised that it
could be rhetorically advantageous to appeal to such a law, especially when the "particular" law
of one's own city was averse to the case being made, not that there actually was such a law;
Moreover, they claim that Aristotle considered two of the three candidates for a universally valid,
natural law provided in this passage to be wrong. Aristotle's theoretical paternity of the natural law
tradition is consequently disputed.

2.2.3. Stoic
The development of this tradition of natural justice into one of natural law is usually attributed to
the Stoics. The rise of natural law as a universal system coincided with the rise of large empires
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and kingdoms in the Greek world. Whereas the "higher" law Aristotle suggested one could appeal
to was emphatically natural, in contradistinction to being the result of divine positive legislation,
the Stoic natural law was indifferent to the divine or natural source of the law: the Stoics asserted
the existence of a rational and purposeful order to the universe (a divine or eternal law), and the
means by which a rational being lived in accordance with this order was the natural law, which
spelled out action that accorded with virtue. Natural law first appeared among the stoics who
believed that God is everywhere and in everyone. Within humans is a "divine spark" which helps
them to live in accordance with nature. The stoics felt that there was a way in which the universe
had been designed and natural law helped us to harmonize with this.

2.2.4. Cicero
Cicero wrote in his De Legibus that both justice and law derive their origin from what nature has
given to man, from what the human mind embraces, from the function of man, and from what
serves to unite humanity. For Cicero, natural law obliges us to contribute to the general good of
the larger society. The purpose of positive laws is to provide for "the safety of citizens, the
preservation of states, and the tranquility and happiness of human life." In this view, "wicked and
unjust statutes" are "anything but 'laws,'" because "in the very definition of the term 'law' there
inheres the idea and principle of choosing what is just and true." Law, for Cicero, "ought to be a
reformer of vice and an incentive to virtue." Cicero expressed the view that "the virtues which we
ought to cultivate, always tend to our own happiness, and that the best means of promoting them
consists in living with men in that perfect union and charity which are cemented by mutual
bnefits." Cicero influenced the discussion of natural law for many centuries to come, up through
the era of the American Revolution. The jurisprudence of the Roman Empire was rooted in Cicero,
who held "an extraordinary grip ... upon the imagination of posterity" as "the medium for the
propagation of those ideas which informed the law and institutions of the empire." Cicero's
conception of natural law "found its way to later centuries notably through the writings of Saint
Isadora of Seville and the Decretum of Gratian. "Thomas Aquinas, in his summary of medieval
natural law, quoted Cicero's statement that "nature" and "custom" were the sources of a society's
laws. Some early Church Fathers, especially those in the West, sought to incorporate natural law
into Christianity. The most notable among these was Augustine of Hippo, who equated natural law
with man's prelapsarian state; as such, a life according to nature was no longer possible and men
needed instead to seek salvation through the divine law and grace of Jesus Christ.

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 2.2.5. The Dark Ages
From the fall of the Western Roman Empire in the hands of Barbara (476) to the fall of
Constantinople (the seat of the Byzantine Empire) in the hands of Muslim Turks (1453). This
period is remembered by the Europeans as the Medieval Age or Dark Ages (It is to be noted that
this period is a dark period for Europe and not for Asia because in that period, Asia was quite
enlightened in terms of intellect, governance and medical science etc. because of ignorance,
lawlessness, arbitrary actions of the feudal lords and the Church Authority and suppression of
scientific exploration in the name of religion though the very theses of the Church Authority were
derived from Greek philosophy and not from God’s revelation.

2.2.6. The Renaissance (13th century – early 17thcentury):

The Renaissance is a series of literary and cultural movements in the 13th, 14th, 15th, 16thAnd
early 17th centuries. These movements began in Italy and eventually expanded into Germany,
France, England, and other parts of Europe. Participants studied the great civilizations of ancient
Greece and Rome and came to the conclusion that their own cultural achievements rivaled those
of antiquity. The word renaissance means “rebirth.” The idea of rebirth originated in the belief that
Europeans had rediscovered the superiority of Greek and Roman culture after many centuries of
what they considered intellectual and cultural decline. Thomas Aquinas sought to reconcile
Aristotelian philosophy with Augustinian theology. He employed both reason and faith in the study
of metaphysics, moral philosophy, and religion. But the dominant intellectual movement of the
Renaissance was humanism; a cultural impulse characterized by, among many other things, a shift
of emphasis from religious to secular concerns.

During the Renaissance, they (i.e. the humanists) challenged the basis of scholastic education and
sought an emphasis on practical experience rather than abstract thought. Humanists such as
Desiderius Erasmus rejected religious orthodoxy in favour of the study of human nature.
Humanism reflected some of the changes in values of the new urban society and the townspeople
challenged the dominance of the church in everyday life.

2.2.7. The Age of Enlightenment/the Age of Reason (1620 – 1781)

It refers to the time of the guiding intellectual movement covering about a century and a half in
Europe, beginning with the publication of Francis Bacon’s Novum Organum (1620) and ending
with Immanuel Kant’s Critique of Pure Reason (1781). From the perspective of socio-political

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phenomena, the period is considered to have begun with the close of the Thirty Years’ War (1648)
and ended with the French Revolution (1789).

2.2.8. Hugo Grotius

Liberal natural law grew out of the medieval Christian natural law theories and out of Hobbes'
revision of natural law, sometimes in an uneasy balance of the two. Hugo Grotius based his
philosophy of international law on natural law. In particular, his writings on freedom of the seas
and just war theory directly appealed to natural law. About natural law itself, he wrote that "even
the will of an omnipotent being cannot change or abrogate" natural law, which "would maintain
its objective validity even if we should assume the impossible, that there is no God or that he does
not care for human affairs."(De iure belli ac pacis, Prolegomena XI). This is the famous argument
etiamsidaremus (non esseDeum), that made natural law no longer dependent on theology.

However, German church-historians Ernst Wolf and M. Elze disagreed and claimed that Grotius'
concept of natural law did have a theological basis. In Grotius' view, the Old Testament contained
moral precepts (e.g. the Decalogue) which Christ confirmed and therefore were still valid.
Moreover, they were useful in explaining the content of natural law. Both biblical revelation and
natural law originated in God and could therefore not contradict each other. He gave natural law a
theological foundation and applied it to his concepts of government and

2.2.9. William Blackstone’s Natural Law Posit

The defining thesis of conceptual naturalism is that a norm that does not conform to the natural
law cannot be legally valid. As William Blackstone describes the thesis, "This law of nature, being
co-eval with mankind and dictated by God himself, is of course superior in obligation to any other.
It is binding over all the globe, in all countries, and at all times: no human laws are of any validity,
if contrary to this; and such of them as are valid derive all their force, and all their authority,
mediately or immediately, from this original" (1979, 41). In this passage, Blackstone articulates
the two claims that constitute the theoretical core of conceptual naturalism:

(1) there can be no legally valid standards that conflict with the natural law; and

(2) all valid laws derive what force and authority they have from the natural law.

2.3. The Social Contract Theories

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The idea of the social contract influenced the shapers of the American Revolution and the French
Revolution and the constitutions that followed them. The original inspiration for social contract
theory is the notion derived from the biblical covenant between God and Abraham, but it is most
closely associated with the writings of Thomas Hobbes, John Locke, and Jean-Jacques Rousseau.

Thomas Hobbes and John Locke were two main political philosophers during the seventeenth
century. Hobbes authored Leviathan and Locke, An Essay Concerning Human Understanding. In
their essays, both men address the characteristics of man, natural law, and the purpose and structure
of government.

The two men have very different opinions of the characteristics of man. Hobbes sees man as being
evil, whereas Locke views man in a much more optimistic light. They both agree that all men are
equal according to natural law. However, their ideas of natural law differ greatly. Hobbes sees
natural law as a state of war in which every man is an enemy to every man.

Locke, on the other hand, sees natural law as a state of equality and freedom. Locke, therefore,
believes that government is necessary in order to preserve natural law, and on the contrary, Hobbes
sees government as necessary in order to control natural law.

Hobbes and Locke see mankind's natural characteristics in two very different ways. Hobbes
describes the life of man as solitary, poor, nasty, brutish, and short. He obviously does not think
very highly man. He also says that it is hard for men to believe there are many so wise as
themselves, expressing his discontent with how selfish men are. Conversely, Locke views
mankind's natural characteristics much more optimistically. Locke sees men as being governed
according to reason. He perceives men to be thinking, capable individuals that can coexist
peacefully.

Hobbes and Locke disagree on mankind's natural characteristics, but the degree of their
disagreement grows much larger with respect to natural law. The main thing that Hobbes and
Locke can seem to agree on, with respect to natural law, is that all men are equal in nature. For
Hobbes, this equality exists in a state of war, in which every man has a right to everything. He
terms this state of war a state of equality because even the weakest has enough strength to kill the
strongest. In Hobbes's opinion, no one is superior because they are all equal in their level of
rottenness.

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Locke agrees that in natural law, no one is superior. However, he writes that all men are naturally
in a state of perfect freedom, equality and liberty, displaying his belief that men are sensible by
nature and can exist happily according to natural law without the need for constant war. Locke
does admit that war is sometimes necessary, but that one may only destroy a man who makes war
upon him. In general, he believes that it is beneficial for humans to follow natural law. Since
natural law is good, and not evil for Locke, it is therefore the role of government to preserve natural
law.

For Hobbes on the other hand, government must exist in order to control natural law. Hobbes
reasons that people will abide by the laws the government sets, for fear of some evil consequence.
Hobbes points out the selfish reasons why a man will follow the government in order to explain
how the government is able to work, with men being so naturally evil. Locke sees government, as
merely a preservation of that which is already good. Locke believes that people are willing to unite
under a form of government so as to preserve their lives, liberties and estates, or in other words,
their property. Since natural law is already good, government not only preserves natural law, but
also works to enhance it.

The ideas presented by Hobbes and Locke are often in opposition. Hobbes tends to take a much
more pessimistic stance; viewing men as evil, natural law as a state of war, and government as
something that can wipe out natural law. Locke takes a much more optimistic stance; viewing men
as free and equal and seeing government as only a preservation of the state they are naturally in.
Despite the difference in their arguments, their ideas were revolutionary for their time. The interest
they took in man's natural characteristics, natural law, and the role of government provided
inspiration for and was the focus of many literary works throughout the Enlightenment.

Jean Jacques Rousseau held that in the state of nature, people are unwarlike but also undeveloped
in reasoning and morality; in surrendering their individual freedom, they acquire political liberty
and civil rights within a system of laws based on the “general will” of the governed.

The idea of the social contract influenced the shapers of the American Revolution and the French
Revolution and the constitutions that followed them.

2.4. Aquinas’ Natural Law

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All forms of natural law theory subscribe to the Overlap Thesis, which asserts that there is some
kind of non-conventional relation between law and morality. According to this view, then, the
notion of law cannot be fully articulated without some reference to moral notions. Though the
Overlap Thesis may seem unambiguous, there are a number of different ways in which it can be
interpreted. The strongest construction of the Overlap Thesis forms the foundation for the classical
naturalism of Aquinas and Blackstone.

Aquinas distinguishes four kinds of law:

(1) eternal law;

(2) natural law;
(3) human law; and
(4) divine law.

Eternal law is comprised of those laws that govern the nature of an eternal universe; as Susan
Dimock (1999, 22) puts it, one can "think of eternal law as comprising all those scientific (physical,
chemical, biological, psychological, etc.) 'laws' by which the universe is ordered."

Divine law is concerned with those standards that must be satisfied by a human being to achieve
eternal salvation. One cannot discover divine law by natural reason alone; the precepts of divine
law are disclosed only through divine revelation.

The natural law is comprised of those precepts of the eternal law that govern the behaviour of
beings possessing reason and free will. The first precept of the natural law, according to Aquinas,
is the somewhat vacuous imperative to do good and avoid evil. Here it is worth noting that Aquinas
holds a natural law theory of morality: what is good and evil, according to Aquinas, is derived
from the rational nature of human beings. Good and evil are thus both objective and universal.

But Aquinas is also a natural law legal theorist. In his view, a human law (i.e., that which is
promulgated by human beings) is valid only insofar as its content conforms to the content of the
natural law. As Aquinas puts the point: "[E]very human law has just so much of the nature of law
as is derived from the law of nature. But if in any point it deflects from the law of nature, it is no
longer a law but a perversion of law" (ST I-II, Q.95, A.II). To paraphrase Augustine's famous
remark, an unjust law is really no law at all.

2.5. Immanuel Kant’s Theories of Natural Law

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He gave modern thinking a new basis which no subsequent philosophy would ignore. In ‘Critique
of Pure Reason’, he set for himself the task of analysing the world as it appears to human
consciousness. Nature follows necessity but human mind is free because it can set itself purposes
and free will. Compulsion is essential to law and a right is characterized by the power to compel.
The aim of Kant was a universal world state, the establishment of a republican constitution based
on freedom and equality of states was a step towards league of states to secure peace. Kant was
doubtful of the practical possibility of the state of nations and he saw no possibility of international
law without an international authority superior to the states. He was a German Idealist. He based
his theory on pure reason. He says man is a part of reality and is subject to its laws (sovereign’s
laws). Though, it is through will of the people, the sovereign comes into existence, but still the
man is not free. His reason and inner consciousness makes him a free moral agent, so the ultimate
aim of the individual should be a life of free will and it is when free will is exercised according to
reason and uncontaminated by emotions, that free willing individuals can live together. People are
morally free when they are able to obey or disobey a moral law but since morality and freedom
are same, an individual can be forced to obey the law without forcing the freedom provided by law
in conformity with morality. He talks about proclamation of autonomy of reason and will. Human
reason is law creating and constitutes moral law. Freedom in law means freedom from arbitrary
subjection to another. Law is the complex totality of conditions in which maximum freedom is
possible for all. The sole function of the state is to ensure observance of the law. The individual
should not allow himself to be made a means to an end as he is an end in himself, if need be he
should retire from society if his free will would involve him in wrong doing. Society unregulated
by right results in violence. Men have an obligation to enter into society and avoid doing wrong to
others. Such a society has to be regulated by compulsory laws. Those laws are derived from the
pure reason of the idea of social union; men will be able to live in peace. What is needed is a rule
of law and not of man. Kant’s ideal of law does not bear any relation to any actual system of law;
it is purely an ideal to serve as a standard of comparison and not as a criterion for the validity of
law.

Kant considered political power as conditioned by the need to render each man’s right effective
while limiting it at the same time through the legal rights of others. Only the collective universal
will armed with absolute power can give security to all. This transfer of power is based on social

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contract which is not a historical fact but it is an idea of reason. The Social Contract is so sacred
that there is an absolute duty to obey the existing legislative power. Rebellion is not justified.

Therefore, he considers a republican and representative state is an ideal state. Only the united will
of all can institute legislation and law is just only when it is at least possible when the whole
population should agree to it. He was in favour of separation of power and was opposed to
privileges of birth and established church and autonomy of corporations. He was in favour of free
speech. The function of the state was essentially that of the protector and guardian of that law.

2.6. Critique of Classic Natural Law

It should be noted that classical naturalism is consistent with allowing a substantial role to human
beings in the manufacture of law. While the classical naturalist seems committed to the claim that
the law necessarily incorporates all moral principles, this claim does not imply that the law is
exhausted by the set of moral principles. There will still be coordination problems (e.g., which side
of the road to drive on) that can be resolved in any number of ways consistent with the set of moral
principles. Thus, the classical naturalist does not deny that human beings have considerable
discretion in creating natural law. Rather she claims only that such discretion is necessarily limited
by moral norms: legal norms that are promulgated by human beings are valid only if they are
consistent with morality.

Critics of conceptual naturalism have raised a number of objections to this view:

First, it has often been pointed out that, contra Augustine, unjust laws are all too frequently
enforced against persons. As Austin petulantly put the point:

Now, to say that human laws which conflict with the Divine law are not binding, that
is to say, are not laws, is to talk stark nonsense. The most pernicious laws, and therefore
those which are most opposed to the will of God, have been and are continually
enforced as laws by judicial tribunals. Suppose an act innocuous, or positively
beneficial, be prohibited by the sovereign under the penalty of death; if I commit this
act, I shall be tried and condemned, and if I object to the sentence, that it is contrary to
the law of God, who has commanded that human lawgivers shall not prohibit acts
which have no evil consequences, the Court of Justice will demonstrate the
inconclusiveness of my reasoning by hanging me up, in pursuance of the law of which
I have impugned the validity (Austin 1995, 158).
Of course, as Brian Bix (1999) points out, the argument does little work for Austin because it is
always possible for a court to enforce a law against a person that does not satisfy Austin's own
theory of legal validity.
16
Another frequently expressed worry is that conceptual naturalism undermines the possibility of
moral criticism of the law; inasmuch as conformity with natural law is a necessary condition for
legal validity, all valid law is, by definition, morally just. Thus, on this line of reasoning, the legal
validity of a norm necessarily entails its moral justice. As Jules Coleman and Jeffrey Murphy
(1990, 18) put the point:

The important things [conceptual naturalism] supposedly allows us to do (e.g., morally

evaluate the law and determine our moral obligations with respect to the law) are
actually rendered more difficult by the collapse of the distinction between morality
and law. If we really want to think about the law from a moral point of view, it may
obscure the task if we see law and morality as essentially linked in some way. Moral
criticism and reform of the law may be aided by an initial moral scepticism about the
law.
There are a couple of problems with this line of objection. First, conceptual naturalism does not
foreclose criticism of those norms that are being enforced by a society as law. Insofar as it can
plausibly be claimed that the content of a norm being enforced by society as law does not conform
to the natural law, this is a legitimate ground for moral criticism: given that the norm being
enforced by law is unjust, it follows, according to conceptual naturalism, that it is not legally valid.
Thus, the state commits wrong by enforcing that norm against private citizens.

Second, and more importantly, this line of objection seeks to criticize a conceptual theory of law
by pointing to its practical implications ñ a strategy that seems to commit a category mistake.
Conceptual jurisprudence assumes the existence of a core of social practices (constituting law) that
requires a conceptual explanation. The project motivating conceptual jurisprudence, then, is to
articulate the concept of law in a way that accounts for these pre-existing social practices. A
conceptual theory of law can legitimately be criticized for its failure to adequately account for the
pre-existing data, as it were; but it cannot legitimately be criticized for either its normative quality
or its practical implications.

A more interesting line of argument has recently been taken up by Brian Bix (1996). Following
John Finnis (1980), Bix rejects the interpretation of Aquinas and Blackstone as conceptual
naturalists, arguing instead that the claim that an unjust law is not a law should not be taken
literally:

A more reasonable interpretation of statements like "an unjust law is no law at all" is that unjust
laws are not laws "in the fullest sense." As we might say of some professionals who had the

17
necessary degrees and credentials but seemed nonetheless to lack the necessary ability or
judgment: "She's no lawyer" or "he's no doctor." This only indicates that we do not think that the
title, in this case, carries with it all the implications it usually does. Similarly, to say that an unjust
law is "not really law" may only be to point out that it does not carry the same moral force or offer
the same reasons for action as laws consistent with "higher law" (Bix 1996, 226).

Thus, Bix construes Aquinas and Blackstone as having views more similar to the neo-naturalism
of John Finnis. Nevertheless, while a plausible case can be made in favour of Bix's view, the long
history of construing Aquinas and Blackstone as conceptual naturalists, along with its pedagogical
value in developing other theories of law, ensures that this practice is likely, for better or worse,
to continue indefinitely.

18
3. Modern Natural Law Theory

3.1. The Substantive Neo-Naturalism of John Finnis

John Finnis takes himself to be explicating and developing the views of Aquinas and Blackstone.
Like Bix, Finnis believes that the naturalism of Aquinas and Blackstone should not be construed
as a conceptual account of the existence of conditions for law. According to Finnis, the classical
naturalists were not concerned with giving a conceptual account of legal validity; rather they were
concerned with explaining the moral force of law: "The principles of natural law explain the
obligatory force (in the fullest sense of 'obligation') of positive laws, even when those laws cannot
be deduced from those principles" (Finnis 1980, 23-24).

In Finnis's view of the Overlap Thesis, the essential function of law is to provide a justification for
state coercion (a view he shares with Ronald Dworkin). Accordingly, an unjust law can be legally
valid, but it cannot provide an adequate justification for the use of the state's coercive power and
is, hence, not obligatory in the fullest sense. Thus, an unjust law fails to realize the moral ideals
implicit in the concept of law. An unjust law, in this view, is legally binding but is not fully law.

Like classical naturalism, Finnis's naturalism is both an ethical theory and a theory of law. Finnis
distinguishes a number of equally valuable basic goods: life, health, knowledge, play, friendship,
religion, and aesthetic experience. Each of these goods, according to Finnis, has intrinsic value in
the sense that it should, given human nature, be valued for its own sake and not merely for the sake
of some other good it can assist in bringing about. Moreover, each of these goods is universal in
the sense that it governs all human cultures at all times. The point of moral principles, in this view,
is to give ethical structure to the pursuit of these basic goods; moral principles enable us to select
among competing goods and to define what a human being can permissibly do in pursuit of a basic
good.

In Finnis's view, the conceptual point of law is to facilitate the common good by providing
authoritative rules that solve coordination problems that arise in connection with the common
pursuit of these basic goods. Thus, Finnis sums up his theory of law as follows:

[T]he term 'law' ... refer[s] primarily to rules made, in accordance with regulative legal
rules, by a determinate and effective authority (itself identified and, standardly,
constituted as an institution by legal rules) for a 'complete' community, and buttressed
by sanctions in accordance with the rule-guided stipulations of adjudicative

19
 institutions, this ensemble of rules and institutions being directed to reasonably
resolving any of the community's co-ordination problems (and to ratifying, tolerating,
regulating, or overriding co-ordination solutions from any other institutions or sources
of norms) for the common good of that community (Finnis 1980, 276).
Again, it bears emphasizing that Finnis takes care to deny that there is any necessary moral test for
legal validity: “one would simply be misunderstanding my conception of the nature and purpose
of explanatory definitions of theoretical concepts if one supposed that my definition 'ruled out as
non-laws' laws which failed to meet, or meet fully, one or other of the elements of the definition”
(Finnis 1980, 278).

Nevertheless, Finnis believes that to the extent that a norm fails to satisfy these conditions, it
likewise fails to fully manifest the nature of law and thereby fails to fully obligate the citizen-
subject of the law. Unjust laws may obligate in a technical legal sense, on Finnis's view, but they
may fail to provide moral reasons for action of the sort that it is the point of legal authority to
provide. Thus, Finnis argues that "a ruler's use of authority is radically defective if he exploits his
opportunities by making stipulations intended by him not for the common good but for his own or
his friends' or party's or faction's advantage, or out of malice against some person or group" (Finnis
1980, 352). For the ultimate basis of a ruler's moral authority, on this view, "is the fact that he has
the opportunity, and thus the responsibility, of furthering the common good by stipulating solutions
to a community's co- ordination problems" (Finnis 1980, 351).

Finnis's theory is certainly more plausible as a theory of law than the traditional interpretation of
classical naturalism, but such plausibility comes, for better or worse, at the expense of naturalism's
identity as a distinct theory of law. Indeed, it appears that Finnis's natural law theory is compatible
with naturalism's historical adversary, legal positivism, inasmuch as Finnis's view is compatible
with a source-based theory of legal validity; laws that are technically valid in virtue of source but
unjust do not, according to Finnis, fully obligate the citizen. Indeed, Finnis (1996) believes that
Aquinas's classical naturalism fully affirms the notion that human laws are "posited."

3.2. The Procedural Naturalism of Lon Fuller

Like Finnis, Lon Fuller (1964) rejects the conceptual naturalist idea that there are necessary
substantive moral constraints on the content of law. But Fuller, unlike Finnis, believes that law is
necessarily subject to a procedural morality. In Fuller's view, human activity is necessarily goal-
oriented or purposive in the sense that people engage in a particular activity because it helps them

20
to achieve some end. Insofar as human activity is essentially purposive, according to Fuller,
particular human activities can be understood only in terms that make reference to their purposes
and ends. Thus, since law-making is essentially a purposive activity, it can be understood only in
terms that explicitly acknowledge its essential values and purposes:

The only formula that might be called a definition of law offered in these writings is by now
thoroughly familiar: law is the enterprise of subjecting human conduct to the governance of rules.
Unlike most modern theories of law, this view treats law as an activity and regards a legal system
as the product of a sustained purposive effort (Fuller 1964, 106).

To the extent that a definition of law can be given, then, it must include the idea that law's essential
function is to: "achieve [social] order through subjecting people's conduct to the guidance of
general rules by which they may themselves orient their behaviour" (Fuller 1965, 657).

Fuller's functionalist conception of law implies that nothing can count as law unless it is capable
of performing law's essential function of guiding behaviour. And to be capable of performing this
function, a system of rules must satisfy the following principles:

(1) the rules must be expressed in general terms;

(2) the rules must be publicly promulgated;
(3) the rules must be prospective in effect;
(4) the rules must be expressed in understandable terms;
(5) the rules must be consistent with one another;
(6) the rules must not require conduct beyond the powers of the affected parties;
(7) the rules must not be changed so frequently that the subject cannot rely on them; and
(8) the rules must be administered in a manner consistent with their wording.

In Fuller's view, no system of rules that fails minimally to satisfy these principles of legality can
achieve the law's essential purpose of achieving social order through the use of rules that guide
behaviour. A system of rules that fails to satisfy (P2) or (P4), for example, cannot guide behaviour
because people will not be able to determine what the rules require. Accordingly, Fuller concludes
that his eight principles are "internal" to the law in the sense that they are built into the existing
conditions for law.

21
These internal principles constitute morality, according to Fuller, because law necessarily has
positive moral value in two respects:

(1) law conduces to a state of social order, and

(2) it does so by respecting human autonomy because rules guide behaviour.

Since no system of rules can achieve these morally valuable objectives without minimally
complying with the principles of legality, it follows, in Fuller's view, that they constitute morality.
Since these moral principles are built into the existence conditions for law, they are internal and,
hence, represent a conceptual connection between law and morality. Thus, like the classical
naturalists and unlike Finnis, Fuller subscribes to the strongest form of the Overlap Thesis, which
makes him a conceptual naturalist.

Nevertheless, Fuller's conceptual naturalism is fundamentally different from that of classical

naturalism. First, Fuller rejects the classical naturalist view that there are necessary moral
constraints on the content of law, holding instead that there are necessary moral constraints on the
procedural mechanisms by which law is made and administered:

What I have called the internal morality of law is ... a procedural version of natural law
... [in the sense that it is] concerned, not with the substantive aims of legal rules, but
with the ways in which a system of rules for governing human conduct must be
constructed and administered if it is to be efficacious and at the same time remain what
it purports to be (Fuller 1964, 96- 97).
Second, Fuller identifies the conceptual connection between law and morality at a higher level of
abstraction than the classical naturalists. The classical naturalists view morality as providing
substantive constraints on the content of individual laws; an unjust norm, on this view, is
conceptually disqualified from being legally valid. In contrast, Fuller views morality as providing
a constraint on the existence of a legal system: "A total failure in any one of these eight directions
does not simply result in a bad system of law; it results in something that is not properly called a
legal system at all" (Fuller 1964, 39).

Fuller's procedural naturalism is vulnerable to a number of objections. H.L.A. Hart, for example,
denies Fuller's claim that the principles of legality constitute an internal morality. According to
Hart, Fuller confuses the notions of morality and efficacy:

[T]he author's insistence on classifying these principles of legality as a "morality" is a

source of confusion both for him and his readers... [T]he crucial objection to the

22
 designation of these principles of good legal craftsmanship as morality, in spite of the
qualification "inner," is that it perpetrates a confusion between two notions that it is
vital to hold apart: the notions of purposive activity and morality. Poisoning is no doubt
a purposive activity, and reflections on its purpose may show that it has its internal
principles. ("Avoid poisons however lethal if they cause the victim to vomit"...) But to
call these principles of the poisoner's art "the morality of poisoning" would simply blur
the distinction between the notion of efficiency for a purpose and those final judgments
about activities and purposes with which morality in its various forms is concerned
(Hart 1965, 1285-86).
In Hart's view, all actions, including virtuous acts like law-making and impermissible acts like
poisoning, have their own internal standards of efficacy. But insofar as such standards of efficacy
conflict with morality, as they do in the case of poisoning, it follows that they are distinct from
moral standards. Thus, while Hart concedes that something like Fuller's eight principles are built
into the existence conditions for law, he concludes they do not constitute a conceptual connection
between law and morality.

Unfortunately, Hart overlooks the fact that most of Fuller's eight principles double as moral ideals
of fairness. For example, public promulgation in understandable terms may be a necessary
condition for efficacy, but it is also a moral ideal. It is morally objectionable for a state to enforce
rules that have not been publicly promulgated in terms reasonably calculated to give notice of what
is required. Similarly, we take it for granted that it is wrong for a state to enact retroactive rules,
inconsistent rules, and rules that require what is impossible. Poisoning may have its internal
standards of efficacy, but such standards are distinguishable from the principles of legality in that
they conflict with moral ideals.

Nevertheless, Fuller's principles operate internally, not as moral ideals, but merely as principles of
efficacy. As Fuller would likely acknowledge, the existence of a legal system is consistent with
considerable divergence from the principles of legality. Legal standards, for example, are
necessarily promulgated in general terms that inevitably give rise to problems of vagueness. And
officials all too often fail to administer the laws in a fair and even-handed manner even in the best
of legal systems. These divergences may always be prima facie objectionable, but they are
inconsistent with a legal system only when they render a legal system incapable of performing its
essential function of guiding behaviour. Insofar as these principles are built into the existence
conditions for law, it is because they operate as efficacy conditions and not because they function
as moral ideals.

23
 3.3. Ronald Dworkin's "Third Theory"
Ronald Dworkin's so-called third theory of law is best understood as a response to legal positivism,
which is essentially constituted by three theoretical commitments: The Social Fact Thesis, the
Conventionality Thesis, and the Separability Thesis.

The Social Fact Thesis asserts it is a necessary truth that legal validity is ultimately a function of
certain kinds of social facts. The idea here is that what ultimately explains the validity of a law is
the presence of certain social facts, especially formal promulgation by a legislature.

The Conventionality Thesis emphasizes the law's conventional nature, claiming that the social
facts giving rise to legal validity are authoritative by virtue of a social convention. In this view,
the criteria that determine whether or not any given norm counts as a legal norm are binding
because of an implicit or explicit agreement among officials. Thus, for example, the U.S.
Constitution is authoritative in virtue of the conventional fact that it was formally ratified by all
fifty states.

The Separability Thesis, at the most general level, simply denies naturalism's Overlap Thesis.
According to the Separability Thesis, there is no conceptual overlap between the notions of law
and morality. As Hart more narrowly construes it, the Separability Thesis is "just the simple
contention that it is in no sense a necessary truth that laws reproduce or satisfy certain demands of
morality, though in fact they have often done so" (Hart 1994, 185-186).

Dworkin rejects positivism's Social Fact Thesis on the ground that there are some legal standards
the authority of which cannot be explained in terms of social facts. In deciding hard cases, for
example, judges often invoke moral principles that Dworkin believes do not derive their legal
authority from the social criteria of legality contained in a rule of recognition (Dworkin 1977, p.
40).

In Riggs v. Palmer, for example, the court considered the question of whether a murderer could
take under the will of his victim. At the time the case was decided, neither the statutes nor the case
law governing wills expressly prohibited a murderer from taking under his victim's will. Despite
this, the court declined to award the defendant his gift under the will on the ground that it would
be wrong to allow him to profit from such a grievous wrong. In Dworkin's view, the court decided
the case by citing "the principle that no man may profit from his own wrong as a background

24
standard against which to read the statute of wills and in this way justified a new interpretation of
that statute" (Dworkin 1977, 29).

In Dworkin's view, the Riggs court was not just reaching beyond the law to extra-legal standards
when it considered this principle. For the Riggs judges would "rightfully" have been criticized had
they failed to consider this principle. If it were merely an extra-legal standard, there would be no
rightful grounds to criticize a failure to consider it (Dworkin 1977, 35). Accordingly, Dworkin
concludes that the best explanation for the propriety of such criticism is that principles are part of
the law.

Further, Dworkin maintains that the legal authority of standards like the Riggs principle cannot
derive from promulgation in accordance with purely formal requirements: “Even though principles
draw support from the official acts of legal institutions, they do not have a simple or direct enough
connection with these acts to frame that connection in terms of criteria specified by some ultimate
master rule of recognition" (Dworkin 1977, 41).

In Dworkin's view, the legal authority of the Riggs principle can be explained wholly in terms of
its content. The Riggs principle was binding, in part, because it is a requirement of fundamental
fairness that figures into the best moral justification for a society's legal practices considered as a
whole. A moral principle is legally authoritative, according to Dworkin, insofar as it maximally
conduces to the best moral justification for a society's legal practices considered as a whole.

Dworkin believes that a legal principle maximally contributes to such a justification if and only if
it satisfies two conditions:

(1) the principle coheres with existing legal materials; and

(2) the principle is the most morally attractive standard that satisfies.

The correct legal principle is the one that makes the law the moral best it can be. Accordingly, in
Dworkin's view, adjudication is and should be interpretive:

Judges should decide hard cases by interpreting the political structure of their
community in the following, perhaps special way: by trying to find the best
justification they can find, in principles of political morality, for the structure as a
whole, from the most profound constitutional rules and arrangements to the details of,
for example, the private law of tort or contract (Dworkin 1982, 165).

25
There are, thus, two elements of a successful interpretation. First, since an interpretation is
successful insofar as it justifies the particular practices of a particular society, the interpretation
must fit with those practices in the sense that it coheres with existing legal materials defining the
practices. Second, since an interpretation provides a moral justification for those practices, it must
present them in the best possible moral light.

For this reason, Dworkin argues that a judge should strive to interpret a case in roughly the
following way:

A thoughtful judge might establish for himself, for example, a rough "threshold" of fit
which any interpretation of data must meet in order to be "acceptable" on the
dimension of fit, and then suppose that if more than one interpretation of some part of
the law meets this threshold, the choice among these should be made, not through
further and more precise comparisons between the two along that dimension, but by
choosing the interpretation which is "substantively" better, that is, which better
promotes the political ideals he thinks correct (Dworkin 1982, 171).
As Dworkin conceives it, then, the judge must approach judicial decision-making as something
that resembles an exercise in moral philosophy. Thus, for example, the judge must decide cases on
the basis of those moral principles that "[figure] in the soundest theory of law that can be provided
as a justification for the explicit substantive and institutional rules of the jurisdiction in question"
(Dworkin 1977, 66).

And this is a process, according to Dworkin, that "must carry the lawyer very deep into political
and moral theory." Indeed, in later writings, Dworkin goes so far as to claim, somewhat
implausibly, that "any judge's opinion is itself a piece of legal philosophy, even when the
philosophy is hidden and the visible argument is dominated by citation and lists of facts" (Dworkin
1986, 90).

Dworkin believes his theory of judicial obligation is a consequence of what he calls the Rights
Thesis, according to which judicial decisions always enforce pre-existing rights: "even when no
settled rule disposes of the case, one party may nevertheless have a right to win. It remains the
judge's duty, even in hard cases, to discover what the rights of the parties are, not to invent new
rights retrospectively" (Dworkin 1977, 81).

In "Hard Cases," Dworkin distinguishes between two kinds of legal argument. Arguments of
policy "justify a political decision by showing that the decision advances or protects some
collective goal of the community as a whole" (Dworkin 1977, 82). In contrast, arguments of

26
principle "justify a political decision by showing that the decision respects or secures some
individual or group right" (Dworkin 1977, 82).

In Dworkin's view, while the legislature may legitimately enact laws that are justified by arguments
of policy, courts may not pursue such arguments in deciding cases. A consequentialist argument
of policy can never provide an adequate justification for deciding in favour of one party's claim of
right and against another party's claim of right. An appeal to a pre-existing right, according to
Dworkin, can ultimately be justified only by an argument of principle. Thus, insofar as judicial
decisions necessarily adjudicate claims of right, they must ultimately be based on the moral
principles that figure into the best justification of the legal practices considered as a whole.

Notice that Dworkin's views on legal principles and judicial obligation are inconsistent with all
three of legal positivism's core commitments. Each contradicts the Conventionality Thesis insofar
as judges are bound to interpret posited law in light of un-posited moral principles. Each
contradicts the Social Fact Thesis because these moral principles count as part of a community's
law regardless of whether they have been formally promulgated. Most importantly, Dworkin's
view contradicts the Separability Thesis in that it seems to imply that some norms are necessarily
valid by virtue of their moral content. It is his denial of the Separability Thesis that places Dworkin
in the naturalist camp.

3.4. Conclusion
To sum it up, then, we can say that the natural law is:

 not made by human beings;

 based on the structure of reality itself;

 the same for all human beings and at all times;

 an unchanging rule or pattern which is there for human beings to discover;

 the naturally knowable moral law;

 a means by which human beings can rationally guide themselves to their good.

It is interesting to note that virtually everyone seems to have some knowledge of natural law even
before such knowledge is codified and formalized. Even young children make an appeal to "fair
play," demand that things be "fair and square," and older children and adults often apply the

27
"golden rule." When doing so, they are spontaneously invoking the natural law. This is why many
proponents of the natural law theory say it is the law which is "written upon the hearts of men."
These are examples of what is called "connatural knowledge," that is, a knowledge which:

 follows on the "lived experience" of the truth;

 is the living contact of the intellect with reality itself;
 is not always given expression in concepts;
 may be obscure to the knower;
 is overlaid with elements from the affective or feeling side of man's nature.

Now, our reflection on our own conduct gives rise to the explicit formulation of the precepts of
the natural law. We, as human beings, put our "common sense" notions of natural law under
"critical examination." In other words, our natural impulses toward "fair play," justice, and so on
are subject to rigorous investigation and rationalization. And our understanding of natural law
becomes more precise as we consider and codify the principles or precepts of natural law. The
primary precept of natural law will be the most basic principle about human action that can be
formulated.

Those readers familiar with Classical Realism will recall that there is an absolutely first and
indemonstrable principle in the speculative order of things. That is, there is an absolutely basic,
self-evident truth of reality upon which we build our entire metaphysics which serves as the
foundation for our view of the ultimate structure of reality. This is the Principle of Contradiction,
from which we derive other basic principles such as Identity and Excluded Middle. Strictly
speaking, the Principle of Contradiction cannot be "proved." It must be accepted as an absolute
"intuitive" or self-evident truth, the truth of which is shown by an analysis of the terms of the
Principle and the impossibility of thinking the opposite.

Natural law theory is of the "practical order" of things and the first principle of the practical order
is a principle that directs human acts in all their operations, and it will be concerned with the
"good," since we act in terms of what a least seems good to us. Therefore, the primary principle of
the practical order -- the first precept of natural law -- is a formulation based upon the notion of
the good and is stated in the following way: The "good" (according to reason) must be done, and
evil (what is contrary to reason) must be avoided. The simplest statement of this precept is, of
course, "Do good and avoid evil."

28
Although we rarely express the precept of "Do good and avoid evil" explicitly (just as we rarely
state the Principle of Contradiction explicitly in daily life), nevertheless we always act in terms of
such a precept. This fact points to the fundamental truth of such a precept, and indicates how it
expresses something "natural" to human beings. A human being naturally inclines to seek what
appears good to reason, and naturally shrinks from what appears to be evil. Hence, the justification
of speaking of this basic moral law as "natural" law.

Upon further reflection, we can distinguish, within natural law, primary and secondary precepts.
The primary precepts will correspond to the order of natural inclinations in human beings. The
most fundamental inclination of all, "Do good and avoid evil," will give rise to other primary
precepts such as the natural inclination to self-preservation, to live in society, to avoid harm to
others, and to know truths about the reality we live in and our own human nature. These primary
precepts are unchangeable to the extent they concern the primary ends of the natural inclinations
inherent in all human beings.

29
4. Legal Positivism

4.1. Introduction
Legal positivism is the thesis that the existence and content of law depends on social facts and not
on its merits. The English jurist John Austin (1790-1859) formulated it thus: “The existence of law
is one thing; its merit and demerit another. Whether it be or be not is one enquiry; whether it be or
be not conformable to an assumed standard, is a different enquiry” (1832, p. 157).

The positivist thesis does not say that law's merits are unintelligible, unimportant, or peripheral to
the philosophy of law. It says that they do not determine whether laws or legal systems exist.
Whether a society has a legal system depends on the presence of certain structures of governance,
not on the extent to which it satisfies ideals of justice, democracy, or the rule of law. What laws
are in force in that system depends on what social standards its officials recognize as authoritative.
for example, legislative enactments, judicial decisions, or social customs. The fact that a policy
would be just, wise, efficient, or prudent is never sufficient reason for thinking that it is actually
the law, and the fact that it is unjust, unwise, inefficient or imprudent is never sufficient reason for
doubting it.

According to positivism, law is a matter of what has been posited (ordered, decided, practiced,
tolerated, etc.); as we might say in a more modern idiom, positivism is the view that law is a social
construction. Austin thought the thesis “simple and glaring.” While it is probably the dominant
view among analytically inclined philosophers of law, it is also the subject of competing
interpretations together with persistent criticisms and misunderstandings.

4.2. Development and Influence

Legal positivism has a long history and a broad influence. It has antecedents in ancient political
philosophy and is discussed, and the term itself introduced, in mediaeval legal and political thought
(see Finnis 1996). The modern doctrine, however, owes little to these forbears. Its most important
roots lie in the conventionalist political philosophies of Hobbes and Hume, and its first full
elaboration is due to Jeremy Bentham (1748-1832), whose account Austin adopted, modified, and
popularized.

For much of the next century an amalgam of their views, according to which law is the command
of a sovereign backed by force, dominated legal positivism and English philosophical reflection

30
about law. By the mid-twentieth century, however, this account had lost its influence among
working legal philosophers. Its emphasis on legislative institutions was replaced by a focus on
law-applying institutions such as courts, and its insistence of the role of coercive force gave way
to theories emphasizing the systematic and normative character of law.

The most important architects of this revised positivism are the Austrian jurist Hans Kelsen (1881-
1973) and the two dominating figures in the analytic philosophy of law, H.L.A. Hart (1907-92)
and Joseph Raz among whom there are clear lines of influence, but also important contrasts.

Legal positivism's importance, however, is not confined to the philosophy of law. It can be seen
throughout social theory, particularly in the works of Marx Weber and Durkheim and also (though
here unwittingly) among many lawyers, including the American “legal realists” and most
contemporary feminist scholars. Although they disagree on many other points, these writers all
acknowledge that law is essentially a matter of social fact. Some of them are, it is true,
uncomfortable with the label “legal positivism” and therefore hope to escape it.

Their discomfort is sometimes the product of confusion. Lawyers often use “positivist” abusively,
to condemn a formalistic doctrine according to which law is always clear and, however pointless
or wrong, is to be rigorously applied by officials and obeyed by subjects. It is doubtful that anyone
ever held this view; but it is in any case false, it has nothing to do with legal positivism, and it is
expressly rejected by all leading positivists. Among the philosophically literate another, more
intelligible, misunderstanding may interfere.

Legal positivism is here sometimes associated with the homonymic but independent doctrines of
logical positivism (the meaning of a sentence is its mode of verification) or sociological positivism
(social phenomena can be studied only through the methods of natural science). While there are
historical connections, and also commonalities of temper, among these ideas, they are essentially
different. The view that the existence of law depends on social facts does not rest on a particular
semantic thesis, and it is compatible with a range of theories about how one investigates social
facts, including non-naturalistic accounts. To say that the existence of law depends on facts and
not on its merits is a thesis about the relation among laws, facts, and merits, and not otherwise a
thesis about the individual relation. Hence, most traditional “natural law” moral doctrines--
including the belief in a universal, objective morality grounded in human nature--do not contradict
legal positivism. The only influential positivist moral theories are the views that moral norms are

31
valid only if they have a source in divine commands or in social conventions. Such theists and
relativists apply to morality the constraints that legal positivists think hold for law.

4.3. John Austin’s Legal Positivism

4.3.1. Austin’s Analytical Jurisprudence and Legal Positivism
One of the key proponents of positivism is John Austin. Early in his career, Austin came under the
influence of Jeremy Bentham, and Bentham's utilitarianism is evident (though with some
differences) in the work for which Austin is best known today. On Austin's reading of
utilitarianism, Divine will is equated with Utilitarian principles: "Utility is the index to the law of
God ... To make a promise which general utility condemns, is an offence against the law of God"
(Austin 1873: Lecture VI, p. 307; see also Austin 1995: Lecture II, p. 41).

This particular reading of utilitarianism, however, has had little long-term influence, though it
seems to have been part of his work that received the most attention in his own day (Rumble 1995:
p. xx). Austin early on shared many of the ideas of the Benthamite philosophical radicals; he was
"a strong proponent of modern political economy, a believer in Hartleian metaphysics, and a most
enthusiastic Malthusian" (Rumble 1985: pp. 16-17).

Austin's importance to legal theory lies elsewhere – his theorizing about law was novel at three
different levels of generality. First, he was arguably the first writer to approach the theory of law
analytically (as contrasted with approaches to law more grounded in history or sociology, or
arguments about law which were secondary to more general moral and political theories).
Analytical jurisprudence emphasizes the analysis of key concepts, including “law”, “(legal) right”,
“(legal) duty,” and “legal validity”.

Though analytical jurisprudence has been challenged by some in recent years (e.g., Leiter 1998),
it remains the dominant approach to discussing the nature of law. Analytical jurisprudence, an
approach to theorizing about law, has sometimes been confused with what the American legal
realists called "legal formalism" -- a narrow approach to how judges should decide cases. The
American legal realists saw Austin in particular, and analytical jurisprudence in general, as their
opponents in their critical and reform-minded efforts. In this, the realists were simply mistaken;
unfortunately, it is a mistake that can still be found in some contemporary legal commentators.

32
(There is some evidence that Austin's views later in his life may have moved away from analytical
jurisprudence towards something more approximating the historical jurisprudence school.
(Hamburger 1985: pp. 178-91))

Second, within analytical jurisprudence, Austin was the first systematic exponent of a view of law
known as "legal positivism." Most of the important theoretical work on the law prior to Austin had
treated jurisprudence as though it were merely a branch of moral theory or political theory, asking
how the state should govern (and when governments were legitimate) and under what
circumstances citizens had an obligation to obey the law.

Austin specifically, and legal positivism generally, offered a quite different approach to law: as an
object of "scientific" study, dominated neither by prescription nor by moral evaluation. Subtle
jurisprudential questions aside, Austin's efforts to treat law systematically gained popularity in the
late 19th century among English lawyers who wanted to approach their profession and their
professional training in a more serious and rigorous manner.

Legal positivism asserts (or assumes) that it is both possible and valuable to have a morally neutral
descriptive (or "conceptual" -- though this is not a term Austin used) theory of law. The main
competitor to legal positivism, in Austin's day as in our own, has been natural law theory. Legal
positivism does not deny that moral and political criticism of legal systems is important but insists
that a descriptive or conceptual approach to law is valuable, both on its own terms and as a
necessary prelude to criticism.

There were theorists prior to Austin who arguably offered views similar to legal positivism or who
at least foreshadowed legal positivism in some way. Among these would be Thomas Hobbes, with
his amoral view of laws as the product of Leviathan (Hobbes 1996); David Hume, with his
argument for separating "is" and "ought" (which worked as a sharp criticism for some forms of
natural law theory, which purported to derive moral truths from statements about human nature)
(Hume 2000); and Jeremy Bentham, with his attacks on judicial law-making and on those, like Sir
William Blackstone, who justified such law-making with natural-law-like justifications (Bentham
1970, 1996).

Austin's famous formulation of what could be called the "dogma" of legal positivism is as follows:

33
The existence of law is one thing; its merit or demerit is another. Whether it be or be not is one
enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry. A law,
which actually exists, is a law, though we happen to dislike it or though it varies from the text, by
which we regulate our approbation and disapprobation.

Third, Austin's version of legal positivism, a "command theory of law" (which will be detailed in
the next section) has also been influential. Austin's theory had similarities with the views
developed by Jeremy Bentham, whose theory could also be characterized as a "command theory."
However, Austen's work was more influential in this area, because Bentham's jurisprudential
writings did not appear in an even-roughly systematic form until well after Austin's work had
already been published.

4.3.2. Austin's Views of Law

As to what is the core nature of law, Austin's answer is that laws (“properly so called”) are
commands of a sovereign. He clarifies the concept of positive law (that is, man-made law) by
analysing the constituent concepts of his definition and by distinguishing law from other concepts
that are similar:

 "Commands" involve an expressed wish that something be done and "an evil" to be
imposed if that wish is not complied with.

 Rules are general commands (applying generally to a class), as contrasted with specific or
individual commands ("drink wine today" or "John Major must drink wine").

 Positive law consisted of those commands laid down by a sovereign (or its agents), to be
contrasted to other law- givers, like God's general commands, and the general commands
of an employer.

 The "sovereign" was defined as a person (or collection of persons) who receives habitual
obedience from the bulk of the population but who does not habitually obey any other
(earthly) person or institution. Austin thought that all independent political societies, by
their nature, have a sovereign.

 Positive law should also be contrasted with "laws by a close analogy" (which includes
positive morality, laws of honour, international law, customary law, and constitutional law)
and "laws by remote analogy" (e.g., the laws of physics). (Austin 1995: Lecture I).

34
Austin also wanted to include within "the province of jurisprudence" certain "exceptions," items
which did not fit his criteria but should nonetheless be studied with other "laws properly so-called":
repealing laws, declarative laws, and "imperfect laws" - laws prescribing action but without
sanctions (a concept Austin ascribes to "Roman [law] jurists"). (Austin 1995: Lecture I, p. 36)

In the criteria set out above, Austin succeeded in delimiting law and legal rules from religion,
morality, convention, and custom. However, also excluded from "the province of jurisprudence"
were customary law (except to the extent that the sovereign had, directly or indirectly, adopted
such customs as law), public international law, and parts of constitutional law. (These exclusions
alone would make Austin's theory problematic for most modern readers.)

Within Austin's approach, whether something is or is not "law" depends on which people have
done what: the question turns on an empirical investigation, and it is a matter mostly of power, not
of morality. Of course, Austin is not arguing that law should not be moral, nor is he implying that
it rarely is. Austin is not playing the nihilist or the sceptic. He is merely pointing out that there is
much that is law that is not moral, and what makes something law does nothing to guarantee its
moral value. "The most pernicious laws, and therefore those which are most opposed to the will
of God, have been and are continually enforced as laws by judicial tribunals."

In contrast to his mentor Bentham, Austin had no objection to judicial law-making, which Austin
called "highly beneficial and even absolutely necessary." Nor did Austin find any difficulty
incorporating judicial law-making into his command theory: he characterized that form of law-
making, along with the occasional legal/judicial recognition of customs by judges, as the "tacit
commands" of the sovereign, the sovereign's affirming the "orders" by its acquiescence.

4.3.3. Criticisms
As many readers come to Austin's theory mostly through its criticism by other writers
(prominently, that of H.L.A. Hart), the weaknesses of the theory are almost better known than the
theory itself:

 In many societies, it is hard to identify a "sovereign" in Austin's sense of the word (a

difficulty Austin himself experienced, when he was forced to describe the British
"sovereign" awkwardly as the combination of the King, the House of Lords, and all the
electors of the House of Commons). Additionally, a focus on a "sovereign" makes it
difficult to explain the continuity of legal systems: a new ruler will not come in with the
35
 kind of "habit of obedience" that Austen sets as a criterion for a system's rule-maker.
However, one could argue (see Harris 1977) that the sovereign is best understood as a
constructive metaphor: that law should be viewed as if it reflected the view of a single will
(a similar view, that law should be interpreted as if it derived from a single will, can be
found in Ronald Dworkin's work (1986)).

 A "command" model seems to fit some aspects of law poorly (e.g., rules which grant
powers to officials and to private citizens - of the latter, the rules for making wills, trusts,
and contracts are examples), while excluding other matters (e.g., international law) which
we are not inclined to exclude in the category "law."

 More generally, it seems more distorting than enlightening to reduce all law to one type.
For example, rules that empower people to make wills and contracts perhaps can be re-
characterized as part of a long chain of reasoning for eventually imposing a sanction
(Austin spoke in this context of the sanction of "nullity") on those who fail to comply with
the relevant provisions. However, such a re-characterization this misses the basic purpose
of those sorts of laws - they are arguably about granting power and autonomy, not
punishing wrongdoing.

 A theory which portrays law solely in terms of power fails to distinguish rules of terror
from forms of governance sufficiently just that they are accepted as legitimate by their own
citizens.

(Austin was aware of some of these lines of attack, and had responses ready; it is another matter
whether his responses were adequate.) It should also be noted that Austin's work shows a silence
on questions of methodology, though this may be forgivable, given the early stage of
jurisprudence. As discussed in an earlier section, in many ways, Austin was blazing a new path.

When H.L.A. Hart revived legal positivism in the middle of the 20th century (Hart 1958, 1994), he
did it by criticizing and building on Austin's theory: for example, Hart's theory did not try to reduce
all laws to one kind of rule, but emphasized the varying types and functions of legal rules; and
Hart's theory, grounded partly on the distinction between "obligation" and "being obliged," was
built around the fact that some participants within legal systems "accepted" the legal rules as
reasons for action, above and beyond the fear of sanctions.

36
 4.3.4. A Revisionist View?
Some modern commentators appreciate in Austin elements that were probably not foremost in his
mind (or that of his contemporary readers). For example, one occasionally sees Austin portrayed
as the first "realist": in contrast both to the theorists that came before Austin and to some modern
writers on law, Austin is seen as having a keener sense of the connection of law and power, and
the importance of keeping that connection at the forefront of analysis. (cf. Cotterrell 1989: pp. 57-
79) When circumstances seem to warrant a more critical, skeptical or cynical approach to law and
government, Austin's equation of law and force will be attractive - however distant such a reading
may be from Austin's own liberal-utilitarian views at the time of his writing, and his even more
conservative political views later in his life (Hamburger, 1985).

37
5. Kelsen and Hart’s Legal Positivism and Critique of Positivism

5.1. Hans Kelsen: The Pure Theory of Law

The idea of a Pure Theory of Law was propounded by the Austrian jurist and philosopher Hans
Kelsen (1881-1973. Kelsen began his long career as a legal theorist at the beginning of the 20th
century. The traditional legal philosophies at the time were, Kelsen claimed, hopelessly
contaminated with political ideology and moralizing on the one hand or with attempts to reduce
the law to natural or social sciences on the other hand. He found both of these reductionist
endeavours seriously flawed.

Instead, Kelsen suggested a ‘pure’ theory of law which would avoid reductionism of any kind. The
jurisprudence Kelsen propounded “characterizes itself as a ‘pure’ theory of law because it aims at
cognition focused on the law alone”, and this purity serves as its “basic methodological principle.”

This anti-reductionism is both methodological and substantive. Kelsen firmly believed that if the
law is to be considered a unique normative practice, methodological reductionism should be
avoided entirely. But this approach is not only a matter of method. Reductionism should be avoided
because the law is a unique phenomenon, quite separate from morality and nature.

5.1.1. The Basic Norm

The law, according to Kelsen, is a system of norms. Norms are ‘ought’ statements prescribing
certain modes of conduct. Unlike moral norms, however, Kelsen maintained that legal norms are
created by acts of will. They are products of deliberate human action. For instance, some people
gather in a hall, speak, raise their hands, count them, and promulgate a string of words. These are
actions and events taking place at a specific time and space. To say that what we have described
here is the enactment of a law, is to interpret these actions and events by ascribing a normative
significance to them.

Kelsen, however, firmly believed in Hume's distinction between ‘is’ and ‘ought’, and in the
impossibility of deriving ‘ought’ conclusions from factual premises alone. Thus Kelsen believed
that the law, which is comprised of norms or ‘ought’ statements, cannot be reduced to those natural
actions and events which give rise to it. The gathering, speaking and raising of hands, in itself, is
not the law; legal norms are essentially ‘ought’ statements, and as such, they cannot be deduced
from factual premises alone.

38
How is it possible, then, to ascribe an ‘ought’ to those actions and events which purport to create
legal norms? Kelsen's reply is enchantingly simple: we ascribe a legal ‘ought’ to such norm-
creating acts by, ultimately, presupposing it. Since ‘ought’ cannot be derived from ‘is’, and since
legal norms are essentially ‘ought’ statements, there must be some kind of an ‘ought’
presupposition in the background, rendering the normativity of law intelligible.

As opposed to moral norms, which, according to Kelsen, are typically deduced from other moral
norms by syllogism (e.g., from general principles to more particular ones), legal norms are always
created by acts of will. Such an act can only create law, however, if it is in accord with another
‘higher’ legal norm that authorizes its creation in that way. The ‘higher’ legal norm, in turn, is
valid only if it has been created in accordance with yet another, even ‘higher’ legal norm that
authorizes its enactment.

Ultimately, Kelsen argued, one must reach a point where the authorizing norm is no longer the
product of an act of will but is simply presupposed, and this is what Kelsen called the Basic Norm.
More concretely, Kelsen maintained that in tracing back such a ‘chain of validity’, one would
reach a point where a ‘first’ historical constitution is the basic authorizing norm of the rest of the
legal system, and the Basic Norm is the presupposition of the validity of that first constitution.

Kelsen attributed two main explanatory functions to the Basic Norm: (i) it explains both the unity
of a legal system and (ii) the reasons for the legal validity of norms. Apparently, Kelsen believed
that these two ideas are very closely related since he seems to have maintained that the legal
validity of a norm and its membership in a given legal system are basically the same thing.
Furthermore, Kelsen argued that every two norms that derive their validity from a single basic
norm necessarily belong to the same legal system and vice versa. So, all legal norms of a given
legal system derive their validity from one basic norm.

It is widely acknowledged that Kelsen erred in these assumptions about the unity of legal systems.
Generally speaking, in spite of the considerable interest in Kelsen's theory of legal systems and
their unity that derives from a single Basic Norm, critics have shown that this aspect of Kelsen's
theory is refutable. Although it is certainly true that the law always comes in systems, the unity of
the system and its separation from other systems is almost never as neat as Kelsen assumed. [see
Raz, ‘Kelsen's Theory of the Basic Norm’.]

39
However, the role of the Basic Norm in explaining the normativity of law is crucially important.
The presupposition of the Basic Norm as the condition of validity of legal norms marks Kelsen's
theory as ‘pure’, and distinguishes it from other theories in the Legal Positivist tradition.
Contemporary legal positivists have traditionally accounted for the normativity of law in terms of
social facts: people tend to perceive of the legal norms in their community as valid because,
ultimately, there are certain social conventions, or Rules of Recognition in H.L.A. Hart's
terminology, that determine who is authorized to make law and how law making is to be done. But
this is precisely the kind of reductionism that the Pure Theory strives to deny. Kelsen was
convinced that any attempt to ground the law's normativity, namely, its ‘ought’ aspect, is doomed
to failure if it is only based on facts, whether those facts are natural or social. Once again, to
account for an ‘ought’ conclusion, one needs some ‘ought’ in the premises. Therefore, Kelsen
thought that the normativity of law, as a genuine ‘ought’, must ultimately be presupposed.

Common wisdom has it that in this kind of reasoning, Kelsen self-consciously employs a Kantian
Transcendental argument to establish the necessary presupposition of the Basic Norm. Thus, the
argument takes the following form:

 P.
 P is possible only if Q.
 Therefore, Q.

In Kelsen's case, P stands for the fact that legal norms are ‘ought’ statements, and Q is the
presupposition of the Basic Norm. Furthermore, commentators have pointed out that just as Kant's
epistemology is an attempt to find the middle way between dogmatic Rationalism and sceptical
Empiricism, Kelsen's pure theory of law is an attempt to find a middle way between Natural Law's
dogmatism and Positivism's reduction of law to the social sciences. [See Paulson, Introduction]
But it is worth keeping in mind that Kelsen's argument about the Basic Norm is an explicitly
shallow form of Kantian epistemology. The Kantian categories and modes of perception are not
optional; they form a deep, universal, and necessary feature of rational cognition. One should recall
that it is Humean skepticism that Kant strove to answer. Kelsen, however, remains Humean
through and through, Kantian influences notwithstanding. First, Kelsen was very sceptical about
any objectivist moral theory, Kant's included. Second, Kelsen does not claim that the
presupposition of the Basic Norm is a necessary feature, or category, of rational cognition. The

40
Basic Norm is an ‘ought’ presumption and, as such, optional. It is not necessary for anyone to
accept the Basic Norm. The Basic Norm is necessarily presupposed only by those who accept the
‘ought’, namely, the normativity, of the law. Likewise, those who believe in the normativity of a
religious order must presuppose a Basic Norm that ‘one ought to obey God's commands’. But in
both cases, there is nothing in the nature of things which would compel any particular person to
adopt such a normative perspective. Kelsen's argument does not rule out atheism or anarchism.
However, even the anarchist, Kelsen maintained, must presuppose the Basic Norm if she is to
account for the normativity of law. But again, this presupposition is only an intellectual tool, not
a normative commitment, and as the latter, it is entirely optional.

5.1.2. The Normativity of Law

This analogy between law and religion, on which Kelsen often dwells, is more limited than it first
appears, however. The normativity of religion, like that of morality, does not depend on the actual
obedience of their respective subjects. For those, for example, who presuppose the basic norm of
Christianity, the latter would be valid even if there are no other Christians around. But this, as
Kelsen explicitly admits, is not the case with law. The validity of a legal system partly, but
crucially, depends on its actual practice: “A legal order is regarded as valid if its norms are by and
large effective (that is, actually applied and obeyed).”

Furthermore, the actual content of the Basic Norm depends on its ‘effectiveness’. As Kelsen
repeatedly argued, a successful revolution brings about a radical change in the content of the Basic
Norm. Suppose, for example, that in a given legal system the Basic Norm is that the constitution
enacted by Rex One is binding. At a certain point, a coup d'etat takes place and a republican
government is successfully installed. At this point, Kelsen admits, “one presupposes a new basic
norm, no longer the basic norm delegating law making authority to the monarch, but a basic norm
delegating authority to the revolutionary government.”

This is very problematic, however, since it raises the suspicion that Kelsen has violated his own
categorical injunction against deriving ‘ought’ from ‘is’. Kelsen was not unaware of the difficulty.
In the first edition of the Pure Theory of Law, he suggests the solution to this problem by
introducing international law as the source of validity for changes in the basic norms of municipal
legal systems. It follows from the basic norm of international law Kelsen maintains that state
sovereignty is determined by successful control over a given territory. Therefore, the changes in

41
the basic norm which stem from successful revolutions can be accounted for in legalistic terms,
relying on the dogmas of international law.

The price Kelsen had to pay for this solution, however, is rather high: he was compelled to claim
that all municipal legal systems derive their validity from international law, and this entails that
there is only one Basic Norm in the entire world, namely, the Basic Norm of public international
law.

Although this solution is repeated in the second edition of the Pure Theory of Law, Kelsen
presented it there with much more hesitation, perhaps just as an option which would make sense.
It is not quite clear whether Kelsen really adhered to it. The hesitation is understandable; after all,
the idea that municipal legal systems derive their legal validity from international law would strike
most jurists and legal historians as rather fanciful and anachronistic. (We should recall that the
development of international law is a relatively recent phenomenon in the history of law.)

So we are back to the question of how ‘pure’ Kelsen's theory really is if it is conceded that the
content of the Basic Norm is basically determined by social practice. The answer depends on how
we construe the explanatory function of the Basic Norm: Neither Kelsen nor his critics seem to
have been careful to distinguish between the role of the Basic Norm in answering the question of
how we identify the law as such and in answering the question of law's normativity. An answer to
the question of what counts as law or as law-creating acts in a given community cannot be detached
from practice, namely, social conventions. The social conventions prevalent in any given
community determine, ultimately, what counts as law in that community.

On the other hand, Kelsen is right to insist that social conventions, by themselves, could not explain
the ‘ought’ which is inherent in law as a normative system. Such an ‘ought’ cannot be constituted
by the conventions. Social conventions can only determine what the practice is, and how one would
go about in engaging in it; conventions cannot determine that one ought to engage in the practice.

Consider, for example, the analogy of a structured game, like chess. What chess is, and how one
should play the game, are determined by its constitutive rules or conventions. Those rules which
constitute the game of chess, however, cannot provide anyone with a complete reason to play the
game. The normativity of the game is conditional; it depends on a prior reason, or commitment, to
play the game. We cannot say, for example, that one “ought to move the bishop diagonally” unless
we assume that the agent wants to play chess. The fact that the rules of chess require the players

42
to move the bishop diagonally is not, in itself, a reason for doing so, unless, again, it is assumed
that it is chess that one wants to play. Now, it is precisely this kind of assumption that the Basic
Norm is there to capture. Just as the normativity of chess could not be explained without
presupposing, as it were, that the players want to engage in that particular game, so the normativity
of law must be premised on the Basic Norm.

Thus, it would seem that Kelsen's anti-reductionism is only partly successful. The explanatory role
of the Basic Norm must be confined to the normativity of law. But in order to explain what counts
as law and how law is identified and distinguished from other normative practices, the Basic Norms
is not sufficient; one must refer to the social conventions which prevail in the relevant community.

None of this means, however, that Kelsen's account of the normativity of law is unproblematic.
There are two main problems that may be worth exploring. First, Kelsen has never made it quite
clear whether he maintains that the ‘ought’ which is presupposed in the legal domain is the same
kind of ‘ought’ which would be characteristic of morality or, indeed, any other normative domain.
Kelsen seems to have faced a dilemma here which would not be easy to resolve. On the one hand,
he wanted to avoid the mistake which he attributed to the Natural Law tradition of reducing the
normativity of law to moral ‘ought’. Kelsen has repeatedly argued that Natural Law, which would
reduce the legal ‘ought’ to moral ‘ought’ fails because it can only achieve an account of the
normativity of law at the expense of missing its target: If the only notion of validity is a moral one,
we are left with no room for the concept of legal validity. Natural Law, as Kelsen understood it,
does not make any allowance for the possibility that a norm is legally valid but morally wrong.
Would this imply, then, that the kind of ‘ought’ which is presupposed by the Basic Norm is
somehow different from moral ‘ought’? And what would the difference consist in? One should
bear in mind that Kelsen thought that the normativity of morality, like that of religion or any other
normative domain, is also ‘presupposed’. So here is the dilemma: either Kelsen maintains that the
legal ‘ought’ and moral ‘ought’ are two different kinds of ‘ought’ (which, I think, is the stance he
adopted in his earlier writings), but then it would be very difficult to explain what the difference
consists in, given that both kinds of ‘ought’ are simply presupposed; or else, Kelsen would have
to maintain that the moral and legal ‘ought’ are basically the same, in which case, he would be
hard pressed to explain how he avoids the same kind of mistake which he attributed to the Natural
Law tradition.

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Secondly, and perhaps this is part of the reason for the former confusion, Kelsen's account of the
normativity of law is seriously impeded by his Humean scepticism about the objectivity of
morality, justice, or any other evaluative scheme. The view one gets, especially from Kelsen's later
writings, is that there are countless potential normative systems, like morality, law, religion, etc.,
that one can either accept or not just by presupposing their respective Basic Norms. But without
any rational or objective grounding of such evaluative systems, the choice of any Basic Norm
remains rather whimsical, devoid of any reason. It is difficult to understand how normativity can
really be explained on the basis of such rationally groundless choices.

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 5.2. H.L.A. Hart's Legal Positivism
In his 1961 book, The Concept of Law, H.L.A. Hart presents his theory of legal positivism—the
view that laws are rules made by humans and that there is no inherent or necessary connection
between law and morality—within the framework of analytic philosophy. The book addresses a
number of traditional jurisprudential topics, such as the nature of law, whether laws are rules and
the relation between law and morality.

Hart sought to provide a theory of descriptive sociology and analytical jurisprudence. He places
law into a social context while at the same time leaving the capability for rigorous analysis of legal
terms, which in effect “awakened English jurisprudence from its comfortable slumbers”.

Hart's book is usually the main point of reference for teaching analytical jurisprudence and, along
with Kelsen’s The Pure Theory of Law and General Theory of Law and State, the starting point
for jurisprudential research in the analytic tradition.

5.2.1. Background
The Concept of Law emerged from Hart's initial lectures as Oxford Professor of Jurisprudence
following Arthur Goodhart's retirement in 1952. Among Hart's early lectures on law that are
expanded in the book is his 1953 essay titled "Definition and Theory in Jurisprudence."

Hart's discussion of Austin's legal positivism, the separation of law and morality, and the open
texture of legal rules can be seen in his April 1957 presentation of the Oliver Wendell Holmes
Lecture at Harvard Law School titled "Positivism and the Separation of Law and Morals." The
book developed a sophisticated view of legal positivism.

Among the ideas developed in the book are:

 A critique of John Austin's theory that law is the command of the sovereign backed by
sanction.
 A distinction between primary and secondary legal rules, where a primary rule governs
conduct and a secondary rule allows the creation, alteration, or extinction of primary rules.
 A distinction between the internal and external points of view of law and rules, close to
(and influenced by) Max Weber's distinction between the sociological and the legal
perspectives of law. The idea of the rule of recognition is a social rule that differentiates

45
 between those norms that have the authority of law and those that do not. Hart viewed the
rule of recognition as an evolution from Hans Kelsen's 'basic norm' (German: Grundnorm).
 A reply to Ronald Dworkin, who criticized legal positivism in general and especially Hart's
account of law in Taking Rights Seriously, A Matter of Principle, and Law's Empire.

5.2.2. Harts Approach

A. Persistent questions

Hart begins The Concept of Law with a chapter titled “Persistent Questions.” In the chapter, he
lays out what he describes as “three recurrent issues.” He asks the following recurring three
questions for legal theory:

(1) How does law differ from and how is it related to orders backed by threats?
(2) How does legal obligation differ from, and how is it related to, moral obligation?
(3) What are rules and to what extent is law an affair of rules?"

B. Criticism of Austin's "Command Theory"

The starting point for the discussion is Hart's dissatisfaction with John Austin's “command theory”:
the jurisprudential concept that holds that law is command backed by threat and is meant to be
ubiquitous in its application. Hart likens Austin's theory to the role of a gunman in a bank and tries
to establish the differences between the gunman's orders and those made by law. (For instance, the
gunman forces us to obey but we may not feel inclined to obey him. Presumably, obedience to the
law comes with a different feeling.)

Hart identifies three such important differences:

Content - In terms of content, not all laws are imperative or coercive. Some are facilitative,
allowing us to create contracts and other legal relations.

Origin - In terms of origin, not all laws are commands of a sovereign backed by sanctions. Some
are rules made by the people themselves, such as customary rules or constitutional rules.

Range - In terms of range, not all laws are general and abstract. Some are particular and concrete,
such as judicial decisions or administrative orders.

Austin believed that every legal system had to have a sovereign who creates the law (origin) while
remaining unaffected by it (range), such as the bank scene's gunman, who is the only source of

46
commands and who is not subject to other's commands. Hart argues that this is an inaccurate
description of law, noting that laws may have several sources and legislators are very often subject
to the laws they create. Hart lets us know that laws are much broader in scope than coercive orders,
contrary to the "command theory" of Austin. Frequently laws are enabling and so allow citizens
to carry out authoritative acts such as the making of wills or contracts which have legal effect.

C. Social Habits and Rules

Hart draws a distinction between a social habit (which people follow habitually but where breaking
the habit does not bring about opprobrium - going to the cinema on Thursday, for example) and a
social rule (where breaking the rule is seen as wrong - neglecting to take off one's hat upon entering
a church, for example). We feel, in some sense, bound by social rules, and laws frequently appear
to be types of social rule.

There are two perspectives to this:

(1) The external aspect, which is the independently observable fact that people do tend
to obey the rule with regularity, and
(2) The internal aspect, which is the feeling by an individual of being in some sense
obligated to follow the rule, otherwise known as the critical reflective attitude.

It is from this internal sense that the law acquires its normative quality. The obedience by the
populace of a rule is called efficacy. No law can be said to be efficacious unless followed by the
majority of the populace. Though an average citizen in a modern state with a developed legal
system may feel the internal aspect and be compelled to follow the laws, it is more important for
the officials of the society/peoples to have the internal aspect since it is up to them to follow the
constitutional provisions which, if they wish, they could ignore without accountability. Yet, the
officials must use the internal aspect and accept the standards as guiding their behaviour in addition
to also guiding the behaviour of other officials.

5.2.3. Hart's Empirical Legal System in The Concept of Law

Hart believed law is the union of primary rules (rules of conduct) and secondary rules (empowering
rules).

A. Primary rules

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Primary rules are rules, or laws, that govern general societal conduct. Thus, primary rules construct
legal obligations and consequences when they are disobeyed. A good example of a primary rule is
the law against murder. It prohibits a person from killing and attaches consequences for
committing, attempting to commit, and conspiring to commit the crime.

B. Secondary rules

Secondary rules confer the power to create sovereignty. They also confer the power to change,
modify, or enforce primary (and secondary) rules.

Secondary rules combat the three major issues of legal systems that primary rules can't–

(1) uncertainty of the law,

(2) inefficiency of the law, and
(3) static quality of the law.

Each kind of secondary rule addresses a separate one of those three issues, yet all are
interdependent. Hart separates secondary rules into three types–the rules of recognition, the rules
of change, and the rules of adjudication.

i. Rules of recognition

Hart states that the remedy for the uncertainty of the regime of primary rules is a rule of
recognition. The rule of recognition is a collection of standards and requisites that govern the
validity of all rules. Thus, the rule of recognition confers power to new rules by validating them.
For a rule to be valid, it must be recognized as passing all the tests provided by the rule of
recognition.

ii. Rules of change

There are no legal systems that can be classified as pareto optimal. The next best thing is to make
sure that the system does not remain at a static quality but instead is dynamic and progressive. The
remedy for the static quality of the regime of primary rules are rules of change. Generally, rules of
change confer and prohibit power of the creation, extinction and alteration of primary and
secondary rules.

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Rules of change range in complexity: “The powers conferred may be unrestricted or limited in
various ways: and the rules may, besides specifying the persons who are to legislate, define in
more or less rigid terms the procedure to be followed in legislation.”

Hart emphasizes the “close connection between the rules of change and the rules of recognition.”
Where rules of change exist, rules of recognition “will necessarily incorporate a reference to
legislation as an identifying feature of the rules, though it need not refer to all the details of the
procedure involved in legislation.”

iii. Rules of adjudication

Rules of adjudication were intended to remedy the inefficiency of its diffused social pressure.
Rules of adjudication empower individuals to make authoritative determinations of the question
of whether, on a particular occasion, a primary rule has been broken. Rules of adjudication govern
the election and procedure of the judiciary. However, intermingled with who adjudicates is what
laws they adjudicate. Under that logic, rules of adjudication, like rules of change, must also be
supplemented by rules of recognition of some sort. Thus, “the rule which confers jurisdiction will
also be a rule of recognition, identifying the primary rules through the judgments of the courts,
and these judgments will become a 'source' of law.”

5.3. Critique of Positivism

5.3.1. Moral Principles and the Boundaries of Law
The most influential criticisms of legal positivism all flow, in one way or another, from the
suspicion that it fails to give morality its due. A theory that insists on the facticity of law seems to
contribute little to our understanding that law has important functions in making human life go
well, that the rule of law is a prized ideal, and that the language and practice of law is highly
moralized. Accordingly, positivism's critics maintain that the most important features of law are
not to be found in its source-based character, but in law's capacity to advance the common good,
to secure human rights, or to govern with integrity. (It is a curious fact about anti-positivist theories
that, while they all insist on the moral nature of law, without exception they take its moral nature
to be something good. The idea that law might of its very nature be morally problematic does not
seem to have occurred to them.)

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It is beyond doubt that moral and political considerations bear on legal philosophy. As Finnis says,
the reasons we have for establishing, maintaining or reforming law include moral reasons, and
these reasons therefore shape our legal concepts (p. 204). But which concepts? Once one concedes,
as Finnis does, that the existence and content of law can be identified without recourse to moral
argument, and that “human law is artefact and artifice; and not a conclusion from moral premises,”
(p. 205) the Thomistic apparatus he tries to resuscitate is largely irrelevant to the truth of legal
positivism. This vitiates also Lon Fuller's criticisms of Hart (Fuller, 1958 and 1969). Apart from
some confused claims about adjudication, Fuller has two main points. First, he thinks that it isn't
enough for a legal system to rest on customary social rules, since law could not guide behavior
without also being at least minimally clear, consistent, public, prospective and so on -- that is,
without exhibiting to some degree those virtues collectively called “the rule of law.” It suffices to
note that this is perfectly consistent with law being source-based. Even if moral properties were
identical with, or supervened upon, these rule-of-law properties, they do so in virtue of their rule-
like character, and not their law-like character. Whatever virtues inhere in or follow from clear,
consistent, prospective, and open practices can be found not only in law but in all other social
practices with those features, including custom and positive morality. And these virtues are minor:
there is little to be said in favour of a clear, consistent, prospective, public and impartially
administered system of racial segregation, for example. Fuller's second worry is that if law is a
matter of fact, then we are without an explanation of the duty to obey. He gloatingly asks how “an
amoral datum called law could have the peculiar quality of creating an obligation to obey it”
(Fuller, 1958). One possibility he neglects is that it doesn't. The fact that law claims to obligate is,
of course, a different matter and is susceptible to other explanations (Green 2001). But even if
Fuller is right in his unargued assumption, the “peculiar quality” whose existence he doubts is a
familiar feature of many moral practices. Compare promises: whether a society has a practice of
promising, and what someone has promised to do, are matters of social fact. Yet promising creates
moral obligations of performance or compensation. An “amoral datum” may indeed figure,
together with other premises, in a sound argument to moral conclusions.

While Finnis and Fuller's views are thus compatible with the positivist thesis, the same cannot be
said of Ronald Dworkin's important works (Dworkin 1978 and 1986). Positivism's most significant
critic rejects the theory on every conceivable level. He denies that there can be any general theory
of the existence and content of law; he denies that local theories of particular legal systems can

50
identify law without recourse to its merits, and he rejects the whole institutional focus of
positivism. A theory of law is for Dworkin a theory of how cases ought to be decided and it begins,
not with an account of political organization, but with an abstract ideal regulating the conditions
under which governments may use coercive force over their subjects. Force must only be deployed,
he claims, in accordance with principles laid down in advance. A society has a legal system only
when, and to the extent that, it honors this ideal, and its law is the set of all considerations that the
courts of such a society would be morally justified in applying, whether or not those considerations
are determined by any source. To identify the law of a given society we must engage in moral and
political argument, for the law is whatever requirements are consistent with an interpretation of its
legal practices (subject to a threshold condition of fit) that shows them to be best justified in light
of the animating ideal. In addition to those philosophical considerations, Dworkin invokes two
features of the phenomenology of judging, as he sees it. He finds deep controversy among lawyers
and judges about how important cases should be decided, and he finds diversity in the
considerations that they hold relevant to deciding them. The controversy suggests to him that law
cannot rest on an official consensus, and the diversity suggests that there is no single social rule
that validates all relevant reasons, moral and non-moral, for judicial decisions.

Dworkin's rich and complex arguments have attracted various lines of reply from positivists. One
response denies the relevance of the phenomenological claims. Controversy is a matter of degree,
and a consensus-defeating amount of it is not proved by the existence of adversarial argument in
the high courts, or indeed in any courts. As important is the broad range of settled law that gives
rise to few doubts and which guides social life outside the courtroom. As for the diversity
argument, so far from being a refutation of positivism, this is an entailment of it. Positivism
identifies law, not with all valid reasons for decision, but only with the source-based subset of
them. It is no part of the positivist claim that the rule of recognition tells us how to decide cases,
or even tells us all the relevant reasons for decision. Positivists accept that moral, political or
economic considerations are properly operative in some legal decisions, just as linguistic or logical
ones are. Modus ponens holds in court as much as outside, but not because it was enacted by the
legislature or decided by the judges, and the fact that there is no social rule that validates both
modus ponens and also the Municipalities Act is true but irrelevant. The authority of principles of
logic (or morality) is not something to be explained by legal philosophy; the authority of acts of
Parliament must be; and accounting for the difference is a central task of the philosophy of law.

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Other positivists respond differently to Dworkin's phenomenological points, accepting their
relevance but modifying the theory to accommodate them. So-called “inclusive positivists” (e.g.,
Waluchow (to whom the term is due), Coleman, Soper and Lyons) argue that the merit-based
considerations may indeed be part of the law, if they are explicitly or implicitly made so by source-
based considerations. For example, Canada's constitution explicitly authorizes for breach of
Charter rights, “such remedy as the court considers appropriate and just in the circumstances.” In
determining which remedies might be legally valid, judges are thus expressly told to take into
account their morality. And judges may develop a settled practice of doing this whether or not it
is required by any enactment; it may become customary practice in certain types of cases.
Reference to moral principles may also be implicit in the web of judge-made law, for instance in
the common law principle that no one should profit from his own wrongdoing. Such moral
considerations, inclusivists claim, are part of the law because the sources make it so, and thus
Dworkin is right that the existence and content of law turns on its merits, and wrong only in his
explanation of this fact. Legal validity depends on morality, not because of the interpretative
consequences of some ideal about how the government may use force, but because that is one of
the things that may be customarily recognized as an ultimate determinant of legal validity. It is the
sources that make the merits relevant.

To understand and assess this response, some preliminary clarifications are needed. First, it is not
plausible to hold that the merits are relevant to a judicial decision only when the sources make it
so. It would be odd to think that justice is a reason for decision only because some source directs
an official to decide justly. It is of the nature of justice that it properly bears on certain
controversies. In legal decisions, especially important ones, moral and political considerations are
present of their own authority; they do not need sources to propel them into action. On the contrary,
we expect to see a source in a statute, a decision, or a convention when judges are constrained not
to appeal directly to the merits. Second, the fact that there is moral language in judicial decisions
does not establish the presence of moral tests for law, for sources come in various guises. What
sounds like moral reasoning in the courts is sometimes really source-based reasoning. For example,
when the Supreme Court of Canada says that a publication is criminally “obscene” only if it is
harmful, it is not applying J.S. Mill's harm principle, for what that court means by “harmful” is
that it is regarded by the community as degrading or intolerable. Those are source-based matters,
not moral ones. This is just one of many appeals to positive morality, i.e. to the moral customs

52
actually practised by a given society, and no one denies that positive morality may be a source of
law. Moreover, it is important to remember that law is dynamic and that even a decision that does
apply morality itself becomes a source of law, in the first instance, for the parties and possibly for
others as well. Over time, by the doctrine of precedent where it exists or through the gradual
emergence of an interpretative convention where it does not, this gives a factual edge to normative
terms. Thus, if a court decides that monetary damages are, in some instances, not a “just remedy”,
then this fact will join with others in fixing what “justice” means for these purposes. This process
may ultimately detach legal concepts from their moral analogues (thus, legal “murder” may require
no intention to kill, legal “fault” no moral blameworthiness, an “equitable” remedy may be
manifestly unfair, etc.)

Bearing in mind these complications, however, there undeniably remains a great deal of moral
reasoning in adjudication. Courts are often called on to decide what would be reasonable, fair, just,
cruel, etc., by explicit or implicit requirement of statute or common law, or because this is the only
proper or intelligible way to decide. Hart sees this as happening pre-eminently in hard cases in
which, owing to the indeterminacy of legal rules or conflicts among them, judges are left with the
discretion to make new law. “Discretion,” however, may be a potentially misleading term here.
First, discretionary judgments are not arbitrary: they are guided by merit-based considerations, and
they may also be guided by law even though not fully determined by it -- judges may be
empowered to make certain decisions and yet under a legal duty to make them in a particular way,
say, in conformity with the spirit of pre-existing law or with certain moral principles (Raz 1994,
pp. 238-53). Second, Hart's account might wrongly be taken to suggest that there are fundamentally
two kinds of cases, easy ones and hard ones, distinguished by the sorts of reasoning appropriate to
each. A more perspicuous way of putting it would be to say that there are two kinds of reasons
that are operative in every case: source-based reasons and non-source-based reasons. Law
application and law creation are continuous activities for, as Kelsen correctly argued, every legal
decision is partly determined by law and partly underdetermined: “The higher norm cannot bind
in every direction the act by which it is applied. There must always be more or less room for
discretion, so that the higher norm in relation to the lower one can only have the character of a
frame to be filled by this act” (1967, p. 349). This is a general truth about norms. There are
infinitely many ways of complying with a command to “close the door” (quickly or slowly, with
one's right hand or left, etc.) Thus, even an “easy case” will contain discretionary elements.

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Sometimes, such residual discretion is of little importance; sometimes, it is central, and a shift
from marginal to major can happen in a flash with changes in social or technological
circumstances. That is one of the reasons for rejecting a strict doctrine of separation of powers --
Austin called it a “childish fiction” -- according to which judges only apply and never make the
law, and with it any literal interpretation of Dworkin's ideal that coercion be deployed only
according to principles laid down in advance.

It has to be said, however, that Hart himself does not consistently view legal references to morality
as marking a zone of discretion. In a passing remark in the first edition of The Concept of Law, he
writes, “In some legal systems, as in the United States, the ultimate criteria of legal validity
explicitly incorporate principles of justice or substantive moral values …” (1994, p. 204). This
thought sits uneasily with other doctrines of importance to his theory. For Hart also says that when
judges exercise moral judgment in the penumbra of legal rules to suppose that their results were
already part of existing law is “in effect, an invitation to revise our concept of what a legal rule is
…” (1958, p. 72). The concept of a legal rule, that is, does not include all correctly reasoned
elaborations or determinations of that rule. Later, however, Hart comes to see his remark about the
U.S. constitution as foreshadowing inclusive positivism (“soft positivism,” as he calls it). Hart's
reasons for this shift are obscure (Green 1996). He remained clear about how we should understand
ordinary statutory interpretation, for instance, where the legislature has directed that an applicant
should have a “reasonable time” or that a regulator may permit only a “fair price:” these grant a
bounded discretion to decide the cases on their merits. Why then does Hart -- and even more
insistently, Waluchow and Coleman -- come to regard constitutional adjudication differently? Is
there any reason to think that a constitution permitting only a “just remedy” requires a different
analysis than a statute permitting only a “fair rate?”

One might hazard the following guess. Some of these philosophers think that constitutional law
expresses the ultimate criteria of legal validity: because unjust remedies are constitutionally invalid
and void ab initio, legally speaking they never existed (Waluchow). That being so, morality
sometimes determines the existence or content of law. If this is the underlying intuition, it is
misleading, for the rule of recognition is not to be found in constitutions. The rule of recognition
is the ultimate criterion (or set of criteria) of legal validity. If one knows what the constitution of
a country is, one knows some of its law; but one may know what the rule of recognition is without
knowing any of its laws. You may know that acts of the Bundestag are a source of law in Germany
54
but not be able to name or interpret a single one of them. And constitutional law is itself subject to
the ultimate criteria of systemic validity. Whether a statute, decision or convention is part of a
country's constitution can only be determined by applying the rule of recognition. The provisions
of the 14th Amendment to the U.S. constitution, for example, are not the rule of recognition in the
U.S., for there is an intra-systemic answer to the question why that Amendment is valid law. The
U.S. constitution, like that of all other countries, is law only because it was created in ways
provided by law (through amendment or court decision) or in ways that came to be accepted as
creating law (by constitutional convention and custom). Constitutional cases thus raise no
philosophical issue not already present in ordinary statutory interpretation, where inclusive
positivists seem content with the theory of judicial discretion. It is, of course, open to them to adopt
a unified view and treat every explicit or implicit legal reference to morality -- in cases, statutes,
constitutions, and customs -- as establishing moral tests for the existence of law. (Although at that
point it is unclear how their view would differ from Dworkin's.) So we should consider the wider
question: why not regard as law everything referred to by law?

Exclusive positivists offer three main arguments for stopping at social sources. The first and most
important is that it captures and systematizes distinctions we regularly make and that we have good
reason to continue to make. We assign blame and responsibility differently when we think that a
bad decision was mandated by the sources than we do when we think that it flowed from a judge's
exercise of moral or political judgement. When considering who should be appointed to the
judiciary, we are concerned not only with their acumen as jurists, but also with their morality and
politics--and we take different things as evidence of these traits. These are deeply entrenched
distinctions, and there is no reason to abandon them.

The second reason for stopping at sources is that this is demonstrably consistent with key features
of law's role in practical reasoning. The most important argument to this conclusion is due to Raz
(1994, pp. 210-37). For a related argument see Shapiro. For criticism see Perry, Waluchow,
Coleman 2001, and Himma.) Although law does not necessarily have legitimate authority, it lays
claim to it, and can intelligibly do so only if it is the kind of thing that could have legitimate
authority. It may fail, therefore, in certain ways only, for example, by being unjust, pointless, or
ineffective. But law cannot fail to be a candidate authority, for it is constituted in that role by our
political practices. According to Raz, practical authorities mediate between subjects and the
ultimate reasons for which they should act. Authorities' directives should be based on such reasons,
55
and they are justified only when compliance with the directives makes it more likely that people
will comply with the underlying reasons that apply to them. But they can do that only if is possible
to know what the directives require independent of appeal to those underlying reasons. Consider
an example. Suppose we agree to resolve a dispute by consensus, but that after much discussion
find ourselves in disagreement about whether some point is in fact part of the consensus view. It
will do nothing to say that we should adopt it if it is indeed properly part of the consensus. On the
other hand, we could agree to adopt it if it were endorsed by a majority vote, for we could determine
the outcome of a vote without appeal to our ideas about what the consensus should be. Social
sources can play this mediating role between persons and ultimate reasons, and because the nature
of law is partly determined by its role in giving practical guidance, there is a theoretical reason for
stopping at source-based considerations.

The third argument challenges an underlying idea of inclusive positivism, what we might call the
Midas Principle. “Just as everything King Midas touched turned into gold, everything to which
law refers becomes law … ” (Kelsen 1967, p. 161). Kelsen thought that it followed from this
principle that “It is … possible for the legal order, by obliging the law-creating organs to respect
or apply certain moral norms or political principles or opinions of experts to transform these norms,
principles, or opinions into legal norms, and thus into sources of law” (Kelsen 1945, p. 132).
(Though he regarded this transformation as effected by a sort of tacit legislation.) If sound, the
Midas Principle holds in general and not only with respect to morality, as Kelsen makes clear.
Suppose then that the Income Tax Act penalizes overdue accounts at 8% per annum. In a relevant
case, an official can determine the content of a legal obligation only by calculating compound
interest. Does this make mathematics part of the law? A contrary indication is that it is not subject
to the rules of change in a legal system -- neither courts nor legislators can repeal or amend the
law of commutativity. The same holds of other social norms, including the norms of foreign legal
systems. A conflict-of-laws rule may direct a Canadian judge to apply Mexican law in a Canadian
case. The conflicts rule is obviously part of the Canadian legal system. But the rule of Mexican
law is not, for although Canadian officials can decide whether or not to apply it, they can neither
change it nor repeal it, and best explanation for its existence and content makes no reference to
Canadian society or its political system. In like manner, moral standards, logic, mathematics,
principles of statistical inference, or English grammar, though all properly applied in cases, are not
themselves the law, for legal organs have applicative but not creative power over them. The

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inclusivist thesis is actually groping towards an important but different truth. Law is an open
normative system (Raz 1975, pp. 152-54): it adopts and enforces many other standards, including
moral norms and the rules of social groups. There is no warrant for adopting the Midas Principle
to explain how or why it does this.

5.3.2. Law and Its Merits

It may clarify the philosophical stakes in legal positivism by comparing it to a number of other
theses with which it is sometimes wrongly identified and not only by its opponents.

C. The Fallibility Thesis

Law does not necessarily satisfy the conditions by which it is appropriately assessed (Lyons 1984,
p. 63, Hart 1994, pp. 185-6). The law should be just, but it may not be; it should promote the
common good, but sometimes it doesn't; it should protect moral rights, but it may fail miserably.
This we may call the moral fallibility thesis. The thesis is correct, but it is not the exclusive property
of positivism. Aquinas accepts it, Fuller accepts it, Finnis accepts it, and Dworkin accepts it. Only
a crude misunderstanding of ideas like Aquinas's claim that “an unjust law seems to be no law at
all” might suggest the contrary. Law may have an essentially moral character and yet be morally
deficient. Even if every law always does one kind of justice (formal justice; justice according to
law), this does not entail that it does every kind of justice. Even if every law has a prima facie
claim to be applied or obeyed, it does not follow that it has such a claim all things considered. The
gap between these partial and conclusive judgments is all a natural law theory needs to
accommodate the fallibility thesis. It is sometimes said that positivism gives a more secure grasp
on the fallibility of law, for once we see that it is a social construction we will be less likely to
accord it inappropriate deference and better prepared to engage in a clear-headed moral appraisal
of the law. This claim has appealed to several positivists, including Bentham and Hart. But while
this might follow from the truth of positivism, it cannot provide an argument for it. If law has an
essentially moral character then it is obfuscating, not clarifying, to describe it as a source-based
structure of governance.

D. The Separability Thesis

At one point, Hart identifies legal positivism with “the simple contention that it is no sense a
necessary truth that laws reproduce or satisfy certain demands of morality, though in fact they have
often done so” (1994, pp. 185-86). Many other philosophers, encouraged also by the title of Hart's
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famous essay, “Positivism and the Separation of Law and Morals” (1958), treat the theory as the
denial that there is a necessary connection between law and morality – they must be in some sense
“separable” even if not, in fact, separate (Coleman, 1982). The separability thesis is generally
construed so as to tolerate any contingent connection between morality and law, provided only
that it is conceivable that the connection might fail. Thus, the separability thesis is consistent with
all of the following:

(i) moral principles are part of the law;

(ii) law is usually, or even always in fact, valuable;
(iii) the best explanation for the content of a society's laws includes reference to the moral
ideals current in that society; and
(iv) a legal system cannot survive unless it is seen to be, and thus in some measure actually
is, just.

All four claims are counted by the separability thesis as contingent connections only; they do not
hold of all possible legal systems -- they probably don't even hold of all historical legal systems.
As merely contingent truths, it is imagined that they do not affect the concept of law itself. (This
is a defective view of concept formation, but we may ignore that for these purposes.) If we think
of the positivist thesis this way, we might interpret the difference between exclusive and inclusive
positivism in terms of the scope of the modal operator:

 (EP) It is necessarily the case that there is no connection between law and morality.
 (IP) It is not necessarily the case that there is a connection between law and morality.

In reality, however, legal positivism is not to be identified with either thesis, and neither is false.
There are many necessary “connections,” trivial and non-trivial, between law and morality. As
John Gardner notes, legal positivism takes a position only one of them, it rejects any dependence
of the existence of law on its merits (Gardner 2001). And with respect to this dependency relation,
legal positivists are concerned with much more than the relationship between law and morality,
for in the only sense in which they insist on a separation of law and morals, they must insist also-
-and for the same reasons--on a separation of law and economics.

To exclude this dependency relation, however, is to leave intact many other interesting
possibilities. For instance, it is possible that moral value derives from the sheer existence of law
(Raz 1990, 165-70). If Hobbes is right, any order is better than chaos and in some circumstances

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order may be achievable only through positive law. Or perhaps in a Hegelian way every existing
legal system expresses deliberate governance in a world otherwise dominated by chance; law is
the spirit of the community come to self-consciousness. Notice that these claims are consistent
with the fallibility thesis, for they do not deny that these supposedly good things might also bring
evils, such as too much order or the will to power. Perhaps such derivative connections between
law and morality are thought innocuous on the ground that they show more about human nature
than they do about the nature of law. The same cannot be said of the following necessary
connections between law and morality, each of which goes right to the heart of our concept of law:

(1) Necessarily, law deals with moral matters.

Kelsen writes, “Just as natural and positive law govern the same subject-matter, and relate,
therefore, to the same norm-object, namely the mutual relationships of men -- so both also have in
common the universal form of this governance, namely obligation.” (Kelsen 1928, p. 34) This is
a matter of the content of all legal systems. Where there is law there is also morality, and they
regulate the same matters by analogous techniques. Of course to say that law deals with morality's
subject matter is not to say that it does so well, and to say that all legal systems create obligations
is not to endorse the duties so created. This is broader than Hart's “minimum content” thesis
according to which there are basic rules governing violence, property, fidelity, and kinship that
any legal system must encompass if it aims at the survival of social creatures like ourselves (Hart
1994, pp. 193-200). Hart regards this as a matter of “natural necessity” and in that measure is
willing to qualify his endorsement of the separability thesis. But even a society that prefers national
glory or the worship of gods to survival will charge its legal system with the same tasks its morality
pursues, so the necessary content of law is not dependent, as Hart thinks it is, on assuming certain
facts about human nature and certain aims of social existence. He fails to notice that if human
nature and life were different, then morality would be too and if law had any role in that society,
it would inevitably deal with morality's subject matter. Unlike the rules of a health club, law has
broad scope and reaches to the most important things in any society, whatever they may be. Indeed,
our most urgent political worries about law and its claims flow from just this capacity to regulate
our most vital interests, and law's wide reach must figure in any argument about its legitimacy and
its claim to obedience.

(2) Necessarily, law makes moral claims on its subjects.

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The law tells us what we must do, not merely what it would be virtuous or advantageous to do, and
it requires us to act without regard to our individual self-interest but in the interests of other
individuals, or in the public interest more generally (except when law itself permits otherwise).
That is to say, law purports to obligate us. But to make categorical demands that people should act
in the interests of others is to make moral demands on them. These demands may be misguided or
unjustified for law is fallible; they may be made in a spirit that is cynical or half-hearted; but they
must be the kind of thing that can be offered as, and possibly taken as, obligation-imposing
requirements. For this reason, neither a regime of “stark imperatives” (see Kramer, pp. 83-9) nor
a price system would be a system of law, for neither could even lay claim to obligate its subjects.
As with many other social institutions, what law, though its officials, claims determine its character
independent of the truth or validity of those claims. Popes, for example, claim apostolic succession
from St. Peter. The fact that they claim this partly determines what it is to be a Pope, even if it is
a fiction, and even the Pope himself doubts its truth. The nature of law is similarly shaped by the
self-image it adopts and projects to its subjects. To make moral demands on their compliance is to
stake out a certain territory, to invite certain kinds of support and, possibly, opposition. It is
precisely because law makes these claims that doctrines of legitimacy and political obligation take
the shape and importance that they do.

(3) Necessarily, law is justice-apt.

In view of the normative function of law in creating and enforcing obligations and rights, it always
makes sense to ask whether law is just, and where it is found deficient to demand reform. Legal
systems are therefore the kind of thing that is apt for appraisal as just or unjust. This is a very
significant feature of law. Not all human practices are justice-apt. It makes no sense to ask whether
a certain fugue is just or to demand that it become so. The musical standards of fugal excellence
are pre-eminently internal -- a good fugue is a good example of its genre; it should be melodic,
interesting, inventive etc. -- and the further we get from these internal standards the less secure
evaluative judgments about it become. While some formalists flirt with similar ideas about law,
this is in fact inconsistent with law's place amongst human practices. Even if law has internal
standards of merit -- virtues uniquely its own that inhere in its law-like character -- these cannot
preclude or displace its assessment on independent criteria of justice. A fugue may be at its best
when it has all the virtues of fugacity; but law is not best when it excels in legality; law must also
be just. A society may therefore suffer not only from too little of the rule of law, but also from too
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much of it. This does not presuppose that justice is the only, or even the first, virtue of a legal
system. It means that our concern for its justice as one of its virtues cannot be sidelined by any
claim of the sort that law's purpose is to be law, to its most excellent degree. Law stands
continuously exposed to demands for justification, and that too shapes its nature and role in our
lives and culture.

These three theses establish connections between law and morality that are both necessary and
highly significant. Each of them is consistent with the positivist thesis that the existence and
content of law depend on social facts, not on its merits. Each of them contributes to an
understanding of the nature of law. The familiar idea that legal positivism insists on the separability
of law and morality is, therefore, significantly mistaken.

E. The Neutrality Thesis

The necessary content thesis and the justice-aptitude thesis together establish that law is not value-
neutral. Although some lawyers regard this idea as a revelation (and others as provocation), it is,
in fact, banal. The thought that law could be value-neutral does not even rise to falsity -- it is simply
incoherent. Law is a normative system that promotes certain values and represses others. Law is
not neutral between victim and murderer or between owner and thief. When people complain of
the law's lack of neutrality, they are, in fact, voicing very different aspirations, such as the demand
that it be fair, just, impartial, and so forth. A condition of a law's achieving any of these ideals is
that it is not neutral in either its aims or its effects.

Positivism is, however, sometimes more credibly associated with the idea that legal philosophy is
or should be value-neutral. Kelsen, for example, says, “The function of the science of law is not
the evaluation of its subject, but its value-free description” (1967, p. 68), and Hart, at one point,
described his work as “descriptive sociology” (1994, p. v). Since it is well known that there are
convincing arguments for the inalienability of values in the social sciences, those who have taken
on board Quinian holisms, Kuhnian paradigms, or Foucauldian epistemes may suppose that
positivism should be rejected a priori, as promising something that no theory can deliver.

There are complex questions here, but some advance may be made by noticing that Kelsen's
alternatives are a false dichotomy. Legal positivism is indeed not an “evaluation of its subject”,
i.e., an evaluation of the law. And to say that the existence of law depends on social facts does not
commit one to thinking that it is a good thing that this is so. (Nor does it preclude it: see

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MacCormick and Campbell) Thus far, Kelsen is on secure ground. But it does not follow that legal
philosophy, therefore, offers a “value-free description” of its subject. There can be no such thing.
Whatever the relation between facts and values, there is no doubt about the relationship between
descriptions and values. Every description is value-laden. It selects and systematizes only a subset
of the infinite number of facts about its subject. To describe the law as resting on customary social
rules is to omit many other truths about it, including, for example, truths about its connection to
the demand for paper or silk. Our warrant for doing this must rest on the view that the former facts
are more important than the latter. In this way, all descriptions express choices about what is salient
or significant, and these, in turn, cannot be understood without reference to values.

So, legal philosophy, even if not directly evaluating its subject, is nonetheless “indirectly
evaluative” (Dickson, 2001). Moreover, “law” itself is an anthropocentric subject, dependent not
merely on our sensory embodiment but also, as its necessary connections to morality show, on our
moral sense and capacities. Legal kinds, such as courts, decisions, and rules, will not appear in a
purely physical description of the universe and may not even appear in every social description.
(This may limit the prospects for a “naturalized” jurisprudence; though for a spirited defence of
the contrary view, see Leiter)

It may seem, however, that legal positivism at least requires a stand on the so-called “fact-value”
problem. There is no doubt that certain positivists, especially Kelsen, believe this to be so. In
reality, positivism may cohabit with a range of views here -- value statements may be entailed by
factual statements; values may supervene on facts; values may be kind of fact. Legal positivism
requires only that it be in virtue of its facticity rather than its meritoriousness that something is law
and that we can describe that facticity without assessing its merits. In this regard, it is important to
bear in mind that not every kind of evaluative statement would count among the merits of a given
rule; its merits are only those values that could bear on its justification.

Evaluative argument is, of course, central to the philosophy of law more generally. No legal
philosopher can be only a legal positivist. A complete theory of law requires also an account of
what kinds of things could possibly count as merits of law (must law be efficient or elegant as well
as just?); of what role law should play in adjudication (should valid law always be applied?); of
what claim law has on our obedience (is there a duty to obey?); and also of the pivotal questions
of what laws we should have and whether we should have law at all. Legal positivism does not

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aspire to answer these questions, though its claim that the existence and content of law depends
only on social facts does give them shape.

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