Jurisprudence - Positivism Notes 2024 PDF

JURISPRUDENCE PVL3006S University of Cape Town Positivism Notes By Jamie-Lou Ross 2024 POSITIVISM In this module, we will study legal positivism, a tradition that arose in the 19th century in reaction to natural law theory. Its first main protagonist was John Au...

JURISPRUDENCE PVL3006S University of Cape Town Positivism Notes By Jamie-Lou Ross 2024 POSITIVISM In this module, we will study legal positivism, a tradition that arose in the 19th century in reaction to natural law theory. Its first main protagonist was John Austin, but its much-altered modern form is most closely indebted to HLA Hart and Joseph Raz. Introduction Positivism seen as a rival to N law theory. Often thought about as the 2 main traditions in, so called analytical jurisprudence. So perhaps the 2 main competing theories of law. That's the standard image. You've done the one traditional the tradition, natural law. N law has longer history. Now learning about legal positivism, which is more recent. Positivism is more recent and starts with J Austin in 19th cent and mainly associated with anglophone jurisprudence. Arguably arose in reaction to N law and can be understood in contrast to N law. Words of caution You may start to wonder over time whether it really makes sense to contrast these 2 traditions. Each of these traditions has too much diversity within it to helpfully think of it as unitary You also may start to wonder over time whether traditions are really rivals. We should remain critical about rival schools or, camps that some people who talk about here like to impose on the debate. Start to see each tradition is too complex and extended over time and too much disagreement within to think of it as unitary phenomenon – changed over time, disagree, so many diff Qs in diff points in writing. So be cautious of classifying any view as standard positivist view – rather focus on writers & if their views are promising. Also may wonder whether 2 traditions really rivals and if they disagree as much as commonly suggested. At certain times in development have to understand them in contrast to one another – but in present day can Q how diff it is to N law. Overall enquiry is trying to get better understanding of nature of law. And if that way of carving up the debate ends up obstructing understanding, then maybe we should drop it. So, in language that's fashionable nowadays, these two traditions are themselves social constructs. They're categories imposed on the debate. Bear in mind some contingency and that distinction maybe not useful. Q if when doing theory is it better to talk in grand ‘isms’ like this? But obviously some utility in these distinctions. Natural law and legal positivism distinction is by analogy to 2 different conversations, by which I mean, natural law arises as a kind of discussion amongst a certain group of people who were reading each other's work and reacting to each other's work and building on one another's ideas. And then legal positivism was a slightly separate conversation between, different people where they were mostly talking to each other and thinking about similar conclusions, which would be helpful for us. Diff convos lead to diff styles & methodologies. But don't assume there is some fundamental schism between these views just cuz they were in diff convo groups. Maybe reached similar conclusion. We shouldn't think that just because there were these 2 conversations, everyone in each of the 2 conversations agreed with each other.  And, of course, you shouldn't assume that only 1 of them has the monopoly of truth & other conversation is totally, misguided. You probably expect to find some elements of truth emerging about the natural law conversation, and contrary wise in the case of positivism. Decide for yourself what is better view. Hopefully, the 2 treatment ends up being complementary. All of these points will arise once again very acutely when you do the module after my with professor Barnard. They too will be having a slightly different conversation, inspired mostly by a different set of writers, and they will say things about legal positivism which will contradict what Leo says about it. That's all fine. Leo’s expectations for the module Do readings. Attend lectures and take good notes. Lectures will be guide through readings. Will also go beyond readings and sometimes won’t cover stuff in readings. Readings are primary sources – actual philosophers. Can’t skim read. Engage with each step in argument and assess its soundness. TOPIC 1: AUSTIN AND HIS COMMAND THEORY Note a warning about positivism and A fits into it: positivism widely misunderstood esp in SA. We already know there is profound ignorance about what positivism is – particularly amongst people who aren’t legal positivists. Key misunderstanding People think positivism is theory about what judges should do or how they should decide cases – this is common caricature. Believed that positivists think that judges should merely apply law, that they should not exercise any moral judgment when they're doing so. Think judges must just take the language of the legal rules and then should just use that language to resolve any case before them, not thinking critically about whether the laws are good or bad. This is false. Positivists make no claim about how judges should decide and don’t say they mustn't or should not use moral judgment to decide cases. Many Ps say they inevitably must use moral judgment and that it is good thing to do so. Austin said existence of law is one thing and merit or demerit is another. Q whether law exists is diff to is it is morally good Austin is saying there are 2 different questions here, and they should not be conflated. That's it. Just there are 2 questions here. Austin might be wrong about that. Leo not trying to prejudge whether he's right or wrong at this stage. Some natural lawyers showing the errors in Austin's work. So it would be a serious mistake to think that Austin stands for legal positivism in general. AUSTIN’S COMMAND THEORY His, theory of law is usually called the command theory for reasons probably already obvious. Be careful about the Austinian slogan: “The existence of a law is one thing; its merit or demerit is another” Q whether law exists is diff to if it is morally good. Even most wonderful rule may not exist as law – whether it exists is one thing and is entirely separate from if law is good or bad. This is a rough guide to what is distinctive of legal positivism but doesn’t mean Austin doesn’t think judges must care about laws merit or demerit or morally criticise it – just saying these 2 Qs must not be conflated. Austin may be wrong about that – Leo not saying he is right – some N lawyers may say he is wrong.  So this is warning about not misunderstanding A. Another warning is that A doesn’t represent all Ps. It is ongoing convo and positivism has developed a lot since him. Convo has moved on and not only moved on but done so by showing errors in As work – so mistake to think A stands for positivism in general as it has changed and has done so by showing he is wrong in some respect. His theory is normally called the command theory. Austin’s theory of law, in a nutshell: A law (properly so called) is a general command issued by a sovereign (This is Leo’s streamlined statement for As theory) Stated as account of what it means for him for something to be a law. Concept revolves around 2 main concepts: Command & sovereign. His account also has other 2 conspicuous speeches: - Laws are general commands: qualifies with this adjective ‘general’. - Law ‘properly so called’: laws without ‘more’ required v laws properly so called – keep eye out why he is using that phrase. A command is: “An expression of a wish that I shall do or forbear from doing some act”, coupled with the imposition of “an evil [or pain] in case I comply not with [that] wish”. A sovereign is: A person whom the bulk of a given society is in the habit of obeying, and who is not in the habit of obeying anyone else in turn. He is not asking Q what is law in a specific time or pace – but what is true of all law – deeper Q –what doe it even mean to say something is law of SA? In jurisprudence we are asking: what does it mean and take for something to be law? What are general conditions for something to become law? We are taking a step back from what lawyers usually do. One of the first writers in anglosphere to attempt that task – so people say he was the start of analytical legal philosophy. So we have now seen summary statement of his answer and will build up to that account. ​JOHN AUSTIN, THE PROVINCE OF JURISPRUDENCE DETERMINED He begins by responding to other phenomenon. So the very first thing he does is compare some things that we might describe using the word law, but they're not actually the kind of thing we are interested in when we study legal law. Starts at page 18-20 reading – Law of thermodynamics, law of gravity etc, we use the word law here to describe natural phenomena. These are laws for physics. They capture general way we use that word, that same word that we use to describe laws of South Africa or contract law but to describe the movement of physical bodies? These capture general truths about how physical bodies behave. We not interested in these laws in juris. But before saying this he pauses to think why we call these laws and use same word for e.g. contract law. Doesn't seem to be a sheer coincidence and he's already started to try and bring out some special features of that object of study by comparing it to some other different, but related things. Doesn't seem to be sheer coincidence – seems to be some common feature – association by analogy? May say all physically bodies may obey laws of gravity – so laws something that must be obeyed – but can see big difference between these things.  Laws of gravity = rules that physical bodies cannot but follow – whereas laws of delict instruct people on how they ought to behave and no guarantee they will conform – they are agents that have choice. Laws of physics describing how physical bodies behave whereas legal systems prescribe how people ought to behave. A thinks by reflecting on these differences we get better idea of what law is. And simultaneously with that, he is reflecting on how we use language, how we use that word law, and the range of related but different things that it covers. He's using that as a prototypical example of the methodology of analytical philosophy. His method = hone in on one very specific concept, successively refine your understanding of it by contrasting it with other, nearby concepts, drawing some fine distinctions, disambiguating complex terms, then take another stab at the unifying proposition about law. Also contrasts with divine laws – laws of gods – may Q why we distinguish but he was keen to draw distinction. Divine laws issued by god but laws he is interested in are issued by men – NB part of their nature. Then he implicitly asks Q whats is difference between laws of a legal system and rules of etiquette – how you ought to behave e.g. table manners. These state rules prescribing how humans should behave so have clear commonality with laws properly so called but A says rules of etiquette not laws, they are diff phenomenon so must identify how they are diff. Different as rules of etiquette not est by political superiors, they are bottom up while laws are top down – by authority to subordinate – not shared understanding from community. ‘Laws properly so called’ = type we are interested in here. He has started to try bring out features of that objective study by comparing it to diff but related things and reflecting on how we use language – meaning that word ‘law’. In both those respects his lectures are prototypical example of analytical jurisprudence. By contrasting other nearby concepts drawing fine distinctions and Having engaged in exercised and isolating laws properly so called he thinks he can give first stab at what law is Top of page 21 takes another stab at unifying proposition of law – every law properly so called is a command He has built up idea of command – crucial claim that gives his theory its name – it is necessary feature of laws that they are commands. Then he captures himself and says rather they are a species of commands amongst other types. All laws are commands but not all commands are laws. Laws in his view are a type of command so need definition of what a command is – science – concept of command is key to science of jurisprudence – then he proceeds to give definition. Command = expression of wish that I should do or forbear to do some act coupled with evil that will be implemented if not done– command + sanction – inflict evil on you – kind of instruction but special kind as backed up by a threat so distinguished from other significations of desire as party its directed to is threatened. So he says every law properly, so called, is based on law. So he's both up to this idea of a command, a command is an expression of a wish that I shall do or forbear on doing some act, coupled with the imposition of an evil like the pain in case I comply not with with that wish. The command is an instruction coupled with a sanction. I tell you to do something, and if you don't do it, I'm going to sanction you. I'm going to inflict an evil upon you. So the command is a kind of instruction, but it's a special kind in that it's backed up by a threat. NB = sanction for non-compliance  A continues to defines terms = use word sanction for evil consequence imposed on disobeyer. Duty is correlative of idea of command – i have duty to do X if i have been commanded to do action – subject of duty And if we don't stick to that speed limit, then we will get a fine. We must not murder people, and if we do, we can expect to go to prison. The construction by a law maker, coupled with the sanction in the event of noncompliance. Then on page 25, he introduces a new idea, maybe less stocks or whipped or suspended from duty depending on what time period we're talking about. Pages 22-4 captures what he means by sanctions in detail – come in degrees how bad they are and opposite is reward you get something goo if you do conform. Trying to keep refining account to consolidate what he has discussed. See account has some sort of intuitive appeal – idea law is a command/instruction to do something backed up by sanction if you don't. We all accept law prescribes things and we will be sanctioned if don't comply. There's a command that's distinguished as we know it. I think we all accept the law does prescribe things that we must or mustn't do, and typically, we're gonna be sanctioned if we don't. So we must not drive faster than 60 km/hr on urban roads. On page 25 introduces new idea less obvious – having said laws nec commands and defined commands makes clear laws subset of commands – flags point saying laws species of commands. Now gonna tell us why he entered that caveat. Problem he brings out in example: - Imagine king tells servant to fetch glass of water and if servant didn’t he would be liable to a sanction. - But the point is that in this example, you've got an instruction from the king to the servant. Go fetch me the water instruction that the servant ought to do something, and we've clearly got a sanction, in the event of non compliance. - Point = got instruction here from king that servant ought to do and a sanction in event of noncompliance so this is command according to definition – all elements of command met. - But this is prob as doesn't seem right to call this a law? - It is an order but not law properly so called – clearly not matching our use of concept law. So A going to try solve prob by refining his definition to show its not law. So he's going to tweak his definition so that this instruction by the kings and servants no longer falls within it. And the basis upon which he excludes this example is to make clear that laws in his view are general commands rather than particular commands. So this is not law as not general in nature – does not prescribe or proscribe general class of action – just a once off – an occasional/particular command. Laws properly so called apply to general class of acts e.g. don't murder In this way he is refining his account to deal with different kinds of examples. His proposal seemed to include that example but he said not right so tries to figure out why its not law and says its generality. Trying to capture our understanding of law – his methodology – inviting us tot hink about example and if it matches our use of concept and then tweak theory to explain that. By this method he is successively refining his theory. He then gets deeper into this point about generality by distancing himself from the views of some other contemporaneous writers like Blackstone, who said that la applied to a general class of people. Blackstone was one of the foundational English legal scholars and said it's in the nature of law that it be general.  B said only law if directed at 2 or more people – generality in terms of people. A thinks this is wrong as laws that apply to only one person can still be law properly do called if they apply to general class of acts. So see 2 types of generality – generality of acts and class of people NOTE: Generality connected to idea of TROL today Page 29 restates account in way that he is trying to reconsolidate – law is command that obliges a person or persons and obliges generally to acts or forebearances of a class. Capture sense in which laws are made by an authority – introduces point saying laws are set to proceed from superiors and to bind and oblige inferiors. Does seem some respect in which commander is in position of power over commanded. What does this superiority consist in – he depicts his account as practical and down to earth as notion of superiority sometimes grounded in mystery but his definition is simple (page 32). Superiority signifies might – enforcing through threat of evil or pain etc – superiority consists in fact that it can inflict evil on you. E.g. King has power to inflict evil on servant. Servant is inferior and king superior as in position to make servant do what he wants by applying sanctions to him. His definition of sovereignty is on page 165-6. He had spoken about superiority, which means the capacity to exact obedience by imposing effective sanction. But now he says sovereignty is specific kind of superiority. It's more demanding & specific notion than being mere superior. So Austin says a sovereign is a person whom the bulk of a given society are in the habit of obeying, and who is not in the habit of obeying anyone else in turn. That's a paraphrase of page 166. So the sovereign is able to command general obedience across the society. But most of the people in the society shall habitually obey it, and the sovereign does not himself habitually obey anyone else in turn. Sovereign is specific type of superior = person whom bulk of given society are in habit of obeying and sovereign not in habit of obeying anyone else. Sov can command general obedience across society - most in society habitually obey them and sov does not habitually obey anyone else in turn. So to motivate that picture, let's think about, this university. - So this university has rules which will lead to your being, expelled or lecturer being fired in the event the executive order of vice chancellor indicating that they do not want us to do a certain thing, and they prescribed a sanction in the event that you failed to comply. - And they are general command in that they prescribe or proscribe general act types. - Don't plagiarise, ever. Don't bring the university into disrepute, ever. - So they're not only giving one off instructions. - So they seem to meet all of Austin's, criteria for being a general command. - And they're also issued by a superior in that the university does seem to have real enforcement powers capable of enforcing obedience from us. - They really can visit evils upon us like being expelled if we don't comply, & it's largely for that reason that we do comply. - So point there is just it looks like, so far, like Austin is gonna have to include the university's rules as examples of laws properly so called by his own account unless he can find some point of distinction, that the rules do not fulfil.  - And that's what he's going to do in his concept of the sovereign. And that's what he's going to do in his concept of the sovereign. So this is the sort of problem he has in mind, the problem sketched with the example of the university's rules. It's another potential objection to his theory as he has expressed so far. So isn't the theory over inclusive in the sense that it implies UCT's rules are actually laws when in fact it seems wrong to say they're laws? It seems like we're missing some, crucial feature of what a law is. So why does A think the university's rules are not properly thought of as laws? Well, his rough idea is they're not laws because they do not command the obedience of our society at large. They don't bind all South Africans. They only bind a subset of that political community, namely those who have voluntarily joined the university. VC definitely isn't the sovereign of South Africa. He is himself subject to, someone higher in the pecking order. So he has superiors himself. So neither VC nor the university as an institution meets Austin's definition of the superiority over us, its employees, and students, but there's still someone higher in the pecking order than it. So if you want to find the source of laws properly, so called, you've got to go all the way to the top of that hierarchy. You've got to trace it to the uppermost person, the person who has no one, above him or her or it. So only then once you've reached this uppermost point can you speak of a sovereign and therefore of law. So the law is the set of commands issued by the highest authority in a political community, and now, here, South Africa. We all know of these examples of lower level authorities who can make rules which meet all the other criteria. We all understand the university cannot ignore the laws of South Africa. They are bound by those laws. None of the university's rules may contradict South African law. So this is Austin’s attempt to put on the table a certain theory of the nature of law to say what law is. The gist of Austin's account = law is the set of general expressions of desire backed up by sanctions made by the sovereign. What Austin’s theory has going for it First gonna deal with some things Austin's theory has going for us, & we'll come later to difficulties he needs to deal with. Austen was unusual in his time for attempting to understand the nature of law in general rather than just discussing the particular laws prevailing in a given time and place. But I guess you could say there's also something appealingly simple about his unified account, because he's attempting to tackle a concept that might seem quite elusive or complicated, the idea of law. But then he offers an account that can be boiled down into a single proposition that can be stated in a short sentence. All laws whatsoever are general commands issued by the sovereign. So I guess that's nice? It takes a complex phenomena and offers a simple definition of what it is. This account seems to have at least some connection with the way we use the concept of law. It matches our intuitions in some ways. For one thing, it seems to fit quite neatly with some of the most familiar and obvious laws in the legal system, the duty not to murder people, which breach results in imprisonment, ot the duty to drive at no more than 60 miles an hour, which have breach results in a fine. This theory seems to work reasonably well with those. It seems to work especially well with the criminal law. We will now discuss trickier points about what it's trying to do or why we might find appealing. So the further appeal of A’s account is that it is reductive in the technical sense that it boils down complex phenomena to much simpler components. I've already sort of suggested that.  But in particular, it boils everything down to social facts. So the idea of the law gets resolved into the notion of a command, which in turn is the expression of a certain wish. The certain state of mind on the part of the superior, which is then made explicit through an act of communication, plus the imposition of a sanction, which is the infliction of some evil consequence in the event of noncompliance. So law comes to turn exclusively on facts, that form part of the material world, that can be identified empirically, almost scientifically. In principle, you can imagine a scientist going and discovering the fact of the matter about each of these things. What did the sovereign think? Did they want / did they have a desire that, a certain action not be performed? That can be, discerned by social facts alone. Then did they express it? Yes. And if so, another tick. If the subject didn't comply, would there be a sanction? Another factual question. So all of those are about facts. All we might, of course, say are social facts, facts about what people have thought said and done. So there's no room here for an assessment of, values or of anything's moral merits. So the concept of law on this account is reducible exclusively to social facts. We don't need to make any kind of moral assessment of what's going on. We don't need to appeal to elusive moral principles. We don't need to make any kinds of arguments, evaluative arguments, to decide whether these criteria are met. So you can see the germ of why Austin is considered a legal positivist, indeed, the foundation of legal positivism, because he's offered an account to this command theory, which says the question of whether law exists or not depends purely on facts. Facts about the world to be understood here in contradistinction to value. Things like good or bad, right or wrong. Whether law exists is not a matter of values, it's about facts. Did the sovereign express a desire? Was it coupled with a sanction? Etc. I suppose for completeness, one could do this with the sovereign as well. But his definition of a sovereign also depends only on social facts. You just gotta look at the general pattern of obedience to that person and the absence of the general pattern of obedience by that person or anyone else – not any value based argument. So it's more social facts. And, again, not any value based argument. So you can see why Austin said the existence of law is one thing, its merit or demerit is another. He's given an account which shows its existence to depend on facts all the way down. And that is called considered a quintessential feature of legal positivism. Another, maybe more simple minded way, in which we might make the point is that Austin's notion of a command is closely linked to the idea of positing. So when the sovereign issues a command, he is positing the law. By his actions, he is making it come into being. So it doesn't come into being by virtue of its being morally desirable. It comes into being because somebody posited it. It was put forward by a lawmaker, the legal political superior. So let's, say so now to, to clarify the name legal positivist, why is it called that? So this idea that Austin's account is reducible entirely to social facts leads to another point, maybe another appealing feature, namely that Austin's account seems nice and hard headed and practical. Idea that As account reducible to social fact leads to another appealing feature – seems nice and hard headed and practical – he spoke about his opponents views as mystical – he was gonna make it more simple. We already saw Austin gesture at this himself and that he spoke about his opponent's views as as mystical, that there was mystery about certain concepts. So he was gonna boil it down to something more simple.  Remember, at the time Austin was writing the early 19th century, the received view about the nature of law might have been, something like law is the set of rights that we all have deduced by human reason – or something like that. And judges would have said that when they et out what the law is, they are merely discovering it. It's already there in the ether somewhere. To which Austin and his allies would have, been inclined to say but how can it already just be there at before the judge makes any decision? What the hell is this thing here – a ‘right’? That sounds like some concoction in the mind of someone sitting in an ivory tower. It's too airy fairy. So he wants to bring us back down to Earth to things you can actually observe in the physical world, like one person telling another person what to do and that person getting smacked if not doing so. It is true that Austin tries to provide an account of rights. So he thinks he can account for talk about rights using this theory, but he wants to have a very different starting point, some more down to earth starting point, albeit that from that starting point, he thinks we can actually give some more sense of the account of what arises. Another idea A would have been reacting against was a core idea of natural laws of that period, not necessarily now. That in that period, it would have been thought law was humanity's attempt to work out, to develop in detail, God's commands. The natural law was, for most of its history, explicitly religious, and law was to be analysed as that which we, as humans, by applying our rational faculties, believe to be in accordance with God's plans for human beings, the standards of conduct that God considers fitting to govern our societies. And again, Austin doesn't want any of that. It's too mystical to use this word, too unscientific. So he says, no. I'm rooting this phenomenon law in basic social facts that anyone can observe, not in this higher claim where priests or these unaccountable judges claim that something is required by law but can't really explain what that even means. So there's a story here about how positivism and its foundation is bound up with the scientific method, with empiricism, secularism. Whether you think this is good or bad, is beside the point. But, positivism/positivists saw progress in our understanding of concepts as being like boiling them down to simpler elements and to facts about the world. We're getting away from dogma spouted by religious types, untestable claims about values, and we're gonna root it all in facts. That's what it means to be truly scientific. And then following from this, Austin’s specific idea of a sanction is particularly attention grabbing. You can see why some found this especially attractive. It may be argued to have particular attraction to lawyers who like to think of themselves often as, quite hard headed & practical and cutting to the point, getting to the practical upshot of things. “When we say that something is law, that something is legally required, what we really want to know, what my client really wants to know is am I gonna go to prison if I do it?” They want to know the real world implications of all this talk about law and legal duties and that sort of thing. And to Austin to this, Austin can say, well, precisely that's why I make the focal point of my account the idea of a sanction. The thing that the law is going to actually do to you if it doesn't like how you behave. So this sort of cynical, hard headed, flavour of positivism is probably most famously expressed by Oliver Wendell Holmes. Homes who comes after P – he was scholar at harvard and later an SC judge – Holmes gave lecture in 1896 called path of the law - He's an important figure who comes after Austin. He's probably most famous figure in all of American legal history. - He was a scholar at Harvard in the second half of the 19th century, and then he was appointed to the Massachusetts Supreme Court.  - And then after that, the US Supreme Court when he wrote a number of very famous judgments that even if you don't know it, will have seeped into your consciousness. - And because, for example, he's often considered the main architect of the right to freedom of speech. - So interest here is in this lecture he gave in 1896 to a bunch of law students called ‘The Path of the Law’ – this shows flavour for the sort of, the the self described cynicism in this approach which you can connect with Austin. - So Holmes says, if you want to know the law and nothing else, you must look at it as a bad man who cares only for the material consequences which such knowledge enables him to protect. - So don't get distracted by talk of good morals, the law's merits and demerits into which nice people get drawn when they start talking about legal concepts. - If you really want to understand what the law is doing as distinct from morality, look at it from the perspective of the bad man who only wants to know what the legal system is actually going to do to him. - Take the fundamental question, what constitutes the law? - You will find some writers telling you that it's something different from what is decided by the courts, that it is a system of reason, that it is a deduction from principles of ethics. - So he means the natural lawyers here. - Again, but if we take the lure of the bad man, we shall find that he does not care 2 straws for these deductions, but that he does want to know what the courts are likely to do in fact. - He is much of this mind, prophecies of what courts will do in fact, & nothing more pretentious or what I mean by the law. - What significance is there in calling one action right and another wrong from the point of view of the law? - If it matters at all, it must be because in one case and not in the other, some further consequences are attached to the act by the law. - So he says, by keeping the focus on the practical upshot, on the sanction, as Austin would put it, now you actually understand the contribution law is making. - If you talk to some judges and lawyers and theorists who are influenced by natural law, they'll start to conflate law with moral questions. They'll start to say something is required, because, because they are letting their moral judgments enter. But if you really want to understand what is distinctive about law, it's the sanction. It's the material consequence for the bad man. - So he says, if you keep your focus on the practical consequences, the only thing that the bad man cares about, then our understanding of law grows more precise when we wash it with cynical acid and expel everything except the object of our study, the operations of the of the law. - So, this is just a sort of, like, particularly influential, statement of the cynics the cynical appeal of the Westernian account, that it's just about the sanction and not about these moral notions that natural lawyers keep trying to project onto law. There's some sort of condition to have a legal system in place where the population needs to actually be arraigned. That's going to become very important. You can see that the Austinian account lends itself to the sort of, hard headed focus just on the practical upshot, just the sanction. What is the law actually going to do to you? And if it's not gonna do anything, then it falls into question where we can say that there is a law in place at all. It's just moralisers making claims about right or wrong without, any legal implication.  Can see appeal to people against position of N lawyers who in view of early positivists would be inclined to dignify status quo as they were more inclined to say fact that thing leads more naturally to thought that whatever reflects morality. Natural lawyers were more inclined to say, well, the fact that something leads more naturally to the thought that whatever the existing arrangements are in place, it may reflect morality. Whereas the positivist want to say, no. That's naive. Law is just about power. It's just about, somebody who can make you do what he wants effectively. And that person has effective power over you, he's telling you what to do and threatening an evil if you don't do it. That's a complete account of what law is. And so, we shouldn't mystify it. People like Austin seem old fashioned today but at the time were rebels and social reformers – trying to demystify law to show its not that great and its just power so we can change it. They were trying to demystify law because they wanted to show that it wasn't that great. Were saying law is just power, and so we should be quite willing to change it. We should view it as dispassionate So this is in very rough terms the mood of early positivism. You can ask yourself whether you find that an attractive mood. And also think carefully about, as the course progresses, about whether later writers you encounter in the course are sort of working in the same mood, or whether they perhaps find Holmes' approach too cynical, too denuded of moral ideas. But for now, let me continue to stay focused on Austin's own writings. And, again, just talking about, well, like, what does Austen's theory have going for us? I've already said it does seem to match in some ways our ordinary usage of the concept of laws and in some ways our ordinary usage of the concept law. Firstly, that concept does seem to have some connection with sanctions. It seems to fit quite well with criminal law. It's true we think of law as bound up with political authority, which he's trying to give an analysis of. And then in addition, some would say that Austin's account is nice and scientific, fact based down to a secular, hard headed, which some people like. Last thing to say on this issue, on the virtues of Austin's account is his methodology or style. I don't think anyone nowadays would regard John Austin as a particularly brilliant philosopher. He wasn't a genius. The later writers like HLA Hart and Raz were more subtle and sophisticated. And yet, those philosophers owe something to John Austin in their basic methodology. Austin was a kind of pioneer to even ask this question, to ask what is the nature of law in general rather than just what is the law being used in 1832. And in that sense, he's the first analytical legal philosopher. But then the way he goes about answering that question is also distinctive, and you can still see traces of it easily, in philosophical writing today. He begins by observing some distinctions in the way we speak. He tries to disambiguate terms. He disambiguates this complex word law. He tries to make sure we are not being misled by using the same word to refer to 2 different things. He's saying let's identify the difference between them and hide off the one we're not interested in to get a clearer insight into the thing that we are. He keeps compare and contrast approach going and keeps refining thing we are interested in He also keeps raising counter examples – takes stab at issue then says wont deal with X case then adds another counter example and then modifies etc etc etc Good for philosophical technique as anticipating critiques He keeps that compare and contrast process going successively. And so he keeps refining his account of the thing we're interested in.  And then another thing he does is that he keeps raising counter examples. He takes a first stab at the issue, and then he says, yeah. But that's not quite gonna deal properly with this other sort of case. So now we need to refine our account so that we can give a satisfying explanation of this other thing. And once we've done that, I'll give you another counter result, something that doesn't seem to fit my theory very well, and I'll show you why I can modify my theory to deal with it. So that again is good philosophical technique. You have to anticipate objections to your theory and then deal with them. So that upon closer inspection, they don't actually give reason to dismiss your theory. So Austin's quite good at noticing the weak points in his theory. Whether he can actually, shore up those weak points is another, question entirely. The spoiler, you may know already, is it turns out Austin's theory is really quite weak. Hart demolishes it in ‘The Concept of Law’ in 1961. But before we get to Hart, let's see how Austin himself tries to anticipate some of the objections that are gonna arise with full force when we do Hart. Difficulties Austin needs to deal with First troubling case he mentions, is laws without a sanction. He's staged his whole theory on the idea that laws are in their nature commands. In other words, instructions coupled with a sanction. That's the very essence of his theory of law. So it's gonna be an obvious problem for him if we can think of laws that do not come coupled with the sanction. And A, in fact, thinks there are such examples. An example is on page 32. It's where parliament parliament passes an act prohibiting certain conduct, but parliament simply fails to specify any sanction for its breach. So to keep it simple, let's just say parliament neglects to state the penalty. Let's say, a new criminal offence, but it neglects to state the penalty. Well, even in that case, it seems odd to deny that this Act is a law. It seems inconsistent with ordinary usage to deny that this is a law. After all, the the act is still gonna say it is law at the top. It was passed by parliament in the ordinary way. Let's assume the courts are presumed they're gonna try give effect to it. So can it really be that just because the legislature neglected to attach a sanction is no longer law in the way that Austin's theory seems to imply? So Austin says I need to be able to deal with this case, it is a counterexample to my theory. It's a bit of a wrinkle for a sanction based theory that you can have laws without sanctions, but Austin thinks it's not a very serious wrinkle. Why not? Because Austin thinks it's quite obvious that any court faced with this sort of statute, if an accused is brought before it and, the accused has breached, has committed the events in question, well, the courts are gonna regard it as a pretty obvious part of their job that they need to come up with some sanction. Maybe it wasn't already there. It wasn't already stipulated, but any court itself is going to try to come up with 1. In the interim, the law didn't have a sanction attached, but it was still the law properly so called. This is not a big deal because the court's gonna recognise we've got a problem here, and the court is gonna solve it. So you might say that this case shows that natural tendency of law is to impose sanctions for any instructions that are breached. In interim was no sanction but still law and not big deal as court will solve this – still shows natural tendency of laws is to impose sanctions Second troubling case is court orders made by judges The point of substance he's making is that when a court decides a case, it issues an order or what's sometimes called a ruling.  So it says, for example, the defendant, Joe Boggs, must pay a R100,000 to the plaintiff, Jane Doe. So it issues that, order. Now this order certainly seems to carry the force of law. It's issued by a court. Joe Bloggs better obey and if he doesn't, he will be imprisoned for contempt of court. So it seems like something legal definitely is going on here. But notice that it doesn't actually fit Austin's account. Why? Because it's not general. It's a particular command. It's a once off. It's just saying to one person, you do this one act on one occasion to pay 100,000 rand. It's like instruction by the king to his servant to fetch a glass of water. There's no generality. It doesn't cover a class of acts. But, of course, Austin built into his account generality. He said generality was a crucial ingredient. You can't have law unless it's general. He did that to keep the servants and the glass of water example out. Paradigmatic law. So Austin's response here is to concede the objection again while saying, in effect, it's not that serious. Because he says when the court makes its order, yes, the order itself is not law under my definition. So I've caused a problem for myself there. But on the other hand, the order was clearly authorised by a law. The order is itself justified by a law properly so called. So, yes, the order may be made, Joe Bloggs pay, the money to Jane Doe, but it does so by application of a general command. Just imagine what sort of general, command might have justified the ruling in a particular case. Some general command like all people who negatively cause personal injury or property damage to a person must then, compensate that person. So that that now has the feature of generality. So that law was there in the background, and it justified the court order in the particular case. Austin says, I can't quite show the order is a law, but law is clearly in the picture. And that's good enough for me. Third troubling case is customary law So when when we, in the present day, SA context, think of customary law, we usually think of African customary law. But Austin's writing in a very different time and place, and the customary law he has in mind here is a Germanic customary law because, German law of his time, that is prior to the enactment of the German civil code in 1900, was heavily customary in nature. It was based on customs that had emerged within the various communities of the Holy Roman Empire. And those customs are this general set of norms that had emerged in particular communities, those came to be enforced by courts. So German courts would say if you have breached your community's customary norms, we will sanction you. We will act as the enforcer of those norms that have grown up in your community. So that's the kind of situation Austin is worried about. Why is he worried about it? Why does customary law like this pose a problem for Austin? Well, because the norms of customary law are not really commanded by anyone, and they certainly aren't commanded by a sovereign because they arise from the community's general sense of what is appropriate behaviour. So you could try with difficulty to say that each member of the community has expressed their desire that everyone else in the community not do this or that. And so there is an instruction there. But maybe you feel that particular problem can be overcome. Maybe you can say the community as a whole is as a collective agent is issuing a command to its members. But even if that you can show customary law rests on a command by the community, you definitely cannot show that that community matches Austin's definition of sovereign. The members of the community do not stand above the commands. They do not, compel obedience, without themselves being obedient to anyone else.  They don't stand at the top of the pecking order obeying no one. The whole point of these customary norms is that the lawmakers of the norm makers are simultaneously the subjects. Austin's top down hierarchical model where the ruler issues commands that bind subordinates and the ruler is not himself subject to them. So that is why, Austin denies none of that. He would agree that he seems to have a presumptive problem but he is gonna try and solve it in another way. So the solution he proposes has 2 steps. The first is really the crucial one. The first step is to say, indeed, customary law is not really law until it's recognised by a court So once it's recognised by the court, incorporated into that court's judgment and regarded by the court as a valid norm, then it is law. Before that, it wasn't. But once the court gives it recognition, issues a judgment in recognition of that norm, then there's no problem in regarding it as a command under Austin's own description. Because, it can't be right, says Austin, that by my theory, the general emergence of the custom within the community is itself an act of commanding it. But once the court declares that to be a valid law, then that problem evaporates because the court has now commanded it. The court has posited it. It has said, we have a desire that you obey this norm, and we are going to impose a sanction if you don't. So that's the first crucial step in Austin's argument. He admits the court endorses and acts upon it, now it fits the command model. So the problem ends at that point. So that's all fine. That's theoretically satisfying Austin thinks. The second step is to say that when customs are turned into legal rules by decisions with judges, the rules are tacit commands of the sovereign legislature The second step is more eccentric. It trades certain special features of Austin's theoretical ambitions. He says, so the court recognises the customary norm, and it becomes the general command at that point. The court now issues it as its own command. But then he makes a further claim – page 36 – that when customs are turned into legal rules by decisions with judges, the rules are tacit commands of the sovereign legislature. So that's the logic of why he thinks the legislature is tacitly demanding what the court has done here, and that the customary norm actually becomes the command of the legislature. Austin thinks that customs are turned into legal rules by the acts of judges of the courts. But then he makes a further claim, which is that they are thereby made tacit commands of the sovereign legislature. Why do they become the tacit command of the legislature just because the court issues them? His answer is because the legislature is always allowed to overturn judge made law. If they disagreed with what the court did, it could always enact legislation rejecting the court decision. And as it follows, that if the legislature decides not to do that, it must be happy with the status quo. It must have been happy with what the court did. It's tacitly approving what the court has done. Legislature too has now tacitly commanded this custom by its inaction, by not amending what the court has done. It has shown that it too, has a wish that we all conform to customary norm, & that sanction should be imposed for its breach. But why is Austin trying so hard with this? Why is he trying so hard to show that the customary norm actually becomes not only the command of the court, but actually at that point becomes the command of the legislature. Why don't we just stop at first step? After all, if the court is commanding it, you might think that's still good enough then. He's still shown that at that point, the customary norms enforced by the court overcome command.  But, no, he's not happy to stop there because of this concept of the sovereign. He's worried about leaving the command with the court only because it doesn't really seem satisfying in Austin's view to say that courts are the sovereign of a modern legal system. Because courts, at least in large part, apply legislation enacted by parliament. And even when courts make their own laws, parliament is free to overturn. So it's gonna be quite awkward for Austin to try and claim the courts of the sovereign and modern legal systems. So he therefore wants to get away from that thought and trace things back all the way to the legislature, to parliament, because he's got one eye on the fact that it's going to be most plausible for him later on in his book to argue that parliaments are the sovereign in a modern legal system. And so he needs the sovereign to be issuing the customary new norm. You may query how promising that second move is, but, it just alerts you to the fact that there's actually another problem looming for Austin, which is who is he gonna think is the sovereign in a modern legal system with the separation of powers? HART'S CRITIQUE OF AUSTIN Introduction HLA Hart’s 1961 book ‘The Concept of Law’ is Still the Foundation of 20th and 21st Century Analytical Jurisprudence. The subject had been somewhat dormant, at least in the anglosphere since the work of Austin in the early 19th century, but then Hart is usually credited with reviving it in the 1950s. He was friendly with, John Rawls who, if you've done philosophy, you will know his name. He, around the same time, is credited with reinventing or reviving modern political philosophy, and Rawls work mostly in the US. Hart was at Oxford and was also very heavily influenced by JL Austin, so not John Austin, but another Austin, who was reviving philosophy of language. So it's part of this new generation of thinkers who were reviving some neglected areas of philosophy in the wake of WW2. And, Hart decided naturally to turn to the philosophy of law, the thing he knew best because he'd been a lawyer, so he developed his ideas in the jurisprudence lectures he gave to students and then kept refining them over the course of 1950s. And then, when he was satisfied with them, gathered into this then into this book, which has been very influential. It's definitely the touchstone for legal positivism still, probably for the whole field. And so when he begins this inquiry, his natural reference point is, the theory of John Austin. Although that theory was over a 100 years old at that point, it was still the leading account. And it had certain virtues as we have suggested above. I would expect that if you sort of reflect on your own understanding of what law is, you can trace some sort of affinities between it and, Austin's account. Idea that the law is telling us what to do and then imposing sanctions on us. If you you ask lay people what they think, they'd always probably have those sorts of notions, coming up in conversation pretty quickly. So Austin has worked its way into our consciousness for better or worse, which is, of course, partly why we, have started with it even though it's quite dull and it's now considered totally wrong So you can divide the first chapters of the concept of law into sort of 2 parts – 2 different ways in which Hart proceeds. His first approach is to provide a criticism of Austin's account, to show what Austin gets wrong, and then to draw some lessons out of that critique of Austin about what a more successful account would look like. In other words, the first approach is to kind of reaction explicitly to Austin. And then the second part of the famous first few chapters is where Hart leaves Austin behind and presents his own theory, his own account of the nature of law. So that's Leo’s sort of psychological separation between the two parts of the book. HLA HART, THE CONCEPT OF LAW, 2 ED (OUP 1994) AT 18–42  So we are now turning to Hart's criticisms of Austin, and then at some point next week, we'll get to Hart's own proposal. Needless to say, the 2 parts are connected. And reacting to Austin, he's already starting to introduce some of the ideas that he's then going to give further prominence in the second part. But because he's anticipating some of those ideas, in the first part, that's where we start. And again, you can see that Austin's account has some contact with how we think about law. So in a way, you can read Hart’s criticisms of Austin as criticisms of certain temptations that we ourselves might have to think about what law is. So the law for Austin is, of course, a general command issued by a sovereign. What does Hart object to in this account? Many things. Criticism 1: An instruction + sanction does not = law Hart's first criticism is maybe the best known. The first criticism is that the idea of an instruction or a prescription, a direction to do something, coupled with a sanction in the event of noncompliance, does not account for all laws. Some laws fit that model, but others plainly don't. What laws fit Austin's model? I suggest that that's basically the criminal law. That fits Austin's model quite well. Good examples for Austin: - “Don’t murder, or else you’ll go to prison” - “Don’t exceed the speed limit, or else you’ll get a fine” Delict maybe fits that model – it does seem to have prescriptions e.g. don't drive negligently, don't assault, etc. And if you do, then you're going to have to pay damages. So maybe delict works okay. But what models definitely don't fit? Laws that don't fit / potential counterexamples: - “A person may conclude a valid will by writing it down and signing it in the presence of two witnesses.” - “A person may conclude a valid marriage if he or she is not already married and signs the marriage register together with his or her partner.” Laws such as a person may conclude a valid will by writing it down and signing it in the presence of 2 witnesses. Or a person may conclude a valid marriage if he or she is not already married and signs the marriage registered together with his or her partner. So those are just rough statements of laws that actually exist in South Africa and most countries in the world. It seems pretty clear both of those are laws. They both appear in legislation, and the performance of the action stated in them has a range of legal consequences. If you conclude a valid will, then that will determine how a court distributes your assets when you die. If you conclude a valid marriage, that has all sorts of consequences of law, property, and tax law will even be left and so on. So we all think these are valid laws. Any theory of the nature of law is gonna have to be able to explain, that they are all going to include those. But this is problem for Austin because his theory doesn't seem to, because these do not seem to be commands. They don't seem to fit either of the cardinal features of commands. They neither tell a person what they should do, nor are they coupled with a sanction in the event of non performance. They are what are typically called power conferring laws as opposed to duty imposing laws. So rather than saying, do this or else, they just say, well, if you like, you can do this. You may conclude a valid will if you like, and in that case, the court will respect it. But we really aren't bothered either way, we leave it up to you to decide.  And if you don't, certainly, there's not gonna be any sanction. So there's a clear, problem for Austin. But can he solve it? So Austin tries to solve it, because he he thinks he can fit these to his model with a bit of tweaking. He thinks these can be understood as instructions to a person to do a certain thing. We just need to recognise that the instructions are conditional in the sense that the command is activated only if the subject of them wants to achieve a particular result. So we can reinterpret the first example as a command as follows – it says, if you want to conclude a valid will, then you must commit it to writing and sign in the presence of 2 witnesses. And the second example can be interpreted as, if you want to conclude a marriage, then you must be unmarried and you must sign the marriage register. Or in general terms, you can say, for any power conferring rule, it can be reinterpreted as a duty imposing rule, a command, by saying, if you want to achieve a certain result, then you must follow the prescribed process for doing so. So Austin’s own suggested reinterpretation: - “If you want to conclude a valid will, then you must commit it to writing and sign it in the presence of two witnesses.” … and if you don’t, your will is a nullity. So these are instructions after all, says Austin. It's just that they are conditional upon subject's desire to achieve certain result. You might already say, but if the if the if the command is conditional upon the subject's desire to achieve the result, that's already a massive departure from Austin's model. There don't really seem to be instructions then if it remains up to the person involved to decide whether they want to achieve that result. You could already say there's been a fatal departure from the basic thought behind Austin's model, which is that the sovereign is telling you what to do. Ultimately, we see with these kinds of examples, the choice rests with the subject about whether they want to exercise the power. So that's already that is a problem to the aim of the concept of an instruction, despite Austin's misalignment? But in any event, they seem certainly not to fit the other aspect of Austin's definition of command, namely that non performance results in the imposition of the sanctions. So if you don't conclude a valid will, no one steps in to inflict an evil upon you. Most South Africans die intestate, i.e. without ever having concluded a valid will. And the law never tries to come and sanction them for that. If you don't conclude a valid marriage again, nothing bad happens to you. Nothing bad imposed by law. So now to this problem, Austin again tries to solve it by stretching his understanding of a sanction. He stretches the idea of a sanction to include the concept of nullity. So the idea is that if you want to conclude a valid will and you fail to conform to the prescribed process for doing so, then you will actually suffer an evil. You will have the unfortunate consequence that your will is not valid. So your purpose will be thwarted. You fail to achieve what you set out to do. So Austin says there is actually a sanction here after all because if you fail to comply with the prescribed legal process, you will be visited with an evil. You'll have the very unfortunate consequence that your will is invalid. It is null and void. It is a nullity. So there's the negative consequence we're looking for, the fact of your world's nullity. So we've got a sanction after all.  So that's Austin's attempt to deal with this. I expect you to think there's something fishy about it. And he began with the idea of the sanction as being something deliberately imposed by the sovereign in order to bring the subject into conformity, to compel obedience, to make it the case that they would, obey the command that was issued in the first place. But analogy just doesn't seem to be a bad conception. It's just it's not something that was imposed in order to bring the person into line. It's just a way of redescribing the simple fact that if you have a power to do something, but you don't exercise that power correctly, well, then, of course, the power doesn't have effect. It's not gonna have legal effect. There's no intention by the lawmaker to actually use the validity to compel obedience So there are other ways you can put that point. Other ways of drawing out why Austin's response here seems unpersuasive. I'm gonna assume you all agree it isn't that persuasive that the two points, are made in response taken together to show show that our power conferring laws are not, reconcilable with Austin's command theory in the way that he envisaged it, in the way that he tries to deal with this objection in his lecture. There's another point, a meta point, about doing good legal philosophy. Leo tried to sort of sketch some good aspects of this methodology, but at this point, it's pretty clear that something problematic about it, that's juvenile in how he responds to these objections. Because after all, what we're trying to do here is actually to advance our understanding, to come to a better understanding of what law is. And the the point of the enterprise is not just to cling to our own theory, come what may. So we need to ask, is it really going to advance understanding to insist that power conferring laws are commands backed up by a sanction? Does it really seem helpful to collapse those 2 together and say they're really doing the same model after all? And I think the answer to that is almost certainly not. It's clearly going to sharpen our understanding to see that there are 2 quite different things going on here. That maybe Austin can explain duty imposing rules, but when we get to power conferring, laws, we probably sort of, conscientiously giving up the theory when it ceases to advance understanding. And Hart sort of points this out. He says you could try to reinterpret novelties as a sanction in way that Austin does. You can't say that's sort of strictly logically impossible to think of them as nullities, but it just starts to seem like you're, losing the capacity to really enhance our understanding of these diverse phenomena. And so if we're trying to apply sound judgment, it just seems better to, to recognise there is a distinction here and sit a bit longer with power conferring rules and see where they lead us in our understanding of rule. But having said that in favour of this methodology here, I don't want to declare victory for him on this point quite yet because there's actually another, maybe more sophisticated response to his challenge of power conferring laws. But this isn't the one that Austin himself gives. It's rather attributable to Hans Kelsen, who was a leading, figure in 20th century German legal philosophy. So Kelsen's response to the problem of power conferring laws was to analyse them as the first link in a much longer chain that ultimately does end up with a duty imposing rule. So let's take the example of a contract and maybe the analysis works more simply. So contract law confers powers upon each of us the power to conclude a contract. We can thereby change our legal situation by agreeing a valid contract, we can change our legal rights and duties. So in simplified form, we can say as a general rule that a valid contract may be agreed by 2 people expressing with their consent in words of writing that they will be bound by certain terms. Because that is a rule of South African law, something like that, and that gives us a power to agree a valid contract if we wish to.  So far, it seems like that rule is not going to fit Austin’s model. It's not a duty imposing rule. It doesn't state anything that you ought to do there. And therefore, taken by itself, it seems vulnerable to Hart’s challenge. But Kelsen says don't stop there. Keep playing the story out. So think a bit more about what actually happens if you agree to a contract. So once the contract is in place, then it requires each party to do certain things. They must deliver the goods. The other must pay the virtuous price or whatever. Kelsen’s solution: Power-conferring rules like – - “A valid contract may be agreed by two people expressing their consent, in words or writing, that they will be bound by certain terms”, can be reinterpreted as – - “If you give your consent, together with another person, to be bound by certain terms, and you fail to conform to those terms, then you will be subjected to a sanction (damages, specific performance, etc).” And what happens if the parties don't do those things? If the supplier doesn't deliver the goods on time, well, there's a sanction. Party will be liable to pay contractual damages, for example, or the court will force them using an order of specific performance to comply. And if party doesn't agree with that, they're in contempt, of course, & they might go to prison. So you just need to play the story out of it, and you do end up with a command and a sanction after all. If you agree a contract, then that contract is going to impose various legal duties on you. In other words, it tells you you must do certain things, and if you don't, a sanction will be imposed on you. So, again, if you rarely spelt out all the features of contract law, we would understand that its power conferring rules are just a prelude to its duty imposing ones. We always do end up with a duty imposing rule. So we could redescribe what's going on in the following way – we could say contract law prescribes that if you give your consent together with another person to be bound by certain terms and then you fail to conform to those terms, then you will be subjected to a sanction. So in other words, there is a duty imposing rule here in the picture It's just that we have to add in some extra conditions before that duty can actually be breached or is activated and can be breached, namely that the party has agreed to be bound by it in the first place. So we have that first ‘if’ clause. The ‘if’ clause is there if a party agrees to valid contract. So that's important. That basically accounts for the power conferring rule. If they do that thing, then, they come under a duty, breach of which results in a sanction. So we end up with a duty and a sanction at the end of the day. The ‘if’ clause just features because it is the law's way of putting in certain ‘if’ clauses, stating certain conditions that must be met before we get to the, before the duty kicks in. The power must be exercised. That's what power of comparing the significance is. But if it is, then we're just in the ordinary realm of duties and sanctions. I think that's true, & there's no misunderstanding there. But would think Kelson would say, but that's not necessarily a problem. A contract was designed so that we try to honour the party's wishes. But that is itself something the law commands. We are going to, we have decided to take whatever the parties have agreed, and we're going to embody that command here by the legal system, by the sovereign. So that's the Kelsian proposal to deal with a supposed counter example of power conferring rules. We started with the contract example because in a way, that's the easier case for Kelsen. The slightly harder case would be the example of a will. The reason it's a bit harder is because a will doesn't seem to impose any duties on other citizens.  So the testator, the person who makes the law, they certainly don't come under any duties in virtue of enacting the will. Nor does it impose any duties on anyone else in the society. All it does is that the will imposes a duty on a court to then, distribute estate after she dies in the way the will says. So, Kelson is happy with that. He says, well, it's not such a big deal. Yes. It doesn't impose duties on other citizens, but it does impose the duty on the courts to then distribute in the way that it states in the way stipulated in the will. That's perfectly fine. You've still got a a command to the court, to the judge. Now that might not be the end of the story either because you can foresee there's another problem coming now, which is, what's the sanction that the judge would face if they didn't conform to that duty? So, sure, maybe we can agree that the law instructs the judge to distribute the estate in terms of the will, but there doesn't seem to be a sanction on the judge if they don't. You might even say it's sort of quite important to how we think about judicial independence that there wouldn't be a sanction for their failure to apply the law. Maybe that's a decisive problem for the Kelsian solution. That once you start thinking about duties imposed on judges, there's no doubt that duties are imposed on judges, but they don't seem to be covered with a sanction for breach. And that's a point we're going to return to about the position of judges in in the Austinian theory. But at this point in the book, once Hart has discussed the solution or proposed solution to the problem of power conferring rules, he doesn't twist the knife yet. So he says you can't rule out this Kelsenian response quite yet. He's gonna return to it later to show what it is that the Kelsenian solution obscures. Recap so far So, just to summarise, we have Hart presenting a major objection to Austin's command theory, namely that it can't account for power conferring rules. Then you have Austinian response, Austin's way of dealing with this objection, which is to reconceptualise the nullity as a sanction. Kelson writing in the 1930, about a 100 years later is not not dismissed quite as easily. His solution is to think that, yeah, but when you start putting the power conferring rule together with what comes next, then you end up with an extended, duty imposing rule. So there is a duty imposing rule. It's just that in virtue of the power, you've got a new clause. And we noted some points of difficulty for that, but let's say it's still on the table for now, Hart has postponed his rebuttal for later. And so Austin just thinks having a duty is being the subject of a command of a duty. Criticism 2: Customary law Austin’s theory can’t accommodate CL. H unpersuaded by A’s argument on how he can accommodate CL. H thinks its unacceptable to say we only grant a customary rule status as law when court applies it. H says you wouldn't say that for legislation – never want to say legislation only becomes law when court applies it. If you said that you would be getting it back to front. Court feels bound to apply it because it is already law. Say why law in first place and use that fact to say why court found bound to apply it. H regards this as obvious and doesn’t spend much time developing the point. We never want to say that the legislation only becomes law when and because the court makes order. We all recognise that as soon as parliament enacts it, it is law at that point. Being enacted by parliament is what makes it law.  We never feel the temptation to say it only becomes law by virtue of the court's actions/only because the court applies it. If you did say that, you'd be getting things back to front. Criticism 3: The continuity of laws H makes criticism arising from continuity of laws. Laws continue even when the lawmaker changes. In other words, Hart highlights the fact that when the so called sovereign changes, the laws remain. The reason this is a problem for Austin is because the habit of obedience is central to his analysis of sovereignty. According to Austin, the sovereign is the person who is sufficiently obeyed by the population. But a habit, by its nature, can't be formed instantly. A habit by its nature is something that can only be said to exist after a certain period of time. Imagine King, Rex 1, dies & that the legal system is going to endure even when Rex 1 dies and is replaced by Rex 2. The question is, how can A account for this continuity in this theory? Reason this is prob for A = habit of obedience central to his analysis of sovereignty. Because to describe Rex 2, the new monarch as a sovereign, Austin has to satisfy us that the population is in a habit of obedience, a general habit of obedience to Rex 2. But that habit can only come into being over time. Habit by nature can’t be formed instantly can only exist after certain period of time. So there must be some intervening period while we're still waiting to see if the habit of obedience forms. A has to satisfy us population in general habit of obedience to Rex 2 – so must be some intervening period while waiting to see if habit to Rex 2 will form. And during that gap, when there's not yet any new sovereign it must follow, of course, there's no law. Nobody to issue law. During that gap = no law? No obedience, so no sov so no law? But this seems wrong. But we don't have a habit of obedience yet. Can Austin explain the “interregnum” between Rex I and Rex II? The office has stayed in place. So it's true that if we think of the sovereign as the office, not the actual human being who holds it, then Austin does seem to solve that problem. If we think in terms of obedience to the office, then there's no disruption to the habit of obedience. There's no question of having to wait and see if a new habit will form in respect of the new office holder. To solve this H says though person died and replaced by another, office stayed constant. Monarchy as institution endured. If we are considering sovereign to mean the office, A seems to solve that problem. If obedience is to the office, then there is no disruption to obedience. We were never thinking in terms of obedience to the office holder, the human being, but just obedience to the office. So he's recast the sovereign. At least if he went down this route, he would be recasting the sovereign, not as a particular human being, but as a particular office. But Austin would do so only by creating another prob = he must explain what an office is. The answer is is surely going to have to rest on the concept of law. It is law that sets up that office. All offices are themselves legal institutions and processes. So if this route taken = problem of circularity. Sovereign makes law but law makes sovereign? It is law that constitutes this office, the monarchy or the presidency. So monarchy, presidency, it has this or that feature, and a particular person is able to accede to that office because of law. It's law that sets up that office and regulates the way in which its holders are appointed  H says A struggles to explain continuity of laws because of nature of habit of obedience & if he changes sovereign to mean office he runs into more trouble. Criticism 4: Constitutionally limited government In a modern Constitutional democracy, no institution fits Austin’s definition of the sovereign as there is SOP. No separate institution has unlimited power – but A says sovereign obeys no one else? Can we make sense of the “sovereign” in modern constitutional democracies? No one in model legal system meets his definition of the sovereign as every person in some sense is subordinate to another person (maybe because Austin had this idea as he was from Eng & parliament almost sovereign there). But Austin is discussing the general nature of law not law in a specific place, e.g. England, so his concept of law needs to fit all legal systems. His definition wouldn’t work in SA as parliament is not sovereign – limited by BORs. Constitution sovereign? Not going to work under Austin’s definition as Const can be amended by parl. Can you say people are sovereign? This is problematic for A as this would collapse distinction between those governing & those governed. A could say it is the people in both cases who govern and are governed, but they are operating in different capacities – as both lawmaker & subjects of the law. But problem here = A has to explain how the same person can serve in 2 different capacities. This seems to require account of what a legal capacity is and how a person can serve in 2 different capacities. H is encouraging you to see something missing at core of Austin’s theory. WHAT ARE THE GENERAL LESSONS OF THE CRITICISMS? Feature of As overall approach causing problems (see page 55). So at this point, Hart is revisiting what the 3rd criticism – the continuity of law. Hart has been saying that Austin runs into difficulty because he analyses the sovereign and thus law in terms of the population's habit of obedience – analyse it in terms of the facts of the externally observable behaviours. So the alleged sovereign issues a number of orders, and we will mostly do what those orders say over an extended period of time, then we can say that they have a genuine sovereign and thus law. But the problem is that the habit doesn't form immediately so there must be some gap when there is no sovereign. H thinks that can’t be right. To illustrate this we can use an example: - Rex 1 has died or a President loses an election and then now imagine 2 possible ways in which Rex 2 or the new president might come to be. - So the first way is that Rex dies, or a president loses the election and he steps down and is then succeeded by the person who won the election or is in line to the throne etc. Eldest son takes throne in normal away prescribed. - In the second scenario, some random servant of king murders eldest son and tries to seize power or incumbent president loses the election, but this time says, no I'm the true voice of the people & says unfoundedly that it was voter fraud and tries to whip up a mob to storm the presidential building to try and regain power on his behalf. - So again, ask yourself, how is the public going to react in the 2 different scenarios? - Their reactions will be rather different. When a person tries to seize power by a coup, you are likely to get a very different reaction from a person who accedes to the throne or to the presidency in the prescribed way. - In the case of the coup, people are likely to say, no. This guy has no right to be the president. He's behaving badly. Maybe even he's behaving illegally. Whereas oppositely, in the case of the person who exceeds in prescribed way.  Drawing out some basic intuitions about these cases. People are gonna react differently. They're gonna think there's something inappropriate about a person trying to seize power. They're gonna think there's something appropriate about their coming to power in a prescribed way. So it's true that maybe because of people's views on the matter, they are more likely to form a habit of obedience to the new president or King in the case where he has acceeded in prescribes manner. So it is true that they're more likely to form the habit of obedience that Austin is looking for, in one case rather than another. Community actually regards that person as entitled to their position. Hart implicity says people believe that one person is entitled to have the right to be their ruler rather than the other guy who staged a coup. How can it be that the one way of taking power was regarded by them as appropriate, indeed, legally appropriate, and the other was inappropriate and horrible? Key thing = habit by itself not striking feature of whats going on here – habit comes into existence in one case & not other for a reason – reason = community regards that person as entitled to that obedience. H says implicitly that that is what you need to explain to explain law – why these people believe 1 person rather than other is entitled to be ruler. So don't jump straight to fact of habit coming into existence. Rather think about why habit comes into existence if it does. So you need to dwell on why these people, in advance of the formation of any habit of obedience, thought that the one potential successor was legally entitled to succeed, but not other. What's going on in their minds when they form that view? Don’t jump straight to fact of habit coming into existence. And that then sets the stage for Hart's general analysis of the distinction between a habit and a social rule (page 55) – Mere habits versus social rules, which include an “internal aspect”. So it gives some examples of habits: - Going to the cinema on Saturday nights. - Tying one’s left shoelace before one’s right. If one night person doesn’t go to cinema = would you ask why etc and criticise them? No. Habit doesn’t have normative force – you don’t believe you should do it & if you don’t no one has basis to criticise you. Or if some person on a rare occasion has some kind of desire to tie right shoelace before thy left, would it make sense to criticise them for doing that? Would it make sense to regard them as doing something wrong? Obviously not. And that's because a mere habit, a mere regularity of behaviour doesn't buy itself of any normative force. So just because you have a habit of doing something doesn't mean you should. Then there are social rules on the other hand. Examples of social rules: - Paying one’s taxes in late February every year. - Removing one’s hat when one enters a church. - Stopping at a red traffic light whenever one approaches it. These are habits as they are a regular behaviour but the crucial thing is that a habit is not all you have here. Unlike a normal habit, if person doesn't do this he will be regarded by others as having done something wrong and may think they themself did wrong. It misunderstands the situation to think this is a mere habit. Because now, unlike in the previous two examples, if the person doesn't do this thing on a particular occasion, he will be regarded by others as having done something wrong, and probably he'll regard himself as having done something wrong.  So Hart calls this extra ingredient the internal aspect of rules. Have something more than mere habit – have extra feature that people think you ought to do these things – good reason to do it and if you do not you will be criticised – H describes this as a reflective critical attitude towards the action in Q and when you have habit of obedience + critical reflective attitude you have what H calls a social rule. Standard of behaviour, unlike habit, is normative – a standard that they ought to comply to. May say reason they have habit of conforming to rule is because they think it is a standard of behaviour. H calls this extra ingredient the internal aspect of rules – it tends to the internal or subjective perspective of those who are following the rules – using rules to guide their conduct and they regard it as reason to criticise others who haven't done that. Contrast with external perspective – person who does not adhere to internal perspective only external perspective. And contrasting internal perspective with the external perspective, which is the perspective of a person who does not attend to the subjective experience of the participants in the practice, but only to the objective appearance – e.g. that the traffic will stop at red light. In so doing, person looking only at external perspective will miss out a whole dimension of the social life of those whom he is watching. Since for them, red light is not merely a sign that others will stop, they look upon it as a signal for them to stop. And so a reason for stopping in conformity to rules, which make stopping when light is red a standard of behaviour and an obligation. If you just said every time the traffic light goes red, cars stop then move off again when it goes green. That would be quite a poor explanation of what traffic lights are. It would surely, to give a better explanation, want to go a step further. H says unless you adopt internal perspective, you can’t draw distinction between mere habits & social rules – crucial difference is that social rules are habits coupled with the internal state of mind of rule follower. H thinks to understand law properly you must attend to internal aspect of rules & understand internal perspective. H is not saying external aspect unimportant – can be NB to predict what people do and generate better understanding what acts they are likely to perform. But need to accommodate both in your theory. Analogy: if attuned to external perspective only, like trying to observe traffic light merely by observing behaviour of drivers, would say that when light turns red there is high probability traffic will stop – but thus misses out as red light signals to stop and reason to stop in conformity – this makes stopping a standard of behaviour and an obligation. And so it's not just a coincidence that the car stopped when the lights are red. It's not just a fact about particle motion. It's explained by what goes on in the minds of the people driving the car. It's explained by the fact that the drivers treat the red light as a signal of how they need to behave. They believe it's appropriate to stop at red light, and that's why they do it. Because Austin made habits of obedience his crucial unit of analysis, and an essential feature of law, which is that participants in the system, or at least some of them, treat laws as norms = cause of Austin’s theory's failure. So there'd be something impoverished about trying to explain traffic lights just looking at the external, just taking the external perspective, just observing. H's being quite clear about what he considers to be key to understanding the concept of rules – the internal aspect of rules. And you can see how on with this new understanding, how things you can give a better understanding of Rex 1 and Rex 2. Contrast the external, “behaviourist” perspective and the internal, “hermeneutic” perspective Central feature of traffic lights is how they feature as normative – punchline is that H thinks the same is true for law. Misses central feature of law i.e. that participants in system treat law as normative.  Root cause of As theory (page 80) = doesn’t include idea of a social rule without which we cant elucidate even the most elementary formation of what law is. H being clear about what he thinks is clear to understanding concept of law – internal aspect of rules. H thinks he can give better understanding of R1 & R2 – not obeying R2 as mere habit over time. Habit of obedience comes to exist as people regard R2 as having legitimate authority over them. Austin was unable to get at that basic feature as he was trying to insist on external perspective only Internal perspective can also solve other problems Austin had – Customary law problem solved as H can say CL is law due to fact it has normative force in community. No need for H to fish around like Austin for some act of commanding to explain why CL is law. We saw problem of power conferring rules and stale mate in Kelsenian solution last week – Kelsen says power conferring rules can always be connected to duty imposing ones – H said he couldn’t refute that yet but now he is addressing it. H says there is problem even with Austins analysis of duties – Kelsen tried to say A’s problem solved if don't take power conferring rules in isolation. But that doesn’t help A in the end as A failed to analyse duty imposing rules properly as he misconceives connection between duties & sanctions – he sees sanctions as being constituent under legal duty but fails to see that breach of duty is reason for imposing sanction. But Austin failed even to analyse duty imposing rules properly because Austin misconceives the connection between duties and sanctions – that duty is the reason for inferring the sanction. A said you are only under a legal duty if: you are subject of a command and if command not followed you will be issued with a sanction. It was absolutely integral to Austin's account, that one has a legal duty only if one would be exposed to a sanction. And if I'm not gonna be exposed to a sanction? So we might even ask Austin, how do you tell if you have a legal duty to perform an action? And his reply would be, well, if you did something you were told not to, and you're going to be hit with the sanction if you don't do it, then we can say you had a duty. H says that can’t be right – returns to traffic example. So imagine I run the red traffic light, and then in the seconds immediately afterwards, my wife is sitting there trying to decide whether she's going to shout at me i.e. whether to impose a social sanction on me. And there's a traffic cop too, or the vagrant who observed me flying through the red light, and he's thinking, what should I do now? Running red light from POV of those trying to decide whether to sanction – from A theory = have to see if given ticket etc So if you freeze the frame whether the person breached the duty when he went through the red light, we need to see, isn't evil going to be imposed? Thats what would allow to decide whether person breached duty – need to see if evil will be imposed on him. Only if once we see that, do we know there's a duty. So again, how satisfying is that explanation going to be if you were to offer it to my wife or the traffic cop? It won't be satisfying. Austin says don't know yet if sanction imposed & thus don't know if duty breached – unsatisfactory? Cop knows breached duty and that breach is why they want to impose a sanction. Austin says we don't know yet whether there was a sanction imposed, and therefore, we don't know yet whether there was a duty breached. But that's ridiculous to them. Right? Because they've noticed I've breached the duty.  They adopt a critical reflective attitude towards the conduct So Austin must be wrong to say duty exists only by imposition of sanction. H says if we adopt this, we miss the role duty plays in people’s thinking. So NB to note the proper connection between duties and sanctions. The duty being breached is exactly why they are now thinking I'd better shout to them or I'd better give them the ticket. It's the breach of duty. It's the reason why they want to impose a sanction. They've noticed I've gone through the traffic light. They think I had a duty not to. They adopt a critical reflective attitude towards my conduct, and thats why those other people concluded that I deserved to be sanctioned. H says, if you adopt Austin’s view of the situation, then you miss this whole aspect. Have to take internal perspective – H doesn’t think it is illogical to fixate on external only but then you will fail to see how law works. It's possible to do that. But then you will fail to see an important aspect of how it will work. You'll be unable to explain why the traffic will act in the way that it does. And, actually, the traffic cop is not the clearest or most important example of a legal official being guided by law and deciding whether to impose a sanction. Can apply this to perspective of judges too – they are most often tasked with deciding whether to impose sanctions on people and when they do so they are guided by law so we need to understand how law guides them. The internal perspective is perhaps most important when we turn guilty, then we go to the sentencing stage, and the judge at the sentencing hearing needs to decide, what should I do now? Should I sanction because of that breach, that's why he's now going to impose the sanction. H says Austin’s account is at strongest in seeking to explain criminal law but doesn't work very well even there. Think of judge in murder trial. Imagine jury finds accused guilty, then we come tp sentencing stage and judge needs to decide what to do – if sanctioned imposed then Austin would say there was law. That cant help to illuminate judges situation – judge going to take account of fact that accused has broken law – central to his decision on sanction. Judge must already understand accused broken prohibition and because of breach he will impose sanction So A’s account wont do here as he is not explaining existence of law and that fact it was breached is why sanction imposed. A’s problem is due to fact he tried to stay focused on external perspective. But need to also look at internal – switch to this view is major milestone in history of ideas – A’s account seems appealing & scientific as he tries to boil law down to observable aspects of human behaviour – like studying a lab rat. All about facts. A’s approach maybe appealing for this – Austinian method sometimes called behaviourism. Austin seems, in some ways, appear to be scientific