Bentham insisted on this distinction without characterizing morality by reference to God but only, of course, by reference to the principles of utility. Both thinkers' prime reason for this insistence was to enable men to see steadily the precise issues posed by the existence of morally bad laws, and to understand the specific character of the authority of a legal order. Bentham's general recipe for life under the government of laws was simple: it was "to obey punctually; to censure freely.
Yet, this was precisely what the confusion between law and morals had done and Bentham found that the confusion had spread symmetrically in two different directions. On the one hand Bentham had in mind the anarchist who argues thus: "This ought not to be the law, therefore it is not and I am free not merely to censure but to disregard it. Both errors, Bentham thought, were to be found in Blackstone: there was his incautious statement that human laws were invalid if contrary to the law of God, and "that spirit of obsequious quietism that seems constitutional in our Author" which "will scarce ever let him recognise a difference" between what is and what ought to be.
This indeed was for Bentham the occupational disease of lawyers: "In the eyes of lawyers not to speak of their dupes that is to say, as yet, the generality of non-lawyers the is and ought to be In view of criticisms it is also important to distinguish several things that the Utilitarians did not mean by insisting on their separation of law and morals. They certainly accepted many of the things that might be called "the intersection of law and morals. It is not in fact always easy to trace this historical causal connection, but Bentham was certainly ready to admit its existence; so too Austin spoke of the "frequent coincidence"of positive law and morality and attributed the confusion of what law is with what law ought to be to this very fact.
Secondly, neither Bentham nor his followers denied that by explicit legal provisions moral principles might at different points be brought into a legal system and form part of its rules, or that courts might be legally bound to decide in accordance with what they thought just or best. Bentham indeed recognized, as Austin did not, that even the supreme legislative power might be subjected to legal restraints by a constitution and would not have denied that moral principles, like those of the fifth amendment, might form the content of such legal constitutional restraints.
Austin differed in thinking that restraints on the supreme legislative power could not have the force of law, but would remain merely political or moral checks; but of course he would have recognized that a statute, for example, might confer a delegated legislative power and restrict the area of its exercise by reference to moral principles.
What both Bentham and Austin were anxious to assert were the following two simple things: first, in the absence of an expressed constitutional or legal provision, it could not follow from the mere fact that a rule violated standards of morality that it was not a rule of law; and, conversely, it could not follow from the mere fact that a rule was morally desirable that it was a rule of law.
The history of this simple doctrine in the nineteenth century is too long and too intricate to trace here. Let me summarize it by saying that after it was propounded to the world by Austin it dominated English jurisprudence and constitutes part of the framework of most of those curiously English and perhaps unsatisfactory productions the omnibus surveys of the whole field of jurisprudence.
A succession of these were published after a full text of Austin's lectures finally appeared in In each of them the utilitarian separation of law and morals is treated as something that enables lawyers to attain a new clarity. Austin was said by one of his English successors, Amos, "to have delivered the law from the dead body of morality that still clung to it"; and even Maine, who was critical of Austin at many points, did not question this part of his doctrine.
In the United States men like N. John Green, Gray, and Holmes considered that insistence on this distinction had enabled the understanding of law as a means of social control to get off to a fruitful new start; they welcomed it both as self-evident and as illuminating as a revealing tautology.
This distinction is, of course, one of the main themes of Holmes' most famous essay "The Path of the Law," but the place it had in the estimation of these American writers is best seen in what Gray wrote at the turn of the century in The Nature and Sources of the Law.
He said: The great gain in its fundamental conceptions which Jurisprudence made during the last century was the recognition of the truth that the Law of a State To fix this definitely in the Jurisprudence of the Common Law, is the feat that Austin accomplished. So much for the doctrine in the heyday of its success. Let us turn now to some of the criticisms.
We must remember that the Utilitarians combined with their insistence on the separation of law and morals two other equally famous but distinct doctrines.
One was the important truth that a purely analytical study of legal concepts, a study of the meaning of the distinctive vocabulary of the law, was as vital to our understanding of the nature of law as historical or sociological studies, though of course it could not supplant them. The other doctrine was the famous imperative theory of law that law is essentially a command. These three doctrines constitute the utilitarian tradition in jurisprudence; yet they are distinct doctrines.
It is possible to endorse the separation between law and morals and to value analytical inquiries into the meaning of legal concepts and yet think it wrong to conceive of law as essentially a command. One source of great confusion in the criticism of the separation of law and morals was the belief that the falsity of any one of these three doctrines in the utilitarian tradition showed the other two to be false; what was worse was the failure to see that there were three quite separate doctrines in this tradition.
The indiscriminate use of the label "positivism" to designate ambiguously each of these three separate doctrines together with some others which the Utilitarians never professed has perhaps confused the issue more than any other single factor. Some of the early American critics of the Austinian doctrine were, however, admirably clear on just this matter.
Gray, for example, added at the end of the tribute to Austin, which I have already quoted, the words, "He may have been wrong in treating the Law of the State as being the command of the sovereign" and he touched shrewdly on many points where the command theory is defective.
But other critics have been less clearheaded and have thought that the inadequacies of the command theory which gradually came to light were sufficient to demonstrate the falsity of the separation of law and morals.
This was a mistake, but a natural one. To see how natural it was we must look a little more closely at the command idea. The famous theory that law is a command was a part of a wider and more ambitious claim. Austin said that the notion of a command was "the key to the sciences of jurisprudence and morals," and contemporary attempts to elucidate moral judgments in terms of "imperative" or "prescriptive" utterances echo this ambitious claim. There is much, even in the simplest legal system, that is distorted if presented as a command.
Yet the Utilitarians thought that the essence of a legal system could be conveyed if the notion of a command were supplemented by that of a habit of obedience. The simple scheme was this: What is a command? It is simply an expression by one person of the desire that another person should do or abstain from some action, accompanied by a threat of punishment which is likely to follow disobedience. Commands are laws if two conditions are satisfied: first, they must be general; second, they must be commanded by what as both Bentham and Austin claimed exists in every political society whatever its constitutional form, namely, a person or a group of persons who are in receipt of habitual obedience from most of the society but pay no such obedience to others.
These persons are its sovereign. Thus law is the command of the uncommanded commanders of societythe creation of the legally untrammelled will of the sovereign who is by definition outside the law. It is easy to see that this account of a legal system is threadbare. One can also see why it might seem that its inadequacy is due to the omission of some essential connection with morality. The situation which the simple trilogy of command, sanction, and sovereign avails to describe, if you take these notions at all precisely, is like that of a gunman saying to his victim, "Give me your money or your life.
Law surely is not the gunman situation writ large, and legal order is surely not to be thus simply identified with compulsion. This scheme, despite the points of obvious analogy between a statute and a command, omits some of the most characteristic elements of law.
Let me cite a few. It is wrong to think of a legislature and a fortiori an electorate with a changing membership, as a group of persons habitually obeyed: this simple idea is suited only to a monarch sufficiently long-lived for a "habit" to grow up.
Even if we waive this point, nothing which legislators do makes law unless they comply with fundamental accepted rules specifying the essential lawmaking procedures.
This is true even in a system having a simple unitary constitution like the British. These fundamental accepted rules specifying what the legislature must do to legislate are not commands habitually obeyed, nor can they be expressed as habits of obedience to persons. They lie at the root of a legal system, and what is most missing in the utilitarian scheme is an analysis of what it is for a social group and its officials to accept such rules. This notion, not that of a command as Austin claimed, is the "key to the science of jurisprudence," or at least one of the keys.
Again, Austin, in the case of the democracy, looked past the legislators to the electorate as "the sovereign" or in England as part of it. He thought that in the United States the mass of the electors to the state and federal legislatures were the sovereign whose commands, given by their "agent" in the legislatures, were law. But on this footing the whole notion of the sovereign outside the law being "habitually obeyed" by the "bulk" of the population must go: for in this case the "bulk" obeys the bulk, that is, it obeys itself.
Plainly the general acceptance of the authority of a lawmaking procedure, irrespective of the changing individuals [29]who operate it from time to time, can be only distorted by an analysis in terms of mass habitual obedience to certain persons who are by definition outside the law, just as the cognate but much simpler phenomenon of the general social acceptance of a rule, say of taking off the hat when entering a church, would be distorted if represented as habitual obedience by the mass to specific persons.
Other critics dimly sensed a further and more important defect in the command theory, yet blurred the edge of an important criticism by assuming that the defect was due to the failure to insist upon some important connection between law and morals.
This more radical defect is as follows. In this picture no place, or only an accidental or subordinate place, is afforded for a distinction between types of legal rules which are in fact radically different.
Some laws require men to act in certain ways or to abstain from acting whether they wish to or not. The criminal law consists largely of rules of this sort: like commands they are simply "obeyed" or "disobeyed.
They provide facilities more or less elaborate for individuals to create structures of rights and duties for the conduct of life within the coercive framework of the law. Such are the rules enabling individuals to make contracts, wills, and trusts, and generally to mould their legal relations with others. Such rules, unlike the criminal law, are not factors designed to obstruct wishes and choices of an antisocial sort. On the contrary, these rules provide facilities for the realization of wishes and choices.
They do not say like commands "do this whether you wish it or not," but rather "if you wish to do this, here is the way to do it. These phrases mark off characteristic features of laws that confer rights and powers; they are laws which are, so to speak, put at the disposition of individuals in a way in which the criminal law is not. Much ingenuity has gone into the task of "reducing" laws of this second sort to some complex variant of laws of the first sort.
The effort to show that laws conferring rights are "really" only conditional stipulations of sanctions to be exacted from the person ultimately under a legal duty characterizes much of Kelsen's work. One might as well urge that the rules of baseball were "really" only complex conditional directions to the scorer and that this showed their real or "essential" nature.
Rights, after all, exist under the rules of cere-[30]monies, games, and in many other spheres regulated by rules which are irrelevant to the question of justice or what the law ought to be.
Nor need rules which confer rights be just or morally good rules. The rights of a master over his slaves show us that. These critics indeed revealed the inadequacy of the simple notions of command and habit for the analysis of law; at many points it is apparent that the social acceptance of a rule or standard of authority even if it is motivated only by fear or superstition or rests on inertia must be brought into the analysis and cannot itself be reduced to the two simple terms. Yet nothing in this showed the utilitarian insistence on the distinction between the existence of law and its "merits" to be wrong.
Notes 1. Hart's critique of the command theory of Austin, and the related theory of Hans Kelsen, focuses on the functional character of a command and its relation to the notion of a sovereign, rather than on the coercive power of the state that, according to the earlier theorists, was a crucial part of what made such commands law and distinguished them from other non-law directives. Why might the earlier positivists have cared so much about defining law so as to emphasize its coercive character?
Does the use of state coercion raise special moral considerations? Does defining the law in terms of state coercion serve to isolate those considerations? If one concedes that the law as it is may diverge from law as it ought to be, then one needs terminology for referring to each idea. When we say, "The law requires X," we are ordinarily making a reference to the law "as it is. Yet it is arguable that, all things considered, the law should not always satisfy or enforce the demands of justice Can you think of examples?
The eighteenth century German philosopher Immanuel Kant seems to have used the term "right" to refer to that part of morality which should be reflected in the law.
But similar problems arise, since one can imagine moral rights that ought not to be made legal rights. Again, can you think of examples? In order to avoid linguistic disputes, perhaps we should be content with a term like "ideal law" to refer to the law as it ought to be, recognizing that what is ideal may not be the same for all societies at all times; indeed, there may be no unique ideal law for any given society at any given time.
In subsequent Parts of these materials, we will examine some of what can be said in characterizing ideal law, at least in American society. Professor Hart clearly distinguishes between utilitarianism and legal positivism, even though these views were both held by people like Austin and Bentham.
Whereas positivism is a theory about the nature of law, that is a legal theory, utilitarianism is one form of moral theory. As Hart notes, utilitarian arguments can be used, and have been used, to criticize existing law, to indicate in what respects extant law differs from the ideal. But utilitarianism is not the only such form of moral theory. In particular, it has been challenged as giving too little weight to the notion of individual rights.
To generalize, three types of moral argument can be identified. First, there are consequentialist also called teleological modes of argument, such as utilitarianism, in which moral duty is derived entirely from the goodness or badness of the consequences of action.
Second, there are nonconsequentialist also called deontological modes, such as some arguments from "natural rights," in which moral duty is derived in some way that does not depend on the appraisal of the material consequences of accepting the argument, but rather on the inherent rightness or wrongness of the conduct in question.
Especially prominent have been hypotheticals specifically designed to generate a conflict in the prescriptions that may be derived from utilitarian and rights-based approaches. They are usually some variation on the theme of what to do when you are faced with a situation in which intentionally killing an innocent person will result in the saving of many others.
For example: Suppose you are the driver of a trolley. The trolley rounds a bend, and there come into view ahead five track workmen, who have been repairing the track.
The track goes through a bit of a valley at that point, and the sides are steep, so you must stop the trolley if you are to avoid running the five men down.
You step on the brakes, but alas they don't work. Now you suddenly see a spur of track leading off to the right. You can turn the trolley onto it, and thus save the five men on the straight track ahead.
He can no more get off the track in time than the five can, so you will kill him if you turn the trolley onto him. Is it morally permissible [or required] for you to turn the trolley?
Finally, there are what may be called "mixed" or "hybrid" modes of argument which try to combine the strengths of both consequentialist and nonconsequentialist analyses, allowing a place for each. For example, it has been suggested that the different modes of argument can be seen as different but complementary ways of checking and testing our moral intuitions against historically observed practices and conventions?
POL'Y Which mode of argument do you find most acceptable, the consequentialist, the nonconsequentialist, or a mixture? It is all too easy to opt for the mixed mode; bear in mind that many philosophers have found consequentialism and deontology to be fundamentally incompatible. You will have many occasions to think about these issues in the following materials. What does it mean for a judge to accept positivism? How might a judge reason about his or her responsibilities in deciding a case if the judge accepts positivism?
How does Justice Story's opinion in Prigg illustrate the issues? Did Story employ any moral theory in deciding the case? See bibliographical note Kelsen began his long career as a legal theorist at the beginning of the 20 th century.
The traditional legal philosophies at the time, were, Kelsen claimed, hopelessly contaminated with political ideology and moralizing on the one hand, or with attempts to reduce the law to natural or social sciences, on the other hand. He found both of these reductionist endeavors seriously flawed. Kelsen firmly believed that if the law is to be considered as a unique normative practice, methodological reductionism should be avoided entirely.
But this approach is not only a matter of method. Reductionism should be avoided because the law is a unique phenomenon, quite separate from morality and nature.
The Basic Norm The law, according to Kelsen, is a system of norms. Unlike moral norms, however, Kelsen maintained that legal norms are created by acts of will. They are products of deliberate human action. For instance, some people gather in a hall, speak, raise their hands, count them, and promulgate a string of words. These are actions and events taking place at a specific time and space. To say that what we have described here is the enactment of a law, is to interpret these actions and events by ascribing a normative significance to them.
Kelsen's reply is enchantingly simple: we ascribe a legal ought to such norm-creating acts by, ultimately, presupposing it. As opposed to moral norms which, according to Kelsen, are typically deduced from other moral norms by syllogism e. Ultimately, Kelsen argued, one must reach a point where the authorizing norm is no longer the product of an act of will, but is simply presupposed, and this is, what Kelsen called, the Basic Norm.
Kelsen attributed two main explanatory functions to the Basic Norm: it explains both the unity of a legal system and the reasons for the legal validity of norms. Furthermore, Kelsen argued that every two norms which derive their validity from a single Basic Norm necessarily belong to the same legal system and, vice versa, so that all legal norms of a given legal system derive their validity from one Basic Norm.
It is widely acknowledged that Kelsen erred in these assumptions about the unity of legal systems. Generally speaking, in spite of the considerable interest in Kelsen's theory of legal systems and their unity that derives from a single Basic Norm, critics have shown that this aspect of Kelsen's theory is refutable. Although it is certainly true that the law always comes in systems, the unity of the system and its separation from other systems is almost never as neat as Kelsen assumed.
Contemporary legal positivists have traditionally accounted for the normativity of law in terms of social facts: people tend to perceive of the legal norms in their community as valid because, ultimately, there are certain social conventions, or Rules of Recognition in H. Hart's terminology, that determine who is authorized to make law and how law making is to be done. But this is precisely the kind of reductionism that the Pure Theory strives to deny. Common wisdom has it that in this kind of reasoning Kelsen self-consciously employs a Kantian Transcendental argument to establish the necessary presupposition of the Basic Norm.
Thus the argument takes the following form: 1. P is possible only if Q. Therefore, Q. The Kantian categories and modes of perception are not optional; they form a deep, universal, and necessary feature of rational cognition.
One should recall that it is Humean skepticism that Kant strove to answer. Kelsen, however, remains Humean through and through, Kantian influences notwithstanding. First, Kelsen was very skeptical about any objectivist moral theory, Kant's included. It is not necessary for anyone to accept the Basic Norm. But in both cases, there is nothing in the nature of things which would compel any particular person to adopt such a normative perspective. Kelsen's argument does not rule out atheism or anarchism.
However, even the anarchist, Kelsen maintained, must presuppose the Basic Norm if she is to account for the normativity of law. But again, this presupposition is only an intellectual tool, not a normative commitment, and as the latter, it is entirely optional. The Normativity of Law This analogy between law and religion, on which Kelsen often dwells, is more limited than it first appears, however. The normativity of religion, like that of morality, does not depend on the actual obedience of their respective subjects.
For those, for example, who presuppose the basic norm of Christianity, the latter would be valid even if there are no other Christians around. But this, as Kelsen explicitly admits, is not the case with law.
As Kelsen repeatedly argued, a successful revolution brings about a radical change in the content of the Basic Norm. Suppose, for example, that in a given legal system the Basic Norm is that the constitution enacted by Rex One is binding. At a certain point, a coup d'etat takes place and a republican government is successfully installed.
Kelsen was not unaware of the difficulty. In the first edition of the Pure Theory of Law, he suggests the solution to this problem by introducing international law as the source of validity for changes in the basic norms of municipal legal systems. It follows from the basic norm of international law, Kelsen maintains, that state sovereignty is determined by successful control over a given territory.
Therefore, the changes in the basic norm which stem from successful revolutions can be accounted for in legalistic terms, relying on the dogmas of international law. Although this solution is repeated in the second edition of the Pure Theory of Law [], Kelsen presented it there with much more hesitation, perhaps just as an option which would make sense.
It is not quite clear whether Kelsen really adhered to it. We should recall that the development of international law is a relatively recent phenomenon in the history of law. The answer depends on how we construe the explanatory function of the Basic Norm: Neither Kelsen nor his critics seem to have been careful to distinguish between the role of the Basic Norm in answering the question of how we identify the law as such, and in answering the question of law's normativity.
An answer to the question of what counts as law or as law creating acts in a given community cannot be detached from practice, namely, social conventions. The social conventions prevalent in any given community determine, ultimately, what counts as law in that community.
Social conventions can only determine what the practice is, and how one would go about in engaging in it; conventions cannot determine that one ought to engage in the practice. What chess is, and how one should play the game, are determined by its constitutive rules or conventions. Those rules which constitute the game of chess, however, cannot provide anyone with a complete reason to play the game. The normativity of the game is conditional; it depends on a prior reason, or commitment, to play the game.
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