JURISPRUDENCE

TOPICAL OUTLINES

1. Legal Positivism

2. Natural Law

3. Feminist Jurisprudence

4. Marxist Jurisprudence

5. Sociological Jurisprudence

Meaning and introduction to Jurisprudence

The word jurisprudence derives from the Latin term juris prudentia, which means "the study, knowledge,
or science of law." In the United States jurisprudence commonly means the philosophy of law. Legal
philosophy has many aspects, but four of them are the most common. The first and the most
prevalent form of jurisprudence seeks to analyse, explain, classify, and criticize entire bodies of law.
Law school textbooks and legal encyclopedias represent this type of scholarship. The second type of
jurisprudence compares and contrasts law with other fields of knowledge such as literature,
economics, religion, and the social sciences. The third type of jurisprudence seeks to reveal the
historical, moral, and cultural basis of a particular legal concept. The fourth body of jurisprudence
focuses on finding the answer to such abstract questions as what is law? How do judges (properly)
decide cases?

Apart from different types of jurisprudence, different schools of jurisprudence exist. Formalism, or
conceptualism, treats law like math or science. Formalists believe that a judge identifies the relevant
legal principles, applies them to the facts of a case, and logically deduces a rule that will govern the
outcome of the dispute. In contrast, proponents of legal realism believe that most cases before
courts present hard questions that judges must resolve by balancing the interests of the parties and
ultimately drawing an arbitrary line on one side of the dispute. This line, realists maintain, is drawn
according to the political, economic, and psychological inclinations of the judge. Some legal realists
even believe that a judge is able to shape the outcome of the case based on personal biases.

Apart from the realist-formalist dichotomy, there is the classic debate over the appropriate sources
of law between positivist and natural law schools of thought. Positivists argue that there is no
connection between law and morality and that the only sources of law are rules that have been
expressly enacted by a governmental entity or court of law. Naturalists, or proponents of natural
law, insist that the rules enacted by government are not the only sources of law. They argue that
moral philosophy; religion, human reason and individual conscience are also integral parts of
the law.

There are no bright lines between different schools of jurisprudence. The legal philosophy of a
particular legal scholar may consist of a combination of strains from many schools of legal thought.
Some scholars think that it is more appropriate to think about jurisprudence as a continuum.

LEGAL POSITIVISM

RESEARCH DONE FROM: http://plato.stanford.edu/entries/legal-positivism/

Legal positivism is the thesis that the existence and content of law depends on social facts and not on
its merits. The English jurist John Austin (1790-1859) formulated it thus: ―The existence of law is
one thing; its merit and demerit another. Whether it be or be not is one enquiry; whether it be or be
not conformable to an assumed standard, is a different enquiry.‖ (1832, p. 157) The positivist thesis
does not say that law's merits are unintelligible, unimportant, or peripheral to the philosophy of law.
It says that they do not determine whether laws or legal systems exist. Whether a society has a legal
system depends on the presence of certain structures of governance, not on the extent to which it
satisfies ideals of justice, democracy, or the rule of law. What laws are in force in that system depends
on what social standards its officials recognize as authoritative; for example, legislative enactments,
judicial decisions, or social customs. The fact that a policy would be just, wise, efficient, or prudent is
never sufficient reason for thinking that it is actually the law, and the fact that it is unjust, unwise,
inefficient or imprudent is never sufficient reason for doubting it. According to positivism, law is a
matter of what has been posited (ordered, decided, practiced, tolerated, etc.); as we might say in a
more modern idiom, positivism is the view that law is a social construction. Austin thought the thesis
―simple and glaring.‖ While it is probably the dominant view among analytically inclined
philosophers of law, it is also the subject of competing interpretations together with persistent
criticisms and misunderstandings.

1. Development and Influence

Legal positivism has a long history and a broad influence. It has antecedents in ancient political
philosophy and is discussed, and the term itself introduced, in mediaeval legal and political thought
(see Finnis 1996). The modern doctrine, however, owes little to these forbears. Its most important
roots lie in the conventionalist political philosophies of Hobbes and Hume, and its first full
elaboration is due to Jeremy Bentham (1748-1832) whose account Austin adopted, modified, and
popularized. For much of the next century an amalgam of their views, according to which law is the
command of a sovereign backed by force, dominated legal positivism and English philosophical
reflection about law. By the mid-twentieth century, however, this account had lost its influence
among working legal philosophers. Its emphasis on legislative institutions was replaced by a focus on
law-applying institutions such as courts, and its insistence of the role of coercive force gave way to
theories emphasizing the systematic and normative character of law. The most important architects
of this revised positivism are the Austrian jurist Hans Kelsen (1881-1973) and the two dominating
figures in the analytic philosophy of law, H.L.A. Hart (1907-92) and Joseph Raz among whom there
are clear lines of influence, but also important contrasts. Legal positivism's importance, however, is
not confined to the philosophy of law. It can be seen throughout social theory, particularly in the
works of Marx, Weber, and Durkheim, and also (though here unwittingly) among many lawyers,
including the American ―legal realists‖ and most contemporary feminist scholars. Although they
disagree on many other points, these writers all acknowledge that law is essentially a matter of social
fact. Some of them are, it is true, uncomfortable with the label ―legal positivism‖ and therefore hope
to escape it. Their discomfort is sometimes the product of confusion. Lawyers often use ―positivist‖
abusively, to condemn a formalistic doctrine according to which law is always clear and, however
pointless or wrong, is to be rigorously applied by officials and obeyed by subjects. It is doubtful that
anyone ever held this view; but it is in any case false, it has nothing to do with legal positivism, and it
is expressly rejected by all leading positivists. Among the philosophically literate another, more
intelligible, misunderstanding may interfere. Legal positivism is here sometimes associated with the
homonymic but independent doctrines of logical positivism (the meaning of a sentence is its mode of
verification) or sociological positivism (social phenomena can be studied only through the methods
of natural science). While there are historical connections, and also commonalities of temper, among
these ideas, they are essentially different. The view that the existence of law depends on social facts
does not rest on a particular semantic thesis, and it is compatible with a range of theories about how
one investigates social facts, including non-naturalistic accounts. To say that the existence of law
depends on facts and not on its merits is a thesis about the relation among laws, facts, and merits, and
not otherwise a thesis about the individual relata. Hence, most traditional ―natural law‖ moral
doctrines--including the belief in a universal, objective morality grounded in human nature--do not
contradict legal positivism. The only influential positivist moral theories are the views that moral
norms are valid only if they have a source in divine commands or in social conventions. Such theists
and relativists apply to morality the constraints that legal positivists think hold for law.

2. The Existence and Sources of Law

Every human society has some form of social order, some way of marking and encouraging
approved behavior, deterring disapproved behavior, and resolving disputes. What then is distinctive
of societies with legal systems and, within those societies, of their law? Before exploring some
positivist answers, it bears emphasizing that these are not the only questions worth asking. While an
understanding of the nature of law requires an account of what makes law distinctive, it also requires
an understanding of what it has in common with other forms of social control. Some Marxists are
positivists about the nature of law while insisting that its distinguishing characteristics matter less
than its role in replicating and facilitating other forms of domination. (Though other Marxists
disagree: see Pashukanis). They think that the specific nature of law casts little light on their primary
concerns. But one can hardly know that in advance; it depends on what the nature of law actually is.

According to Bentham and Austin, law is a phenomenon of large societies with a sovereign: a
determinate person or group who have supreme and absolute de facto power -- they are obeyed by all
or most others but do not themselves similarly obey anyone else. The laws in that society are a subset
of the sovereign's commands: general orders that apply to classes of actions and people and that are
backed up by threat of force or ―sanction.‖ This imperatival theory is positivist, for it identifies the
existence of legal systems with patterns of command and obedience that can be ascertained without
considering whether the sovereign has a moral right to rule or whether his commands are
meritorious. It has two other distinctive features. The theory is monistic: it represents all laws as having
a single form, imposing obligations on their subjects, though not on the sovereign himself. The
imperativalist acknowledges that ultimate legislative power may be self-limiting, or limited externally
by what public opinion will tolerate, and also that legal systems contain provisions that are not
imperatives (for example, permissions, definitions, and so on). But they regard these as part of the
non-legal material that is necessary for, and part of, every legal system. (Austin is a bit more liberal on
this point). The theory is also reductivist, for it maintains that the normative language used in
describing and stating the law -- talk of authority, rights, obligations, and so on -- can all be analyzed
without remainder in non-normative terms, ultimately as concatenations of statements about power
and obedience.

Imperatival theories are now without influence in legal philosophy (but see Ladenson and Morison).
What survives of their outlook is the idea that legal theory must ultimately be rooted in some account
of the political system, an insight that came to be shared by all major positivists save Kelsen. Their
particular conception of a society under a sovereign commander, however, is friendless (except
among Foucauldians, who strangely take this relic as the ideal-type of what they call ―juridical‖
power). It is clear that in complex societies there may be no one who has all the attributes of
sovereignty, for ultimate authority may be divided among organs and may itself be limited by law.
Moreover, even when ―sovereignty‖ is not being used in its legal sense it is nonetheless a normative
concept. A legislator is one who has authority to make laws, and not merely someone with great social
power, and it is doubtful that ―habits of obedience‖ is a candidate reduction for explaining authority.
Obedience is a normative concept. To distinguish it from coincidental compliance we need
something like the idea of subjects being oriented to, or guided by, the commands. Explicating this
will carry us far from the power-based notions with which classical positivism hoped to work. The
imperativalists' account of obligation is also subject to decisive objections (Hart, 1994, pp. 26-78; and
Hacker). Treating all laws as commands conceals important differences in their social functions, in
the ways they operate in practical reasoning, and in the sort of justifications to which they are liable.
For instance, laws conferring the power to marry command nothing; they do not obligate people to
marry, or even to marry according to the prescribed formalities. Nor is reductivism any more
plausible here: we speak of legal obligations when there is no probability of sanctions being applied
and when there is no provision for sanctions (as in the duty of the highest courts to apply the law).
Moreover, we take the existence of legal obligations to be a reason for imposing sanctions, not merely
a consequence of it.

Hans Kelsen retains the imperativalists' monism but abandons their reductivism. On his view, law is
characterized by a basic form and basic norm. The form of every law is that of a conditional order,
directed at the courts, to apply sanctions if a certain behavior (the ―delict‖) is performed. On this
view, law is an indirect system of guidance: it does not tell subjects what to do; it tells officials what to
do to its subjects under certain conditions. Thus, what we ordinarily regard as the legal duty not to
steal is for Kelsen merely a logical correlate of the primary norm which stipulates a sanction for
stealing (1945, p. 61). The objections to imperatival monism apply also to this more sophisticated
version: the reduction misses important facts, such as the point of having a prohibition on theft. (The
courts are not indifferent between, on the one hand, people not stealing and, on the other, stealing
and suffering the sanctions.) But in one respect the conditional sanction theory is in worse shape
than is imperativalism, for it has no principled way to fix on the delict as the duty-defining condition
of the sanction -- that is but one of a large number of relevant antecedent conditions, including the
legal capacity of the offender, the jurisdiction of the judge, the constitutionality of the offense, and so
forth. Which among all these is the content of a legal duty?

Kelsen's most important contribution lies in his attack on reductivism and his doctrine of the ―basic
norm.‖ He maintains that law is normative and must understood as such. Might does not make right
-- not even legal right -- so the philosophy of law must explain the fact that law is taken to impose
obligations on its subjects. Moreover, law is a normative system: ―Law is not, as it is sometimes said, a
rule. It is a set of rules having the kind of unity we understand by a system‖ (1945, p. 3). For the
imperativalists, the unity of a legal system consists in the fact that all its laws are commanded by one
sovereign. For Kelsen, it consists in the fact that they are all links in one chain of authority. For
example, a by-law is legally valid because it is created by a corporation lawfully exercising the powers
conferred on it by the legislature, which confers those powers in a manner provided by the
constitution, which was itself created in a way provided by an earlier constitution. But what about the
very first constitution, historically speaking? Its authority, says Kelsen, is ―presupposed.‖ The
condition for interpreting any legal norm as binding is that the first constitution is validated by the
following ―basic norm:‖ ―the original constitution is to be obeyed.‖ Now, the basic norm cannot be a legal
norm -- we cannot fully explain the bindingness of law by reference to more law. Nor can it be a
social fact, for Kelsen maintains that the reason for the validity of a norm must always be another
norm -- no ought from is. It follows, then, that a legal system must consist of norms all the way
down. It bottoms in a hypothetical, transcendental norm that is the condition of the intelligibility of
any (and all) other norms as binding. To ―presuppose‖ this basic norm is not to endorse it as good or
just -- resupposition is a cognitive stance only -- but it is, Kelsen thinks, the necessary precondition
for a non-reductivist account of law as a normative system.

There are many difficulties with this, not least of which is the fact that if we are willing to tolerate the
basic norm as a solution it is not clear why we thought there was a problem in the first place. One
cannot say both that the basic norm is the norm presupposing which validates all inferior norms and
also that an inferior norm is part of the legal system only if it is connected by a chain of validity to
the basic norm. We need a way into the circle. Moreover, it draws the boundaries of legal systems
incorrectly. The Canadian Constitution of 1982 was lawfully created by an Act of the U.K.
Parliament, and on that basis Canadian law and English law should be parts of a single legal system,
rooted in one basic norm: ‗The (first) U.K. constitution is to be obeyed.‘ Yet no English law is
binding in Canada, and a purported repeal of the Constitution Act by the U.K. would be without
legal effect in Canada.

If law cannot ultimately be grounded in force, or in law, or in a presupposed norm, on what does its
authority rest? The most influential solution is now H.L.A. Hart's. His solution resembles Kelsen's in
its emphasis on the normative foundations of legal systems, but Hart rejects Kelsen's
transcendentalist, Kantian view of authority in favour of an empirical, Weberian one. For Hart, the
authority of law is social. The ultimate criterion of validity in a legal system is neither a legal norm
nor a presupposed norm, but a social rule that exists only because it is actually practiced. Law
ultimately rests on custom: customs about who shall have the authority to decide disputes, what they
shall treat as binding reasons for decision, i.e. as sources of law, and how customs may be changed.
Of these three ―secondary rules,‖ as Hart calls them, the source-determining rule of recognition is most
important, for it specifies the ultimate criteria of validity in the legal system. It exists only because it is
practiced by officials, and it is not only the recognition rule (or rules) that best explains their practice,
it is rule to which they actually appeal in arguments about what standards they are bound to apply.
Hart's account is therefore conventionalist (see Marmor, and Coleman, 2001): ultimate legal rules are
social norms, although they are neither the product of express agreement nor even conventions in
the Schelling-Lewis sense (see Green 1999). Thus for Hart too the legal system is norms all the way
down, but at its root is a social norm that has the kind of normative force that customs have. It is a
regularity of behavior towards which officials take ―the internal point of view:‖ they use it as a
standard for guiding and evaluating their own and others' behavior, and this use is displayed in their
conduct and speech, including the resort to various forms of social pressure to support the rule and
the ready application of normative terms such as ―duty‖ and ―obligation‖ when invoking it.

It is an important feature of Hart's account that the rule of recognition is an official custom, and not a
standard necessarily shared by the broader community. If the imperativalists' picture of the political
system was pyramidal power, Hart's is more like Weber's rational bureaucracy. Law is normally a
technical enterprise, characterized by a division of labour. Ordinary subjects' contribution to the
existence of law may therefore amount to no more than passive compliance. Thus, Hart's necessary
and sufficient conditions for the existence of a legal system are that ―those rules of behavior which
are valid according to the system's ultimate criteria of validity must be generally obeyed, and ... its
rules of recognition specifying the criteria of legal validity and its rules of change and adjudication
must be effectively accepted as common public standards of official behavior by its officials‖ (1994,
p. 116). And this division of labour is not a normatively neutral fact about law; it is politically
charged, for it sets up the possibility of law becoming remote from the life of a society, a hazard to
which Hart is acutely alert (1994, p. 117; cf. Waldron).

Although Hart introduces the rule of recognition through a speculative anthropology of how it might
emerge in response to certain deficiencies in a customary social order, he is not committed to the
view that law is a cultural achievement. To the contrary, the idea that legal order is always a good
thing, and that societies without it are deficient, is a familiar element of many anti-positivist views,
beginning with Henry Maine's criticism of Austin on the ground that his theory would not apply to
certain Indian villages. The objection embraces the error it seeks to avoid. It imperialistically assumes
that it is always a bad thing to lack law, and then makes a dazzling inference from ought to is: if it is
good to have law, then each society must have it, and the concept of law must be adjusted to show
that it does. If one thinks that law is a many splendored thing, one will be tempted by a very wide
concept of law, for it would seem improper to charge others with missing out. Positivism simply
releases the harness. Law is a distinctive form of political order, not a moral achievement, and
whether it is necessary or even useful depends entirely on its content and context. Societies without
law may be perfectly adapted to their environments, missing nothing.
A positivist account of the existence and content of law, along any of the above lines, offers a theory
of the validity of law in one of the two main senses of that term (see Harris, pp. 107-111). Kelsen says
that validity is the specific mode of existence of a norm. An invalid marriage is not a special kind of
marriage having the property of invalidity; it is not a marriage at all. In this sense a valid law one that
is systemically valid in the jurisdiction -- it is part of the legal system. This is the question that positivists
answer by reference to social sources. It is distinct from the idea of validity as moral propriety, i.e. a
sound justification for respecting the norm. For the positivist, this depends on its merits. One
indication that these senses differ is that one may know that a society has a legal system, and know
what its laws are, without having any idea whether they are morally justified. For example, one may
know that the law of ancient Athens included the punishment of ostracism without knowing whether
it was justified, because one does not know enough about its effects, about the social context, and so
forth.

No legal positivist argues that the systemic validity of law establishes its moral validity, i.e. that it should
be obeyed by subjects or applied by judges. Even Hobbes, to whom this view is sometimes ascribed,
required that law actually be able to keep the peace, failing which we owe it nothing. Bentham and
Austin, as utilitarians, hold that such questions always turn on the consequences and both
acknowledge that disobedience is therefore sometimes fully justified. Kelsen insists that ―The science
of law does not prescribe that one ought to obey the commands of the creator of the constitution‖
(1967, p. 204). Hart thinks that there is only a prima facie duty to obey, grounded in and thus limited
by fairness -- so there is no obligation to unfair or pointless laws (Hart 1955). Raz goes further still,
arguing that there isn't even a prima facie duty to obey the law, not even in a just state (Raz 1979, pp.
233-49). The peculiar accusation that positivists believe the law is always to be obeyed is without
foundation. Hart's own view is that an overweening deference to law consorts more easily with
theories that imbue it with moral ideals, permitting ―an enormous overvaluation of the importance of
the bare fact that a rule may be said to be a valid rule of law, as if this, once declared, was conclusive
of the final moral question: ‗Ought this law to be obeyed?‖ (Hart 1958, p. 75).

3. Moral Principles and the Boundaries of Law

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

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

While Finnis and Fuller's views are thus compatible with the positivist thesis, the same cannot be said
of Ronald Dworkin's important works (Dworkin 1978 and 1986). Positivism's most significant critic
rejects the theory on every conceivable level. He denies that there can be any general theory of the
existence and content of law; he denies that local theories of particular legal systems can identify law
without recourse to its merits, and he rejects the whole institutional focus of positivism. A theory of
law is for Dworkin a theory of how cases ought to be decided and it begins, not with an account of
political organization, but with an abstract ideal regulating the conditions under which governments
may use coercive force over their subjects. Force must only be deployed, he claims, in accordance
with principles laid down in advance. A society has a legal system only when, and to the extent that, it
honors this ideal, and its law is the set of all considerations that the courts of such a society would be
morally justified in applying, whether or not those considerations are determined by any source. To
identify the law of a given society we must engage in moral and political argument, for the law is
whatever requirements are consistent with an interpretation of its legal practices (subject to a
threshold condition of fit) that shows them to be best justified in light of the animating ideal. In
addition to those philosophical considerations, Dworkin invokes two features of the phenomenology
of judging, as he sees it. He finds deep controversy among lawyers and judges about how important
cases should be decided, and he finds diversity in the considerations that they hold relevant to deciding
them. The controversy suggests to him that law cannot rest on an official consensus, and the
diversity suggests that there is no single social rule that validates all relevant reasons, moral and non-
moral, for judicial decisions.

Dworkin's rich and complex arguments have attracted various lines of reply from positivists. One
response denies the relevance of the phenomenological claims. Controversy is a matter of degree,
and a consensus-defeating amount of it is not proved by the existence of adversarial argument in the
high courts, or indeed in any courts. As important is the broad range of settled law that gives rise to
few doubts and which guides social life outside the courtroom. As for the diversity argument, so far
from being a refutation of positivism, this is an entailment of it. Positivism identifies law, not with all
valid reasons for decision, but only with the source-based subset of them. It is no part of the
positivist claim that the rule of recognition tells us how to decide cases, or even tells us all the
relevant reasons for decision. Positivists accept that moral, political or economic considerations are
properly operative in some legal decisions, just as linguistic or logical ones are. Modus ponens holds in
court as much as outside, but not because it was enacted by the legislature or decided by the judges,
and the fact that there is no social rule that validates both modus ponens and also the Municipalities Act
is true but irrelevant. The authority of principles of logic (or morality) is not something to be
explained by legal philosophy; the authority of acts of Parliament must be; and accounting for the
difference is a central task of the philosophy of law.
Other positivists respond differently to Dworkin's phenomenological points, accepting their
relevance but modifying the theory to accommodate them. So-called ―inclusive positivists‖ (e.g.,
Waluchow (to whom the term is due), Coleman, Soper and Lyons) argue that the merit-based
considerations may indeed be part of the law, if they are explicitly or implicitly made so by source-
based considerations. For example, Canada's constitution explicitly authorizes for breach of Charter
rights, ―such remedy as the court considers appropriate and just in the circumstances.‖ In
determining which remedies might be legally valid, judges are thus expressly told to take into account
their morality. And judges may develop a settled practice of doing this whether or not it is required
by any enactment; it may become customary practice in certain types of cases. Reference to moral
principles may also be implicit in the web of judge-made law, for instance in the common law
principle that no one should profit from his own wrongdoing. Such moral considerations, inclusivists
claim, are part of the law because the sources make it so, and thus Dworkin is right that the existence and
content of law turns on its merits, and wrong only in his explanation of this fact. Legal validity
depends on morality, not because of the interpretative consequences of some ideal about how the
government may use force, but because that is one of the things that may be customarily recognized
as an ultimate determinant of legal validity. It is the sources that make the merits relevant.

To understand and assess this response, some preliminary clarifications are needed. First, it is not
plausible to hold that the merits are relevant to a judicial decision only when the sources make it so. It
would be odd to think that justice is a reason for decision only because some source directs an official
to decide justly. It is of the nature of justice that it properly bears on certain controversies. In legal
decisions, especially important ones, moral and political considerations are present of their own
authority; they do not need sources to propel them into action. On the contrary, we expect to see a
sourceÑa statute, a decision, or a conventionÑwhen judges are constrained not to appeal directly to
the merits. Second, the fact that there is moral language in judicial decisions does not establish the
presence of moral tests for law, for sources come in various guises. What sounds like moral
reasoning in the courts is sometimes really source-based reasoning. For example, when the Supreme
Court of Canada says that a publication is criminally ―obscene‖ only if it is harmful, it is not applying
J.S. Mill's harm principle, for what that court means by ―harmful‖ is that it is regarded by the
community as degrading or intolerable. Those are source-based matters, not moral ones. This is just
one of many appeals to positive morality, i.e. to the moral customs actually practiced by a given
society, and no one denies that positive morality may be a source of law. Moreover, it is important to
remember that law is dynamic and that even a decision that does apply morality itself becomes a source
of law, in the first instance for the parties and possibly for others as well. Over time, by the doctrine
of precedent where it exists or through the gradual emergence of an interpretative convention where
it does not, this gives a factual edge to normative terms. Thus, if a court decides that money damages
are in some instances not a ―just remedy‖ then this fact will join with others in fixing what ―justice‖
means for these purposes. This process may ultimately detach legal concepts from their moral
analogs (thus, legal ―murder‖ may require no intention to kill, legal ―fault‖ no moral
blameworthiness, an ―equitable‖ remedy may be manifestly unfair, etc.)

Bearing in mind these complications, however, there undeniably remains a great deal of moral
reasoning in adjudication. Courts are often called on to decide what would reasonable, fair, just,
cruel, etc. by explicit or implicit requirement of statute or common law, or because this is the only
proper or intelligible way to decide. Hart sees this as happening pre-eminently in hard cases in which,
owing to the indeterminacy of legal rules or conflicts among them, judges are left with the discretion to
make new law. ―Discretion,‖ however, may be a potentially misleading term here. First, discretionary
judgments are not arbitrary: they are guided by merit-based considerations, and they may also be
guided by law even though not fully determined by it -- judges may be empowered to make certain
decisions and yet under a legal duty to make them in a particular way, say, in conformity with the
spirit of preexisting law or with certain moral principles (Raz 1994, pp. 238-53). Second, Hart's
account might wrongly be taken to suggest that there are fundamentally two kinds of cases, easy ones
and hard ones, distinguished by the sorts of reasoning appropriate to each. A more perspicuous way
of putting it would be to say that there are two kinds of reasons that are operative in every case:
source-based reasons and non-source-based reasons. Law application and law creation are
continuous activities for, as Kelsen correctly argued, every legal decision is partly determined by law
and partly underdetermined: ―The higher norm cannot bind in every direction the act by which it is
applied. There must always be more or less room for discretion, so that the higher norm in relation
to the lower one can only have the character of a frame to be filled by this act‖ (1967, p. 349). This is
a general truth about norms. There are infinitely many ways of complying with a command to ―close
the door‖ (quickly or slowly, with one's right hand or left, etc.) Thus, even an ―easy case‖ will contain
discretionary elements. Sometimes such residual discretion is of little importance; sometimes it is
central; and a shift from marginal to major can happen in a flash with changes in social or
technological circumstances. That is one of the reasons for rejecting a strict doctrine of separation of
powers -- Austin called it a ―childish fiction‖ -- according to which judges only apply and never make
the law, and with it any literal interpretation of Dworkin's ideal that coercion be deployed only
according to principles laid down in advance.

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

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

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

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

The third argument challenges an underlying idea of inclusive positivism, what we might call the
Midas Principle. ―Just as everything King Midas touched turned into gold, everything to which law
refers becomes law … ‖ (Kelsen 1967, p. 161). Kelsen thought that it followed from this principle
that ―It is … possible for the legal order, by obliging the law-creating organs to respect or apply
certain moral norms or political principles or opinions of experts to transform these norms,
principles, or opinions into legal norms, and thus into sources of law‖ (Kelsen 1945, p. 132).
(Though he regarded this transformation as effected by a sort of tacit legislation.) If sound, the Midas
Principle holds in general and not only with respect to morality, as Kelsen makes clear. Suppose then
that the Income Tax Act penalizes overdue accounts at 8% per annum. In a relevant case, an official
can determine the content of a legal obligation only by calculating compound interest. Does this
make mathematics part of the law? A contrary indication is that it is not subject to the rules of
change in a legal system -- neither courts nor legislators can repeal or amend the law of
commutativity. The same holds of other social norms, including the norms of foreign legal systems.
A conflict-of-laws rule may direct a Canadian judge to apply Mexican law in a Canadian case. The
conflicts rule is obviously part of the Canadian legal system. But the rule of Mexican law is not, for
although Canadian officials can decide whether or not to apply it, they can neither change it nor
repeal it, and best explanation for its existence and content makes no reference to Canadian society
or its political system. In like manner, moral standards, logic, mathematics, principles of statistical
inference, or English grammar, though all properly applied in cases, are not themselves the law, for
legal organs have applicative but not creative power over them. The inclusivist thesis is actually
groping towards an important, but different, truth. Law is an open normative system (Raz 1975, pp.
152-54): it adopts and enforces many other standards, including moral norms and the rules of social
groups. There is no warrant for adopting the Midas Principle to explain how or why it does this.

4. Law and Its Merits

It may clarify the philosophical stakes in legal positivism by comparing it to a number of other theses
with which it is sometimes wrongly identified, and not only by its opponents. (See also Hart, 1958,
Fuesser, and Schauer.)

4.1 The Fallibility Thesis

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

4.2 The Separability Thesis

At one point, Hart identifies legal positivism with ―the simple contention that it is no sense a
necessary truth that laws reproduce or satisfy certain demands of morality, though in fact they have
often done so‖ (1994, pp. 185-86). Many other philosophers, encouraged also by the title of Hart's
famous essay, ―Positivism and the Separation of Law and Morals,‖ (1958) treat the theory as the
denial that there is a necessary connection between law and morality -- they must be in some sense
―separable‖ even if not in fact separate (Coleman, 1982). The separability thesis is generally construed
so as to tolerate any contingent connection between morality and law, provided only that it is conceivable
that the connection might fail. Thus, the separability thesis is consistent with all of the following: (i)
moral principles are part of the law; (ii) law is usually, or even always in fact, valuable; (iii) the best
explanation for the content of a society's laws includes reference to the moral ideals current in that
society; and (iv) a legal system cannot survive unless it is seen to be, and thus in some measure
actually is, just. All four claims are counted by the separability thesis as contingent connections only;
they do not hold of all possible legal systems -- they probably don't even hold of all historical legal
systems. As merely contingent truths, it is imagined that they do not affect the concept of law itself.
(This is a defective view of concept-formation, but we may ignore that for these purposes.) If we
think of the positivist thesis this way, we might interpret the difference between exclusive and
inclusive positivism in terms of the scope of the modal operator:

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

In reality, however, legal positivism is not to be identified with either thesis and each of them is false.
There are many necessary ―connections,‖ trivial and non-trivial, between law and morality. As John
Gardner notes, legal positivism takes a position only one of them, it rejects any dependence of the
existence of law on its merits (Gardner 2001). And with respect to this dependency relation, legal
positivists are concerned with much more than the relationship between law and morality, for in the
only sense in which they insist on a separation of law and morals they must insist also--and for the
same reasons--on a separation of law and economics.

To exclude this dependency relation, however, is to leave intact many other interesting possibilities.
For instance, it is possible that moral value derives from the sheer existence of law (Raz 1990, 165-70)
If Hobbes is right, any order is better than chaos and in some circumstances order may be achievable
only through positive law. Or perhaps in a Hegelian way every existing legal system expresses
deliberate governance in a world otherwise dominated by chance; law is the spirit of the community
come to self-consciousness. Notice that these claims are consistent with the fallibility thesis, for they
do not deny that these supposedly good things might also bring evils, such as too much order or the
will to power. Perhaps such derivative connections between law and morality are thought innocuous
on the ground that they show more about human nature than they do about the nature of law. The
same cannot be said of the following necessary connections between law and morality, each of which
goes right to the heart of our concept of law:

(1) Necessarily, law deals with moral matters.

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

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

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

(3) Necessarily, law is justice-apt.

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

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

4.3 The Neutrality Thesis

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

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

There are complex questions here, but some advance may be made by noticing that Kelsen's
alternatives are a false dichotomy. Legal positivism is indeed not an ―evaluation of its subject‖, i.e., an
evaluation of the law. And to say that the existence of law depends on social facts does not commit
one to thinking that it is a good thing that this is so. (Nor does it preclude it: see MacCormick and
Campbell) Thus far Kelsen is on secure ground. But it does not follow that legal philosophy
therefore offers a ―value-free description‖ of its subject. There can be no such thing. Whatever the
relation between facts and values, there is no doubt about the relationship between descriptions and
values. Every description is value-laden. It selects and systematizes only a subset of the infinite
number of facts about its subject. To describe law as resting on customary social rules is to omit
many other truths about it including, for example, truths about its connection to the demand for
paper or silk. Our warrant for doing this must rest on the view that the former facts are more
important than the latter. In this way, all descriptions express choices about what is salient or
significant, and these in turn cannot be understood without reference to values. So legal philosophy,
even if not directly an evaluation of its subject is nonetheless ―indirectly evaluative‖ (Dickson, 2001).
Moreover, ―law‖ itself is an anthropocentric subject, dependent not merely on our sensory
embodiment but also, as its necessary connections to morality show, on our moral sense and
capacities. Legal kinds such as courts, decisions, and rules will not appear in a purely physical
description of the universe and may not even appear in every social description. (This may limit the
prospects for a ―naturalized‖ jurisprudence; though for a spirited defense of the contrary view, see
Leiter)

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

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

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Copyright © 2003
Leslie Green
[email protected]
 West Africa Review (2001)
ISSN: 1525-4488
CHOOSING A LEGAL THEORY ON CULTURAL GROUNDS: AN AFRICAN CASE
FOR LEGAL POSITIVISM

Jare Oladosu
Introduction

If there are two or more legal theories or philosophies to choose from, what sort of
considerations might induce one to prefer one to the other(s)? The standard answer to
this question is that for the choice to be a reasonable one, it must be based on an
estimate of theoretical advantage or moral benefits or both. In other words, the choice
must be based on the judgment that one of the theories is superior to the other(s), in
the way in which it would advance and clarify our theoretical inquiries on the nature of
law, or in the way in which it would advance and clarify our moral deliberations about
the law, or, in the way in which it would do both. 1 Neither of these two considerations
is peculiar to the domain of legal theory. The adoption or rejection of theories on
conceptual and\or on pragmatic grounds is an integral part of the enterprise of theory
construction in all aspects of science; moral consideration is the essence of practical
reasoning; legal theory is just an aspect of practical reasoning.

In the mainstream Anglo-Saxon legal theory, the debate on the choice of a

legal theory has revolved largely around these two broad considerations –
theoretical or moral advantage or both.2 While this debate rages on, some
African writers on legal theory have introduced a new and potentially
interesting dimension to the discourse. These writers claim to have based their
preference for one legal theory, and their opposition to another, on what we
may simply refer to as cultural grounds. Without exception, these African
commentators claim to have reached the conclusion that the positivist legal
theory is unsuitable for the African (especially the Nigerian) legal system, and
they have subsequently proceeded to advocate the adoption of the natural law
theory.3

To the extent that legal positivism claims to be a universally valid and

applicable theory, no doubt, its credibility would be substantially diminished, if
it can be shown to be either incapable of providing an adequate description of,
or of responding adequately to, the peculiar jurisprudential experiences and
needs of certain cultures, or, to be peculiarly susceptible to morally
undesirable consequences, when put into practice in certain cultural milieu.
That legal positivism is defective in both of these ways, when applied in the
African socio-political environment, is precisely what these writers are
individually out to demonstrate.

In this paper, I propose to examine the arguments variously advanced by these

African writers to support their culture-based rejection of the positivist creed
in legal theory. I will argue that creative and interesting as these criticisms of
the positivist theory may be, they are philosophically unacceptable. As against
the near universal advocacy in favour of the natural law doctrine (legal
positivism‘s conceptual archrival) by the Nigerian writers, I shall sketch the
outlines of a positive case for the adoption of legal positivism by the legal
systems of modern African states.

In the remainder of this paper, I proceed as follows. I will undertake some

conceptual clarifications in section one. Here, I analyze what is involved in the
choice or adoption of a legal theory. How might a legal system be said to have
adopted a legal theory? In section two, I will explicate the salient tenets of the
positivist legal theory. What major changes have taken place in the
development of the theory, from its classic statements in the writings of
Jeremy Bentham and his disciple, John Austin, in the first half of the
nineteenth century? How have the African commentators tended to interpret
the theory? I will subject the arguments adduced by these writers for the
rejection of legal positivism to critical examination in part three. My
conclusion will be that most of these arguments are either incomplete,
irrelevant, or otherwise philosophically unsound. Finally, in the constructive
part four, I present the outlines of an argument for the adoption of the
positivist theory by our legal systems in modern day Africa.

Conceptual Clarification

There are two distinct (possibly complementary) ways in which a legal theory
could be said to have been adopted by a legal system. In the first sense – say,
with particular reference to legal positivism – a situation could prevail in
which the positivist philosophy exerts an indirect, although possibly profound
or even dominant intellectual influence on the practices and discourse in a
legal system, through the works of leading jurists and legal scholars. In other
words, influential jurists and scholars operating in a legal system might
consider legal positivism the soundest theory of law. Such jurists and scholars
may then reflect the positivist principles and teachings in their works, either as
practicing lawyers, judges, or legal theoreticians. A situation might develop
where jurists and legal scholars of positivist persuasion constitute a significant
majority or, otherwise wield significant influence on the system‘s institutions
and practices. This may be due to the strategic importance of the positions
they occupy in the scheme of things (e.g., offices that attract high visibility,
like a Supreme Court justiceship, a justice ministership, or even deans or
prominent professors of pace-setting law schools). The general orientation of
the legal system in which they operate might then become identifiably
positivistic. When that happens, I would consider legal positivism to have
been indirectly adopted by the legal system in question.4

The second sense in which a legal theory – again, say, legal positivism – could
be said to have been adopted by a legal system is, paradoxically, more and less
direct than the case in the first sense. It might come about in the following
way. If a legal system‘s rule of recognition5 does not contain any provision, either
expressly stated or implied, making the satisfaction of some moral standard or
another a requirement for the legal validity of individual rules of law, such that
a legal rule properly enacted, i.e., enacted in accordance with the system‘s
norms and regulations for law-making, but which is morally deficient one way
or the other, would still be considered a valid law of the system, then I would
consider legal positivism to have been adopted by the legal system in
question.6

This way of adopting legal positivism would be more direct than the first in
the sense that the criteria of legal validity as contained in the system‘s rule of
recognition would be binding on all judges and other officials in the system,
whose business it is to interpret and apply the laws, irrespective of their
personal views on the appropriate relationship between the twin social
institutions of law and morality.

On the other hand, this manner of adopting legal positivism would be less
direct than the first mode of adoption, to the extent that adopting legal
positivism in this way need not be the product of an internalised intellectual
deliberation, or conscious philosophical commitment by any of the system‘s
officials, or norm-subjects. In other words, a legal system could adopt legal
positivism in this second sense, even where no jurist or scholar in it could be
said to be a legal positivist in the first sense. The adoption of legal positivism
in the second sense might be based on no more than the pragmatic
consideration that the theory augurs well for the efficient administration of the
law.

It is only in this second sense of adoption that the Nigerian writers could
plausibly consider legal positivism to have been adopted by the legal systems
of modern African states, when they report that legal positivism is the
dominant legal theory in contemporary Africa.7 Taken in the first sense of the
indirect but dominant influence of philosophically committed jurists and
scholars, I should doubt whether there is enough exposure to the legal
positivist philosophy or any other philosophical creed for that matter by
African jurists and practicing lawyers, to leave such deep intellectual
impression on their thought processes as would enable them to consciously
reflect the tenets of such a theory in their work.

The curricula in African law schools and faculties usually consist almost
exclusively of what Karl Lewellyn once described as bread-and-butter courses8
. Given this common emphasis on technical legal training, often considered to
be of immediate practical utility to a developing society, it is only to be
expected that there would be but the barest degree of exposure for lawyers in
training, to the tenets of the philosophies and fundamental assumptions which
underlie the practical matters that constitute the contents of law school
instruction.

I hasten to note here however, that this practicing lawyer‘s attitude to

philosophical questions is by no means peculiar to African legal practitioners;
philosophically sophisticated lawyers tend to be the exceptions even in the so-
called highly developed legal systems. The typical lawyer‘s cynicism about
―deep theory‖ is captured eloquently by Dicey.

Jurisprudence‖ [Dicey observes] is a word which stinks in the

nostrils of a practising barrister. A jurist is, they constantly
find, a professor whose claim to dogmatize on law in general
lies in the fact that he has made himself master of no one
legal system in particular, whilst his boasted science consists
in the enunciation of platitudes which, if they ought, as he
 insists, to be law everywhere, cannot in fact be shown to be
law anywhere.9

Stig Stromholm‘s observations on the respective jurisprudential traditions of

ancient Greece, and the Roman Empire are rather apt here. According to
Stromholm, if what prevailed in ancient Greece could be described as
philosophy without law, i.e., all theory no technique, then what prevailed in
the Roman Empire should be described as law without philosophy, i.e., all
technique no theory.10 My contention is that in many African legal systems
too, what we have is law without philosophy; as it was in the Roman Empire,
all technique, little or no basic theory.

Legal Positivism

The positivist theory of law has had a checkered career. In almost two
centuries of its modern development, it has metamorphosed through different
phases of changes, refinements, and creative modifications. I shall state, in
very broad outlines, the salient elements of three of the more prominent
versions of the theory. The goal of this exposition is to enable us isolate the
common elements in all of these versions, and to get to the irreducible
minimum properties of a positivist conception of law. Against this common
core of the positivist doctrine, I shall compare the interpretations of it to be
found in the works of its African critics.

Imperativist Positivism

The classic statement of a positivist account of the nature of law is to be

found in John Austin‘s much analysed imperativist theory – the notorious
command theory of law. Positive law which, in Austin‘s view, is law properly
and strictly so called (and which is the only appropriate matter of scientific
jurisprudence), is the command of a sovereign.11 A sovereign, says Austin, is a
determinate person or group of persons12 who is rendered habitual obedience
- but who does not render any such obedience to any one - by the bulk of the
population of a politically independent society.13 As for the notion of a
command, Austin analysed it into three elements:14

1. a wish conceived by a rational being that another rational being shall

do or forebear from doing;

2. an evil, or, in current parlance, a sanction, to proceed from the

commander and to be incurred by the commanded party, in case the
latter fails to comply with the wish expressed by the former;

3. intimation of the wish, by words or other signs.

On Austin‘s model of legal positivism, law is made when a sovereign issues a

command.

In summary, the principal features of Austin‘s theory are these.

1. The source of the law is in social fact.

2. Law derives from the sovereign‘s express or tacit commands.

 3. Sanction is an indispensable aspect of the law. In other words, it is
Austin‘s view that a sanctionless law is something of a contradiction
in terms. This has to be so, given the centrality of the element of
sanction in Austin‘s analysis of the notion of command.

4. There is no necessary connection between law and morality. Or, to

express the idea in a more positive form, law and morality are
conceptually separable. This separability thesis would prove to be the
most enduring element of Austinian positivism. Austin himself was
uncompromising on the validity of the separability thesis. His famous
battle cry is the ringing maxim:

The existence of a law is one thing, its [moral] merit or

demerit is another. Whether it be or be not is one enquiry;
whether it be or be not conformable to an assumed [moral]
standard, is a different enquiry. A law, which actually exists, is
a law, though we happen to dislike it, or though it vary from
the text, by which we regulate our approbation and
disapprobation.15

Legal Realism

The realist version of legal positivism is the product of the American realist
movement of the 1920s and 1930s. The movement was so named because
most of its leading exponents were legal scholars and jurists based in North
America, specifically in the United States.16 The realists conceive the law as
consisting in the predictions of the decisions (and sundry pronouncements) of
law courts, in cases brought before them for adjudication. As Justice Holmes
famously put it, ―the prophecies of what the courts will do indeed, and
nothing more pretentious, are what I mean by the law‖.17 Individual members
of the realist movement qualify this basic proposition in different ways. But
these three features of the theory are fairly constant.

1. Law is a social fact; the law, as the realists are wont to say, is not a
brooding omnipresent in the sky.

2. The source of the law is judicial decision. Law, in other words, is the
end product of the process of adjudication.

3. Law and morality are conceptually separable – the separability thesis.

Normative Legal Positivism

The most current version of the positivist theory is the normative positivist
analysis of the nature of law. This version of legal positivism has its best
expositions in the respective writings of Herbert Hart,18 and Hans Kelsen.19
The normative positivist analysis of the concept of law was developed in
reaction to the unsatisfactory state of the debate in jurisprudence at about the
middle of this century. Having apprehended the unproductive reductionist
tendencies in classical legal positivism of the Austinian kind and theological
natural law of the Thomist and Blackstonian variety respectively, the
normative positivist seeks to forge a middle path between the two extreme
positions. The goal of normative positivism is to construct a legal theory that
is basically positivistic in conception, but which would be sufficiently flexible
conceptually to also account for the normativity of the law.20

For my purposes here, I state the outlines of H.L.A. Hart‘s version of

normative positivism. According to Hart, the beginning of wisdom in the
effort to develop an adequate theory of law is to learn to conceive the law as a
form of social rules21 . Hart‘s theory of law could be summarized in the
following three propositions.

1. Law is a social fact.

2. The paradigm exemplification of the law consists in the union of

primary and secondary ―social rules.‖22

3. Law and morality are conceptually separable.

Professor Hart‘s articulation of the substance of the

separability thesis is very instructive. According to Hart, the
import of the separability thesis is, ―the simple contention
that it is in no sense a necessary truth that laws reproduce or
satisfy certain demands of morality, though in fact they have
often done so.‖23

Elsewhere Hart analyses the content of the separability thesis into two
disarmingly simple claims:

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 [second] conversely, it could not follow from the mere
fact that a rule was morally desirable that it was a rule of
law.24

A quick review of the three versions of the positivist theory stated thus far
shows that only two theses seem to be common to all of them, namely, the
social fact thesis, and the separability thesis. The import of the social fact
thesis is the claim that the existence of the law is purely a matter of social fact.
The sources of the law are invariably to be sought in the inner workings of
concrete social institutions. The variations between the different versions of
the theory are explainable in terms of the differences in the specific social
institutions each identifies as the source of the law, i.e., whether it be in the
expression of the will of a monarch, or in the enactment of a modern
parliament, or in the decisions of a law court, or in the complex interplay of
social rules of some form.

Most self-confessed positivists and sympathetic commentators would most

probably agree that these two theses constitute the irreducible core of the
positivist creed. There may, however, be slight disagreements on which of the
two theses to accord logical priority. Kent Greenawalt, for example, is of the
opinion that the social fact thesis is logically prior to the separability thesis. In
his view:

if one had to settle on a central aspect of legal positivism, as a

general approach to legal theory that has existed over time,
 one would focus on the premise that law is in some
important sense a social fact or set of social facts. Suppositions
about the connections between law and morality and about the nature of
judicial decisions follow from that.25

Similarly, in his topical essay, ―Classical Legal Positivism at Nuremberg‖, 26

Stanley L. Paulson claims that ―classical legal positivism rests on two
fundamental doctrines, the command doctrine and the doctrine of absolute
sovereignty.‖27 This means, again, that the separability thesis is a derivative of
those ―two fundamental doctrines‖.

These observations about the logical priority of the social fact thesis are most
likely correct. But for analytical purposes it may be more helpful to reverse the
order of things, since all legal positivists are equally committed to the
separability thesis, and since there are important disagreements among
positivists in regard to the determination of the content of the social fact
thesis.

Let us take the separability thesis as a ―negative‖ principle, it asserts what the
law need not be. I suggest that we make this ―negative‖ principle serve as the
indispensable stump of the positivist account of the nature of law. Different
versions of the theory may then be obtained by grafting onto this conceptual
stump a variety of different ―positive‖ theses. Austin‘s imperativist brand of
legal positivism, Hart‘s normative positivist analysis of the concept of law, and
the predictivist account developed by the American realists, are three of the
well-known examples of such derivable versions of legal positivism. In the
first, the ―positive‖ thesis that law is the command of a habitually obeyed,
legally illimitable sovereign is grafted onto the separability thesis. In the
second, the ―positive‖ thesis that law is invariably to be conceived as the
union of some form of social rules is grafted onto the separability thesis. In
the third, the ―positive‖ thesis that law is to be distilled from the decisions
reached by courts in matters brought before them is grafted onto the
separability thesis. A rich possibility exists for theorists to graft other logically
compatible ―positive‖ theses onto the separability thesis, to derive yet other
versions of legal positivism.

The African Critics’ Understanding of Legal Positivism

Against this background of a theory that has undergone profound changes in

the course of its checkered evolution, and the rich possibility which, as I have
suggested, exists even now to construct new variations of it, the understanding
of the tenets of legal positivism displayed by many of its African critics is
grossly inadequate. For many of these commentators 28 , it is as if the
development of the positivist theory had remained frozen at the point of
Austin‘s expositions, in 1832.29

For example, F. U. Okafor, a leading Nigerian critic of the theory, claims to

understand legal positivism as ―a theory which recognizes as valid laws only
such enforceable norms as are enacted or established by the instrument of the
state.‖30 The consequence of this conception of law, Okafor claims, is that for
the positivist, ―only statute laws are laws indeed, by the mere fact that they
have been posited by an appropriate political authority.‖ 31 In the face of these
conceptual restrictions, Okafor contends, the legal positivist is led to exclude
from the province of jurisprudence, ―such fundamental questions as,‘ what are
the essence of law?‘, ‗why is the citizen obliged to obey the law?‘, ‘what is the
nature of a just and unjust law?‘, ‗is what is legally wrong also morally
wrong?‘.‖32

In the same vein, Justice Akinola Aguda, easily one of Africa‘s leading jurists,
conceives the various versions of legal positivism as ―theories of the
omnipotence of the sovereign.‖33 The Rev. Dr. N. S. S. Iwe has a similar
understanding of the tenets of the positivist theory of law:

By legal positivism, [Iwe writes,] we mean essentially that

attitude of mind and spirit which regards as valid laws only
such enforceable norms formally enacted or established by
the appropriate official political organ. Here only Municipal
laws (or Statute Laws) are laws for they have been formally
so posited by the authority. Once a given norm or proposal
has formally and successfully gone through the technical
procedures, of legislation, it automatically acquires the force
of law, independently of all other considerations moral,
teleological and practical. This is the stand of legal positivism
and its school of supporters.34

The sole concern of legal positivism, Iwe continues:

is with the law as ‗it is‘ and as ‗laid down‘ not with what it
ought to be. The separation of ethics and jurisprudence is
complete in legal positivism. The legal ‘is‘ is all that counts.
The legal ‗ought‘ is of no consequence and relevance in
positivist jurisprudence. The formal stamp of technical
legality on a given norm – not its ethical contents and
qualification – is the criterion of legal validity.35

Taken in its current stage of development and sophistication – and this is the
sense in which any serious-minded contemporary commentator ought to take
it- the interpretations of the positivist doctrine that we have been quoting
from the African writers are grotesque caricatures. But it is these caricatures
that many of these writers claim to be theoretically inadequate and practically
harmful to the peculiar circumstances of African legal systems. In the next
section, I will examine, under two broad headings, some of the arguments that
these critics adduce in support of their negative conclusions on legal
positivism.

THE ONTOLOGICAL ARGUMENT AGAINST LEGAL

POSITIVISM

Although one finds passing allusions to this line of thinking in the works of
other African critics of legal positivism, the clearest articulation of the
ontological argument for the rejection of legal positivism was developed by
Dr. F.U. Okafor.36 The argument is based on what he considers to be the
unique characteristics of African ontology and, by extension, the unique
characteristics of the social institutions that evolved from that ontology. In
order to understand the traditional jurisprudence of Africa, Okafor claims, we
must first understand the salient features of African ontology. As he puts it,
―the African legal tradition is a direct outcome of African ontology.‖ 37 By
―African ontology‖, Okafor seems to mean nothing more than the African
folk cosmology – the traditional African view of the universal order, and
man‘s place in it. As Okafor understands it, ―the morphology of African
‗reality‘, their concept of ‗existence‘, shows that there is an intimate ontological
relationship between beings.‖38 In other words, African traditional worldview
recognizes that there is ―active interaction.a kind of intersubjective
communion‖, among the various entities that constitute the universe. The
hierarchy of beings, or as he would prefer to label these entities, ―forces‖,
range, in a descending order of might and importance, from the divine force,
to terrestrial and celestial forces, to human forces, terminating with vegetable
and mineral forces.39 The place of man is right at the vortex of this cosmic
order; to survive, man must harmonise his own being (or force) with the
reality of the other forces that engulf him.40

From this ―ontological‖ base, there developed, according to Okafor, unique

social and political ideas and institutions in Africa. As regards the evolution of
the institution of law in Africa, with which we are here primarily concerned,
Okafor submits that: ―From the ontological relationship among forces, divine
and human, animate and inanimate, and from the fact of the interaction of
these forces arise a practical recognition of two main sources of law – divine
and human.‖41 On this model of the traditional African legal system, there is
only one vital criterion of legal validity, namely, that the purported law be
intended by its maker (whether the lawmaker be God or man) to contribute to
the maintenance of the harmony among the various ontological forces. Hence,
―the province of African jurisprudence is .large enough to include divine laws,
positive laws, customary laws, and any other kinds of laws, provided such laws
are intended for the promotion and preservation of the vital force.‖ 42

From this conception of the nature of law, certain cardinal features of

traditional African legal system are said to emerge. The first is that African
laws are not the commands of any sovereign. In the traditional African
political system, Okafor had earlier reported, there would have been no
sovereigns to issue such commands in the first place. ―The African political
culture‖, he claims, ―recognises only leaders and not rulers, seniors but not
superiors.‖43

The second characteristic of the traditional African legal system is the

conspicuous lack of emphasis on enforceability. This is due, again, to the
absence of centralised authorities – symbolized, for example, by the Austinian
sovereign – to supervise the enforcement of the laws of traditional African
society. In view of the absence of a law-enforcing central authority, the
African (in traditional times) endeavoured to observe law and order because of
his ontological and moral conviction that a breach of the law would upset the
ontological order44 . And, it was the general belief of course, that to upset the
ontological order was to provoke calamitous reprisals to fall, not only upon
one‘s own head, but also upon the whole community of which one is a
member.

The third salient characteristic of the traditional African legal system is the
belief in the existence of a necessary connection between law and morality.
Or, as Okafor puts it, there was the belief ―[that] there cannot be any
separation of morality and legality in the African legal experience.‖ 45 Again,
the explanation for this belief in the conceptual union of law and morality
goes back, ultimately, to the ontological undercurrent of the jurisprudence of
traditional Africa. ―It is because African positive laws have ontological
foundations that they have ipso facto a moral foundation, for in African ethical
thought, what is considered ontologically good will therefore be accounted
ethically good; and at length be assessed as juridically just.‖ 46 In view of this
jurisprudential heritage, Okafor‘s conclusion is that the African legal system
must reject legal positivism in all its ramifications. This, as he says, is because,
―the legal positivists tenets and their corollaries are in complete opposition to
the African ontology and African jurisprudence that depends on it.‖ 47

The opposition of the positivist philosophy to African jurisprudence is

manifested in several ways. First, legal positivism, says Okafor, conceives law
as the commands of a sovereign ruler, issued to his obedient subjects. This is
clearly opposed to the tenets of African jurisprudence, by the terms of which
the existence of such a sovereign ruler is denied, and where laws are reportedly
conceived as the ordinances of reason. Second, legal positivism is said to posit
enforceability as a necessary condition for the existence of law. But African
jurisprudence denies the necessity of enforceability. Third, and most
important, legal positivism denies that there is a necessary connection between
the validity of a rule of positive law and the satisfaction of some presumed
standards of morality. On the contrary, African jurisprudence is said to affirm
that there is a necessary connection between morality and the validity of
positive law.

It is easy to guess Okafor‘s conclusion from all this: there can be no room for
the positivist creed, as far as the development of the African legal system is
concerned. Okafor counsels that ―in the African world serious efforts must be
made to ensure that our laws, statutory or customary, take due cognizance of
African ontology. Only a law with such ontological foundation would be a law
of the people for the people.‖48

Okafor‘s submission is very interesting, at times even fascinating. Surely he

has taken the discourse to hitherto unsuspected realms. I should doubt,
however, whether what is left of Okafor‘s case against legal positivism would
stand up to critical scrutiny, once the argument is stripped of the exotic but
largely illusory garb of ―African ontology‖. Indeed, I will argue that Okafor‘s
argument against legal positivism is flawed on all counts: his description of the
traditional jurisprudence of Africa does not correspond to anything in reality;
his interpretation of the legal positivist doctrine – which he sets the so called
African jurisprudence up against – is clearly out of vogue, outdated perhaps by
more than one and a half centuries. I start with Okafor‘s exposition of legal
positivism.

Okafor‘s understanding of legal positivism goes no further than the account

developed in John Austin‘s The Province of Jurisprudence Determined, a monograph,
as we have established above, first published in 1832. The positivist
movement in legal theory has, of course, undergone major transformations
since Austin‘s time. The transformations have been especially profound in the
works of modern normative positivists. As a result of these transformations, it
is no longer true – assuming that it once ever was true – that the positivist
theory offers a model on which only duly enacted statutes may qualify as valid
laws. On the model of modern legal positivism, customary laws, positive
international laws, and conventional constitutional law – whatever that may
mean – may now qualify as valid laws of a municipal legal system, i.e.,
provided that such norms are so identified by the system‘s rule of recognition. By
the same token, all those questions which Okafor considers to be
fundamental, ―‘what are the essence of law?‘, ‗why is the citizen obliged to
obey the law?‘, ‗what is the nature of a just and unjust law?‘, ‗is what is legally
wrong also morally wrong?‘‖, now fall squarely within the province of
positivist jurisprudence. In fact, neither Austin nor Bentham, nor any other
positivist of note has ever canvassed the exclusion of these questions from the
province of jurisprudence. By limiting the survey of what he touts as ―the
genesis and development of legal positivism‖ 49 to its most reductionistic form
in the writings of John Austin, Okafor‘s exposition can be said to exhibit what
Olufemi Taiwo has described as ―a serious deficiency in scholarship.‖ 50

Let us turn our critical attention to Okafor‘s description of the traditional

jurisprudence of Africa. My contention is that there is no one such thing;
there has never been one such thing. Here again, Taiwo has said much that
needs to be said about the fictional character of Okafor‘s portrayal of a
philosophy of law indigenous to the whole of Africa, quite eloquently. Simply
put, the African continent has always been too culturally diverse and
heterogeneous for anything remotely approximating to a dominant legal
philosophy, identifiable with the whole continent, to have emerged. As Taiwo
rightly observed, ―to collapse all of Africa‘s diverse socio-political and legal
traditions into one, which prevailed over all the areas, is to mistake the
common occupation of a geographical continuum for social consensus.‖51

There is a second and equally significant sense in which Okafor‘s descriptions

fail to capture the current realities of African socio-political ideas and
institutions: it ignores the fact of centuries of exposure by African societies to
profound cultural influences from other lands. Surely it would be difficult to
ascertain what remains as the culturally pure and unadulterated African in a
social or political idea or institution in a typical modern African society, once
we reckon with how such an idea or institution must have been shaped in
some way, by the ―corrupting‖ influences of European colonialism, and
before European colonialism, by the ―corrupting‖ influences of Arabo-
Islamic cultures.

Of course no one wants to suggest that these cultural influences have been
mono- directional, Arab to Africa, or, Europe to Africa. What we here refute
is the suggestion by Okafor and the other purveyors of this naïve cultural
irredentism, that if we can only search long enough in our cultural archives we
will somehow uncover some elements of our cultural past that have been left
pure and untainted by alien influences.

Okafor‘s mistake, in the first instance, is to have generalized from the socio-
political set up of his own native Igbo society, in Eastern Nigeria, to the whole
of Africa. But whereas ethnographic accounts confirm that the social and
political arrangement of traditional Igbo society was based on the age-grade
system, thus indicating that the Igbo society of old might indeed have
recognized ―only leaders and not rulers, seniors but not superiors‖, there are
likewise conclusive historical records to confirm that in other parts of the
continent, kings and emperors reigned, whose law-making powers and
competence rivaled those of any monarch in Medieval Europe.

Also to be noted, on a second count, is the historical fact that the social and
political structure of indigenous Igbo society has since been profoundly
altered, thanks to the activities of the colonizing British authorities, who
created the institution of paramount rulers—the so called Warrant Chiefs—in
Igboland. The purpose then was to replicate the economic successes and
administrative efficiency of indirect rule, which the British had employed in
Northern and Western Nigeria, societies where large kingdoms and empires
had long evolved, complete with sophisticated political systems. As a result of
that (entirely self-serving) innovation by the British, Eastern Nigeria of today
can boast of a whole range of paramount rulers. Okafor‘s description is,
therefore, not only a monument to hasty generalisation, it is also
anachronistic, that is, even if we restrict its scope to Igbo society.

For our purposes here, there would seem to be no use in subjecting this
argument to further scrutiny. Its defects are obvious. To set up what must
amount to a caricature of legal positivism – as the doctrine has been
developed in recent decades – against the model of some mythical African
jurisprudence, has as much credibility as the activities of an agent, who, having
first toiled very hard to erect a strawman proceeds at once to attack it
vigorously.

But before I conclude this examination of Okafor‘s ontological argument for

the rejection of legal positivism, there is one important though unstated
assumption in the argument that deserves to be closely examined. That
assumption would be philosophically significant – if it turns out to be true –
even if the objections that I have been raising against the other premises of
the argument are sound and conclusive. The assumption is that the African
ontology and the traditional African legal philosophy that is based on it
describe the model of a world that is worth ―returning‖ to. We shall notice
that the mere fact—assuming it is a fact—that the legal positivist creed is in
―complete opposition‖ to the tenets of African jurisprudence would not, in
itself, constitute a sufficient reason for rejecting legal positivism. What would
amount to a sufficient reason for that purpose is a conjunction of that
supposed fact with the truth of another proposition, namely, that the African
conception of law is a better theory of the nature of law. Supposedly, in
Okafor‘s view, that would be because African jurisprudence is predicated on
the soundest ontological theory, or an ontological theory that is, at least,
superior to its presumed counterpart from the western world.

Let us look then more closely into the structure and contents of the
―traditional African world‖, which in my view, would seem to correspond to
Okafor‘s description of the African ontology. For even if it is the case, as I
have argued, that the portrait fails to capture anything real, and even if it is the
case, as I have argued, that Okafor‘s interpretation of legal positivism is an
outdated caricature, his description of the African ontology and the resultant
African jurisprudence may yet present the picture of an ideal condition which
is superior to what would amount to a true representation of legal positivism.
And in that case, of course, that ideal condition would be worth striving to
attain.
The picture that seems, in my view, to emerge from Okafor‘s descriptions is
that of a very simple social order, with all but the barest rudiments of political
organization. Scientifically, this has to be an utterly simple world: chances are
that in that world, explanations, no matter how mundane or common-place
the phenomenon being explained, would invariably implicate the personal
dispositions of some god, ancestral spirit, or one of a myriad of other
supernatural agents.

In such a world and given its aboriginal conception of law, it should not
surprise us if we are told that the law of gravity readily qualifies for inclusion
in the province of jurisprudence (surely the law of gravity contributes to the
maintenance of harmony among the various life forces), whereas many a law
that we may design to regulate modern commerce might fail to make it into
the province of jurisprudence. This is, after all, a world in which morality and
religion are conceived to be inseparable, and where no law is to be considered
valid unless religion and morality sanction it. It would be a world, in short, in
which as far as legal conceptions go, the institutions of morality, religion, and
law are conceived as woven into an inseparable, tangled mesh. Even Austin‘s
crude imperativism would be far superior to that jurisprudence.

Clearly, an ontology like that and the social and political ideas and institutions
that might sprout from it do not present the modern African, or, for that
matter, any one from any part of the modern world, with the model of an
ideal world worth striving to attain. Nor should we be surprised at our
abhorrence at what we conjecture might be the state of that world. To the
extent that the portrait corresponds to any reality at all, it can only correspond
to a state of the rudimentary social order in which humanity once existed, not
only on the continent of Africa but in all parts of the globe, when earthly
civilization was at its earliest infancy. Having transcended that condition for
millennia, for the vast majority of human communities in all parts of the
contemporary world, the only surviving evidences of such a past are marks on
the walls of ancient caves. This is no less the case for African societies.
Indeed, had someone, not ―a native son‖ like Okafor or myself, but say, a
foreign social scientist, presented us with that picture of an Africa in some
immediate past (say, a hundred or two hundred years before the onset of
colonialism), we would all, quite rightfully, have protested vigorously. We
would have countered his descriptions with overwhelming historical evidence,
confirming that great empires had existed and flourished all over the
continent, for thousands of years before the advent of colonialism. Now
suppose that not content with presenting his unflattery descriptions as mere
conjectural reconstruction, our foreign social scientist informs us that he had
also reached the normative conclusion that it would be better for the modern
African to organize his society on the model of that simple past. Smelling the
dirty hands of racism at work, and feeling gravely insulted, we Africans would,
no doubt, have called for his head.

Okafor‘s idea of ―the African ontology‖ belongs, I suppose, within the genre
of ethno-philosophy. In general the ethno-philosophy project has not done
too well; some would rate it an outright conceptual flop. Ethno-legal-
philosophy is not likely to fare any better. This pessimistic conclusion on the
viability of ethno-philosophy as a general methodology, and ethno-legal-
philosophy in particular should, however, not be misconstrued as indicating a
wholesale rejection of all attempts to probe into, and as far as possible, to
reconstruct the past. My position is not borne out of any form of naïve
triumphalist modernism. By no means do I advocate an unqualified
celebration of everything new and modern, nor do I want to suggest that
Africa should ignore her past. Quite apart from the fact that history will not
be so wantonly ignored for long, I do strongly believe that there may be a lot
of valuable socio- political ideas from Africa‘s past, which when carefully
extricated from the debris of ancient superstitions, can profitably be
appropriated for modern use.

To take a concrete example, Dr. T. O. Elias has shown, quite persuasively,

why a preoccupation with imprisonment as a way of dispensing criminal
justice may not sit well with African customary legal practice. Elias points out
that to the extent that ―punishment of the offender and a corresponding
satisfaction of the offended are two distinct questions that must be faced if
real justice is to be achieved,‖52 then pre-colonial African customary legal
practices may have struck a more useful balance between these two
requirements of justice.

While viewing the matter of punishment of offenders with grim seriousness,

African customary legal practices have tended to put an equal or greater
emphasis on the side of the need for restitution. From the point of view of the
kinsmen of a victim of manslaughter, it is equally, if not more important, that
the murderer be made to pay them ―blood- money‖, before he is sent to jail or
executed. Hence the African under the colonial legal system was
understandably appalled when offenders were ―merely‖ imprisoned by the
colonial authorities, without anything said or done about the need to make
restitution to victims or to a victim‘s family:

When a person has been found guilty of, for example,

manslaughter of another and is thrown into gaol without at
the same time being made to pay the blood-money to his
victim‘s surviving relations as required by customary law, not
only such deprived relatives but also the general public are
infuriated by the procedure. Imprisonment benefits the
British Government by thus providing it with another
servant, while it does nothing to assuage the personal grief or
satisfy the legal expectations of the bereaved family.53

This perceived need to take the matter of restitution as seriously as we take

society‘s need for punishment suggests, in my view, that there is an urgent
need to take a closer look at the procedures for the administration of criminal
justice as presently constituted in the legal systems of modern African states.
In view of the apparent lack of sufficient awareness of the requirements of the
different forms of laws under which an injured party may seek remedy by the
majority of the citizens of African states, it may be desirable to mitigate the
rigid distinction, inherited from colonial legal systems, between civil and
criminal procedures.

We must, however, append a couple of caveats to all of this. The validity of Dr.
Elias‘s observations concerning the customary emphasis on some form of
restitution, e.g., payment of blood-money, is most likely limited to certain
regions of the African continent, and even in those regions, true only of
certain historical points in time. This takes nothing away from Elias‘s
otherwise excellent, pioneering study of African customary law. He cannot
have claimed, without concrete empirical evidence, that payment of blood-
money (or any other form of restitution for that matter) was a practice
universally engaged in by all traditional African societies. Nor can he claim, in
the face of what seem to be strong evidence to the contrary, that the average
Yoruba man at the commencement of the twenty-first century nurses a sense
of loss at not being paid blood-money, as vividly as his ancestors might once
have done.

Second, there is all the evidence to show that Africans under colonial rule
were not alone in been ―piqued‖, as Dr. Elias put it, by the relative
indifference of the British criminal justice system at that time, to the need to
extract restitution from offenders in addition to, or, as a way of punishing
them. Reform-minded philosophers and social critics, led by Jeremy
Bentham54 had directed critical attention to this unsatisfactory aspect of the
British legal system, as early as the beginning of the nineteenth century, or
earlier.

If a man were to willfully set fire to his neighbour‘s house or farm, the penalty
under British colonial law would be a term of imprisonment. Partly this would
be retribution; partly it would be imposed to serve as deterrence to other
potential arsonists. Bentham is however of the view that justice would be
better served if the offender was fined a certain sum, to be paid over to his
victim. In Bentham‘s view, ―the best fund whence satisfaction can be drawn is
the property of the delinquent, since it then performs with superior
convenience the functions both of satisfaction and punishment.‖ 55 On this
view, it would be ―juster and simpler‖ to auction off an arsonist‘s house, farm
or automobile, and remedy the victim‘s distress and loss from the proceeds.

Bentham is willing to go several steps further by way of securing just

restitution. For instance, in the case of an impecunious offender, Bentham
proposes that funds should be drawn from the public treasury to make good
the victim‘s loss: ―But if the offender is without property, ought the injured
party to remain without satisfaction? No, for satisfaction is almost as necessary as
punishment. It ought to be furnished out of the public treasury, because it is an
object of public good, and the security of all is interested in it.‖56

I have entered these caveats at length to caution us on the ever present

dangers of cross- cultural and cross-epochal generalisations, as well as to
counter the dubious suggestion which some cultural romantics promote, that
we shortchange our ancestors if we do not claim some items of wisdom and
insights into the dynamics of social organizations, as their exclusive preserve.
African peoples, in the past and at present, are not different from the rest of
humanity in the possession and exercise of innate powers of philosophical
reflection, and in being endowed with a healthy dose of common sense. But
then what sane person has ever denied that?

I conclude this section by noting that in the effort to see what can be salvaged
from the legal systems and practices of indigenous African societies, legal
philosophers in particular and jurists in general will do well to consult the
various writings of cultural anthropologists who studied those aspects of our
cultural past. The excellent bibliographical references at the end of Dr. Elias‘s
equally excellent monograph on The Nature of African Customary Law, is a good
place to start.

The Moral Argument

The next line of objection to legal positivism is not one distinct argument as
such. It is a cluster of overlapping complaints about some alleged pernicious
effects of the positivist doctrine, when observed in practice. Among the
morally undesirable results that critics have claimed to notice when they
observe the positivist doctrine in practice are the following:

1. that it encourages tyranny by allowing undue and excessive powers to

government officials. As J.M. Elegido put it, ―.positivist approaches
in law tend to do great harm, especially in so far as of themselves they
tend to legitimate the actions of whoever finds himself in power;‖ 57

2. that it is a bad theory of legislation;58

3. that it is a bad theory of adjudication.59

4. The cumulative effect of (i), (ii), and (iii), critics have concluded, is
that when the positivist doctrine is put into practice, it helps to create
a social and political environment that is hostile to the exercise and
defense of human rights.

Now, anyone with a passing acquaintance with the literature on legal

philosophy would readily see that these are fairly standard objections to the
positivist theory. One is therefore tempted to dispose of them by drawing
from the stock of standard positivist rejoinders, which, in my opinion, are
quite adequate. We must resist that temptation. First, we have to find out what
else the African critics of the positivist creed have in mind by raising these
well-worn allegations anew.

The idea seems to be that there are some uniquely African reasons for
recycling these objections at this time. Justice Akinola Aguda provided the
clearest statement of such a reason. I quote him in full:

What has become of grave importance to us in Africa – but

here I shall confine myself to Nigeria – is that the emergence
of military and dictatorial governments in this continent has
brought the positivist theories into focus, and caused alarm
not only in the minds of progressive jurists but also in the
minds of the general public. England and some other
European countries at least since after the Second World
War have been able to contain the positivist concept of law,
thanks to inbuilt and highly developed democratic practices.
Here in Nigeria no such practices have ever been permitted
to germinate, not to talk of grow; hence we have not been
able to curtail the evils of positivist thinking on law which
most lawyers – in this I include judges of all grades – have
imbibed from the commencement of their training in the law
Faculties.60
The import of Justice Aguda‘s submission is clear enough: what makes legal
positivism so morally harmful when put into practice in an African society –
like Nigeria – is the absence, in the African socio-political environment, of
inbuilt and highly developed democratic institutions and practices. It is as if
legal positivism were a variety of plant, to draw an analogy with botanical
processes, nurtured in the democratically fertile climates of Western Europe,
and North America, this plant is thoroughly domesticated; it bears succulent
fruits. Transplanted onto the harsh and rocky terrain of political dictatorship
and tyranny in Africa, it becomes a man-eating weed. Now, what are we to
make of this argument?

To begin with, we should note that to date, critics have not come up with any
independent argument to show that legal positivism is a bad theory in itself.
Often, critics have had to concede, as we find Justice Aguda conceding in the
passage quoted above, that the positivist philosophy does not produce the
morally objectionable consequences that they claim to result from its
application in African legal systems elsewhere.

Perhaps the critics‘ point is not that legal positivism is a morally evil doctrine
in itself; the allegation may be that the evils that the critics complain about
result when subscription to the positivist creed is combined with the absence
of sufficiently developed democratic institutions and practices. That much is
clear from the line of reasoning quoted from Justice Aguda above, when he
contrasts what he takes to be the morally pernicious effects of legal positivism
in Africa to its benign effects in the operations of the legal systems of the
industrialised democracies of Western Europe. The next step in this anti-
positivist position is usually the suggestion that the moral evils complained
about would not result if , instead of the positivist creed, the legal systems of
African states under one form of dictatorship or another had subscribed to
the alternative natural law philosophy.

The problem with the first part of this argument is that it may have put the
blame where it does not belong. It seems most likely that the critic here
confuses the breakdown of the political process for a failure of legal theory. I
would have thought that it is more reasonable to blame the dictatorial
tendencies in African governments and the resultant evils of political
corruption and human rights abuses, on the frequent disruptions of the
political process—usually, through military incursion into civil governance—
which has so far prevented democracy from flourishing, and not on the
positivist creed in legal theory. Surely, no one would suggest, with any degree
of seriousness, that the positivist conception of law is to be held causally
responsible for the absence of ―inbuilt and highly developed‖ democratic
institutions and practices in post independence African states.

For parallel reasons, I should doubt whether subscription to the natural law
philosophy would be sufficient in itself, to curtail the occurrences of the moral
evils of gross abuses of political offices, misuse of power, and violation of
human rights, in a fundamentally undemocratic polity. Indeed, the natural law
doctrine is the most vulnerable to use and abuse by just about anyone with a
political agenda. Anarchists, reactionaries, liberal democrats, as well as
libertarian minimalists, have all been known to invoke the principles of natural
law to justify their respective causes.
Professor Alf Ross likened the natural law doctrine to a conceptual harlot,
whose services are readily available to all manners of political ideologies.
Hence, as Ross put it, ―from a practical-political point of view.naturalistic
theories have been conservative as well as evolutionary and revolutionary. In
the province of political philosophy all the political systems from extreme
absolutism to direct democracy have been vindicated by natural law
philosophies.‖61 It does seem, therefore, that to base the hope for democracy
and the aspirations of human rights on the natural law philosophy is like
building a magnificent castle on a pile of shifting sand.

Often in their haste to condemn legal positivism, critics tend to confuse a

number of issues that should be separated and carefully analysed. They have
thus been led through such series of conceptual muddles to proclaim what,
under closer analysis, turn out to be patently false allegations against the
theory. For example, the impression is sometimes created that the legal
positivist does not have the resources within the framework of his theory to
draw the vital distinction between a lawful order and a regime of mere brute
force. The imputation of such a crude theory of legal validity, according to
which positivists are held to equate a regime of law to the gunman situation
writ-large, is exemplified by the passage quoted from Dr. Elegido above,
where he asserts that one major way in which positivist approaches in legal
theory do great harm is ―.especially in so far as of themselves they tend to
legitimate the actions of whoever finds himself in power.‖ 62

It takes only one moment for us to realise that if this allegation were true, it
would be especially damaging to the credibility of the positivist theory in the
African context. Most of the moral atrocities that people complain about were
committed under undemocratic, dictatorial governments. In almost all the
cases, those governments were military dictatorships; the regimes were often
led by bands of military officers, who, after violently overthrowing a lawful
government would proclaim the suspension of the legal basis of the
democratic constitution, and subsequently proceed to govern by issuing
decrees. The pertinent question is whether such military decrees qualify as
valid laws.

The critic seems to suppose that the legal positivist would, willy-nilly, and
without any further explanation or argument, return an affirmative answer to
that question. Of course that supposition is wrong. It is in fact contradicted by
overwhelming textual evidence from contemporary positivist writings. Since
this crude conception of legal validity is an account which most modern legal
positivists expressly reject, even if the account may, with some argument, be
attributed to old-style reductionist legal positivism, it cannot be attributed to
the positivist creed as a whole. Modern normative positivists in particular
reject that gunman situation writ-large view of legal validity, along with other
indefensible elements of Austinian positivism. According to H. L. A. Hart:

The root cause of the failure of [Austinian legal positivism] is

that the elements out of which the theory was constructed,
viz. The ideas of orders, obedience, habits, and threats, do
not include, and cannot by their combination yield, the idea
of a rule, without which we cannot hope to elucidate even
the most elementary forms of laws.63
I can see no basis for attributing to a theorist, who proposes that the concept
of law be elucidated in terms of social rules, the simple imperativist model,
according to which there may be nothing more to a regime of law than the
gunman situation writ-large. In the same vein, I can see no justification at all
for the critic‘s supposition that legal positivists would, without any further
ado, accept the decrees issuing from the headquarters of a military junta as
valid laws.

The critic might point out that Hart equivocates a lot on the concept of a
social rule. As many commentators have pointed out, it is clear that by the
time Hart developed his account of the existence of a legal system (as distinct
from the validity of individual rules within a legal system), i.e., Hart‘s two
minimum necessary and sufficient conditions for the existence of a legal
system, the notion of social rules that goes into the analysis is radically
different from the idea of customary social rules, introduced in the early
chapters of The Concept of Law, which owe their existence to wide-spread
acceptance in the relevant society. Given this equivocation, the critic might
press on, Hart‘s normative legal positivism can offer no theory of legal validity
that is qualitatively different from what is contained in John Austin‘s
imperativist model.

This is no doubt a very strong objection against Hart‘s positivist theory of law.
But, as I have argued elsewhere,64 the objection does not hold against all
Hartian positivist theories. In any case, my view is that legal positivists need to
be more explicit in their explanation of the moral legitimacy of the foundation
of a legal system. Observing that while Hart‘s minimum requirements may be
necessary, they would not be sufficient to constitute the foundation of a legal
system, I have proposed that: ―In order for the enactment by officials to
amount to valid laws (given that a valid rule of law has the inherent potential
to generate the moral obligation to comply with its requirement) the process
whereby persons get to become lawgivers and remain lawgivers, must be a
morally legitimate one.‖65

The critic‘s response might be to welcome this proposal, and then to gleefully
proclaim that the underlying theory can no longer be a true variant of legal
positivism. As usual, the critic would have been celebrating a bit too soon; his
observation is wrong. While my proposal addresses the issue of the moral
foundation of a legal system as a whole, it says nothing yet about the moral
content of individual rules of law to be made by officials with the requisite
moral authority, subsequent to the constitution of a morally legitimate legal
system. On that latter question, I firmly uphold the separability thesis.

Going back then to the question we posed above: are the decrees issued by
military regimes valid laws? My inclination is to return a negative answer. For
how can anything lawful result from such fundamental illegality that military
regimes often represent? But this answer would have to be further supported
by arguments, for it clearly runs up against the received opinion on the matter.
The received opinion is backed by much of existing international law,
according to which the foundations of a legal system—the Kelsenian
grundnorm—is deemed to be changeable by the incidence of a ―revolution‖.

In the Cold War decades, during which time, coincidentally, military juntas
were running amok all over Africa and in other parts of the developing world,
public international law treated military coups d‘etat as satisfying the definition
of grundnorm- changing ―revolution‖. Therefore, the recognition accorded to
successive military regimes in Nigeria and elsewhere in Africa, both by the
municipal courts and the international community, was not necessitated by
our legal systems‘ subscription to the positivist creed in legal theory; it was
facilitated by the exigencies of international politics.

Other than this crucial distinction between the existence conditions of a legal
system and the criteria of validity of individual rules of law, another important
distinction which critics of legal positivism often fail to draw is that between
the determination of the validity of a rule of law and the determination of its
moral bindingness, i.e., determining whether or not a norm- subject lies under
a moral obligation to comply with the provisions of the (valid) rule. Positivists
are often treated as if they hold the view that the process of ascertaining the
validity of a law is identical to the process of ascertaining whether or not there
arises a moral obligation to obey it. But unless a positivist fails to pay attention
to what he is doing, he cannot fall into that error.

Acutely aware of their endorsement of the separability thesis, modern

positivists have often made it clear that the mere fact that a rule is legally valid
does not, by any means, automatically translate to the generation of a moral
obligation on the citizen to comply with it. Legal positivists know all too well
that a law may be valid but too unjust or otherwise too immoral for there to
be a moral obligation to obey it. Bentham‘s teaching is for a clear boundary to
be drawn between ―expository‖ jurisprudence and ―censorial‖ jurisprudence.
His admonition to the norm-subject is to obey promptly but to criticize freely.
That Benthamite dichotomy still animates much of modern positivist writing,
perhaps with the enlightened modification shifting the emphasis from prompt
obedience to free censoring. Leading legal positivists are at the forefront of
the enlightened liberalism of our age, just as Bentham and his disciples were
the apostles of liberal reforms in their time.

The allegation was once made that the vulgarized reformulation of the
separability thesis, ―law is law‖ (Gesetz als Gesetz) may have served as the
doctrinal shroud that blocked the moral vision of the courts in Nazi Germany.
Professor Hart‘s response is that that attitude toward the law is not dictated by
the logic of the positivist doctrine. Thus, next time someone comes around to
recite that piece of platitude, ―law is law‖, the correct response is to remind
him that his platitude tells only half of the story: ―the truly liberal answer to
any sinister use of the slogan ―law is law‖ or the distinction between law and
morals is, ―very well, but that does not conclude the question. Law is not
morality; do not let it supplant morality.‖66

Some critics would insist that even if legal positivism may not be directly
implicated in the enthronement of a dictatorial regime, it nonetheless help
such regimes to consolidate and to go about executing their immoral
objectives with relative ease, using the instrumentality of the judiciary.
Olufemi Taiwo, for example, alluded to ―.how legal positivism might have
made it easier for judges to escape censure for their roles under, say Idi Amin
in Uganda or Ian Smith in Zimbabwe (then Rhodesia).‖67 Taiwo‘s further
allusion to ―unimaginative squirming judges [wanting] to hide under the
veneer of having no control of their pronouncements‖, suggests that what he
implies here is that a courageous, morally upright and resourceful judge
operating under such a fascist regime should be able to ensure that his judicial
decisions do not result in blatant injustice or undeserved human suffering.
Taiwo seems to believe that a judge with these qualities would be able to
frustrate the evil designs and programmes of tyrants like Idi Ami, Ian Smith,
Sani Abacha, Mobutu Sese Seko, etc., to the extent that the tyrant attempts to
accomplish his evil ends through the legal process (or what at the point in
time passes as the legal process). The unstated assumption in Taiwo‘s
argument and other versions of the objection by opponents of legal
positivism, is that subscription to the positivist philosophy rubs a judge of the
virtues of courage, moral uprightness, and resourcefulness.

It is of course difficult to see how this might be so; and Taiwo fails to provide
any detailed explanation of the presumed process whereby the positivist
philosophy turns judges—who are otherwise virtuous men and women—into
moral cretins. In my view, subscription to the positivist doctrine should not in
itself prevent a judge from attempting to rig the outcome of a judicial decision
to suit his own moral convictions. Legal positivism is not antithetical to
judicial activism. Judicial activism is, however, a double- edged sword, it can
cut both ways. Just as a judge whose morality we agree with might (under the
banner of judicial activism) manipulate the interpretation of a legal provision,
to obtain a morally agreeable result, so too might another judge, whose moral
standards we disagree with, manipulate the interpretations of a rule to arrive at
a morally disagreeable verdict.

Our experience in the recent past would indicate that the two kinds of judges
are easy to find in the Nigerian judiciary. In the system where we had a high
court judge with enough courage and moral rectitude to declare the so called
Interim National Government (ING)—set up after the annulment of the June
1993 presidential elections—illegal, we also had another high court judge,
who, under the cover of darkness at night, rendered the momentous verdict
upholding the lawfulness of the so called Association for Better Nigeria‘s
(ABN) prayer to have the presidential elections of June 12, 1993 stopped. I
doubt whether Justice (Mrs.) Akinsanya, the judge at the Lagos high court was
any less a legal positivist‘ or, positivist-inspired than Justice (Mrs.) Ikpeme,
who gave the infamous ABN ruling at the Abuja high court.

In extreme cases, the professionally proper thing for a judge to do may be to

resign his appointment, i.e., instead of returning a morally unjust verdict, or
trying to tinker with the clear meanings of the law. The morally proper thing
for any person to do is to join in the campaign against an evil regime.
Depending on the severity of the atrocities being committed by the regime,
and an overall estimate of the circumstance, such campaigns may range from
peaceful civil protests to a resort to armed confrontation.

In the years immediately preceding the end of the Second World War, some
suggestions were heard from certain scholarly circles to the effect that legal
positivism may have contributed to paving the way for the enthronement and
sustenance of the Nazi ideology in Germany – suggestions quite similar to the
accusations now been leveled against the positivist creed by its African critics.
Professor Hart‘s rejoinder to those allegations of possible positivist complicity
in Nazis‘ reign of terror is most instructive. It is that rather than blaming the
alleged ―insensitiveness to the demands of morality and subservience to state
power in a people like the Germans‖ on the positivist creed in legal theory,
attempts should be made to discover the origins of such beliefs and
dispositions in the German society. As Hart put it:

There is an extraordinary naivete in the view that

insensitiveness to the demands of morality and subservience
to state power in a people like the Germans should have
arisen from the belief that law might be law though it failed
to conform with the minimum requirement of morality.
Rather this terrible history of insensitiveness to the demands
of morality and subservience to state power prompts inquiry
into why emphasis on the slogan ―law is law:, and the
distinction between law and morals, acquired a sinister
character in Germany, but elsewhere, as with the utilitarians
themselves, went along with the most enlightened liberal
attitudes.68

Borrowing a leaf from Hart, I would admonish the African critics of legal
positivism to commence inquiries into why democratic institutions and
practices ―have never been permitted to germinate, not to talk of grow‖, as
Justice Aguda put it, in these African societies, instead of laying the
responsibility for the social and moral evils of political dictatorship at the door
step of the positivist theory.

An African Case For Legal Positivism

Philip Soper69 has argued that the choice of a legal theory cannot be based on
moral considerations. In other words, Soper is of the view that it would make
no moral difference at all, whether one chooses legal positivism or its rival, the
natural law theory. I doubt whether this is indeed the case, although I have no
intention of defending a substantive position here. But even if one may not
choose a legal theory for moral reasons, it would not follow that we may not
prefer one legal theory to another, for reasons that are not any less
compelling. Presently, I shall argue for the position that there are compelling
pragmatic reasons for the legal systems of modern African states to choose
the positivist theory of law, in preference to the natural law theory.

For our purposes here, we shall take the core element of a positivist
conception of law as consisting in the affirmation of the separability thesis.
On the other hand, we take the core element of a natural law theory to be the
denial of the separability thesis. My contention is that faced with the choice
between legal positivism on one hand and natural law theory on the other,
there are strong historical and pragmatic reasons for the legal systems of
modern nation states in Africa to choose the positivist doctrine.

Earlier on, in section IV.1 of the essay, I criticized Okafor‘s characterisation of

what he calls African traditional society on the grounds, inter alia, that the
account fails to take due cognizance of the enormous cultural diversity that
was the hallmark of the African continent, even in traditional times. My case
for the adoption of legal positivism by modern African states tracks on these
facts of cultural diversity in traditional (or pre-colonial) Africa, conjoined with
the unique colonial experiences, and the resultant post- independence ethnic
and ethical composition of many African nation states at present.
It is a fact that many of the entities that pass for sovereign nation states in
present day Africa are conglomerations of many different ethnic nationalities,
who were arbitrarily lumped together by the colonial powers. The colonialists
had magnified, or underplayed the differences between these ethno-national
groups, as it suited colonial administrative convenience. Upon the departure
of the colonial powers, leaders of the various ethno-national groups thus
―united‖ for colonial administration had proclaimed the geographical areas
covered by the territories of their different groups as independent sovereign
states. But the elements of cultural diversity that characterized pre-colonial
African societies have survived in the new nation states. The cultural
differences are manifested in the various aspects of life, in different
institutional structures and social practices, ranging from the most sacred—
religious beliefs—to the most mundane, say, attitude toward commerce.

Nigeria, where many of these African critics of legal positivism and I come
from, offers a particularly rich example of such a great diversity of ethno-
national groups arbitrarily lumped together by the colonial rulers, and in which
the constituent ethnic groups have retained (indeed have been jealously
guiding) their respective cultural identities, after the whole territory was
declared an independent nation state in 1960.

There are close to three hundred natural languages in Nigeria – and that is not
counting the many dialects of each. The majority of the population is unable
to communicate in English, the language of the departed colonial power and
the country‘s official language at present. Talking of religious creeds, Islam is
the religion of the North, the Roman Catholic church is dominant in the East,
Islam and Protestant Christianity co-exist in the West. There are, of course
pockets of believers in various indigenous African religions in all the regions.
Each of the major religious sects boasts of a dizzying array of sub-sects,
ranging from extreme orthodoxy or fundamentalism to permissive liberalism,
analogous, one might say, to the varied dialects of the natural languages.
Added to these are a host of other cultural differences which, as I remarked
above, are reflected in matters ranging from beliefs about matrimony and
paternal obligations, to beliefs about the appropriate relationship between
rulers and their subjects, to the morality of interest-charging. Nigeria, one can
only conclude, is one spectacular geographical artefact.

Now consider the conception of law according to the critic‘s idea of what
African jurisprudence should be. On that model of jurisprudence, which they
claim to be in accord with the natural law doctrine, no positive enactment
would be considered a valid law if it were in any way contrary to some
assumed moral principle. We shall recall, for example, how Okafor had
insisted that law, morality, and religion are to be held inseparable on the
model of traditional African worldview, and how he had insisted that all
efforts must be made by modern African legal systems to ensure that the laws
faithfully reflect that worldview. If we adopt this natural- law-inspired
constraint on the possible contents of positive laws, we would have to insert a
provision in the Nigerian Constitution, to the effect that no law is to be
deemed valid if it is contrary to moral, and perhaps also religious, standards.
The question then would be, to which or whose moral or religious creed
would the law have to conform? In other words, whose call is the lawmaker to
heed, given the multitude of moral and religious voices presently coexisting
within the Nigerian geo-political space?

In my view, the surest way to frustrate lawmaking, and consequently to court

the perils of anarchy and the disintegration of the nation, is to impose this
kind of constraints on the possible contents of our positive laws. Therefore,
the separability thesis, according to which it would not be a necessary truth,
hence not a necessary requirement, that our positive laws reproduce or satisfy
certain moral or religious principles, will serve us better. Of course, our
lawmakers would be encouraged to ensure that the laws they enact conform to
as much of morality and, wherever possible, as much of religion, as possible.

Somewhere in his paper, Okafor had issued the warning that ―African positive
laws must not be confused with some past atrocious practices and acts
occasioned by past ignorance of the course of nature and executed with great
religious dexterity.‖70 I consider this a most sensible admonition. It has a
corollary: atrocities committed in the name of the law should not be blamed
on religion or morality. Atrocities committed in the name of the law should be
carefully investigated, to determine what ―wrong beliefs‖ motivated them, and
to determine where precisely to put the blame.

Unfortunately, there can be no way to mark the distinction which Okafor here
considers desirable, that is, if we follow him and his fellow natural law
theorists in weaving the different institutions of law, morality, and religion
into one tangled, inseparable (and of course inoperable) body of dogmas. On
the other hand, one of the guiding aims of legal positivism, cashed out most
forcefully in the separability thesis, is to enable us draw this kind of crucial
distinctions. Standing firmly on the moral pedestal, we can keep a watchful eye
on the operations of the positive law.

The objection could be raised that I have over-emphasized the issue of

cultural diversity of the different ethnic nationalities that compose a typical
nation state in post-colonial Africa; and that I underplayed the elements of
cultural uniformity that are always on display in these societies. Is it not the
case, as P.C. Nwakeze has observed, that ―in the midst of the diversity of
African cultures, there is striking cultural uniformity which allows us to talk of
‗African culture‘‖?71 In any case, as rational agents, do citizens of modern
African states not agree on many important points of moral values? I suppose
we can grant that both of these questions could be answered in the
affirmative. However, I do not see how that would in any way undermine my
conclusion that to impose the kind of moral or religious constraints on the
possible contents of positive law, such as the critics of legal positivism
advocate, would effectively paralyse the making and or the administration of
laws in a country such as ours.

To grant that there are elements of cultural uniformity is not in any way to
retreat from the observation that there are also elements of cultural diversity
among the various ethno- national groups in modern African states. To
concede that citizens of African states would agree on many important points
of moral values is, likewise, compatible with the rival observation that those
same citizens, informed by different religious and ethical beliefs, might
disagree on many important points of moral and religious values. My
contention is that where such areas of moral and religious differences are
sufficiently fundamental, as I think they would be in any society as culturally
diverse as a typical modern African nation state, they will frustrate efforts at
making and administering laws, should there be moral or religious constraints
on the possible contents of the law, such as the natural-law-inspired writers
would propose.

It will not help much either, to say that the positive laws be required to
conform only to the standards of critical morality. That suggestion
presupposes that there is always agreement as to what these standards are.
That presupposition is wrong. It is easy enough, I suppose, to expressly
incorporate into the letters and principles of our positive laws, moral or
religious values about which there is widespread agreement in the society.

References
Ajisafe, A. K. Laws and Customs of the Yorruba People. London: Routledge,
1924.
Austin, John. The Province of Jurisprudence Determineed, edited by H. L. A. Hart.
London: Weidenfeld &Nicolson, 1968.
Bix, Brian (ed.), Analyzing Law: New Essays in Legal Theory. Oxford: Clarendon
Press, 1998.
Danquah, J. B. Akan Laws and Customs. London: Routledge &Sons Ltd.,
1928.
Dworkin, Ronald. Taking Rights Seriously. Cambridge, Mas: Harvard
University Press, 1977.
Elegido, J. M. Jurisprudence. Ibadan: Spectrum Law Publishing, 1994.
Elias, T. O. The Nature of African Customary Law. Manchester: Manchester
University Press, 1956.
Elias, T.O. Groundwork of Nigerian Law. London: Routledge &Kegan Paul,
1954.
Feinberg, Joel. And Gross, Hyman (ed.), Philosophy of Law. Belmont,
California: Wadsworth Publishing Co. 1980.
Finnis, John. Natural Law and Natural Rights. Oxford: Clarendon Press, 1980.
Gavison, Ruth (ed.), Issues in Contemporary Legal Philosophy: The Influence of
H.L.A. Hart. Oxford: Clarendon Press, 1987.
Guest, Stephen (ed.), Positivism Today. Aldershot: Dartmouth Publishing Co.
Ltd., 1996.
Hart, H. L. A. The Concept of Law. Oxford: Clarendon Press, 1961.
Kelsen, Hans. The Pure Theory of Law; translated by Max Knight. Berkeley:
University of California Press, 1967.
Morrison, Wayne. Juriprudence from the Greeks to Post-Modernism. London:
Cavendish Publishing Ltd., 1997.
Patterson, Dennis (ed.), A Companion to Philosophy of Law and Legal Theory.
Cambridge, Mas: Blackwell Publishers Ltd., 1996.
Paulson, Stanley L. and Paulson Bonnie Litschewski (ed.), Normativity and
Norms: Critical Perspectives on Kelsenian Themes. Oxford: Clarendon Press,
1998.
Raz, Joseph. The Authority of Law. Oxford: Clarendon Press, 1979.
Robert P. George, (ed.), The Autonomy of Law: Essays on Legal Positivism.
Oxford: Clarendon Press, 1996.
Sebok, Anthony J. Legal Positivism in American Jurisprudence. Cambridge:
Cambridge University Press, 1998.
Shapiro, Ian and DeCew, Judith Wagner (ed.), Theory and Practice. New York:
New York University Press, 1995.
Simpson, A. W. B. (ed.), Oxford Essays in Jurisprudence, (second series).
Oxford; Clarendon Press, 1973.
Soper, Philip. A Theory of Law. Cambridge, Mas: Harvard University Press,
1984.
Waluchow, W. J. Inclusive Positivism. Oxford; Clarendon Press, 1994.
Wiredu, Kwasi. Philosophy and an African Culture. Cambridge: Cambridge
University Press, 1980.

Endnotes

1. H.L.A. Hart, The Concept of Law, (Oxford: Clarendon Press, 1961). Pp.
204 – 205.

2. For more on this debate, see the following works; H.L.A. Hart, The
Concept of Law, ibid.; H.L.A. Hart, ―Positivism and the Separation of Law
and Morals‖, Harvard Law Review, vol. 71, no.4 (Feb. 1958). Pp.593 – 629;
compare Lon L. Fuller‘s rejoinder to Hart, ―Positivism and Fidelity to Law –
A Reply to Professor Hart‖, in the same issue of Harvard Law Review, pp.
630 – 672; Joseph Raz, The Authority of Law, ( Oxford: Clarendon Press,
1979), especially chapter 3; Neil MacCormick, H.L.A. Hart, (London, 1981);
Neil MacCormick, ―A Moralistic Case for a Moralistic Law‖, 20 Valparaiso
Law Review (1986); Philip Soper, ―Choosing a Legal Theory on Moral
Grounds‖, Social Philosophy and Policy, (1987); Deryck Beyleveld and Roger
Brownsword, ― The Practical Differences Between Natural Law Theory and
Legal Positivism‖, Oxford Journal of Legal Studies, vol.5 (1985); pp. 1 – 32.

3. The African – mostly Nigerian – writers under reference here include the
following. F.U. Okafor, ―Legal Positivism and the African Legal Tradition‖,
International Philosophical Quarterly, vol. Xxiv, no.2, issue 94 (June 1984);
pp.157 – 164; see also Okafor‘s Igbo Philosophy of Law , (Enugu: Fourth
Dimension Publishing Co. Ltd., 1992), especially the closing remarks entitled
―A Challenge to Legal Positivism‖; Rev. Dr. N.S.S. Iwe, ―The Dangers of
Legal Positivism to Our Indigenous Values and Remedy‖, in T.O. Elias, S.N.
Awabara, and C.O. Akpamgbo (eds.), African Indigenous Law (proceedings of
workshop held between 7-9 August, 1974, at the University of Nigeria,
Nsukka), published by the Institute of African Studies, University of Nigeria,
Nsukka; pp.232 – 250; Aguda Akinola, The Judicial Process and the Third
Republic, (Lagos: F&A Publishers Ltd., 1992), especially chapter 5; see also
Justice Aguda‘s two-part opinion page publications entitled ―Back to Illegal
‗Laws‘ 1‖, in the Guardian newspaper of Monday, May 16, 1994, and ―Back to
Illegal ‗Laws‘ 2‖, in the guardian newspaper of Tuesday, may 17, 1994;
Adetokunbo Okeaya-Inneh, ―Why the Law Must Possess an Inner Morality‖,
in the Guardian newspaper of Wednesday, August 4, 1993; A.O. Obilade,
―The Decline of Legal Positivism: A Critique of Two Tenets‖, The University
of Ife Law Journal (1986), vol. 1&2, pp.94 – 111; J.M. Elegido, Jurisprudence,
(Ibadan: Spectrum Law Publishing, 1994), see especially the authors
introductory remarks on p. x.

4. In concrete historical terms, instances of this mode of adoption of a legal

theory by a legal system are hard to find. It is conceivable that there was a
period, in the 1920s and 1930s, when the Realist ―predictivist‖ theory of law
could be said to have been adopted in this sense, by the American legal
system. This was the period when influential realists occupied strategic
positions in and out the judiciary: from supreme court justices like Oliver
Wendel Holmes jr., to deans and professors at leading American law schools.
In this regard, no one can read Karl Llewelyn‘s classic general introduction to
law, The Bramble Bush (first published in 1930), and not be struck by the
pervasive commitment to the predictivist conception of law. Llewelyn‘s
objective was to train lawyer - he was professor of law at Columbia – who
would be good forecasters of the future course of judicial behaviour.

5. The concept of the rule of recognition was introduced by H.L.A. Hart. See
The Concept of Law, chapter 6. The rule of recognition is the ultimate rule in
a legal system, it specifies the criteria for the identification (recognition) of
every other rule in the system. In other words, the rule of recognition contains
the criteria of legal validity in a legal system.

6. In this respect, Professor Hart‘s analysis of the positivist separability thesis,

both in The concept of Law , and in the Harvard Law Review article, cited
above, is very instructive. I say more on this later in the text.

7. Virtually, all the Nigerian writers listed in note (3) above, make this claim.

8. Courses such as Commercial law, Land law, Tort, Criminal law, Law of
evidence, e.t.c., that would make graduates of the law schools readily
employable - by governments or in private chambers – thus furnishing them
with a secure source of livelihood, enabling them, as Llewelyn used to put it,
―to butter [their] bread, or to give them bread to butter‖.

9. A.V. Dicey was quoted to have made this observation in an article in Law,
Mag. & Rev., vol.5 . The quotation is from John C. Gray, ―Some Definitions
& Questions in Jurisprudence‖, Harvard Law Review, vol. Vi (1892/93), p.23.
Happily, neither Gray nor Dicey seems to endorse this ―practising barrister‘s‖
opinion on jurisprudence.

10. Stromholm, Stig. A Short History of Legal Thinking in the West,

(Stockholm, Sweden: Norstedts Forlag AB, 1985).

11. Austin, John. The Province of Jurisprudence Determined, edited with an

introduction by H.L.A. Hart, (London: Weidenfeld and Nicolson, 3rd
impression, 1968); lecture v, esp. p135ff.

12. Ibid. p.145.

13. ibid. Austin explains this at great length in lecture vi, pp.193 ff.

14. Ibid. pp. 13 – 14.

15. Ibid. p. 184.

16. A concise survey of the realist movement is offered by Brian Leiter , in his
article, ―Legal Realism‖, in Dennis Patterson (ed.), A Companion to
Philosophy of Law and Legal Theory, (Oxford: Clarendon Press, 1996); pp.
261 – 279.

17. Holmes, O. W. (jnr.). ―The Path of the Law‖, Harvard Law Review, vol.
10 (1897); pp.457 – 478.

18. Hart, H.L.A. The Concept of Law, op. Cit. Hart‘s work has attracted a
great deal of interest and critical comments. For a sympathetic exposition of
Hart‘s philosophy of law, see MacCormick, H.L.A. Hart, op.cit. Two
collections of essays in honour of Hart are particularly useful: Joseph Raz and
P.M.S. Hacker (eds.), Law and Morality: Essays in Honour of H.L.A. Hart,
(Oxford: Clarendon Press, 1977); Ruth Gavison (ed.), Issues in Contemporary
Legal Philosophy: The Influence of H.L.A. Hart, (Oxford: Clarendon Press,
1987).

19. Kelsen, Hans. The Pure Theory of Law, translated by Max Knight,
(Berkeley & Los Angeles: University of California Press, 1967). For a major
collection of critical essays on Kelsen‘s work, see Stanley L. Paulson and
Bonnie Litschewski Paulson (eds.), Normativity and Norms:Critical
Perspectives on Kelsenian Themes (Oxford: ClarendonPress, 1998).

20. For more on this, see my ―Normative Positivism and Its Modern Critics‖,
in Legal Systems & Legal Science; Proceedings of the 17th World Congress of
the International Association for Philosophy of Law and Social Philosophy
(IVR) Bologna, June 16 – 21, 1995; ( ARSP – Beiheft 70: vol. Iv), edited by
Marijan Pavcnick and Gianfrancesco Zanetti. Pp. 49 – 57.

21. Hart, H.L.A. The Concept of Law, op. Cit. P. 78.

22. Ibid. p. 95.

23. Ibid. pp. 181 – 182.

24. Hart, H.L.A. ―Positivism and the Separation of Law and Morals‖, Harvard
Law Review, op. Cit. P.

25. Greenawalt, Kent. ―Too Thin and Too Rich: Distinguishing Features of
Legal Positivism‖, in Robert P. George (ed.), The Anatomy of Law: Essays on
Legal Positivism, (Oxford: Clarendon Press, 1996). Pp. 1 – 29, at p.19. I added
the emphasis.

26. Paulson, Stanley L. ― Classical Legal Positivism at Nuremberg‖,

Philosophy and Public Affairs, vol. 4, no. 2 (Winter, 1975); p.134.

27. ibid. p. 136.

28. A notable exception is Elegido, Jurisprudence, op. Cit.

29. John Austin‘s classic, The Province of Jurisprudence Determined, was first
published in 1832. Austin‘s widow, Sarah Austin published a second edition,
with additional materials on the uses of the study of Jurisprudence,, in 1861.
Austin‘s statement of the positivist theory has since then been subjected to
such intense critical scrutiny and attack prompting a modern American
commentator to remark that Austin has been shot at so frequently for so long,
that all that is left of his theory are holes, no substance. The reception of
classical legal positivism has fluctuated from unreserved acclaim, to the most
contemptuous rejection. For example, John C. Gray records that Austin‘s
theory was ―considerably in vogue‖ from about 1861 (when the book was re-
issued by Sarah Austin) to about 1874. In 1874 ―Sir Henry Maine dealt it a
severe blow in his last two lectures on the ‗Early History of Institutions‘, since
which time its credit has been sensibly shaken‖ (John C. Gray, ―Some
Definitions and Questions in Jurisprudence‖, Harvard Law Review, vol. Vi
(1892/93), p.22.). The profile of Austinian positivism would thereafter rise
and fall again . W.W. Buckland‘s observations seem to capture very aptly, the
viscitude of the rising and declining fortunes of classical legal positivism,
especially Austin‘s account of it: ―The analysis of legal concepts is what
jurisprudence meant for the students in the days of my youth. In fact it meant
Austin. He was a religion; today he seems to be regarded as a disease. ― (W.W.
Buckland, Some Reflections on Jurisprudence, (Cambridge, 1949), this passage
was quoted by R.H.S. Tur, ―What is Jurisprudence?‘, The Philosophical
Quarterly, vol. 28, no iii (April 1978), p. 152). In what is generally regarded as
the most comprehensive and careful survey of Austin‘s legal theory, professor
Hart devoted the first three chapters of his own classic, The Concept of Law,
to a detailed critique of Austin‘s ideas. His verdict after the painstaking study
seems to have put the final nail on the coffin of reductivist positivism. The
survey carried out in the last three chapters is, in Hart‘s words, ―a record of
failure.‖ P.78. Hart is, nonetheless, persuaded that a more adequate account of
the nature of law can be constructed from the ruins of Austin‘s theory.

30. Okafor, ―Positivism and the African Legal Tradition‖, op.cit.p.157.

31. ibid.

32. ibid. p. 163.

33. Aguda, Akinola. The Judicial Process and the Third Republic, op. Cit.
P.81.

34. Iwe, N.S.S. ―The Dangers of Legal Positivism‖, op. Cit.p.233.

35. ibid. p. 236.

36. Okafor, F.U. op. Cit. P.

37. ibid. 161

38. ibid.

39. ibid.

40. ibid. 163.

41. Ibid. 162

42. ibid. 163.

43. Ibid.

44. ibid. 160.

45. Ibid.

46. ibid.

47. ibid. 162.

48. Ibid. 163.

49. Ibid. 159.

50. Taiwo, Olufemi. ―Legal Positivism and the African Legal Tradition: A
Reply‖, op. Cit. P. 200.

51. Ibid. 198.

52. Elias, T.O. The Nature of African Customary Law, (Manchester:

Manchester University Press, 1956); p. 287.

53. Ibid. 286.

54. It is instructive that Bentham and his fellow utilitarians combined a strong
endorsement of the positivist doctrine with highly enlightened liberal attitudes
toward legal and other aspects of social reforms.

55. Bentham, Jeremy. Theory of Legislation, edited by Ogden, p. 317; quoted

on p.286 of Elias.

56. Ibid. The emphasis is mine.

57. Elegido, J. M. Jurisprudence, p. x.

58. Okafor, F. U. ―Legal Positivism and African Legal Tradition‖, p. 164.

59. Taiwo, Olufemi. ― Legal Positivism and African Legal Tradition: A Reply‖,
p.199.

60. Aguda, Akinola. The Judicial Process and the Third Republic, pp. 82 – 83.

61. Ross, Alf. ― Validity and the Conflict Between Legal Positivism and
Natural Law‖, Revista Juridica de Buenos Aires, (1961), vol. 4, p. 56.

62. Elegido, J.M. see note (57) above.

63. Hart, H.L.A. The Concept of Law, p. 78.

64. See my ―Normative Legal Positivism and Its Modern Critics‖, note (20)
above.
65. Ibid. p. 56.

66. Hart, H.L.A. ― Positivism and the Separation of Law and Morals‖, p. 618.

67. Taiwo. Olufemi. ―Legal Positivism and African Legal Tradition: A Reply‖,
p199.

68. Hart, H.L.A. ― Positivism and the Separation of Law and Morals‖, p.618.It
is encouraging to note that the kind of enquiries that Hart suggested are now
been undertaken by serious scholars. The findings thus far confirm what the
defenders of the positivist creed in legal theory have always insisted on. In an
important recent study , Paulson has shown , convincingly, that not only did
legal positivism not serve in any form to underwrite the atrocities committed
by officials and private individuals in Nazi Germany, but that the German
positivists were in fact among the most visible opponents of Nazism; an
ideological stance for which the legal positivists were routinely victimized
(Paulson, Stanley L. ―Lon L. Fuller; Gustav Radbruch, and the ‗Positivist‘
Theses‖, Law and Philosophy, vol. 13, (1994). Pp. 313 – 359).

69. Soper, Philip. ―Choosing a Legal Theory on Moral Grounds‖, 44, Social
Philosophy and Policy, vol. 4, issue 1, (1987); pp. 33 – 48.

70. Okafor, F. U. ― Legal Positivism and African Legal Tradition‖, p. 164.

71. Nwakeze, P. C. ― A Critique of Olufemi Taiwo‘s Criticism of Legal

Positivism and African Legal Tradition‖, International Philosophical
Quarterly, vol.xxvii, no.1, issue 105, (March 1987); pp. 101 – 105.

Copyright 2001 Africa Resource Center, Inc.

Citation Format

Oladosu, Jare (2001). CHOOSING A LEGAL THEORY ON

CULTURAL GROUNDS: AN AFRICAN CASE FOR LEGAL
POSITIVISM. West Africa Review: 2, 2 [iuicode:
http://www.icaap.org/iuicode?101.2.2.2]

H.L.A. Hart, "Legal Positivism"

from Positivism and the Separation of Law and Morals

71 HARV. L. REV. 593, 594-606 (1958
SOURCED FROM: http://www.kentlaw.edu/classes/rwarner/justice/syllabus/hpositiv.html

Editor's Note: H.L.A. Hart was Professor of Jurisprudence in Oxford University from 1952 until
1968. He lectured and taught on many occasions in the United States, and his writings in legal
philosophy have been extraordinarily influential.]

At the close of the eighteenth century and the beginning of the nineteenth the most earnest thinkers
in England about legal and social problems and the architects of great reforms were the great
Utilitarians. Two of them, Bentham and Austin, constantly insisted on the need to distinguish, firmly
and with the maximum of clarity, law as it is from law as it ought to be. This theme haunts their
work, and they condemned the natural-law thinkers precisely because they had blurred this
apparently simple but vital distinction. By contrast, at the present time in this country and to a lesser
extent in England, this separation between law and morals is held to be superficial and wrong. Some
critics have thought that it blinds men to the true nature of law and its roots in social life.(4) Others
have thought it not only intellectually misleading but corrupting in practice, at its worst apt to weaken
resistance to state tyranny or absolutism,(5) and at [23]its best apt to bring law into disrespect. The
nonpejorative name "Legal Positivism," like most terms which are used as missiles in intellectual
battles, has come to stand for a baffling multitude of different sins. One of them is the sin, real or
alleged, of insisting, as Austin and Bentham did, on the separation of law as it is and law as it ought
to be.

How then has this reversal of the wheel come about? What are the theoretical errors in this
distinction? Have the practical consequences of stressing the distinction as Bentham and Austin did
been bad? Should we now reject it or keep it? In considering these questions we should recall the
social philosophy which went along with the Utilitarians' insistence on this distinction. They stood
firmly but on their own utilitarian ground for all the principles of liberalism in law and government.
No one has ever combined, with such even-minded sanity as the Utilitarians, the passion for reform
with respect for law together with a due recognition of the need to control the abuse of power even
when power is in the hands of reformers. One by one in Bentham's works you can identify the
elements of the Rechtstaat and all the principles for the defense of which the terminology of natural
law has in our day been revived. Here are liberty of speech, and of press, the right of association, the
need that laws should be published and made widely known before they are enforced, the need to
control administrative agencies, the insistence that there should be no criminal liability without fault,
and the importance of the principle of legality, nulla poena sine lege.(*) Some, I know, find the
political and moral insight of the Utilitarians a very simple one, but we should not mistake this
simplicity for superficiality nor forget how favorably their simplicities compare with the profundities
of other thinkers. Take only one example: Bentham on slavery. He says the question at issue is not
whether those who are held as slaves can reason, but simply whether they suffer.(11) Does this not
compare well with the discussion of the question in terms of whether or not there are some men
whom Nature has fitted only to be the living instruments of others? We owe it to Bentham more
than anyone else that we have stopped discussing this and similar questions of social policy in that
form.

So Bentham and Austin were not dry analysts fiddling with verbal distinctions while cities burned,
but were the vanguard of a movement which laboured with passionate intensity and much success to
bring about a better society and better laws. Why then did they insist on the separation of law as it is
and law as it ought to be? What did they mean? Let us first see what they said. Austin formulated the
doctrine:
The existence of law is one thing; its merit or demerit is another. Whether it be or be not is one
enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry. A law,
which actually exists, is a law, though we happen to dislike it, or though it vary from the text, by
which we regulate our approbation and disapprobation. This truth, when formally announced as an
abstract proposition, is so simple and glaring that it seems idle to insist upon it. But simple and
glaring as it is, when enunciated in abstract expressions, the enumeration of the instances in which it
has been forgotten would fill a volume.
[24]

Sir William Blackstone, for example, says in his "Commentaries," that the laws of God are superior in
obligation to all other laws; that no human laws should be suffered to contradict them; that human
laws are of no validity if contrary to them; and that all valid laws derive their force from that Divine
original.

Now, he may mean that all human laws ought to conform to the Divine laws. If this be his meaning,
I assent to it without hesitation....Perhaps, again, he means that human lawgivers are themselves
obliged by the Divine laws to fashion the laws which they impose by that ultimate standard, because
if they do not, God will punish then. To this also I entirely assent....
But the meaning of this passage of Blackstone, if it has a meaning, seems rather to be this: that no
human law which conflicts with the Divine law is obligatory or binding; in other words, that no
human law which conflicts with the Divine law is a law....(12)
Austin's protest against blurring the distinction between what law is and what it ought to be is quite
general: it is a mistake, whatever our standard of what ought to be, whatever "the text by which we
regulate our approbation or disapprobation." His examples, however, are always a confusion between
law as it is and law as morality would require it to be. For him, it must be remembered, the
fundamental principles of morality were God's commands, to which utility was an "index": besides
this there was the actual accepted morality of a social group or "positive" morality.

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."(13) But
Bentham was especially aware, as an anxious spectator of the French revolution, that this was not
enough: the time might come in any society when the law's commands were so evil that the question
of resistance had to be faced, and it was then essential that the issues at stake at this point should
neither be oversimplified nor obscured.(14) 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."
On the other hand he thought of the reactionary who argues: "This is the law, therefore it is [25]what
it ought to be," and thus stifles criticism at its birth. 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,(15) 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.(16) This
indeed was for Bentham the occupational disease of lawyers: "[I]n the eyes of lawyersnot to speak of
their dupesthat is to say, as yet, the generality of non-lawyersthe is and ought to be...were one and
indivisible."(17) There are therefore two dangers between which insistence on this distinction will
help us to steer: the danger that law and its authority may be dissolved in man's conceptions of what
law ought to be and the danger that the existing law may supplant morality as a final test of conduct
and so escape criticism.

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." First, they never denied that, as a matter of
historical fact, the development of legal systems had been powerfully influenced by moral opinion,
and, conversely, that moral standards had been profoundly influenced by law, so that the content of
many legal rules mirrored moral rules or principles. 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"(18) 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(19) 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;(20) 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.
[26]
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 productionsthe 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 1861. 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";(21) 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. St. John Green,(22) 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 illuminatingas a revealing tautology. This
distinction is, of course, one of the main themes of Holmes' most famous essay "The Path of the
Law,"(23) 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...is not an ideal, but something which actually
exists....[I]t is not that which ought to be, but that which is. To fix this definitely in the Jurisprudence
of the Common Law, is the feat that Austin accomplished.(24)
II.

So much for the doctrine in the heyday of its success. Let us turn now to some of the criticisms. * * *
There is, however, one major initial complexity by which criticism has been much confused. We
must remember that the Utilitarians combined with their insistence on the separation of law and
morals two other equally famous but dis-[27]tinct 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.(25) 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"(26)
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,"(27) and contemporary attempts to elucidate moral judgments in terms of
[28]"imperative" or "prescriptive" utterances echo this ambitious claim. But the command theory,
viewed as an effort to identify even the quintessence of law, let alone the quintessence of morals,
seems breathtaking in its simplicity and quite inadequate. 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." The only difference is that in the case of a legal system the gunman says it to a large number of
people who are accustomed to the racket and habitually surrender to it. 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. The
picture that the command theory draws of life under law is essentially a simple relationship of the
commander to the commanded, of superior to inferior, of top to bottom; the relationship is vertical
between the commanders or authors of the law conceived of as essentially outside the law and those
who are commanded and subject to the law. 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." But other legal rules are presented to society in quite different ways and
have quite different functions. 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." Under these rules we exercise
powers, make claims, and assert rights. 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.(28) Yet to urge this is really just to
exhibit dogmatic determination to suppress one aspect of the legal system in order to maintain the
theory that stipulation of a sanction, like Austin's command, represents the quintessence of law. 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. * * *

* * * Rules that confer rights, though distinct from commands, need not be moral rules or coincide
with them. 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. "Their merit or demerit," as Austin termed it, depends on how rights are
distributed in society and over whom or what they are exercised. 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? See Dale Nance, Legal Theory and the Pivotal
Role of the Concept of Coercion, 57 U. COLO. L. REV. 1 (1985).

2. 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." In these materials, we will generally have this reference in mind when
using the word "law" without more. Yet it is frequently useful to refer to the other idea, the "law as it
ought to be." The ancient Greek philosopher Aristotle seems to have used the term "justice" for this
idea, meaning that aspect of morality (or what Aristotle would call virtue) which ought to be reflected
in the law. 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?), so the identification seems imprecise. 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.

3. 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 [31]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. ("One ought to honor one's promise, even if that doesn't produce the best possible
consequences.") Much modern philosophical debate has addressed the question of the priority of
these two modes of moral thought. 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. Unfortunately,...there is one track workman on that spur of track. 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?
Judith Jarvis Thomson, The Trolley Problem, 94 YALE L.J. 1395 (1985).
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? See Randy Barnett, Foreword: Of Chickens and EggsThe Compatibility
of Moral Rights and Consequentialist Analyses, 12 HARV. J.L. & PUB. POL'Y 611 (1989).

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.
4. 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? If so, was it
utilitarian, or deontological, or mixed?

HANS KELSEN

The Pure Theory of Law

SOURCED FROM: http://plato.stanford.edu/entries/legal-positivism/

The idea of a Pure Theory of Law was propounded by the formidable Austrian jurist and
philosopher Hans Kelsen (1881-1973). (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. Instead, Kelsen suggested a ‗pure‘ theory of law which
would avoid reductionism of any kind. The jurisprudence Kelsen propounded ―characterizes itself as
a ‗pure‘ theory of law because it aims at cognition focused on the law alone‖ and this purity serves as
its ―basic methodological principle.‖ [PT1, 7] Note that this anti-reductionism is both methodological
and substantive. 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.

1. The Basic Norm

The law, according to Kelsen, is a system of norms. Norms are ‗ought‘ statements, prescribing
certain modes of conduct. Unlike moral norms, however, Kelsen maintained that legal norms are
created by acts of will. They are products of deliberate human action. For instance, some people
gather in a hall, speak, raise their hands, count them, and promulgate a string of words. These are
actions and events taking place at a specific time and space. To say that what we have described here
is the enactment of a law, is to interpret these actions and events by ascribing a normative significance to
them. Kelsen, however, firmly believed in Hume's distinction between ‗is‘ and ‗ought‘, and in the
impossibility of deriving ‗ought‘ conclusions from factual premises alone. Thus Kelsen believed that
the law, which is comprised of norms or ‗ought‘ statements, cannot be reduced to those natural
actions and events which give rise to it. The gathering, speaking and raising of hands, in itself, is not
the law; legal norms are essentially ‗ought‘ statements, and as such, they cannot be deduced from
factual premises alone.

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

As opposed to moral norms which, according to Kelsen, are typically deduced from other moral
norms by syllogism (e.g., from general principles to more particular ones), legal norms are always
created by acts of will. Such an act can only create law, however, if it is in accord with another
‗higher‘ legal norm that authorizes its creation in that way. And the ‗higher‘ legal norm, in turn, is
valid only if it has been created in accordance with yet another, even ‗higher‘ legal norm that
authorizes its enactment. Ultimately, Kelsen argued, one must reach a point where the authorizing
norm is no longer the product of an act of will, but is simply presupposed, and this is, what Kelsen
called, the Basic Norm. More concretely, Kelsen maintained that in tracing back such a ‗chain of
validity‘ (to use Raz's terminology), one would reach a point where a ‗first‘ historical constitution is
the basic authorizing norm of the rest of the legal system, and the Basic Norm is the presupposition
of the validity of that first constitution.

Kelsen attributed two main explanatory functions to the Basic Norm: it explains both the unity of a
legal system and the reasons for the legal validity of norms. [PT2, 193] Apparently, Kelsen believed
that these two ideas are very closely related, since he seems to have maintained that the legal validity
of a norm and its membership in a given legal system are basically the same thing. Furthermore,
Kelsen argued that every two norms 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. [see Raz, ‗Kelsen's Theory of the Basic Norm‘.]
However, the role of the Basic Norm in explaining the normativity of law is crucially important. The
presupposition of the Basic Norm as the condition of validity of legal norms marks Kelsen's theory
as ‗pure‘, and distinguishes it from other theories in the Legal Positivist tradition. Contemporary legal
positivists have traditionally accounted for the normativity of law in terms of social facts: people tend
to perceive of the legal norms in their community as valid because, ultimately, there are certain social
conventions, or Rules of Recognition in H.L.A. Hart's terminology, that determine who is authorized
to make law and how law making is to be done. But this is precisely the kind of reductionism that the
Pure Theory strives to deny. Kelsen was convinced that any attempt to ground the law's normativity,
namely, its ‗ought‘ aspect, is doomed to failure if it is only based on facts, whether those facts are
natural or social. Once again, to account for an ‗ought‘ conclusion, one needs some ‗ought‘ in the
premises. Therefore, Kelsen thought, the normativity of law, as a genuine ‗ought‘, must, ultimately,
be presupposed.

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

1. P.

2. P is possible only if Q.

3. Therefore, Q.

In Kelsen's case, P stands for the fact that legal norms are ‗ought‘ statements, and Q is the
presupposition of the Basic Norm. [PT2, 202]. Furthermore, commentators have pointed out that
just as Kant's epistemology is an attempt to find the middle way between dogmatic Rationalism and
skeptical Empiricism, Kelsen's pure theory of law is an attempt to find a middle way between Natural
Law's dogmatism, and Positivism's reduction of law to the social sciences. [See Paulson,
Introduction] But it is worth keeping in mind that Kelsen's argument about the Basic Norm is an
explicitly shallow form of Kantian epistemology. The Kantian categories and modes of perception are
not optional; they form a deep, universal, and necessary feature of rational cognition. One should
recall that it is Humean skepticism that Kant strove to answer. Kelsen, however, remains Humean
through and through, Kantian influences notwithstanding. First, Kelsen was very skeptical about any
objectivist moral theory, Kant's included. [PT1, 16; PT2, 63-65] Second, Kelsen does not claim that
the presupposition of the Basic Norm is a necessary feature, or category, of rational cognition. The
Basic Norm is an ‗ought‘ presumption and, as such, optional. It is not necessary for anyone to accept
the Basic Norm. The Basic Norm is necessarily presupposed only by those who accept the ‗ought‘,
namely, the normativity, of the law. Likewise, those who believe in the normativity of a religious
order must presuppose a Basic Norm that ‗one ought to obey God's commands‘. But in both cases,
there is nothing in the nature of things which would compel any particular person to adopt such a
normative perspective. Kelsen's argument does not rule out atheism or anarchism. However, even
the anarchist, Kelsen maintained, must presuppose the Basic Norm if she is to account for the
normativity of law. But again, this presupposition is only an intellectual tool, not a normative
commitment, and as the latter, it is entirely optional.

2. The Normativity of Law

This analogy between law and religion, on which Kelsen often dwells, is more limited than it first
appears, however. The normativity of religion, like that of morality, does not depend on the actual
obedience of their respective subjects. For those, for example, who presuppose the basic norm of
Christianity, the latter would be valid even if there are no other Christians around. But this, as Kelsen
explicitly admits, is not the case with law. The validity of a legal system partly, but crucially, depends
on its actual practice: ―A legal order is regarded as valid, if its norms are by and large effective (that is,
actually applied and obeyed).‖ [PT2, 212] Furthermore, the actual content of the Basic Norm
depends on its ‗effectiveness‘. As Kelsen repeatedly argued, a successful revolution brings about a
radical change in the content of the Basic Norm. Suppose, for example, that in a given legal system
the Basic Norm is that the constitution enacted by Rex One is binding. At a certain point, a coup d'etat
takes place and a republican government is successfully installed. At this point, Kelsen admits, ―one
presupposes a new basic norm, no longer the basic norm delegating law making authority to the
monarch, but a basic norm delegating authority to the revolutionary government.‖ [PT1, 59].

This is very problematic, however, since it raises the suspicion that Kelsen has violated his own
categorical injunction against deriving ‗ought‘ from ‗is‘. Kelsen was not unaware of the difficulty. In
the first edition of the Pure Theory of Law, he suggests the solution to this problem by introducing
international law as the source of validity for changes in the basic norms of municipal legal systems.
It follows from the basic norm of international law, Kelsen maintains, that state sovereignty is
determined by successful control over a given territory. Therefore, the changes in the basic norm
which stem from successful revolutions can be accounted for in legalistic terms, relying on the
dogmas of international law. [PT1, 61-62] The price Kelsen had to pay for this solution, however, is
rather high: he was compelled to claim that all municipal legal systems derive their validity from
international law, and this entails that there is only one Basic Norm in the entire world, namely, the
Basic Norm of public international law. Although this solution is repeated in the second edition of
the Pure Theory of Law [214-215], Kelsen presented it there with much more hesitation, perhaps just
as an option which would make sense. It is not quite clear whether Kelsen really adhered to it. The
hesitation is understandable; after all, the idea that municipal legal systems derive their legal validity
from international law would strike most jurists and legal historians as rather fanciful and
anachronistic. (We should recall that the development of international law is a relatively recent
phenomenon in the history of law.)

So we are back to the question of how ‗pure‘ Kelsen's theory really is, if it is conceded that the
content of the Basic Norm is basically determined by social practice. The answer depends on how we
construe the explanatory function of the Basic Norm: Neither Kelsen nor his critics seem to have
been careful to distinguish between the role of the Basic Norm in answering the question of how we
identify the law as such, and in answering the question of law's normativity. An answer to the question
of what counts as law or as law creating acts in a given community cannot be detached from practice,
namely, social conventions. The social conventions prevalent in any given community determine,
ultimately, what counts as law in that community. (See the Nature of Law) On the other hand,
Kelsen is right to insist that social conventions, by themselves, could not explain the ‗ought‘ which is
inherent in law as a normative system. Such an ‗ought‘ cannot be constituted by the conventions.
Social conventions can only determine what the practice is, and how one would go about in engaging
in it; conventions cannot determine that one ought to engage in the practice. [see Marmor, Positive
Law & Objective Values, 25-33] Consider, for example, the analogy of a structured game, like chess.
What chess is, and how one should play the game, are determined by its constitutive rules or
conventions. Those rules which constitute the game of chess, however, cannot provide anyone with a
complete reason to play the game. The normativity of the game is conditional; it depends on a prior
reason, or commitment, to play the game. We cannot say, for example, that one ―ought to move the
bishop diagonally‖ unless we assume that the agent wants to play chess. The fact that the rules of
chess require the players to move the bishop diagonally is not, in itself, a reason for doing so, unless,
again, it is assumed that it is chess that one wants to play. Now, it is precisely this kind of assumption
that the Basic Norm is there to capture. Just as the normativity of chess could not be explained
without presupposing, as it were, that the players want to engage in that particular game, so the
normativity of law must be premised on the Basic Norm.

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

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

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

Bibliography

Note

Kelsen's academic publications span over almost seven decades in which he published dozens of
books and hundreds of articles. Only about a third of this vast literature has been translated to
English. Kelsen's two most important books on the pure theory of law are the first edition of his
Reine Rechtslehre, published in 1934, and recently translated to English under the title Introduction to the
Problems of Legal Theory, (Paulson and Paulson trans.) Oxford 2002, and the second edition which
Kelsen published in 1960, Pure Theory of Law, (Knight trans.), UC Berkeley press, 1967. The second
edition is a considerably extended version of the first edition. These books are abbreviated in the test
as PT1 and PT2 respectively. In addition, most of the themes in these two books also appear in
Kelsen's General Theory of Law and State, (1945), (Wedberg trans.), Russell & Russell, NY 1961 and
What is Justice?, UC Berkeley Press, 1957. Other relevant publications in English include ‗The Pure
Theory of Law and Analytical Jurisprudence‘, 55 Harvard L. Rev. (1941), 44, ‗Professor Stone and the
Pure Theory of Law: A Reply‘, (1965), 17 Stanford L. Rev. 1128, and ‗On the Pure Theory of Law‘
(1966), 1 Israel L. Rev. 1.
For a complete list of Kelsen's publications which have appeared in English see the Appendix to H.
Kelsen, General Theory of Norms (M. Hartney trans.) Oxford, 1991, pp. 440-454.

Other Sources

 Harris, J.W., Legal Philosophies, Butterworths, 1980, chapter 6.

 Hart, H.L.A., The Concept of Law, Oxford 1961, chapter 3.

 -----, ‗Kelsen's Doctrine of the Unity of Law‘, in H.E. Kiefer and M.K. Munitz (eds), Ethics
and Social Justice, NY, 1970.

 Marmor, A., Objective Law and Positive Values, Oxford 2001, chapter 2.

 Paulson, S., Introduction to Kelsen's Introduction to the Problems of Legal Theory, Clarendon
2002, xvii.

 Raz, J., The Concept of a Legal System, (2nd ed.) Oxford 1980.

 -----, ‗Kelsen's Theory of the Basic Norm‘ in Raz, The Authority of Law, Oxford 1979, 122.

Copyright © 2002
Andrei Marmor
[email protected]

JOHN AUSTIN

SOURCED FORM: http://plato.stanford.edu/entries/austin-john/

John Austin is considered by many to be the creator of the school of analytical jurisprudence, as well
as, more specifically, the approach to law known as "legal positivism." Austin's particular command
theory of law has been subject to pervasive criticism, but its simplicity gives it an evocative power
that cannot be ignored.
1. Life
John Austin's life (1790-1859) was filled with disappointment and unfulfilled expectations. His
influential friends (who included Jeremy Bentham, James Mill, John Stuart Mill and Thomas Carlyle)
were impressed by his intellect and his conversation, and predicted he would go far. However, in
public dealings, Austin's nervous disposition, shaky health, tendency towards melancholy, and
perfectionism combined to end quickly careers at the Bar, in academia, and in government service.
(Hamburger 1985, 1992)
Austin was born to a Suffolk merchant family, and served briefly in the military before beginning his
legal training. He was called to the Bar in 1818, but he took on few cases, and quit the practice of law
in 1825. Austin shortly thereafter obtained an appointment to the first Chair of Jurisprudence at the
recently established University College London. He prepared for his lectures by study in Bonn, and
evidence of the influence of continental legal and political ideas can be found scattered throughout
Austin's writings.

Lectures from the course he gave were eventually published in 1832 as "Province of Jurisprudence
Determined." (Austin 1995) However, attendance at his courses was small and getting smaller, and he
gave his last lecture in 1833. A short-lived effort to give a similar course of lectures at the Inner
Temple met the same result. Austin resigned his University College London Chair in 1835. He later
briefly served on the Criminal Law Commission, and as a Royal Commissioner to Malta, but he
never found either success or contentment. He did some occasional writing on political themes, but
his plans for longer works never came to anything during his lifetime, due apparently to some
combination of perfectionism, melancholy, and writer's block. His changing views on moral, political,
and legal matters also apparently hindered both the publication of a revised edition of "Province of
Jurisprudence Determined," and the completion of a longer project started when his views had been
different.

Much of whatever success Austin found during his life, and after, must be attributed to his wife
Sarah, for her tireless support, both moral and economic (during the later years of their marriage,
they lived primarily off her efforts as a translator and reviewer), and her work to publicize his
writings after his death (including the publication of a more complete set of his Lectures on
Jurisprudence) (Austin 1873).

While Austin's work was influential in the decades after his death, its impact seemed to subside
substantially by the beginning of the twentieth century. A significant portion of Austin's current
reputation derives from H.L.A. Hart's use (1958, 1994) of Austin's theory as a foil for the explanation
of Hart's own, more nuanced approach to legal theory. In recent decades some theorists have
revisited Austin's work, offering new characterizations and defenses of his ideas (e.g., Morison 1982,
Rumble 1985).

2. Analytical Jurisprudence and Legal Positivism

Early in his career, Austin came under the influence of Jeremy Bentham, and Bentham's utilitarianism
is evident (though with some differences) in the work for which Austin is best known today. On
Austin's reading of utilitarianism, Divine will is equated with Utilitarian principles: "utility is the index
to the law of God ... . To make a promise which general utility condemns, is an offense against the
law of God" (Austin 1873: Lecture VI, p. 307; see also Austin 1995: Lecture II, p. 41). This particular
reading of utilitarianism, however, has had little long-term influence, though it seems to have been
the part of his work that received the most attention in his own day (Rumble 1995: p. xx). Austin
early on shared many of the ideas of the Benthamite philosophical radicals; he was "a strong
proponent of modern political economy, a believer in Hartleian metaphysics, and a most enthusiastic
Malthusian." (Rumble 1985: pp. 16-17)
Austin's importance to legal theory lies elsewhere -- his theorizing about law was novel at three
different levels of generality. First, he was arguably the first writer to approach the theory of law
analytically (as contrasted with approaches to law more grounded in history or sociology, or
arguments about law which were secondary to more general moral and political theories). Analytical
jurisprudence emphasizes the analysis of key concepts, including "law," "(legal) right," "(legal) duty,"
and "legal validity." Though analytical jurisprudence has been challenged by some in recent years
(e.g., Leiter 1998), it remains the dominant approach to discussing the nature of law. Analytical
jurisprudence, an approach to theorizing about law, has sometimes been confused with what the
American legal realists (an influential group of theorists prominent in the early decades of the 20th
century) called "legal formalism" -- a narrow approach to how judges should decide cases. The
American legal realists saw Austin in particular, and analytical jurisprudence in general, as their
opponents in their critical and reform-minded efforts. In this, the realists were simply mistaken;
unfortunately, it is a mistake that can still be found in some contemporary legal commentators.

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

Second, within analytical jurisprudence, Austin was the first systematic exponent of a view of law
known as "legal positivism." Most of the important theoretical work on law prior to Austin had
treated jurisprudence as though it were merely a branch of moral theory or political theory: asking
how should the state govern? (and when were governments legitimate?), and under what
circumstances did citizens have an obligation to obey the law? Austin specifically, and legal positivism
generally, offered a quite different approach to law: as an object of "scientific" study, dominated
neither by prescription nor by moral evaluation. Subtle jurisprudential questions aside, Austin's
efforts to treat law systematically gained popularity in the late 19th century among English lawyers
who wanted to approach their profession, and their professional training, in a more serious and
rigorous manner (Cotterrell 1989: pp. 79-81).

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

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

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

The existence of law is one thing; its merit or demerit is another. Whether it be or
be not is one enquiry; whether it be or be not conformable to an assumed standard,
is a different enquiry. A law, which actually exists, is a law, though we happen to
dislike it, or though it vary from the text, by which we regulate our approbation and
disapprobation. (Austin 1995: Lecture V, p. 157)
Third, Austin's version of legal positivism, a "command theory of law" (which will be detailed in the
next section) has also been influential. Austin's theory had similarities with the views developed by
Jeremy Bentham, whose theory could also be characterized as a "command theory." However,
Austen's work was more influential in this area, because Bentham's jurisprudential writings did not
appear in an even-roughly systematic form until well after Austin's work had already been published.
(Bentham 1970, 1996; Cotterrell 1989: pp. 52-53)
3. Austin's Views
Austin's basic approach was to ascertain what can be said generally, but still with interest, about all
laws. Austin's analysis can be seen as either a paradigm of, or a caricature of, analytical philosophy, in
that his discussions are dryly full of distinctions, but are thin in argument. The modern reader is
forced to fill in much of the meta-theoretical, justificatory work, as it cannot be found in the text.
Where Austin does articulate his methodology and objective, it is a fairly traditional one: he
"endeavored to resolve a law (taken with the largest signification which can be given to that term
properly) into the necessary and essential elements of which it is composed." (Austin 1995: Lecture V,
p. 117)
As to what is the core nature of law, Austin's answer is that laws ("properly so called") are commands
of a sovereign. He clarifies the concept of positive law (that is, man-made law) by analyzing the
constituent concepts of his definition, and by distinguishing law from other concepts that are similar:

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

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

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

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

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

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

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

Within Austin's approach, whether something is or is not "law" depends on which people have done
what: the question turns on an empirical investigation, and it is a matter mostly of power, not of
morality. Of course, Austin is not arguing that law should not be moral, nor is he implying that it
rarely is. Austin is not playing the nihilist or the skeptic. He is merely pointing out that there is much
that is law that is not moral, and what makes something law does nothing to guarantee its moral
value. "The most pernicious laws, and therefore those which are most opposed to the will of God,
have been and are continually enforced as laws by judicial tribunals." (Austin 1995: Lecture V, p.
158).

In contrast to his mentor Bentham, Austin had no objection to judicial lawmaking, which Austin
called "highly beneficial and even absolutely necessary." (Austin, 1995: Lecture V, p. 163) Nor did
Austin find any difficulty incorporating judicial lawmaking into his command theory: he characterized
that form of lawmaking, along with the occasional legal/judicial recognition of customs by judges, as
the "tacit commands" of the sovereign, the sovereign's affirming the "orders" by its acquiescence.
(Austin 1995: Lecture 1, pp. 35-36).
4. Criticisms
As many readers come to Austin's theory mostly through its criticism by other writers (prominently,
that of H.L.A. Hart), the weaknesses of the theory are almost better known than the theory itself:
 In many societies, it is hard to identify a "sovereign" in Austin's sense of the word (a
difficulty Austin himself experienced, when he was forced to describe the British "sovereign"
awkwardly as the combination of the King, the House of Lords, and all the electors of the
House of Commons). Additionally, a focus on a "sovereign" makes it difficult to explain the
continuity of legal systems: a new ruler will not come in with the kind of "habit of
obedience" that Austen sets as a criterion for a system's rule-maker. However, one could
argue (see Harris 1977) that the sovereign is best understood as a constructive metaphor:
that law should be viewed as if it reflected the view of a single will (a similar view, that law
should be interpreted as if it derived from a single will, can be found in Ronald Dworkin's
work (1986)).

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

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

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

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

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

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

Primary Sources

 Austin, John, The Province of Jurisprudence Determined, W. Rumble (ed.), Cambridge: Cambridge
University Press, 1995) (first published, 1832)

 -----, Lectures on Jurisprudence, or The Philosophy of Positive Law, two vols., R. Campbell (ed.), 4th
edition, London: John Murray, 1873

Natural Law

SOURCED ON 11TH AUGUST 2004 BY JOSIAH M.N. FROM

http://www.utm.edu/research/iep//n/natlaw.htm

The term 'natural law' is ambiguous. It refers to a type of moral theory, as well as to a type of legal
theory, despite the fact that the core claims of the two kinds of theory are logically independent.
According to natural law ethical theory, the moral standards that govern human behavior are, in
some sense, objectively derived from the nature of human beings. According to natural law legal
theory, the authority of at least some legal standards necessarily derives, at least in part, from
considerations having to do with the moral merit of those standards. There are a number of different
kinds of natural law theories of law, differing from each other with respect to the role that morality
plays in determining the authority of legal norms.

Table of Contents

 I. Two Kinds of Natural Law Theory

 II. Conceptual Naturalism

o II.1 The Project of Conceptual Jurisprudence

 o II.2 Classical Natural Law Theory

 III. The Substantive Neo-Naturalism of John Finnis

 IV. The Procedural Naturalism of Lon L. Fuller

 Ronald Dworkin's "Third Theory"

 Sources

I. Two Kinds of Natural Law Theory

At the outset, it is important to distinguish two kinds of theory that go by the name of natural law.
The first is a theory of morality that is roughly characterized by the following theses. First, moral
propositions have what is sometimes called objective standing in the sense that such propositions are
the bearers of objective truth-value; that is, moral propositions can be objectively true or false.
Though moral objectivism is sometimes equated with moral realism (see, e.g., Moore 1992, 190: "the
truth of any moral proposition lies in its correspondence with a mind- and convention-independent
moral reality"), the relationship between the two theories is controversial. Geoffrey Sayre-McCord
(1988), for example, views moral objectivism as one species of moral realism, but not the only form;
on Sayre-McCord's view, moral subjectivism and moral intersubjectivism are also forms of moral
realism. Strictly speaking, then, natural law moral theory is committed only to the objectivity of moral
norms.

The second thesis constituting the core of natural law moral theory is the claim that standards of
morality are in some sense derived from, or entailed by, the nature of the world and the nature of
human beings. St. Thomas Aquinas, for example, identifies the rational nature of human beings as
that which defines moral law: "the rule and measure of human acts is the reason, which is the first
principle of human acts" (Aquinas, ST I-II, Q.90, A.I). On this common view, since human beings
are by nature rational beings, it is morally appropriate that they should behave in a way that conforms
to their rational nature. Thus, Aquinas derives the moral law from the nature of human beings (thus,
"natural law").

But there is another kind of natural law theory having to do with the relationship of morality to law.
According to natural law theory of law, there is no clean division between the notion of law and the
notion of morality. Though there are different versions of natural law theory, all subscribe to the
thesis that there are at least some laws that depend for their "authority" not on some pre-existing
human convention, but on the logical relationship in which they stand to moral standards. Otherwise
put, some norms are authoritative in virtue of their moral content, even when there is no convention
that makes moral merit a criterion of legal validity. The idea that the concepts of law and morality
intersect in some way is called the Overlap Thesis.

As an empirical matter, many natural law moral theorists are also natural law legal theorists, but the
two theories, strictly speaking, are logically independent. One can deny natural law theory of law but
hold a natural law theory of morality. John Austin, the most influential of the early legal positivists,
for example, denied the Overlap Thesis but held something that resembles a natural law ethical
theory.
Indeed, Austin explicitly endorsed the view that it is not necessarily true that the legal validity of a
norm depends on whether its content conforms to morality. But while Austin thus denied the
Overlap Thesis, he accepted an objectivist moral theory; indeed, Austin inherited his utilitarianism
almost wholesale from J.S. Mill and Jeremy Bentham. Here it is worth noting that utilitarians
sometimes seem to suggest that they derive their utilitarianism from certain facts about human
nature; as Bentham once wrote, "nature has placed mankind under the governance of two sovereign
masters, pain and pleasure. It is for them alone to point out what we ought to do, as well as to
determine what we shall do. On the one hand the standard of right and wrong, on the other the
chain of causes and effects, are fastened to their throne" (Bentham 1948, 1). Thus, a commitment to
natural law theory of morality is consistent with the denial of natural law theory of law.

Conversely, one could, though this would be unusual, accept a natural law theory of law without
holding a natural law theory of morality. One could, for example, hold that the conceptual point of
law is, in part, to reproduce the demands of morality, but also hold a form of ethical subjectivism (or
relativism). On this peculiar view, the conceptual point of law would be to enforce those standards
that are morally valid in virtue of cultural consensus. For this reason, natural law theory of law is
logically independent of natural law theory of morality. The remainder of this essay will be exclusively
concerned with natural law theories of law.

II. Conceptual Naturalism

II.1 The Project of Conceptual Jurisprudence

The principal objective of conceptual (or analytic) jurisprudence has traditionally been to provide an
account of what distinguishes law as a system of norms from other systems of norms, such as ethical
norms. As John Austin describes the project, conceptual jurisprudence seeks "the essence or nature
which is common to all laws that are properly so called" (Austin 1995, 11). Accordingly, the task of
conceptual jurisprudence is to provide a set of necessary and sufficient conditions for the existence
of law that distinguishes law from non-law in every possible world.

While this task is usually interpreted as an attempt to analyze the concepts of law and legal system,
there is some confusion as to both the value and character of conceptual analysis in philosophy of
law. As Brian Leiter (1998) points out, philosophy of law is one of the few philosophical disciplines
that takes conceptual analysis as its principal concern; most other areas in philosophy have taken a
naturalistic turn, incorporating the tools and methods of the sciences. To clarify the role of
conceptual analysis in law, Brian Bix (1995) distinguishes a number of different purposes that can be
served by conceptual claims: (1) to track linguistic usage; (2) to stipulate meanings; (3) to explain what
is important or essential about a class of objects; and (4) to establish an evaluative test for the
concept-word. Bix takes conceptual analysis in law to be primarily concerned with (3) and (4).

In any event, conceptual analysis of law remains an important, if controversial, project in

contemporary legal theory. Conceptual theories of law have traditionally been characterized in terms
of their posture towards the Overlap Thesis. Thus, conceptual theories of law have traditionally been
divided into two main categories: those like natural law legal theory that affirm there is a conceptual
relation between law and morality and those like legal positivism that deny such a relation.

II.2 Classical Natural Law Theory

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

The strongest construction of the Overlap Thesis forms the foundation for the classical naturalism of
Aquinas and Blackstone. Aquinas distinguishes four kinds of law: (1) eternal law; (2) natural law; (3)
human law; and (4) divine law. Eternal law is comprised of those laws that govern the nature of an
eternal universe; as Susan Dimock (1999, 22) puts it, one can "think of eternal law as comprising all
those scientific (physical, chemical, biological, psychological, etc.) 'laws' by which the universe is
ordered." Divine law is concerned with those standards that must be satisfied by a human being to
achieve eternal salvation. One cannot discover divine law by natural reason alone; the precepts of
divine law are disclosed only through divine revelation.

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

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

The idea that a norm that does not conform to the natural law cannot be legally valid is the defining
thesis of conceptual naturalism. As William Blackstone describes the thesis, "This law of nature,
being co-eval with mankind and dictated by God himself, is of course superior in obligation to any
other. It is binding over all the globe, in all countries, and at all times: no human laws are of any
validity, if contrary to this; and such of them as are valid derive all their force, and all their authority,
mediately or immediately, from this original" (1979, 41). In this passage, Blackstone articulates the
two claims that constitute the theoretical core of conceptual naturalism: 1) there can be no legally
valid standards that conflict with the natural law; and 2) all valid laws derive what force and authority
they have from the natural law.

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

Critics of conceptual naturalism have raised a number of objections to this view. First, it has often
been pointed out that, contra Augustine, unjust laws are all-too- frequently enforced against persons.
As Austin petulantly put the point:

Now, to say that human laws which conflict with the Divine law are not binding,
that is to say, are not laws, is to talk stark nonsense. The most pernicious laws, and
therefore those which are most opposed to the will of God, have been and are
continually enforced as laws by judicial tribunals. Suppose an act innocuous, or
 positively beneficial, be prohibited by the sovereign under the penalty of death; if I
commit this act, I shall be tried and condemned, and if I object to the sentence, that
it is contrary to the law of God, who has commanded that human lawgivers shall
not prohibit acts which have no evil consequences, the Court of Justice will
demonstrate the inconclusiveness of my reasoning by hanging me up, in pursuance
of the law of which I have impugned the validity (Austin 1995, 158).

Of course, as Brian Bix (1999) points out, the argument does little work for Austin because it is
always possible for a court to enforce a law against a person that does not satisfy Austin's own theory
of legal validity.

Another frequently expressed worry is that conceptual naturalism undermines the possibility of moral
criticism of the law; inasmuch as conformity with natural law is a necessary condition for legal
validity, all valid law is, by definition, morally just. Thus, on this line of reasoning, the legal validity of
a norm necessarily entails its moral justice. As Jules Coleman and Jeffrey Murphy (1990, 18) put the
point:

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

morally evaluate the law and determine our moral obligations with respect to the
law) are actually rendered more difficult by its collapse of the distinction between
morality and law. If we really want to think about the law from the moral point of
view, it may obscure the task if we see law and morality as essentially linked in some
way. Moral criticism and reform of law may be aided by an initial moral skepticism
about the law.

There are a couple of problems with this line of objection. First, conceptual naturalism does not
foreclose criticism of those norms that are being enforced by a society as law. Insofar as it can
plausibly be claimed that the content of a norm being enforced by society as law does not conform
to the natural law, this is a legitimate ground of moral criticism: given that the norm being enforced
by law is unjust, it follows, according to conceptual naturalism, that it is not legally valid. Thus, the
state commits wrong by enforcing that norm against private citizens.

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

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

A more reasonable interpretation of statements like "an unjust law is no law at all" is
that unjust laws are not laws "in the fullest sense." As we might say of some
professional, who had the necessary degrees and credentials, but seemed
nonetheless to lack the necessary ability or judgment: "she's no lawyer" or "he's no
doctor." This only indicates that we do not think that the title in this case carries
with it all the implications it usually does. Similarly, to say that an unjust law is "not
really law" may only be to point out that it does not carry the same moral force or
 offer the same reasons for action as laws consistent with "higher law" (Bix 1996,
226).

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

III. The Substantive Neo-Naturalism of John Finnis

John Finnis takes himself to be explicating and developing the views of Aquinas and Blackstone. Like
Bix, Finnis believes that the naturalism of Aquinas and Blackstone should not be construed as a
conceptual account of the existence conditions for law. According to Finnis, the classical naturalists
were not concerned with giving a conceptual account of legal validity; rather they were concerned
with explaining the moral force of law: "the principles of natural law explain the obligatory force (in
the fullest sense of 'obligation') of positive laws, even when those laws cannot be deduced from those
principles" (Finnis 1980, 23-24). On Finnis's view of the Overlap Thesis, the essential function of law
is to provide a justification for state coercion (a view he shares with Ronald Dworkin). Accordingly,
an unjust law can be legally valid, but it cannot provide an adequate justification for use of the state
coercive power and is hence not obligatory in the fullest sense; thus, an unjust law fails to realize the
moral ideals implicit in the concept of law. An unjust law, on this view, is legally binding, but is not
fully law.

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

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

[T]he term 'law' ... refer[s] primarily to rules made, in accordance with regulative
legal rules, by a determinate and effective authority (itself identified and, standardly,
constituted as an institution by legal rules) for a 'complete' community, and
buttressed by sanctions in accordance with the rule-guided stipulations of
adjudicative institutions, this ensemble of rules and institutions being directed to
reasonably resolving any of the community's co-ordination problems (and to
ratifying, tolerating, regulating, or overriding co-ordination solutions from any other
institutions or sources of norms) for the common good of that community (Finnis
1980, 276).

Again, it bears emphasizing that Finnis takes care to deny that there is any necessary moral test for
legal validity: "one would simply be misunderstanding my conception of the nature and purpose of
explanatory definitions of theoretical concepts if one supposed that my definition 'ruled out as non-
laws' laws which failed to meet, or meet fully, one or other of the elements of the definition" (Finnis
1980, 278).
Nevertheless, Finnis believes that to the extent that a norm fails to satisfy these conditions, it likewise
fails to fully manifest the nature of law and thereby fails to fully obligate the citizen-subject of the
law. Unjust laws may obligate in a technical legal sense, on Finnis's view, but they may fail to provide
moral reasons for action of the sort that it is the point of legal authority to provide. Thus, Finnis
argues that "a ruler's use of authority is radically defective if he exploits his opportunities by making
stipulations intended by him not for the common good but for his own or his friends' or party's or
faction's advantage, or out of malice against some person or group" (Finnis 1980, 352). For the
ultimate basis of a ruler's moral authority, on this view, "is the fact that he has the opportunity, and
thus the responsibility, of furthering the common good by stipulating solutions to a community's co-
ordination problems" (Finnis 1980, 351).

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

Like Finnis, Lon Fuller (1964) rejects the conceptual naturalist idea that there are necessary substantive
moral constraints on the content of law. But Fuller, unlike Finnis, believes that law is necessarily
subject to a procedural morality. On Fuller's view, human activity is necessarily goal-oriented or
purposive in the sense that people engage in a particular activity because it helps them to achieve
some end. Insofar as human activity is essentially purposive, according to Fuller, particular human
activities can be understood only in terms that make reference to their purposes and ends. Thus,
since lawmaking is essentially purposive activity, it can be understood only in terms that explicitly
acknowledge its essential values and purposes:

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

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

Fuller's functionalist conception of law implies that nothing can count as law unless it is capable of
performing law's essential function of guiding behavior. And to be capable of performing this
function, a system of rules must satisfy the following principles: (P1) the rules must be expressed in
general terms; (P2) the rules must be publicly promulgated; (P3) the rules must be prospective in
effect; (P4) the rules must be expressed in understandable terms; (P5) the rules must be consistent
with one another; (P6) the rules must not require conduct beyond the powers of the affected parties;
(P7) the rules must not be changed so frequently that the subject cannot rely on them; and (P8) the
rules must be administered in a manner consistent with their wording.

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

These internal principles constitute a morality, according to Fuller, because law necessarily has
positive moral value in two respects: (1) law conduces to a state of social order and (2) does so by
respecting human autonomy because rules guide behavior. Since no system of rules can achieve these
morally valuable objectives without minimally complying with the principles of legality, it follows, on
Fuller's view, that they constitute a morality. Since these moral principles are built into the existence
conditions for law, they are internal and hence represent a conceptual connection between law and
morality. Thus, like the classical naturalists and unlike Finnis, Fuller subscribes to the strongest form
of the Overlap Thesis, which makes him a conceptual naturalist.

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

naturalism. First, Fuller rejects the classical naturalist view that there are necessary moral constraints
on the content of law, holding instead that there are necessary moral constraints on the procedural
mechanisms by which law is made and administered: "What I have called the internal morality of law
is ... a procedural version of natural law ... [in the sense that it is] concerned, not with the substantive
aims of legal rules, but with the ways in which a system of rules for governing human conduct must
be constructed and administered if it is to be efficacious and at the same time remain what it
purports to be" (Fuller 1964, 96- 97).

Second, Fuller identifies the conceptual connection between law and morality at a higher level of
abstraction than the classical naturalists. The classical naturalists view morality as providing
substantive constraints on the content of individual laws; an unjust norm, on this view, is
conceptually disqualified from being legally valid. In contrast, Fuller views morality as providing a
constraint on the existence of a legal system: "A total failure in any one of these eight directions does
not simply result in a bad system of law; it results in something that is not properly called a legal
system at all" (Fuller 1964, 39).

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

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

source of confusion both for him and his readers.... [T]he crucial objection to the
designation of these principles of good legal craftsmanship as morality, in spite of
the qualification "inner," is that it perpetrates a confusion between two notions that
it is vital to hold apart: the notions of purposive activity and morality. Poisoning is
no doubt a purposive activity, and reflections on its purpose may show that it has its
internal principles. ("Avoid poisons however lethal if they cause the victim to
vomit"....) But to call these principles of the poisoner's art "the morality of
poisoning" would simply blur the distinction between the notion of efficiency for a
purpose and those final judgments about activities and purposes with which
morality in its various forms is concerned (Hart 1965, 1285-86).

On Hart's view, all actions, including virtuous acts like lawmaking and impermissible acts like
poisoning, have their own internal standards of efficacy. But insofar as such standards of efficacy
conflict with morality, as they do in the case of poisoning, it follows that they are distinct from moral
standards. Thus, while Hart concedes that something like Fuller's eight principles are built into the
existence conditions for law, he concludes they do not constitute a conceptual connection between
law and morality.
Unfortunately, Hart overlooks the fact that most of Fuller's eight principles double as moral ideals of
fairness. For example, public promulgation in understandable terms may be a necessary condition for
efficacy, but it is also a moral ideal; it is morally objectionable for a state to enforce rules that have
not been publicly promulgated in terms reasonably calculated to give notice of what is required.
Similarly, we take it for granted that it is wrong for a state to enact retroactive rules, inconsistent
rules, and rules that require what is impossible. Poisoning may have its internal standards of efficacy,
but such standards are distinguishable from the principles of legality in that they conflict with moral
ideals.

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

Ronald Dworkin's so-called third theory of law is best understood as a response to legal positivism,
which is essentially constituted by three theoretical commitments: the Social Fact Thesis, the
Conventionality Thesis, and the Separability Thesis. The Social Fact Thesis asserts it is a necessary
truth that legal validity is ultimately a function of certain kinds of social facts; the idea here is that
what ultimately explains the validity of a law is the presence of certain social facts, especially formal
promulgation by a legislature.

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

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

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

In Riggs v. Palmer, for example, the court considered the question of whether a murderer could take
under the will of his victim. At the time the case was decided, neither the statutes nor the case law
governing wills expressly prohibited a murderer from taking under his victim's will. Despite this, the
court declined to award the defendant his gift under the will on the ground that it would be wrong to
allow him to profit from such a grievous wrong. On Dworkin's view, the court decided the case by
citing "the principle that no man may profit from his own wrong as a background standard against
which to read the statute of wills and in this way justified a new interpretation of that statute"
(Dworkin 1977, 29).

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

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

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

Dworkin believes that a legal principle maximally contributes to such a justification if and only if it
satisfies two conditions: (1) the principle coheres with existing legal materials; and (2) the principle is
the most morally attractive standard that satisfies (1). The correct legal principle is the one that makes
the law the moral best it can be. Accordingly, on Dworkin's view, adjudication is and should be
interpretive:

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

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

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

A thoughtful judge might establish for himself, for example, a rough "threshold" of
fit which any interpretation of data must meet in order to be "acceptable" on the
dimension of fit, and then suppose that if more than one interpretation of some part
of the law meets this threshold, the choice among these should be made, not
through further and more precise comparisons between the two along that
dimension, but by choosing the interpretation which is "substantively" better, that
is, which better promotes the political ideals he thinks correct (Dworkin 1982, 171).

As Dworkin conceives it, then, the judge must approach judicial decision-making as something that
resembles an exercise in moral philosophy. Thus, for example, the judge must decide cases on the
basis of those moral principles that "figure[] in the soundest theory of law that can be provided as a
justification for the explicit substantive and institutional rules of the jurisdiction in question"
(Dworkin 1977, 66).

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

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

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

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

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

Sources

Thomas Aquinas, On Law, Morality and Politics (Indianapolis: Hackett Publishing

Co., 1988)

John Austin, Lectures on Jurisprudence and the Philosophy of Positive Law (St.
Clair Shores, MI: Scholarly Press, 1977)

------The Province of Jurisprudence Determined (Cambridge: Cambridge University

Press, 1995)

Jeremy Bentham, A Fragment of Government (Cambridge: Cambridge University

Press, 1988)

------Of Laws In General (London: Athlone Press, 1970)

------The Principles of Morals and Legislation (New York: Hafner Press, 1948)

Brian Bix, "On Description and Legal Reasoning," in Linda Meyer (ed.), Rules and
Reasoning (Oxford: Hart Publishing, 1999)

------Jurisprudence: Theory and Context (Boulder, CO: Westview Press, 1996)

------"Natural Law Theory," in Dennis M. Patterson (ed.), A Companion to

Philosophy of Law and Legal Theory (Cambridge: Blackwell Publishing Co., 1996)

William Blackstone, Commentaries on the Law of England (Chicago: The

University of Chicago Press, 1979)

Jules L. Coleman, "On the Relationship Between Law and Morality," Ratio Juris, vol.
2, no. 1 (1989), 66-78

------"Negative and Positive Positivism," 11 Journal of Legal Studies 139 (1982)

Jules L. Coleman and Jeffrie Murphy, Philosophy of Law (Boulder, CO: Westview
Press, 1990)

Ronald M. Dworkin, Law's Empire (Cambridge: Harvard University Press, 1986)

------Taking Rights Seriously (Cambridge: Harvard University Press, 1977)

John Finnis, Natural Law and Natural Rights (Oxford: Clarendon Press, 1980)

------"The Truth in Legal Positivism," in Robert P. George, The Autonomy of Law

(Oxford: Clarendon Press, 1996), 195-214

Lon L. Fuller, The Morality of Law, Revised Edition (New Haven: Yale University
Press, 1964)

------"A Reply to Professors Cohen and Dworkin", 10 Villanova Law Review 655
(1965), 657.

------"Positivism and Fidelity to Law--A Reply to Professor Hart," 71 Harvard Law

Review 630 (1958)

Klaus F¸þer, "Farewell to 'Legal Positivism': The Separation Thesis Unravelling," in

George, The Autonomy of Law, 119-162

Robert P. George, "Natural Law and Positive Law," in George, The Autonomy of
Law, 321-334

------Natural Law Theory: Contemporary Essays (Oxford: Clarendon Press, 1992)

H.L.A. Hart, The Concept of Law, Second Edition (Oxford: Clarendon Press, 1994)

------"Book Review of The Morality of Law" 78 Harvard Law Review 1281 (1965)

------Essays on Bentham (Oxford: Clarendon Press, 1982)

------"Positivism and the Separation of Law and Morals," 71 Harvard Law Review 593
(1958)
 Kenneth Einar Himma, "Positivism, Naturalism, and the Obligation to Obey Law,"
Southern Journal of Philosophy, vol. 36, no. 2 (Summer 1999)

------"Functionalism and Legal Theory: The Hart/Fuller Debate Revisited," De

Philosophia, vol. 14, no. 2 (Fall/Winter 1998)

J.L. Mackie, "The Third Theory of Law," Philosophy & Public Affairs, Vol. 7, No. 1
(Fall 1977)

Michael Moore, "Law as a Functional Kind," in George, Natural Law Theory, 188-
242

Joseph Raz, The Authority of Law: Essays on Law and Morality (Oxford: Clarendon
Press, 1979)

------"Authority, Law and Morality," The Monist, vol. 68, 295-324

------"Legal Principles and the Limits of Law," 81 Yale Law Review 823 (1972)

Geoffrey Sayre-McCord, "The Many Moral Realisms," in Sayre-McCord (ed.),

Essays on Moral Realism (Ithica: Cornell University Press, 1988)

Author Information:
Kenneth Einar Himma
Email: [email protected]
University of Washington
HomePage: http://faculty.washington.edu/himma

An Overview of Natural Law Theory

by Jonathan Dolhenty, Ph.D.

Natural law theory is one of the most important theories in the philosophy of Classical Realism. It is
also widely misunderstood by many who have either not taken the time to study it or have heard of it
and dismissed it as a "medieval" relic. What I want to do here is merely sketch out a general
presentation of natural law theory, with the hope that the reader will become interested enough to
pursue further study of it. I will provide a link to more in-depth resources at the end of this essay.

Before we get into an overview of the nature of natural law theory itself, let's take a brief look at
some history.

The concept of natural law has taken several forms. The idea began with the ancient Greeks'
conception of a universe governed in every particular by an eternal, immutable law and in their
distinction between what is just by nature and just by convention. Stoicism provided the most
complete classical formulation of natural law. The Stoics argued that the universe is governed by
reason, or rational principle; they further argued that all humans have reason within them and can
therefore know and obey its law. Because human beings have the faculty of choice (a free will), they
will not necessarily obey the law; if they act in accordance with reason, however, they will be
"following nature."

Christian philosophers readily adapted Stoic natural law theory, identifying natural law with the law
of God. For Thomas Aquinas, natural law is that part of the eternal law of God ("the reason of
divine wisdom") which is knowable by human beings by means of their powers of reason. Human, or
positive, law is the application of natural law to particular social circumstances. Like the Stoics,
Aquinas believed that a positive law that violates natural law is not true law.

With the secularization of society resulting from the Renaissance and Reformation, natural law theory
found a new basis in human reason. The 17th-century Dutch jurist Hugo Grotius believed that
humans by nature are not only reasonable but social. Thus the rules that are "natural" to them --
those dictated by reason alone -- are those which enable them to live in harmony with one another.
From this argument, by the way, Grotius developed the first comprehensive theory of international
law.

Natural law theory eventually gave rise to a concept of "natural rights." John Locke argued that
human beings in the state of nature are free and equal, yet insecure in their freedom. When they enter
society they surrender only such rights as are necessary for their security and for the common good.
Each individual retains fundamental prerogatives drawn from natural law relating to the integrity of
person and property (natural rights). This natural rights theory provided a philosophical basis for
both the American and French revolutions. Thomas Jefferson used the natural law theory to justify
his trinity of "inalienable rights" which were stated in the United States Declaration of Independence.

During the 19th century natural law theory lost influence as utilitarianism and Benthamism,
positivism, materialism, and the historical school of jurisprudence became dominant. In the 20th
century, however, natural law theory has received new attention, partly in reaction to the rise of
totalitarianism and an increased interest in human rights throughout the world. With this
contemporary interest in mind, let's now turn to our attention to the natural law theory as
understood by the tradition of Classical Realism.

What do we mean by "natural law"? In its simplest definition, natural law is that "unwritten law" that
is more or less the same for everyone everywhere. To be more exact, natural law is the concept of a
body of moral principles that is common to all humankind and, as generally posited, is recognizable
by human reason alone. Natural law is therefore distinguished from -- and provides a standard for --
positive law, the formal legal enactments of a particular society.

Since law must always be some dictate of reason, natural law also will be some dictate of reason. In
fact, it is law discovered by human reason. Our normal and natural grasp of the natural law is
effected by reason, that is, by the thinking mind, and in this service reason is sometimes called
"conscience." We, in all our human acts, inevitably see them in their relation to the natural law, and
we mentally pronounce upon their agreement or disagreement with the natural law. Such a
pronouncement may be called a "judgment of conscience." The "norm" of morality is the natural law
as applied by conscience. Lastly, we can say that the natural law is the disposition of things as known
by our human reason and to which we must conform ourselves if we are to realize our proper end or
"good" as human beings.

To sum it up, then, we can say that the natural law:

 is not made by human beings;

 is based on the structure of reality itself;

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

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

 is the naturally knowable moral law;

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

It is interesting to note that virtually everyone seems to have some knowledge of natural law even
before such knowledge is codified and formalized. Even young children make an appeal to "fair
play," demand that things be "fair and square," and older children and adults often apply the "golden
rule." When doing so, they are spontaneously invoking the natural law. This is why many proponents
of the natural law theory say it is the law which is "written upon the hearts of men." These are
examples of what is called "connatural knowledge," that is, a knowledge which:

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

 is the living contact of the intellect with reality itself;

 is not always given expression in concepts;

 may be obscure to the knower;

 is overlaid with elements from the affective or feeling side of man's nature.

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

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

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

Although we rarely express the precept of "Do good and avoid evil" explicitly (just as we rarely state
the Principle of Contradiction explicitly in daily life), nevertheless we always act in terms of such a
precept. This fact points to the fundamental truth of such a precept, and indicates how it expresses
something "natural" to human beings. A human being naturally inclines to seek what appears good to
reason, and naturally shrinks from what appears to be evil. Hence, the justification of speaking of this
basic moral law as "natural" law.
Upon further reflection, we can distinguish, within natural law, primary and secondary precepts. The
primary precepts will correspond to the order of natural inclinations in human beings. The most
fundamental inclination of all, "Do good and avoid evil," will give rise to other primary precepts such
as the natural inclination to self-preservation, to live in society, to avoid harm to others, and to know
truths about the reality we live in and our own human nature. These primary precepts are
unchangeable to the extent they concern the primary ends of the natural inclinations inherent in all
human beings.

The primary precepts are very general in their formulation. The secondary precepts, on the other
hand, are more particular or specific and are concerned with things to which we are not inclined so
immediately. Among these are such precepts as those regarding the education of children, and the
stability of family life, and the demands of hospitality. On the negative side, we also have secondary
precepts regarding the neglect of children, deliberate injury to others, and so on.

Do we know everything about the natural law? This is a common question asked and a good one.
The answer is a simple "No." The discovery of the natural law is a continuously unfolding enterprise.
Just as it took human beings a long time to separate out and clarify the laws of physical nature, so too
for the laws of moral nature. The passage of time and additional philosophical reflection always raises
new issues in natural law theory. For instance, slavery was once accepted as normal and natural even
by many who subscribed to natural law theory. We now know that slavery violates the natural law.
Society once accepted judicial torture as being normal and natural. We now know that judicial slavery
violates the natural law. And, personally, I am convinced that one day our society will "discover" that
capital punishment violates natural law and we will abolish it.

The obvious conclusion here is that our knowledge of natural law, particularly regarding its
secondary precepts, is incomplete, and probably will always be incomplete. We, as civilized and
rational human beings, will always be involved in a "critical examination" of our actions in the
practical order. Out of this reflection will come new and refined "truths" regarding ethics and moral
philosophy. In fact, I suspect that we are now in a time when the most important decisions we make
as a society will be those in ethics and moral philosophy (think "bioethics" and "weapons of mass
destruction"). This is one reason why I have no reservations about suggesting that all students in our
institutions of higher education need a good dose of philosophical studies, especially, of course, in
the tradition of Classical Realism.

I hope you have some general knowledge of natural law theory as a result of this brief overview.
Moreover, I hope I have interested you to seek more knowledge about this fascinating theory.

If you want to learn more, I have suggested some resources which should help you in your
investigation. See: Dr. Dolhenty's Recommended Bookshelf For Natural Law Theory.

NATURAL LAW

In jurisprudence and political philosophy, a system of right or justice common to all humankind and
derived from nature rather than from the rules of society, or positive law.

The concept can be traced to Aristotle, who held that what was ―just by nature‖ was not always the
same as what was ―just by law.‖ In one form or another, the existence of natural law was asserted by
the Stoics (see Stoicism), Cicero, the Roman jurists, St. Paul, St. Augustine, Gratian, St. Thomas
Aquinas, John Duns Scotus, William of Ockham, and Francisco Suárez. In the modern period, Hugo
Grotius insisted on the validity of natural law even on the assumption that God does not exist, and
Thomas Hobbes defined a law of nature as ―a precept of general rule found out by reason, by which
a man is forbidden to do that which is destructive of his life.‖ Hobbes attempted to construct an
edifice of law by rational deduction from a hypothetical ―state of nature‖ and a social contract of
consent between rulers and subjects. John Locke departed from Hobbes in describing the state of
nature as an early society in which free and equal men observe the natural law. Jean-Jacques
Rousseau postulated a savage who was virtuous in isolation and actuated by two principles ―prior to
reason‖: self-preservation and compassion. The authors of the U.S. Declaration of Independence
refer only briefly to ―the Laws of Nature‖ before citing equality and other ―unalienable‖ rights as
―self-evident.‖ The French Declaration of the Rights of Man and of the Citizen asserts liberty,
property, security, and resistance to oppression as ―imprescriptible natural rights.‖ Interest in the
concept of natural law declined dramatically in the 19th century, partly as a result of skeptical attacks
by Jeremy Bentham and other proponents of utilitarianism; it was revived in the mid-20th century in
light of the crimes committed by the Nazi regime during World War II. Skepticism of natural law and
natural rights remained strong, however, and later writers almost invariably talked of human rights
rather than natural rights.

STOICISM

School of philosophy in Greco-Roman antiquity.

Inspired by the teaching of Socrates and Diogenes of Sinope, Stoicism was founded at Athens by
Zeno of Citium c. 300 BC and was influential throughout the Greco-Roman world until at least AD
200. It stressed duty and held that, through reason, mankind can come to regard the universe as
governed by fate and, despite appearances, as fundamentally rational, and that, in regulating one's life,
one can emulate the grandeur of the calm and order of the universe by learning to accept events with
a stern and tranquil mind and to achieve a lofty moral worth. Its teachings have been transmitted to
later generations largely through the surviving books of Cicero and the Roman Stoics Seneca,
Epictetus, and Marcus Aurelius.

Jurisprudence may be divided into three branches: analytical, sociological, and theoretical. The
analytical branch articulates axioms, defines terms, and prescribes the methods that best enable one
to view the legal order as an internally consistent, logical system. The sociological branch examines
the actual effects of the law within society and the influence of social phenomena on the substantive
and procedural aspects of law. The theoretical branch evaluates and criticizes law in terms of the
ideals or goals postulated for it.

Thomas Hobbes

Born April 5, 1588, Westport, Wiltshire, Eng.

died Dec. 4, 1679, Hardwick Hall, Derbyshire

English philosopher and political theorist.

The son of a vicar who abandoned his family, Hobbes was raised by his uncle. After graduating from
the University of Oxford he became a tutor and traveled with his pupil in Europe, where he engaged
Galileo in philosophical discussions on the nature of motion. He later turned to political theory, but
his support for absolutism put him

SOCIAL CONTRACT
Actual or hypothetical compact between the ruled and their rulers.

The original inspiration for the notion may derive from the biblical covenant between God and
Abraham, but it is most closely associated with the writings of Thomas Hobbes, John Locke, and
Jean-Jacques Rousseau. Hobbes argued that the absolute power of the sovereign is justified by a
hypothetical social contract in which the people agree to obey him in all matters in return for a
guarantee of peace and security, which they lack in the warlike ―state of nature‖ posited to exist
before the contract is made. Locke believed that rulers also were obliged to protect private property
and the right to freedom of thought, speech, and worship. Rousseau held that in the state of nature
people are unwarlike but also undeveloped in reasoning and morality; in surrendering their individual
freedom, they acquire political liberty and civil rights within a system of laws based on the ―general
will‖ of the governed. The idea of the social contract influenced the shapers of the American
Revolution and the French Revolution and the constitutions that followed them.

Thomas Hobbes and John Locke

Thomas Hobbes and John Locke, where they agreed and disagreed concerning nature,
natural law, and the nature of man in a state of war.

Thomas Hobbes and John Locke were two main political philosophers during the seventeenth
century. Hobbes is the well known author of Leviathan, and Locke is the author of An Essay
Concerning Human Understanding. In their essays, both men address the characteristics of man,
natural law, and the purpose and structure of government. The two men have very different opinions
of the characteristics of man. Hobbes sees man as being evil, whereas Locke views man in a much
more optimistic light. They both agree that all men are equal according to natural law. However, their
ideas of natural law differ greatly. Hobbes sees natural law as a state of war in which every man is a
enemy to every man. Locke on the other hand, sees natural law as a state of equality and freedom.
Locke therefore believes that government is necessary in order to preserve natural law, and on the
contrary, Hobbes sees government as necessary in order to control natural law.

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

The main thing that Hobbes and Locke can seem to agree on, with respect to natural law, is that all
men are equal in nature. For Hobbes, this equality exists in a state of war, in which every man has a
right to every thing. He terms this state of war, a state of equality, because even the weakest has
strength enough to kill the strongest. In Hobbess opinion, no one is superior, because they are all
equal in their level of rottenness. Locke agrees that in natural law, no one is superior. However he
writes, the state all men are naturally inis a state of perfect freedom equality and liberty, displaying his
belief that men are sensible by nature, and can exist happily according to natural law, without the need
for constant war. Locke does admit that war is sometimes necessary, but that one may only destroy a
man who makes war upon him. In general, he believes that it is beneficial for humans to follow
natural law.

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

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

MARXIST JURISPRUDENCE

TUTOR: CHRIS BEHRENS

STUDENT: DAVID RISSTROM: 9106105

In the social production of their existence, men inevitably enter into definite relations, which are independent of
their will, namely relations of production appropriate to a given stage in the development of their material forces
of production. The totality of these relations constitute the economic structure of society, the real foundation, on
which arises a legal and political superstructure and to which correspond definite forms of social consciousness.

Karl Marx, Preface to A Contribution to the Critique of Political Economy, 521.1

Marxist jurisprudence posits that legal relations are determined by the economic base of particular
kinds of society and modes of production.2 Marxist thought‘s primary focus rests on political
economy and the corresponding power relations within society, providing the most extensive critique
to date of liberal tradition on which many of our legal presuppositions are founded. To this end, this
essay examines law, its structure, motivation and consequences for justice and rights from a Marxian
jurisprudential perspective.

MARXISM AND LAW

1 Marx, K., ‗Preface to A Contribution to the Critique of Political Economy‘ in Karl Marx
and Frederick Engels Selected Works, Moscow: Progress Press, 1989 521.
2 Balbus, I., ‗Commodity Form and Legal Form‘ in Reasons, C., The Sociology of Law,
Toronto: Butterworths, 1978 83.
 Your ideas are but the outgrowth of the conditions of your bourgeois production and bourgeois property, just as
your jurisprudence is but the will of your class made into a law for all, a will, whose essential character and
direction are determined by the economical conditions of existence in your class.

Karl Marx, The Communist Manifesto, 24.

Law is not of central concern to Marxists jurisprudentialists, as law in the capitalist mode of
production is seen as an instrument of class oppression perpetuated as a consequence of its particular
historical, social and economic structures. Indeed, wishing to avoid liberal predisposition towards
legal fetishism, Marxists deny the degree of importance jurisprudence typically affords law in analyses
of the composition and determination of social formations.3

WHAT IS MARXISM?

Marxist theories of political economy, expounded upon the notions of Karl Marx (1818-83) and
Friedrich Engels (1820-95), consider law an instrument of class oppression that benefits the ruling
class through oppression of the proletariat. The common law system of criminal and civil law, which
protects personal and private property rights, as well as facilitating predicability in social life, is
regarded as ―no more than a system of coercion designed to protect bourgeois ownership of the
means of production‖.4

Yet, despite Marx and Engels‘ failure to develop a systematic approach to law5, and claims of failure
in Eastern Europe and the Soviet Union, Marxism‘s materialist emphasis, particularly concerning the
notion of alienation and its consequences as outlined by Ollman6, assists its contemporary paucity.7

HISTORICAL MATERIALISM

Men have history because they must produce their life, and because they must produce it moreover in a certain
way: this is determined by their physical organisation; their consciousness is determined in just the same way.

Marx, The German Ideology, 49.

The determinist relationship between the economic base and social superstructure, known as
Historical Materialism, is first described in The German Ideology.8 Historic materialism contends that
the catalyst behind societal evolution is materially determined, being predicated on contradictions
between the forces and means of production. As ―it is not consciousness that determines life, but
life that determines consciousness‖9, law is a reflection of the economic base, rather than the reserve
as liberals such as Dworkin would propose.

3 Collins, H., Marxism and Law, Oxford: Oxford University Press, 1987 98.
4 Barry, N., An Introduction to Modern Political Theory, London: Macmillan, 1989 53.
5 Cain, M., and Hunt, A., 1979, Marx and Engels on Law, London: Academic Press.
6 Ollman, B.,1976, Alienation; Marx’s Conception of Man in Capitalist Society, Cambridge:
Cambridge University Press.
7 Collins, H., op cit., 10.
8 Marx, K., and Engels, F., 1976, The German Ideology, Moscow: Progress Press.
9 Marx, K., The German Ideology, Moscow: Progress Publishers, 1976 42.
Under increasing industrialisation Marx foresaw crystallisation of society into two classes;
bourgeoisie and proletariat. These relations of production developed due to particular forces of
production under the capitalist mode of production that coerced the bourgeoisie to extract surplus
value as profit from the proletariat. Laws, as Marx detailed in Capital, as one element of the social
superstructure, assisted in forcing down wages.10

Collins characterises two Marxist approaches; crude materialism, in which law is simply a reflection
of the economic base; and secondly, class instrumentalism; in which rules emerge because the ruling
class want them to. 11 This distinction continues as an area of debate, as demonstrated by
O'Malley‘s attacks of Quinney and Chambliss‘ crude materialist claim that law is a direct tool of
powerful classes or groups, favouring the more interactionist, and less conflict premised theory of
legislative change.12 The Relative Autonomy Thesis is such a theory. Contemporary Marxists such
as Marcuse, suggest mechanisms analogous to the Factory Acts and Vagrancy Acts remain instruments
of the ruling class perpetuating conditions reinforcing this arrangement, especially in relation to the
alienating nature of modern technological rationality.13

BASE AND SUPERSTRUCTURE IN THE CAPITALIST MODE OF PRODUCTION

Much of our law, such as Contract, Property and Commercial Law, is predicated on the existence of
the capitalist mode of production. As Marx‘s major project was the critique of capitalism,
irrespective of a belief in revolution, Marxism has a great deal to notify us of in our contemporary
jurisprudence. Marxism postulates that in the social production of their existence, people,
independent of their will, enter into definite relations of production appropriate to a given stage in
the development of the materials forces of production. 14 Consequently the societal superstructure,
including but not dominated by law, amongst other hegemonic devices, is determined by the
economic base and the organisation of power in society.15 Marxist jurisprudence concentrates on
the relationship between law and particular historical, social and economic structures, seeing law,
unlike liberal theory, as having no legitimate primacy. Frequently encountered legal rules and
doctrine, argue Gramsci16 and Althusser17, establish modern liberal jurisprudential hegemony.18

SCIENTIFIC SOCIALISM

Marxist epistemology, with dialectic materialism as the centrepiece of Marxism‘s scientific claim,
proclaims in real life, where speculation ends, positive science; the representation of the practical

10 Marx, K., ‗Bloody Legislation against the Expropriated, from the end of the 15th.
century: Forcing Down Wages by Acts of Parliament‘ in Capital, 1986 686.
11 Collins, H., Marxism and Law, Oxford: Oxford University Press, 1987 24.
12 O‘Malley, P., ‗Theories on Structure Versus Causal Determination‘ in Tomasic (ed.)
Legislation and Society in Australia, Allen and Unwin, 1980 140.
13 Marcuse, H., One-Dimensional Man, Boston: Beacon Press, 1968 xv.
14 Marx. K., Preface To ‗A Contribution to the Critique of Political Economy‘ in Karl Marx

and Friedrich Engels Selected Works, 1989 521.

15 Collins, H., op cit., 9.
16 Gramsci, A., Selections from the Prison Notebooks, London: Lawrence and Wishart. 1971 195.
17 Althusser, L., For Marx, London: New Left Books, 1977 114.
18 Collins, H., Marxism and Law, Oxford University Press, 1982 50.
activity, of the practical progress of development of men, begins.19 Whilst Marx‘s materialism does
not refer to the assumption of a logically argued ontological position, Marx adopts an undoubtedly
Realist position, in which ideas are the product of the human brain in sensory transaction with a
knowable material world.20

These claims contrast with those of natural lawyers such as Aquinas who believe religion should
normatively guide law; those desiring utilitarian tendencies such as Austin and Bentham; or objective
consistency as some positivists such as Hart, or perhaps integrity, as perhaps only Dworkin can fully
endorse. Nevertheless, whilst debate as to the scientific credentials of Marxism continue, Collins
claims Marxism‘s desire for class reductionism to explain the dynamic interaction between man and
nature risks misconstruing the diversity of social phenomena in order to confirm the ‗rigid systemic
framework of historical materialism‘.21

LAW AND THE DICTATORSHIP OF THE PROLETARIAT

Law, morality, religion, are to him so many bourgeois prejudices, behind which lurk in ambush as many
bourgeois interests.

Karl Marx, The Communist Manifesto, 18

Marxism saw development of the relations of production dialectically, as both inevitable, and creating
hostility. Accelerated by increased class consciousness, as the contradictions of capitalism perforate
the bourgeois hegemony, inevitable revolution and a dictatorship of the proletariat would facilitate
―socialised production upon a predetermined plan.‖22 Given the scientific nature of Historic
Materialism, and upon recognising the role the state and its laws supply, the proletariat will seize
political power and turn the means of production into state property 23, then according to Marxist
jurisprudence, ―As soon as there is no longer any class to be held in subjection; as soon as class rule
and the individual struggle for existence … are removed, nothing more remains to be repressed.‖ 24

COMMUNISM AND THE END OF LAW

The meaning of history, that man‘s destiny lies in creation of a Communist society where ―law will
wither away‖25 , as men experience a higher stage of being amounting to the realisation of true
freedom, will after transition through Socialism, be achieved.

JUSTICE AND RIGHTS

19 Marx, K., The German Ideology, Moscow: Progress Publishers, 1976 38.
20 Giddens, A., Capitalism and Modern Social Theory: An Analysis of the writings of Marx,
Durkheim and Weber, Cambridge: Cambridge University Press, 1971 21.
21 Collins, H., op cit., 45.

22 Engels, F., Socialism: Utopian and Scientific, Moscow: Progress Publishers: 1954 79.
23 Ibid., 73.
24 Ibid., 73.
25 Marx, K., The German Ideology, Moscow Progress Press, 1976 51.
 Communism abolishes eternal truths, it abolishes all religion, and all morality, instead of constituting them on
a new basis.
Karl Marx, The Communist Manifesto, 24

Marxism argues there is no absolute concept of justice, justice being dependent on the requirements
of a given mode of production. 26 Lukes claims Marx believes justice, ―Does not provide a set of
independent rational standards by which to measure social relations, but must itself always in turn be
explained as arising from and controlling those relations‖.27

Marxism believes that rights are simply a bourgeois creation, and that justice is something only the
rich can achieve in capitalist modes of production. Anatole France (1894) encapsulated this
distinction between formal and substantive justice as entitlement, drawing attention to ―the majestic
egalitarianism of the law, which forbids rich and poor alike to sleep under bridges, to beg in the
streets and to steal bread.‖28 Formal justice as entitlement therefore allows equal opportunity to the
individual without any reference to the unequal ability to use it, with rights only being anti-socialist if
individuals are taken to be ―inherently and irredeemably self-interested.‖29

Marxist dispute over how rights and justice will operate in practice are answered by the materialist
proposition that the ―distribution of burdens and benefits should not be taken in accordance with a
book of rules, but in the light of the objectives of social policy.‖30 Campbell distinguishes between
Socialist and Bourgeois Rights, arguing that an interest based theory of rights, rather than the
contract based notions such as Pashukanis‘ incorporated in his commodity exchange theory of law 31,
allow protection of the individual32, thereby negating the logical connection between rights and
justice.33

IN SUMMARY

Marxist jurisprudence and Marxist critiques of law provide invaluable challenges to our thinking as
people under law in a liberal democratic society. This essay is only the briefest of introductions in a
field rich with reflections concerning the assumptions we construct into our law. Whether you
accept the claims of its doctrine, its influence on shaping the society we live in is more significant
than most of us realise.

BIBLIOGRAPHY

26 Wacks, R., Jurisprudence, London: Blackstone Press, 1987 175.

27 Lukes, S., Marxism, Morality and Justice‘ in Parkinson, G., Marx and Marxisms,
Cambridge: Cambridge University Press, 1982 197.
28 Gamble, A., An Introduction to Modern Political and Social Thought, Hampshire: Macmillan,
1987 101.
29 Campbell, T., Justice, London: Macmillan, 1988 189.
30 Campbell, T., The Left and Rights, London: Routledge and Kegan Paul, 1983 33.
31 Warrington, R., ‗Pashukanis and the commodity form theory‘ in Sugarman, D., Legality,
Ideology and the State, London: Academic Press, 1983 43.
32 Campbell, T. 1983, op cit., 123.
33 Ibid., 124.
Althusser, L., 1977, For Marx, London: New Left Books.

Balbus, I., 1978, ‗Commodity Form and Legal Form‘ in Reasons, C., The Sociology of Law, Toronto:
Butterworths.

Baradat, L., 1991, Political Ideologies: Their Origins and Impact, 4th Edn., New Jersey: Prentice Hall.

Barbalet, J., 1983, Marx's Construction of Social Theory, London: Routledge and Kegan Paul.

Barry, N., 1989, An Introduction to Modern Political Theory, 2nd Edn., London: Macmillan.

Berger, P. and Luckmann, T., 1975, The Social Construction of Reality, Harmondsworth: Penguin.

Blackburn, R., (Ed.), 1991, After the Fall: The Failure of Communism, London: Verso.

Cain, M., and Hunt, A., 1979, Marx and Engels on Law, London: Academic Press.

Campbell, T., 1988, Justice, London: Macmillan.

Campbell, T., 1981, Seven Theories of Human Nature, Oxford: Oxford University Press.

Campbell, T., 1983, The Left and Rights, London: Routledge and Kegan Paul.

Collins, H., 1982, Marxism and Law, Oxford: Oxford University Press.

Connell, R., 1977, Ruling Class, Ruling Culture, London: Cambridge University Press.

Cotterrell, R., 1989, The Politics of Jurisprudence: A Critical Introduction to Legal Philosophy, London:
Butterworths.

Easton, L and K, Guddat (Eds.), 1967, Writings of the Young Marx on Philosophy and Society, New York:
Anchor.

Engels, F., 1954, Socialism: Scientific and Utopian, Moscow: Progress Press.

Foucault, M., 1979, Discipline and Punish-The Birth of the Prison, Middlesex: Penguin.

Frankel, B., 1983, Beyond the State?; Dominant Theories and Socialist Strategies, London: MacMillan.

Frolov, I. (ed.), 1980, Dictionary of Philosophy, Moscow: Progress Publishers.

Fromm, E., 1973, Marx's Concept of Man, New York: Frederick Ungar Publishing.

Gamble, A., 1987, An Introduction To Modern Social And Political Thought, Hampshire: Macmillan.

Giddens, A., 1981, Capitalism and Modern Social Theory; An analysis of the writings of Marx, Durkheim and
Weber, Cambridge: Cambridge University Press.

Gramsci, A., 1971, Selections from the Prison Notebooks, London: Lawrence and Wishart.

Habermas, J., 1970, Toward a Rational Society, London: Heinemann.

Harris, J., 1980, Legal Philosophies, London: Butterworths.

Kellner, D., 1984, Herbert Marcuse and the Crisis of Marxism, London: Macmillan.

Luhmann, N., 1982, The Differentiation of Society, New York: Colombia University Press.

Lukes, S., 1986, Power: A Radical View, London: Oxford University Press.

Marcuse, H., 1975, One-Dimensional Man, Boston: Beacon Press.

Marx, K., 1986, ‗Bloody Legislation against the Expropriated, from the end of the 15th. Century:
Forcing Down Wages by Acts of Parliament‘ in Capital, Moscow: Progress Press.

Marx, K., 1986, Capital; A Critique of political Economy, Vol 1; The Process of Production of Capital, Moscow:
Progress Publishers.

Marx, K., 1977, Economic and Philosophical Manuscripts of 1844, Moscow: Progress Publishers.

Marx, K.,1975, Early Writings, London: Penguin.

Marx K. and Engels F., 1848, Manifesto of the Communist Party; authorised English translation from the Marx-
Engels Institute, Melbourne: International Bookshop.

Marx, K., 1989, ‗Preface to A Contribution to the Critique of Political Economy‘ in Karl Marx and
Frederick Engels Selected Works, Moscow: Progress Press.

Marx, K., and Engels, F., 1965, The German Ideology, Moscow: Progress Publishers.

Marx, K., and Engels, F., 1989, Selected Works, Moscow: Progress Publishers.

Marx, K., 1902, Wage, Labour and Capital, New York: New York Labor News Company.

McLellan, D.,1971, Marx’s Grundisse, London: Macmillan.

McLellan, D.,1980, The Thought of Karl Marx, London: Macmillan.

McMurtry, J., 1978, The Structure of Marx’s World View, New Jersey: Princeton University Press.

Offe, C., 1985, Disorganised Capitalism: Contemporary Transformations of Work and Politics, Cambridge:
Polity Press.

Ollman, B.,1976, Alienation; Marx’s Conception of Man in Capitalist Society, Cambridge: Cambridge
University Press.

O‘Malley, P., 1980, ‗Theories on Structure Versus Causal Determination‘ in Tomasic (Ed.) Legislation
and Society in Australia, Sydney: Allen and Unwin.

Tucker, R., (ed.),1972, The Marx-Engels Reader, New York: Norton.

Wacks, R., 1987, Jurisprudence, London: Blackstone Press.

Warrington, R., 1983, ‗Pashukanis and the commodity form theory‘ in Sugarman, D., Legality, Ideology
and the State, London: Academic Press.

22.6 Rights Without Duties

Hohfeld, a legal philosopher, emphasised the relationship between rights and duties and also the
difference between right and privilege. Hohfeld emphasised that there cannot be a right without a
duty. Right in one person presupposes a duty in another. The concept of a right without a duty is
meaningless. Likewise he also distinguished between rights and privileges. A privilege is available on
sufferance. It is a discretion vested in the person granting it. A right is an entitlement. On this
analysis what are commonly called rights to employment, welfare, etc, are not rights. A right to
employment is meaningless because there is no person who is under a duty to employ. Welfare is not
a right. It is a privilege which is given to certain persons.

Whether one agrees with this analysis or not, it is undeniable that at the commonsense level a right
involves a duty in another person or institution. As an essential commonsense corollary, it must also
involve an acceptance of that duty by the person who is subject to it. It is ironic in society today that
while more and more people are demanding rights, fewer and fewer people are concerned about
duties, least of all those who are most vocal in the assertion of rights. Governments, the Human
Rights Commission and many other government agencies provide doubtful leadership in this regard.
They are educating people about their rights and are attempting to make more and more rights
available with no reference to logic and commonsense. But they seem unconcerned about the need
to educate people about duties and the importance of a sense of responsibility.

A dangerous byproduct of the welfare state and the growth of government is a profound attitudinal
change in society which makes people demand more and more and contribute less and less. This
transformation of the social psyche has taken place imperceptibly to the point that it unconsciously
pervades the entire society. The preoccupation with rights (particularly state created social and
economic rights) has become an obsession. Although this is not an intrinsic evil, the pursuit of rights
becomes self defeating when it is unaccompanied by the commitment to duties. The pressures
exercised by interest groups have become the dominant feature of the modern era. These demands
come not only from the poor and the underprivileged, but also from privileged academic,
bureaucratic, social and business groups. At the same time there is a deafening silence on the
question of individual responsibility.

The interventionist welfare state has become a super patriarchal entity from which individual
members have come to expect solutions to all problems. Rights are being demanded and duties
forgotten.

The Bible emphasises duties and responsibilities (not rights). The Ten Commandments are duties.
Duties have been more important than rights in the Australian Achievement. The emphasis on rights
to the near exclusion of duties and responsibilities in modern society is a challenge. There is a grave
danger in the push towards legislative recognition of subjective (so-called) rights in response to the
demands of politically influential pressure groups.

A duty-centred society is preferable to a right-centred society. If individuals are concerned about

their duties, responsibilities and obligations, they cannot but be concerned about the rights and
freedoms of others. A right-centred society is one in which individuals assert their rights. They are
encouraged by the Human Rights Commission and like Commonwealth and State bodies, to demand
rights, with no consideration for the effect of those demands on other people, eg the right to protest
and demonstrate conflicts with the right of pedestrians and motorists to use the public roads for the
purpose for which roads are built.
Governments and pressure groups which focus on rights, give no thought to how rights can operate
in the absence of a climate in which the importance of duties is emphasised.

There is no end to the so-called rights which can be demanded. A right-conscious society, in effect,
recognises a few rights and neglects many others. The rights that are recognised are those which are
demanded by the powerful, the aggressive and the nasty.

There cannot be a right without a duty. An endless cacophony of demands by interest groups for
rights has become a dominant feature of the modern Australian State (fed by legislation which
encourages these demands). At the same time there is a deafening silence on the question of
individual responsibility. The time has come to realise and to emphasise that rights, whether material
or political, depend on the discharge of duties. Wealth and prosperity are created by effort. Only
continuing effort can sustain them. Western societies through effort have achieved a level of
prosperity unparalleled in history.

History has continually demonstrated that the greatest of civilisations decline and fall when they
succumb to indulgence at the expense of discipline and endeavour. The fate of Egyptian and Roman
civilisations are prime examples. It is not too early for Western Civilization to heed the supreme
lesson of human experience.

Analysis of Hohfeldian Conception of Liberty

LI Jian

The conception of right is fundamental in realms of political, moral and legal philosophy. Although it
is widely used, what is a right or what is the meaning of right is a problem which needs to be carefully
dealt with. There is no doubt that an appropriate starting point to talk about rights is the remarkable
analysis of legal rights in Wesley Newcomb Hohfeld¡¯s Fundamental Legal Conceptions. Hohfeld
distinguished the conception of right into four sub-conceptions (which are right or claim, privilege or
liberty, power and immunity), and defined them through their correlatives (i.e. duty, no-right or no-
claim, liability, disability or no-power). In this way, he provided a useful method to turn the general,
ambiguous notion of right into several distinctive, well-defined ideas. Many authors are inclined to
reformulate Hohfeld¡¯s definitions and take them as their basis to investigate theories of rights.

The subject of the essay will be focused on the Hohfeldian conception of liberty-right (or privilege,
in his own terminology). Liberty is very important and essential among various types of rights. It can
hardly be imagined that we could have any rights if we were deprived of our liberty. Hohfeld¡¯s
analysis of liberty could be seen as a theory of the definition of liberty, which is put forward to clarify
the inner structure of liberty. That is, a liberty is defined by, or is equivalent to a no-right that has an
opposite content. As duty also has certain logical relation to liberty, the other way to put the
definition is that a liberty is merely the negation of the duty with opposite content. I would like to
show that this definition is not manifestly true as it seems to be at the first sight. Hohfeld does not
justify it. Some philosophers adopt this definition and develop a concept of half-liberty on the basis
of it. Many philosophers take this definition as the only possible explanation of liberty in the
Hohfeldian conceptual structure. I don¡¯t think there is sufficient reason to do so. In fact, there is a
different analysis of liberty that well conform to our intuition of liberty as free choice without
contradiction to the specified logical relations between Hohfeld¡¯s conceptions of rights and their
correlatives. And it at least shows that the Hohfeldian definition is unfounded and by no means
exclusive one. But before I defend the intuitive notion of liberty, it would be better to discuss and
make clear the scheme of correlatives and opposites which gives us almost all the analytic
instruments to clarify the ¡°fundamental legal conceptions¡±.
Scheme of Correlatives and Opposites

The main achievement of Hohfeld¡¯s exploration to the nature of rights is his scheme of ¡°jural
correlatives¡± and ¡°jural opposites¡±.34[1] For him, all the essence and interrelations of fundamental
legal conceptions consist in the scheme. In consideration of the liberty-debate, I would confine
myself to the part containing only first-order conceptions.35[2] As indicated in the scheme, a claim is
the invariable correlative of a duty and the invariable opposite of a no-claim; a liberty is the
correlative of a no-claim and the opposite of a duty. What does Hohfeld mean by terms like
¡°correlative¡± and ¡°opposite¡±? He says,

If X has a right against Y that he shall stay off the former¡¯s land, the correlative (and equivalent)
is that Y is under a duty toward X to stay off the place.36[3]

Right (or claim) and duty both indicate relations between two definite persons. A right can be said to
represent a relation between X and Y that Y should stay off X¡¯s land. And a duty also represents a
relation that Y should stay off X¡¯s land. The relations represented by a right and by its correlative
duty are the same. That¡¯s the reason why Hohfeld takes one conception and its correlative as
logically equivalent to each other. As he claims, when talking about John Austin¡¯s particular use of
the term ¡°right¡±, that

Such a delimitation of ¡°right¡± clearly excludes ¡°legal privilege¡±; for the correlative of the latter,
or ¡°the same notion¡± from a ¡°different aspect¡±, is, of course, ¡°no-right¡± or ¡°no-claim¡±.37[4]

Like John Austin, Hohfeld believes that all fundamental conceptions indicate nothing but certain
jural relations.38[5] And from different point of views, one relation could always be regarded as two
different conceptions. From X¡¯s point of view, the relation that Y shall stay off X¡¯s land is a right
residing in X; from Y¡¯s point of view, the same relation is a duty on Y. A relation connects a right
on one person and a duty on another. Thus a right implies a duty representing the same certain
relation, and vice versa. Thereby these two conceptions are correlative or logically equivalent to each
other. But a right is not by all means correlative to any duty. X¡¯s right that Y shall not enter on X¡¯s
land unquestionably is not correlative to Y¡¯s duty that he shall not cause harm to X. The right and
duty that correlative to each other must be representing the relation constitute by them. Hohfeld calls
his scheme of conceptions as scheme of relations. A right always relates to a duty, a liberty to a no-
right, etc. I think this is the only foundation that a right can be taken as equivalent to a duty. Besides

34[1] Hohfeld, 1923, p. 36, p. 65.

35[2] See Rowan, 1999, p. 23-24; Sumner, 1987, p. 29. Rowan writes: ¡°¡second order
relations describe the ways in which the first-order relations may be facilitated. In other
words, they provide the rules for manipulating the first-order relations.¡± This must be
an imprecise or loose explanation of conceptions other than first-order ones. Powers and
immunities can also stipulate and extinguish legal relations with the contents of other
powers and immunities. It would be more precise for the analysis of Hohfeldian scheme
to characterize these two conceptions as higher-order conceptions.
36[3] Hohfeld, 1923, p. 38.
37[4] Ibid., p. 99.
38[5] Rowan says, ¡°privileges also differs from claims in that they are not relational in

nature¡±, because a privilege is not correlative to a duty. (1999, p. 23) This is obviously
wrong, for a no-right indicates the same relation as the liberty does.
this, how could Hohfeld find any reason to justify the idea of ¡°invariable correlative¡± or logical
equivalent? It could not be justified just by observing the way people use the terms right and duty,
especially when there are many cases of confused or loose or even proliferated use of these terms. If
this is true, it is essential to all analyses of Hohfeldian conceptions, because it is on the idea of
relation that all the logical connections of Hohfeldian conceptions are founded. Opposites are
conceptions representing two relations that negate each other. That is why the opposite of a right is a
no-right; and the opposite of a liberty is of course duty, since liberty is equivalent to no-right and
duty equivalent to right.

Although many commentators agree that Hohfeldian conceptions are relational, it is not very clear
what relational means. L. W. Sumner holds that ¡°all of Hohfeld¡¯s conceptions are relations between
two distinct parties.¡±39[6] For Hohfeld, two parties are two determinate persons in whom the right
and the duty reside. But relation is also construed as between ¡°a person and an object¡±, as Joseph
Raz maintains.40[7] What he has in mind is rights in rem. He stresses that a holder of the right of
that kind certainly has a relation to an object. I think the point is that relation does not mean any
kind of connection. If someone has a right to a tangible property, it does not follow that he has a
legal relation in the Hohfeldian sense. This is just because a property cannot be the holder of rights
or bearer of duties. For instance, I have a right to my computer, but it doesn¡¯t mean that my
computer has a duty to me to be used by me. If someone else shall not dominate the use of my
computer, it doesn¡¯t imply that my computer has any liberty or immunity to other people. The
bearer of rights or their correlatives can only be entities that can perform or refrain actions.
Ultimately, the relation means a relation between a right and a duty, not necessarily requiring two
distinctive parties. If I have a right to myself that I shall live a virtuous life, then I myself have a duty
to live such a life. I don¡¯t see any reason that one particular party cannot be the right-holder and
duty-bearer at the same time.

Hohfeld makes two assertions with respect to the relation thought of conceptions. One is that the
relations are between a right-holder and a duty-bearer. Another is that only particular or definite
person can be right-holder or duty-bearer. These two assertions are quite distinct from each other
that one can accept the first and reject the second. Communities constituted by people, countries and
some other organizations can also be holders of rights and bearers of duties. When we say that one
country should not invade another country, no doubt that we are taking countries as duty-bears and
right-holders. And there is no problem that one party would be collective and the other single
person. All these entities as parties in which rights or duties reside won¡¯t affect the whole scheme of
Hohfeldian conceptions and its inner structure. Concerning the first assertion, counterexamples can
also be proposed. For example, a right in rem or a right to an object is non-relational. That means a
right to an object has no correlative duty on any other parties, though other peripheral rights against
other parties may always protect it. 41[8] It seems that the first assertion should be rejected too. But if
we confine our debate to relational right-conceptions, then the Hohfeldian scheme and Hohfeldian
analysis are still very useful. No doubt many rights and liberties are relational, and for these rights and
liberties, Hohfeld reveals the correlatives to them. Although his believe that every conception is
relational in nature is not correct, his scheme might be well applicable to every relational conceptions.

39[6]Sumner, 1987, p. 24.

40[7] Raz, 1980, p. 180.
41[8] Sumner proposes that a liberty to do something with respect to everyone is non-
relational, for the reason that in this case ¡°I have no duty to anyone not to do it.¡± (1987,
P. 26.) But if someone else imposes his claim on me that I shall not do it, then he
certainly violates my liberty to do that. Equivalently, I do not have a duty to him not to
do that. Thus it is clear that I do have a liberty/no-claim relation to everyone.
In fact, I think the relational view is the foundation upon which the whole Hohfeldian conceptual
structure is established. And I would like to regard the scheme of conceptions as the background to
discuss in which way the relational liberty shall be defined.

How to define liberty

Among the first-order conceptions, the pair of right and duty has comparatively clear meaning. There
are positive rights, i.e. rights with positive content, such as an employer¡¯s right against his employee
that the latter should work for him. There are also negative rights, rights with negative content, such
as one person¡¯s right that another one should not enter on his land. In any of these cases, the
content of a duty is the same with that of a right. But when analyzing the notion of liberty, there is
some distinctive difference in Hohfeld¡¯s mind. He says,

¡whereas X has a right or claim that Y, the other man, should stay off the land, he himself has the
privilege of entering on the land; or, in equivalent words, X does not have a duty to stay off. The
privilege of entering is the negation of a duty to stay off.

Thus, the correlative of X¡¯s right that Y shall not enter on the land is Y¡¯s duty not to enter; but the
correlative of X¡¯s privilege of entering himself is manifestly Y¡¯s ¡°no-right¡± that X shall not
enter.42[9]

The biggest difference between definitions of right and liberty seems to be that the content of a
liberty is exactly opposite to that of its correlative. But what exactly is the content or tenor of a
liberty? Since liberty is a relational conception, its content must mean a relation¡¯s content, and this
relation is represented by the liberty. As has been shown, one relation is designated both by one
conception and by its correlative. Therefore the correlative to the liberty, i.e. no-right, also takes the
content of the relation to be its own content. That is to say, the content of a liberty must be the same
as the content of a no-right. But why does Hohfeld regulate that the content of a no-right is contrary
to that of a liberty? Hohfeld himself does not define liberty through its correlative as he does with
regard to right. He gives the definition as ¡°¡the mere negation of a duty¡having a content of tenor
precisely opposite to that of the privilege in question.¡±43[10] It seems to be his strong intuition that
a liberty to do something is undoubtedly equivalent to a duty not to do that. But intuition is just
intuition. How could his definition be justified without resorting to the relational essence of
conceptions? If he does so, how could he demonstrate that a liberty to do and a no-right not to do
represent and constitute the same relation? And what is the content of the relation£¿I don¡¯t think
these are questions that can be slightly overlooked. For a liberty to do defined as the negation of a
duty not to do is, in Hohfeld¡¯s view, consistent with a duty to do. That means one may have a
liberty and a duty at the same time.

Thus, if, for some special reason, X has contracted with Y to go on the former¡¯s own land, it is
obvious that X has, as regards Y, both the privilege of entering and the duty of entering.44[11]

One can be both at liberty to do something and obligated to do that. This is rather contrary to our
normal intuition that liberty is free choice without any restriction. So, an intuition seems to be
reasonable leads to a conclusion contradictory to our more common intuition.

Hohfeld, 1923, p. 39.

42[9]

43[10] Ibid., p. 39.

44[11] Ibid., p. 39.
 Since liberty and duty are opposites, i.e. logical contradictories, the former could be defined by the
negation of the latter. This seems to be out of question, and being at liberty normally refers to the
state lacking duty. But the way that Hohfeld uses the negation of duty to define liberty is not
unquestionable. If the right/duty relation and the relation represented by liberty negate each other,
then liberty could be well defined just by the negation of duty, or by the lacking of duty. Why should
we define liberty as negation of duty with opposite content? In order to define liberty, the negation
of duty is adequate; but Hohfeld also negates the content of the duty, therefore he actually negates
the duty twice. I call it double negation. If we only negate once, all the logical connections between
Hohfeldian conceptions still remain. There is no need to negate a given duty twice.

The content of right or duty is directional.45[12] The content is either to do something or not to do
something; that is the quality of restriction, whereas the content of liberty could be construed as
negation of the directionality of a given duty. Negation of directionality means free choice between
two opposite directional actions, and that is the essence of liberty. In which sense a liberty/no-right
relation negates a right/duty relation? I think it is the annulment of the directionality of the latter. In
this way, liberty is in essence non-directionality, opposite to duty or right, no matter what specific
direction the duty or right has. Such a liberty is a liberty to do or not to do something. But ordinarily,
we would often say a liberty to do something or a liberty not to do something. That may represent
certain action that we prefer to choose, not necessarily the real logical quality of the liberty. Given a
liberty to do something, if I choose not to do that, it would not violate anyone¡¯s right, since no one
has a right that I shall do that. The liberty to do something implies the liberty not to do it, and vice
versa. The content of a liberty could also be said to be certain action, just like the content of duty or
right. But liberty ensures the free option on the subject; whether he chooses to do or forbears to do,
there is no restriction on his choice. In other words, there is no directionality upon this certain
action.

Sumner displays ¡°the logical connections among first-order Hohfeldian normative relations. Where
X and Y are persons and V is some act, the rows in the following matrix give correlatives and the
columns (and diagonals) give opposites.

X has a liberty with Y has no claim against X

respect to Y to V that X not V
X has a duty to Y Y has a claim against X
not to V that X not V¡±46[13]

It is possible for a liberty defined as free choice to be accommodated in such a diagram, and all
logical connections of correlatives and opposites are unchanged. The alternative diagram is as
follows,

X has a liberty with respect Y has no claim against X

to Y V or not V that X V or not V
X has a duty to Y V or Y has a claim against X that X V or
X has a duty to Y not to V Y has a claim against X that X not V

Where X has a liberty to V or not to V, Y has neither a claim that X V nor a claim that X not V.
Here a no-claim that X V plus a no-claim that X not V is abbreviated to a no-claim that X V or not
V. X¡¯s liberty to or not to V indicates his control over this action, whether he V or not V is

45[12] Sumner, 1987, p. 25.

46[13] Sumner, 1987, p. 27.
independent of Y¡¯s control or claim. The opposite to X¡¯s liberty could be either X¡¯s duty to V or
X¡¯s duty not to V. Where X has liberty with regard to V, he has no duty at all. A duty with any kind
of content, negative or positive, would be contradictory to a liberty. In this table, the conception of
liberty is still correlative to no-claim and opposite of duty. In spite of the new characterization of
liberty, the connections and relational qualities of first-order conceptions are retained. It at least
shows that Hohfeld¡¯s definition of liberty can be separated from his scheme of logical connections
of conceptions. We can apply this scheme to right-analysis and insist a different notion of liberty at
the same time. I have argued that Hohfeld¡¯s definition is unfounded or unjustified; even if there is
adequate reason to accept his view, I hold that an alternative definition is feasible as well.

Why Hohfeld advocates liberty as being compatible with duty? When he takes liberty into
consideration, it seems that he has been influenced by the directionality of right and duty. Duty and
right must be directional; to say a duty to do or not to do something is nothing but nonsense. It may
appear to him that liberty should be directional too. Manifestly a liberty to do is contradictory to a
duty not to do; this ostensible connection might be taken as definition of liberty. Besides, if liberty
were construed as free choice, then not only a duty not to do, but also a duty to do would be
contradictories to such a liberty. Then the single connection between liberty and duty might be lost.
Perhaps this definition of liberty on the basis of duty comes from Hohfeld¡¯s view that right/duty
relation is the strictest one among all fundamental relations.47[14] Therefore, when analyzing liberty,
the contents that right and duty have and the way in which they are defined might affect Hohfeld. He
defines liberty through a directional duty and then makes liberty directional too. The problem is why
right/duty should be regarded as the relation in the strictest sense, why right or claim is stricter than
liberty and other right-conceptions. Hohfeld himself doesn¡¯t provide any reason. The truth is that
liberty is not less important than claim from both legal and moral point of view. We would say that
one is deprived of his basic right if he could not enjoy unencumbered choice or act freely. For claim-
right describes the way that other people should or should not do, it alone cannot capture the core
notion of legal and moral rights. Only liberty ensures one¡¯s control over his action. The idea of
personal control over one¡¯s action is the main idea belonging to liberty. Generally it runs counter to
control or claim from others, which is equivalent to the person¡¯s duty. To take liberty as strict and
fundamental as claim-right, first we would confirm the common idea of liberty as free choice. And
it¡¯s correlative is other person¡¯s no-claim that the liberty-holder shall V or not V. Secondly, the
opposite relation, i.e. right/duty relation would be defined on the basis of this idea of liberty. The
lacking of liberty or the negation of liberty is of course duty to others, no matter what content the
duty has. Both a duty V and a duty not V are opposite to a liberty V or not V. Thus, upon this idea
of liberty, a whole scheme of first-order conceptions can also be developed. There is nothing lost,
but the general idea captured. Maybe Hohfeld values symmetries of the scheme, and to some extent,
a liberty opposite to both positive and negative duties may seem to lack symmetry. Even if it is true,
it cannot deny the legitimate analysis and definition of liberty as free choice.

¢óFallacy of half liberty

Sumner accepts Hohfeld¡¯s definition of liberty and calls it half liberty. He writes,

Suppose that I have no duty either to attend the meeting or not to do so. I thus have two logically
distinct Hohfeldian liberties. Call each of these a half liberty and their conjunction a full liberty.
Then I have a half liberty to attend the meeting, a half liberty not to attend it, and a full liberty to
attend it or not. In general I have a full liberty with respect to anything which I am neither obligated
to do nor obligated not to do. Unlike half liberties, full liberties ensure a normatively unencumbered

47[14] Right or claim is ¡°a right in the strictest sense¡±. See Hohfeld, p. 36.
 choice between options.48[15]

A liberty to do is merely equivalent to the negation of the duty not to do. Such a liberty just ensures
the liberty-holder¡¯s doing something; do not ensure his not doing something. If I haven¡¯t a duty
not to do, I may just have a liberty to do, not a liberty to do or not to do. That¡¯s why Sumner calls it
half liberty, for a liberty to do and a liberty not to do may not exist at the same time. And he regards
these two half liberties as conjuncts of a full liberty. Then a full liberty is equivalent to the negation of
the duty to do plus the negation of the duty not to do. But the fact is that we don¡¯t need to negate
two duties to have a full liberty. In order to enjoy a full liberty, to negate one duty is enough. If I
have a duty to do, then I don¡¯t have a duty not to do. It is impossible to be obligated to do and not
to do the same thing. These two duties, therefore, cannot exist at the same time. Then if my duty not
to do is negated or removed, then I must have a liberty to do; but as I still do not have a duty to do, I
also have a liberty not to do. Thus I get a full liberty through the negation of a duty not to do. This
shows that a full liberty is opposite to one determinate duty; the equivalent to the negation of such a
duty is not a half liberty, but a full liberty. The logical connections between liberty and duty are not
what Sumner thinks.

Let us suppose that the conception of half liberty is feasible. In the case that I have a duty to do,
negation of the duty leads to a full liberty. That demonstrates that the negation of a duty to do, is not
in fact equivalent to a half liberty not to do. A similar conclusion can be drawn in the case of a
negative duty. The conception full liberty is certainly the opposite of a duty. If it is reasonable that
full liberty and half liberty are distinctive from each other, then both of them are all opposites of a
certain duty. Some philosophers accept the equivalence of the negation of duty and half liberty. As
Rowan gives us,

¡°Specifically, X is said to have a privilege to perform a certain act if and only if X has no duty to
refrain from performing that act.¡±49[16]

The same thing is expressed in another way by John Finnis,

¡°B has a liberty (relative to A) to ¦Õ, if and only if A has no-claim-right (¡®a no-right¡¯) that B
should not¦Õ.¡±50[17]

It seems that the regulation of liberty as half liberty at least needs to be modified because of
the connection between full liberty and duty. The point is, if full liberty is also opposite of a
certain duty, positive or negative, and if we give up the above definition of half liberty, then
in which way we can define half liberty and how to show the logical distinctiveness of this
concept. As full liberty can be well justified to be equivalent to the negation of a certain duty,
there is no need and no sufficient reason to hold the idea of half liberty. In fact, such an idea
is not only groundless but also redundant. Besides, as has been shown above, a duty to do
implies a liberty to do, because a duty to do implies the lack of a duty not to do and the latter
means a liberty to do. If this is true, under any circumstances people will always hold liberty.
One will be at liberty to do what he is obligated to; and of course he will also be at liberty if
he is not under obligation. It seems to be absurd that liberty exists everywhere. In general,
we take liberty as an advantage, as an opposite of obligation that is disadvantage. But the
idea of half liberty implied by duty destroys the distinction between liberty and obligation.
And how could we make clear the notion of obligation? If we negate a half liberty to do, we

48[15] Sumner, 1987, p. 27.

49[16] Rowan, 1999, p. 22.
50[17] Finnis, 1980, p. 199.
will get a half liberty not to do, and vice versa; if we negate a full liberty, we will get a
disjunction of two half liberties. Generally speaking, we will not be able to negate liberty.

Sumner thinks that ¡° this feature of liberties follows from the fact that they are simply deontic
permissions¡±, I am at liberty to do whatever the rules permit me to do.51[18] But if I am permitted
both to do and not to do a thing, I still do not have liberty in the sense that I myself have control
over my action. Full liberty cannot be identified with liberty in common sense as free choice. It
seems to him that one of the main reasons to maintain the conception of half liberty is that there are
mandatory rights, which are burdens as well as benefits.52[19] He gives the instance of children¡¯s
right and duty to attend school. Such right may be regarded as claim-right, not liberty-right. As a
claim, it is certainly compatible with duty. For only a no-claim can be the opposite of the same
subject¡¯s claim-right. Similarly, my right to chair the meeting may co-exist with my duty to do so, if
the right is regarded as a power to chair the meeting. Because I may have a power and a duty at the
same time, these two relations do not contradict each other. In all these cases, the so-called
mandatory rights are not liberty-rights. We should be careful to deal with such rights. As Hohfeld
endeavors to distinguish different conceptions of rights, it is of course necessary to make clear which
right can be taken as liberty in the Hohfeldian sense. And even if a few instances of mandatory
liberty can be found, I doubt whether they can support the reasonability of this concept. Since so
many liberties are treasured as free choice and so many burdens cannot be looked upon as benefits,
liberty-right as relational conception in Hohfeldian scheme should be construed as free choice. The
definition Hohfeld himself gives concerning this concept may be just an arbitrary thesis that he has
made.

Bibliography

Carter, Alan. (1989) The Philosophical Foundations of Property Rights.

Harvester Wheatsheaf.

Feinberg, Joel. (1973) Social Philosophy. Prentice-Hall, Inc.

Finnis, John. (1980) Natural Law and Natural Rights. Oxford: Clarendon Press.

Gewirth, Alan. (1978) Reason and Morality. Chicago: University of Chicago Press.

Hart, H. L. A. (1982) Essays on Bentham: Studies in Jurisprudence and Political Theory. Oxford:
Clarendon Press.

©¤ (1983) Essays in Jurisprudence and Philosophy. Oxford: Clarendon Press.

Hohfeld, Wesley Newcomb. (1923) Fundamental Legal Conceptions As Applied in Judicial

Reasoning (Walter Wheeler Cook, ed.) New Haven: Yale University Press.

Lyons, David. (1994) Rights, Welfare and Mill¡¯s Moral Theory. Oxford: Oxford University Press.

Raz, Joseph. (1980) The Concept of A Legal System: An Introduction to the Theory of Legal System.
Oxford: Clarendon Press.

51[18] Sumner, 1987, p. 26.

52[19] Ibid., p. 34.
Rowan, John R. (1999) Conflicts of Rights: Moral Theory and Social Policy Implications. Westview
Press.

Simmons, A. John. (1992) The Lockean Theory of Rights. Princeton: Princeton University Press.

Sumner, L. W. (1987) The Moral Foundation of Rights. Oxford: Clarendon Press.

Tapper, C. F. H. (1973) ¡°Powers and Secondary Rules of Change,¡± in Oxford Essays in

Jurisprudence (second series), A. W. B. Simpson, ed. Oxford: Clarendon Press.

Balancing Rights, Duties, and Underlying Values

In their reluctance to unconditionally embrace rights language and logic, some participants turned to
the concepts of duty and responsibility, which are commonly believed to be deeply embedded in East
Asian cultures. In the case of the antinuclear movement in Taiwan, the right to a clean environment
might be redefined as a duty to protect land from those claiming a right to do what they want with it.
In relation to the issue of justice between generations, Emmerson raised doubts over "imputing an
abstract right of our devising to individuals who do not yet exist, instead of assuming responsibility
today for future generations." Likewise, the relationship of rights to duties came up in the paper on
Thai prostitution. Again, Emmerson asked whether "alongside the sex worker's rights, her and her
clients responsibilities, to each other and to themselves, should also be taken into account."
Individual rights and collective duties are often di-chotomized and manipulated in the discourse on
human rights in the region. But, there can be no viable notion of a right without a corresponding
notion of responsibility and vice versa. Yasuaki Onuma of the University of Tokyo criticized the
simplistic abandonment of rights and resort to the "opposite" notion of duty. Onuma argued that in
both Eastern and Western traditions the concept of an individual exists, but "not in an isolated
manner." Rather, the individual "coexists with a concept of collectivity." Arguing that "dichotomized
rights and duties as well as individuals and collectives are the same modern construct," he maintained
that the exclusive emphasis placed on responsibility and duty by many Asian or African leaders is
wrong-headed.

In his paper on the right to political participation in China Xia Yong of the Chinese Academy of
Social Sciences portrays rights and duties in a different light, as fluid concepts and part of a
continuum. Describing the transformation of the traditional notion of "sacred duty" into individual
right, Xia Yong writes that in ancient China,
there was not any legitimacy for seeking individual interests and advantage by taking part in
public affairs.... Political participation was a sacred individual duty to be fulfilled for the
people, for the country, and for self-realization, rather than a right.
Until the introduction of rights language from the West, "the idea of collective rights overshadowed
and, in many cases, replaced individual rights, creating a correlative individual duty." Duty-bearers
were regarded as shareholders of collective rights. This concept of a sacred duty has since been used
to legitimize the contemporary Chinese regime. As a result, "participation has become a no-choice-
duty rather than a chosen duty."

Daniel Bell of the University of Hong Kong warned that given present realities in China, the writings
of ancient Confucian sages may have little bearing on con-temporary Chinese attitudes toward
political partici-pation. Bell added that an interest in public affairs, with a certain degree of
commitment to the common good, will evolve once ordinary Chinese "feel they can make a
difference." Whether this interest will manifest itself as a right to democratic participation or as a
duty within an increasingly democratic society has yet to be seen.

Participants suggested moving beyond the binary concept of rights and duties to examine the values
that sustain and give them meaning in a given society. Onuma suggested a reconsideration of
"notions of virtue, prudence, consideration, and thoughtfulness," while Chandra Muzzafar of Just
World Trust in Malaysia emphasized the values of "justice, compassion, restraint, and spiritual
balance." The pursuit of individual rights, said Muzzafar, will "erode the very values needed to
sustain them in the long run." The human righs discourse may need to develop a holistic
understanding of the individual, the family, and the community, and the explicit values that can
invigorate not only rights and responsibilities, but also roles and relationships.

© 2004 Carnegie Council on Ethics and International Affairs. No material on this site may be used in
part or in whole by any other publication or website without the written permission of the Carnegie
Council.

HANS KELSEN’S LEGAL THEORY

Faculty of Law, University of Nairobi Jurisprudence.

Начало > Оригинали

Ян Стюард - "Критичната правна наука на Ханс Келзен"

(1990) 17(3) Journal of Law and Society 273-308

(http://www.law.mq.edu.au/HTML/staff/istewart/JLSKelsen.doc)

The Critical Legal Science of Hans Kelsen

IAIN STEWART

Fearing the outcome if the secret police found it in his house, the sacked law professor wrapped his old service revolver
in a banana skin and plopped it into the Rhine. He escaped with his family to Prague, where, at his first lecture, fascists
packed the hall and shouted: ‗Everybody except Jews and communists, out!‘ Those students who remained were beaten
up. He continued to teach, under police protection. Plans of a plot to assassinate him were discovered by a lecture
theatre cleaner. He brought his family out, to the USA, where he was allowed a chair of political science but not of law.i

Hans Kelsen, advisor to the Austro-Hungarian Emperor, author of the Austrian Constitution, and having experienced
many kinds of academic and political victimisation—of all major legal theorists the most bitterly acquainted with
political realities—is an implausible perpetrator of ‗formalism‘.ii Yet his main creation, the ‗pure theory of law‘, is both
recognised world-wide as a major theory of lawiii and placed in the ‗born so beautiful‘ basket as the paradigm case of
formalistic irrelevanceiv. As Gurvitch formulates the charge:

According to this doctrine, law, being nothing but a pure norm, admits only a normative and formalistic method of
study, every other method being destructive of the very object of research. That is why sociology cannot study law and
the ‗science of law‘ cannot take account of social reality.v

Even for so analytical a mind as Hart, the pure theory pays far too little attention to the circumstances under which laws
are created and ‗whether they are recognised as authoritative and by whom‘.vi Yet, to Kelsen, of all charges levelled
against the pure theory, that of formalism was the ‗stupidest‘.vii I will argue that, when Kelsen‘s philosophical
standpoint is understood, the question of formalism emerges on several levels. First, in relation to its subject matter the
theory is intended to be anti-[274]formalistic. Second, within the chosen kind of philosophical framework a general
theory is necessarily formalistic. Third, arguably the philosophical framework itself is formalistic and communicates this
formalism to the theory.

While recent interest in the pure theory is found mainly among analytical philosophersviii, as an attempt to bring the
study of law to the level of a critical legal science—a project, moreover, that fell apart in Kelsen‘s own hands—the pure
theory‘s aims and fate are very relevant to attempts to construct a critical legal science today.

Yet there is no survey of Kelsen‘s work as a whole, in any language.ix The task of survey is daunting. Kelsen wrote over
300 books and articles, in three languages.x Most that are not in English have not been translated and the existing
translations vary in reliability (although their formulaic style is not due to the translators).xi Writings about Kelsen‘s
work form an equally long list and are in several languages.xii Attention here will focus on Kelsen‘s writings on legal
theory, leaving aside his many works on justice, public international lawxiii or Austrian law. Nor will the work of other
members of the ‗Vienna School‘ be considered on its own account.xiv

No single work of Kelsen‘s contains a final overall statement of the pure theory. The last overall statement is the second
edition, 1960, of Reine Rechtslehre, translated as Pure Theory of Law. By 1962, however, the theory‘s keystone, the
concept of a ‗basic norm‘, had fallen apart in Kelsen‘s hands. Rather than restate the theory accordingly, he tried to save
the concept in weakened form. Then he moved up a level, to general theory of norms. He died in Berkeley, California,
on 19 April 1973, leaving a rambling text published posthumously as Allgemeine Theorie der Normen (General Theory
of Norms). Although this book reformulates many of the arguments of Reine Rechtslehre, embracing the new version
of the ‗basic norm‘ concept, it neither offers a completed general theory of norms nor locates the pure theory of law
within such a theory. Nevertheless, it comes close enough to doing these things for an article such as this to outline
Kelsen‘s theoretical work according to such a pattern. In doing so, I will avoid questions of the development of the pure
theory except so far as they impinge on understanding its final form.

KELSEN‘S BACKGROUND

Hans Kelsen was born in Prague on 11 October 1881 and raised in Vienna. His parents were Jews of the German-
speaking working class. The boy dreamed of taking a degree in philosophy, mathematics and physics. The combination
of his social background with such a degree, however, pointed to a career in schoolteaching and, without enthusiasm, he
enrolled at the University of Vienna in law. That he could not become a philosopher, he regretted for the rest of his life.
After obtaining his doctorate, Kelsen became interested in the nature of legal norms and wrote a higher doctorate on
this and other major issues in legal theoryxv, then began to teach at the University.

Cosmopolitan, bureaucratic and rich as its cream cakes, dual-imperial [275] Vienna bestrode Central Europe with a web
of laws that a medley of class and ethnic conflicts within and the Great War without would shred. Political thought rang
the changes from feudalism through constitutional monarchy and liberalism to socialism; fascism would follow. In
religion, catholicism dominated protestantism and judaism. This unstable social variety pressured liberal high culture
toward relativism: into neo-Kantianism, logical positivism, empiriocriticism, physical relativity theory, psychoanalysis,
tonal music and satire.
Relativism encouraged abstraction: to cope with the variety, theory needed to rise beyond it. At the same time, the
relativity was far from static: the deep historical consciousness that through the nineteenth century had expressed
German plans for unity bled over into disintegrating Austria-Hungary. Having found Hegel both too feudal and too
vulnerable to Marx‘s inversion, German-speaking liberals went back to Kant. Yet the return could not be simple. Kant‘s
sense of historicity, as Hegel had pointed out, was too weak for an age needing to understand deep transformations of
social structures. A first problem, then, was the relation between historicity and ‗science‘ (Wissenschaft—the German
word refers to any kind of systematic enquiry).
Linked with this was a further problem, concerning ‗is‘ and ‗ought‘. Kant maintained the distinction between theoretical
reason, which states what is, and practical reason, which states what ought to be. Feudal and especially catholic idealism
had preached their unity, so that whatever exists is presumably good. A key principle of the Enlightenment, from
Hume‘s Scotland into the German-speaking lands, was to divide them, so that statements of what is and of what ought
to be are different kinds of statement, and accordingly neither can follow from the other. A strong sense of historicity,
on the other hand, includes a stress on practice, hence on the coexistence of fact and value, fact and meaning—which is
next to reasserting their unity.
The problem of reconciling historism with the is/ought dichotomy produced a powerful debate on the identities of the
sciences. The neo-Kantians, as they came to be called, distinguished between two kinds of science: the natural sciences
(Naturwissenschaften) and the sciences of mind (Geisteswissenschaften) or culture (Kulturwissenschaften). In terms of
the relation between reason and history, the former were to be concerned with material facts, the latter with meanings;
or the former with regularities, the latter with individual events. In terms of separating ‗is‘ and ‗ought‘, the former were
to be concerned with material facts, the latter with values.

Each way of making the distinction also had two versions: whether the difference lay in the perspectives through which
the sciences approached their subject matter or in the subject matter itself. Kelsen took the latter view, holding that law
is evidently one of the ‗social orders‘, i.e. systems of ‗oughts‘, and that therefore its study cannot be a natural science.xvi
It might then be a science of mind or culture. But, in that case, if the aim is to describe the ‗oughts‘ of law, can there be
such an ‗is‘ of ‗oughts‘ without infringing the rule against mixing ‗is‘ statements and ‗ought‘ statements?

[276] This problem was either abolished or made worse by logical positivism, which denied the very existence of
practical reason. It held that only factual statements could be rational; value statements were merely emotive. This left
no room for a science of ‗oughts‘, hence apparently for a science of law. Or, if a science of law was possible in these
terms, could it be fully compatible with the other sciences within the logical-positivist doctrine of ‗unified science‘?
Such debates challenged the discipline of law to reforge its identity as a science. Kelsen was outstanding among those
who took on the challenge.

KANT AND THE PURITY OF IS FROM OUGHT

In constructing his legal theory and even when attempting a general theory of norms, Kelsen is concerned less to
philosophise than to clothe his theory in elements of philosophy bought off the peg. Such an attitude is neither wrong
nor even inferior; enquiry has to stop somewhere in the refinement of premisses as well as in the search for evidence, if
it is to bring the two into relation.xvii All the same, the cryptic nature of many of Kelsen‘s indications of his
philosophical debts makes it hard to ascertain whether the clothes he bought fit well or even match.
A starting point is that Kelsen many times classifies himself as an heir of Kant. The first edition, 1934, of Reine
Rechtslehre begins:

It is more than two decades since I undertook the development of a pure theory of law, that is, a theory of law purified
of all political ideology and all natural-scientific elements and conscious of its particular character because conscious of
the particular laws governing its object. Right from the start, therefore, my aim was to raise jurisprudence, which openly
or covertly was almost completely wrapped up in legal-political argumentation [Raisonnement], to the level of a genuine
science, a science of mind [Geistes-Wissenschaft].xviii

In the passage out of ‗na?ve, prescientific thinking‘xix, Kelsen finds Kant only half-heartedly criticalxx and tests the
capacity of a range of neo-Kantian and related philosophical tendencies—principally the ideas of Rickert, Hermann
Cohen and Husserl.xxi Yet he declines to get closely involved in these debates, preferring to count it undeniable that the
reality of law is not simply natural but also involves meanings, all or most of which are oughts, and then to go his own
way.xxii The area in which he draws the border is indicated by his view that the idea of legal science as a science of mind
does not suppose complete free will, since the idea of responsibility presupposes causal constraint.xxiii

Nonetheless, Kelsen appears to adopt two key Kantian conceptions: ‗critique‘ and ‗purity‘.
Kant‘s main books offer ‗critiques‘, as he terms them, of modes of thought. He understands ‗critique‘ not as a merely
negative exercise but as a process in which a mode of thought is to be made as coherent as possible. The focus is on the
mode of thought as such. There is no appeal below thought to experience, nor above thought to religion. Critique is
reflection on the very forms of a mode of thought, with the aim of maximising the mode‘s capacities. [277] Kelsen
embarks on a critique, in this sense, of existing legal theory, later of existing general theory of norms.

Kant‘s idea of purity follows from his firm adherence to the logical law of identity, that each thing is what it is and not
something else. Any statement of something, therefore, must state it as what it is and without admixture. Such a
statement will be ‗pure‘. Kelsen is concerned with such purity in two major directions: the first is purity of description
(the realm of ‗is‘) from prescription (the realm of ‗ought‘).

Following Humexxiv, then Kant, but with still greater emphasis, Kelsen insists that statements of what is and of what
ought to be must not be mixed.xxv For Kelsen, the difference between ‗is‘ and ‗ought‘ is simply obvious and cannot be
explained. One and the same entity may be considered now in terms of ‗is‘, that it exists or does not exist, and now in
terms of ‗ought‘, that it ought or ought not to be; but the two ‗modes‘ must not be mixed together. The entity that may
be considered in terms of either mode is a ‗modally indifferent substratum‘ underlying the two modes. To say that an ‗is‘
corresponds to an ‗ought‘—for example, that a person‘s behaviour conforms to a norm—is to state a correspondence
not between the behaviour and the ‗ought‘ form but between the behaviour as content of an ‗is‘ and as content of an
‗ought‘. Neither mode however has any necessary content: e.g. a legal ‗ought‘ does not necessarily contain any moral
‗ought‘.xxvi

One of the grounds on which Kelsen takes this strong view is that he makes a major departure from Kant, in the
direction of logical positivism. Kant gives reason two roles: theoretical reason concerns description (‗is‘) and is a
function of thought, while practical reason concerns prescription (‗ought‘) and is a function of will. Kelsen, however,
denies the existence of practical reason.xxvii Thought and will are ‗two quite different mental functions‘. There are ‗acts
of thought‘, whose meaning is a descriptive statement, and ‗acts of will‘, whose meaning is an ought. Although the two
kinds of meaning are bound up with each other, in that a statement is usually made with a purpose and an ought
contains a conceptualisation of the behaviour to which it may apply.xxviii The meanings may be expressed in various
ways—as written or spoken words, or as a gesture (e.g. hands raised in voting, a police officer directing traffic) or other
nonverbal kind of symbol (e.g. a traffic light); or even as being ‗tacitly presupposed‘, such as the norm of derogation that
a later norm derogates from an earlier.xxix Kelsen‘s meaning of ‗ought‘ is broad: he specifies that it shall include not
only commands or orders, but also authorisation, permission and derogation.xxx Considered grammatically, words
expressing an ought will often be in the imperative mood. But no particular verbal formula is necessary and sometimes
the verbal form can mislead: especially, an ought may be expressed in the indicative mood—for example, ‗Theft will be
punished with imprisonment‘.xxxi Yet the fact that is the act of thought or will is not the same as the fact that is the
mode of expression: e.g. an act of will, whose meaning is an ought, is not the same as a speech act expressing that
meaning.xxxii

[278] All the same, the difference between ‗is‘ and ‗ought‘ is not between two modes of reason but between reason itself
(corresponding to Kant‘s theoretical reason, or theoretical aspect of reason) and emotion. This strong version of the
‗is/ought‘ division particularly affects what is admissible as ‗science (Wissenschaft)‘. If science is already defined as a
rational enterprise, questions of what is, being rational, can be discussed in science while questions of what ought to be,
since they are irrational, cannot. Indeed, to allow discussion of ‗ought‘ to affect discussion of ‗is‘ would be not science
but ‗ideology‘. Science must be kept pure of ideology.xxxiii
A first task is to fence legal science against other sciences dealing with connected subject matters—psychology,
sociology, ethics and political theory. The pure theory of law undertakes to delimit the cognition of law against these
disciplines, not because it ignores or denies the connection, but because it wishes to avoid the uncritical mixture of
methodologically different disciplines (methodological syncretism) which obscures the essence of the science of law and
obliterates the limits imposed upon it by the nature of its subject matter.xxxiv

SCIENCE OF OUGHT

At this point it will be helpful to make explicit a concept that in Kelsen is only implicit: the concept of a science of
ought. This makes it possible to identify in Kelsen‘s perspective the following hierarchy of sciences. First, science in
general divides into sciences of nature and sciences of mind. Second, sciences of mind—the neo-Kantian concept being
modified to accommodate the logical-positivist denial that the practical can be rational—divide into sciences of is and
sciences of ought. Third, since only some oughts are valid (see below), hence are norms, sciences of ought divide into
sciences of norms, which Kelsen calls ‗normative sciences‘, and sciences of other kinds of ought. The normative
sciences are ‗pure‘ in the sense that they describe oughts without subscribing to or evaluating them. Fourth, normative
sciences divide into legal science, the study of legal norms, and ethics, the study of moral norms. Thus the pure theory
of law is normative science of law.xxxv

Kelsen‘s greatest difficulty is: how, in these terms, can there be a science (a rational description) of ‗oughts‘? A strong
version of the is/ought division implies that there cannot: that either (as Stammler had concluded) science of ought
must be confined to practical reason, as systematic evaluation of oughtsxxxvi, or (as in logical positivism), if reason is
only cognitive, any science of mind can describe acts of will but not their meanings, can only be psychology.xxxvii Yet
Kelsen is unwilling to go all the way with logical positivism and reduce ought to is.xxxviii For him, oughts may be
irrational but they are not illusory. In neo-Kantianism he found another resource.
In Kant‘s view, we know things not as they may be ‗in themselves‘, independently of knowledge, but only as they appear
to us. (The question of how we can then be sure there is any reality at all ‗out there‘, independently of [279] our
knowledge, plagued the neo-Kantians.) Things‘ appearance to us is as material provided by the senses that is moulded
under forms of thought: material as so moulded is a ‗concept‘. Most of the forms (moulds) are constructed by us. But
the most universal forms, which Kant calls ‗categories‘, are innate.

One of Kant‘s ‗categories‘ is that of ‗is (Sein)‘, under which descriptions are constructed. How is it possible to state the
is of an ought? Now, Kant had declared that his list of ‗categories‘ was not closed. Very well, said the neo-Kantian
sociologist Simmel, in working out how there could be description of social values: let us add a new category, ‗ought
(Sollen)‘, under which it will be possible to describe oughts.xxxix Kelsen adopts Simmel‘s new category.xl

Since, in Kant, the operation of a category is mediated through a ‗schema (Schema)‘, Kelsen has the category of ought
operate partly through the ‗schema‘ of ‗norm‘.xli The new category and schema permit a kind of science in which norms
may be described without any admixture of evaluation. Kelsen calls this ‗normative science‘.xlii Sociology, as well as
psychology, ethnologyxliii and history, are to concern themselves with understanding behaviour in terms of causality,
including motivation. Where behaviour is related to meanings that are norms, those meanings are to be understood by
the normative sciences of law and ethics.xliv

The word ‗norm‘ (from Latin, norma) often means descriptive regularity, as when one says that a type of behaviour ‗is
the norm‘ (cp. ‗is normal‘). Kelsen does not use this sense. A second sense is prescriptive: when one speaks of ‗social
norms‘, one means by a ‗norm‘ any kind of prescription. For this concept, Kelsen prefers to speak of an ‗ought‘.

Kelsen then speaks of both ‗ought‘ and ‗norm‘ in two senses: as subject matter of science and as descriptive construct in
science. In the first sense, he refers simply to an ought or a norm. In the second sense, he speaks of a ‗proposition
(Satz)‘. Thus an ‗ought (Sollen)‘ is described in an ‗ought proposition (Sollsatz)‘, a ‗legal norm (Rechtsnorm)‘ in a ‗legal
proposition (Rechtssatz)‘ and a ‗moral norm (Moralnorm)‘ in an ‗ethical proposition (Satz der Ethik)‘.xlv This is
Kelsen‘s formal terminology, but, since in Kantian terms a subject matter is known only as it appears, he usually speaks
of an ‗ought‘ or a ‗norm‘ when he means the ought or norm as it appears in a proposition. This double usage is
confusing, but Kelsen defends it as a widely established practice: ‗logic (Logik)‘, for example, is both the operation of a
kind of norm and the study of their operationxlvi (cp., in English, ‗law‘).
With the word ‗normative‘, however, Kelsen is more selective. While its usual meaning is prescriptive, corresponding to
his sense of ‗norm‘ as subject matter, he uses it in a sense corresponding to his sense of ‗norm‘ as description.
Normative science, under the category of ought, constructs norms in the second sense as descriptions of norms in the
first sense.xlvii
Next, Kelsen stresses that, since natural science describes facts while normative science describes norms, the two forms
of science must operate according to different principles. Natural science operates according to the principle of
causality. By analogy, Kelsen maintains, normative science can [280] operate according to a principle of ‗imputation
(Zurechnung)‘. A cause is conditionally related to an effect as its consequence—if A (cause) is, then B (effect) will be; B
is caused by A. Thus: if (A) a brick hits Jane‘s head, then (B) Jane will be injured. Likewise, a delictxlviii can be
conditionally related to a sanction as its consequence—if A (delict) is, then B (sanction) ought to be; B is ‗imputed‘ to A.
Thus: if (A) John threw the brick, then (B) John ought to be imprisoned. To speak of ‗imputation‘ here is similar to
speaking of responsibility—here, that John is responsible for the damage to Jane.xlix The legal scientist makes the
imputation, just as the natural scientist understands a physical connection as causal. Imputation means ‗every connection
of a human behaviour with the condition under which it is commanded or prohibited in a norm‘.l In the case of
morality, however, imputation is a two-stage affair: while a legal norm is attached directly to a negative, coercive sanction
(such as imprisonment), a moral norm is attached directly to a positive, noncoercive sanction (such as the expression of
approval) and indirectly to the negative form of that sanction (such as the expression of disapproval); imputation,
concerning a moral norm, has to reach to the negative form.

Pursuing the analogy, Kelsen holds that, as in natural science causal relations may be stated in a ‗law of nature
(Naturgesetz)‘, so in normative science relations of imputation may be stated in a ‗law of law (Rechtsgesetz)‘ or ‗law of
morality (Moralgesetz)‘; the legal or moral form, like the natural, being formulated probabilistically.li However, the
analogy is only partial: while the law of nature refers to unending chains of causation, the law of law or of morality refers
to isolated relations.lii The law of law or of morality is the form taken by the legal or moral proposition.liii
The distinction between causal sciences, grounded in the principle of causality, and normative sciences, grounded in the
principle of imputation, cuts across the other distinctions between sciences. Accordingly, Kelsen can divide the social
sciences into causal social sciences, such as sociology, and the normative social sciences, such as legal science and
ethics.liv In relation to law, if social sciences follow the principle of causality alone, they will fail to take account of
norms; if they also follow the principle of imputation, they will to that extent be legal science or ethics.lv

Other norms and their study belong to logic and technology (Technik). Since ‗ought‘ is not a relation, a norm is not a
relation between a means and an end. A relation between a means and an end is causal. An act of will, which is a
psychological fact, may be a means, but the meaning of that act, which is an ‗ought‘ or norm, cannot be a means or an
end. The question ‗What ought I to do?‘ belongs to legal science or ethics; the question ‗What must I do, to realise a
particular end?‘ belongs to technology.lvi

Now, it is far from clear in what sense the ‗proposition‘ is descriptive. For, in addition to saying that the difference
between norm and proposition is that the latter describes the former, Kelsen gives as examples the difference ‗between a
law published in the official legal gazette and a scientific commentary on that law‘ or ‗between the Criminal Code and a
textbook on criminal law‘.lvii The [281] examples state a difference without really defining it. Kelsen also says that the
description might be called ‗interpretation‘, but maintains that this ‗non-authentic‘, merely descriptive interpretation by
the legal scientist is quite different in principle from the legal organ‘s ‗authentic‘, law-creating interpretation.lviii If the
proposition is formulated as a ‗law‘, then
It is the task of the science of law to represent the law of a community, i.e. the material produced by the legal authority
in the law-making procedure, in the form of statements to the effect that ‗if such and such conditions are fulfilled, then
such and such a sanction shall follow‘.lix

The spirit appears to be that legal science, constructing legal propositions not legal norms, ‗has to know the law—as it
were from the outside—and to describe it‘lx. Legal science ‗endeavours to comprehend its object ―legally‖, namely from
the standpoint of the law‘—that is, as a legal norm or as content of a legal norm.lxi
‗Imputation‘ is equally ambiguous. Up to the 1930s, Kelsen understands it as a category in the Kantian sense, on analogy
with Kant‘s category of causality. Under Kantian categories, reality is constructed: the categories are not generalisations
from experience. In Hume, however, causality is a generalisation from experience. And Kelsen moves toward a Humean
understanding of causality, at the same time as denying that knowledge of oughts is experiential: the analogue loses its
parent.lxii

It appears that, in Kelsen‘s conception of science, more than one idea of description is involved. At least three ideas of
description were available to him: they may be distinguished, if rather metaphorically, as ‗refractive‘, ‗reflective‘ and
‗interpretive‘. In objective-idealist philosophy, such as Christianity, it is believed that the basis of reality is ideal forms
existing prior to knowledge. The particular entities in the world are only refractions of the ideal forms, e.g. a particular
man exists only as a refraction of the ideal man. To describe a particular entity is to reproduce the refraction, as e.g. a
biblical scholar may refract a meaning in the Bible. The method is exegesis. In materialist philosophy, the basis of reality
is physical things. To describe them is to have a reflection of them in the mind. The method is observation. In both
refractive and reflective description, the construction of reality is supposedly determined by the form of the original.
One can observe both inanimate and animate objects, such as human beings in their behaviour. But a science of mind is
not concerned solely with behaviour, understood causally. The neo-Kantian sociology of Max Weber, for example,
insists that one must first observe the behaviour and then understand it according to the meanings that the actors attach
to it, which Weber terms the ‗subjective meaning‘ of the behaviour—distinct from the ‗objective‘ meaning constructed
in science.lxiii The method is interpretive understanding. This differs from exegesis in that, although in both cases the
subject matter is meanings, in interpretive understanding the actor‘s frame of reference need not be adopted by the
observer, who may reconstruct the actor‘s meanings in any of a theoretically infinite number of alternative frames.

[282] Now, if the difference between norm and proposition is only that the norm is created by legal authority while the
proposition is not, the proposition reproducing the norm will remain within the legal authority‘s frame of reference; the
description will be refractive. If however the difference between norm and law (law of law or of morality) involves
reconstruction of the norm in another frame of reference, the description will be interpretive. Yet we shall see in a while
that Kelsen‘s way of combining the two modes of description is curious.lxiv

A ‗PURE PART‘ OF LEGAL SCIENCE

The second type of purity with which Kelsen is concerned is purity of the form of knowledge from empirical content.

Since, for Kant, the ‗categories‘ and not any supposedly given ‗facts‘ are the foundations of thought, any mode of
enquiry can be systematic—i.e. can be a science—only if its systematic character is established in advance of empirical
investigation. It is therefore necessary, in beginning to construct a particular science, to establish a set of basic forms
that the science will apply. This set Kant calls the ‗metaphysical bases‘ of the science.lxv Their formulation, he calls
(speaking of natural science) the ‗pure part‘ of the science—‗pure‘ in the sense that it does not yet have any sensuous
admixture, any empirical content. This should be stated separately from the later, ‗empirical‘ part of the science, in which
the forms established in the pure part are applied to empirical material so as to compose concepts.lxvi Thus the purpose
of constructing a pure part of a science, far from being to evade empirical considerations, is precisely to make empirical
enquiry possible.lxvii

Kelsen states that the pure theory provides ‗the fundamental principles by means of which any legal order can be
comprehended‘lxviii and that it is a ‗general jurisprudence‘ furnishing ‗the basic conceptions that enable us to master any
law‘ and accordingly serving as ‗the theoretical basis for all other branches of jurisprudence‘ such as ‗dogmatic‘ (i.e.
doctrinalist), historical or comparative jurisprudencelxix, and even sociology of lawlxx. The theory has—and by its very
nature must have—a formalistic character. This does not mean—as it is sometimes misunderstood—that the Pure
Theory of Law considers the contents of the legal norms as irrelevant. It means only that the concepts defined by the
theory must hold what is common to all positive legal orders, not what separates them from each other. ‗Formalism‘ can
be no objection to a general theory of law [...]lxxi

Precisely in this indispensable ‗formalism‘, the pure theory states the common features of all species of law without
supposing an eternal essence of law, as do theories of natural law.lxxii
The pure theory is therefore ‗pure‘ in two senses. Normative science as such is ‗pure‘ in the first sense, of being free
from considerations of evaluation. Each normative science then divides, in Kantian terms, into a ‗pure part‘ and an
‗empirical part‘. The pure theory of law is offered as the pure part of a normative science of law. It is, Kelsen insists, a
pure theory of law, not a theory [283] of pure law.lxxiii Causal analysis belongs to the empirical part: it is not to be
substituted for but added to normative interpretation.lxxiv The causal element in the test of effectiveness (below) is not
itself causal analysis but an envisaging of a respect in which causal analysis will be required. The answer to Hart‘s
criticism is that the pure part of the science identifies law and the empirical part can then trace the connections of origin
and effect.lxxv
Such is Kelsen‘s intention. So far as he envisages reflective or interpretive description, the pure part may remain
independent of the material to be described. Yet, so far as he retains refractive description, the bases of the science
remain within the terms of the subject matter and a division between pure and empirical parts of the science is not
feasible.

THE NORM AS ‗OBJECTIVE MEANING‘

Kelsen‘s second departure from Weber concerns objectivity of meanings. Kelsen defines an ought as ‗the meaning of an
act of will‘. Presumably, this will be a ‗subjective meaning‘ in Weber‘s sense. Thus, Kelsen supposes, one might observe
that people in a room periodically raise their hands and one could record the statistical regularities of the hand-raising.
But one will understand the hand-raising as voting only if one also, through interpretive understanding, examines the
meanings that the actors attach to their behaviour. So far, Kelsen is with Weber.lxxvi

Weber would then have said that these subjective meaning might include the actors‘ belief that the meaning is obligatory
upon them. Science should record that belief—but in Weber‘s view science has no business deciding whether that belief
is true. Weber firmly declines to suppose ‗an objectively `correct‘ meaning or one which is ‗true‘ in some metaphysical
sense‘.lxxvii For him, science may be ‗objective‘ through excluding ideology, yet not even science can claim absolute
objectivity.

But Kelsen asserts that the voting can be understood as legislation only when the subjective meaning of the hand-raising
is also understood as ‗its objective meaning, that is, the meaning the act has according to the law‘.lxxviii Now, Kelsen
might be taking law here as his frame of reference, just as Weber takes the frame of reference of his sociology. But that
would be to think within the law, not to think in terms of a legal science. Rather, it seems, Kelsen is supposing within his
legal science that legal meanings are ‗objective‘ on their own account. Why should he suppose that?

Two reasons may be found. First, that it seemed obvious. In constructing a general theory of law, Kelsen‘s principal
concern is with the Romanist tradition, in which most Western legal systems are found. In that tradition, ‗law (German,
Recht)‘ in a general sense is readily characterised as ‗objective (objektives Recht)‘, as distinct from a ‗subjective‘ category
(subjektives Recht) corresponding to ‗rights‘. In English translation, ‗law‘ no longer appears in association with an
explicit claim of objectivity and the contrast between objective and subjective is lost.

[284] Secondly, however, Kelsen offers an argument: the ‗objective character‘ of a norm is manifest in the fact that the
norm not only binds the addressee even if the addressee does not know or think about it but also continues to exist
even after the will whose subjective meaning it is has ceased. What matters is the view of an observer to whom the norm
is not addressed, such as a legal scientist.lxxix Otherwise, Kelsen argues against Weber, a delict committed when the
actor did not know of the legal norm characterising such behaviour as delictual would fall outside the legal-scientific
definition of law.lxxx Likewise, it seems, Kelsen worries that bindingness would cease as soon as the legislator‘s mind
turned to another topic. But that is a political consideration—unless the legal scientist‘s concern is with the legislator‘s
view of the consequences of the temporariness of an act of will. Even so, the legal scientist ordinarily will be an
addressee of any general legal norm.

It is helpful to see how Kelsen first came to the issue. Historically, he finds, one way to conceive of a norm as objective
has been to attribute it to some kind of suprahuman subject as its author. This could be ‗God‘, or personifications of
‗Nature‘, ‗Reason‘ or ‗the State‘. Most of these are obviously excluded by Kant‘s ban on transcendence. In his first major
work, however, Kelsen still argues that the ‗modern state‘ is ‗an entirely extra-individual authority‘ which ‗fulfils its
obligating function independently of the will of the individual‘, so that the positive law of which it is the author is
‗objective‘ in existing ‗over and above human beings, independent of the subjective feelings of the individual‘.
Consequently that law can be represented in legal science only by an objectivistic method that will present it as
‗objective‘ and entirely ‗heteronomous‘. It cannot be represented accurately by a subjectivistic method, which would
make legal norms appear, like moral norms, as ‗subjective‘ and ‗autonomous‘, deriving their bindingness merely from the
individual‘s ‗recognition‘ of them as obligating. Indeed, from a subjectivistic standpoint the apparent objectivity of legal
norms appears as nothing but a product of ‗projection‘ or ‗objectivation‘; that being false, the way law appears from a
subjectivistic standpoint is ‗fiction‘.lxxxi

Kelsen was soon unhappy with this: personification of the state still smacked of transcendence. He leapt to a reviewer‘s
mention of the philosophy of Hermann Cohen, where the state appears not as actually personified but as an explicitly
fictional personification of the legal order.lxxxii The state would appear, to be precise, as a ‗point of imputation‘; from
the standpoint of normative science, state and law are the same thing.lxxxiii The identity of state and law will concern us
later. What is important here is that, although the state is reduced to a point of imputation, it remains the author of
‗objective‘ norms. Moreover—just as when it was suprahuman—as a point of imputation, it does not appear as an actor.
Consequently the meanings of its acts of will, which are legal norms, are not available for interpretive understanding. I
will return to this.

[285] THE LEGAL ORDER

1. Orders of norms

An ought is a ‗norm‘ if it is valid. Norms in this sense may be followed, violated or applied.lxxxiv To speak of validity
here is to say that the ought occurs not singly but in some kind of order.lxxxv Kelsen distinguishes two possible types of
order, which he calls ‗static‘ and ‗dynamic‘.lxxxvi In ‗static‘ order, norms are hierarchised in a relation of general to
particular. Thus, from the relatively general moral norm ‗Love your neighbour‘ may be deduced the relatively particular
norm ‗John ought to love his neighbour Jane‘. Each new norm is derived from the one ‗above‘ it by a purely intellectual
operation. The relation between the norms is one of logical validity—or would be, were there such a thing as practical
reason.lxxxvii

Many have believed that positive legal norms are ordered statically. But the idea of simple logical deduction could not
have convinced someone so well acquainted with bureaucracy as Kelsen. Nor was the idea of simple deduction from a
norm made in Vienna to a norm applicable to provincial peasants convincing Ehrlich, whose ‗free law theory
(Freirechtslehre)‘ of judicial decisionlxxxviii paralleled the attention to judicial policy developed by G?ny in France and
in American ‗legal realism‘ and ‗sociological jurisprudence‘.

Kelsen‘s Viennese colleague Merkl developed, and Kelsen adopted, a model of legal order as dynamic hierarchy, or
‗steps and stairs (Stufenbau)‘. In this model, a positive legal order is conceived as a chain of authorisations addressed to
organs of the state. The ‗higher‘ organ cannot foresee all circumstances requiring regulation and must delegate power,
with discretion, to a ‗lower‘ organ. The higher organ creates a ‗higher‘ norm authorising the lower organ to create not a
particular ‗lower‘ norm (in which case there would be no point in the delegating) but a lower norm of a certain kind and
perhaps also through a certain procedure. Thus, in the most familiar case, the constitution authorises the legislature to
create statutes, which authorise the higher executive organs to create regulations, which authorise lower executive organs
to create lesser regulations. Expressed more precisely: each higher norm recognises the act of will of the lower organ—
or recognises custom—as a ‗law-creating fact‘. Since there is a reference to acts, at no stage is law-creation a matter
simply of logical deduction. The new norm is not a product of logic, nor even a product of knowledge—since
knowledge of the earlier law, however ambiguous, does not produce a new norm. The organ‘s act of will draws on both
the authorising norm and other sources, including norms drawn from morality and politics; however, the moral and
political norms do not thereby become part of the legal order.
The higher and lower legal norms stand in a relation of ‗validity‘ in the sense that the higher norm authorised the
creation of the lower norm. In dynamic order a norm ‗is not valid because it has a certain content‘ but ‗because it is
created in a certain way‘; in principle, it may have any content at all, although sometimes a higher norm prescribes that
lower norms must or must not have certain contents.lxxxix The legal order contains both general and individual [286]
norms: Kelsen rejects both the European doctrine that only general norms are law, which implies that judges do not
make law but only apply it, as well as the extreme American legal-realist doctrine that only the courts create law, statute
being merely a source; there is no line to be drawn between law-creation and law-application.xc For this reason, a norm
considered void—for example, because unconstitutional—is void only when declared so by a court of final
jurisdiction.xci ‗The doctrine of the hierarchy of the legal order‘, in short, ‗comprehends the law in motion, in its
perpetually renewed process of self-regeneration.‘xcii

The model for ‗validity‘ in this ‗dynamic‘ sense is the sense of ‗validity‘ familiar from constitutional and administrative
law: one can readily see how the idea of a dynamic legal order expresses, from the standpoint of legal normative science,
the form of the modern, bureaucratic state. However, the model is intended to be applicable to any ‗form of state‘:
democracy or autocracy, republic or monarchy.xciii

Custom does not fit readily into Kelsen‘s picture. He supposes that regular behaviour can give rise to a collective will
that it is right, although the subjective meaning of that act of will can become its objective meaning only if a higher
norm institutes custom as a law-creating fact, possibly as the fundamental law-creating fact.xciv This way of
incorporating customary law into the picture of dynamic order avoids supposing a romantic ‗national spirit‘ that
recognises customary behaviourxcv, yet it fails to address the problems that all philosophical positivists have with the
idea of customary law: of how an ought can arise in the first place from an is; and of how, even then, that ought could
be binding.

Although Kelsen long supposed that dynamic order could contain static elementsxcvi, he moved toward denying the
possibility of static order even for a moral order, with three arguments. First: that the concept of static order supposes
the existence of practical reason; thus he implies that no such order can exist.xcvii The second and third arguments rest
on the distinction between general and individual norms. A norms is ‗individual‘ if it is directed toward a particular
person in respect of a particular act; otherwise, it is ‗general‘.xcviii Kelsen insists that dynamic legal orders contain
individual as well as general norms. The second argument is that what appears to be a deduced norm is not actually a
new normxcix—so that no question of ordering arises. The third argument is that, since the author of a general norm
cannot completely foresee the behaviour to which the norm may be applicable, the norm must always be subject to
‗individualisation‘, in which, out of the abstract, general norm, a concrete, individual norm will be created to apply in the
particular case. Accordingly, when a general norm is created it is then only partially valid; it becomes wholly valid only
when it has been individualised: thus the validity of a general norm is necessarily a dynamic process.c

Drawing a distinction common in German theory, Kelsen specifies that he means ‗constitution‘ in the ‗material‘ sense,
i.e. ‗the positive norm or norms which regulate the creation of general legal norms‘, which may be wholly or partly
unwritten—as distinct from a constitution in the ‗formal‘ [287] sense, which is a document and might contain other
kinds of norm as well.ci (Thus, he might have said, there is a ‗British Constitution‘ in the material sense only.) Later he
relativises the meaning of (material) ‗constitution‘ by noting that, in the dynamic chain of validity, each higher norm is a
‗constitution‘ in relation to each lower norm.cii Except for the final act executing a sanction, law-application is also law-
creation.ciii

The concept of dynamic legal order, Kelsen thought, marked the pure theory as anti-formalistic; he believed that it
achieved with more rigour the anti-formalistic aims of the ‗free law‘ theory and American ‗legal realism‘. In fact it denies
that law can be seen as a logical whole and points juristic attention away from issues of contradiction and toward real
social conflicts.civ
Kelsen distinguishes and emphatically rejects a third sense of ‗validity‘, as meaning effectiveness.cv Effectiveness, he
insists, is not validity but a condition of validity. The validity of a positive moral or legal norm rests upon two conditions
of is: that the norm shall have been posited (its positivity) and that it shall be ‗by and large effective‘ (its effectiveness).
To ask that a norm be totally effective would be absurd: a norm is posited precisely in order to regulate conduct contrary
to it. Nor is a norm valid only when it is effective: it is valid when posited; only as valid could it become effective; but it
loses its validity if it fails to become, or later ceases to be, by and large effective. Likewise a legal order is valid even
though not all of its norms are effective, but loses its validity when it permanently ceases to be by and large effective.
Thus validity and effectiveness are not identical, although validity depends on effectiveness—or, in other language, law
(or right) is not the same as power (or might), but is dependent on it: in this sense, ‗law is a particular order (or
organisation) of power‘.cvi Where ‗effectiveness‘ means only conformity with norms, without considering the motive for
the conformity, ‗effectiveness‘ has ‗a normative, not a causal, meaning‘.cvii

While a legal order is ordinarily treated as being composed of single norms, Kelsen holds that a general norm is actually
two norms. A general norm, he says, is presented in the form: ‗People ought to refrain from stealing; if a court has
established that a person has committed a theft, that judge ought to create an individual norm stating that that person
ought to be put in jail‘. The latter part, Kelsen holds, is a ‗primary‘ norm, directed to an organ, stating that coercion
ought to be applied; the former part is a ‗secondary‘ norm, also directed to the organ, stating the reason for the primary
norm.cviii

This seems strange: Austin, for one, follows the sequence of presentation.cix Kelsen, however, is starting not from the
norm as written but from behaviour. Perhaps at no point is he more sociological. The primary norm is effective directly,
the secondary norm only indirectly; the legal order is effective principally through its primary norms.cx What one
observes is people being deprived of goods, imprisoned, executed ... As one asks for the meaning that the actors
attribute to their behaviour, one comes first upon a norm authorising the organ to impose the sanction. Next one finds a
norm giving the reason for that authorisation—although this norm is perhaps [288] superfluous and is often not stated
distinctly but only implicit in the primary norm.cxi

2. Law and morality

For positive legal norms to compose a dynamic order is for them to ‗have the characteristic of regulating their own
creation and application‘cxii and occasionally Kelsen writes as if this is the distinguishing feature of law.cxiii Elsewhere
however he holds that moral norms too may compose a dynamic order. The feature that distinguishes law from the
other social orders, and particularly from morality, is rather its coerciveness—not only that it exercises ‗psychic
coercion‘, which other social orders also do, but that it prescribes specific coercive acts directly as sanctions for
nonconformity with its norms.cxiv Moral norms, in contrast, are encountered as norms regulating particular behaviour
rather than as norms prescribing a sanction—and then the sanction is first positive, as approval, and only subsequently
negative, as disapproval—and often without any norm prescribing a sanction. The moral norm regulating behaviour is
primary—the sanctioning moral norm, if any, secondary.cxv

Kelsen insists that morality is no part of law. Law has no moral content: there are no mala in se but only mala prohibita;
a delict is not outside law or a rejection of law but is within law as the condition for imposing a sanction.cxvi Nor is law
as such intrinsically good: to hold that it is, subjects the positive legal order to a new iusnaturalism and thereby provides
an ‗uncritical legitimation‘ of the order. Indeed, if one were to give up ‗the solidly fixed frontier over against the
concepts of morality and politics‘, and count moral and political principles and policies into law, one would have to
count in every factor influencing the creation of law—including the interests of party and class.cxvii

This stance is starkly evident when Kelsen extends the concept of sanction beyond the concept of reaction to specific
behaviour, to include reactions to circumstances that the state finds undesirable—arrest on suspicion, protective
custody, internment, expropriation of property in the public interest. All these, even committal to an extermination
camp, ‗cannot be considered as taking place outside the legal order‘.cxviii But the concept of a law of law is not
extended likewise.

Here Kelsen is tense. Within his philosophical positivism, on one side his strong sense of morality and justice is subject
to an insistence that justice be relative, a justice of tolerance which among other things is a social precondition for the
practice of science.cxix Obversely, however, he identifies and subscribes to the modern appearance of law as mere
technique. He characterises law as ‗a specific social technique for the achievement of ends determined by politics‘ and
the legal scientist as a mere ‗technician‘, not concerned with the political aims of the legal order being serviced.cxx This
position is vulnerable to the Frankfurt School‘s critique of philosophical positivism‘s privileging of technical or
instrumental rationality. The ‗scientific‘ approach is privileged as ‗objective‘, while the practically rational reasons for
adopting and pursuing it are always-already removed from [289] argument by characterising all evaluation as merely
emotional.cxxi In this perspective, Kelsen privileges in the name of science the instrumentalism whose extreme
consequences as law he abhors and of which he was nearly a victim.cxxii

LEGAL ORDER, JUDICIAL KNOWLEDGE AND LOGIC

1. Echoes of legal realism

In formulating a legal proposition describing a general norm, we have seen, Kelsen specifies: ‗if a court has established
(festgestellt)‘. Recalling the Kantian principle that there are no ‗things in themselves‘, Kelsen acknowledges that the
delict to which a sanction is imputed is not a raw event but an event as constructed under the concept ‗delict‘, or a
concept of a particular kind of delict, by a court. Then, for example, the legal norm prohibiting theft says not ‗If
someone has stolen, the court ought to order that they ought to be put in jail‘ but ‗If the court hearing the case has
established that someone has stolen, that court ought to order that that person ought to be put in jail‘.cxxiii Under the
secondary norm, it seems, the court constructs a fact-in-law as a condition for the application of the primary norm.

Such a view of the matter inserts a cognitive element in the heart of the dynamic order, threatening to blow apart the
dichotomy between the categories of is and ought. On further reflection, Kelsen takes a distance from the specialised
legal meaning of feststellen: ‗to declare‘, as in a declaratory judgement. What the court does is ‗not descriptive, i.e.
declarative, but constitutive‘. The establishing that a delict has been committed normally forms part of the primary
norm.cxxiv

The further Kelsen goes toward characterising the secondary norm as ‗superfluous‘—as either existing but unnecessary
or existing only by implication—the closer he comes to the extreme American ‗legal realism‘ of Gray, who maintained
that law is only judicially created norms, for which legislation is but a sourcecxxv, and consequently also to abandoning
the ‗separation of powers‘ differentiation of judiciary and legislaturecxxvi.

Kelsen does not, however, acknowledge courts to have unfettered discretion. Existing general norms require the courts
to apply them, and courts can depart from them only within the discretion that those norms allow. This fettering is not
set aside but only limited, in the extreme application of the ‗principle‘ of res iudicata, that an individual norm may be
legally valid even though it does not correspond to any valid general norm, either when there is no such norm or when
such a norm prescribes differently (recall that, for Kelsen, a void norm is so only when declared so by a court of final
instance). This view corresponds, Kelsen believes, to the way that courts actually behave.cxxvii

[290] 2. Logic and norms

Kelsen insists that, if there is no practical reason, logic cannot apply to norms. Logic is applicable to legal propositions
but not to legal norms. Norms cannot be true or false, only valid or invalid, in a non-logical sense, which is also their
existence. The pure theory is not a ‗legal logic‘.cxxviii Where logic is applied to legal propositions, still logical must not
be confused with psychological or political questions.cxxix

Kelsen deals with logic only in the form of the syllogism. A premiss or conclusion of a syllogism may describe a norm in
three ways. First, by ‗quoting‘ the norm—e.g., ‗There is a valid general norm: ―Everyone ought to keep their promises to
others‖.‘ Second, by establishing the existence of a norm, as an objective meaning—that the subjective meaning of an
act of will is also its objective meaning because the act is authorised by a valid norm of a positive moral or legal order.
Third: in logic of probability, there can be a syllogism concluding as to the probability that, in a particular case, the judge
will create an individual norm that will correspond to a certain general norm.cxxx

Nonetheless, Kelsen holds, within an order norms themselves may conflict. Conflict may be two-sided, where to follow
either norm would be to breach the other, or one-sided. It may be total or partial—partial when to follow one norm
would be to breach the other where it applies conditionally—and either necessary or only possible. I will cite two of his
examples. Between the norm ‗Bigamy ought to be punished‘ and the norm ‗Bigamy ought not to be punished‘ there is
two-sided, total, necessary conflict. Between the norm ‗Murder ought to be punished with death, if the murderer is more
than twenty years old‘ and the norm ‗Murder ought to be punished with death, if the murderer is more than eighteen
years old‘ there is one-sided, partial and not necessary but only possible conflict.cxxxi Since legal norms can conflict, any
legal norm might face its opposite: therefore the values embodied in any norm can only be relative.cxxxii
Kelsen‘s idea of conflict looks very like contradiction, but he insists that a conflict of norms is not even comparable with
contradiction. For conflict of norms can be resolved by derogation, which is the application of a further norm, not of a
logical principle.cxxxiii

A legal order, Kelsen holds, has no gaps. He subscribes to the view that ‗whatever is not forbidden is permitted‘.
Whatever could have been forbidden yet is neither forbidden nor positively permitted—that is, permission expressly
given—may be said to be negatively permitted; the individual is in that sense ‗free‘. For the situation where an organ is
faced with a quite unforeseen case, the legal order contains, expressly or tacitly, a norm authorising the organ to create a
new legal norm on the basis of moral and political principle; although there is no norm to apply to the case, the legal
order as a whole is applicable.cxxxiv

[291] 3. Up the law

So far, Kelsen‘s reasoning has been downward, in terms of the dynamic legal order‘s chain of authorisation. But he also
reasons upward.

He takes on board the view of both American ‗legal realists‘ and Belgian theory of legal rhetoric that a court may first
intuit an individual norm to apply and only afterwards elaborate ‗grounds‘ for its application. In that situation, Kelsen
holds, the syllogisms are still relevant, but they describe not the way in which the individual norm is created but the way
in which its application is justified; the description is still, as intended, of an organ‘s practice.cxxxv Again, the anti-
formalist tendency of the concept of dynamic legal order appears.

In the same spirit Kelsen holds that, when a norm is obeyed, the person obeying it reproduces it, as meaning, in their
mind. The addressor means, the addressee understands; through that understanding, the norm becomes a meaning for
the addressee; the addressee thereby addresses it to him- or herself. Although this is not to say that the addressee always
‗recognises‘—that is, accepts—the norm; the addressee might not obey it, or might obey it only because of the threat of
a sanction.cxxxvi

However, when an organ to which a general norm is addressed is thereby authorised to create a lower norm, it will do so
only if it recognises the higher norm as suitable for application to the concrete case. This will not be an exception to the
dynamic order, but will be an authorised exercise of discretion. A ‗recognition‘ theory is correct to this limited
extent.cxxxvii
The salient feature of these arguments is that Kelsen is looking at the organ‘s decision from the standpoint of the
norm‘s addressee.cxxxviii

LAW, STATE AND INDIVIDUAL

The pure theory ‗is objectivistic and universalistic‘, aiming ‗to conceive in each part of the law the function of the total
law‘. Consequently it cannot view the legal order from the standpoint of the individual legal subject and its interests.
Thinking in terms of rights must be reduced to thinking in terms of the whole legal order.cxxxix But this is to be done
sociologically, for norms regulate not persons as such but their behaviour. Accordingly, a ‗legal relation‘ lies not between
persons as such but between ‗the behaviour of two individuals as defined by legal norms‘, i.e. as content of legal
norms.cxl

Kelsen speaks of ‗the state‘ in a broad and a narrow sense.cxli The state in the broad sense is defined by territory and
population. If one‘s eye is on human behaviour, one finds a range of legal orders. In some, general legal norms are
created by a central legislative organ, so that the legal order may be called ‗relatively centralised‘. The idea of its
centralisation refers only to its sphere of validity: for it may be valid over fragmented territory or differently for different
sectors of the population (e.g. as to ‗language, religion, race, sex or profession‘), or not effective uniformly. Such a legal
order is a ‗state‘. In ‗the primitive pre-state order and the super-state order of general inter-[292]national law‘, however,
general legal norms are created through custom. Thus these legal orders are ‗relatively decentralised‘ and should not be
called states. Here, Kelsen adopts the idea of ‗the state‘ in international law.

The narrow sense is taken from state legal orders, as ‗the bureaucratic machinery of officials, headed by the government‘
(i.e. the executive power). This may be seen as a ‗partial legal order‘ within the total legal order. Thus one may speak of
the total legal order exercising ‗direct state administration‘, which is to say jurisdiction, and the executive ‗indirect state
administration‘, which is essentially, as conformity with the former‘s law, a mode of transaction. Here Kelsen
acknowledges the interventions by the modern state (in the narrow sense) in the ‗private‘ sphere, as well as the
bureaucratisation of both public and private administration.

‗The state‘ in either sense, however, must be seen as the behaviour of real individuals. Consequently, rights and duties
‗of the state‘ are to be understood as rights and duties of officials. Since they are officials only as persons acting with
legal authority, every state is by definition ‗governed by law‘, i.e. is a Rechtsstaat. Therefore the expression Rechtsstaat is
better confined to those states that may be described as also committed to the ideas of democracy and legal security.

In traditional theory, just as the Christian religion presents ‗God‘ as both creator-ruler and immanent in the world, the
state has ‗two sides‘ and is ‗self-obligating‘: that is, it appears on one side as personified author of the legal order, on the
other as a legal subject, obligated by the legal order. With the decline of ‗a religious-metaphysical justification of the
state‘, this theory, that of the Rechtsstaat, performs the inestimable ideological service of presenting the state‘s self-
justification through law. One of the pure theory‘s main contributions, in Kelsen‘s eyes, is to have unmasked this
ideology.

One reason for Kelsen to understand ‗the state‘ primarily under its international-law concept is that this permits him to
identify the state with the legal order, independently of the concept of the state in the narrow sense, which attaches to
the public-law aspect of the legal order. Indeed, it permits him radically to relativise the distinction between public and
private law.

Traditional theory of the Romanist legal systems divides the legal order into ‗public‘ and ‗private‘ law‘ (the Common
Law systems too segregate ‗public‘ law). Kelsen wants to relativise the distinction. At the least, he holds, it is made on
different criteria for different purposes.cxlii However, he goes much further. As with ‗the state‘ in the narrow sense, a
corporation may be seen a partial legal order within the total legal order.cxliii Indeed, all individuals appear as ‗organs‘
within the total legal order, in that they are ‗authorised‘ to create law, at least by making contracts. Traditional concepts
such as ‗capacity‘, ‗competence‘ and ‗jurisdiction‘ hamper one‘s ability to see that the scope of authorisation includes not
only legislation and adjudication but also the exercise of rights and the formation of contracts and treaties. Whether an
individual is to be characterised as a ‗legal organ‘ in all law-creating activities or only, according to division of labour, in
some (e.g. as an official) is [293] for Kelsen a moot point.cxliv The main thing is that all such law-creation falls within
the legal order.

Thus the pure theory ‗relativises the contrast between private and public law, which traditional legal science
absolutises—changes it from an extra-systemic difference, i.e. a difference between law and nonlaw, between law and
state, to an intra-systemic one.‘ And in this the pure theory shows itself once again to be ‗a true science‘ by dissolving the
ideology involved in the differentiation of public and private law, an ideology that serves either to release government
from legal constraints or to create ‗the idea that the realm of political domination is restricted to public law, i.e. primarily
to constitutional and administrative law, but entirely excluded from private law‘. The latter view creates the illusion that
private relations, in the capitalist market, have, in their autonomy, an intrinsic relation to democracy; whereas in
capitalism not only norms of private relations but even general norms may be autocratic as easily as democratic.cxlv
As one would now expect, for Kelsen rights and duties derive exclusively from general norms and are themselves
individual norms, considered in relation to the subject to whose behaviour the general and individual norms apply.
Rights are ‗reflex rights‘, i.e. correlative to an obligation (the idea that rights have priority over duties probably derives
from the idea of natural rights): they are private rights as power, through lawsuit, to participate in the creation of an
individual norm ordering the imposition of a sanction for nonfulfilment of an obligation; political rights as power to
participate in law-creation, whether directly as member of a legislature or indirectly as voter, or in creation of a norm
repealing an unconstitutional norm; or rights as power following permission from a governmental authority. Rights do
not stem directly from individual interests, since the individual‘s right is only to obtain fulfilment of a state organ‘s duty
to apply a sanction. Moreover, the provision of such rights is not an essential function of law but pertains only to parts
of a capitalist legal order.cxlvi

In the spirit of limiting the ‗metaphysical bases‘ to what is strictly fundamental to a universal concept of law, such
concepts as ‗legal organ‘ and ‗reflex right‘ are characterised as not essential to the pure theory but ‗merely auxiliary‘—to
‗facilitate the description‘.cxlvii
Another of these is the concept ‗legal subject‘. As distinct from the human being, who is a construction of the natural
sciences, the person is a construction in legal science or ethics; if a human being has both a legal and a moral personality,
the human being as ‗biologico-physiological unit‘ is their substratum. The legal person (or subject) may be a physical or
‗natural‘ person, or a juristic or ‗artificial‘ person (such as a corporation or the state). These are not physical realities, nor
even creations of the law, but convenient personificatory metaphors through which legal science presents ‗the unity of a
complex of legal obligations and legal rights‘. The person is not different from that complex, any more than a tree
differs in substance from the sum of its parts. The artificiality of the juristic person is well known: but the physical or
‗natural‘ person is equally a construction of legal science as a component of the [294] legal order. It ‗has‘ rights and
obligations only figuratively: to present that image as real is an ideological move intended to privilege rights of private
property.cxlviii

The whole legal order, as effective in terms of individual behaviour, constitutes a ‗legal community
(Rechtsgemeinschaft)‘, to which in the last analysis authority is attributed and which is ‗the state‘ in the broad sense. In
this sense the legal order is a ‗state legal order (staatliche Rechtsordnung)‘.cxlix Thus to place primary emphasis on the
broad concept of the state may seem strange, even a device to de-emphasise the narrow concept, until one remembers
that through Kelsen‘s lifetime international peace was not obviously the normal situation. He is surely justified in taking
armies to be more significant than police.

Now, perhaps, the riddle of ‗objectivity‘ can be solved. Kelsen‘s primary focus is on human behaviour. When,
secondarily, he examines the meanings that human subjects attach to their behaviour, he finds that they understand their
behaviour as contents of oughts, in particular of legal norms. These norms, taken as a legal order, are also ‗the state‘ in
the broad sense. Human subjects then appear as ‗organs‘ of the state. Thus, on one side human subjects are always-
already organs of the state, in which case they cannot be the ultimate authors of legal norms; while, on the other, the
state itself appears only as a point of imputation. This point of imputation remains ‗objective‘ in the sense of Kelsen‘s
first major work. Consequently, its organs are endowed with that objectivity and communicate it to the legal norms that
they make. The authors of legal norms do not appear as subjects whose meanings can be criticised within normative
science.

STATE AND INTERNATIONAL LAW

Public international law falls within Kelsen‘s definition of law. It is an order of norms: a basic norm establishes the
customary behaviour of states as a law-creating fact; from custom arise norms regulating the behaviour of states in
general. One of these norms is pacta sunt servanda (agreements shall be kept to), according to which treaties are made.
Some treaties set up international organisations, such as the International Court, which issue further norms. Thus there
is a hierarchy of norms. The norms are coercive, in that breach is by and large visited with a sanction, whether reprisal or
war. Since the bellum iustum (just war) principle is universally accepted through treaty, war conforming to that principle
is a sanction.cl

To say that international law authorises or obligates states means that it authorises or obligates individuals indirectly,
through the state legal order—just as that order authorises or obligates individuals directly through the partial legal order
which is a corporation. The international legal norm is however ‗incomplete‘ in that it specifies only the authorisation or
obligation, leaving to the state legal order identification of the individual to carry it out; that done, the individual‘s
behaviour is attributed to the state, as the state‘s [295] behaviour. In the same way, a state commits an international
delict when it authorises or obligates an individual to do something in contravention of international law. That sanctions
are exerted against all members of the state, even if they were not involved in the delict, shows that state members are
collectively and absolutely liable for international delicts. There is however a tendency for international law to obligate
individuals directly, such as war criminals. In these exceptional cases, collective and absolute liability gives way to
individual liability with fault.cli

Kelsen insists on ‗the epistemological postulate: to understand all law in one system—that is, from one and the same
standpoint—as one closed whole‘. This postulate excludes a dualist view of the relationship between state and
international legal order. It permits only the two monist views: either that international law is ‗a legal order delegated by,
and therefore included in, the state legal order‘ or that it is ‗a total legal order comprising all state legal orders as partial
orders, and superior to all of them‘.clii As late as 1941, Kelsen believed that this entailed the primacy of international
law, to form with the state legal orders ‗one uniform, universal legal system‘. ‗As it is the task of natural science to
describe its object—reality—in one system of laws of nature, so it is the task of jurisprudence to comprehend all human
law in one system of rules of law.‘cliii He had not yet distinguished clearly between legal norm and legal proposition; if
the legal proposition is formulated in terms independent of its subject matter, unity of theory does not entail unity of
subject matter.cliv However, international law has never been so effective and by the end of World War II Kelsen
preferred the more realistic position that the alternative monistic views are equal in the eyes of science. Yet, politically,
he maintained the inter-war theme of ‗peace through law‘ and a frank distaste for the state-centred outlook.clv

THE BASIC NORM

Whether norms are ordered through logical or legal validity, Kelsen believes, the order must have some ‗basis (Grund)‘.
If the separation of ‗is‘ and ‗ought‘ is to be maintained, that basis or ground can only be a norm, a ‗basic norm
(Grundnorm)‘.

Kelsen presents the basic norm of a positive legal order by contrasting two situations. In one situation, a robber
demands money from me. If I ask why I ought to hand my money over, no further reason can be found. The meaning
of the robber‘s act of will is merely subjective. In the second situation, a tax official demands money from me. If I ask
why I ought to hand my money over, the official refers to a regulation. If I ask why I ought to obey the regulation, the
official refers to a statute. If I ask why I ought to obey the statute, the (patient) official refers to the constitution. If I ask
why I ought to obey the constitution, the official might be able to refer to an earlier constitution on whose authority the
present constitution was created. Kelsen characterises that earlier constitution or, if none, the present constitution as the
‗historically first [296] constitution‘, created by custom or revolution. The official‘s resources end with the historically
first constitution—but I can still ask why I ought to obey it.

Kelsen proposes that the jurist—the legal scientistclvi—should ‗presuppose‘, as the meaning of a juristic act of thought,
a norm prescribing that the historically first constitution ought to be obeyed: ‗One ought to obey the prescriptions of
the historically first constitution‘. Or, more fully: ‗Coercion ought to be exerted under the conditions and in the manner
prescribed by the by and large effective constitution and by the by and large effective general and individual norms
created according to the constitution‘. That is: that constitution is to be understood in legal science as the objective
meaning of the originating custom or act of will.

This ‗basic‘ norm does not actually exist: it is only presupposed in juristic thinking as the ‗reason for the validity‘ of the
order. Kelsen specifies it, in Kantian terms, as a transcendental-logical presupposition—or, a constitution ‗in a
transcendental-logical sense‘—that is, not a proposition describing law but a rational condition for constructing
propositions describing law.clvii
Nonetheless, for the case of a particular legal order, the particular basic norm refers to a real constitution. The acid test
of the concept is a revolution: if the revolution succeeds, in the sense that the new constitution and the norms made or
adopted under it are by and large effective, the jurist presupposes a new basic norm.
Nor does Kelsen claim that the concept is original: it ‗merely makes conscious what most legal scientists do, at least
unconsciously‘ (i.e. when they have not sufficiently clarified their premisses), when they are not being behaviourists or
iusnaturalists.clviii However, the presupposition is not a moral recognition. The legal order, which is also a state, is
differentiated thereby from a gang of robbers, but the criterion is legality—not justice, as with Augustine.clix
The presupposition of a basic norm plays a double role. On one hand, it is the condition upon which science can
understand some oughts as constituting an order, hence as norms—whether legal or moral. On the other, it is the
condition on which legal science can understand the meanings of some acts of will as objective, i.e. as legal norms.

It doesn‘t work. Although a basic norm is a scientific construct, the meaning of an act of thought, the thought is of a
norm. And one can still ask, in thought, what is the basis of that norm‘s authority. If the answer is, a still more basic
norm, the question can be asked of that norm too. Thus, presupposing a basic norm, which was intended to tie off the
infinite regress of questions about authorisation, merely repeats the regress. Moreover, since even a hypothetical norm is
conceived as the meaning of a hypothetical act of will, one finds oneself in a regress through ever less evidently human
wills.

It took Kelsen half a century to realise this. When he did, he reached for a solution as bold as that of the category of
‗ought‘ or the ‗basic norm‘ concept itself. He declared that the basic norm is not a hypothesis but a ‗fiction‘, though in a
special sense. In everyday parlance, a fiction is a proposition that, although false, is useful. Vaihinger, however, had
termed this a mere ‗semi-[297]fiction‘. In Vaihinger‘s ‗philosophy of ‗as if‘‘, a proposition is a ‗genuine fiction‘ if it is not
only false but also self-contradictory. Kelsen held, in these terms, that the basic norm is a ‗genuine fiction‘ because, in
addition to being a concept of something that does not in fact exist, it is self-contradictory in that it embodies an infinite
regress.clx

This doesn‘t work either. Vaihinger‘s concept is incoherent: what is logically invalid cannot be either true or false, indeed
is probably meaningless.

At one point, Kelsen held that a basic norm is presupposed by ‗the individual‘ in that the general population
presupposes a basic norm and that legal science only brings it ‗to consciousness‘.clxi He swiftly resiled from that
positionclxii and rightly so: it is an empirical assumption, not obviously true and Kelsen produced no evidence for it.

If successful, the ‗basic norm‘ concept is the keystone of Kelsen‘s pure theory and hence of his normative science of
law; otherwise, it is their Achilles‘ heel.clxiii The heel has disintegrated of its own accord. Kelsen‘s theory of law is left
without even a means to identify a norm as legal.

CONCLUSION

Surveying this wreckage, an initial question is whether it is worth continuing on the same philosophical basis. Although
the charge of `formalism‘ can be answered within Kelsen‘s philosophical framework, that framework itself is shaky. One
problem is that the construction of reality simultaneously in different ‗modes‘, so that a thing or person appears through
a cubist sort of combination of aspectsclxiv, contains no guarantee that a construction in one mode will have anything
to do with a construction in another—the notion of a ‗modally indifferent substratum‘ is obscure.clxv Other difficulties
lie in the rejection of practical reason. First, the more one regards reality as constructed rather than given, the less
ground there is for assuming that even the descriptive side of thought is rational. Second, there is much evidence for the
existence of practical rationality; indeed, it is hard to see the point of the concept of legal order, even dynamic legal
order, unless it is assumed that the creation of legal norms is rational to some extent. Third, Kelsen provides himself
with only two options—that practical reason exists and is absolute, and that the practical sphere is only emotional. It is
hard to see why he could not take the Weberian option of relative practical reason, corresponding to the relative
theoretical reason in which both thinkers‘ conception of science is grounded. A descriptive science of law, even as
Kelsen conceives it, can proceed whether or not there is also a prescriptive science of law and whether or not the norms
to be described have a relatively rational element.
Resolution of the philosophical difficulties might strengthen Kelsen‘s enterprise or require its abandonment or
transformation. Transformation would be a three-sided task: (1) to complete the theory‘s stance of critical independence,
(2) to reformulate the theory compatibly with that stance and (3), through the eyes of that reformulated version, to take
the existing [298] version as a rigorous example of the internal structure of legal ideology.

The scope of enquiry would bring iusnaturalism back into the range of objects of study. Kelsen ‗kicks off his theoretical
ball to see where it rolls and where it stops if it completes its course without hindrance‘, which effects a reduction ad
absurdum of legal positivismclxvi—especially in the collapse of the pure theory with the loss of the concept of a basic
norm. Yet, since that concept was meant to replace the foundations of both legal positivism and (if natural law existed)
iusnaturalism, Kelsen‘s end point tends to reveal that legal ideology embraces both legal positivism and
iusnaturalism.clxvii For a critical perspective should not simply dismiss erroneous beliefs as illusionsclxviii but study the
fact that people hold those beliefs and act in terms of them.

Yet the pure theory excludes the very issue of ideology in the strong sense of a kind of misdescription.clxix First,
Kelsen‘s interpretive understanding is confined to the scientific construction of norms in their form as oughts. Save in
the moment when he considered that a basic norm might be presupposed by the general population, Kelsen does not
consider descriptive subjective meanings on their own account. Knowledge of law is understood not as existing in the
consciousness of the general population but solely as a product of legal scientists, whose subjectivity is not clearly
emancipated from the alleged objectivity of legal authority. And, although occasionally Kelsen acknowledges judicial
cognition of norms, he is reluctant to consider how norms may be descriptive through their content—for example, in
describing a social relation as ‗a contract‘ or as ‗property‘. Here, even to an extent in Kelsen‘s own terms, normativism is
guilty of formalism.clxx

All the same, Kelsen raises three issues of basic relevance to ideology-critique, which many `critical‘ writers ignore: (1)
how to describe an ought without at the same time deciding whether to recognise it as to be followed, (2) how to
describe a legal ought without necessarily doing so in legal terms and (3) what is the role in legal ideology of the concept
of the natural legal person? The last, especially, requires further development in terms of class and gender, taking into
account Kelsen‘s own sociology from below.

A barrier to empirical enquiry, however, is Kelsen‘s lack of attention to language.clxxi This inattention is permitted by
his distinction between an act of will and its mode of expression, but that makes the nature of an act of will still more
obscure. All the same, so far as claims that language is all are coupled with attention only to official texts or to the
investigator‘s ‗ordinary‘ dialect and thus tend to service social control in the era of media saturationclxxii, this gap in
Kelsen might not be damning. Not as much, at least, as the tendency of the exclusion of practical reason to preserve
dominant values from rational criticism.

Accordingly, it seems worth pursuing Kelsen‘s work on description—both in a neo-Kantian framework, such as
Weber‘s, and in other frameworks into which his ideas can be translated. The legal proposition needs to be translated
from the refractive into the interpretive mode. The law of law does not fit all of Kelsen‘s kinds of legal norm in any case
and appears to be a misguided attempt to find an analogy of the reflective mode, on the assumption that legal norms are
as objective as physical things (‗social facts‘, Durkheim said). Whether anything like the law of law would be required if
the legal proposition were to [299] become interpretive may be doubted. And, with the passage from refraction to
interpretation, it may no longer be necessary to seek a foundation such as a basic norm.

There remains Kelsen‘s ‗will‘ theory of norms. If one acknowledges as empirically weak Kelsen‘s assertion that legal
norms never occur singly and if one were then to misunderstand his ‗will‘ theory in the politically absolutist terms of
most legal science—which Kelsen more than anyone sought to combat—his concept of a legal norm would appear
close to that in the Nazism of Schmitt.clxxiii But the pure theory comes close to being a set of independent statements
about the nature of law, considered as a social belief. If one describes that belief with such independence, one‘s later
valuations might have room to acknowledge that, although every kind of justice may have been accomplished through
law, so has every type of atrocity. Seen from the banks of the Rhine, this bitter paradox might appear to lie not between
the form and certain contents of law but within the form itself—to which Kelsen‘s work is currently our principal guide.
NOTES AND REFERENCES

1 R.A. M?tall, Hans Kelsen: Leben und Werk [Hans Kelsen: Life and Work] (1969), hereafter ‗M?tall, Kelsen‘, pp. 62-3,
70-2. All information about Kelsen‘s life is taken from this biography by a pupil and long-time assistant, with which
Kelsen co-operated closely. It contains a full bibliography of works by and on Kelsen at pp. 122-216; supplemented in
A.J. Merkl et al. (eds.), Festschrift f?r Hans Kelsen zum 90. Geburtstag (1971), pp. 325-6. In 1933, because his French
was better than his English, Kelsen preferred an invitation to work in Geneva to invitations from the London School of
Economics (obtained by Laski and Kelsen‘s former pupil Lauterpacht) and the New School for Social Research, the
‗exile university‘ in the USA: M?tall, Kelsen, pp. 63-4.
1 C. Varga, The Place of Law in Luk?cs‘ World Concept (1985), pp. 136-7.
1 See e.g. Hans Kelsen-Institut, Der Einfluss der Reinen Rechtslehre auf die Rechtstheorie in verschiendenen L?ndern
[The Pure Theory‘s Influence on Legal Theory in Various Countries] (1978).
1 E.g. by C. Norris, ‗Law, Deconstruction, and the Resistance to Theory‘ (1988) 15 Journal of Law and Society pp. 166-
87 at 182. That Norris comes out of literary theory indicates how orthodox this impression has become.
1 G. Gurvitch, Sociology of Law (1947), p. 5.
1 H.L.A. Hart, ‗Kelsen‘s Doctrine of the Unity of Law‘ (1968) in his Essays in Jurisprudence and Philosophy (1983), pp.
309-42 at 313. The charge was laid early: among Kelsen‘s Austro-Marxist friends, by Max Adler and Karl Renner (the
latter‘s work can be seen as an alternative): T. Bottomore and P. Goode (eds.), Austro-Marxism (1978), p. 18. Among
the ‗legal realist‘ tendency, Holmes was mightily impressed after meeting Kelsen and wrote so to Laski: O.W. Holmes
Jr., Holmes-Laski Letters (1953), p. 1376. (Certainly Kelsen was a strong character, once responding so powerfully to a
remark by Hart that the latter, on his own account, ‗fell over backwards in my chair‘: H.L.A. Hart, ‗Kelsen Visited‘
(1963) in his Essays in Jurisprudence and Philosophy, op. cit., pp. 286-308 at 287.) Yet Laski (echoing Holmes‘ most
famous phrase) was to call the pure theory ‗an exercise in logic and not in life‘ and to pile Kelsen among ‗the veterans of
an earlier age‘ that knew not sociology: H.J. Laski, A Grammar of Politics (1925, 5th edn. 1948), p. vi. Pound similarly
acknowledged Kelsen‘s eminence, assisted him in exile and deplored his unreality: R. Pound, ‗Fifty Years of
Jurisprudence‘, part III, (1937-8) 51 Harvard Law Rev. pp. 444-72 at 449; cp. ‗Jurisprudence‘ in the [300] Encyclopaedia
of the Social Sciences (1930-5), vol. 8, pp. 477-92 at 484. To Pashukanis, who understood Kelsen‘s philosophical
standpoint better than most, Kelsen‘s theory of law ‗makes not the slightest attempt to analyse law, the legal form, as a
historical form, for it has absolutely no intention of fathoming reality‘ and is therefore ‗a waste of time‘: E.B. Pashukanis,
Law and Marxism: a General Theory (1924; tr. B. Einhorn, 1978), pp. 52-3. Today, the accusation continues. Patrons of
Twining‘s ‗Great Juristic Bazaar‘ find a large, empty, whitewashed space announced as ‗The One True Legal Science‘, to
which there is ‗No entry without Purification‘: W. Twining, ‗The Great Juristic Bazaar‘ (1978) 14 Journal of the Society
of Public Teachers of Law (n.s.) pp. 185-200 at 194. J.W. Harris accuses Kelsen of conceiving of a ‗pure norm‘: Law and
Legal Science (1979), pp. 34-5. See also J. Stone, Legal System and Lawyers‘ Reasonings (1964), ch. 3; Kelsen replied in
‗Professor Stone and the Pure Theory of Law‘ (1965) 17 Stanford Law Rev. pp. 1128-57. Kelsen‘s replies to critics were
often long.
1 ‗bl?deste‘: reported by H. Klecatsky in Hans Kelsen-Institut, Hans Kelsen zum Gedenken [Remembering Hans
Kelsen] (1974), pp. 69-70.
1 (1981) 138 Revue Internationale de Philosophie (‗Kelsen et le Positivisme Juridique [Kelsen and Legal Positivism]‘);
(1986) 9 Cahiers de Philosophie Politique et Juridique (‗La Philosophie du Droit de Hans Kelsen [Hans Kelsen‘s
Philosophy of Law]‘); R. Tur and W. Twining (eds.), Essays on Kelsen (1986). The following have not been seen: (1984)
Rechtstheorie, Beihefte 5 and 6; S.L. Paulson and R. Walter (eds), Untersuchungnen zur Reinen Rechtslehre [Studies on
the Pure Theory of Law] (1986); A. Carrino, Kelsen e il Problema della Scienza Giuridica [Kelsen and the Problem of
Legal Science] (1987); W. Krawietz and O. Weinberger (eds), Reine Rechtslehre im Spiegel ihrer Fortsetzer und Kritiker
[Pure Theory of Law in the Mirror of its Continuators and Critics] (1988); L. Gianformaggio (ed.), Hans Kelsen‘s
Theory: a Diachronic Point of View (forthcoming). I have had to neglect almost all of the large literature on Kelsen in
Italian and Spanish.
1 Even its core, the pure theory, has been surveyed at book length in English only once: W. Ebenstein, The Pure Theory
of Law (1945, reissued 1969). This book contains many valuable reflections for which there is not space here. The only
other book in English on Kelsen does not attempt a general exposition and as critique is very weak: R. Moore, Legal
Norms and Legal Science: a Critical Study of Kelsen‘s Pure Theory of Law (1978); see my review, (1980) 43 Modern
Law Rev. 727-9. Like Ebenstein‘s book, the existing article-length surveys in English, though good in their time, are out
of date: H. Lauterpacht, ‗Kelsen‘s Pure Science of Law‘ in W.I. Jennings (ed.), Modern Theories of Law (1933), pp. 105-
38; C.H. Wilson, ‗The Basis of Kelsen‘s Theory of Law‘ (1934) 1 Politica pp. 54-82. Kelsen himself provides a good,
though now dated, survey: ‗The Pure Theory of Law. Its Method and Fundamental Concepts‘, tr. C.H. Wilson, (1934)
50 Law Quarterly Rev. pp. 474-98; (1935) 51 Law Quarterly Rev. pp. 517-35; cp. ‗The Function of the Pure Theory of
Law‘ in A. Reppy (ed.), Law: a Century of Progress 1835-1935 (1937), vol. 2, pp. 231-41; ‗On the Pure Theory of Law‘
(1966) 1 Israel Law Rev. pp. 1-7. Some aspects of the pure theory are discussed in J. Lenoble and F. Ost, Droit, Mythe
et Raison [Law, Myth and Reason] (1980), pp. 467-546; M. van de Kerchove and F. Ost, Le Systeme Juridique entre
Ordre et Desordre [Legal Systems—between Order and Disorder] (1988); D. Beyleveld and R. Brownsword, Law as a
Moral Judgment (1986), ch. 6; also `Normative Positivism: the Mirage of the Middle-Way‘ (1989) 9 Oxford J. of Legal
Studies 463-512. The best textbook account is in Lord Lloyd of Hampstead and M.D.A. Freeman, Introduction to
Jurisprudence (5th edn. 1985), ch. 5.
1 In referring to Kelsen‘s major works, the following abbreviations will be used:
ATN—Allgemeine Theorie der Normen [General Theory of Norms] (1979) - an index is available separately (1989); tr.
M. Hartney, General Theory of Norms (forthcoming). A draft of the first chapter was published in 1965 and is
translated by P. Heath as ‗On the Concept of Norm‘ in Kelsen, Essays in Legal and Moral Philosophy, sel. O.
Weinberger (1973), pp. 216-27.
CTL—The Communist Theory of Law (1955). Mostly a critique of the collection Soviet Legal Philosophy, tr. H. Babb
(1951).
FC—‗The Function of a Constitution‘ (1964), tr. I. Stewart in Tur and Twining, op. cit., n. 8, pp. 109-19. Also in Lloyd
and Freeman, op. cit, n. 9, pp. 379-85; the text in the Tur and Twining volume will be cited here. This version of the
translation supersedes that in [1980] [301] Juridical Rev. pp. 214-24, except that the latter has notes on variations
between the two versions of the German text. Parts of the later German text are incorporated in ATN, pp. 205-8.
GTLS—General Theory of Law and State (tr. A. Wedberg 1945, reissued 1961). The original German text has not been
published.
HPS—Hauptprobleme der Staatsrechtslehre entwickelt aus der Lehre vom Rechtssatze [Major Problems in Theory of
the Law of the State, Approached from Theory of the Legal Statement] (1911; 2nd edn. 1923, reissued 1960).
PTL—Pure Theory of Law (1967 - translation by M. Knight of RR2). The title is correct on the titlepage; the addition of
‗The‘ on the cover of the paperback edition (1970) is unexplained.
RR1—Reine Rechtslehre: Einleitung in die Rechtswissenschaftliche Problematik [Pure Theory of Law: Introduction to
the Problematic of Legal Science] (1st edn. 1934); tr. B.L. and S.L. Paulson, Introduction to the Problems of Legal
Theory (forthcoming). The French translation, Th?orie Pure du Droit (1953), tr. H. Th?venaz, is an amplified text,
intermediate between RR1 and RR2; a second edition of the translation (1988) distinguishes Kelsen‘s amplifications and
adds an essay by M. van de Kerchove on Kelsen‘s influence in francophonic Europe and a bibliography of works in
French on Kelsen.
RR2—Reine Rechtslehre (2nd edn. 1960—tr. as PTL).
WIJ—What is Justice? Justice, Law, and Politics in the Mirror of Science. Collected Essays (1957).
WRS—H. Kelsen, A. Merkl and A. Verdross, Die Wiener rechtstheoretische Schule [The Vienna School of Legal
Theory], ed. H. Klecatsky et al. (1968, in 2 vols).
The Kelsen bibliographies in GTLS and WRS are superseded by that in M?tall, Kelsen and its supplement; then by that
in (not seen) R. Walter, Hans Kelsen (1985). Of Kelsen‘s main books, GTLS and RR2/PTL in particular tend to repeat
each other: in referencing, preference will be given to ATN because it is a final statement, citing corresponding passages
in FC since it is available in English; then to PTL as the last overall statement of the pure theory; and then to GTLS
where it covers a point more fully than PTL. In no sense, however, are the references intended to be comprehensive. In
quotations from American texts, spelling has been anglicised.
1 One inferior translation is that of RR2 as PTL, which, though the translator records that the translation was ‗carefully
checked by the author‘ (PTL, p. vi), flattens philosophical nuances and omits many footnotes helpful on points of detail
and for locating the book in contemporary debate. Where translation and original differ, it is impossible to tell what
Kelsen intended: e.g., the apparently handy definition of law in PTL (p. 320) does not clearly relate to the corresponding
text in RR2 (p. 321).
1 See M?tall, Kelsen.
1 See P. de Visscher, ‗Observations sur la Contribution de Hans Kelsen au Droit International Positif [Observations on
Hans Kelsen‘s Contribution to Positive International Law]‘ (1981) 138 Revue Internationale de Philosophie pp. 530-8.
1 Its membership is in any case contested—M?tall finds WRS unrepresentative and holds that the pure theory of law is
quite different from the work of the School: R.A. M?tall, ‗Hans Kelsen und seine Wiener Schule der Rechtstheorie
[Hans Kelsen and his Vienna School of Legal Theory]‘ in Hans Kelsen-Institut, Hans Kelsen zum Gedenken (1974), pp.
15-25 at 15-16.
1 HPS. In the Germanic universities the higher doctorate, or Habilitation, qualifies for an academic career.
1 PTL, p. 1, cp. 30-3; Society and Nature (1943).
1 It suited Einstein, for one: P.A. Schilpp (ed.), Albert Einstein: Philosopher-Scientist (1949, 1969).
1 RR1, p. iii; reproduced in RR2, p. iii, but not in PTL. See also PTL, p. 72. See, further, H. Klenner, ‗Kelsens Kant
[Kelsen‘s Kant]‘ (1981) 138 Revue Internationale de Philosophie pp. 539-46.
1 PTL, p. 113.
1 Kelsen, ‗Natural Law Doctrine and Legal Positivism‘ (1929), tr. W.H. Kraus, in GTLS, pp. 389-446 at 444.
[302] 1 HPS, pp. v-xxiii (‗Vorrede zur zweiten Auflage [Preface to the Second Edition]‘); ‗Die Rechtswissenschaft als
Norm- oder Kulturwissenschaft [Legal Science as Science of Norms or Culture]‘ (1916) in WRS, pp. 37-93.
1 ‗The Pure Theory of Law‘, op. cit., n. 9, p. 481.
1 PTL, p. 94.
1 D. Hume, A Treatise of Human Nature (1739, 1888), pp. 469-70; ATN, p. 222.
1 Following Herbart: Kelsen, ‗Die Rechtswissenschaft als Norm- oder Kulturwissenschaft‘, op. cit., n. 21, p. 37. Kelsen
believes that Kant confuses the distinction in his theologically grounded conception of ‗practical reason‘ (ATN, pp. 62-
5) and in this regard prefers Hume to Kant: ATN, p. 68-9.
1 PTL, pp. 5-7; ATN, pp. 44-8. The difference between ‗is‘ and ‗ought‘ parallels that between reality and value: what is
understood in terms of ‗is‘ is real, what is understood in terms of ‗ought‘ is valuable if the ‗ought‘ is a norm (then the
norm is a value). To understand in terms of an ‗ought‘ that is a norm is to make an ‗objective‘ value judgement. To
understand in terms of an ‗ought‘ that is not a norm is to make a ‗subjective‘ value judgement: but this is really to
understand in terms of ‗is‘—to describe a relation between two things, the object valued and one‘s emotional state
concerning it (ATN, p. 47). Existentialism is classified as merely an extension of iusnaturalism, as yet another mingling
of ‗is‘ and ‗ought‘: PTL, pp. 253-4.
1 ATN, p. 6; PTL, p. 196, where the reference seems to refer to the essay ‗Das Problem der Gerechtigkeit [The Problem
of Justice]‘, appended to RR2, pp. 355-44 at 415ff.
1 ATN, pp. 131-4; as here, arguments of ATN that refer to norms can often be taken to hold generally for oughts.
Subsidiarily, Kelsen distinguishes between physiological will, e.g. by which one contracts an arm muscle, and mental will,
e.g. by which one directs an arm movement; his is/ought division requires this distinction, but he accepts that it is
difficult, perhaps uncompletable: ATN, p. 24. ‗Will‘ here will mean mental will.
1 ATN, pp. 103, 119-20; PTL, pp. 2-7.
1 RR2, pp. 4-5; PTL, p. 5; ATN, pp. 76-92. The specification is less necessary for the English word ‗ought‘ than for the
German, ‗Sollen‘, which is close to ‗must‘. However, in this context ‗must‘ is better reserved to translate Kelsen‘s
‗M?ssen‘, which he reserves for the necessities of causal connection. ‗Derogation‘ occurs where one norm removes the
validity of another: e.g., where a statute, or a section of a statute, is repealed. Strictly, a derogating norm is a ‗not-ought
(Nicht-Sollen)‘, but, since that is not feasible linguistically, one says e.g. ‗is hereby repealed‘: ATN, pp. 85, 87.
Derogation is distinct from desuetude or the replacement of one customary norm by another. Kelsen accepts the
existence of self-referring norms: ATN, p. 88.
1 ATN, pp. 119-20.
1 ATN, p. 131.
1 PTL, pp. 101-7.
1 PTL, p. 1. On the origins of the expression ‗methodological syncretism‘, see S.L. Paulson, ‗Kelsen on Legal
Interpretation‘ (1990) 10 Legal Studies 136-52 at 151. I am indebted to this article for some references to recent and
forthcoming publications.
1 E.g. CTL, pp. 98-9, 143.
1 R. Stammler, The Theory of Justice (1902, tr. I. Husik 1925, 1969). Stammler argued, against Marxism, that law is the
‗form‘ of society: Wirtschaft und Recht nach der materialistischen Geschichtsauffassung [Economy and Law According
to the Materialist Conception of History] (1896). The latter point is, of course, description of law, so that Stammler
actually confuses description and prescription: M. Weber, ‗R. Stammler‘s `Surmounting‘ of the Materialist Conception of
History‘ (1906), tr. M. Albrow (1975) 2 British Journal of Law and Society pp. 129-52; (1976) 3 British Journal of Law
and Society pp. 17-43.
1 Cp. K. Olivecrona, Law as Fact (1939).
1 ATN, pp. 58-60.
1 G. Simmel, Einleitung in die Moralwissenschaft [Introduction to Moral Science] (1892-3), vol. 1, pp. 8-9. Later,
Simmel preferred a category of ‗value (Wert)‘: The Philosophy of Money (1900, tr. T. Bottomore and D. Frisby 1978), p.
60. But Kelsen does not use this idea.
1 The adoption of an additional category has been obscured by Kelsen himself. Although he . [303] discusses the
borrowing from Simmel in an early work (HPS, pp. 7-8), and alludes to it later on, so far as I am aware it is referred to
explicitly again only in a work published after his death: ATN, p. 2 and n. 2 (on 221-2).
1 PTL, pp. 3-4 (where ‗Schema‘ is rendered as ‗scheme‘); RR2, pp. 3-4.
1 PTL, p. 86; cp. GTLS, pp. 162-4 (‗normative jurisprudence‘).
1 I.e., in more modern language, social or cultural anthropology.
1 GTLS, pp. 175-8; cp. PTL, pp. 75-6, 85-9.
1 ATN, pp. 18-19, 121-5; RR2, pp. 73-7. The translation of Rechtssatz as ‗rule of law in a descriptive sense‘ (GTLS, pp.
45ff; PTL, pp. 71ff) has misled. Translation of Solls?tze and Seins?tze as, respectively, ‗ought sentences‘ (and perhaps
‗deontic sentences‘) and ‗declarative sentences‘ (O. Weinberger, ‗Logic and the Pure Theory of Law‘, tr. A. Schramm, in
Tur and Twining, op. cit., n. 8, pp. 187-99 at 189, 199) is very awkward: for one thing, these are not necessarily
sentences. The distinction between norm and proposition is absent in early works, such as HPS, where Kelsen adheres
to conventional usage, in which ‗Rechtssatz‘ refers indeterminately to a legal norm and to the proposition describing it.
Rather than speak, respectively, of ‗genuine‘ and ‗nongenuine‘ S?tze, he consciously turns to using ‗Rechtssatz‘ to mean
only the descriptive proposition: ATN, pp. 121, 124-5. According to Kelsen, the new distinction originates in RR1 and is
first stated clearly in RR2: RR2, p. 83n.
1 ATN, p. 1.
1 PTL, p. 58.
1 As a European, Kelsen uses the Romanist expression ‗delict (German, Unrecht or Delikt)‘, which covers both criminal
and civil wrongs.
1 My example. Part of Kelsen‘s attack on iusnaturalism was to trace the development of the principle of causality and
the idea of a causal law out of primitive ideas of retribution, imputation and law: e.g. ‗Causality and Retribution‘ (1941)
in WIJ, pp. 303-23; Society and Nature (1943); ‗Causality and Imputation‘ (1950) in WIJ, pp. 324-49. Kelsen investigated
the idea of the soul as ground for ideas of retribution: ‗The Soul and the Law‘ (1937) 1 Rev. of Religion pp. 337-60.
Kelsen‘s critiques of ancient philosophy may still be of interest; his anthropological ideas remain attached to the category
of the ‗primitive‘. See further, (not seen) Kelsen, Die Illusion der Gerechtigkeit. Eine Kritische Untersuchung der
Sozialphilsophie Platons [The Illusion of Justice. A Critical Enquiry into Plato‘s Social Philosophy], ed. K. Ringhofer
and R. Walter (1985).
1 PTL, p. 92.
1 PTL, pp. 76-81, 87. While the translation of ‗Zurechnung‘ as ‗imputation‘ may be as good as any, rendering
‗Rechtsgesetz‘ as ‗legal law‘ (PTL, pp. 76ff) obscures the analogy with natural science. Kelsen makes the jump from
causality to imputation seem more plausible by arguing that the principle of causality derives historically from that of
imputation and its associate, the idea of retribution: PTL, pp. 82-5.
1 ATN, p. 20.
1 ATN, p. 18.
1 ATN, p. 20; PTL, pp. 85-6.
1 GTLS, pp. 162-78; PTL, pp. 101-7. Kelsen insisted on this especially against Ehrlich‘s conceptualisation of sociology
of law: GTLS, pp. 24-8; see also H. Rottleuthner, ‗Rechtstheoretische Probleme der Soziologie des Rechts. Die
Kontroverse zwischen Hans Kelsen und Eugen Ehrlich (1915/1917) [Legal-theoretical Problems of Sociology of Law.
The Controversy between Hans Kelsen and Eugen Ehrlich (1915/1917)]‘ in W. Krawietz and H. Schelsky (eds),
Rechtssystem und gesellschaftliche Basis bei Hans Kelsen (Rechtstheorie, Beiheft 5) (1984), pp. 521-51.
1 ATN, pp. 9, 145.
1 PTL, p. 73 (translation modified; cp. RR2, p. 75).
1 PTL, ch. 8. However, what is interpreted is not, as he says, a norm - for that would be to seek, absurdly, the meaning
of a meaning - but the act of will whose meaning the norm is: M. Troper, ‗Kelsen, la Th?orie de l‘Interpr?tation et la
Structure de l‘Ordre Juridique [Kelsen, Theory of Interpretation and the Structure of the Legal Order]‘ (1981) 138 Revue
Internationale de Philosophie pp. 518-29 at 520-1. The interpretation should, as Troper notes, be . [304] of a text (or
other sign) - but Kelsen distinguishes the act of will from its mode of expression. See, further, Kelsen, ‗On the Theory
of Interpretation‘, tr. B.L. and S.L. Paulson (1990) 10 Legal Studies 127-35; Paulson, op. cit., n. 34.
1 GTLS, p. 45.
1 PTL, p. 72.
1 PTL, p. 70 (translation modified; cp. RR2, p. 72). ‗This is the pure theory‘s position as against the so-called `egological‘
theory of law, which takes as the object of legal science not norms but human behaviour, and against the Marxist theory,
which conceives law as an aggregate of economic relations.‘ (RR2, p. 72n.). See also N. Duxbury, ‗Carlos Cossio and
Egological Legal Philosophy‘ (1989) 2 Ratio Juris 274-82.
1 A. Wilson, ‗Is Kelsen Really a Kantian?‘ in Tur and Twining, op. cit., n. 8, pp. 37-64.
1 Economy and Society (1922), tr. various (1968), pp. 4ff. Kelsen occasionally uses ‗objective‘ in this sense, as meaning
‗politically unbiased‘: e.g. CTL, pp. 96-7.
1 Differences in modes of description are ignored in Raz‘s distinctions among types of ‗committed‘ and ‗detached‘
statements: J. Raz, ‗The Purity of the Pure Theory‘ (1981) 138 Revue Internationale de Philosophie pp. 441-59 at 453-5
(also in Tur and Twining, op. cit., n. 8, pp. 79-97 at 90-3); see also R.J. Vernengo, ‗Kelsen‘s Rechtss?tze as Detached
Statements‘ in Tur and Twining, op. cit., n. 8, pp. 99-108.
1 Kant usually speaks of ‗metaphysics‘ as meaning erroneous belief in transcendence, but in this context he uses the
word with reference to universal postulates.
1 I. Kant, Metaphysical Foundations of Natural Science (1786, tr. J. Ellington 1970), pp. 5-6.
1 Cp. Weinberger, op. cit., n. 45, p. 188.
1 ‗The Pure Theory of Law and Analytical Jurisprudence‘ (1941) in WIJ, pp. 266-87 at 266.
1 ‗The Function of the Pure Theory of Law‘, op. cit., n. 9, pp. 231-2.
1 HPS, p. 92; ‗Zur Soziologie des Rechtes [On Sociology of Law]‘ (1912) 34 Archiv f?r Sozialwissenschaft und
Sozialpolitik pp. 601-14; GTLS, pp. 175-7.
1 ‗On the Pure Theory of Law‘, op. cit., n. 9, p. 4.
1 CTL, pp. 72-3. Although Kelsen might have been entitled to assume that the idea of ‗pure theory‘ was familiar in his
time, it was still necessary to state clearly his own understanding of the expression. Thus R. Stammler wrote of ‗pure
science or theory‘ in a related but importantly different sense: The Theory of Justice, op. cit., n. 36, p. 5.
1 ‗Was ist die Reine Rechtslehre? [What is the Pure Theory of Law?]‘ (1953) in WRS, pp. 611-29 at 620.
1 CTL, p. 193.
1 Cp. G. Luk?cs, ‗Reification and the Consciousness of the Proletariat‘ (1923) in his History and Class Consciousness, tr.
R. Livingstone (1971), pp. 83-222 at 108-9.
1 Kelsen, ‗Der Staatsbegriff der ‗verstehenden Soziologie‘ [The Concept of the State in ‗Interpretive Sociology‘]‘ (1921)
1 Zeitschrift fur Volkswirtschaft und Sozialpolitik pp. 104-19; ‗The Pure Theory of Law‘, op. cit., n. 9, pp. 477-8; GTLS,
pp. 162-78; PTL, pp. 2-3, 85-9, 101-7. See, further, N. Bobbio, ‗Max Weber e Hans Kelsen [Max Weber and Hans
Kelsen]‘ (1981) 8 Sociologia del Diritto 135-54; A. Carrino, ‗Weber e la Sociologia del Diritto nella Critica di Kelsen
[Weber and Sociology of Law in Kelsen‘s Critique]‘ (1987) 14 Sociologia del Diritto 17-32.
1 Economy and Society, op. cit., n. 63, p. 4.
1 PTL, p. 3.
1 PTL, pp. 7-8; RR2, p. 7. The argument is clumsily expressed in both texts.
1 GTLS, p. 178.
1 HPS, chs 1-2.
1 O. Ewald, ‗Die deutsche Philosophie im Jahre 1911 [German Philosophy in 1911]‘ (1912) 17 Kant-Studien pp. 382-
433 at 397-8; M?tall, Kelsen, pp. 7, 8, 15; H. Cohen, Ethik des reinen Willens [Ethic of Pure Will] (1904).
1 GTLS, pp. 99, 191-2.
1 ATN, pp. 1-3, 22.
1 PTL, p. 47.
1 GTLS, pp. 112-13; PTL, pp. 195-8. Kelsen does not confuse ‗legal order‘ in this sense with the [306] orderliness in
society that such an order might ensure when it is effective; nor does he assume that law always creates order (PTL, p.
38).
1 GTLS, p. 112. My example.
1 E.g. E. Ehrlich, ‗Judicial Freedom of Decision: its Principles and Objects‘ (1903) in various authors, Science of Legal
Method, tr. E. Bruncken and L.B. Register (1917, 1969) 47-84; Fundamental Principles of the Sociology of Law (1913;
tr. W.L. Moll, reissued 1975).
1 E.g. PTL, chs. 5 and 8. The behaviour in the particular case may be logically relatable to the behaviour envisaged
generally in the norm - but that is a subsidiary issue in the realm of ‗is‘, concerning the norm not as ‗ought‘ but as to its
‗content‘: ATN, pp. 26, 39. Logic does not apply even to imagined norms, since these are the imagined meaning of an
imagined act of will: ATN, pp. 187-8. Kelsen might have added that norms are usually imagined before they are called
into existence by a real act of will.
Strictly, however, there is not a norm that may or may not be legally valid: validity in this sense is the norm‘s ‗specific
intellectual (ideell) existence‘; strictly, ‗valid norm‘ is a pleonasm: ATN, pp. 22, 136-8. Not to be confused with ideal
(ideal) existence, in e.g. a Platonic sense, or with real, material existence: Kelsen in discussion reported in F.-M. Schm?lz
(ed.), Das Naturrecht in der politischen Theorie (1963), p. 124.
1 PTL, pp. 231, 234-5, 255.
1 PTL, pp. 267-78.
1 PTL, p. 279, cp. 70-1.
1 PTL, pp. 279-80; where ‗Rechtsform und Staatsform (Form of Law and Form of State)‘ (RR2, p. 283), is rendered as
‗Creation of Law and Form of Government‘.
1 PTL, pp. 9, 214, 226, 250. See also below, on ‗primitive‘ law and international law.
1 PTL, p. 227.
1 PTL, pp. 197-8.
1 PTL, p. 196.
1 ATN, pp. 6-7.
1 ATN, pp 201-2.
1 ATN, pp. 33-40. In characterising even moral orders as dynamic, Kelsen supposes that, just as legal norms are applied
by organs of the legal order, moral norms are applied by organs of the moral order: ATN, p. 42. The meaning of ‗organ‘
here is diffuse.
1 PTL, p. 222.
1 FC, p. 118. This sense of ‗constitution‘ seems to be Kelsen‘s scientifically acceptable substitute for ‗sources of law‘ in
the validation sense, after he rejected that expression because it could also refer to historical sources: PTL, p. 233.
1 PTL, pp. 234, 236.
1 Luk?cs, quoted in Varga, op. cit., n. 2, p. 148.
1 PTL, pp. 211-14. Here Kelsen takes as ‗typical‘ opponent his former pupil the Scandinavian ‗legal realist‘ Ross: RR2, p.
215n.
1 ATN, pp. 111-14; PTL, pp. 10-12, 211-14 (translation modified). PTL, p. 214, repetitively renders ‗Recht‘ as both ‗law‘
and ‗right‘, and ‗Macht‘ as both ‗power‘ and ‗might‘: cp. RR2, pp. 220-1. Kelsen has in mind the doctrine of desuetude
(desuetudo), known in the Romanist legal systems but not in the Common Law systems.
1 PTL, p. 27.
1 ATN, pp. 43, 108, 115-16; GTLS, pp. 60-1.
1 Criticised in GTLS, pp. 62-4. However, Austin‘s Benthamite definition of the sovereign, as the person or body that is
habitually obeyed and does not habitually obey any other, which is central to his definition of positive law, is also
sociological. Kelsen sympathises with this side of Austin and only finds his way of using it contradictory.
1 ATN, p. 112.
1 Hart‘s primary/secondary distinction is in the same direction as Kelsen‘s, but on a different criterion: H.L.A. Hart,
The Concept of Law (1961), ch. 5. Hart‘s ‗secondary rules‘ fall into Kelsen‘s class of ‗dependent norms‘, which in their
dependence on sanctioned norms are indirectly coercive: cp. PTL, pp. 54-8. For recent comparisons between Hart and
Kelsen, see Beyleveld and Brownsword, `Normative Positivism‘, op. cit., n. 9; van de Kerchove and Ost, op. cit., n. 9
(relating the work of Hart and Kelsen to systems theory).
1 FC, p. 111.
1 E.g. PTL, pp. 221, 255.
1 PTL, pp. 33-42.
1 ATN, pp. 115-16; cp. FC, p. 112.
1 PTL, pp. 59-69, 111-14.
1 ATN, pp. 92-9, 265-6; PTL, pp. 68-9 (translation modified; RR2, p. 71). This holds even for the ‗general principles of
law‘ that the International Court of Justice is authorised by its Statute to apply: ATN, pp. 99, 266.
1 PTL, pp. 33-42. PTL appears later to deny this extension (p. 111), but the denial is not in RR2 (p. 117); cp. PTL, p.
114.
1 His retirement lecture was ‗What is Justice‘ (1952) in WIJ, pp. 1-24. See also other essays in that book and ‗Das
Problem der Gerechtigkeit‘, op. cit., n. 27; J. Bjarup, ‗Kelsen‘s Theory of Law and Philosophy of Justice‘ in Tur and
Twining, op. cit., n. 8, pp. 273-303.
1 The Law of the United Nations (1950), p. xiii; cp. GTLS, p. 15; ‗The Law as a Specific Social Technique‘ (1941) in
WIJ, pp. 231-56.
1 See e.g. D. Held, Introduction to Critical Theory (1980), ch. 5.
1 Cp. A. Renaut, ‗Kelsen et le Probl?me de l‘Autonomie du Droit [Kelsen and the Problem of the Autonomy of Law]‘
(1986) 9 Cahiers de Philosophie Politique et Juridique pp. 7-21 at 21. Kelsen‘s position is also vulnerable to Foucault‘s
critique of technical rationality as a form of power in which the subject is denied and reconstructed - although the pure
theory may also be taken as useful to a Foucauldian perspective in identifying law as a technique of disciplinary power:
see esp. CTL, pp. 102-5.
1 ATN, p. 105. This refinement appears to be new in ATN.
1 ATN, pp. 195-6. The earlier view reeks, to him, of the old theory of legislation as merely the finding and promulgation
of natural laws (familiar in Common Law countries as the fiction that judges do not make law).
1 ATN, pp. 115, 349-50. Previously, Kelsen had rejected Gray‘s approach as supposing that only individual norms exist:
PTL, p. 255.
1 ATN, p. 196n.
1 ATN, pp. 199-200.
1 ‗Was ist die Reine Rechtslehre?‘, op. cit., n. 73, at 616-18 (this passage tr. in Weinberger, op. cit., n. 45, pp. 189-90).
Thus legal norms do not ‗teach‘, only legal propositions describing them: ATN, pp. 103-6. In Kelsen‘s terms, the
educative role of law, e.g. in anti-discrimination laws, would operate through description of legal norms, mainly in the
press.
1 ATN, p. 190. A reference to the basic norm as ‗the constitution in the legal-logical sense (die Verfassung im
rechtslogischen Sinne)‘ (RR2, p. 232; changed to ‗the ―constitution‖ in the transcendental-logical sense‘ in PTL, p. 226)
might be understood to refer to the logicality of legal propositions, including a basic norm. The occasional references to
‗the logical relation of norms‘ (PTL, p. 339) and ‗contradiction‘ between norms (PTL, pp. 206, 350, 352) are harder to
explain: since, however, they are made in passing, there is room to take them to refer infelicitously to the norm as
presented in the legal proposition. The alternative, and of course defensible, view has produced the impression that
Kelsen thought logic did apply to norms and, in the 1960s, changed his mind: e.g. Weinberger, op. cit., n. 45, pp. 192-4.
R.J. Vernengo valuably argues that Kelsen usually saw logic as having ‗an epistemological tinge according to the
traditional Kantian heritage‘ or later, ‗under the influence of phenomenology, an ontological foundation‘ and became
familiar with modern formal logic only ‗in his last years and then not without ambiguities‘: ‗About an Empowerment
Theory of Legal Norms and Some Related Problems‘ (1989) 2 Ratio Juris 299-303 at 300.
1 ATN, pp. 203-5. The third case echoes Holmes‘ definition of law as the ‗prophecies of what the courts will do in fact‘:
O.W. Holmes, ‗The Path of the Law‘ (1897) 10 Harvard Law Rev. pp. 457-78 at 461. But the echo is distorted: these
prophecies would be expressed in laws of law, not legal norms themselves; yet in any case such prophecy belongs to the
realm of legal advice, not scientific description: PTL, pp. 87-9; GTLS, pp. 165-8.
[307] 1 ATN, pp. 99-101.
1 PTL, p. 18.
1 ATN, pp. 101-3. See also papers by Harris, Paulson and Weyland in Tur and Twining, op. cit., n. 8.
1 ATN, pp. 81, 106-7; PTL, p. 245-50.
1 ATN, pp. 351-2.
1 ATN, pp. 25ff. Kelsen awkwardly conceives self-addressing as a relation between oneself as ‗ego‘ and as ‗alter ego‘:
ATN, pp. 23-4.
1 ATN, pp. 39-43, 191-3.
1 Cp. ATN, p. 37.
1 PTL, pp. 191-2.
1 ATN, p. 7; PTL, pp. 165-6 (translation modified: RR2, pp. 169-70), 169.
1 PTL, chs. 6 and 7; GTLS, pt. 2.
1 PTL, pp. 280-4; GTLS, pp. 201-7.
1 PTL, p. 177.
1 PTL, pp. 145-68, 256-62.
1 PTL, pp. 280-4 (translation modified: RR2, pp. 284-7). Kelsen actually writes ‗systematic‘ where he clearly means
‗systemic‘.
1 ATN, pp. 108-11; PTL, pp. 114-17, 125-45.
1 PTL, p. 169.
1 PTL, pp. 117, 168-91; GTLS, pp. 93-109, 377.
1 PTL, pp. 32, 35ff, 266-7, 284-319. Throughout PTL, ‗staatliche Rechtsordnung‘ is rendered as ‗national legal order‘—
which both dilutes the key thesis of the identity of (total) legal order and state, and implies that Kelsen na?vely assumes
that ‗state‘ and ‗nation‘ always coincide.
1 PTL, pp. 320-4.
1 PTL, pp. 324-8.
1 PTL, pp. 328-33; reading ‗state‘ instead of ‗national‘.
1 ‗The Pure Theory of Law and Analytical Jurisprudence‘, op. cit., n. 68, p. 287.
1 As Hart says, ‗we might as well attempt to deduce from the existence of the history of warfare or the science of
strategy that all wars are one or all armies are one‘: ‗Kelsen‘s Doctrine of the Unity of Law‘, op. cit., n. 6, p. 322.
1 PTL, pp. 328-47. Cp. GTLS, esp. p. 388; Peace Through Law (1944). The issue, of course, affects questions of
federalism.
1 The expression of the distinction here depends on the distinction between legal norm and legal proposition.
1 Kelsen‘s fairly early characterisation of the basic norm as a ‗minimum‘ of natural law (‗Natural Law Doctrine and Legal
Positivism‘, op. cit., n. 20, p. 437) cannot survive his later distinguishing between legal norm and legal proposition. What
applies to the distinction between international and local law also applies to issues of federalism.
1 Esp. FC; PTL, pp. 193-211 (translation modified), 223. When Kelsen expresses the difference between the two
situations by saying that in the robber‘s case ‗an evil will be inflicted‘ whereas in that of the tax official ‗an evil ought to
be inflicted‘ (PTL, p. 45), he anticipates Hart‘s ‗gunman situation‘ distinction between being obliged and having an
obligation: Hart, op. cit., n. 111, pp. 19ff, 80ff.
1 PTL, pp. 44-50; cp. Augustine, City of God, bk. 4, ch. 4. Hart appears to begin from a Weberian standpoint, yet Hart‘s
‗external point of view‘ applies only to values and not to description of what is to be valued, and from Kelsen‘s
standpoint Hart‘s ‗recognition‘ theory is vulnerable to Kelsen‘s much earlier criticisms of Bierling: Hart, The Concept of
Law, op. cit., n. 111, passim; PTL, p. 218n.; J. Raz, op. cit., n. 64.
1 FC, p. 117; ATN, pp. 206-7; cp. H. Vaihinger, The Philosophy of ‗As If‘ (1911; tr. C.K. Ogden, 2nd edn. 1935), pp.
97-100. Kelsen had been aware of Vaihinger‘s book and its conceptualisation of fictions since at least 1919: ‗Zur Theorie
der juristischen Fiktionen: mit besonderer Ber?cksichtigung von Vaihingers Philosophie des Als-ob [On the Theory of
Legal Fictions: with particular reference to Vaihinger‘s Philosophy of As-If]‘ (1919) in WRS, pp. 1215-41. The ‗fiction‘
version of the ‗basic norm‘ concept was first announced in discussion reported in Schm?lz, op. cit., n. 89, pp. 119-20.
The full argument is given in FC and ATN. It is presented only partially when it first appears in English: ‗On the Pure
Theory of Law‘, op. cit., n. 9, p. 6.
[308] 1 ‗Was ist ein Rechtsakt? [What is a Legal Act?]‘ (1952) in WRS, pp. 1381-93 at 1390-1.
1 PTL, p. 204n.
1 C. Martyniak, ‗Le Probl?me de l‘Unit? des Fondements de la Th?orie de Droit de Kelsen [The Problem of the Unity of
the Bases of Kelsen‘s Theory of Law]‘ (1937) 7 Archives de Philosophie du Droit et de Sociologie Juridique 166-90 at
185; compare H. Klenner, Rechtsleere [A Legal Void (an awful pun on Rechtslehre, legal theory)] (1972), p. 39.
1 Cp. N. Lavand, ‗Hans Kelsen ou le Cubisme [Hans Kelsen or Cubism]‘ (1986) 9 Cahiers de Philosophie Politique et
Juridique 95-114.
1 J. Wr?blewski, ‗Kelsen, the Is-Ought Dichotomy and Naturalistic Fallacy [sic]‘ (1981) 138 Revue Internationale de
Philosophie 508-17 at 515. I have suggested elsewhere a philosophical equivalent of paint and canvas: ‗Closure and the
Legal Norm: an Essay in Critique of Law‘ (1987) 50 Modern Law Rev. 908-33 at 916-22.
1 Varga, op. cit., n. 2, p. 137.
1 See, further, my ‗Kelsen and the Exegetical Tradition‘ in Tur and Twining, op. cit., n. 8, pp. 123-47; ‗Closure and the
Legal Norm‘, op. cit., n. 165; P. Amselek, ‗Kelsen et les Contradictions du Positivisme Juridique [Kelsen and the
Contradictions of Legal Positivism]‘ (1981) 138 Revue Internationale de Philosophie 460-73.
1 As does Pashukanis, op. cit., n. 6.
1 Thus, Kelsen‘s critique of Pashukanis does not take seriously Pashukanis‘s analyses of ‗legal fetishism‘: CTL, pp. 89-
111.
1 On the relation of the pure theory to Marxism, see generally the Hans Kelsen-Institut symposium Reine Rechtslehre
und marxistische Rechtstheorie [Pure Theory of Law and Marxist Theory of Law] (1978). Kelsen fell into the error of
understanding Marxism solely as the Eastern Marxism of economic determinism, whose capacity for critical legal theory
was very limited: CTL, especially p. vii. However, Kelsen‘s opposition to Marxism was not bigoted: his willingness to
take Marxist thinking seriously (e.g. ‗Allgemeine Rechtslehre im Lichte materialistischer Geschichtsauffassung [General
Theory of Law in the Light of the Materialist Conception of History]‘ (1931) 66 Archiv fur Sozialwissenschaft und
Sozialpolitik 449-521) nearly got him into an extermination camp.
1 Although occasionally he examines common modes of expression, he does so speculatively, in order to clarify his own
vocabulary; he does not treat such expressions as evidence of meaning, in the manner of ‗ordinary language‘ philosophy
or of semiotics (e.g. the discussion of ‗law‘, ‗Recht‘, etc. in PTL, pp. 30-1). The greater attention to language in his last
book is just painful: for one thing, his conception of linguistic meaning is wholly referential, with no grasp of
Wittgenstein‘s (or Bentham‘s) conception of meaning as use, though Wittgenstein is occasionally cited (ATN, pp. 24-32).
Indeed, his differentiation between an act of will or thought and a speech act may be a deliberate evasion of linguistic
philosophy. However, Kelsen‘s attention solely to logic does not, by itself, exclude the possibility of adding into his
theory an examination of legal norms as rhetoric.
1 Criticism that is merely negative tends to preserve the terms of that which it negates; to emancipate, criticism needs to
transform the subject matter of the critique.
1 See C. Schmitt, ‗The Leader Protects the Law‘ (1934), tr. I. Stewart (forthcoming in International J. of the Sociology of
Law).

* Senior Lecturer and Head, School of Law, Macquarie University, Sydney 2109.

This paper is the fourth in a series dealing with the work of theorists who have substantially influenced contemporary
understanding of law and society. The series will be of interest to both students and specialists.

[NOTE TO THIS TEXT: The present text is derived from my disk copy; the text printed in the Journal of Law and
Society incorporates some stylistic changes preferred by the publisher, which do not affect the meaning. Were I to
update the article, I would refer to the now published translations of Kelsen‘s Reine Rechtslehre (first edition) and
Allgemeine Theorie der Normen. I would translate ‗Verfassung im materiellen Sinne‘ as ‗constitution in the substantive
sense‘ (and not ‗in the material sense‘). I would also refer to a later article of mine on Kelsen: ‗Kelsen Tomorrow‘ (1998)
51 Current Legal Problems 181-204 (also at:: www.law.mq.edu.au/HTML/staff/istewart/istewart.htm). I.S. 10.02.02]
i R.A. M?tall, Hans Kelsen: Leben und Werk [Hans Kelsen: Life and Work] (1969), hereafter ‗M?tall, Kelsen‘, pp. 62-3,
70-2. All information about Kelsen‘s life is taken from this biography by a pupil and long-time assistant, with which
Kelsen co-operated closely. It contains a full bibliography of works by and on Kelsen at pp. 122-216; supplemented in
A.J. Merkl et al. (eds.), Festschrift f?r Hans Kelsen zum 90. Geburtstag (1971), pp. 325-6. In 1933, because his French
was better than his English, Kelsen preferred an invitation to work in Geneva to invitations from the London School of
Economics (obtained by Laski and Kelsen‘s former pupil Lauterpacht) and the New School for Social Research, the
‗exile university‘ in the USA: M?tall, Kelsen, pp. 63-4.
ii C. Varga, The Place of Law in Luk?cs‘ World Concept (1985), pp. 136-7.
iii See e.g. Hans Kelsen-Institut, Der Einfluss der Reinen Rechtslehre auf die Rechtstheorie in verschiendenen L?ndern
[The Pure Theory‘s Influence on Legal Theory in Various Countries] (1978).
iv E.g. by C. Norris, ‗Law, Deconstruction, and the Resistance to Theory‘ (1988) 15 Journal of Law and Society pp. 166-
87 at 182. That Norris comes out of literary theory indicates how orthodox this impression has become.
v G. Gurvitch, Sociology of Law (1947), p. 5.
vi H.L.A. Hart, ‗Kelsen‘s Doctrine of the Unity of Law‘ (1968) in his Essays in Jurisprudence and Philosophy (1983), pp.
309-42 at 313. The charge was laid early: among Kelsen‘s Austro-Marxist friends, by Max Adler and Karl Renner (the
latter‘s work can be seen as an alternative): T. Bottomore and P. Goode (eds.), Austro-Marxism (1978), p. 18. Among
the ‗legal realist‘ tendency, Holmes was mightily impressed after meeting Kelsen and wrote so to Laski: O.W. Holmes
Jr., Holmes-Laski Letters (1953), p. 1376. (Certainly Kelsen was a strong character, once responding so powerfully to a
remark by Hart that the latter, on his own account, ‗fell over backwards in my chair‘: H.L.A. Hart, ‗Kelsen Visited‘
(1963) in his Essays in Jurisprudence and Philosophy, op. cit., pp. 286-308 at 287.) Yet Laski (echoing Holmes‘ most
famous phrase) was to call the pure theory ‗an exercise in logic and not in life‘ and to pile Kelsen among ‗the veterans of
an earlier age‘ that knew not sociology: H.J. Laski, A Grammar of Politics (1925, 5th edn. 1948), p. vi. Pound similarly
acknowledged Kelsen‘s eminence, assisted him in exile and deplored his unreality: R. Pound, ‗Fifty Years of
Jurisprudence‘, part III, (1937-8) 51 Harvard Law Rev. pp. 444-72 at 449; cp. ‗Jurisprudence‘ in the [300] Encyclopaedia
of the Social Sciences (1930-5), vol. 8, pp. 477-92 at 484. To Pashukanis, who understood Kelsen‘s philosophical
standpoint better than most, Kelsen‘s theory of law ‗makes not the slightest attempt to analyse law, the legal form, as a
historical form, for it has absolutely no intention of fathoming reality‘ and is therefore ‗a waste of time‘: E.B. Pashukanis,
Law and Marxism: a General Theory (1924; tr. B. Einhorn, 1978), pp. 52-3. Today, the accusation continues. Patrons of
Twining‘s ‗Great Juristic Bazaar‘ find a large, empty, whitewashed space announced as ‗The One True Legal Science‘, to
which there is ‗No entry without Purification‘: W. Twining, ‗The Great Juristic Bazaar‘ (1978) 14 Journal of the Society
of Public Teachers of Law (n.s.) pp. 185-200 at 194. J.W. Harris accuses Kelsen of conceiving of a ‗pure norm‘: Law and
Legal Science (1979), pp. 34-5. See also J. Stone, Legal System and Lawyers‘ Reasonings (1964), ch. 3; Kelsen replied in
‗Professor Stone and the Pure Theory of Law‘ (1965) 17 Stanford Law Rev. pp. 1128-57. Kelsen‘s replies to critics were
often long.
vii ‗bl?deste‘: reported by H. Klecatsky in Hans Kelsen-Institut, Hans Kelsen zum Gedenken [Remembering Hans
Kelsen] (1974), pp. 69-70.
viii (1981) 138 Revue Internationale de Philosophie (‗Kelsen et le Positivisme Juridique [Kelsen and Legal Positivism]‘);
(1986) 9 Cahiers de Philosophie Politique et Juridique (‗La Philosophie du Droit de Hans Kelsen [Hans Kelsen‘s
Philosophy of Law]‘); R. Tur and W. Twining (eds.), Essays on Kelsen (1986). The following have not been seen: (1984)
Rechtstheorie, Beihefte 5 and 6; S.L. Paulson and R. Walter (eds), Untersuchungnen zur Reinen Rechtslehre [Studies on
the Pure Theory of Law] (1986); A. Carrino, Kelsen e il Problema della Scienza Giuridica [Kelsen and the Problem of
Legal Science] (1987); W. Krawietz and O. Weinberger (eds), Reine Rechtslehre im Spiegel ihrer Fortsetzer und Kritiker
[Pure Theory of Law in the Mirror of its Continuators and Critics] (1988); L. Gianformaggio (ed.), Hans Kelsen‘s
Theory: a Diachronic Point of View (forthcoming). I have had to neglect almost all of the large literature on Kelsen in
Italian and Spanish.
ix Even its core, the pure theory, has been surveyed at book length in English only once: W. Ebenstein, The Pure
Theory of Law (1945, reissued 1969). This book contains many valuable reflections for which there is not space here.
The only other book in English on Kelsen does not attempt a general exposition and as critique is very weak: R. Moore,
Legal Norms and Legal Science: a Critical Study of Kelsen‘s Pure Theory of Law (1978); see my review, (1980) 43
Modern Law Rev. 727-9. Like Ebenstein‘s book, the existing article-length surveys in English, though good in their time,
are out of date: H. Lauterpacht, ‗Kelsen‘s Pure Science of Law‘ in W.I. Jennings (ed.), Modern Theories of Law (1933),
pp. 105-38; C.H. Wilson, ‗The Basis of Kelsen‘s Theory of Law‘ (1934) 1 Politica pp. 54-82. Kelsen himself provides a
good, though now dated, survey: ‗The Pure Theory of Law. Its Method and Fundamental Concepts‘, tr. C.H. Wilson,
(1934) 50 Law Quarterly Rev. pp. 474-98; (1935) 51 Law Quarterly Rev. pp. 517-35; cp. ‗The Function of the Pure
Theory of Law‘ in A. Reppy (ed.), Law: a Century of Progress 1835-1935 (1937), vol. 2, pp. 231-41; ‗On the Pure Theory
of Law‘ (1966) 1 Israel Law Rev. pp. 1-7. Some aspects of the pure theory are discussed in J. Lenoble and F. Ost, Droit,
Mythe et Raison [Law, Myth and Reason] (1980), pp. 467-546; M. van de Kerchove and F. Ost, Le Systeme Juridique
entre Ordre et Desordre [Legal Systems—between Order and Disorder] (1988); D. Beyleveld and R. Brownsword, Law
as a Moral Judgment (1986), ch. 6; also `Normative Positivism: the Mirage of the Middle-Way‘ (1989) 9 Oxford J. of
Legal Studies 463-512. The best textbook account is in Lord Lloyd of Hampstead and M.D.A. Freeman, Introduction to
Jurisprudence (5th edn. 1985), ch. 5.
x In referring to Kelsen‘s major works, the following abbreviations will be used:
ATN—Allgemeine Theorie der Normen [General Theory of Norms] (1979) - an index is available separately (1989); tr.
M. Hartney, General Theory of Norms (forthcoming). A draft of the first chapter was published in 1965 and is
translated by P. Heath as ‗On the Concept of Norm‘ in Kelsen, Essays in Legal and Moral Philosophy, sel. O.
Weinberger (1973), pp. 216-27.
CTL—The Communist Theory of Law (1955). Mostly a critique of the collection Soviet Legal Philosophy, tr. H. Babb
(1951).
FC—‗The Function of a Constitution‘ (1964), tr. I. Stewart in Tur and Twining, op. cit., n. 8, pp. 109-19. Also in Lloyd
and Freeman, op. cit, n. 9, pp. 379-85; the text in the Tur and Twining volume will be cited here. This version of the
translation supersedes that in [1980] [301] Juridical Rev. pp. 214-24, except that the latter has notes on variations
between the two versions of the German text. Parts of the later German text are incorporated in ATN, pp. 205-8.
GTLS—General Theory of Law and State (tr. A. Wedberg 1945, reissued 1961). The original German text has not been
published.
HPS—Hauptprobleme der Staatsrechtslehre entwickelt aus der Lehre vom Rechtssatze [Major Problems in Theory of
the Law of the State, Approached from Theory of the Legal Statement] (1911; 2nd edn. 1923, reissued 1960).
PTL—Pure Theory of Law (1967 - translation by M. Knight of RR2). The title is correct on the titlepage; the addition of
‗The‘ on the cover of the paperback edition (1970) is unexplained.
RR1—Reine Rechtslehre: Einleitung in die Rechtswissenschaftliche Problematik [Pure Theory of Law: Introduction to
the Problematic of Legal Science] (1st edn. 1934); tr. B.L. and S.L. Paulson, Introduction to the Problems of Legal
Theory (forthcoming). The French translation, Th?orie Pure du Droit (1953), tr. H. Th?venaz, is an amplified text,
intermediate between RR1 and RR2; a second edition of the translation (1988) distinguishes Kelsen‘s amplifications and
adds an essay by M. van de Kerchove on Kelsen‘s influence in francophonic Europe and a bibliography of works in
French on Kelsen.
RR2—Reine Rechtslehre (2nd edn. 1960—tr. as PTL).
WIJ—What is Justice? Justice, Law, and Politics in the Mirror of Science. Collected Essays (1957).
WRS—H. Kelsen, A. Merkl and A. Verdross, Die Wiener rechtstheoretische Schule [The Vienna School of Legal
Theory], ed. H. Klecatsky et al. (1968, in 2 vols).
The Kelsen bibliographies in GTLS and WRS are superseded by that in M?tall, Kelsen and its supplement; then by that
in (not seen) R. Walter, Hans Kelsen (1985). Of Kelsen‘s main books, GTLS and RR2/PTL in particular tend to repeat
each other: in referencing, preference will be given to ATN because it is a final statement, citing corresponding passages
in FC since it is available in English; then to PTL as the last overall statement of the pure theory; and then to GTLS
where it covers a point more fully than PTL. In no sense, however, are the references intended to be comprehensive. In
quotations from American texts, spelling has been anglicised.
xi One inferior translation is that of RR2 as PTL, which, though the translator records that the translation was ‗carefully
checked by the author‘ (PTL, p. vi), flattens philosophical nuances and omits many footnotes helpful on points of detail
and for locating the book in contemporary debate. Where translation and original differ, it is impossible to tell what
Kelsen intended: e.g., the apparently handy definition of law in PTL (p. 320) does not clearly relate to the corresponding
text in RR2 (p. 321).
xii See M?tall, Kelsen.
xiii See P. de Visscher, ‗Observations sur la Contribution de Hans Kelsen au Droit International Positif [Observations
on Hans Kelsen‘s Contribution to Positive International Law]‘ (1981) 138 Revue Internationale de Philosophie pp. 530-
8.
xiv Its membership is in any case contested—M?tall finds WRS unrepresentative and holds that the pure theory of law is
quite different from the work of the School: R.A. M?tall, ‗Hans Kelsen und seine Wiener Schule der Rechtstheorie
[Hans Kelsen and his Vienna School of Legal Theory]‘ in Hans Kelsen-Institut, Hans Kelsen zum Gedenken (1974), pp.
15-25 at 15-16.
xv HPS. In the Germanic universities the higher doctorate, or Habilitation, qualifies for an academic career.
xvi PTL, p. 1, cp. 30-3; Society and Nature (1943).
xvii It suited Einstein, for one: P.A. Schilpp (ed.), Albert Einstein: Philosopher-Scientist (1949, 1969).
xviii RR1, p. iii; reproduced in RR2, p. iii, but not in PTL. See also PTL, p. 72. See, further, H. Klenner, ‗Kelsens Kant
[Kelsen‘s Kant]‘ (1981) 138 Revue Internationale de Philosophie pp. 539-46.
xix PTL, p. 113.
xx Kelsen, ‗Natural Law Doctrine and Legal Positivism‘ (1929), tr. W.H. Kraus, in GTLS, pp. 389-446 at 444.
[302] xxi HPS, pp. v-xxiii (‗Vorrede zur zweiten Auflage [Preface to the Second Edition]‘); ‗Die Rechtswissenschaft als
Norm- oder Kulturwissenschaft [Legal Science as Science of Norms or Culture]‘ (1916) in WRS, pp. 37-93.
xxii ‗The Pure Theory of Law‘, op. cit., n. 9, p. 481.
xxiii PTL, p. 94.
xxiv D. Hume, A Treatise of Human Nature (1739, 1888), pp. 469-70; ATN, p. 222.
xxv Following Herbart: Kelsen, ‗Die Rechtswissenschaft als Norm- oder Kulturwissenschaft‘, op. cit., n. 21, p. 37.
Kelsen believes that Kant confuses the distinction in his theologically grounded conception of ‗practical reason‘ (ATN,
pp. 62-5) and in this regard prefers Hume to Kant: ATN, p. 68-9.
xxvi PTL, pp. 5-7; ATN, pp. 44-8. The difference between ‗is‘ and ‗ought‘ parallels that between reality and value: what
is understood in terms of ‗is‘ is real, what is understood in terms of ‗ought‘ is valuable if the ‗ought‘ is a norm (then the
norm is a value). To understand in terms of an ‗ought‘ that is a norm is to make an ‗objective‘ value judgement. To
understand in terms of an ‗ought‘ that is not a norm is to make a ‗subjective‘ value judgement: but this is really to
understand in terms of ‗is‘—to describe a relation between two things, the object valued and one‘s emotional state
concerning it (ATN, p. 47). Existentialism is classified as merely an extension of iusnaturalism, as yet another mingling
of ‗is‘ and ‗ought‘: PTL, pp. 253-4.
xxvii ATN, p. 6; PTL, p. 196, where the reference seems to refer to the essay ‗Das Problem der Gerechtigkeit [The
Problem of Justice]‘, appended to RR2, pp. 355-44 at 415ff.
xxviii ATN, pp. 131-4; as here, arguments of ATN that refer to norms can often be taken to hold generally for oughts.
Subsidiarily, Kelsen distinguishes between physiological will, e.g. by which one contracts an arm muscle, and mental will,
e.g. by which one directs an arm movement; his is/ought division requires this distinction, but he accepts that it is
difficult, perhaps uncompletable: ATN, p. 24. ‗Will‘ here will mean mental will.
xxix ATN, pp. 103, 119-20; PTL, pp. 2-7.
xxx RR2, pp. 4-5; PTL, p. 5; ATN, pp. 76-92. The specification is less necessary for the English word ‗ought‘ than for
the German, ‗Sollen‘, which is close to ‗must‘. However, in this context ‗must‘ is better reserved to translate Kelsen‘s
‗M?ssen‘, which he reserves for the necessities of causal connection. ‗Derogation‘ occurs where one norm removes the
validity of another: e.g., where a statute, or a section of a statute, is repealed. Strictly, a derogating norm is a ‗not-ought
(Nicht-Sollen)‘, but, since that is not feasible linguistically, one says e.g. ‗is hereby repealed‘: ATN, pp. 85, 87.
Derogation is distinct from desuetude or the replacement of one customary norm by another. Kelsen accepts the
existence of self-referring norms: ATN, p. 88.
xxxi ATN, pp. 119-20.
xxxii ATN, p. 131.
xxxiii PTL, pp. 101-7.
xxxiv PTL, p. 1. On the origins of the expression ‗methodological syncretism‘, see S.L. Paulson, ‗Kelsen on Legal
Interpretation‘ (1990) 10 Legal Studies 136-52 at 151. I am indebted to this article for some references to recent and
forthcoming publications.
xxxv E.g. CTL, pp. 98-9, 143.
xxxvi R. Stammler, The Theory of Justice (1902, tr. I. Husik 1925, 1969). Stammler argued, against Marxism, that law is
the ‗form‘ of society: Wirtschaft und Recht nach der materialistischen Geschichtsauffassung [Economy and Law
According to the Materialist Conception of History] (1896). The latter point is, of course, description of law, so that
Stammler actually confuses description and prescription: M. Weber, ‗R. Stammler‘s `Surmounting‘ of the Materialist
Conception of History‘ (1906), tr. M. Albrow (1975) 2 British Journal of Law and Society pp. 129-52; (1976) 3 British
Journal of Law and Society pp. 17-43.
xxxvii Cp. K. Olivecrona, Law as Fact (1939).
xxxviii ATN, pp. 58-60.
xxxix G. Simmel, Einleitung in die Moralwissenschaft [Introduction to Moral Science] (1892-3), vol. 1, pp. 8-9. Later,
Simmel preferred a category of ‗value (Wert)‘: The Philosophy of Money (1900, tr. T. Bottomore and D. Frisby 1978), p.
60. But Kelsen does not use this idea.
xl The adoption of an additional category has been obscured by Kelsen himself. Although he . [303] discusses the
borrowing from Simmel in an early work (HPS, pp. 7-8), and alludes to it later on, so far as I am aware it is referred to
explicitly again only in a work published after his death: ATN, p. 2 and n. 2 (on 221-2).
xli PTL, pp. 3-4 (where ‗Schema‘ is rendered as ‗scheme‘); RR2, pp. 3-4.
xlii PTL, p. 86; cp. GTLS, pp. 162-4 (‗normative jurisprudence‘).
xliii I.e., in more modern language, social or cultural anthropology.
xliv GTLS, pp. 175-8; cp. PTL, pp. 75-6, 85-9.
xlv ATN, pp. 18-19, 121-5; RR2, pp. 73-7. The translation of Rechtssatz as ‗rule of law in a descriptive sense‘ (GTLS,
pp. 45ff; PTL, pp. 71ff) has misled. Translation of Solls?tze and Seins?tze as, respectively, ‗ought sentences‘ (and
perhaps ‗deontic sentences‘) and ‗declarative sentences‘ (O. Weinberger, ‗Logic and the Pure Theory of Law‘, tr. A.
Schramm, in Tur and Twining, op. cit., n. 8, pp. 187-99 at 189, 199) is very awkward: for one thing, these are not
necessarily sentences. The distinction between norm and proposition is absent in early works, such as HPS, where
Kelsen adheres to conventional usage, in which ‗Rechtssatz‘ refers indeterminately to a legal norm and to the
proposition describing it. Rather than speak, respectively, of ‗genuine‘ and ‗nongenuine‘ S?tze, he consciously turns to
using ‗Rechtssatz‘ to mean only the descriptive proposition: ATN, pp. 121, 124-5. According to Kelsen, the new
distinction originates in RR1 and is first stated clearly in RR2: RR2, p. 83n.
xlvi ATN, p. 1.
xlvii PTL, p. 58.
xlviii As a European, Kelsen uses the Romanist expression ‗delict (German, Unrecht or Delikt)‘, which covers both
criminal and civil wrongs.
xlix My example. Part of Kelsen‘s attack on iusnaturalism was to trace the development of the principle of causality and
the idea of a causal law out of primitive ideas of retribution, imputation and law: e.g. ‗Causality and Retribution‘ (1941)
in WIJ, pp. 303-23; Society and Nature (1943); ‗Causality and Imputation‘ (1950) in WIJ, pp. 324-49. Kelsen investigated
the idea of the soul as ground for ideas of retribution: ‗The Soul and the Law‘ (1937) 1 Rev. of Religion pp. 337-60.
Kelsen‘s critiques of ancient philosophy may still be of interest; his anthropological ideas remain attached to the category
of the ‗primitive‘. See further, (not seen) Kelsen, Die Illusion der Gerechtigkeit. Eine Kritische Untersuchung der
Sozialphilsophie Platons [The Illusion of Justice. A Critical Enquiry into Plato‘s Social Philosophy], ed. K. Ringhofer
and R. Walter (1985).
l PTL, p. 92.
li PTL, pp. 76-81, 87. While the translation of ‗Zurechnung‘ as ‗imputation‘ may be as good as any, rendering
‗Rechtsgesetz‘ as ‗legal law‘ (PTL, pp. 76ff) obscures the analogy with natural science. Kelsen makes the jump from
causality to imputation seem more plausible by arguing that the principle of causality derives historically from that of
imputation and its associate, the idea of retribution: PTL, pp. 82-5.
lii ATN, p. 20.
liii ATN, p. 18.
liv ATN, p. 20; PTL, pp. 85-6.
lv GTLS, pp. 162-78; PTL, pp. 101-7. Kelsen insisted on this especially against Ehrlich‘s conceptualisation of sociology
of law: GTLS, pp. 24-8; see also H. Rottleuthner, ‗Rechtstheoretische Probleme der Soziologie des Rechts. Die
Kontroverse zwischen Hans Kelsen und Eugen Ehrlich (1915/1917) [Legal-theoretical Problems of Sociology of Law.
The Controversy between Hans Kelsen and Eugen Ehrlich (1915/1917)]‘ in W. Krawietz and H. Schelsky (eds),
Rechtssystem und gesellschaftliche Basis bei Hans Kelsen (Rechtstheorie, Beiheft 5) (1984), pp. 521-51.
lvi ATN, pp. 9, 145.
lvii PTL, p. 73 (translation modified; cp. RR2, p. 75).
lviii PTL, ch. 8. However, what is interpreted is not, as he says, a norm - for that would be to seek, absurdly, the
meaning of a meaning - but the act of will whose meaning the norm is: M. Troper, ‗Kelsen, la Th?orie de l‘Interpr?tation
et la Structure de l‘Ordre Juridique [Kelsen, Theory of Interpretation and the Structure of the Legal Order]‘ (1981) 138
Revue Internationale de Philosophie pp. 518-29 at 520-1. The interpretation should, as Troper notes, be . [304] of a text
(or other sign) - but Kelsen distinguishes the act of will from its mode of expression. See, further, Kelsen, ‗On the
Theory of Interpretation‘, tr. B.L. and S.L. Paulson (1990) 10 Legal Studies 127-35; Paulson, op. cit., n. 34.
lix GTLS, p. 45.
lx PTL, p. 72.
lxi PTL, p. 70 (translation modified; cp. RR2, p. 72). ‗This is the pure theory‘s position as against the so-called
`egological‘ theory of law, which takes as the object of legal science not norms but human behaviour, and against the
Marxist theory, which conceives law as an aggregate of economic relations.‘ (RR2, p. 72n.). See also N. Duxbury, ‗Carlos
Cossio and Egological Legal Philosophy‘ (1989) 2 Ratio Juris 274-82.
lxii A. Wilson, ‗Is Kelsen Really a Kantian?‘ in Tur and Twining, op. cit., n. 8, pp. 37-64.
lxiii Economy and Society (1922), tr. various (1968), pp. 4ff. Kelsen occasionally uses ‗objective‘ in this sense, as
meaning ‗politically unbiased‘: e.g. CTL, pp. 96-7.
lxiv Differences in modes of description are ignored in Raz‘s distinctions among types of ‗committed‘ and ‗detached‘
statements: J. Raz, ‗The Purity of the Pure Theory‘ (1981) 138 Revue Internationale de Philosophie pp. 441-59 at 453-5
(also in Tur and Twining, op. cit., n. 8, pp. 79-97 at 90-3); see also R.J. Vernengo, ‗Kelsen‘s Rechtss?tze as Detached
Statements‘ in Tur and Twining, op. cit., n. 8, pp. 99-108.
lxv Kant usually speaks of ‗metaphysics‘ as meaning erroneous belief in transcendence, but in this context he uses the
word with reference to universal postulates.
lxvi I. Kant, Metaphysical Foundations of Natural Science (1786, tr. J. Ellington 1970), pp. 5-6.
lxvii Cp. Weinberger, op. cit., n. 45, p. 188.
lxviii ‗The Pure Theory of Law and Analytical Jurisprudence‘ (1941) in WIJ, pp. 266-87 at 266.
lxix ‗The Function of the Pure Theory of Law‘, op. cit., n. 9, pp. 231-2.
lxx HPS, p. 92; ‗Zur Soziologie des Rechtes [On Sociology of Law]‘ (1912) 34 Archiv f?r Sozialwissenschaft und
Sozialpolitik pp. 601-14; GTLS, pp. 175-7.
lxxi ‗On the Pure Theory of Law‘, op. cit., n. 9, p. 4.
lxxii CTL, pp. 72-3. Although Kelsen might have been entitled to assume that the idea of ‗pure theory‘ was familiar in
his time, it was still necessary to state clearly his own understanding of the expression. Thus R. Stammler wrote of ‗pure
science or theory‘ in a related but importantly different sense: The Theory of Justice, op. cit., n. 36, p. 5.
lxxiii ‗Was ist die Reine Rechtslehre? [What is the Pure Theory of Law?]‘ (1953) in WRS, pp. 611-29 at 620.
lxxiv CTL, p. 193.
lxxv Cp. G. Luk?cs, ‗Reification and the Consciousness of the Proletariat‘ (1923) in his History and Class Consciousness,
tr. R. Livingstone (1971), pp. 83-222 at 108-9.
lxxvi Kelsen, ‗Der Staatsbegriff der ‗verstehenden Soziologie‘ [The Concept of the State in ‗Interpretive Sociology‘]‘
(1921) 1 Zeitschrift fur Volkswirtschaft und Sozialpolitik pp. 104-19; ‗The Pure Theory of Law‘, op. cit., n. 9, pp. 477-8;
GTLS, pp. 162-78; PTL, pp. 2-3, 85-9, 101-7. See, further, N. Bobbio, ‗Max Weber e Hans Kelsen [Max Weber and
Hans Kelsen]‘ (1981) 8 Sociologia del Diritto 135-54; A. Carrino, ‗Weber e la Sociologia del Diritto nella Critica di
Kelsen [Weber and Sociology of Law in Kelsen‘s Critique]‘ (1987) 14 Sociologia del Diritto 17-32.
lxxvii Economy and Society, op. cit., n. 63, p. 4.
lxxviii PTL, p. 3.
lxxix PTL, pp. 7-8; RR2, p. 7. The argument is clumsily expressed in both texts.
lxxx GTLS, p. 178.
lxxxi HPS, chs 1-2.
lxxxii O. Ewald, ‗Die deutsche Philosophie im Jahre 1911 [German Philosophy in 1911]‘ (1912) 17 Kant-Studien pp.
382-433 at 397-8; M?tall, Kelsen, pp. 7, 8, 15; H. Cohen, Ethik des reinen Willens [Ethic of Pure Will] (1904).
lxxxiii GTLS, pp. 99, 191-2.
lxxxiv ATN, pp. 1-3, 22.
lxxxv PTL, p. 47.
lxxxvi GTLS, pp. 112-13; PTL, pp. 195-8. Kelsen does not confuse ‗legal order‘ in this sense with the [306] orderliness
in society that such an order might ensure when it is effective; nor does he assume that law always creates order (PTL, p.
38).
lxxxvii GTLS, p. 112. My example.
lxxxviii E.g. E. Ehrlich, ‗Judicial Freedom of Decision: its Principles and Objects‘ (1903) in various authors, Science of
Legal Method, tr. E. Bruncken and L.B. Register (1917, 1969) 47-84; Fundamental Principles of the Sociology of Law
(1913; tr. W.L. Moll, reissued 1975).
lxxxix E.g. PTL, chs. 5 and 8. The behaviour in the particular case may be logically relatable to the behaviour envisaged
generally in the norm - but that is a subsidiary issue in the realm of ‗is‘, concerning the norm not as ‗ought‘ but as to its
‗content‘: ATN, pp. 26, 39. Logic does not apply even to imagined norms, since these are the imagined meaning of an
imagined act of will: ATN, pp. 187-8. Kelsen might have added that norms are usually imagined before they are called
into existence by a real act of will.
Strictly, however, there is not a norm that may or may not be legally valid: validity in this sense is the norm‘s ‗specific
intellectual (ideell) existence‘; strictly, ‗valid norm‘ is a pleonasm: ATN, pp. 22, 136-8. Not to be confused with ideal
(ideal) existence, in e.g. a Platonic sense, or with real, material existence: Kelsen in discussion reported in F.-M. Schm?lz
(ed.), Das Naturrecht in der politischen Theorie (1963), p. 124.
xc PTL, pp. 231, 234-5, 255.
xci PTL, pp. 267-78.
xcii PTL, p. 279, cp. 70-1.
xciii PTL, pp. 279-80; where ‗Rechtsform und Staatsform (Form of Law and Form of State)‘ (RR2, p. 283), is rendered
as ‗Creation of Law and Form of Government‘.
xciv PTL, pp. 9, 214, 226, 250. See also below, on ‗primitive‘ law and international law.
xcv PTL, p. 227.
xcvi PTL, pp. 197-8.
xcvii PTL, p. 196.
xcviii ATN, pp. 6-7.
xcix ATN, pp 201-2.
c ATN, pp. 33-40. In characterising even moral orders as dynamic, Kelsen supposes that, just as legal norms are applied
by organs of the legal order, moral norms are applied by organs of the moral order: ATN, p. 42. The meaning of ‗organ‘
here is diffuse.
ci PTL, p. 222.
cii FC, p. 118. This sense of ‗constitution‘ seems to be Kelsen‘s scientifically acceptable substitute for ‗sources of law‘ in
the validation sense, after he rejected that expression because it could also refer to historical sources: PTL, p. 233.
ciii PTL, pp. 234, 236.
civ Luk?cs, quoted in Varga, op. cit., n. 2, p. 148.
cv PTL, pp. 211-14. Here Kelsen takes as ‗typical‘ opponent his former pupil the Scandinavian ‗legal realist‘ Ross: RR2,
p. 215n.
cvi ATN, pp. 111-14; PTL, pp. 10-12, 211-14 (translation modified). PTL, p. 214, repetitively renders ‗Recht‘ as both
‗law‘ and ‗right‘, and ‗Macht‘ as both ‗power‘ and ‗might‘: cp. RR2, pp. 220-1. Kelsen has in mind the doctrine of
desuetude (desuetudo), known in the Romanist legal systems but not in the Common Law systems.
cvii PTL, p. 27.
cviii ATN, pp. 43, 108, 115-16; GTLS, pp. 60-1.
cix Criticised in GTLS, pp. 62-4. However, Austin‘s Benthamite definition of the sovereign, as the person or body that is
habitually obeyed and does not habitually obey any other, which is central to his definition of positive law, is also
sociological. Kelsen sympathises with this side of Austin and only finds his way of using it contradictory.
cx ATN, p. 112.
cxi Hart‘s primary/secondary distinction is in the same direction as Kelsen‘s, but on a different criterion: H.L.A. Hart,
The Concept of Law (1961), ch. 5. Hart‘s ‗secondary rules‘ fall into Kelsen‘s class of ‗dependent norms‘, which in their
dependence on sanctioned norms are indirectly coercive: cp. PTL, pp. 54-8. For recent comparisons between Hart and
Kelsen, see Beyleveld and Brownsword, `Normative Positivism‘, op. cit., n. 9; van de Kerchove and Ost, op. cit., n. 9
(relating the work of Hart and Kelsen to systems theory).
cxii FC, p. 111.
cxiii E.g. PTL, pp. 221, 255.
cxiv PTL, pp. 33-42.
cxv ATN, pp. 115-16; cp. FC, p. 112.
cxvi PTL, pp. 59-69, 111-14.
cxvii ATN, pp. 92-9, 265-6; PTL, pp. 68-9 (translation modified; RR2, p. 71). This holds even for the ‗general principles
of law‘ that the International Court of Justice is authorised by its Statute to apply: ATN, pp. 99, 266.
cxviii PTL, pp. 33-42. PTL appears later to deny this extension (p. 111), but the denial is not in RR2 (p. 117); cp. PTL, p.
114.
cxix His retirement lecture was ‗What is Justice‘ (1952) in WIJ, pp. 1-24. See also other essays in that book and ‗Das
Problem der Gerechtigkeit‘, op. cit., n. 27; J. Bjarup, ‗Kelsen‘s Theory of Law and Philosophy of Justice‘ in Tur and
Twining, op. cit., n. 8, pp. 273-303.
cxx The Law of the United Nations (1950), p. xiii; cp. GTLS, p. 15; ‗The Law as a Specific Social Technique‘ (1941) in
WIJ, pp. 231-56.
cxxi See e.g. D. Held, Introduction to Critical Theory (1980), ch. 5.
cxxii Cp. A. Renaut, ‗Kelsen et le Probl?me de l‘Autonomie du Droit [Kelsen and the Problem of the Autonomy of
Law]‘ (1986) 9 Cahiers de Philosophie Politique et Juridique pp. 7-21 at 21. Kelsen‘s position is also vulnerable to
Foucault‘s critique of technical rationality as a form of power in which the subject is denied and reconstructed -
although the pure theory may also be taken as useful to a Foucauldian perspective in identifying law as a technique of
disciplinary power: see esp. CTL, pp. 102-5.
cxxiii ATN, p. 105. This refinement appears to be new in ATN.
cxxiv ATN, pp. 195-6. The earlier view reeks, to him, of the old theory of legislation as merely the finding and
promulgation of natural laws (familiar in Common Law countries as the fiction that judges do not make law).
cxxv ATN, pp. 115, 349-50. Previously, Kelsen had rejected Gray‘s approach as supposing that only individual norms
exist: PTL, p. 255.
cxxvi ATN, p. 196n.
cxxvii ATN, pp. 199-200.
cxxviii ‗Was ist die Reine Rechtslehre?‘, op. cit., n. 73, at 616-18 (this passage tr. in Weinberger, op. cit., n. 45, pp. 189-
90).
Thus legal norms do not ‗teach‘, only legal propositions describing them: ATN, pp. 103-6. In Kelsen‘s terms, the
educative role of law, e.g. in anti-discrimination laws, would operate through description of legal norms, mainly in the
press.
cxxix ATN, p. 190. A reference to the basic norm as ‗the constitution in the legal-logical sense (die Verfassung im
rechtslogischen Sinne)‘ (RR2, p. 232; changed to ‗the ―constitution‖ in the transcendental-logical sense‘ in PTL, p. 226)
might be understood to refer to the logicality of legal propositions, including a basic norm. The occasional references to
‗the logical relation of norms‘ (PTL, p. 339) and ‗contradiction‘ between norms (PTL, pp. 206, 350, 352) are harder to
explain: since, however, they are made in passing, there is room to take them to refer infelicitously to the norm as
presented in the legal proposition. The alternative, and of course defensible, view has produced the impression that
Kelsen thought logic did apply to norms and, in the 1960s, changed his mind: e.g. Weinberger, op. cit., n. 45, pp. 192-4.
R.J. Vernengo valuably argues that Kelsen usually saw logic as having ‗an epistemological tinge according to the
traditional Kantian heritage‘ or later, ‗under the influence of phenomenology, an ontological foundation‘ and became
familiar with modern formal logic only ‗in his last years and then not without ambiguities‘: ‗About an Empowerment
Theory of Legal Norms and Some Related Problems‘ (1989) 2 Ratio Juris 299-303 at 300.
cxxx ATN, pp. 203-5. The third case echoes Holmes‘ definition of law as the ‗prophecies of what the courts will do in
fact‘: O.W. Holmes, ‗The Path of the Law‘ (1897) 10 Harvard Law Rev. pp. 457-78 at 461. But the echo is distorted:
these prophecies would be expressed in laws of law, not legal norms themselves; yet in any case such prophecy belongs
to the realm of legal advice, not scientific description: PTL, pp. 87-9; GTLS, pp. 165-8.
[307] cxxxi ATN, pp. 99-101.
cxxxii PTL, p. 18.
cxxxiii ATN, pp. 101-3. See also papers by Harris, Paulson and Weyland in Tur and Twining, op. cit., n. 8.
cxxxiv ATN, pp. 81, 106-7; PTL, p. 245-50.
cxxxv ATN, pp. 351-2.
cxxxvi ATN, pp. 25ff. Kelsen awkwardly conceives self-addressing as a relation between oneself as ‗ego‘ and as ‗alter
ego‘: ATN, pp. 23-4.
cxxxvii ATN, pp. 39-43, 191-3.
cxxxviii Cp. ATN, p. 37.
cxxxix PTL, pp. 191-2.
cxl ATN, p. 7; PTL, pp. 165-6 (translation modified: RR2, pp. 169-70), 169.
cxli PTL, chs. 6 and 7; GTLS, pt. 2.
cxlii PTL, pp. 280-4; GTLS, pp. 201-7.
cxliii PTL, p. 177.
cxliv PTL, pp. 145-68, 256-62.
cxlv PTL, pp. 280-4 (translation modified: RR2, pp. 284-7). Kelsen actually writes ‗systematic‘ where he clearly means
‗systemic‘.
cxlvi ATN, pp. 108-11; PTL, pp. 114-17, 125-45.
cxlvii PTL, p. 169.
cxlviii PTL, pp. 117, 168-91; GTLS, pp. 93-109, 377.
cxlix PTL, pp. 32, 35ff, 266-7, 284-319. Throughout PTL, ‗staatliche Rechtsordnung‘ is rendered as ‗national legal
order‘—which both dilutes the key thesis of the identity of (total) legal order and state, and implies that Kelsen na?vely
assumes that ‗state‘ and ‗nation‘ always coincide.
cl PTL, pp. 320-4.
cli PTL, pp. 324-8.
clii PTL, pp. 328-33; reading ‗state‘ instead of ‗national‘.
cliii ‗The Pure Theory of Law and Analytical Jurisprudence‘, op. cit., n. 68, p. 287.
cliv As Hart says, ‗we might as well attempt to deduce from the existence of the history of warfare or the science of
strategy that all wars are one or all armies are one‘: ‗Kelsen‘s Doctrine of the Unity of Law‘, op. cit., n. 6, p. 322.
clv PTL, pp. 328-47. Cp. GTLS, esp. p. 388; Peace Through Law (1944). The issue, of course, affects questions of
federalism.
clvi The expression of the distinction here depends on the distinction between legal norm and legal proposition.
clvii Kelsen‘s fairly early characterisation of the basic norm as a ‗minimum‘ of natural law (‗Natural Law Doctrine and
Legal Positivism‘, op. cit., n. 20, p. 437) cannot survive his later distinguishing between legal norm and legal proposition.
What applies to the distinction between international and local law also applies to issues of federalism.
clviii Esp. FC; PTL, pp. 193-211 (translation modified), 223. When Kelsen expresses the difference between the two
situations by saying that in the robber‘s case ‗an evil will be inflicted‘ whereas in that of the tax official ‗an evil ought to
be inflicted‘ (PTL, p. 45), he anticipates Hart‘s ‗gunman situation‘ distinction between being obliged and having an
obligation: Hart, op. cit., n. 111, pp. 19ff, 80ff.
clix PTL, pp. 44-50; cp. Augustine, City of God, bk. 4, ch. 4. Hart appears to begin from a Weberian standpoint, yet
Hart‘s ‗external point of view‘ applies only to values and not to description of what is to be valued, and from Kelsen‘s
standpoint Hart‘s ‗recognition‘ theory is vulnerable to Kelsen‘s much earlier criticisms of Bierling: Hart, The Concept of
Law, op. cit., n. 111, passim; PTL, p. 218n.; J. Raz, op. cit., n. 64.
clx FC, p. 117; ATN, pp. 206-7; cp. H. Vaihinger, The Philosophy of ‗As If‘ (1911; tr. C.K. Ogden, 2nd edn. 1935), pp.
97-100. Kelsen had been aware of Vaihinger‘s book and its conceptualisation of fictions since at least 1919: ‗Zur Theorie
der juristischen Fiktionen: mit besonderer Ber?cksichtigung von Vaihingers Philosophie des Als-ob [On the Theory of
Legal Fictions: with particular reference to Vaihinger‘s Philosophy of As-If]‘ (1919) in WRS, pp. 1215-41. The ‗fiction‘
version of the ‗basic norm‘ concept was first announced in discussion reported in Schm?lz, op. cit., n. 89, pp. 119-20.
The full argument is given in FC and ATN. It is presented only partially when it first appears in English: ‗On the Pure
Theory of Law‘, op. cit., n. 9, p. 6.
[308] clxi ‗Was ist ein Rechtsakt? [What is a Legal Act?]‘ (1952) in WRS, pp. 1381-93 at 1390-1.
clxii PTL, p. 204n.
clxiii C. Martyniak, ‗Le Probl?me de l‘Unit? des Fondements de la Th?orie de Droit de Kelsen [The Problem of the
Unity of the Bases of Kelsen‘s Theory of Law]‘ (1937) 7 Archives de Philosophie du Droit et de Sociologie Juridique
166-90 at 185; compare H. Klenner, Rechtsleere [A Legal Void (an awful pun on Rechtslehre, legal theory)] (1972), p.
39.
clxiv Cp. N. Lavand, ‗Hans Kelsen ou le Cubisme [Hans Kelsen or Cubism]‘ (1986) 9 Cahiers de Philosophie Politique
et Juridique 95-114.
clxv J. Wr?blewski, ‗Kelsen, the Is-Ought Dichotomy and Naturalistic Fallacy [sic]‘ (1981) 138 Revue Internationale de
Philosophie 508-17 at 515. I have suggested elsewhere a philosophical equivalent of paint and canvas: ‗Closure and the
Legal Norm: an Essay in Critique of Law‘ (1987) 50 Modern Law Rev. 908-33 at 916-22.
clxvi Varga, op. cit., n. 2, p. 137.
clxvii See, further, my ‗Kelsen and the Exegetical Tradition‘ in Tur and Twining, op. cit., n. 8, pp. 123-47; ‗Closure and
the Legal Norm‘, op. cit., n. 165; P. Amselek, ‗Kelsen et les Contradictions du Positivisme Juridique [Kelsen and the
Contradictions of Legal Positivism]‘ (1981) 138 Revue Internationale de Philosophie 460-73.
clxviii As does Pashukanis, op. cit., n. 6.
clxix Thus, Kelsen‘s critique of Pashukanis does not take seriously Pashukanis‘s analyses of ‗legal fetishism‘: CTL, pp.
89-111.
clxx On the relation of the pure theory to Marxism, see generally the Hans Kelsen-Institut symposium Reine
Rechtslehre und marxistische Rechtstheorie [Pure Theory of Law and Marxist Theory of Law] (1978). Kelsen fell into
the error of understanding Marxism solely as the Eastern Marxism of economic determinism, whose capacity for critical
legal theory was very limited: CTL, especially p. vii. However, Kelsen‘s opposition to Marxism was not bigoted: his
willingness to take Marxist thinking seriously (e.g. ‗Allgemeine Rechtslehre im Lichte materialistischer
Geschichtsauffassung [General Theory of Law in the Light of the Materialist Conception of History]‘ (1931) 66 Archiv
fur Sozialwissenschaft und Sozialpolitik 449-521) nearly got him into an extermination camp.
clxxi Although occasionally he examines common modes of expression, he does so speculatively, in order to clarify his
own vocabulary; he does not treat such expressions as evidence of meaning, in the manner of ‗ordinary language‘
philosophy or of semiotics (e.g. the discussion of ‗law‘, ‗Recht‘, etc. in PTL, pp. 30-1). The greater attention to language
in his last book is just painful: for one thing, his conception of linguistic meaning is wholly referential, with no grasp of
Wittgenstein‘s (or Bentham‘s) conception of meaning as use, though Wittgenstein is occasionally cited (ATN, pp. 24-32).
Indeed, his differentiation between an act of will or thought and a speech act may be a deliberate evasion of linguistic
philosophy. However, Kelsen‘s attention solely to logic does not, by itself, exclude the possibility of adding into his
theory an examination of legal norms as rhetoric.
clxxii Criticism that is merely negative tends to preserve the terms of that which it negates; to emancipate, criticism
needs to transform the subject matter of the critique.
clxxiii See C. Schmitt, ‗The Leader Protects the Law‘ (1934), tr. I. Stewart (forthcoming in International J. of the
Sociology of Law).

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