ESSENTIAL

JURISPRUDENCE
SECOND EDITION

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ESSENTIAL
JURISPRUDENCESECOND EDITION

Austin M Chinhengo, LLB (Hons), LLM, PhD

Senior Lecturer in Law
Swansea Law School

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Second edition first published in Great Britain 2000 by Cavendish
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© Chinhengo, AM 2000
First edition 1995
Second edition 2000

All rights reserved. No part of this publication may be reproduced,

stored in a retrieval system, or transmitted, in any form or by any
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Licensing Agency, 90 Tottenham Court Road, London W1P 9HE, UK,
without the permission in writing of the publisher.

British Library Cataloguing in Publication Data

Chinhengo, Austin M
Essential Jurisprudence—2nd ed
1 Jurisprudence
I Title
340

ISBN 1 85941 148 7

Printed and bound in Great Britain

To Shamisa and Tanaka
Always
Foreword

This book is part of the Cavendish Essential series. The books in the
series are designed to provide useful revision aids for the hard-pressed
student. They are not, of course, intended to be substitutes for more
detailed treatises. Other textbooks in the Cavendish portfolio must
supply these gaps.
Each book in the series follows a uniform format of a checklist of the
areas covered in each chapter, followed by expanded treatment of
‘Essential’ issues looking at examination topics in depth.
The team of authors bring a wealth of lecturing and examining
experience to the task in hand. Many of us can even recall what it was
like to face law examinations!

Professor Nicholas Bourne AM

General Editor, Essential Series
Conservative Member for Mid and West Wales

vii
Preface

This text presents the essential issues in jurisprudence in a way which

enables the student to have easy and illuminating access to the basic
ideas propounded by the various thinkers on the subject over the years.
Emphasis is placed on an explanation of the basic concepts,
methodology and terminology used by writers on the subject, and the
student is encouraged to approach the issues from a perspective which
locates them within a contemporary context.

Dr Austin Chinhengo
March 2000

ix
Acknowledgments

I wish to express my appreciation to my students, both past and

present, who have made it all worthwhile, and my thanks to my father,
for keeping my spirits up.

xi
Table of Contents

Foreword vii
Preface ix
Acknowledgments xi

1 Essential Questions 1
Introduction 1
Questions of substance 2
Questions of definition 4
Questions of relevance 12

2 Theories of Law (I): Natural Law Theory 17

The nature of Natural Law 17
The historical origins of Natural Law theory 20

3 Theories of Law (II): Positivist Theories of Law 27

What is the Positivist approach to law? 27
The imperative theories of law 29
Hans Kelsen (1881–1973) 39

4 Theories of Law (III): Theoretical Alternatives

to Command Models of Law 47
HLA Hart—the concept of law 47
Ronald Dworkin’s rights-based theory 59
Lon Fuller and the ‘inner morality of law’ 64

5 Theories of Justice (I): Utilitarianism 69

Jeremy Bentham and Classical Utilitarian theory 69
John Stuart Mill and the refinement of Utilitarian theory 73
Utilitarianism and the economic analysis of law 78
Richard Posner and the economics of justice 79

6 Theories of Justice (II): Rights 83

Hohfeld’s analysis of rights 83
John Rawls and the priority of liberty 87
Nozick and the theory of entitlements 95
Dworkin’s rights thesis 96

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ESSENTIAL JURISPRUDENCE

7 Theories of Law and Society 101

Sociological jurisprudence, socio-legal studies and
the sociology of law 101
Roberto M Unger, The Nature of Law and Society 107
The Marxist account of law and society 110
Feminist legal theory 115
Two approaches in feminist legal theory 119

Index 123

xiv
1 Essential Questions

You should be familiar with the following areas:

• what is jurisprudence?
• what do philosophy and theory have to do with the study of legal rules and the
acquisition of legal skills?
• what is the meaning and relevance of the various divisions in the schools of
thought comprising jurisprudential discourse?
• why is the language of jurisprudence so different and so much more convoluted
than that of other legal disciplines?
• is there anything of value to be gained from apparently pointless theorising
about the nature of law?

Introduction

Unlike the other chapters of Essential Jurisprudence, this first chapter sets
the scene on the whole area of jurisprudence. It is the aim of this chapter
to identify and to clarify some of the more general issues and questions
which confront a student approaching jurisprudence as a subject for the
first time. Such questions usually concern matters relating to an initial
appreciation of the nature and scope of the subject, as well as the mode
and purpose of the enquiry which it involves. In the main, these are
questions of definition, content and relevance, such as those listed
above.
Such questions arise mainly from the fact that, as a subject,
jurisprudence is occupied with different issues and generally takes a
different approach from the other, mainly black-letter, law subjects, in
the manner in which it deals with the subject matter of its enquiry. It is
usually this difference in approach which makes many a law student
feel disconcerted and disoriented, and much of this has to do with the
unfamiliarity of the variety of devices, both terminological and
methodological, which this philosophical study of the law employs.

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ESSENTIAL JURISPRUDENCE

Thus, in dealing with the various issues of definition and

clarification, this chapter takes an approach and a style which is distinct
from that which will be followed in the rest of this text. This is because
it is not possible to explain the subject matter in the same format and an
emphasis has been put on explanation, rather than exposition.
Essentially, this could be regarded as a reference chapter to which the
student may turn from time to time to discover the meaning and
implications of various terms, phrases and distinctions which he may
encounter, either in the course of this text or elsewhere.

Questions of substance

The meaning of jurisprudence

What is jurisprudence?
Problems of def inition
• The term ‘jurisprudence’ is derived from two Latin words, juris—
meaning ‘of law’, and prudens—meaning ‘skilled’. The term has
been used variously at different times, ranging from its use to
describe mere knowledge of the law to its more specific definition
as a description of the scientific investigation of fundamental legal
phenomena.
• A strict definition of jurisprudence is, as is the case with many
general terms, difficult to articulate. The main problem with
jurisprudence is that its scope of inquiry ranges over many different
subjects and touches on many other disciplines, such as economics,
politics, sociology and psychology, which would normally be
regarded as having little to do with law and legal study.
• As a subject, jurisprudence may be said to involve the study of a
wide range of social phenomena, with the specific aim of
understanding the nature, place and role of law within society. The
main question which jurisprudence seeks to answer is of a general
nature and may be phrased simply as: what is the nature of law?
This question can be seen as being actually two questions in one, that is,
‘what is the law?’ and ‘what constitutes good law?’.
Answers to these two questions constitute two major divisions in
jurisprudential enquiry. These are analytical jurisprudence and
normative jurisprudence.
These two divisions were first clearly specified by John Austin in his
text The Province of Jurisprudence Determined (1832). Other divisions and

2
 ESSENTIAL QUESTIONS

subdivisions have been identified and argued for as the field of

jurisprudence or legal philosophy has expanded. In the following
section, we will briefly explain some of these divisions.
Some distinctions in jurisprudence
The work of jurists can be divided into various distinctive areas,
depending mainly on the specific subject matter with which the study
deals. What follows are some of the more important divisions and
subdivisions, although it should be remembered that there are others:
• Analytical jurisprudence
Involves the scientific analysis of legal structures and concepts and
the empirical exercise involved in discovering and elucidating the
basic elements constituting law in specific legal systems. The
question to be answered is ‘what is the law?’.
• Normative jurisprudence
Refers to the evaluation of legal rules and legal structures on the
basis of some standard of perfection and the specification of criteria
for what constitutes ‘good’ law. This involves questions of what the
law ought to be.
• General jurisprudence
Refers to an abstracted study of the legal rules to be found generally
in the more developed legal systems.
• Particular jurisprudence
The specific analysis of the structures and other elements of a single
legal system.
• Historical jurisprudence
A study of the historical development and growth of legal systems,
and the changes involved in that growth.
• Critical jurisprudence
Studies intended to provide an estimation of the real value of
existing legal systems, with a view to providing proposals for
necessary changes to such systems.
• Sociological jurisprudence
Seeks to clarify the link between law and other social phenomena,
and to determine the extent to which its creation and operation are
influenced and affected by social interests.
• Economic jurisprudence
Investigates the effects on the creation and application of the law of
various economic phenomena, for example, private ownership of
property.

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ESSENTIAL JURISPRUDENCE

Questions of definition

The terminology of jurisprudence

Many of the terms which a student may encounter and be required to
use in the study of jurisprudence are relatively unfamiliar, belonging
more to the realm of philosophy than to that of law. The following are
some of the more commonly used terms, together with brief
explanations of what they may mean in specific contexts. It is important
always to remember that specific meanings are sometimes ascribed to
certain terms by particular jurists and that these meanings may be
different from the ordinary usages.
The selection of terms explained in this section is necessarily random
and has been guided more by a need to clarify issues which shall be
dealt with in the rest of this book than by an attempt to provide a
generalised glossary of all jurisprudential terms. The student will,
therefore, need to make reference to other sources, since there is a whole
range of other terms and phrases which he or she will encounter in the
study of jurisprudence.
Cognitivism
The view that it is possible to know the absolute truth about things, for
example, what constitutes truth about justice.
Contractarian
That is, of assertions or assumptions that human society is based upon a
social contract, whether that contract is seen as a genuine historical fact,
or whether it is hypothesised as a logical presumption for the
establishment and maintenance of the ties of social civility.
Dialectical
That is, of dialectics (from the Latin dialego, meaning to debate or
discourse). Dialectics refers to the philosophical approach which
regards all reality as being characterised by contradictions between
opposites. The struggle between these opposites results in new and
higher forms, which are, in turn, ‘challenged’ by other opposites. The
dialectic was first set out by the German philosopher, Hegel, who
argued that all existence resulted from ‘pure thought’ or reason, based
on a Volksgeist, or ‘collective consciousness’, and that the struggle
between various ideas led to the development and change in all things.
Hegel set out the dialectic in this form:
Thesis
An existing or established idea. This is challenged by an antithesis.

4
 ESSENTIAL QUESTIONS

Antithesis
An opposite and contradictory idea. The result of the ensuing struggle
is a union and interpenetration of the two opposites, and this
constitutes the synthesis.

Synthesis
A newer and higher form of idea. This contains qualitatively superior
elements of the two opposites. The new synthesis, however, will
inevitably be challenged by another, newer and opposite idea, and so
the synthesis becomes the new thesis, with its antithesis being the new
opposite. The continual repetition of this cycle of struggle and
resolution constitutes the dialectic and results in development and
change in all things.
Note
Hegel’s dialectic was adopted as a philosophical model by Karl Marx,
who emphasised a materialist approach and argued that the struggle
which constituted the dialectic was actually not between ideas, but
between natural and social phenomena, including social and economic
classes. Marx’s philosophical approach thus became dialectical
materialism (see Materialism, below).

Discretion
In judicial decision making, the supposition that judges, in making
decisions in ‘hard cases’, that is, cases where there is no clear rule of law
which is applicable or where there is an irresolvable conflict of
applicable rules, make decisions which are based on their own personal
and individual conceptions of right and wrong, or what is best in terms
of public policy or social interest; in so deciding, they are thereby
exercising a quasi-legislative function and creating new law.
Note
Many Positivists, for example, John Austin and HLA Hart, would allow
for the fact that, where there is no clearly applicable rule of law, judges
do, in fact, exercise their discretion in deciding cases. Ronald Dworkin,
however, strongly denies this and argues that judges have no discretion
in ‘hard cases’; there is always a ‘right answer’ in every case to the
question of who has a right to win.
Ef ficacy
Effectiveness and efficiency, as in the capacity of a certain measure,
structure or process to achieve a particular desired result.

5
ESSENTIAL JURISPRUDENCE

Note
For Hans Kelsen, efficacy is a specific requirement for the existence of a
legal system and, therefore, of law, as in the capacity of officials to apply
sanctions regularly and efficiently in certain situations.
Empiricism
In legal philosophy, an approach to legal theory which rejects all
judgments of value and regards only those statements which can be
objectively verifiable as being true propositions about the nature of law.
Legal empiricism is based on an inductive process of reasoning,
requiring the empirical observation of facts and the formulation of a
hypothesis, which is then applied to the facts before an explanatory
theory of legal phenomena can be postulated.
Formalism
In legal theory, an approach which seeks to minimise the element of
choice in the interpretation of terms contained in legal rules and
emphasises the necessity of certainty and predictability in the meaning
of such rules. Legal Formalists would advocate the attribution of
specific meanings to certain terms, from which the interpreter of a legal
rule could not deviate, and would require that such terms should have
those same meanings in every case where the rule is applicable.
Good
Some value or interest which it is generally considered desirable to
attain or provide for in social arrangements, for example, liberty,
equality or property.
Imperative
With reference to theoretical approaches to the nature of law, the
conception which regards law as being constituted generally by the
commands, orders or coercive actions of a specific powerful person or
body of persons in society. The main imperative theories are the
Positivist approaches of:
• Jeremy Bentham and John Austin—law as a set of general
commands of a sovereign, backed by the threat of sanctions;
• Hans Kelsen—law as a system of conditional directives (primary
norms) to officials to apply sanctions.
Intuitionism
The view in moral philosophy which regards humans as possessing a
faculty, conscience, by which they are able directly to discover and
determine what is morally right or wrong, good or evil.

6
 ESSENTIAL QUESTIONS

Libertarian
Of or concerning approaches to legal and social arrangements which
generally give priority to the concept of liberty or the specification,
attainment and protection of particular basic freedoms.
Materialism
In Marxist theory, the notion that changes and developments in human
society are based on the material conditions of human existence. The
two notions of dialectical materialism and historical materialism in
Marxist theory are based on the assumption that there are ongoing
associations and contradictions between various social, technical,
economic and political phenomena, which determine the historical
development of society.
Morality
The making, holding or expression of moral judgments, that is,
conceptions of what is good and bad, right and wrong or acceptable
and unacceptable, as judged in accordance with some a priori standard,
which may be a personal or social convention.
Moral philosophy
The formalised attempt to understand the thought underlying or
reinforcing moral judgments. There are two main approaches to moral
philosophy which comprise distinct theoretical schools of thought:
• Formalist approaches
These argue, generally, that what constitutes morality is entirely
a question of personal value judgments—morality is a question
of the attitude which a person has to a particular issue or
problem, rather than an intrinsic quality of the issue or problem
itself. Morality cannot, therefore, be made the subject of
empirical and objective observation and analysis; there is no
theoretically defensible answer as to what morality is. Moral
philosophy should, therefore, be concerned with purely formal
questions. In this regard, a moral judgment may be identified by
having regard to three formal characteristics. It must be:
(a) prescriptive—that is, it must constitute a specific
recommendation, directed at oneself and others, as to how to
act in certain circumstances;
(b) overriding—that is, it must be intended that, where there is a
conflict between the moral judgment in question and any other
recommendations, then the former must take precedence;

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ESSENTIAL JURISPRUDENCE

(c) universalisable—that is, the recommendation which

constitutes a moral judgment must be capable of, and intended
to apply, not only to the issue or problem in hand, but also to all
similar cases.
• Content theories
These regard morality as something which has or can have a specific
content and which, therefore, can be objectively identified and
empirically analysed. Morality constitutes a definite social
phenomenon which has developed to assist mankind in dealing with
recurring problems of the human condition. It comprises principles
for establishing the proper balance in the interrelationships between
persons in society and for protecting interests and values which are
regarded as being vital in various societies. Therefore, law can be
judged as being invalid if it substantially deviates from the
requirements of such principles. An example of this approach to
morality is HLA Hart’s ‘minimum content theory’ in The Concept of
Law (1961), where he argues that, given survival as an aim and given
the five characteristics of the human condition, law and morality
must contain a specific content, primarily concerned with the
protection of life, property and promises.
Natural Law
The philosophy of law which proceeds from an assumption that law is
a social necessity, based on the moral perceptions of rational persons,
and that any law which violates certain moral codes is not valid at all.
Human law is thus based on certain universal principles, discoverable
through reason or revelation, which are seen as being eternal,
immutable, and ultimately based on the nature of human beings.
Norm
A generally accepted standard of social behaviour. Note that Hans
Kelsen uses the term in his definition of law as ‘the primary norm that
stipulates the sanction’, to refer specifically to ‘a conditional directive
given to officials to apply sanctions under certain circumstances’.
Obligation
For Hart, a distinction must be made between ‘being obliged’ to act or
forbear, and being ‘under an obligation’ to act or forbear, the former
being motivated by fear of some sanction which occurs as an external
stimulus, and the latter being comprised of both the external element
and an internal element, whereby the subject feels a sense of duty to act
or forebear.

8
 ESSENTIAL QUESTIONS

Policy
A statement of a social or community goal, aimed at some improvement
of the social, economic or political welfare of the members of the group
in general. As such, a policy may be pursued sometimes, even though
this would lead to a restriction of the rights of individuals. Dworkin
makes a specific distinction between matters of policy as defined and
matters of principle, which he regards as setting out the rights of
individuals; he also points out the need for justice and fairness in
creating a balance between the two.
Positivism
The approach to the study of law which regards valid laws as being
only those laws that have been ‘posited’, that is, created and put
forward by human beings in positions of power in society. Generally,
Positivism rejects the attempt of Natural Law theory to link law to
morality. Professor Hart has identified at least six different ways in
which the term ‘Positivism’ may be employed:
(a) Positivism in the definition of law—that law, in the wider sense, is
defined as the expression of human will, and that law as the
command of the ‘sovereign’ is the most prominent example of this
form of Positivism.
(b) Positivism as a theory of a form of legal study, the object of which is
the analysis or clarification of meanings of legal concepts; analytical
jurisprudence, which is purely a conceptual, as distinct from a
sociological, historical, political or moral investigation of the law.
(c) Positivism as a theory of the judicial process—that a legal system is
a closed logical system, in which correct decisions can be deduced
from a conjunction of a statement of the relevant legal rules and a
statement about the facts of the case.
(d) Positivism as a theory of law and morals—that there is no necessary
connection between law as it is and law as it ought to be (the so
called separation thesis).
(e) Positivism and non-cognitivism in ethics—that moral judgments
cannot be established by rational argument, evidence or proof.
(f) Positivism and the obligation to obey the law—that there is an
unconditional obligation to obey the law, regardless of the content.

Principle
As opposed to a policy—a statement or proposition which describes the
rights which individuals may hold apart from those that are Specified
in the legal rules of a community.

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ESSENTIAL JURISPRUDENCE

Note
Dworkin’s definition and distinction as specified in Taking Rights
Seriously (1977), p 22:
I call a ‘policy’ that kind of standard that sets out a goal to be reached,
generally an improvement in some economic, political, or social feature
of the community (although some goals are negative, in that they
stipulate that some present feature is to be protected from adverse
change). I call a ‘principle’ a standard that is to be observed, not because it
will advance or secure an economic, political, or social situation deemed
desirable, but because it is a requirement of justice or fairness, or some
other dimension of morality.

Rationality
The ability to use one’s reason or mental faculties generally to evaluate
alternative courses of action, to make choices in terms of one’s
preferences, to set goals and to formulate efficient plans for the
attainment of such goals.
Realism
The philosophical approach which emphasises objectivity over
sentiment and idealism in the investigation of phenomena. Realists
generally argue that the perception of phenomena is an experience of
objective things which are independent of the private sense data that
we may initially hold. A meaningful analysis of the nature of law must,
therefore, concentrate on the objective experience of the actual practice
of the courts, rather than on some ‘rules’ which are supposed to guide
the attitudes of judicial officials. Legal realism has expressed itself in
two main forms:
(a) Scandinavian realism, espoused by Hagerstrom (1868–1939),
Lundstedt (1882–1955), Olivecrona (1897–1980) and Ross (1899–
1979). This movement generally rejects metaphysical speculation
on the nature of law, regards the ideas and principles of Natural
Law as being unacceptable, and argues that the only meaningful
propositions about law are those which can be verified through the
experience of the senses.
(b) American realism, espoused by William James (1890–1922) and
John Dewey (1859–1952). This school of thought emphasises the
actual practice of the courts and the decisions of judges as
comprising the essential elements of law. The law, this movement
argues, is not to be found in some rules and concepts which may
guide officials to reach decisions. It is rather to be found in the
actual decisions of judges and predictions of these; until a judge

10
 ESSENTIAL QUESTIONS

pronounces what he is going to do about a particular case, we can

never know what the law is going to be and how it is going to be
applied. Such things as statutes, for example, are therefore merely
sources of the law, rather than a part of the law itself.

Rule
A statement formally specifying a required mode or standard of
behaviour.
Note
HLA Hart, in The Concept of Law, emphasises the nature of a rule as a
generally accepted standard of behaviour. Law is then constituted by a
systemic interaction between specific types of social rules with
particular characteristics: primary rules, which impose duties on
citizens to act or forbear in certain situations; and secondary rules,
which are power-conferring and which determine how the primary
rules may be properly created, applied and changed.
Sanction
The formal consequence (usually negative or harmful) which is
directed at, and normally follows from a specific act of a particular
person or persons, where that act is regarded by society or some specific
organ of society, for example, the State, as being a requisite condition
for the consequence and a justification for the exertion by society or the
State of some of its legitimate power against the person or persons.
Note
• John Austin, in The Province of Jurisprudence Determined, defines
sanctions negatively as constituting some ‘harm, pain or evil’. He
regards sanctions as being a necessary element of law since, for
him, the law is made up of the general commands (that is, the
expression of certain wishes) of a sovereign, backed by sanctions-
that is, the threat of some negative consequences which may follow
from non-compliance with the command by the sovereign’s
subjects.
• Hans Kelsen, in his General Theory of Law and the State (1946),
regards sanctions both positively and negatively as constituting
either punishments or rewards, which officials are directed to mete
out to citizens under certain conditions. For Kelsen, sanctions are
also an essential element of law, since all law in fact comprises of
‘primary norms’ or conditional directives to officials to apply
sanctions under certain circumstances.

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ESSENTIAL JURISPRUDENCE

Teleology
The view that everything has an ultimate end or purpose, towards
which it will inevitably develop. Classical Natural Law theorists would
argue, for example, that humans and their society have as an end some
ultimate state of perfection, to which they must naturally approximate
and towards which they must necessarily strive, and that law is an
essential device for precipitating this end.
Utilitarianism
The approach of moral philosophy which regards an act, measure or
social or legal arrangement as being good or just if its overall effect is to
advance the happiness or general welfare of the majority of persons in
society. Utilitarianism is a goal-based approach to the problems of
justice in the distribution of the benefits and burdens of society, in that it
gives precedence to the advancement of the collective good or welfare,
even if this may involve extinguishing or curtailing the rights and
political or other liberties of the individual.
Distinctions in Utilitarian theory include:
• Total (Classical) Utilitarianism—where social and legal measures
or institutions are regarded as just if their operation, on the whole,
serves to maximise aggregate happiness or welfare.
• Average Utilitarianism—where social and legal measures or
institutions are regarded as just if their operation, on the whole,
serves to maximise average happiness or welfare per capita.
• Act Utilitarianism—where a specific act or measure is regarded as
right if it will, on the whole, have the best consequences.
• Actual Rule Utilitarianism—where an act or measure is regarded as
right if it is permitted by a rule which, if generally followed, will, on
the whole, have the best consequences.
• Ideal Rule Utilitarianism—where an act or measure is regarded as
being right if it is permitted by a rule which, if generally followed,
will, on the whole, have as good or better consequences than any
other rule governing the same act.

Questions of relevance

The subject matter of jurisprudence

What is involved in the study of jurisprudence?
The broad divisions of jurisprudential enquiry have been set out above.
Those divisions indicate that jurisprudence covers a wide area of study,

12
 ESSENTIAL QUESTIONS

dealing with a variety of issues and topics, as well as touching on a

whole range of other subjects and disciplines. The unifying element in
all these aspects of the study, however, is that, in every case, the main
question that is being investigated and to which an answer is being
sought is, briefly, ‘what is law?’.
Essentially, all jurists are seeking to explain the incidence, existence
and consequence of law as a social phenomenon. Consequently,
general questions to be answered are concerned with such matters as
the following:
• the origin and sources of law generally and/or in specific societies;
• the historical development of law in general and the emergence
and evolution of specific legal systems, traditions and practices;
• the meaning of specific legal concepts and the construction of
various legal structures and processes;
• the link between law and other social phenomena, such as political
ideologies, economic interests, social classes, and moral and
religious conventions;
• the operation of the law as a mode of social control and the effects
that it has on the persons to whom it applies, in terms of justice as
well as social, economic and political developments.
This interdisciplinary quality of jurisprudence has meant that a student
of the subject has to touch on matters that would normally belong to
such diverse other disciplines as philosophy, political theory, economic
theory, sociology, anthropology, history, theology and even geography!
Within all these other areas of study are to be found the munitions of the
jurist, who uses the conclusions and insights of scholars studying in
such areas to explain law as a social phenomenon, and applies the
methodology of these other modes of enquiry to further the
understanding of particular legal concepts.
Is there any purpose to jurisprudence?
Many students initially fail to appreciate the relevance, if any, of the
type of study about the law which jurisprudence requires, and this
creates an attitude which has a substantial impact, not only on the way
they treat the subject during their study of it, but also (and more
importantly) on the manner in which they will approach and seek to
answer examination questions. It is necessary, therefore, to provide a
meaningful response to that most common of reactions: what is the
point of it all?
Jurisprudence, as a subject in many law school curricula, is intended
to provide the law student with a device by which he can ground his or

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ESSENTIAL JURISPRUDENCE

her academic knowledge of the black-letter of the law to the reality of

the social context in which the legal rules, structures and processes
actually occur and operate. The idea, then, is to link the wealth of legal
concepts, rules, statutes, precedents, structures and processes, which
one has imbibed haphazardly over a period of time, to the systematic
theoretical and sociological insights about the role and place of law in
society which jurisprudence seeks to provide. In this way, the student is
supposed to see the ‘law’ in context, as a systematised and
comprehensive whole, with a definite strategical position in the social
scheme of things, rather than as a series of distinct and disparate ‘legal
subjects’, whose only essence is contained in the dry rules, concepts and
cases that need to be crammed.
The study of jurisprudence must be seen as being the investigation of
the dynamic link between law and other social facts. In this respect, the
student must see the various theoretical and philosophical propositions
which he is required to deal with, not as some meaningless postulations
which have no real relevance to the reality of the law, but as serious
attempts by committed scholars to give some meaning to the black-
letter of the law.
Each theorist whose works may be included in the syllabus is not
concerned merely with an esoteric academic reflection on the law, but
even more so with the social reality within which the legal
practitioner—such as a solicitor or a barrister—operates, and the very
real people whom he has to deal with. At every stage in the study of the
subject, the student must, therefore, try to grasp this link between
theory and practice and must positively evaluate the arguments of the
various jurists, from the point of view of whether or not they provide a
meaningful explanation of the law as they have encountered it at both
the academic and the practical level.
Further, it is important continuously to reflect on the law as a social
fact and to try and see the link between it and actual events and
developments in society, as well as in the world in general. The student
may do well to ask himself questions such as the following as he goes
along: is it true to say that the law is more a matter of coercion than
anything else and, if so, are there any examples to be found, either in
history or in contemporary events, to justify this proposition? Is law
synonymous with morality, or does it even substantially reflect the
conventional morality of particular communities—what are the
realities in this and other societies? To what extent may the legislators in
this society be said to be concerned with the welfare of the citizens and,
if they are, how do the various legal measures which they take or have
taken to promote that welfare compare with the various conceptions of

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 ESSENTIAL QUESTIONS

justice which have been advanced by different jurists? Is any one

conception of justice decidedly better than any others, and why? Do
judges have any substantial influence at all on the development of the
law and the promotion of various ideas and values in society through
the medium of the law? What do actual cases that have been decided
show about the judicial role in determining the way in which the law
affects specific people or groups of people?
Attempting to answer such practical questions as these will involve
looking at the issues of legal theory, legal practice and legal attitudes.
These, in fact, make up the subject matter of jurisprudence. Jurists deal
with ideas which seek to explain social practice, and the student will
better be able to understand the essence and worth of these ideas if he
applies them in an ongoing evaluation of what is actually happening in
society. To this extent, therefore, jurisprudence is not the same as the
study of literature, where one is concerned with the analysis of
occurrences, ideas and concepts which are merely the figment of the
author’s imagination and which may, therefore, be more or less
removed from reality. Despite their extreme consciousness of, and
attention to, words and their meaning, jurists are dealing with concrete
issues of legal and social ordering, along with the welfare of real people
in actual communities. Appreciating this fact will help the student to
approach the subject in a manner which will enable him, not just to see
the study of the subject as being a worthwhile enterprise, but also to
understand the subject matter of jurisprudence more easily and to be
able to tackle examination questions from the right perspective.

15
2 Theories of Law (I):
Natural Law Theory

You should be familiar with the following areas:

• the main presuppositions of Natural Law theories

• the methodology of Natural Law theorists
• the contributions classical and medieval Natural Law theorists
• the secularisation and revival of Natural Law theory
• John Finnis’ restatement of Natural Law theory
• Lon Fuller’s concept of the morality of law
• the main criticisms of Natural Law theory

The nature of Natural Law

What constitutes Natural Law theory?

Natural Law theory generally comprises an approach which seeks to
explain law as a phenomenon whose existence is an expression of some
higher law, to which it must necessarily approximate.
Natural Law theories have historically tended to be either secular or
theological in their identification of the ‘higher law’ which governs
human society and which provides the model for human law:
• Theological theories
These regard the universe, including human society, as having been
created and as being currently governed by some deity, who has
laid down constant principles which must eternally control all of
creation. These principles have been made known to humanity
through revelation in the scriptures, and they are common for all
societies. Such principles provide the morality which must govern
all human communities and they constitute a higher law to which
all social arrangements, including the laws created by people, must
strive to approximate.

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ESSENTIAL JURISPRUDENCE

• Secular theories
Followers of this school believe humans have a certain conception
of morality which is intrinsic to them and to their nature. This
morality, which sometimes manifests itself in the form of
conscience, is made up of basic principles which form a basis for
proper human action. These principles are identifiable through the
application of reason, which is a faculty or capacity that all humans
have, enabling them to understand the universe. The principles
make humanity tend towards the virtues, such as justice and
kindness, and away from the vices, such as malice and violence.
Such principles, then, ought to form the proper basis for law
making and, to this extent, they constitute a ‘higher law’ to which
all human laws must strive to conform.
More recent Natural Law theories, such as that propounded by John
Finnis in his thesis Natural Law and Natural Rights, have tended to
deemphasise the metaphysical element of classical Natural Law
theories, with their reliance on a ‘higher law’, since this has
traditionally been a source of much criticism of the Natural Law
approach, especially by Positivist thinkers. Instead, the modern
theories have concentrated on the notion of the ‘common good’, which
is seen as the basis for the existence of society, and argued generally that
law must conform to or advance the requirements of the general
welfare if its existence and operation is to be justified and if society is to
continue to exist and function as a viable entity.

Main presuppositions of Natural Law theory

Natural Law is based on value judgments which emanate from some
absolute source and which are in accordance with nature and reason.
These value judgments express objectively ascertainable principles
which govern the essential nature of persons and of the universe. The
principles of Natural Law are immutable, eternally valid and can be
grasped by the proper employment of human reason. These principles
are universal and, when grasped, they must overrule all positive law,
which will not truly be law unless it conforms to Natural Law. Law is a
fundamental requirement of human life in society.

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 THEORIES OF LAW (I)

The general methodology of Natural Law theories

Many Natural Law theorists have a teleological view of the universe
and of human society. This means that they regard the world,
especially human society, as having an ultimate purpose. Generally,
this refers to some state of perfection, towards which society must
inexorably advance. It may also mean some social goal which is
regarded as being self-evidently ‘good’ and which, it is assumed, all
right thinking persons must desire, as when a reference is made to the
‘common good’.
Law, as a device for promoting the desired good, is regarded as being
a social necessity. Without it, persons in society, although they would
naturally tend towards goodness, are liable to be corrupted by the
exigencies of existence in a relatively harsh and unfriendly
environment; they will not be able to achieve or even work
purposefully towards the desired goal. Law is therefore a guide to those
working for the common good and a deterrent to those who would
work against it.
All human laws must be created in such a way that they provide the
optimum conditions, resources and opportunities for the attainment of
the desired goal. Therefore, these laws must be constantly evaluated in
light of the principles of Natural Law, which specify the proper path
towards the ultimate state of perfection and which provide humans
with a proper basis for their morality and law.
The important question concerning the nature of law is, therefore,
not what the law is at any point in time, since this may not be a true
reflection of the principles of Natural Law, but what the law ought to
be, in order for it to be a true reflection of such principles.
Since the purpose of human laws is to provide for the attainment of
the ultimate state of perfection in accordance with the principles of
Natural Law, the validity or otherwise of laws must be judged in
accordance with the extent to which they accord with these principles.
A law which substantially deviates from these principles is not only a
bad law, but can be regarded as invalid as well, since it does not truly
reflect the model of what law ought to be.
The question of what the law ought to be is an important question of
morality, since it is ultimately based on the value judgments of persons
in society which are properly reached at after the exercise of reason. The
goal which it is intended to achieve through law is also identified
through reflection, and may be objectively discovered from the
attitudes or preferences of all moral persons in society. Natural Law
theorists, therefore, tend to start from an assessment of what the moral

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ESSENTIAL JURISPRUDENCE

attitudes are of people in society. From this, they deduce what the
desired state of perfection and the moral principles leading to it should
be. On this basis, they decide how the desired result can be achieved
through the law. This is what is meant by the assertion that Natural Law
theorists try to derive an ought from an is, that is, from the is of actual
existing moral attitudes to the ought of what must be the desired and,
therefore, proper set of social arrangements. It is then on this basis that
they proceed to evaluate the laws that are actually in place—the law
that is—and decide whether they are valid or not, depending on
whether they are what they ought to be.

The historical origins of Natural Law theory

Early beginnings
It is possible to trace Natural Law thinking from the earliest stages of
social development when, for many simple societies, there was, at some
stage, very little distinction made between the religious and the secular,
the spiritual and the physical. Many early communities all over the
world tended to see a link between the natural world of physical matter
and the spiritual world of gods and spirits. The spiritual world would
be seen as being in control of the physical, including human society
and, with a multiplicity of gods and spirits, there was a spiritual entity
associated with the workings of almost every aspect of the physical
world.
This gave birth to the notion that there was some higher power in
control of human existence and, therefore, some higher set of rules,
principles or laws which humanity could discover with effort, but
which, if grasped, would reveal the plans of the deities for human
society. In a harsh and capricious world, these divine plans must have
been seen as leading to an ultimate state of goodness, where life would
generally be easier for all members of society.
This state of perfection would be the purpose which the deities had
in mind for human society, and humans could assist, and indeed, had to
assist, the gods in their endeavours. If humans could only decipher this
purpose of the deities, whether through reason or through revelation,
they could then govern themselves and organise their activity in a
manner which would hasten the attainment of the good life.

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 THEORIES OF LAW (I)

The classical period and the Christian era

In Europe, the ascendance of the Judaeo-Christian tradition replaced
the polytheism of the ancients with a monotheism which attributed the
creation, governance and ultimate judgment of human society to a
single deity. It was then possible to define a singular purpose for human
existence, with a divine lawgiver providing basic principles for human
morality and law through the scriptures and the revelations of
prophets, and demanding that societies govern themselves on the basis
of these principles, under the direction of kings and others ruling by
divine right.
Parallel to this spiritual/religious development of Natural Law,
early Greek and pre-Socratic philosophers developed the idea of
rationalism. They surmised that the universe was governed by
intelligible laws capable of being grasped by the human mind. It was
therefore possible to derive, from the rationality of the universe,
rational principles which could be utilised to govern the conduct of
persons as individuals in society.
Some examples of classical Natural Law thinking are listed below:
• Socrates (470–399 BC) and Plato (428–348 BC) argued that there
were principles of morality which it was possible to discover
through the processes of reasoning and insight. Law based on these
principles would thus be the product of correct reasoning.
• Plato further developed the ‘idea’ of justice as an absolute ‘thing in
itself, having qualities of truth and reality higher than those of
positive law, which could then be seen as a mere shadow of real
justice. Law must constantly strive to approximate to the Absolute
Idea of justice, and ideal justice could only be achieved or fully
realised in an ideal state, ruled over by philosopher-kings, who
would be capable of grasping the Absolute Idea of justice.
• Aristotle (384–322 BC) recognised nature as the capacity for
development inherent in particular things and aimed at a
particular end or purpose, both in respect to physical and moral
phenomena. He also made a distinction between:
(a) Natural justice, common to all humanity and based on the
fundamental end or purpose of human beings as social and
political beings, which he concluded to be the attainment of a
‘state of goodness’.
(b) Conventional justice, which varies from state to state in
accordance with the history and needs of particular
humacommunities.

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ESSENTIAL JURISPRUDENCE

• The Stoics identified nature with reason, arguing that reason

governs all parts of the universe and that humans, as part of the
universe and of nature, are also governed by reason. People will
therefore live ‘naturally’ if they lived according to their reason.
• Cicero (106–43 BC) argued that nature provided rules by which
humanity ought to live; these rules, which could be discovered
through reason, should form the basis of all law. In this regard, he
claimed, in De Legibus:
True law is right reason in agreement with nature, it is of universal application,
unchanging and everlasting; it summons to duty by its commands and averts
from wrongdoing by its prohibitions… It is a sin to try and alter this law, nor is
it allowable to repeal any part of it, and it is impossible to abolish it entirely.
And further, regarding the universality of law:
Nor will it be one law at home and a different one at Athens, nor otherwise
tomorrow than it is today; but one and the same law, eternal and
unchangeable, binding all peoples and all ages; and God, its designer,
expounder and enactor, will be, as it were, the sole ruler and governor of all
things.
Cicero established the view that an unjust law is not law, arguing
that a test of good law was whether it accorded with the dictates of
nature.

The medieval period

This stage in European history saw the final integration of the
rationalist and the religious approaches to Natural Law. This was
mainly the work of St Thomas Aquinas (1224–74).
Aquinas divided law into four categories:
(a) Eternal law—which constitutes God’s rational guidance of all
created things and is derived from the divine wisdom and based on
a divine plan.
(b) Divine law—that part of eternal law which is manifested through
revelations in the Christian scriptures.
(c) Natural Law—which describes the participation of rational
creatures in the eternal law through the operation of reason.
(d) Human law—which is derived from both divine law and Natural
Law and which is, or must be directed towards the attainment of
the common good. This law may be variable in accordance with the
time and circumstances in which it is formulated, but its essence is
to be just. Thus, lex injusta non est lex (an unjust law is not law).

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 THEORIES OF LAW (I)

For Aquinas, a human law would be unjust where it:

• furthers the interests of the lawgiver only;
• exceeds the powers of the lawgiver;
• imposes burdens unequally on the governed.
Under these circumstances, disobedience to an unjust law becomes a
duty. However, such disobedience, though justified, should be avoided
where its effects would be to lead to social instability, which is a greater
evil than the existence of an unjust law.

The secularisation of Natural Law

This began with the decline of the Roman Catholic Church following
from the Reformation in Europe. Essentially, this secularisation resulted
from Protestant theorists seeking to develop a doctrine of Natural Law
which would not be dependent on the papacy and papal
pronouncements for its coherence.
One of the main secular Natural Law theorists at this stage was Hugo
Grotius, a Dutch statesman and jurist who, in his writings, sought to
separate Natural Law from its narrow theological foundations. Instead,
Grotius emphasised the classical explanation of Natural Law as being
grounded in the authority of reason based on the Aristotelian system—
that is, that Natural Law principles are derived or derivable from the
nature of the human intellect, which requires and desires society to be
peaceful. Thus, these principles are independent of divine command,
and it is possible to have Natural Law without appealing to God. Any
law contrary to the principles so derived would be invalid from the
point of view of rationality, and laws could be seen as having a
constructive and practical function—the creation and maintenance of a
peaceful society.

The decline of Natural Law theory

The 18th and 19th centuries saw the decline of Natural Law theory as it
came under attack from rationalist and increasingly secularist
approaches to the problems of the human condition.

The 18th century

In this, the ‘age of reason’, thinkers like Charles de Montesquieu (1689–
1755), David Hume (1711–76) and Adam Smith (1723–90) criticised
Natural Law theory for its assertion that there was some ultimate,
metaphysical purpose to human existence and human society, separate
from the moral and physical realities of everyday life.

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ESSENTIAL JURISPRUDENCE

Hume especially attacked the a priori reasoning behind most Natural

Law thought, especially what he regarded as being the irrational
attempt to derive ought propositions from is propositions.

The 19th century

This period saw an even more virulent attack on Natural Law theory, as
emphasis was placed on the notions of State power and coercion. For
example, the German philosopher, Hegel, sought to deify the State,
which he regarded as an end in itself, an absolute sovereign whose
essence derived from the laws of history and was, therefore, not subject
to some external, higher law.
The 19th century also saw the rise of the Positivist approaches to law,
as expounded by such theorists as Jeremy Bentham and John Austin,
which sought to place a strict separation between the two notions of what
the law is and what it ought to be. Law and morality could and, indeed,
should be kept separate, and the principles of Natural Law were
regarded as belonging more to the realm of morality than to that of law.

The revival of Natural Law theory

The 20th century saw a decided revival of Natural Law approaches to
the study of law, particularly the notion that there must be a higher set
of principles, separate from the positive law, which the latter must
satisfy if it is to be regarded as valid law. This revival was the result of a
number of factors, including:
• the general decline of social and economic stability worldwide;
• the expansion of governmental activity, especially the increasing
encroachment of state institutions on the private lives of citizens
through the medium of the law;
• the development of weapons of mass destruction and their
increasing use in wars on a global scale;
• increasing doubts regarding the use and effectiveness of the
empirical sciences in determining and resolving problems of the
human condition.

John Finnis—Natural Law and natural rights

The restatement of Natural Law

JM Finnis proceeds from a denial of the criticism, first aired by David
Hume, that classical Natural Law theory irrationally sought to derive
an ought from an is, that is, to derive normative values by reasoning
from observed natural facts. He concedes that some Natural Lawyers of

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 THEORIES OF LAW (I)

the classical school, especially the Stoics and the medieval rationalists,
may have done so. However, he bases his own restatement of Natural
Law on the writings of Aristotle and Aquinas, whom he claims were
not guilty of this irrationality.
In his re-interpretation of the writings of Aquinas, Finnis argues that
the normative conclusions of Natural Law are not based on observation
of human or any other nature. Rather, they result from a reflective grasp
of what is self-evidently good for all human beings and from a practical
understanding gained by experiencing one’s own nature and personal
inclinations.
Finnis argues that objective knowledge of what is right is made
possible by the existence of what he calls ‘basic forms of human
flourishing’, which are objective ‘goods’, distinct from any moral
evaluations of goodness. These are generally things which, for most
people, make life worthwhile, and they are self-evident—that is, they
would be ‘obvious to anyone acquainted with the range of human
opportunities’.
Natural Law, then, is a set of principles of practical reasonableness to
be utilised in the ordering of human life and human community in the
process of creating optimum conditions for humans to attain the
objective goods. These conditions constitute the ‘common good’.
Finnis lists seven objective goods which he regards as being
irreducibly basic. These are:
• life—the first basic value;
• knowledge—a preference for true over false belief;
• play—performance for the sake of it;
• aesthetic experience—the appreciation of beauty;
• friendship or sociability—acting for the sake of one’s friends’
purpose or well being;
• practical reasonableness—the use of one’s intelligence to choose
actions, lifestyle, character, etc;
• religion—the ability to reflect on the origins of the cosmic order and
human freedom and reason.
These objective goods are attainable only in a community of human
beings where there is a legal system which facilitates the common good.
Rulers have the authority to work for the common good, and unjust
laws which work against the common good may be valid, but they do
not accord with the ruler’s authority. The position of rulers may give the
rules which they create a presumptive authority, but those that are
unjust, though they may be technically valid, will be no more than a
corruption of law.

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ESSENTIAL JURISPRUDENCE

Assessing the implications of Natural Law theory

The main criticisms of Natural Law theory

Some of the main criticisms of Natural Law theory have been
articulated by writers and thinkers of the Positivist school. Essentially,
these have attacked Natural Law theory’s elevation of propositions
which, it is argued, cannot be empirically verified. The close link which
Natural Law places between morality and law has also been seen as a
result of irrationality and a source of confusion. Some of the criticisms
can be summarised as follows:
• The attempt by Natural Law theorists to derive ought propositions
from is propositions is neither logically possible nor defensible.
• Natural Lawyers are wrong to place a strong connection between
law and morality. Although law may sometimes reflect morality,
the two are distinct phenomena and should be recognised as such.
An analysis of the one should therefore not impinge upon our
conception of the other. A law can be valid because it has been
created validly, even though it may offend our moral sensibilities.
• Morality is a matter of personal value judgments, which may
change erratically for a variety of reasons. It is therefore
undesirable to base the development of law, with its necessary
requirement for certainty and predictability, on moral
considerations as the Natural Lawyers would have us do.
• The appeal by some Natural Law theorists to the existence of a
‘higher law’, which should be a measure of moral and legal
propriety, is an appeal to irrationality, since it is not possible
objectively to demonstrate the existence of such principles.

The contribution of Natural Law to legal theory

Probably the most significant contribution of Natural Law theory to
legal discourse is its invitation to all and sundry to critically reflect
upon the law as a social instrument for attaining various ends, which
may be shared by the majority of people in a community or by a few
persons in a position of political control. The emphasis on the link
between law and the moral values and aspirations of persons in society
is a recognition of the extent to which law controls the everyday lives of
citizens. An appreciation of this fact will allow us to see law as
something which can be used positively or negatively and, as such,
something which we need to be constantly evaluating if we are not to
allow society to slide into tyranny and chaos.

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3 Theories of Law (II):
Positivist Theories of Law

You should be familiar with the following areas:

• the basic methodological approaches of Positivism

• the imperative theories of Jeremy Bentham and John Austin
• the pure theory of Hans Kelsen
• criticisms of Positivist legal theory
• HLA Hart’s critique of the ‘imperative theorists’

What is the Positivist approach to law?

Legal Positivism generally comprises an approach to the question of the

nature of law, which regards the law’s most important feature as being
the fact that it is specifically created and put forward—‘posited’—by
certain persons in society who are in positions of power and who, then,
provide the sole source of the validity and authority of such law.
For Legal Positivists, the issue raised by the question ‘what is law?’ is
essentially a question of fact, to be answered by empirical reference to,
and an analysis of, objective social phenomena. In making this analysis,
only such material as can be factually identified as being legally
relevant should be taken into account, because the law is a distinct
phenomenon which can originate, exist and be explicable only within
its own terms, even though it may have some similarities or
connections with other social phenomena such as morality, religion,
ethics and so on.
An investigation into the nature of law can be seen as being an
attempt to answer two questions, which may in themselves be seen as
being elements of the general question ‘what is law?’. These two
questions can be phrased as follows:

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ESSENTIAL JURISPRUDENCE

(a) What is the law?

This is a question of fact, involving an attempt to explain the actual
incidence of law in various societies and to identify and analyse its
basic characteristics, structures, procedures and underlying
concepts and principles. In legal theory, this is normally referred to
as the is question, since it requires mainly the factual identification
of law.
(b) What is good law?
This is a normative question, comprising an evaluation of the
existing law and seeking to judge it in terms of goodness or badness
by reference to some standard which specifies a goal that is regarded
as being desirable, and towards which good law must aspire. In
legal theory, this is generally referred to as the ought question, since
it involves an assessment of the existing law in terms of whether or
not it is what it ought to be by reference to the desired goal and the
accepted standard of good law.
Generally, Legal Positivists argue that, although these two questions
may be equally important and deal with the same phenomenon (law),
they are essentially different, deal with different issues and require
different answers. Therefore, they should be answered separately and
the issues which they involve should not be confused. The factual
identification of law should be a scientific and analytical enterprise,
which ought to be pursued independently of the normative enterprise
of evaluating such law. For Positivists, any consideration of the moral,
political, religious, ethical and other values which the law may or may
not satisfy must be deferred until the question of what actually
comprises that law itself has been properly and adequately answered.
Legal theorists should avoid the logical confusion which may lead
them to try and derive an ought from an is. This, most Legal Positivists
believe, has always been the problem plaguing the theories of
Natural Law.
It is important to remember that being a Positivist does not mean that
a theorist necessarily rejects the importance of certain value judgments
which may be made about the law. The basic argument of Positivists is
that the issues of fact concerning the existence, validity and authority of
law, and the issues of evaluation of such law in terms of its adequacy
and propriety on the basis of some standard, must be kept separate, and
questions relating to them must be answered separately. Indeed, some
of the greatest Positivists have held fairly strong views on the goodness
and/or badness of laws based on some conception of justice and
morality. For example, Jeremy Bentham and John Austin were

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 THEORIES OF LAW (II)

Utilitarians apart from being Positivists, and they both believed that,
once laws had been properly identified and analysed scientifically on
the basis of Positivist principles, they could then be judged as to their
propriety on the basis of the principle of utility.
Legal Positivists normally seek to provide a formula which can be
used to identify law either generally or in specific societies and systems.
Most Positivists believe that it is possible to provide, in this manner, a
neutral and universally acceptable device by which investigation into
the nature of law may be carried out. Different Positivists have
provided different formulae, either in the form of singular definitions
of what constitutes law or through generalised descriptions of the
essential characteristics which anything must possess in order for it to
qualify as law. However, these are only differences in perspective and
in emphasis, and all these theories remain Positivist in nature.

The imperative theories of law

The term ‘imperative’ is used here to describe a particular approach of

certain Positivist theorists who, in their conceptions, emphasise the
coercive element of the law. Generally, these Positivists believe and
argue that law is essentially a matter of force. The most important
element of law is seen as being the fact that it is created, imposed and
enforced by a group of persons in society who have the power to apply
sanctions on any other persons who may fail to comply with the
requirements of such law. Imperative Positivists generally contend that
if we can identify the powerful people in a society, along with the
instances and processes through which they issue and enforce their
imperative wishes, then we will have discovered the essence of law in
that society.

Jeremy Bentham (1748–1832)

Origins of the command theory of law

Jeremy Bentham is generally credited with being the founder of the
systematic imperative approach to law, although most of what he wrote
in this regard was not in fact published until almost a century after his
death. The first intimations of this approach to law, which may rightly
be described as the ‘command theory’ of law, did appear in at least two
texts which were published in his lifetime, that is, A Fragment on

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ESSENTIAL JURISPRUDENCE

Government (1776) and An Introduction to the Principles of Morals and

Legislation (1789). Most of his work, however, remained in manuscript
until it was discovered and published under the title The Limits of
Jurisprudence Defined (1945). This text was later revised and republished
by Professor HLA Hart as Of Laws in General (1970).
Bentham was a reformer who believed that laws should be created in
accordance with the principle utility, that is, that laws should be aimed
at advancing the greatest happiness of the greatest number of persons
in society. He rejected the Natural Law approach which contended that
laws should be judged in respect of their goodness or badness in
accordance with the requirement of some higher law and did not
believe in the notion of natural rights, which he famously described as
being ‘nonsense on stilts’. For Bentham, only happiness was the
greatest good. The ‘art of legislation’ consisted in the ability to tell or
predict that which would maximise happiness and minimise misery in
society. The ‘science of legislation’, on the other hand, comprised the
adequate and effective creation of laws which would advance or
promote social happiness or pleasure whilst, at the same time, reducing
social pain and misery.
Bentham argued that a distinction should be made between what he
called ‘expositional jurisprudence’, which may be said to be an attempt
to answer the factual question ‘what is the law?’, and ‘censorial
jurisprudence’, which involves the normative question of what the law
ought to be, that is, ‘what is good law?’. Bentham’s answer to the first
question was a Positivist one, for he believed that law could only be
identified and described in terms of legally relevant facts, involving
issues concerned with the processes of law creation and its enforcement
by persons in positions of power and control in society. In this regard,
he stated his intention in legal theory to be:
…to define all law in terms of facts—the political facts of power, human
prescriptions, punishments and rewards—only then could be devised a
scientific theory of legislation based on the principle of utility.

Thus, for Bentham, the question of what constitutes good law could
then be answered in terms of utility—the maximisation of pleasure and
the minimisation of pain—but this answer would only be provided
separately, and only after the requirements of the first question had
been thoroughly investigated and specified.
In providing his formula for discovering what the law in a particular
society is, Bentham advocated a definition of law which hinged upon
the concepts of sovereignty, power and sanctions in a political society.
He defined such a society in the following terms:

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When a number of persons (whom we may style subjects) are supposed

to be in the habit of paying obedience to a person, or an assemblage of
persons, of a known and certain description (whom we may call
governor or governors), such persons altogether (subjects and governors)
are said to be in a state of political society…
Proceeding from this, Bentham went on to define law as follows:
A law may be defined as an assemblage of signs declarative of a volition
conceived or adopted by the sovereign in a State, concerning the conduct
to be observed in a certain case by a certain person or class of persons
who, in the case in question, are supposed to be subject to his power: such
volition, trusting for its accomplishment to the expectation of certain
events which it is intended such declaration should upon occasion be a
means of bringing to pass, and the prospect of which it is intended should
act as a motive upon those whose conduct is in question.
In line with this definition, Bentham argued that eight factual issues
needed to be considered in any investigation of the question of what the
law is. These had to do with the law’s:
• source—that is, the person or persons who had created the law and
whose will it is that the law expresses;
• subjects—the person or things to which the law does or may apply;
• objects—that is, the acts, as characterised by the circumstances, to
which it may apply;
• extent—that is, the range of its application, in terms of the persons
whose conduct it is intended to regulate;
• aspects—that is, the various ways in which the will of the sovereign
as expressed in the law may apply to the objects (above) of that
law;
• force—that is, the punishments and sanctions which the law relies
upon for compliance with its requirements, including such other
laws and devices—what Bentham calls ‘corroborative
appendages’—as may be used to bring such sanctions to bear on
the law’s subjects.
• expression—that is, the manner in which the law is published, and
the various ways in which the wishes of the sovereign are made
known;
• remedial appendages—that is, any such other laws as may be created and
published in order to clarify the requirements of the principal law.

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ESSENTIAL JURISPRUDENCE

John Austin (1790–1859)

Analytical Positivism and the command theory of law

John Austin is generally regarded as being Jeremy Bentham’s disciple,
being, like the former, both a Positivist and a Utilitarian. Since
Bentham’s works were not published for a long time after his death, it
fell on Austin systematically to expound, explicate and popularise the
‘command theory’ of law, which he did in several texts, including The
Province of Jurisprudence Determined (1832) and The Uses of the Study of
Jurisprudence, ed Hart, HLA (1954).
Austin, taking his cue from Bentham, argued for a distinction to be
made between ‘analytical jurisprudence’, looking at the basic facts of
the law, its origin, existence and underlying concepts on the one hand,
and ‘normative jurisprudence’ on the other hand, which would be
concerned with the question of the goodness or badness of the existing
law. Austin, like Bentham, argued that the factual questions of the
existence or otherwise of the law should be answered before questions
of what the law ought to be could be considered; for Austin, as for
Bentham, this latter issue had to be dealt with from the point of view of
the principle utility, that is, the advancement of the greatest happiness
of the greatest number of the members of society
Austin believed that the more important question for the study of
jurists was the question of the factual existence of law, and this he
regarded as being the basic subject of jurisprudence. As he argued in
The Uses of the Study of Jurisprudence:
The appropriate subject of jurisprudence, in any of its different
departments, is positive law; meaning by positive law (or law
emphatically so called), law established or ‘positum’, in an independent
political community, by the express or tacit authority of its sovereign or
supreme government.
And in The Province of Jurisprudence Determined:
The matter of jurisprudence is positive law: law simply and strictly so
called, or law set by political superiors to political inferiors…
For Austin, as for Bentham, the existence of law had to do with the same
issues of sovereignty, power and sanctions. People with power in a
politically independent society would set down rules governing certain
acts for those who were in the habit of obeying them. Austin’s notion of
sovereignty was similar to Jeremy Bentham’s:
If a determinate human superior, not in the habit of obedience to a like
superior, receives habitual obedience from the bulk of a given society, that

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determinate superior is sovereign in that society, and the society

(including the superior) is a society political and independent.

Austin’s definition of law proceeded from the general to the particular

and, in providing his formula for the identification of law in society, he
specified a number of distinctions which, he argued, should be made in
order to ensure that only that material which was legally relevant
would be made the subject of juristic analysis. His starting point was a
very wide general definition of the word ‘law’:
A law, in the most general and comprehensive acceptation in which the
term, in its literal meaning, is employed, may be said to be a rule laid
down for the guidance of an intelligent being by an intelligent being
having power over him.
Within this general conception of law, Austin located two major
divisions:
• the laws of God—that is, laws set by God for his human creatures,
which he regarded as being ‘laws properly so called’;
• laws set by men to men—these comprise two distinct categories:
(a) positive law—that is, laws set by men as political superiors or
in the exercise of rights conferred by such superiors;
(b) positive morality—that is, laws set by men, but not as political
superiors or in the exercise of rights conferred by such
superiors; these include what Austin calls ‘laws by analogy’–
for example, rules relating to the membership of private clubs.
From this, Austin proceeded to make further distinctions which
effectively narrowed down his conception of the positive law which, he
believed, should be the proper subject of jurisprudence.
These various distinctions may be summarised diagrammatically as
follows:

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ESSENTIAL JURISPRUDENCE

Type of laws

34
 THEORIES OF LAW (II)

Ultimately, Austin’s conception of law can be reduced to the simple

statement:
Law is the command of a sovereign backed by sanctions.
The three main elements of that conception were explained by Austin
as follows:
Sovereign
For Austin, the sovereign is the essential source of all law in society and,
indeed, where there is no sovereign, there can be no law. The sovereign
must be a determinate and common political superior, that is, it must be
possible clearly to identify and determine a person or group of persons
who are habitually obeyed by the bulk of the members of society and
who do/es not habitually obey anybody else. The sovereign must be
legally illimitable and indivisible and is the sole source of legal
authority:
Every positive law, or every law simply and strictly so called, is set,
directly or circuitously, by a sovereign person or body, to a member or
members of the independent political society, wherein that person or
body is sovereign or supreme. It follows that the power of a monarch
properly so called, or the power of a sovereign number in its collegiate
and sovereign capacity, is incapable of legal limitation… Supreme power
limited by positive law is a flat contradiction in terms.

Command
The sovereign’s will is expressed in the form of a command. A
command is an imperative form of a statement of the sovereign’s
wishes and it is different from an order, in that it is general in its
application. It is also different from other expressions of will, in that it
carries with it the threat of a sanction which may be imposed in the
event of the subject of the command not complying with it. As Austin
puts it:
If you express or intimate a wish that I shall do or forebear from some act,
and if you will visit me with an evil in case I comply not with your wish,
the expression or intimation of your wish is a command. A command is
distinguished from other significations of desire, not by the style in
which the desire is signified, but by the power and the purpose of the
party commanding to inflict an evil or pain in case the desire be
disregarded. If you cannot or will not harm me in case I comply not with
your wish, the expression of your wish is not a command, although you
utter your wish in imperative phrase.

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ESSENTIAL JURISPRUDENCE

Furthermore:
A command, then, is a signification of desire. But a command is
distinguished from other significations of desire by this peculiarity: that
the party to whom it is directed is liable to evil from the other, in case he
comply not with the desire.

Sanction
A sanction is some harm, pain or evil which is attached to a command
issued by a sovereign and which is intended as a motivation for the
subjects of the sovereign to comply with his or her commands. The
sanction is a necessary element of a command and there must be a
realistic possibility that it will be imposed in the event of a breach. It is
sufficient that there be the threat of the possibility of a minimum harm,
pain or evil:
The evil which will probably be incurred in case a command be
disobeyed or (to use an equivalent expression) in case a duty be broken, is
frequently called a sanction, or an enforcement of obedience. Or (varying
the phrase) the command or the duty is said to be sanctioned or enforced
by the chance of incurring the evil.
Many criticisms have been made of John Austin’s command theory of
law, and most of these have concentrated on its inadequacy in
explaining the incidence of law and the salient features of present day
legal systems. Probably the most systematic of such criticisms have
been made by Professor HLA Hart, and he uses these as the basis for
launching his own theory of law in his book The Concept of Law (1961).
These criticisms are directed basically at the three main features of
Austin’s theory, that is:
(a) the factual identification of, and the central role played by, the
notion of a sovereign in the creation, existence and validity of laws;
(b) the emphasis which Austin, and other theorists of his creed, place
on the imperative aspect of law, that is, the notion of all laws as
being essentially a series of commands;
(c) the element of Austin’s definition of law which makes the notion of
a sanction a necessary attachment to all laws for them to be valid
as such.
These criticisms can be summarised briefly as follows.

The problem of the continuity of legislative authority

Austin’s characterisation of a sovereign requires that that person or
body of persons be identifiable as a matter of fact as the person/s who

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is/are habitually obeyed by the bulk of the members of a society. This

presents a problem of the continuation of legislative authority in the
sense that, where a ruling sovereign passes away and a new one is
installed, there cannot be in the first instance a habit of obedience to that
new sovereign which may give him/her/them authority to make laws.
Does this then mean that the new sovereign is no sovereign at all and,
therefore, cannot make valid laws? If this is the case, how can a new
habit of obedience be established where the new sovereign’s wishes do
not have the authority of law, since only a sovereign can be the source of
commands which have the pedigree to be laws? It would appear that
the new incumbent can never become sovereign in Austin’s terms, and
so can never have the authority to make law. Hart argues that the
problem with Austin’s model of sovereignty is that he lacks the concept
of a legal rule which would simply denote who can or cannot make law
in a particular society.

The problem of the persistence of laws

Austin’s model characterises all laws as the commands of a sovereign.
Therefore, all laws owe their existence, validity and authority to a
particular and determinate sovereign and, practically, there can be no
law without a sovereign expressing wishes in the form of commands.
The problem that this raises is one of the continuing validity of laws
when the sovereign who is their author is no longer in existence. How
can certain laws continue to exist validly and to be applied
authoritatively when those who created them have long passed into
oblivion? Austin’s answer to this problem was that such laws retain
their validity through the ‘tacit consent’ of the new sovereign.
However, one problem with the notion of tacit consent is that it requires
that the new sovereign positively apply his or her mind to the existence
of these laws and to consciously make a decision authorising their
continuing validity, even if this decision is not expressly communicated
or published. The fact of the matter is that, in most cases, new
legislators do not go through this deliberate process of validation of
laws pre-existing their own assumption of legislative authority. They
simply accept the validity of such laws, because there normally is a
‘rule’ in most mature legal systems validating these laws. Austin’s
problem, again, is that his command theory lacked the notion of such a
rule, according to Hart.

The problem of the variety of laws

For Austin, every law must have a sanction for it to have validity, since
the imperative conception of law contends that all laws are in the form

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ESSENTIAL JURISPRUDENCE

of commands expressing the will of a sovereign, and a command is

distinguished from other expressions of will by the fact that commands
invariably carry with them the threat of some harm, pain or evil, which
may realistically be applied in the event of noncompliance by the
subject. One problem which this notion raises is fairly obvious, and this
is the fact that not all laws carry with them the threat of a sanction.
Some laws are merely regulatory and prescribe for people how they
must act, without necessarily threatening punishment. Other laws
confer powers on people to validly create legal relationships, for
example, the laws of contract. An attempt by Austin to denote the
nullity of a contract as a sanction for noncompliance with proper
contractual procedure is decidedly far-fetched, since not all the parties
to a contract will suffer from such nullity. Even for those laws which
usually carry sanctions, for example, the criminal law, normally, the
sanctions are only appealed to in the event of a breach and are not
necessarily in the forefront of the consideration of either the legislators
or their subjects at every stage of the creation and existence of the laws
to which they attach.
Other criticisms of Austin’s doctrine are listed below.

Should the sovereign be above the law?

The requirement that the sovereign be legally illimitable, which leads
Austin to conclude that constitutional law is not law properly so called,
fails to explain the fact that the rules comprising most constitutions are
regarded by those subject to them as binding law and are deferred to as
such. In any case, it is not necessary for legislators themselves to be
above the law in order for their legislative activity to produce valid
legal instruments.

Is ‘international law’ not law?

Austin’s conclusion that international law is not law, but ‘positive
morality’, merely because no specific sovereign can be identified as
being the author of its rules and, since obedience to these is a matter of
choice for the various states, results from a confusion between the lack
of the systematic structures normally identified with municipal legal
systems and questions of validity of laws. Laws may validly exist, even
in situations where some of these structures are non-existent or merely
embryonic in their development.

Does the sovereign have to be indivisible?

The requirement that the sovereign in a politically independent society
be indivisible fails adequately to explain the existence of multiple law

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making bodies in some jurisdictions, for example, federalist societies

such as the US, as well as in parliamentary democracies, where the law
making structures are decentralised. Austin’s attempt to equate the
entire electorate in such systems with the sovereign would lead to the
untenable situation where the electorate would be seen as being in the
process of issuing commands to themselves, as well as being in the
habit of obeying themselves!

Hans Kelsen (1881–1973)

The pure theory of law

The rationale and methodology of the pure theory

Hans Kelsen was an Austro-American jurist who sought to define and
identify the essence of law by providing a formula which would
enable him to exclude any material or factors which might obscure our
perception of such law. As a Positivist, Kelsen believed that the
existence, validity and authority of law had nothing at all to do with
such non-legal factors as politics, morality, religion, ethics and so on.
He therefore sought to identify the essential elements which
constituted the ‘bare bones’ of the law and to present these
systematically, in a manner which would enable us to determine the
existence and analyse the content of law anywhere where it is to be
found. This, he believed, would constitute a ‘pure theory’ of law,
which was scientific and accurate in answering the question ‘what is
the law?’.
Kelsen set out his theory of law in a number of texts, including The
Pure Theory of Law (1934–35) and General Theory of Law and State (1945).
In the former text, he set out his aims and methodology as follows:
The Pure Theory of Law is a theory of positive law. As a theory, it is exclusively
concerned with the accurate definition of its subject matter. It endeavours to
answer the question ‘what is the law?’, but not the question ‘what ought it to
be?’. It is a science and not a politics of law.
That all this is described as a ‘pure’ theory of law means that it is concerned
solely with that part of knowledge which deals with law, excluding from
such knowledge everything which does not strictly belong to the subject
matter law. That is, it endeavours to free the science of law from all foreign
elements. This is its fundamental methodological principle.

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ESSENTIAL JURISPRUDENCE

The pure theory’s perception of law

The nature of law as a system of norms

Kelsen regards the law as a system of coercion, concerned primarily
with the application of sanctions to persons who have acted in certain
specific ways. The law is constituted by norms (statements of what
ought to be), which inform officials of a state as to the instances when
they may apply sanctions to persons whose actions have fulfilled the
conditions under which such sanctions must be applied. These norms
express the reality of the law to the people who are tasked with
enforcing it, even though the actual rules of the system may be phrased
differently.
Moral norms, legal norms and legal rules
Kelsen makes a distinction between a moral norm, which is a required
standard of behaviour in relation to some individual or social
conception of the good, and a legal norm, which merely describes what
the law specifies ought to be under certain circumstances. The legal
norm does not in itself prescribe action; it merely describes what the
law essentially requires, even though the law itself may not be in the
form of an ought proposition. A further distinction is therefore to be
made between legal rules, that is, the law as contained in the
publications of legislators, and legal norms, that is, the law as it is
expressed in the norms which specify what officials ought to do. The
content of legal norms is, for Kelsen, the essence of all law, and is what
all legal science should strive to explicate in respect to different
societies:
It is the task of the science of law to represent the law of a community, that
is, 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’. These
statements, by means of which the science of law represents law, must not
be confused with the norms created by the law making authorities. It is
preferable not to call these statements norms, but legal rules. The legal
norms enacted by the law creating authorities are prescriptive; the rules
of law formulated by the science of law are descriptive.

Primary norms and legal norms

Another way in which Kelsen describes the distinction between legal
rules and legal norms is in terms of primary and secondary norms. The
primary norm may be seen as that statement, which he calls ‘legal
norm’ in the passage just quoted, and which stipulates the sanctions

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 THEORIES OF LAW (II)

which may be applied under certain conditions. It is the primary norm

which constitutes a conditional directive upon officials to apply
sanctions in certain circumstances. The legal rule, that is, the actual rule
created by the law making authority, and which specifies the
proscription or prescription of certain conduct, is then only a secondary
norm; it is not itself the essence of the law. The secondary norm can be
derived from the primary norm by a process of deduction.
Primary norms and the legal signif icance of actions
For Kelsen, all actions have a subjective meaning and an objective
meaning. An act may have no more significance than that which can be
derived from its mere occurrence, for example, the act of picking up a
stone and throwing it at a wall may mean only that the simple physical
act of employing one’s musculature in the physical elevation of a solid
piece of matter and forcefully propelling it in a certain direction, with
the intention that it collide with another, larger piece of solid matter.
This is the subjective meaning of the act and, if there were no law
against this sort of activity, then no more would be thought of it and the
matter would lie where it fell. However, if there were a law against
throwing stones at certain buildings, for example, people’s homes, then
there would be a primary norm which directs officials to apply
sanctions in the event of some person acting in a way which fulfils the
conditions under which sanctions may be applied under that law. In
this case, the act of picking up a stone and throwing it at a wall would
automatically acquire legal significance, in that if the wall forms part of
some person’s abode, then the stone thrower’s act will have fulfilled the
conditions under which an official would properly be required to apply
a sanction by the relevant legal norm. This then becomes the objective
meaning of the act. Moreover, in a legal system which is, on the whole,
efficacious, the appropriate sanction would be duly applied.
The hierarchy of norms and the basic norm or Grundnorm
Kelsen’s legal norms are not a static and disparate set of instructions or
directives to officials to apply sanctions in a haphazard manner. They
are arranged in a dynamic hierarchy, with each norm deriving its
validity from another norm which occupies a position higher up in the
hierarchy. These norms range from the general, which are higher
norms, to the particular, which are lower norms. The ultimate validity
of all legal norms is predicated upon an hypothetical basic norm or
Grundnorm, which occupies the highest position in the hierarchy, and
beyond which no other norm may exist. The basic norm is, in a way, the
‘mother of all norms’ and can sometimes be identified with, although it
is not, the historical first constitution of a society.

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ESSENTIAL JURISPRUDENCE

The basic norm and legal validity

The basic norm is presupposed because the mere contention that a
certain norm exists presupposes its validity, and that validity can only
be derived from a higher norm which, in turn, acquires its validity in an
even higher norm, culminating in a valid Grundnorm. Thus, the
question with legal norms, including the basic norm, is not whether or
not they are valid, since the mere fact of their existence presupposes
their validity; rather, it is one of whether or not, in their existence, they
belong to a particular hierarchy and, hence, legal order. As Kelsen
argues in The Pure Theory of Law:
The law, or legal order, is a system of legal norms. The first question we
have to answer, therefore, is this: what constitutes the unity in diversity of
legal norms? Why does a particular legal norm belong to a particular legal
order? A multiplicity of norms constitutes a unity, a system, an order, when
validity can be traced back to its final source in a single norm. The basic
norm constitutes the unity in diversity of all the norms which make up the
system. That a norm belongs to a particular order is only determined by
tracing back its validity to the basic norm constituting the order.

The basic norm and legal eff icacy

Every society has a basic norm peculiar to it, and this Grundnorm can be
identified by reference to the legal norms, which are actually referred to
by officials in each society when they apply sanctions. It follows that it
is only in a society where officials regularly and effectively apply

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sanctions in accordance with certain primary norms that we can

identify a system of norms and, hence, a basic norm. Kelsen’s formula
for identifying law as a matter of norms, therefore, hinges upon the
efficacy of legal systems in the application of sanctions. It follows, then,
that there cannot be a hierarchical system of norms in a society where
officials do not efficaciously apply sanctions. If we cannot identify such
a system, nor its basic norm, we cannot be able to identify law in that
society. For Kelsen, then, we can properly declare that such a society
does not have law nor a legal system.
The basic norm and legal change
The basic norm is presupposed on account of the actual activity of
officials applying sanctions, in accordance with primary norms which
constitute a system that is, on the whole, efficacious. It follows that the
basic norm can change in situations where officials cease to apply
sanctions in accordance with one set of norms and start applying
sanctions efficaciously in accordance with another set of norms. This
change can best be demonstrated in situations where a revolution
occurs, and Kelsen uses this example:
It is just the phenomenon of revolution which clearly shows the
significance of the basic norm. Suppose that a group of individuals
attempt to seize power by force, in order to remove the legitimate
government in a hitherto monarchic State, and to introduce a republican
form of government. If they succeed, if the old order ceases, and the new
order begins to be efficacious, because the individuals whose behaviour
the new order regulates actually behave, by and large, in conformity with
the new order, then this order is considered as a valid order. It is now
according to this new order that the actual behaviour of individuals is
interpreted as legal or illegal. But this means that a new basic norm is
presupposed. It is no longer the norm according to which the old
monarchical constitution is valid, but a norm according to which the new
republican constitution is valid, a norm endowing the revolutionary
government with legal authority. If the revolutionaries fail, if the order
they have tried to establish remains inefficacious, then, on the other hand,
their undertaking is interpreted, not as a legal, law creating act, as the
establishment of a constitution, but as an illegal act, as the crime of
treason, and this according to the old monarchic constitution and its
specific basic norm.

Implications and criticisms of Kelsen’s pure theory

The purity of the pure theory
Kelsen’s theory has been criticised for its extreme emphasis on the
formal identification of the elements of law, excluding as it does such

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factors as politics, morality and questions of justice. Indeed, he has been

accused of engaging in ‘an exercise in logic, not in life’, and his theory
has been seen as useless as a device for understanding the complexities
of laws and legal systems. It is to be said, however, that Kelsen’s
doctrine has a certain value, in that it helps us to focus on the actual
dynamics of law enforcement, and the fact that, ultimately, it is officials
who decide how and to what extent the law may affect ordinary
people’s lives.
The emphasis on off icial coercive activity
Kelsen’s approach, and his emphasis on the role of officials in the
occurrence and existence of the law, meant that he ultimately saw little
distinction between the State and its law. Indeed, Kelsen saw the State
as the personification of all law, and his view thus disregards, to quite a
large extent, the perspective of the ordinary citizens in a society and
their interest in the development of the law. In fact, for Kelsen, it would
appear that the common citizenry have no more to do with the law than
merely acting in ways which justify the application of sanctions by
officials and, in doing so, their role is merely the passive one of fulfilling
conditions under which sanctions may be applied. Ultimately, for
Kelsen, only officials can disobey the law when they fail to apply a
required sanction. This view appears to be very one-sided, emphasising
as it does the external, coercive element of the law, and disregarding the
reality that laws are, in fact, directed at both officials and ordinary
citizens, and that many private persons are keenly aware of what the
law requires of them in certain circumstances and that, in most cases,
they will strive to act in accordance with those requirements out of a
sense of duty, or obligation. For most people, therefore, their activity
has both a subjective and an objective meaning.
The link between the existence and the validity of laws
Kelsen’s theory equates the existence of the law with its validity, since
legal norms can exist only in a system which is, on the whole,
efficacious, and such a system is comprised of a hierarchy of valid legal
norms predicated upon a valid basic norm. Efficacy in this case means
merely the regular and effective application of sanctions by ‘officials’.
What this means is that the validity of laws in Kelsen’s scheme has
nothing to do with the legitimacy of the law making authority and,
indeed, any usurper can create valid laws once they establish
themselves and start to apply sanctions efficaciously, causing the basic
norm to change. In this regard, Kelsen’s theory has been criticised for
providing legitimacy to political regimes which do not have a mandate
from the citizens to rule and to make law. Certainly, this theory was

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utilised to try and justify the unilateral assumption of power by an

illegal regime in the former Rhodesia in 1965, and to establish the
validity of the laws which it subsequently created in the case of
Madzimbamuto v Lardner-Burke (1968). Further, Kelsen’s theory does not
allow for the criticism of any such valid laws, however iniquitous.
The basic norm as an hypothetical presupposition
Finally, it must be noted that the identification of the basic norm in any
society is an extremely problematic exercise. Since that norm does not
have a specific content, and since it is primarily presupposed, its role in
the validation of the other norms in the hierarchy can be fraught with
obscurities. Since the Grundnorm plays such a pivotal role in the
validation of the other norms of a system, it follows that any problems
which might arise with its identification and explication may affect the
entire coherence and consistency of the hierarchy which it supports,
thus depriving the concept of a legal system of its very foundations.

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4 Theories of Law (III):
Theoretical Alternatives
to Command Models
of Law

You should be familiar with the following areas:

• HLA Hart’s critique of the command models of law

• Hart’s concept of law as the ‘union of primary and secondary rules’
• Ronald Dworkin’s criticism of Positivism and his ‘one right answer’ thesis
• Lon Fuller’s concept of the ‘inner morality’ of law

HLA Hart—the concept of law

The theoretical background to Hart’s concept of law

Hart presents his approach to law as a superior alternative to previous
attempts at explaining the nature of law—especially the Imperative
Positivism of Bentham, Austin and Kelsen—which he believes have
provided us only with narrow, singular and, therefore, inadequate
definitions of the law. Hart argues that it is not possible to answer
effectively the question ‘what is law?’ by appealing to a definition
which merely emphasises some particular feature of the law, such as its
coercive element or its moral dimension. Such an approach will only
serve to obscure other, equally important elements of the law which we
cannot afford to ignore if we are to present an adequate picture and
explanation of the nature of law.
Hart asserts that the main reason why the question ‘what is law?’ has
not been successfully answered over the years has been because of the
continued recurrence of three main issues relating to the nature of law,
which he believes have never been properly dealt with and explained

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by previous thinkers on the subject. These issues may be summarised as

follows:
• The relationship between law and coercion
The question here is ‘how does law differ from and how is it related
to orders backed by threats?’.
• The relationship between law and morality
In this case, the question is ‘how does legal obligation differ from,
and how is it related to, moral obligation?’.
• The nature of rules
This involves the question ‘what are rules and to what extent is law
an affair of rules?’.
For Hart, the efforts to provide a clear cut definition in answer to the
question ‘what is law?’ have ended with many previous writers on the
subject limiting their consideration to only one or other of the above
issues. For example, he attempts to show that the imperative theories
of law have entirely lacked the concept of a rule and that this has
caused them to regard law only as an external system of coercion, thus
ignoring the internal element of legal obligation which leads people to
obey laws, even when there is no threat of force compelling them to
comply.
A related problem is that which arises from what Hart calls the ‘open
texture’ of words and, therefore, of the law. Law is basically a matter of
language—an attempt to communicate required standards of
behaviour by the use of words which are supposed to signify some
notion of reality. However, words, by their very nature, are problematic
as instruments for such communication, since their meanings may be
obscure or their implications may differ, depending on the context of
the intended recipient of the message. In this regard, definitions may be
required of the words used initially and it is the crux of the problem that
any such definitions have, themselves, to be constructed out of other
words, which may also be obscure and so require further clarification.
According to Hart, this problem has led some thinkers, such as the legal
realists, mistakenly to deny that law is a matter of rules and to assert
instead that only what the courts say is what constitutes law. For the
same reason, Formalists have argued for an approach to rules of law
which seeks to limit the choices which might be available in instances
when such rules have to be interpreted.
Linked to the above is a problem which results from the fact that the
creators of any laws in society are, in Hart’s words, ‘men, not gods’.
This means that they have certain limitations, which include:

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• Relative ignorance of fact

It is never possible, when creating a law to deal with a particular
situation, to be absolutely certain that one has included and
covered all material issues and the various possible combinations
of such issues which may confront anyone seeking to use the law to
resolve problems and disputes at a subsequent stage.
• Relative indeterminacy of aim
It is not possible for a legislator to anticipate accurately future
developments in society; therefore, it is difficult to be able to
ascertain the best way to deal with new situations which may arise
and to which existing laws may need to be applied.
A further problem which Hart identifies is the existence of areas of
uncertainty as to what constitutes law and what does not. In this
regard, international law and so called ‘primitive law’ are cases in
point, as both appear to lack some of the features which are normally
associated with law, such as a legislature or a system of courts.
Simplistic and singular definitions of law would then tend to exclude
these categories of legal phenomena, without providing an explanation
as to why they should not be treated as law.

The need for a fresh start

Hart believes that, generally, the problems mentioned above are a result
of the fact that law is a complex social phenomenon which is linked to
other social phenomena in various ways. This makes it difficult to
answer the question ‘what is law?’ effectively through sweeping
singular definitions. He notes several previous and contemporary such
attempts and then concentrates on the ‘command theory’ of law, in
order to demonstrate the problems that these have created.
The approach adopted by Jeremy Bentham, John Austin and Hans
Kelsen, which treats the law as mainly a matter of power, coercion and
sanctions, contains the essential truth that law, to a large extent, makes
certain conduct obligatory. This means that laws limit the range of
options and choices which people in society may have in the
organisation of their activity. It is also true that much of the law,
especially the criminal law, is backed by sanctions and that, in many
mature legal systems, officials work effectively to impose those
sanctions wherever they become aware of a breach of the law. However,
this approach misses one very important point. This is the fact that the
laws of many societies are generally obeyed by their citizens, not
through the fear of sanctions, but because of a certain of sense of
obligation arising from the citizen’s respect for the legitimacy and

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authority of the lawgiver. This is the case even where the individual
may not agree with the requirements of a particular law.
Hart argues that the command theorists, in emphasising force as the
core component of all law, have looked only on one side of the coin—
the external element of law, which compels people to act out of fear.
This may be the ‘bad man’s view’ of the law, but Hart argues that it does
not present a balanced picture. In focusing only on the commands of a
sovereign and the actions of officials in imposing sanctions, the
command theorists have ignored the internal element which
characterises all law. This is what Hart calls the ‘internal point of view’,
which makes people feel a sense of obligation to obey the law. Hart
makes a distinction between the notions:
• ‘to be obliged’—to be forced to act in a certain way because of some
threat, such as when a gunman orders a person to hand over
money;
• ‘to be under an obligation’—to feel within oneself a sense of duty to
act in a certain way, without some external stimulus compelling
such action.
He argues that the command theories explain law only in terms of the
former notion, and that, to this extent, they are inadequate, because the
law operates both in an external and an internal fashion to induce
compliance. Indeed, Hart contends that the law functions less as an
external and more as an internal inducement to action, and that the
external element comes into play only in the occasional event of a
breach, when officials act to apply sanctions.
Hart believes that the main problem with the command theories of
law is that they lack the concept of a rule, which he describes as a
statement of an ‘accepted standard of behaviour’. Where there is a
rule—in this case, a rule of law—which most people are aware of, then
there is no need to have officials constantly watching over citizens to
see that they comply with the law, because most of these citizens would
comply anyway, since they accept the rule as a standard. They use the
rule to judge their own as well as other people’s behaviour. They use the
standard as a basis for criticism of any behaviour, their own and that of
others, which does not comply with the rule, and they use the rule as a
justification for such criticism.
Some of the more specific criticisms which Hart makes of the
command theories of law have been noted in the previous chapter. The
conclusion which Hart reaches through his examination of the flaws in
the imperative approach is that he has effectively established the need
for a fresh start. This, he argues, must be a theory of law which avoids

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singular definitions of the subject. He therefore presents his thesis, The

Concept of Law (1961), as an attempt, not to define law, but to provide an
understanding of law, coercion and morality as interrelated, but
distinct social phenomena. In this regard, his approach is an ‘exercise in
analytical jurisprudence’, for it is intended to analyse especially the
nature of rules in order to determine how legal rules make the law a
distinctive form of social control. However, Hart recognises that the law
is a social phenomenon which can only be adequately understood and
explained in terms of social facts. These facts include the attitudes
which people have and the language which they use in expressing their
conceptions of the law, as well as other social phenomena, such as
morality and coercion. For Hart, therefore, his approach must also be
seen as an ‘exercise in descriptive sociology’, for it seeks to explain the
law in terms of its social context.
Hart is, however, a committed Positivist, and his intention is to
provide an improved Positivist account of the law. He believes that
only that which has been created and posited by the proper law
making authorities in a particular society can properly be called law.
There is no necessary link between law and morality and, although
there may be similarities between them and in their requirements, the
two must still be kept strictly separate. Laws are valid if they have been
created in accordance with the requirements of proper law making in a
certain society and their goodness or badness has no bearing on their
validity.

The union of primary and secondary rules

For Hart, law is a matter of rules. Rules are statements of accepted
standards of behaviour. Law is a system of social rules and, to this
extent, it is similar to morality, which also is constituted of social rules.
Both types of rules are ‘social’, because they arise within a social
context, apply to social activity, and have social consequences.
However, the rules of law are different from those of morality in a
number of fundamental ways.

The systemic quality of legal rules

The main distinctive element of law is that its rules have what Hart calls
a ‘systemic quality’. What this means is that rules of law are of different
types and that each of these categories interacts with the others in a
manner which enables them to be called a system, rather than, for
example, a ‘body’ of rules. Rules of morality generally lack this systemic
quality. The rules of law can be classified into two main groups and it is

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the interaction between these groups which justifies the description of

legal arrangements in certain societies as being a legal system.

Categories of legal rules

Primary rules
These are the basic duty imposing rules of law. They specify what
people ought and ought not to do and, in this way, they create
obligations which members of a society are required to comply with.
Examples are rules of the criminal law, tort and so on. In the more
mature legal systems, these rules are normally created, validated,
enforced and changed by officials.
However, it is possible to envisage a ‘pre-legal’ society, that is, a
society where there may not exist structures such as a legislature and
courts. In such a society, there may still be rules of law, because there
would be certain rules which are accepted by the majority of the
citizens as specifying accepted standards of behaviour and to which
weight and authority are given by consensus. The validity of these rules
as law would then depend on what Hart calls the ‘internal point of
view’ of the citizens in the community, which describes a critical
reflective attitude enabling the citizens to feel a sense of obligation to
obey such laws. This type of arrangement would, however, not be a
legal system as such and it would raise a number of problems for the
citizens:
• The problem of uncertainty
It would always be difficult to determine whether a certain rule was
a rule of law or whether it was some other type of rule, such as a
rule of morality, custom or religion.
• The problem of the static nature of laws
Even where rules of law were known, new situations might arise
which would need the immediate modification of an existing rule
to cover that situation or, failing that, the creation of an entirely new
rule to resolve a problem. It would not be easy to create with
sufficient expedition a new rule through the process of establishing
consensus amongst all the citizens.
• The problem of inefficiency
Where rules of law were broken, there would always be a difficulty
in ascertaining the reality and extent of the breach, as well as of
determining the extent of compensation or the severity of
punishment. Self-help schemes in this respect would result in a
wastage of resources.

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In order to resolve these difficulties, there would be a need for a

different set of rules, which would determine the processes of creation,
validation, transformation and adjudication in respect of the primary
rules of law.
Secondary rules
These are rules about rules, that is, they are rules of law which are
brought into existence for the purpose of governing the creation and
operation of the primary rules and in order to resolve the problems
which have been identified above in regard to a legal arrangement in
which only primary rules exist. Generally, secondary rules are power-
conferring rules, in the sense that they give the ability to some person or
body of persons to do something with regard especially to primary
rules, although such power may be exercised in respect to other
secondary rules as well.
Secondary rules are of three types, corresponding to the problems
which may arise in a pre-legal society:
• The rule of recognition
This is the ultimate rule which determines the existence and
validity of all other rules in a legal system. Although it is classified
as a secondary rule, it lies at the heart of a legal system, because it is
by reference to it that any other rule can be classified as a rule of
law. The rule of recognition therefore resolves the problem of
uncertainty as to the legality and validity of rules. It is itself
identified by determining the formal criteria by which officials in a
particular legal system decide which rules are valid rules of law. So,
the rule of recognition may not be written down or even clearly set
out as a singular rule. Indeed, it may be a conglomeration of rules
setting out the accepted formal sources of law in a society. Thus, for
example, in the UK, the main part of the rule of recognition may be
in the form:
‘Whatever the Queen-in-Parliament enacts is law.’
This would mean that the legality and validity of most rules in this
legal system would depend on whether they have been properly
enacted by the Queen-in-Parliament. However, since there are
other, accepted, formal sources of law in this country, this would
mean that various other elements would have to be added on to the
main part of the rule. Thus, we could have a more comprehensive
rule of recognition which would include these others as sources of
valid law, and the full version of the rule of recognition would be, if
properly set out, something as follows:

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Whatever the Queen-in-Parliament enacts, and whatever bylaws and

regulations are enacted in pursuance of the requirements of, and in
accordance with, the powers set out in the enabling statutes, and
whatever rules originating from custom are properly judged to be law by
the courts, and whatever precedents are, at present, accepted by the higher
courts of the land as accurately specifying the proper interpretation and
application of the laws of this country, shall be the valid laws of the United
Kingdom.
The rule of recognition resolves the problems of uncertainty in the
law by establishing a formal distinction between those rules which
are law and those which are not. In doing so, it provides certain
rules, both primary and secondary, with both legality and validity.
Thus, the rule of recognition will help to determine the separation
between other social rules, such as those of morality, and other
factors determining how people should act, such as certain forms of
coercion.
• The rules of change
Rules of change are necessary to enable changes to be made in the
legal obligations which people may have under the duty imposing
primary rules of a legal system. Such changes may be in the public
sphere, where the state imposes certain duties on citizens, or they
may be in the private sphere, where citizens create certain legally
binding obligations amongst themselves. Thus, rules of change will
be of two types:
(a) Private rules of change
These enable changes to be made in the legal relationships
which private persons have with one another, such as rules of
contract, tort, etc. Such rules confer power, rather than impose
duties, on citizens in their private capacity.
(b) Public rules of change
Such rules give power to officials in their public legislative
capacity to change the primary and other rules of a legal system
in order to meet new developments in the legal needs of the
society.
Rules of change, then, exist in a legal system to resolve the problem
which may arise in a ‘pre-legal’ situation in respect to the various
laws being static and not being capable of expeditious change to
cover new and unprecedented situations.

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• The rules of adjudication

These rules confer power on judicial officials to carry out the
process of adjudication where a dispute has arisen or a law has
been breached. They also set out standards for the proper
determination by the courts of the instances, the extent and the
commensurate punishment or compensation for any breach of the
law. These rules exist to resolve the problems of inefficiency which
might arise in a ‘pre-legal’ society, where there would be no courts
to adjudicate and no way of knowing for certain when a rule of law
has been broken and how the situation should be dealt with.
In the ‘union of primary and secondary rules’, Hart believes that he has
found ‘not only the heart of a legal system, but a most powerful tool for
the analysis of much that has puzzled both the jurist and the political
theorist’. He believes that this approach is superior to previous
attempts to explain the nature of law. This is because it allows us to see
legal phenomena, not in terms of isolated precepts with no meaningful
link to social reality, not in the form of disparate chunks of legislative or
other obstacles to certain activity, but as a unified system of social
control, which is predicated upon the concept of the rule of recognition.
This, then, requires and enables us to explain the related notions of
‘legislation, jurisdiction, validity and, generally, of legal powers,
private and public’.

Law, justice and morality

Hart’s view of justice is that it is an aspect of morality and, to that
extent, it shares the basic characteristics of all moral concepts. Justice,
however, is a ‘distinct segment of morality’ and may be considered
separately, because it is specifically concerned with the manner in
which people are treated, not only in their individual capacity, but as
members of a class. Where most moral conceptions are private, in so far
as they relate to individual and personal activity, justice is concerned
with the operation of public institutions and the manner in which they
treat classes of people. So, for Hart:
Justice constitutes one segment of morality primarily concerned not with
individual conduct, but with the ways in which classes of individuals are
treated. It is this which gives justice its special relevance in the criticism of
law and of other public or social institutions. It is the most public and the
most legal of the virtues.

The concepts of justice and injustice can be seen as ‘specific forms of

moral criticism’, and justice requires a ‘specific form of excellence’ in

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the law. The idea of justice itself ‘consists of two parts: a uniform or
constant feature, summarised in the precept “treat like cases alike”, and
a shifting or varying criterion used in determining when, for any given
purpose, cases are alike or different’. In its operation, justice requires a
close adherence to the notion of proceeding by a rule, and its ultimate
effect is to create amongst individuals a moral and artificial equality
which offsets the inequalities of nature.

The difference between morality, law and other social rules

Hart acknowledges the approach which has tended to emphasise the
‘externality’ of law, as opposed to the ‘internality’ of morality, and notes
that this distinction expresses four important and related features
which distinguish moral rules not just from legal rules, but also from
other social rules. These are as follows:
• Importance
Moral rules or standards tend to deal with issues of great
importance. This is reflected in three things:
(a) moral standards are maintained, even where the tendencies or
desires they restrict are very strong and where such restriction
is costly in terms of personal interest;
(b) serious social pressure is exerted to ensure that moral
standards are observed by individuals and that such standards
are taught or communicated to all members of society;
(c) it is generally recognised that failure to observe moral
standards will result in serious and unpleasant consequences
for the individual.
Hart points out that, although legal rules may require or forbid the
same things as moral rules, and so be deemed to be equally
important, such importance is not as much an essential element of
the legal rule as it is of the moral rule.
• Immunity from deliberate change
Unlike legal rules, which may be enacted, amended or repealed,
moral rules cannot be created or changed in the same way
• Voluntary character of moral offences
Moral offences can always be excused where the perpetrator shows
that he did what he could to avoid breaking the moral rule. The
same excuse does not always assist a wrongdoer to avoid
punishment where a legal rule has been broken.

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• The form of moral pressure

The pressure exerted by law to deter people from breaking legal
rules typically involves threats of physical punishment or other
unpleasant consequences. Morality, on the other hand, normally
operates by providing an emphatic reminder to the would-be
wrongdoer about the morality or immorality of their action.

The relationship between law and morality

Whilst Hart notes that there are clear and specific differences between
the law and morality, he nonetheless acknowledges that there are many
ways in which the two are related. As he admits at the beginning of
Chapter 9 of The Concept of Law:
There are many different types of relation between law and morals and
there is nothing which can be profitably singled out for study as the
relation between them.

He further notes the profound influence which morality has had on the
development of law:
Thus, it cannot seriously be disputed that the development of law, at all
times and places, has in fact been profoundly influenced both by the
conventional morality of particular social groups, but also by forms of
enlightened moral criticism urged by individuals, whose moral horizon
has transcended the morality currently accepted.

The minimum content of Natural Law

According to Hart, there is a fundamental similarity between law and
morality, which arises from the fact that both phenomena are concerned
with the organisation of human social activity as well as with the
protection of certain vital interests of human beings in society. This
similarity is expressed in what Hart calls the ‘minimum content of
Natural Law’, which he says is comprised of ‘universally recognised
principles of conduct, which have a basis in elementary truths
concerning human beings, their natural environment, and aims’.
These principles identify certain ‘truisms about the human
condition’, which make it necessary for law and morality to have a
specific content in terms of the requirements which they both place on
humans in society, as well as the interests which they protect. Thus,
law and morality will have the same or a similar minimum content,
because they are both concerned with satisfying the same basic human
needs.

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Survival as a basic human goal

Hart asserts that the most basic goal of all human beings is to survive,
since ‘in general, men do desire to live, and…we may mean nothing
more by calling survival a human goal than that men do desire it’.
Society is not a ‘suicide club’; therefore, questions of law and morality
must deal with issues relating to the continued existence of its
members. Whilst humans seek to survive and to continue to survive,
law and morality must confront some basic problems, which may make
this a difficult goal to achieve. These problems arise from the following
‘truisms’:
• Human vulnerability
Humans can be and occasionally do get physically injured. Law
and morality, therefore, consist mainly of prohibitions, one of
which is against the use of force and/or killing others.
• Approximate equality
Humans are relatively equal in physical strength and ability; this
allows for competition where there are no guaranteed winners,
since ‘even the strongest must sleep sometimes’. The fact that this
competition could have negative consequences necessitates the
creation of a system of mutual forbearance and compromise, which
is the base for legal and moral obligation. To this extent, then, law
and morality make life ‘less nasty, less brutish and less short’ than it
would otherwise be.
• Limited altruism
Human society is plagued by the fact that ‘men are not devils
dominated by a wish to exterminate each other…but…neither are
they angels’. The possibility of causing each other harm in certain
circumstances necessitates the articulation, through both law and
morality, of mutual promises and forebearances. If all humans were
angels, then such provisions would not be necessary and, if they
were all devils, these provisions would not be possible.
• Limited resources
Humans exist in an environment which does not have a limitless
supply of resources for food, clothes and shelter. The possibility of
some unfairly depriving others of such resources necessitates the
creation of rules, both legal and moral, for the protection of some
institution of property, though not necessarily private property.
• Limited understanding and strength of will
Knowledge and understanding of the rules protecting persons,
property and promises in society is difficult for some; for others,

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even when they know the rules, the temptation to break them may
be irresistible. This necessitates the stipulation of sanctions to deter
those who might harm others in breach of the rules.
According to Hart, these simple truisms:
…disclose a core of good sense in the doctrine of Natural Law. They are of
vital importance for the understanding of law and morals, and they
explain why the definition of the basic forms of these in purely formal
terms, without reference to any specific content or social needs, have
proved so inadequate.

Ronald Dworkin’s rights-based theory

Dworkin’s theoretical stance

Ronald Dworkin set out most of his main ideas on the nature of law in
the two texts: Taking Rights Seriously (1977) and Law’s Empire (1986). He
occupies a theoretical position which rejects some of the basic tenets of
Natural Law theory, but which is, however, at the same time, extremely
critical of the Positivist approach to law. Indeed, it has been said that his
ideas constitute a third theory of law, since he appears to occupy a
middle ground between Positivism and Natural Law, without
identifying meaningfully with either of them.
Dworkin disagrees with the approach of Natural Law thinking to the
question of the nature of law in three respects:
• He rejects the a priori reasoning of Natural Law thinkers which
assumes the existence of predetermined moral principles which, in
turn, are supposed to determine the validity of all made laws and to
which the latter must approximate.
• For Dworkin, the close link which Natural Law thinking places
between the notion of justice and the fact of law, making it
impossible to distinguish between the validity of a law and its
injustice, is implausible.
• He also rejects the claim of Natural Law that the truth of
propositions of law must be determined on the basis of some
moral standard, and that the more accurate interpretation of a
statute is the one which accords most closely with some moral
perspective.
Dworkin disagrees strongly with the three most basic tenets of
Positivism:

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• The notion that law is made up of only one factually identifiable

and objectively verifiable type of standard. Dworkin specifically
singles out the contention, advanced by HLA Hart, that law is
composed only of rules.
• The contention that questions of law and issues of morality must be
kept strictly separate when the nature of law is being investigated.
• The attribution by legal Positivists of extensive discretion,
amounting almost to legislative power, to judges, when they are
involved in the adjudication of ‘hard cases’.

Dworkin’s criticism of Hart’s Positivism

The Positivist identification of law

Dworkin’s main criticism of the Positivist approach to law has to do
with its general conception of the law as being constituted by only one
of a number of different types of standards. The classical Positivists,
Bentham and Austin, saw law as a set of commands issued by a
sovereign who had the power to impose sanctions. Kelsen regarded law
as a set of primary norms, that is, conditional directives to officials to
apply sanctions under certain circumstances. Hart saw law as a system
of primary and secondary rules validated by a rule of recognition. For
all these theorists, as Positivists, a single type of general standard
constituted law, and everything else which did not fit in with the
criteria set out for identifying such law was not legally relevant.
Positivism, ‘hard cases’ and judicial discretion
Dworkin saw the inability of the Positivists to recognise any other
standards as being law as a weakness which, ultimately, led them
erroneously to propose that, in situations where there was no specific
law applying to a particular situation—so called ‘hard cases’—then
judges were liable to use their discretion in order to reach a decision. In
this respect, Dworkin specifically criticised Hart’s concept of law as a
system of rules.
According to Hart’s scheme, only those rules which satisfy the
criteria of legal validity set out in a legal system’s rule of recognition
may be classified as law. Anything else, including rules of morality and
other social standards, cannot be law and will, therefore, not be directly
relevant in the processes of adjudication carried out by the courts.
Normally, judges will not have any problems identifying the rules of
law which apply to a particular dispute and using them to resolve the
dispute.

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However, in ‘hard cases’, judges sometimes do run out of law. Such

‘hard cases’ occur in instances where there is no rule of law which
specifically applies to the case before the court. Alternatively, what
rules exist may be in irreconcilable conflict with each other and thus
cannot be meaningfully utilised. For Hart, as for the other Positivists,
judges in this situation will use their discretion to decide the matter.
This means that they will appeal to their own personal conceptions of
what is just and unjust, along with, perhaps, a consideration of certain
matters of policy, before they make a decision based on their conception
of what is fair. Thus, the process of adjudication in these situations
amounts almost to legislation, giving judges the ability either to make
new law or fundamentally to alter the meaning and range of
application of existing laws. Dworkin argues that this Positivist
approach does not accurately reflect and explain what in fact happens
when courts make decisions in ‘hard cases’.

Dworkin’s ‘one right answer’ thesis

Moral standards and the law

Dworkin believes that the law is made up not just of rules, but also of
other standards, such as policies and principles. These are equal to rules
in terms of importance and effect in the processes of legislation and
adjudication respectively, although they are different from rules in their
character and mode of operation. All these standards together make up
what Dworkin calls the ‘moral fabric’ of a society and are intended to
protect certain interests which are regarded by the members of such a
society as being valuable. These interests are normally specified in
terms of abstract rights, such as the right to life, liberty and human
dignity. Each society may have certain abstract rights peculiar to itself,
since people in different societies may regard different interests as being
valuable and, therefore, deserving of protection. Thus, a certain
‘morality’ in this sense may be particular to a certain society and it will
be possible for us to empirically discover that morality by objectively
determining what interests are protected by abstract rights in that
society. This is what leads Dworkin to reject the Natural Law contention
that we can, through reason alone, discover moral principles which are
higher than the human will and which are universal, eternal and
immutable. The idea of rights, however, still allows him to argue that
morality is or should be a part of law and that considerations of justice
do and must carry weight in the determination of disputes by the
courts.

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The differences between rules and principles

Dworkin distinguishes between rules and principles in the following
manner:
• In the process of adjudication, principles apply or operate
differently from rules. Where a rule applies, it does so in an ‘all or
nothing’ fashion, requiring that the case be decided or the dispute
resolved in accordance with it. Where a principle applies, however,
it does not do so in a conclusive fashion. It provides a reason for the
case to be decided in a certain way, but does not require that the
decision be necessarily in accordance with it. This is because it is
possible for principles to conflict and, in such situations, they have
to be weighed and balanced against each other before the decision
is made to apply the one or the other.
• Because of their propensity to conflict, principles have weight, a
quality or dimension which allows them to be compared, balanced
and for choices to be made between them. Rules do not have weight
in this sense. The validity or invalidity of rules is not debatable.
Either a rule is valid or it is not. Either a rule applies to a particular
case or it does not. There is no question of balancing rules one
against the other.
• Because they do not have the dimension of weight, rules cannot
conflict and remain both valid. Principles can, however, both be
valid and legally binding, even if they conflict.

Hercules and the limits of judicial discretion

Where a case comes before a court of law, the judge is not just limited to
applying one set of standards, such as rules, to resolve the dispute.
There are other standards available to him, such as principles, which
will enable him to make a decision, even in cases where no specific rule
of law applies. These principles will constrain the judge to make a
certain and specific decision and will, therefore, limit his discretion in
adjudication.
For Dworkin, judges do not have quasi-legislative discretion. They
do not have discretion in the ‘strong sense’ of being actually able to
make decisions which have the effect of producing new law or
fundamentally altering existing laws. They may have discretion in the
‘weak sense’, in the manner in which they apply the law as found in
rules and principles. This is because, although judges are not provided
with specific procedures for applying each law, they still must not act in
a mechanical fashion and must exercise a degree of judgment in the
interests of justice and fairness.

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Ultimately, because of the existence and operation of legal principles,

there is, in relation to every dispute, always a right answer to the
question ‘who has a right to win?’. All a judge needs to do is to find that
answer and, in doing so, he must search through the ‘moral fabric’ of
society.
To illustrate his argument, Dworkin appeals to actual decided cases,
where he says the use of legal principles is evident. One such case is the
case of Riggs v Palmer (1889), an American case, where the question
arose as to whether a murderer could be allowed to inherit from his
victim, even though the will deposing the estate in his favour was valid.
Under the applicable rules of testamentary succession, the murderer
was entitled to inherit, since there was no provision for an exception in
relation to this particular situation. The court, however, relying on the
legal principle which says that no person may profit from his wrong,
decided to deny the murderer the inheritance. For Dworkin, this
principle justifies a decision which, at that time, could not have
properly been made under any existing rule of law. At the same time,
however, the application of the principle resulted in a decision which
had as much legal authority as if it had been made under a legal rule.
This shows that there are always legal standards underpinning judicial
decisions in ‘hard cases’, even where the existence and application of
such standards are not always articulated by the respective judges.
To further reinforce his argument, Dworkin postulates a
hypothetical judge, appropriately named Hercules, whom he endows
with superhuman powers of analysis, deduction and adjudication.
Hercules has the capacity, often lacking in ordinary judges, to provide
exhaustive justifications for decisions in ‘hard cases’ on the grounds of
principle. In order to do this, Hercules would have initially to construct
the ‘soundest theory’ of law possible, which would provide moral and
political justification for the legal rules and institutions comprising
‘law’ in his particular jurisdiction. This theory, if properly worked out,
would represent the law as a seamless web of legal rules, legal
principles and other legal standards capable of providing a single right
answer to every instance where the question ‘who has a right to win?’
arises. Hercules would thus be able to justify every correct decision in
respect to ‘hard cases’ by appealing to the soundest theory and to the
standards of adjudication which it specifies.
Unfortunately, most ordinary judges do not possess Hercules’
‘superhuman skill, learning, patience and acumen’ and are not capable
of providing these exhaustive justifications for their decisions in ‘hard
cases’ in every instance. However, the point which Dworkin is making
by positing the notion of the ideal judge is basically this: that the

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process of adjudication in ‘hard cases’ is not as haphazard and

capricious an affair as the Positivist reliance on the notion of judicial
discretion would imply. Judges do seek to find justification for
decisions which they make in such cases and, in many of them, such
justification exists, even though it may not be specifically articulated by
the judge in question.
Of course, judges sometimes make mistakes in deciding ‘hard cases’
and, sometimes, they do not properly apply the correct principles in a
manner which would provide them with a right answer. But this is only
a result of the fallibility of judges as human beings; it does not
invalidate the correctness of other decisions made on the same basis.
The fact that most judges do not provide proper explanations and
justifications for their decisions in ‘hard cases’ does not mean that those
explanations and justifications do not exist.

Lon Fuller and the ‘inner morality of law’

Lon Fuller presents a challenge to the Positivist approach to law in a

way which also rejects Hart’s conception of the law essentially as a
matter of rules. Indeed the differences between Hart and Fuller’s
approaches to the issues of law, morality and legal validity led to the
extended intellectual discourse in 1958 which has been labelled the
Hart-Fuller debate. Hart’s arguments were finally crystallised in his
thesis The Concept of Law, to which Fuller responded with The Morality of
Law (1963).

Fuller’s argument for procedural morality in legal systems

The purpose of legal systems

Generally, Fuller takes an opposite stance to Hart and the classical
Positivists who argued for a strict separation between law and morals.
Fuller saw a necessary connection between law and morality through
what he regarded as ‘reason’ in legal ordering. His main argument
proceeded from the contention that the basic idea underlying and
justifying the creation of a legal system may be seen as being the
purposive enterprise of subjecting human conduct to the governance of
rules. In order for a legal system to be a legal system—that is, a system
of law, as opposed to, for example, a system of coercion—it must
acknowledge certain procedural purposes, described by a certain set of
principles, as its goals.

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The morality of legal systems

Fuller argues that the way in which a legal system is set up must enable
and constrain it to operate in a manner which will effectively satisfy the
ultimate purpose of all legal systems, that is, the governance of human
conduct through rules of law. The principles which specify the basic
requirements for a legal system to satisfy this goal constitute what
Fuller described as ‘the inner morality of law’. The principles are
‘internal’, because the goals which they describe are themselves
intrinsic to the whole idea of law and contribute to its purpose, to the
justification for its creation. According to Fuller, if you are going to put
together a device which is intended to produce law, then specific and
necessary mechanisms must be built into it so that what it produces
will, in fact, be law and not something else. Such mechanisms, the
principles of proper law making in this case, will have a ‘moral’ quality,
because they will provide a standard for evaluating official conduct in
the processes of law creation. This internal morality of legal systems
must be distinguished from the ‘external morality’ of law, which is
made up of the various standards by which we judge the goodness or
badness of individual laws. In this sense, Fuller is talking about
procedural morality rather than the morality of substantive law.
The principles of procedural morality in legislation
Fuller argued for eight principles of proper law making. These were as
follows:
• There must be rules
Law must be constituted by rules, specifying the conduct which is
their subject and how that conduct is to be controlled. Rules have
an ongoing existence after their creation. Law cannot be constituted
by ad hoc stipulations in the form of capricious orders and
commands.
• The rules must be prospective and not retrospective
If human conduct is to be governed by rules, then those whose
conduct is to be the subject of such governance must be informed in
advance of the fact, so that they can plan and organise their
activities accordingly. Retrospective laws have the effect of
penalising people for actions which were not unlawful at the time
when they were perpetrated. The result is to deprive the legal
arrangement of any semblance of system which it could possibly
have.
• The rules must be published
As with the above stipulation, people need to know the categories
of their conduct which are to be governed by rules of law, as well as

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the manner in which that governance is to be achieved. Proper

publication of the rules of law provides such information and is,
therefore, essential for the operation of law as a system.
• The rules must be intelligible
People cannot be expected to comply with the requirements of the
law in the organisation of their activity if they are ignorant of those
requirements. Publication of the rules must, therefore, be in a
manner which is clear, precise and accurate.
• The rules must not be contradictory
Where rules of law contradict each other, the citizen will be
confused as to which rule should be given precedence. In this
regard, then, it would be improper and, indeed, self-defeating to
require compliance with rules in instances where the citizen does
not know whether certain conduct will be deemed unlawful or not.
• Compliance with the rules must be possible
It is quite clear that rules requiring the impossible will, of necessity,
not be complied with, and so it does appear pointless that a system
should produce such rules, except maybe where the intention is
simply to make the lives of citizens difficult.
• The rules must not be constantly changing
Certainty is an essential element of the law as a system of rules, for
it is only when citizens can predict the consequences of their actions
with a fair degree of accuracy that they can meaningfully plan their
actions. A system whose ultimate purpose is to use rules as a device
for governing human conduct must provide for this certainty if it is
to be assured of any degree of success in inducing compliance.
• There must be a congruency between the rules as declared and published
and the actions of officials responsible for the application and enforcement
of such rules
This enables citizens to be reasonably certain that their actions will
attract certain reactions from the system. In this way, citizens can
apply the rules of law to themselves with relative confidence and be
assured of the results of their actions.

The legality of legal systems

Fuller argues that it is only when a system satisfied all eight principles
of proper law making to some degree that they could be called legal
systems. A system which, for example, fails completely to satisfy the
principle that rules should exist, cannot qualify as a legal system,
because the whole notion of a ‘legal system’ has to do with the
governance of people’s conduct through rules. The same applies to all

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the other principles. Where there is a complete failure to comply with

any of the principles, then whatever the system in question produces is
not law, but something else, since only a legal system can produce law
and only compliance with all of the eight principles can qualify a
system as legal.
The morality of legal systems is a ‘morality of aspiration’—that is,
aspiration towards legality. Legal systems aspire to comply
satisfactorily with the eight principles. It is possible for a system to be
more or less of a legal system, depending on the extent to which it
satisfies all the eight principles.
Hart takes exception to Fuller for his description of the eight
principles as ‘moral’, arguing that it is possible for a system to comply
with all the principles and still succeed in making bad law. Fuller,
however, believes that, where a system complies with all the principles,
then the cumulative effect of such compliance is more likely to be the
creation of morally good laws, rather than bad ones.

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5 Theories of Justice (I):
Utilitarianism

You should be familiar with the following areas:

• Jeremy Bentham’s theory of Utilitarianism

• general criticisms of Classical Utilitarianism
• John Stuart Mill’s arguments for utility and liberty
• Utilitarian theory and the economic analysis of law

Jeremy Bentham and Classical Utilitarian theory

Utilitarianism as quantitative hedonism

The Benthamite creed

Intense, long, certain, speedy, fruitful, pure—
Such marks in pleasures and in pains endure.
Such pleasures seek, if private be thy end:
If it be public, wide let them extend.
Such pains avoid, whichever thy view:
If pains must come, let them extend to few.
Bentham, J, An Introduction to the Principles of Morals and Legislation (1789).

Bentham as both Posivitist and Utilitarian

As a legal theorist, Jeremy Bentham was a Posivitist who regarded an
overwhelmingly important field of jurisprudential enquiry to be that of
answering the question ‘what is law?’ in terms of the empirically
demonstrable facts of power, sovereignty and sanctions. He argued that
the two questions of what the law is and what it ought to be must be kept
essentially separate. However, this did not mean that he automatically
rejected the need to evaluate law in terms of certain standards of
goodness or badness. Indeed, Bentham was a renowned reformer, who
believed that the process of legislation should be geared towards the

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realisation of ‘the good’, which, in turn, meant that all legislation must
be aimed at providing abundance and security, and at the reduction of
inequalities between citizens in society.

Bentham’s rejection of Natural Law and natural rights

What Bentham rejected was the approach of Natural Law thinkers
which sought to identify the ‘good’ in law with some higher set of
moral principles, derivable by reason from some metaphysical source,
such as nature or God. This, he believed, was irrational, since neither
the source nor the existence of such principles could be objectively and
empirically demonstrated. Thus, he argued that the notion of Natural
Law was ‘nothing but a phrase’, and so could not be utilised
meaningfully as a standard for determining what was and what was
not law. Similarly, Bentham dismissed as ‘nonsense on stilts’ the idea of
natural rights upon which some—for example, the French
revolutionaries in 1789—sought to base conceptions of justice, since
such rights could not be justified on the grounds of anything
empirically defensible.

The rationale of the principle of utility

Bentham believed that the most important quality of human beings
was their sentience—that is, their ability to feel pleasure (which he
regarded as good and, therefore, to be pursued and maximised) and
pain (which was bad and had to be reduced). These were the two
masters of humanity and Bentham argued that this fact could be
objectively proven—indeed, it was self-evident. There were pleasures
of the sense, such as riches, power, friendship, good reputation and
knowledge, among other things. There were pains of the sense,
including privation, enmity, bad reputation, malevolence, fear
and so on.
For Bentham, it was self-evident that happiness was a good thing,
and that misery was evil, for who in their right mind could possibly fail
to desire the one and to deplore the other? It was, therefore, clear that
the principle of utility had to be the guiding standard and the basis for
evaluation of all action. Utility in this case was to be understood as that
quality of an object or action which gave it a propensity to produce
some good, satisfaction/happiness or benefit on the one hand and to
prevent or reduce pain, evil or mischief on the other. The principle of
utility was, as such, an objective standard for deciding on what was
good law and what was not.

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The felicific calculus and the maximisation of happiness

Bentham believed that it was possible to predict the consequences of an
act accurately and to calculate the extent to which it would promote
pleasure and prevent pain. He believed that we could actually measure
the intensity, duration, purity and fecundity of these sensations and he
proceeded to develop a ‘felicific/hedonistic calculus’ for achieving this.
Taking into account the certainty, propinquity and the extent of such
sensations, we could calculate the social totals of the amount of pleasure
and pain which an action would have. By making a quantitative
comparison between these, we could then choose to perpetrate only
those actions, or enact only those laws, which would have the overall
effect of providing for the greatest happiness of the greatest number.
For Bentham, the ‘science of legislation’ comprised the ability, on the
part of the law making authorities in a State, meaningfully to tell or
predict the sort of actions and measures which would maximise
pleasure or happiness and minimise pain or misery. The ‘art of
legislation’, on the other hand, would be the ability of the legislators to
create laws that would have the effect of promoting the good and
reducing the bad in this sense.

Three basic assumptions of Utilitarianism

The logic of Jeremy Bentham’s Utilitarianism can be said to have been
grounded on three basic assumptions:
(a) The notion that the happiness of an individual person would be
augmented in circumstances where the addition made to the sum
total of their pleasures is greater than any addition made to the sum
total of their pains.
(b) The presumption that the general interest of a community is
comprised of all the interests of the individuals comprising it.
(c) The idea that the collective happiness of a community is increased
in circumstances where the total of all pleasures of the individual
members of that community is augmented to a greater extent than
their pains.

Some criticisms of Bentham’s Utilitarianism

Some of the more specific criticisms of the Benthamite Utilitarian creed
have to do with its coherence and the consistency of its requirements.
These criticisms include the following.
The problems of prediction
Generally, Utilitarian theory is based upon the assumption that it is
possible to predict the consequences of a particular action or law, thus

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enabling prior evaluation to be made of an act in terms of the extent to

which it will maximise pleasure and minimise pain. The contrary view
is that, in practice, it is not possible to look into the future with such
clarity of vision as to be able to determine how a certain arrangement
will turn out. The assertion that it is somehow feasible to evaluate the
goodness or badness of actions and laws, in terms of consequences,
prior to the event is, therefore, essentially fallacious.
The flaws of the felicific calculus
The idea of the felicific calculus, by which we are supposed to be able to
measure the sum total of pains and pleasures flowing from a
contemplated act, is impracticable. Pain and pleasure are simply too
subjective to be measured accurately, let alone for them to be compared
in quantitative terms. The whole idea of being able to calculate the
extent to which the happiness of a community generally has been
augmented and the extent to which the sum total of its misery has been
reduced is based upon an empirically indefensible proposition. To this
extent, the principle of utility, as a standard for evaluating actions and
laws, is not altogether objective, and is no better than the moral
principles proposed by Natural Law thinkers.
The factors determining desires
Utilitarian theory provides what is essentially a consumer model of law,
representing a scenario in which the law makers in a society practically
go shopping around, picking out those measures which, in their
opinions, best satisfy certain perceived desires amongst the members of
their community. In the first place, the truth of the matter is that
legislators do not pick and choose legislative measures in this way. In
creating certain legal arrangements, their actions are determined and
influenced by a whole range of other factors, such as efficiency and
convenience, as well as other values apart from the mere pursuit of
happiness. In any case, it is accepted that the desires of people in society
are capable of being manipulated in various ways. This means that
what the legislators treat as the desires of their subjects may not
necessarily be the genuine article; therefore, the consequences of any
action may not be accurately predictable.
Happiness as a moral goal
Finally, it is argued, the linchpin of Bentham’s Utilitarianism—the
pursuit of happiness and the satisfaction of basic sensual desires—is a
rather gross and perverse aim of morality. Utilitarianism is a moral
philosophy which seeks to provide a theory of justice. Surely, the noble

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ideal of justice demands a more refined conception of good and bad,

and a more rigorous standard for evaluating law than this basic
pandering to unbridled hedonism?

John Stuart Mill and the refinement of Utilitarian theory

Utilitarianism as qualitative altruism

It is better to be a human being dissatisfied
Than a pig satisfied;
Better to be a Socrates dissatisfied than a fool satisfied;
And if the fool or the pig are of a different opinion,
It is because they only know their own side of the question;
The other party to the comparison knows both sides.

Utilitarianism and the nature of happiness: quality v quantity

John Stuart Mill (1806–73) sought to refine the Benthamite version of
Utilitarian theory by adopting a qualitative approach to the main
requirements of that theory.

The sources of satisfaction/happiness

Bentham argued for the maximisation of happiness and the
minimisation of misery purely in the physical sense, that of sensual
pleasure and pain. Mill argued that there were other sources of
happiness which were of a different nature, but which provided as
much satisfaction and were as valuable as pleasures of the sense.

The forms of satisfaction/happiness

Bentham believed that it was possible to measure the quantity of
happiness and misery using the felicific calculus. The difference in
quantity is the only real difference between pleasures and pains. The
proper test of the ‘goodness’ or ‘badness’ of an act is the amount of
happiness or misery which it produces. Mill argued that there are
qualitative, as well as quantitative, differences between sources of
happiness and misery. A proper test of the goodness or badness of an
act needs to make reference to the quality, as well as to the quantity, of
the pleasures and pains produced.

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The value of satisfaction/happiness

For Bentham, the value of pleasures depends merely on the differences
in quantity between them. Mill, however, argued that the quality of
satisfaction or pleasure produced by an act is as important, if not even
more important, than the quantity produced. He believed that the
differences in quality between pleasures may mean that small amounts
of some pleasures are regarded by those experiencing them as being of
much greater value than large amounts of other, less refined,
pleasures.

The nature of human beings

Bentham placed emphasis on the sentience of human beings—that is,
their ability to feel pleasure or pain—in working out the requirements
of Utilitarian theory. This led him to consider only the physical
sensations of pain and pleasure, as elements of misery and happiness.
Mill believed that intelligence, rather than sentience, was a more
important characteristic of human beings. The full use of one’s higher
faculties, therefore, could lead to a greater, truer and qualitatively more
valuable happiness than the mere satisfaction of base physical
pleasures.

Utilitarianism and the need for happiness: hedonism v altruism

Mill’s consideration of the justification and the process of the Utilitarian
search for collective social happiness led him to different conclusions
from those reached by Bentham:
• Jeremy Bentham argued that, in the pursuit of happiness, people
are or should be motivated to secure the happiness of others,
because, by doing so, they ensure their own happiness. To this
extent, the motivation for any actions which assist others to achieve
happiness would be based upon an individualistic pursuit of
personal satisfaction, even though the cumulative effect would be a
general increase in the happiness of the group.
• John Stuart Mill, on the other hand, argued for an altruistic
approach, emphasising that the search for happiness should be
primarily based upon a consideration of the interests and welfare of
others, rather than the interests of the individual. Those engaged in
the creation and evaluation of the institutions and processes aimed
at promoting happiness in society must ensure, as far as this is
possible, that the interests of the individual are aligned with those
of the group.

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Utilitarianism and the search for happiness: justice v utility

The place of justice in Utilitarian theory

Bentham dismissed the notion of justice as a fantasy, which was created
for the purposes of convenience in the discussion of issues and
situations which were the practical products of the application of the
principle of utility. Mill believed that the idea of justice occupied a
central place in the creation of a balance between social considerations
of utility and individual considerations of liberty and equality. The
notion of justice made it possible to create a balance, which would have
the effect of increasing happiness in society.

The relationship between justice and other social values

The notion of justice, for Mill, was closely tied in with his ideas on
morality, equality and liberty. Justice implied the identification of
interests which came together to form ‘something which is not only
right to do and wrong not to do, but which some individual can claim
from us as his moral right’. Equality of treatment is an essential element
in the organisation of social life and its contribution to the maximisation
of happiness or satisfaction cannot be denied. Liberty helps to clarify
the distinction and balance between the interests of the individual and
the goals of society.

The scope of justice

According to Mill, the concept of justice has developed to cover many
areas of activity which are not necessarily controlled through the
agency of the law. For example, in Utilitarianism (1861), he argues that:
It is true that mankind consider the idea of justice and its obligations as
applicable to many things which neither are, nor is it desired that they
should be, regulated by law.

In his view, therefore, justice must be seen as covering both constituted

rights, which are regulated by the law, and other actions and claims
which are not subject to law.

Utilitarianism and the position of the individual: liberty v social

goals

The identification of liberty

In his essay On Liberty (1859), Mill set himself the task of maximising
the liberty of the individual. Within this general category, he included
such specific freedoms as the:

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• liberty of expression and publication;

• liberty of thought and feeling;
• freedom of opinion;
• liberty of conscience;
• liberty of tastes and pursuits;
• liberty to unite for purposes which did not harm others.

The role of liberty in Utilitarian theory

For Mill, liberty was an essential element in the pursuit of happiness,
since it is only in a society where the specified freedoms are guaranteed
that people will be content in the satisfaction that their individual
interests are secured and that they need not fear that they may be
arbitrarily sacrificed in one way or another for the purpose of the
attainment of some social goal. According to Mill, the granting and the
protection of these freedoms provided people with the ability of
pursuing their own good in their own different ways, with the only
limitation being that such pursuits would not interfere with the
interests of others. In this case, then, people had certain rights, and
these Mill defined in the following terms:
When we call anything a person’s right, we mean that he has a valid
claim on society to protect him in the possession of it, either by the force
of law, or by that of education and opinion.

The idea of rights

In a way, for Mill, the idea of rights provides the distinction between the
concept of liberty and the notion of justice. In his famous ‘harm
principle’, he argued that:
The only purpose for which power can rightfully be exercised over any
member of a civilised community against his will is to prevent harm to
others…
For Mill, the individual should have liberty in regard to actions which
do not affect the rights of others. Such rights are determined by
reference to justice. Justice defines that sphere of conduct where society
has an overriding interest and the individual takes second place.
Note
In 1959, the Wolfenden Committee Report recommended the
legalisation of homosexual acts between consenting adults as long as
these were carried out in private. They also recommended the
legalisation of prostitution, as opposed to soliciting. The arguments

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justifying the Committee’s conclusions were much the same as those set
out by Mill in his argument for the maximisation of liberty, particularly
the ‘harm principle’.
In regard to the ‘harm principle’, a problem is posed by the question
of identifying exactly what is meant by ‘harm’. Does this mean:
• Physical tangible harm?
• Physical harm and certain moral—that is, where there is a public
dimension to a private act—harm?
• Physical and moral harm?
In the context of the harm principle, Mill’s reference to ‘harm to others’
may best be understood in the sense of ‘harm to the interests of others’.
The liberty which people in society have in the pursuit of their own
good in their own way must be limited by the need to protect the
interests of others, for if it is not so limited, then those whose interests
are injured will be unhappy, thus reducing the general level of
satisfaction in society. In society, some interests are left to the individual
to decide on how best they may be protected or advanced. However,
there are other interests which society will protect, either through
express legal provision or by way of tacit understanding in the form of
public opinion. Such interests then constitute rights. Justice requires the
protection of these rights and, in this regard, it is what justifies the
limitation of the freedom or liberty of individuals.

The security of liberty in Utilitarian theory

It is important to realise that, despite his argument in the defence of
liberty, Mill is still a committed Utilitarian. To this extent, his ultimate
aim is to provide for a standard or mechanism which will have the
overall effect of maximising happiness or satisfaction in society. In this
context, then, the pursuit of liberty can only be a means to an end. We
guarantee certain liberties for the individual in order to make him or
her relatively content in the knowledge that he or she is secure in
respect to certain of his or her interests. Such contentment can only
contribute to the sum total of social satisfactions. However, these
liberties are not an end in themselves, and their provision takes second
place to the overall purpose of attaining the social goal of happiness. In
this case, therefore, where there is a danger that the individual exercise
of the said liberties may lead to some unhappiness, as may occur when
such exercise infringes on the interests of other persons, then it is
perfectly acceptable to limit or extinguish those liberties. Freedom is

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therefore not absolutely secure in Mill’s scheme of things, since it is

ultimately only a means to an end.

Utilitarianism and the economic analysis of law

The economic conception of justice

The approach which is generally known as the economic analysis of
law (EAL) has been put forward, particularly by American thinkers, as
a viable alternative to Classical Utilitarianism. It generally seeks to
avoid the problems which have confronted the latter theory by
substituting different definitions and assumptions in the argument for
the maximisation of happiness or satisfaction. It does this especially by
emphasising the rationality of persons and their desire for efficiency in
the processes which lead to the achievement of individual and social
goals.
In essence, this approach to questions of law and justice regards
society as, primarily, an economic entity, and people as being basically
homo economicus—that is, humans are regarded as primarily economic
agents, who act and react essentially for economic reasons, seeking as
much as possible to maximise wealth and the satisfaction of their
preferences. To this extent, the law becomes an economic tool, to be
utilised efficiently for the maximisation of happiness. Its creation and
application is governed by economic considerations. Justice then
becomes an economic standard, based on the two elements of
rationality and efficiency.

The contribution of the economic analysis of law to the

Utilitarian debate

The case of the felicific calculus

One problem which has confronted Classical Utilitarian theory is the
criticism that the felicific calculus, developed by Jeremy Bentham for
the prediction and measurement of human pains and pleasures, is
impracticable, since we cannot be certain whether people will be happy
or not with any proposed act or measure. To answer this, EAL argues
that human beings are rational animals. Being rational means that,
where they are given a choice, people will choose and accept actions
which they see as having the effect of maximising their satisfactions by
giving them more of what they desire, rather than less. Thus, we can

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easily predict what reactions people may have to a proposed act by

simply measuring, in economic terms, how much people will get of
what they desire from the proposed act.

The problem of predicting pleasures

Another problem for Classical Utilitarianism is the question of how to
determine accurately exactly what people desire under a given
situation. It is therefore difficult to decide upon what measures to take
in order to maximise the happiness/satisfaction of the greatest number
of people in society. EAL proposes an approach to the problem which
reduces people’s desires to economic units. A person’s desire for a
particular thing may be measured in terms of how much that person is
prepared to pay for the thing, either in money or in the form of some
other resource which they have available to them, such as time or effort.
In this case, therefore, what a person wants is what they are willing to
pay for, and the extent to which they want it is determined from the
amount which they are prepared to pay for it.

The question of balancing desires

Classical Utilitarianism is criticised for seeking to balance the
happiness of certain persons with the misery of other persons in
society, and the argument is that this is not possible. EAL proposes a
formula which, by determining people’s desires and dislikes in
economic terms, allows us to calculate the happiness or misery which a
certain situation or action may cause, by simply finding out how much
certain persons will be willing to pay to have the action occur, and how
much other persons are willing to pay to have the situation or action not
occur. In this way, the balance of pleasures and pains can accurately be
discovered.

Richard Posner and the economics of justice

In his writings in two texts, The Economic Analysis of Law (1977) and The
Economics of Justice (1981), Richard Posner articulates a theory of justice
which generally equates justice with economic efficiency. His
assumption is that the justice of social, political and legal arrangements
can be determined in terms of the concept of wealth maximisation. In
this regard, the operation of legal systems, in terms of the creation,
application and enforcement of the law and, particularly, the common

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law, can be understood and assessed in terms of economic efficiency. In

The Economic Analysis of Law, Posner defines ‘efficiency’ as:
…exploiting economic resources in such a way that human satisfaction,
as measured by aggregate willingness to pay for goods and services, is
maximised.
Efficiency requires that society provide conditions in which the
operation of the free market will ensure that goods, including certain
rights and privileges, will be at the disposal of those who value them
most highly and, therefore, those who are most willing to pay for them.
To this extent, Posner, like the Utilitarians, rejects the moral dimension
of rights, and presents what is essentially an individualistic economic
conception of justice.
Posner analyses the operation of the common law and, along with
other proponents of EAL, concludes that law is basically a set of rules
and sanctions which are intended for the regulation of the behaviour
of persons whose primary instinct is to maximise the extent of their
satisfactions as measured in economic terms. The law is also
administered by people, that is, lawyers and judges, whose main
consideration is economic efficiency. Law is, therefore, created and
applied primarily for the purpose of maximising overall social utility.
Posner further argues that, in society, people will abide by the law if
they predict that they will thereby reap greater economic benefits than
they would get from the spoils of breaking such law. They will break the
law if the opposite is true. People will take their disputes to court if the
financial or economic benefits of such litigation will be greater than the
economic burdens which will accrue.
In the same vein, judges adjudicate in disputes in the most
economically efficient way possible. They punish the most
economically destructive behaviour. They determine questions of
liability, damages and compensation in ways which allocate resources
to those who are most capable of putting them to efficient economic
use, allocating rights to those who would be prepared to pay the most
for them on the free market.
Posner makes favourable reference to the formula set out by Justice
Learned Hand as a test for negligence in the case of United States v
Carroll Towing Company (1947):
The defendant is guilty of negligence if the loss caused by the accident,
multiplied by the probability of the accident occurring, exceeds the
burden of the precautions that the defendant might have taken to
avert it.

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For Posner, the common law has numerous examples of economic

considerations being overtly taken into account in the operation of the
law and the dispensing of justice. This can only be a sign that, even
when it is couched in legal language, the question of justice is in fact an
economic, rather than a legal or moral, standard.

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6 Theories of Justice (II):
Rights

You should be familiar with the following areas:

• Hohfeld’s analysis of rights

• John Rawls’ theory of ‘justice as fairness’
• Robert Nozick and the theory of entitlements
• Ronald Dworkin and the rights thesis

Hohfeld’s analysis of rights

The question of what constitutes a right is a problematic one, since the

word ‘right’ itself may mean a number of different things in different
contexts, be they moral, political, economic or legal. The vocabulary of
propositions and arguments about rights makes it difficult, in many
cases, to distinguish between the specific connotations of the term and
this tends to obscure the meaning and value of rights as basic building
blocks of law, as well as essential elements of the idea of justice.
Wesley Newcombe Hohfeld (1879–1917), an American jurist,
recognised this and, in his text—Fundamental Legal Conceptions as Applied
in Judicial Reasoning (1919)—he set out to unravel what he described as
‘the lowest common denominators of the law’. He noted that:
In any closely reasoned problem, whether legal or non-legal,
chameleonhued words are a peril both to clear thought and lucid
expression.

Hohfeld’s basic rights

Hohfeld’s solution to this problem was to clearly identify the basic legal
conceptions which are usually described by the use of the term right
and then to distinguish between these conceptions by using very
specific terms to express them. This resulted in what is, up to this day,

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probably the most rigorous analysis of jural relations ever attempted.

This analysis is of value in clarifying the implications of the term right
in various situations.
Hohfeld approached the problem through the process of defining
these basic conceptions and then arranging them in pairs of opposites
and correlatives, in order to distinguish between them. He identified
eight different such conceptions, to which he attributed specific terms
of description, and which he then rigorously defined. These were as
follows:
• Right
An enforceable claim to performance, action or forbearance by
another.
• Duty
The legal relation of a person who is commanded by society to act
or forebear for the benefit of another person, either immediately or
in the future, and who will be penalised by society for
disobedience.
• Privilege
The legal relation of A to B when A (with respect to B) is free or at
liberty to conduct himself in a certain manner as he pleases; when
his conduct is not regulated for the benefit of B by the command of
society, and when he is not threatened with any penalty for
disobedience.
• No-right
The legal relation of a person on whose behalf society is not
commanding some particular conduct of another.
• Power
The legal relation of A to B when A’s own voluntary act will cause
new legal relations, either between B and A or between A and a
third person.
• Liability
The relation of A to B when A may be brought into new legal
relations by the voluntary act of B.
• Immunity
The relation of A to B when B has no legal power to affect one or
more of the existing legal relations of A.
• Disability
The relation of A to B when by no voluntary act of his own can A
extinguish one or more of the existing legal relations of B.

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Hohfeld’s arrangement of jural relations

Hohfeld proceeded to arrange these conceptions in terms of opposites

and correlatives, in order to illustrate clearly how they differed in terms
of their legal implications, and how, in some cases, they specifically
contradicted each other. This arrangement may be represented in
diagrammatic form as follows:

Diagram A

Diagram B

Hohfeld’s analysis is based on a number of assumptions about the legal

concepts and the relations which they describe as follows.
There are four basic rights, that is:
(a) rights in the strict sense, which may also be called claim-rights;
(b) rights which are, in fact, liberties or, as Hohfeld calls them,
privileges;

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(c) rights which describe power, in the sense of the ability of one
person to create or change legal relations with other persons; and
(d) immunities, which are rights that protect a person from
interference in a specific way by another person.
These basic rights are the lowest common denominator in all legal
relationships and any other rights which a person may claim to have
can ultimately be reduced to a category of one of these four.
The Hohfeldian basic rights must be thought of as rights against a
specific person and they are distinguished from one another by
reference to what they imply about the other party to a legal
relationship. Each type of right represents one aspect of a legal
relationship between at least two persons.
It is important to note that, although Hohfeld’s analysis refers
specifically to legal rights, the scheme of analysis can also be applied
effectively to the investigation of moral rights.
The relationships between the basic rights and their counterparts can
be explained as follows:
• Jural correlatives
Connected by vertical lines in the diagram—always exist together,
so that, where one person has, for example, a right, then another
person must have a duty. Similarly, where one person has a power,
another person must have a liability.
• Jural opposites
Connected by diagonal arrows in the diagram—can never be held
by one person at the same time. Thus, a person who has an
immunity in respect of certain subject matter cannot, at the same
time, have a liability in respect of the same subject matter. In the
same way, a person who holds a privilege or liberty with respect
to certain subject matter cannot simultaneously be the subject
of a duty.
• Jural contradictories
Connected by horizontal arrows in the diagram—always imply
that, where one is held by one person, then another person lacks its
contradictory. So, for example, the fact that A has a right to
something necessarily means that B does not have a privilege in
respect to the same thing. Where B has a power in respect of some
subject matter, then C cannot, at the same time, have an immunity
in respect of that particular subject matter.

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John Rawls and the priority of liberty

Justice as fairness
John Rawls set out most of his main ideas on justice in the text A Theory
of Justice (1972), although he elaborated on these in subsequent other
writings. In particular, a restatement of his argument is presented in
Political Liberalism (1993). His theory can be described as contractarian
and libertarian, in that it regards society as being based on a social
contract, and in that it emphasises the liberty of the individual. Rawls
regards the status and interests of the individual as being more
important than the goals which a society may have and seek to achieve.
It is for this reason that he is generally very critical of Utilitarianism and
other approaches to the question of justice, which emphasise social
goals at the expense of individual rights. Indeed, in A Theory of Justice,
Rawls sets out to articulate a set of principles of justice which, he
argues, are superior to both Classical and Average Utilitarianism, in
that they will accord better with both our intuitive and our considered
moral judgments about what is just and what is not, in respect of our
position vis à vis social structures and their operation.

Why justice as fairness?

In his approach, Rawls emphasises the need for consent amongst the
people who make up society to the principles which determine what is
just and what is not in that society. He promotes the notion that society
should be regarded as being based upon some sort of social contract or
agreement, which then means that the individual is important in his or
her own right, since it is by the choice of individuals that the society
comes into existence. It is the choice of the individual to join and remain
in society, because of the benefits which can be derived from living
together with other human beings. It is also the choice of the individual
to accept the burdens which become necessary in order for the
community to be stable and viable.
At the same time, each person in society has an interest in ensuring
that what they get out this association, in terms of benefits and burdens,
is their fair share. Because of this, it becomes necessary to ensure that
the basic institutions of society—that is, those institutions which are
responsible for distributing primary goods, such as material wealth,
opportunities and other resources—must be structured in such a way
that they are procedurally just. In other words, such institutions must

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operate in a manner which accords to each person what is probably

their most important basic right in society—the right to equal concern and
respect. The distribution of social benefits and burdens must be fair and
must be seen to be fair in this sense, hence ‘justice as fairness’.

The primary subject of justice

According to Rawls, the primary subject of justice—that is, the element
which should concern us most when we consider issues relating to the
creation of a just and well ordered society—must be the basic structure
of society. This is because the basic structure of society influences the
existence of people in a fundamental way throughout their lives. The
basic structure is made up of the main institutions which are involved
in the distribution of the benefits and burdens of life in society. Such
institutions include the entire set of major social, political, legal and
economic institutions, such as, for example, the monogamous family,
the constitution, the courts, private ownership of the means of
production and competitive markets. The benefits of social life as made
possible by social co-operation include the means of sustenance, such
as food and shelter. They also include other goods, such as wealth and
income, authority and power, as well as rights and liberties. These are
what Rawls calls primary goods. The burdens of social life comprise
certain liabilities, duties and obligations, such as, for example, the
obligation to pay taxes.
Given the focus of questions of justice on the basic structure of
society, Rawls argues that the main problem of justice, and the task
facing those who would recommend ways of creating a just society or
of correcting existing injustices, is one of articulating a set of principles
which would ensure an accurate and concrete determination of what is
just and unjust, as well as helping the development of policies which
would assist in the correction of injustices. Linked to this is the problem
of ensuring that such principles are generally acceptable to the majority
of people in society, so that there is consensus in the resolution of
problems of injustice. These principles would then become the basis for
the creation of what Rawls refers to as a well ordered society.

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The problem of establishing standards of justice

The nature of human beings

Bentham and human sentience
Rawls disagrees with Jeremy Bentham when, in setting out the theory
of Classical Utilitarianism, the latter argued that the most important
quality of human beings is their sentience, that is, the capacity to
experience pain and pleasure. It was on this basis that Bentham argued
for the pursuit and maximisation of pleasure and the reduction of pain
for the greatest number of people in society. For Bentham and other
Utilitarians, the satisfaction of the desires of the majority in society
takes precedence over the individual interests of particular people.
Total or average utility is the goal and even if certain measures or
arrangements may be painful for some, this is regarded as being
necessary and appropriate, as long as the degree of happiness
generated is greater than the misery caused. The goal of maximum
social utility takes precedence over the rights and interests of
individuals. The individual may be sacrificed for the greater good, for
he is only a part of a bigger entity—society—and the satisfaction of his
individual needs and preferences is only a means to an end.
Rawls and human rationality
For Rawls, the most important quality of human beings is not their
sentience, but rather their rationality, that is, their ability to make
choices. Humans have the ability to decide upon the goals which they
want to pursue in life as individuals. They have the capacity to
formulate coherent plans by which to achieve those goals and they have
the capability to utilise available resources in the most efficient manner
to attain their chosen ends. Because of their rationality, human beings
are characterised by self-interest, in the simple sense that, given a
choice, all things being equal, a rational person would rather have more
of a good thing than less.
The importance of choice
It is the capacity to make choices which, in Rawls’ view, makes the
individual, as opposed to the community, so important. Indeed, in
thinking about society as being based upon a social contract, it would
be difficult to see how societies could come into existence and continue
to exist, unless individual people choose to live in community with
other persons. That choice would presumably be made on the basis that
greater benefits would accrue from living within society than from

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living in isolation. This ability to choose must, therefore, be given a

central place in any social arrangements, since it will ensure the
continued stability of society.
The requirements for a well ordered society
A well ordered society must, for Rawls, be characterised by structures
and institutions which permit the maximum scope for the individual to
make choices, to decide upon the goals which he wishes to pursue in
life as an individual and to formulate plans for the pursuit of such
goals. The basic institutions of a well ordered society must also be
structured in such a way that due consideration is given to the interests
of individuals and that the distribution of resources and opportunities
is such that all persons in society get a fair allocation. Where resources
are to be distributed unequally, then a well ordered society must ensure
that those who are most disadvantaged are in a position ultimately to
benefit from the overall distribution.
Utilitarianism v choice
For Rawls, it is only in a situation where individuals are capable of
improving themselves under conditions of equality of opportunity that
the rational person may flourish. Utilitarianism creates conditions
where the individual has little choice and has to accept what may be the
arbitrary and unfair decisions of some central authority as to what
should be done with scant resources. Whatever goals an individual
may have for himself are ignored in the pursuit of overall utility. The
rights and liberties which the person may have can be taken away or
restricted, in order to satisfy the preferences of some other persons or
group of persons.

Establishing principles of justice

The need for an overlapping consensus
One problem in the search for principles of justice is, according to
Rawls, the problem of getting people to agree on the actual principles,
without being influenced by improper motives and considerations.
This problem arises mainly because human beings are rational beings
and are, therefore, self-interested. This self-interest tends to interfere
with the making of impartial judgments as to what is acceptable and
what is not. A person who is aware of his abilities or his social status
will naturally tend to think in terms of what would be most beneficial to
him, given his advantages or disadvantages compared to the other
members of society. Thus, a person who is fairly well off economically
may not accept principles of justice which might require him to part

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with some of his wealth in order to improve the economic status of

other, less well off persons. At the same time, these other persons may
favour such principles, and yet they might find any arrangements
which might further improve the position of the well off unacceptable.
One requirement for consensus in the choice of principles of justice is,
therefore, according to Rawls, the neutralisation of such negative self-
interest. On the other hand, however, Rawls notes that human beings
are not just rational, but are also moral persons. In other words, they do
have a sense of justice. People have an intuitive sense of what is just and
what is not and, at the same time, they are also capable of making
considered moral judgments of what would constitute a just or unjust
situation. This fact means that, given the right conditions, people are
capable of making impartial decisions about principles of justice and
this makes it possible to have what he calls an overlapping consensus
regarding such principles.

The original position and the veil of ignorance

For Rawls, the right conditions for choosing principles of justice can be
created by envisaging what he calls an ‘original position’. This is a
hypothetical construction, which is similar to the situation which might
have existed at the beginning of a society, from the social contract point
of view, when the founding fathers may have come together to decide
what form their society was going to take and what structures were
going to govern their community Rawls invites us to imagine a similar
sort of situation, which is, however, formally different in a number of
respects, which are intended to ensure procedural fairness. Under such
circumstances, one must then make a choice of principles of justice
from a limited set of alternatives, working from one’s intuitive sense of
justice as well as one’s considered moral judgments as to what is just.
Rawls specifies the conditions which should characterise the original
position in the following terms:
It seems reasonable to suppose that the parties in the original position are
equal. That is, all have the same rights in the procedure for choosing
principles; each can make proposals, submit reasons for their acceptance,
and so on. Obviously, the purpose of these conditions is to represent
equality between human beings as moral persons, as creatures having a
conception of the good and capable of a sense of justice… Together with
the veil of ignorance, these conditions define the principles of justice as
those which rational persons concerned to advance their interests would
consent to as equals, when none are known to be advantaged or
disadvantaged by social and natural contingencies.

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The main feature of the original position is the idea of the veil of
ignorance. In this case, we imagine that the people who are to choose
the principles of justice do not know anything about themselves or their
situation, other than that which is absolutely necessary to enable them
to distinguish and to make a choice between the alternative sets of
principles. The purpose of the veil of ignorance is to ensure that, in
making their choice, the parties are not influenced by self-interest and
that they make their decisions solely on the basis of general
considerations. According to Rawls:
It is assumed, then, that the parties do not know certain kinds of
particular facts. First of all, no one knows his place in society, his class
position or social status; nor does he know his fortune in the distribution
of natural assets and abilities, his intelligence and strength, and the like.
Nor, again, does anyone know his conception of the good, the particulars
of his rational plan of life or even the special features of his psychology,
such as his aversion to risk or liability to optimism or pessimism. More
than this, I assume that the parties do not know the particular
circumstances of their own society. That is, they do not know its economic
or political situation, or the level of civilisation and culture it has been
able to achieve. The persons in the original position have no information
as to which generation they belong.
The veil of ignorance makes it possible to have a consensus amongst
people, who may otherwise disagree with each other in the choice of
principles, purely for reasons of self-interest or selfishness. Given that
the persons in the original position are moral, they will have a general
sense of what is just and what is not. Moreover, given that the same
persons are rational, they will want to advance their own interests as
much as possible. However, because they are generally ignorant of their
particular circumstances, such people will not know which choice of
principles will advance their interests in the best way. Under conditions
of relative uncertainty, all things being equal, a rational person will tend
to choose an arrangement which will ensure him of the best possible
outcome. If an outcome is going to land him in the worst position, then
the rational person will want that to be the best worst position possible.
This is what is called the maximin rule. Given the veil of ignorance, the
rational and moral persons in the original position will be more likely
than not to choose the same principles of justice. This is because they
will know intuitively what is just, and because they will be aware that,
if they choose principles which might lead to, or perpetuate injustice,
then they themselves might end up suffering under an unjust
arrangement. To choose anything other than principles which would
ensure them the best worst position would be irrational. Therefore, the

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veil of ignorance is a most effective way of ensuring consensus. As

Rawls says:
The veil of ignorance makes possible a unanimous choice of a particular
conception of justice. Without these limitations on knowledge, the
bargaining problem of the original position would be hopelessly
complicated.

Rawls’ two principles of justice

Rawls proposes two principles of justice which he believes that people
in the original position would choose and agree on. He argues that
these principles accord with our most basic intuitions about justice and
he contends that they should form the basis of any well ordered society.
This means that these principles should govern the creation and
operation of the institutions which make up the basic structure of
society. Therefore, in their operation, the principles govern the
distribution of primary goods in society. Rawls says that these
principles should be lexically ordered and that the first principle should
be lexically prior to the second. What this means is that, in every case,
the requirements of the first principle should always be met to the
fullest extent possible before any attempt is made to fulfil the
requirements of the second principle.

The first principle

The principle of greatest equal liberty
This principle is concerned with the distribution of individual liberties
as a subset of the total primary goods available in society. Rawls states it
in these terms:
Each person has an equal right to a fully adequate scheme of equal basic
liberties which is compatible with a similar scheme of liberties for all.
The original version of this principle read:
Each person has an equal right to the most extensive scheme of equal basic
liberties which is compatible with a similar scheme of liberties for all.

Rawls changed this to read ‘a fully adequate scheme’ in later writings.

The liberties whose distribution are governed by the first principle
include:

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• Political liberty, that is, the right to vote and to be eligible for public
office.
• Freedom of speech and assembly.
• Liberty of conscience and freedom of thought.
• Freedom of the person, along with the right to hold (personal)
property.
• Freedom from arbitrary arrest and seizure, as defined by the
concept of the rule of law.
The liberties should be enjoyed equally by all the citizens of a just
society, since justice requires them to have the same basic rights.

The second principle

This principle regulates the distribution of other primary goods in
society, including material wealth and social, economic and political
opportunities. It determines the justice of such distribution in two
different ways, and is given as follows:
Social and economic inequalities are to be arranged so that they
are both:
• to the greatest advantage of the least advantaged (that is, the
representative worst off person)—the difference principle;
• attached to offices and positions open to all under conditions of fair
equality of opportunity—the principle of fair equality of opportunity.
Rawls’ first lexical priority rule means that people in a just society must
always be assured of their liberties before consideration is made of the
distribution of material and other primary goods. Ultimately, this is to
ensure that the element of choice, which enables people to define their
own goals, to make up their own plans of life and to pursue such plans
utilising the resources available to them, without undue interference
from society, is guaranteed. The priority of the first principle also
requires that the basic liberty of citizens must not be restricted for the
sake of greater material benefits for all, or even for the benefit of those
least advantaged. There can be no trade-offs between liberty and
material goods. This is what is referred to as the priority of liberty.
Liberty may only be restricted for the sake of a greater liberty for all.
Whenever a basic liberty is restricted, the effect of such restriction must
be to create a more extensive system of liberty for everyone.

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Nozick and the theory of entitlements

Professor Robert Nozick provides what is probably the most

devastating attack on John Rawls’ theory of justice as fairness, whilst
setting out his own theory of justice. Nozick criticises Rawls’ principles
of justice as being based on what he regards as indefensible
assumptions:
• that people’s abilities are a common asset to be utilised for the good
of all;
• that people are necessarily altruistic and that individuals will
accept social arrangements and a system of distribution which will
take from them some goods and redistribute these for the sake of
providing the most impoverished members of society with certain
advantages.
For Nozick, a further problem with Rawls’ approach is that the
arrangements which will result from Rawls’ two principles of justice
would require unjustified and continuing interference with people’s
lives by a central authority intent on maintaining a particular pattern of
distribution of goods.
Basically, Nozick is against all so called end-state theories of justice.
In Anarchy, State and Utopia (1974), he argues that:
There is no central distribution, no person or group entitled to control all
the resources, jointly deciding how they are to be doled out. What each
person gets, he gets from others who give to him in exchange for
something, or as a gift.
For Nozick, theories of justice should not provide for the redistribution
of social goods for the simple sake of achieving some centrally
concocted conception of justice. What people have is a result of
processes of acquisition which predate the stage at which any
assessment of the justice or injustice of a distribution is made.
Approaches which simply have regard to the end-state of these
processes are, therefore, liable to be unjust, because they do not take
into account the history of present holdings of social goods.
Nozick puts forward a theory of entitlements, in which he argues
that, however unequal a distribution might be, it is to be regarded as
just if the distribution came about through just steps from a previous
distribution which was itself just. A person is entitled to what he holds
of social goods if he came about such goods in a just manner; such
goods should not be taken away from him without justification.

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He argues:
A distribution is just if it arises from another just distribution by
legitimate means… Whatever arises from a just situation by just steps is
itself just.
Nozick articulates three principles which, he says, would define the
justice of holdings, if the world were ‘wholly just’:
• The principle of justice in acquisition
A person who acquires a holding in accordance with the principle
of justice in acquisition is entitled to that holding.
• The principle of justice in transfer
A person who acquires a holding in accordance with the principle
of justice in transfer from someone else entitled to the holding is
entitled to the holding.
• The principle of justice in rectification
No one is entitled to a holding, except by (repeated) applications of
the principle of justice in acquisition and the principle of justice in
rectification.
For Nozick, there is no justification for an extensive State mechanism
whose operations may impinge upon individual entitlements and
violate people’s rights. He argues:
The minimal State is the most extensive State that can be justified. Any
State more extensive violates people’s rights.

Taxation and other coercive measures are justified only when they are
instituted to uphold the minimal State. The taxation of some, in order to
meet the needs of others, is equivalent to forced labour.

Dworkin’s rights thesis

The social origin of rights

Like Rawls, Dworkin believes that the specification and guaranteeing

of the rights of individuals is a fundamental requirement for justice in
society. Each person has an equal basic right to equal concern and
respect. People are entitled to be accorded dignity and self-respect as
individuals, since it is by their collective consent that social institutions
come into existence and for their sake that those institutions operate in
a certain way. For Dworkin, the rights of individuals arise, not from
some metaphysical source, but from the social, political and legal
institutions of the society in which they live. These rights express and

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protect certain interests which the majority of people in such a society

commonly regard as valuable. He argues:
Political rights are creatures of both history and morality: what an
individual is entitled to have, in civil society, depends upon both the
practice and the justice of its political institutions.
Society, for Dworkin, is generally a co-operative venture of individual
persons, whose outlook on the world is basically complementary. All
persons have individual values and conceptions of the good. The
reason why many individuals can live together in a community is
because such persons have a basically common world view, in that the
interests and values which they hold as important are the same. When
the members of a society generally agree on the value of certain
interests, they tend to articulate such interests in the form of abstract
rights, which they will then seek to protect by creating various
institutions and by the implementation of certain processes. In many
societies, for instance, life, liberty, private property and human dignity
are regarded as being valuable interests by individuals and by the
majority of the members of such societies collectively. In those societies,
then, you may find general or abstract rights to life, liberty, (private)
property and certain rights pertaining to the protection and
maintenance of self-respect, such as, for instance, a right to the
protection of personal privacy. In most cases, these rights are then
institutionalised, so that they become concrete rights, which the
institutions of that society will be geared to protect. Certain standards
are put in place to safeguard these rights. Such standards include rules
of law and legal principles. Social policies may also be developed,
which tend to advance the welfare of the society’s members in general,
and these may govern the processes of legislation and government
generally. Legal rules and principles are used by judges, during the
adjudication of disputes, to determine the rights of individuals and to
determine the extent of individual liberty. These standards make up the
‘moral fabric’ of the society in question, since they are used to judge and
evaluate the justice or injustice of the social institutions in their
operation.

The legal protection of rights

The courts, for Dworkin, are extremely important vehicles for the
articulation and safeguarding of the rights of individuals against undue
interference by other social institutions in the pursuit of the wider goals
of general welfare. The legislature in a particular society, for example,

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will have regard to matters of policy in creating arrangements for the

general good. The implementation of these policies may have the effect
of restricting the enjoyment of individual rights by certain members of
society. Where such interference occurs, there is usually a dispute
between the individual and the State, or other groups of individuals,
regarding the extent of the individual’s rights and the limits of social
goals. In such a situation, it is then the role of the judge to determine
what rights a person has and to ensure the institutional protection of
such rights. Sometimes, these rights are clearly specified by rules of law,
in which case, the judge merely applies the rule to the facts and comes
up with an answer. However, in some cases, no rule of law will clearly
apply and the judge has to rely on principles in determining the
disputed rights.

Principles and policies

Dworkin believes that, in making decisions on the basis of standards
other than rules, judges should, and in fact do, normally rely on
principles, rather than on policies. He defines the distinction between
principles and policies in the following way:

Principle
I call a ‘principle’ a standard that is to be observed, not because it
will advance or secure an economic, political, or social situation
deemed desirable, but because it is a requirement of justice or
fairness or some other dimension of morality.
Policy
I call a ‘policy’ that kind of standard that sets out a goal to be
reached, generally, an improvement in some economic, political,
or social feature of the community.
General distinction
Principles are propositions that describe rights; policies are
propositions that describe goals.
Distinction between a principle-based and a policy-based approach to
justice .
Arguments of policy justify a political decision by showing that
the decision advances or protects some collective goal of the
community as a whole. The argument in favour of a subsidy for
aircraft manufacturers, that the subsidy will protect national
defence, is an argument of policy. Arguments of principle justify a
political decision by showing that the decision respects or secures

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some individual or group right. The argument in favour of anti-

discrimination statutes, that a minority has a right to equal respect
and concern, is an argument of principle.

Rights as ‘trumps’
For Dworkin, rights, as described by principles, are ‘trumps’, which
serve to protect the individual against the encroachment of measures
that seek to advance collective goals. To this extent, a right is a claim
which an individual person can make that their interests should not be
sacrificed for the sake of the advancement of some social goal. The
requirements of pragmatism and Utilitarian considerations may
sometimes mean that legislators will make decisions based on policies
which are intended to secure some benefit, substantial or otherwise, for
society in general. Such policies may require the sacrifice, or at least a
limitation, of certain individual rights, including the general right to
equal concern and respect. Justice requires that the courts should
protect these rights, and so principles must become the basis for judicial
decisions in relevant situations.
Dworkin argues that, once a right has come into existence as a
genuine right, then it can never be extinguished. In every case where
there is a conflict between rights and social goals, the rights of
individuals must take precedence. In this regard, Dworkin makes a
distinction between ‘strong rights’, which cannot ever be extinguished
or restricted, and other, weaker rights, whose operation may, in
exceptional circumstances, be restricted for the sake of some
overwhelmingly beneficial goal which is in the general interest.

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7 Theories of Law and
Society

You should be familiar with the following areas:

• the perspective of sociological jurisprudence on the relationship between law and

other social phenomena
• the approach of socio-legal studies to the problems of law in society
• sociology of law and its treatment of the place of law in society
• the Marxist critique of idealist jurisprudence, historical materialist account of law
and the Marxist theory of law and State

Sociological jurisprudence, socio-legal studies and the

sociology of law

The fields of sociological jurisprudence, socio-legal studies and the

sociology of law are distinct, though related, approaches to the
investigation of the relationship between law and other social
phenomena. The main link between them is to be found in the belief of
scholars, working within these schools of thought, in the role that a
study of the workings of the various elements of society as a whole, or
specific combinations of them under certain circumstances, has to play
in the understanding of the more specific operations of the law as a
distinct social phenomenon. The particular differences between these
schools of thought are to be found in an analysis of the main social
issues which they seek to investigate and the approaches which they
take in relating studies on the law to these issues.

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Sociological jurisprudence

Sociological jurisprudence is an intrinsically theoretical approach to the

study of the law and it specifically seeks to understand law as a
particular social phenomenon, in terms of how it comes into existence,
how it operates and the effects that it has on those to whom it applies.
To this extent, this school of law is very similar in its approach to the
other analytical schools of thought in jurisprudence, such as Positivism;
its subject matter is the law proper. However, what distinguishes it from
the other schools of jurisprudence is its methodology. Sociological
jurisprudence seeks to examine closely the workings of society in
general, in order to find therein the factors which determine the nature
of law. In this regard, it has historically relied on the findings of the
social sciences, such as sociology, as well as other social disciplines,
including historical, political and economic studies, to help it explain
the nature of law.
Sociological jurisprudence has a long history and can be said to have
emerged from the first time when it was realised that a study of the
various aspects of social life could assist in understanding the nature
and workings of the law. Thus, its place in jurisprudential literature can
be traced as far back as the writings of David Hume who, in his Treatise
on Human Nature (1740), argued that law owed its origin not to some
quirk of human nature, but to social convention, and who described
law as a developing social institution. Charles de Montesquieu, in The
Spirit of Laws (1748), put forward the view that law originated in
custom, local manners and the physical environment. He asserted that
good laws were those which were in accordance with the spirit of society.
Through the years, writers on the nature of society, such as Comte,
Marx, Weber and Durkheim, have contributed to sociological
jurisprudence, putting forward views on how various social
phenomena influence the nature of law.
The close link between the theoretical study of the law on the one
hand and the independent study of society on the other has meant that
sociological jurisprudence has been closely influenced by
developments in the other social sciences and its views on the nature of
law have been progressively transformed. For this reason, it is difficult
to point to any one proposition as being the central approach of this
school of thought. However, there are certain assumptions which can
be identified as characterising the thinking of almost all sociological
jurists. The following are some of them:

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• Generally, there is a belief amongst sociological jurists that law is

only one of a number of methods of social control. To this extent, it
is not unique in its function and place in society.
• There is a general rejection of the notion that law is somehow a
closed system of concepts, standards and structures, and that it can
stand on its own in its operation. Because there are certain
problems which the law cannot resolve, it must be seen, therefore,
as being open to modification through the influence of certain
social factors. To this extent, sociological jurists reject what has been
called a ‘jurisprudence of concepts’.
• Sociological jurists tend to place more emphasis on the actual
operation of the law—‘the law in action’—arguing that this is
where the real nature of the law manifests itself, rather than in
textbooks and other elementary sources.
• In discovering the building blocks of the law, sociological jurists
disagree with the approach of the Natural Law school of thought,
which proposes that there are certain sets of principles which
describe absolute values and which then become, or should be, the
basis of all law. Instead, they take a relativistic approach, which
regards law as being the product of a socially constructed reality.
The basis of the law is to be found in the ways in which people
regard their situation and their place in society, and how society in
general reacts to the problems confronting it.
• There is a general interest in utilising the findings of the
sociological sciences in understanding the nature of law and,
therefore, to make law a more effective tool for social justice. Views
differ, however, as to what constitutes social justice and how best
this may be achieved.
The following are some examples of thinkers who have contributed to
sociological jurisprudence.

Jhering (1818–1892): German legal scholar

Generally credited with being the father of sociological jurisprudence,
Jhering defined law in the following terms:
Law is the sum of the conditions of social life in the widest sense of the
term, as secured by the power of the State through the means of external
compulsion.
Jhering took up the Utilitarian principles of Jeremy Bentham and used
them as a basis for the argument that law existed to serve the social

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interest. The law was to be seen as a coercive instrument, which existed

to resolve conflicts which might arise between the interests of
individuals and the interests of society as a whole. In these
circumstances, the common interests of all members of society took
precedence over the interests of particular members. The law could not
be applied mechanically, because it had to operate effectively to ensure
social utility.

Max Weber (1864–1920): German sociologist and economist

Weber regarded the sociology of law as being central to general
sociological theory. He was the first to try and provide a systematic
sociology of law and, in doing this, he sought to understand the
development and workings of Western capitalist society. Weber
engaged in historical and comparative studies of the major civilisations
in the world as he tried to understand two main features of Western
society, that is, capitalism as an institution and rationalism in the legal
order. He saw law as going through three ‘ideal’ stages of development:
• Charismatic
Where legality arises from charismatic revelation—that is, as a gift
of grace—through ‘law prophets’, who are rulers believed to have
extraordinary personal qualities. The law which they propound is
supported by an administrative apparatus of close aides or
‘disciples’.
• Traditional
Where charisma may become institutionalised through descent
and the law making powers pass to a successor. Law is then
supported by tradition and inherited status, as in the case of new
monarchies.
• Rational
Where there is a ‘systematic elaboration of law and
professionalised administration of justice by persons who have
received their legal training in a learned and formally logical
manner’. In this case, the authority of law is based on the accepted
legitimacy of the lawgivers, rather than on charisma. There is a
rationalised legal order which dominates in an impersonal
fashion.
According to Weber, the rationality of law in Western societies is a
result of the rationalism of Western culture. Legal rationalism is the
product of a number of factors. Economic forces have played a
significant, but not necessarily a pivotal, role. Capitalism provided the

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conditions under which rational legal techniques, once developed,

could spread. Institutions of the capitalist system are predicated upon
calculation and, to this extent, they require a ‘calculable legal system’,
which can be rationally predicted. The growth of bureaucracy
established a foundation for the systematisation of the administration
of rational law. Legal professionals have also contributed to
rationalisation. Indeed, Weber regarded English lawyers, with their
vested interests in the retention of the anachronistic formalism of the
English legal system, as a major impediment to rationalisation of the
law in this country.

Emile Durkheim (1858–1917): French sociologist

Durkheim wrote on legal issues, ranging from the criminal process to
the law of contract. He believed that law was the standard by which any
society could be evaluated since, as he argued, law ‘reproduces the
principal forms of social solidarity’. He made a distinction between two
types of such social solidarity or cohesion:
• Mechanical solidarity
To be found in small scale homogeneous societies. Here, he believed,
most law would be of a penal and repressive nature, since the
entirety of society would take an interest in criminal activity and
would seek to repress and deter it.
• Organic solidarity
To be found in more heterogeneous and differentiated societies,
where there is a greater division of labour. In such societies, there is
less of a common societal reaction to crime and the law becomes
less repressive and more restitutive.

Roscoe Pound (1870–1964): American jurist

Pound set out what may be described as an intrinsically American
sociological jurisprudence, in which he treated of law as an item of
social technology, to be utilised in resolving problems of the satisfaction
of competing social claims and the resolution of conflicts in the
distribution of social goods. The various claims and interests can be
discovered through an analysis of social data, including the incidence
of legal proceedings and legal proposals. Such claims and interests exist
independently of the law and it is the function of the law to serve and
reconcile them for the good of society as a whole. In this regard, Pound
saw society as being static, cohesive and wholly homogeneous, with its

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members sharing traditions and values. In this case, the operation of

law would be within an atmosphere of general consensus.

Socio-legal studies
This is an approach to questions of law and society which has, in recent
years, almost completely overwhelmed the field, which has
traditionally been occupied by sociological jurisprudence. Socio-legal
studies, as a discipline, differs from sociological jurisprudence in that it
does not have any specifically theoretical underpinning. Unlike the
latter, which seeks to provide an analytical conception of the idea of law
by looking at other social phenomena, the field of socio-legal studies is
more concerned with pragmatic issues of how best to make the law, in
its various aspects, work more effectively to achieve specific goals,
usually identified with the idea of the rule of law or some notion of
justice.
Scholars in socio-legal studies are generally not concerned with
explaining the nature of law, its place in society or in relation to the
State. There is a general acceptance of the legal system in its essence as
being a central element of social life, whose position in regard to other
social institutions and the State is essentially unproblematic. They
instead advocate the recognition of law in its accepted social context,
emphasising an empirical approach to the problems raised by the
operation of the legal system and reform-oriented research, which
looks more to the ‘law in action’ than the ‘law in the books’.

The sociology of law

This field of legal study has achieved precedence, particularly in the last
35 years. It is different from sociological jurisprudence in its approach
to the question of law and society, both in terms of its ideology and its
methodology. Whereas sociological jurisprudence sought to provide an
understanding of the nature of law through study of certain social
phenomena, the sociology of law seeks to explain the nature of society
from an investigation of the law as a form of social control. Sociologists
of law are interested in understanding such matters as the socio-
economic circumstances leading to the emergence of certain laws, as
well as the processes by which those laws are created.

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Roberto M Unger, The Nature of Law and Society

Methodology
Roberto M Unger’s work on the sociology of law has produced a
treatise which is in the tradition of Max Weber and Emile Durkheim. He
revives the sweeping scope of Weber’s theorising on law and places the
development of rational legal systems within a broad historical and
comparative framework.
Unger locates his study of law within the scope of the major
questions of general social theory, by investigating the conflicts
between:
• individual and social interests;
• legitimacy and coercion; and
• the State and society
His goal is to provide an understanding of modern law and society, and
his main thesis is that:
The development of the rule of law, that is, law that is committed to
general and autonomous legal norms, could take place only when
competing groups struggle for control of the legal system and when there
are universal standards that can justify the law of the State.
Unger’s underlying claim is that ‘each society reveals through its law
the innermost secrets of the manner in which it holds men together’.

Unger’s historical and comparative analysis of law

Unger’s analysis emphasises the historical perspective. He examines
the nature of society generally and compares the Western legal tradition
with those of other, different, social systems, such as the Greek, Roman
and ancient Chinese, Indian, Judaic and Islamic civilisations. Through
this, he distinguishes three types of law which he regards as
evolutionary stages in the development of law in general:
• Customary/interactional law
This occurs as:
…any recurring mode of interaction among individuals and groups,
together with the more or less explicit acknowledgment by these groups
and individuals that such patterns of interaction produce reciprocal
expectations of conduct that ought to be satisfied.

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Customary law is characterised by two main elements:

(a) factual regularity in behaviour—that is, a regular pattern can be
identified as a matter of fact in the behaviour of people in specific
circumstances;
(b) normative attitude—that is, people tend to regard certain
established behavioural practices as constituting what is right, in
terms of order, for society and for the world at large.
• Bureaucratic/regulatory law
This occurs at a stage in a society’s development where the law is:
…the province of centralised rulers and their staffs. It is a law
deliberately imposed by government, rather than spontaneously
produced by society.

This type of law is distinguished from custom by the fact that it is

both public and positive—that is, it ‘consists of explicit rules
established and enforced by an identifiable government’. Its
occurrence is always accompanied by the appearance of a State,
which defines the various powers of different social groups.
Bureaucratic law is not a universal characteristic of social life, but is
limited to situations where a division between State and society has
occurred, and where specific and explicit ‘prescriptions,
prohibitions, or permissions’, directed at general categories of
persons and types of activity, identify some standard of conduct.
• The legal order/legal system
At this stage, the law will be:
…committed to being general and autonomous, as well as public and
positive.

The legal order is to be found in modern Western liberal societies.

This type of law is ‘substantively autonomous’, in the sense that it
does not codify or express any identifiable non-legal beliefs, that is,
economic, political, religious or theological norms. It is
‘institutionally autonomous’, in that the application of its rules is
undertaken by specialised institutions which are separate from the
other institutions of legislation and administration and whose
main task is adjudication. This law is also autonomous in
methodological terms, because it has a distinct way of justifying its
acts. Finally, it is autonomous at an occupational level, in that ‘a
special group, the legal profession, defined by its activities,
prerogatives and training, manipulates the rules, staffs the legal
institutions and engages in the practice of legal argument’.

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The evolutionary transformation of law

Unger proceeds to identify the developments which initiate changes in

customary law leading to bureaucratic law, which, in turn, changes into
a legal order that will eventually lead to what he calls a post-liberal legal
order:
• The change of customary into bureaucratic law is characterised by
an extension of instrumental rules that have no normative quality
(State law, governmental sanctions). This extension of the
instrumental rule is dependent upon the recognition of the
consensual basis of law.
• The development of an autonomous legal order brings about a
further extension of instrumental rules to everybody. Everyone can
pursue his personal objectives, as long as they do not infringe upon
those of others. Law sets these limits.
• There are two major conditions for a legal order to develop and
continue to exist:
(a) No social group must occupy a permanently dominant
position or have an inherent right to govern.
(b) There must be a widespread social belief in what might loosely
be called Natural Law.
With these conditions in place, then, group pluralism and the belief in
higher law, justified by a transcendent religion, combine to produce a
legal order and turn the minds of men towards the rule of law ideal.

The law as a social expression

For Unger, law is indicative of the normative structure of social life.
There are two competing forms of normative integration:
• Consensual
‘Consensual law expresses the shared values of a group or
community and manifests the stable structure in recurring
interactions.’
• Regulatory
‘Regulatory law is instrumental social control by political
institutions through positive and public rules.’
Unger considers autonomous law, that is, law in the legal order, as both
instrumental and consensual.

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The Marxist account of law and society

The main proponents of Marxist theory were Karl Marx (1818–83),
Friedrich Engels (1820–95) and Vladimir Lenin (1870–1924). The
Marxist school of thought is a comprehensive system of thought,
covering, among other things, the areas of sociology, history, politics
and economics. Specific Marxian writings on law have generally been
rather sparse. This is because of the secondary place that law and other
elements of what Marxists regard as the social superstructure have been
allocated in Marxist theory.

Marxist materialism
The role of material conditions of production
The Marxist approach to society is basically materialist, meaning that,
from the Marxist point of view, the material—that is, the physical,
economic and environmental—conditions under which humans live
are regarded as being the most important factors influencing social
development. Marxists especially emphasise the economic factor,
arguing that it is the economic relationships which people enter into
when they are engaged in the process of producing the means of
sustenance, such as food, clothing, shelter, etc, which determine all
other social relationships. The role of individual ideas in shaping social
development is practically nil, since the ideas themselves are only a
product of the material conditions of social life. Similarly, social
institutions, such as the State, law and other structures, are only part of
a superstructure, which is firmly rooted in, cannot exist apart from and
whose character is ultimately determined by the material conditions of
society.
As Karl Marx wrote in the Preface to The Critique of Political Econ-
omy (1859):
In the social production which men carry on, they enter into definite
relations that are indispensable and independent of their will. These
relations of production correspond to a definite stage of development of
their material powers of production. The sum total of these relations of
production constitutes the economic structure of society—the real
foundation, on which rise legal and political superstructures, and to
which correspond definite forms of social consciousness. The mode of
production in material life determines the general character of the social,
political and spiritual processes of life. It is not the consciousness of men
that determines their existence…on the contrary, their social existence
determines their consciousness.

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Marxist historical materialism

The historical development of economic relations of

production
Marxist thought is also characterised by economic determinism, since it is
argued that the development of society from one stage to the next is
inevitable, and that it is the changes in the economic environment,
along with changes in the relations of production, which dictate the rate
of social development. Marxist ideas on social development thus place
much emphasis on the historical stages through which human society
has gone, seeking to demonstrate that the transition from one stage to
another is inevitable, and that such transition is directly linked to a
transformation of the material base of society. This is what constitutes
the historical materialist conception of society and law within the
Marxist school of thought. There are supposed to be five main stages of
development—or modes of production—through which societies go
through.
Primitive communalism
This is the earliest stage of society, when people have just come together
to live in specific communities. The mode of production is characterised
by a communal effort in the production of the means of sustenance,
since technology is relatively rudimentary and there is no distinctive
division of labour. The means of production—that is, the main natural
and other resources from which something of value may be extracted,
for example, land—are communally owned, if at all, and everybody
gets the full value of the labour which they put into production, since
there are no employers and workers. At this stage, there is little need for
centralised regulation of social or economic activity, and so specific
administrative institutions, such as the State or law, do not exist. Social
control is through communal morality and social pressure. However, at
some point, certain contradictions start to occur within this society.
These contradictions arise primarily as a result of the accumulation of
personal property. With the development of the forces of production, such
as, for instance, the technological improvement of the instruments of
labour, it becomes possible to produce more and, in this situation, some
persons begin to acquire a surplus of the wealth extracted from the
basic means of production. Inequalities between individuals and
groups begin to appear. There is a division of labour, as people diversify
in the search for more rewarding occupations. People who have
acquired wealth will seek to acquire even more through employing the
labour of others. This is the beginning of the division of society into

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classes which are primarily antagonistic towards each other. A section

of the community will gradually and inevitably acquire control of the
means of production, whilst the rest are made to work with little or no
reward for their labour. The State arises under these conditions as an
instrument by which the owners of the means of production will seek to
maintain their exploitation of the dispossessed, who are then kept in a
state of oppression through the use of law and other social institutions
which arise or are created specifically to protect the interests of the
owners of the means of production, who then become the ruling class.
The State and law are thus the direct products of the economic relations
of production, where there is a division of labour, the demarcation of
society into classes with contradictory interests and inequalities in the
benefits which people get from the fruits of their labour.
Slave mode of production
The contradictions which arise in primitive communalist society due to
changes in the economic relations of production will inevitably come
to a head when the State and law are strengthened to the extent where
the ruling classes can control, not just the labour of the oppressed
classes, but their very lives. It becomes necessary in this case to
institute social arrangements which have the ultimate effect of denying
the oppressed classes their very individuality and humanity, turning
them into chattels, at the disposal of the owners of the means of
production. This heralds the advent of the slave mode of production,
where social, political and legal institutions are used directly to
confirm and protect the status quo. Laws in this mode of production
have the specific function of keeping the slaves in check, protecting the
interests of the slave masters and ensuring the continuation of the
exploitative relations of production. The State also exists primarily for
this purpose. However, it is inevitable that there will be a class struggle.
The chained masses cannot remain subservient forever and slave riots
will begin to affect production. Eventually, it will become counter-
productive for the ruling classes to maintain the economic relations of
production which underpin the slave mode production. The
contradictions characterising this mode will eventually resolve
themselves in a loosening of the control which the ruling classes have
over their slaves, and this paves the way to a newer and qualitatively
different mode of production.
Feudal mode of production
In this mode of production, the oppressed classes are still exploited, but
they cease to be the direct property of the ruling classes. They are given
relative freedom, and some access to the means of production, through

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being allowed certain property. For example, they are given portions of
land to farm. However, they are still tied to the feudal lords, who are
still the ruling class and who still control the means of production. Serfs
are attached to the land and have to hand over a portion of what they
produce to the feudal lord. The lord thus gains the surplus value of the
labour of the serfs. There is still a class division in society and the class
struggle continues. The State and law of the feudal mode of production
reflect the existing economic relations of production and are geared
towards protecting the interests of the ruling classes. There are still
contradictions which will push society to move on to another mode of
production.
Capitalist mode of production
In the capitalist mode of production, the serfs are unshackled from the
land and from their social and political masters. They have relative
freedom of movement and are capable of owning some personal
property. However, this freedom serves simply to enable the oppressed
classes to be at liberty to sell their labour for a wage, which is of less
value than the actual value of the labour which they put in. The ruling
classes, now capitalists, have no responsibility for the welfare of the
working classes, since the latter are at liberty to roam around and sell
their labour on the market. Yet, the capitalist class still own the means of
production and they appropriate the surplus value, which is the
difference between the actual value of the labour which the working
classes put into production and the value of the wage which they
receive for working. Under these circumstances, the working classes—
the proletariat—are naturally antagonistic towards the capitalist class—
the bourgeoisie—and the class struggle continues. As before, the State
and law are instruments by which the ruling classes keep the oppressed
classes under control. The existing exploitative economic relations of
production are maintained and protected through a number of social,
economic, political and legal devices. The fallacy is perpetuated and the
working class are persuaded by various means to accept that all
individuals in society are actually free, that the political system is
liberal, democratic and, therefore, one which looks after the interests of
all, and that private property is the highest and most appropriate
expression of each person’s humanity and individuality. Laws are
promulgated which protect personal property, and the courts are
empowered to protect individual rights and liberties. However, the
only people who have property, rights and liberties worth protecting
are members of the ruling class. The law and State are again merely the
instruments of exploitation, expressing, securing and maintaining the

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economic relations of production. Contradictions are at their deepest in

capitalist society and the class struggle reaches a stage where it has to be
resolved in some sort of revolutionary upheaval.
Socialist mode of production
The socialist mode of production is brought about through a
revolution of the proletariat, in which they overthrow the bourgeoisie
ruling class and establish a dictatorship of the proletariat. This is a
transitional stage, in which the working class, who are now the
ruling class, use the power and institutions of the bourgeoisie state to
transform the capitalist economic relations of production. Private
property is abolished, the means of production are placed under
communal ownership and capitalist institutions are demolished. In
the socialist mode of production, the State and law are fairly strong,
since these are the weapons by which the proletariat will dismantle
the bourgeoisie superstructure and create new relations of
production, where those who work get the appropriate value of their
labour.
Communist mode of production
The ultimate goal of the dictatorship of the proletariat is to create a
classless society, where there are no inequities in access to the means of
production. Such a classless society is described by the communist
mode of production. Because there are no classes, there will be no class
struggle. Because most people are relatively satisfied, there will be no
criminal or other anti-social activities which characterise the capitalist
mode of production. Because the economic relations of production are
not exploitative, there are no contradictions in society. Under these
circumstances, there will neither be a need for the State nor of law.
Therefore, such institutions will wither away. Conflicts between
individuals, which will inevitably arise, will subsequently be resolved
through the operation of an emerging public communist morality and
traditions.

Marxist dialectical materialism

The importance of contradiction in the development of society

The historical development of society described above is regarded by
Marxist theory as being inevitable. The reason for this is that Marxists
regard irreconcilable contradictions as being inherent in all the modes
of production prior to the establishment of communist society. These

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contradictions are a result of the division of society into classes and the
exploitative economic relations of production which arise thereby. The
contradictions are then reflected in the ongoing class struggle.
The idea of contradictions in the material base of society and their
inevitable resolution through transition to a newer and ‘higher’ mode
of production, with different economic relations of production, leading
to society’s development, is the linchpin of Marxist social and legal
theory. It is based on the notion of the dialectic, first established by the
German philosopher, Hegel, and later adopted by Karl Marx. Hegel
believed that the basis of all social development was the contradiction
between ideas—between a thesis (established idea) and an antithesis
(opposing idea)—whose resolution would lead to the establishment of
a newer and higher idea—the synthesis—which, in turn, would be
challenged by a different antithesis.
Karl Marx adopted the Hegelian dialectic and, as he said, ‘turned it
on its head’. Instead of being the motor of social development, ideas
simply became the expression or reflection of such development. The
development itself was based on changes within the material
conditions of social life—particularly the economic relations of
production. This material base underwent changes arising from
contradictions within itself and these had little to do with ideas. In each
mode of production was to be found a thesis, consisting of the
established relations of production. This would be challenged by an
antithesis, comprised of elements of the class struggle. The result would
be a different set of relations of production, which would herald the
dawn of a new mode of production.
In all this, the State, law and other institutions have little influence,
except as instruments in the hands of the ruling class, to be used to
protect their own interests. These institutions are neither self-
supporting nor autonomous. They are merely part of a superstructure,
a flimsy covering for the actual factors determining social
development.

Feminist legal theory

The nature of feminism

It is difficult to provide a categorical definition of ‘feminism’, in that, as
a movement and as a school of thought, it comprises a variety of
distinct elements. Moreover, in its historical development, it has had
different manifestations at different stages. For example, in the early

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years, various movements which may be termed feminist were

concerned primarily with winning equality, emancipation and the
articulation of specific freedoms for women. In later years, feminist
socio-political and intellectual discourse has emphasised the
transformation of society at a psychological, cultural, ideological and
legal level, in order to enable women to reach their full potential and so
to contribute positively towards the creation of a fuller, richer human
society.
Moreover, within these loosely defined parameters, feminist
thinkers and writers tend to hold different positions, influenced
variously by their social, cultural, racial, ethnic, political and class
backgrounds. This has led to an apparent confusion, as it would appear
to mainstream legal and other theorists that the differences between the
various feminist thinkers reflects an inherent and insurmountable
fractiousness, which means that they cannot articulate a unified and
structured intellectual point of view. Feminist thinkers, however, argue
that this apparent fractiousness is, in fact, a strength rather than a
weakness, since it allows a fuller expression of many points of view,
which have traditionally been suppressed by the enforced uniformity
of the orthodox socio-political and intellectual tradition. The problem
of identity is, however, acknowledged by feminist thinkers themselves.
For example, Rebecca West observed in 1988:
I myself have never been able to find out precisely what feminism is; I
only know that people call me a feminist whenever I express sentiments
that differentiate me from a doormat.

Primarily, however, feminism has been concerned with clarifying the

nature of society as a patriarchy—that is, as an arrangement which is
dominated by men and which is set up in a way that oppresses women,
allowing for their systematic exploitation for the benefit of men. All the
institutions of society are seen as being traditionally controlled by men,
and the cultural and ideological values which they promote are
regarded as being essentially male values. The task of the feminist
thinker, writer and practitioner, therefore, is seen as one of continuous
struggle to subvert this male domination by promoting awareness of its
existence, and identifying ways in which it can be neutralised. The law
is a particular target, because it is regarded as a device or an instrument
which has been specifically created and consciously sharpened for the
purposes of hurting women’s interests, whilst defending men’s
excesses at the same time.

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Origins and aims of feminist legal theory

Feminist legal theory has its roots in the women’s movement as it
developed and flourished in the late 1960s and 1970s. In line with the
general feminist approach, therefore, it seeks to:
…analyse the contribution of law in constructing, maintaining,
reinforcing and perpetuating patriarchy, and it looks at ways in which
this patriarchy can be undermined and ultimately eliminated [Freeman,
MDA, Introduction to Jurisprudence (1994)].
In its early stages, the feminist inquiry into the nature of law occurred as
an offshoot of the Critical Legal Studies movement and, to this extent, it
was also concerned with providing a ‘basic critique of the inherent logic
of the law, the indeterminacy and manipulability of doctrine, the role of
law in legitimating particular social relations, the illegitimate
hierarchies created by law and legal institutions’ (Menkel-Meadow, C
[1988] JLE 61).

The methodology of feminist legal theory

There are three notable features characterising the feminist
investigation into the nature of law:
• Asking the ‘woman question’
That is, determining and recognising the experience of women in
relation to the law. For KT Bartlett ([1970] HLR 103), the essential
‘woman question’ is:
…how the law fails to take into account the experiences and values that
seem more typical of women than men, for whatever reason, or how
existing legal standards and concepts might disadvantage women.

• Feminist practical reasoning

Employing a mode of reasoning arising from context, which
appreciates the differences between persons and values the
experience of the unempowered.
• Consciousness raising
Raising individual awareness of the collective experience of
women through a sharing of experiences.

The focus of feminist legal theory

According to Heather Wishik ([1987] BWLJ 1), the feminist inquiry into
law can be seen as posing seven particular questions:

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(a) What have been and what are now all women’s experiences of the
‘life situation’ addressed by the doctrine, process or area of law
under examination?
(b) What assumptions, descriptions, assertions and/or definitions of
experience—male, female or ostensibly gender neutral—does the
law make in this area?
(c) What is the area of mismatch, distortion or denial created by the
differences between women’s life experiences and the law’s
assumptions or imposed structures?
(d) What patriarchal interests are served by the mismatch?
(e) What reforms have been proposed in this area of law or women’s
life situation? How will these reform proposals, if adopted, affect
women both practically and ideologically?
(f) In an ideal world, what would this woman’s life situation look like,
and what relationship, if any, would the law have to this future life
situation?
(g) How do we get there from here?

The subjects of feminist legal theory

In pursuing these inquiries, many different legal subjects have come
under the scrutiny of feminist legal theory. These have included the
following:
• rape, domestic violence, sexual harassment and their treatment by
the law and law enforcement agencies—exemplified by the case of
R v R (1991) (rape within marriage);
• surrogate motherhood, pregnancy and maternity leave-
characterised as ‘analogous to the sick leave of a male employee’;
• pornography—perceived as the ‘graphic sexually explicit
subordination of women’;
• different retirement ages and pension entitlements for men and
women—leading to injustice for both men and women in specific
circumstances.
Furthermore, other traditionally black-letter law subjects have been
opened up to enable the specific experiences of women to be taken into
account. Among these, the laws of tort, contract and property have been
of some interest (see, for example, Cavendish Publishing’s Feminist
Perspectives in Law series).

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Two approaches in feminist legal theory

The ‘identity’ argument

See, for example, Catharine MacKinnon, Towards a Feminist Theory of the
State (1989).
One view within feminist legal theory is that there are no significant
inherent differences between men and women. If anything, the only
real difference is that of inequality—in all patriarchal societies, men
dominate the lives of women. All structures of such societies, including
the legal system, are set up to control, oppress and to facilitate the
exploitation of women by men. It is because of their inequality with
men that women might appear to be different. The different values
which women appear to hold or exhibit are simply their reaction to a
male dominated situation and are not really an expression of anything
intrinsically feminine.
For writers such as Janet Rifkin, Catharine MacKinnon and others,
law is to be understood as:
…both a symbol and a vehicle of male authority [Rifkin, J (1980)];
and:
…a paradigm of maleness [Rifkin, J (1980)];

…maintaining male domination [Polan, D (1982)];

…a particularly potent source and badge of legitimacy, a site and cloak
of force [MacKinnon, C (1989)];
…a patriarchal form of reasoning [Finley, LM (1989)].
The law is essentially a male instrument, and this gives it an inherent
masculinity, which cannot be changed simply by increasing women’s
entry into the structures of the legal system or by incorporating female
values in its rules or processes. Similarly, it is futile to try and use
legislation or litigation to try and improve the status of women. Because
of its male character, the law will simply produce male centred
outcomes and reproduce male dominated relations. The apparent
neutrality of law and the equality of all persons before it is thus a myth
and a fantasy, promoted by a State which, by appearing to be liberal,
promotes a ‘false consciousness’ amongst women, which convinces
them that they are actually free. One important preoccupation of
feminist legal theorists of this school is therefore ‘consciousness
raising’, which will lead women everywhere to become more aware of

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their oppressed condition and the need to transform patriarchal society.

Once this awareness occurs, there may then arise a real female
consciousness, which will lead to a radical and fundamental
restructuring and reorienting of society’s basic structures, including the
legal system and the law.

Legal system in a patriarchal society

Masculine values Alternative female values

characterising the law
victory empathy for both parties
predictability interaction
objectivity co-operation
deductive reasoning caring
universalism mediation
notion of abstract rights preservation of
and principles relationships

The ‘dif ference’ argument

See, for example, Carol Gilligan, In a Different Voice (1982).
Gilligan and others of her school argue that men and women have
different ways of viewing the world, conceptualising moral problems
and approaching the relationship between oneself and others. Men and
women essentially have different values and different ways of relating
and reacting to others around them. Men act and interact on the basis of
an ‘ethic of justice’, which relies heavily on rights and abstract justice,
and which is based on the premise that everyone should be treated in
the same way. Women, on the other hand, relate to others on the basis of
an ‘ethic of care’, premised on non-violence—that no one should be
hurt—and focusing on responsibility and contextuality. The ethic of
care is an essentially female value, because it stems from the capacity
and the process of reproduction, which is an exclusively female
experience.

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Law in a patriarchal society

The male ethic of justice The female ethic of care

Separation and exclusion Attachment and inclusion
The logic of justice approach Conciliatory alternatives
Balancing of abstract rights and Standards of care and
duties nurturance
Individual achievement Collective responsibility
Selection of victor or winner Ethic of inclusion

The situation today is that, in all patriarchal or male dominated

societies, the legal system and the law mainly reflect the values of their
male members. In all such societies, damage to the community results
from the law’s failure to incorporate those values associated with
women, especially the female values of intimacy, nurturance,
responsibility and the ethic of care. Positive change in the law can only
be achieved by incorporating fully the relevant female values into the
structures, processes, rules and principles of the legal system. This will
result in a fundamental transformation of the very essence of law,
making it possible for both women and men to enjoy the fruits of a
socially balanced law, which would otherwise have been denied them.

121
Index

Act Utilitarianism 12 inefficiency 52–53

Actions, legal justice 55–56
significance of 41 language 48
Actual Rule morality and law 48, 55–57
Utilitarianism 12 Natural Law 57
Adjudication 55, 61–62 Positivism 47, 51
Age of reason 23–24 recognition 53–54, 60
Altruism 73, 74 rules
American realism 10–11 adjudication 55
Analytical jurisprudence 3 categories of 52–55
Analytical Positivism 32–36 change 54
Antithesis 5 nature of 48
Aquinas, St Thomas 22–23, 25 primary rules 51–55
Aristotle 21 principles 62–63
Austin, John 5, 6, 11, recognition 53–54, 60
24, 32–39 secondary 51–55
Average Utilitarianism 12 systemic quality
of legal
Bentham, Jeremy 6, 24, 29–32, sanctions 49–50
69–75, 78, static nature of laws 52
89–90 survival as basic
Bureaucratic law 108, 109 human goal 58–59
Consensual law 109
Capitalism 105–06, 113–14 Content theories 8
Cicero 22 Contractarian 4
Classical Critical jurisprudence 3
Utilitarianism 12 Customary law 107–08, 109
Cognitivism 4
Command theory Definition of
of law 29–36, jurisprudence 2–12
47–67 Dialectical materialism 4, 114–15
Communalism 111–12, 114 Discretion 5
Concept of law Durkheim, Emile 105, 107
adjudication 55, 61–62 Dworkin, Ronald 5, 9–10,
certainty 52, 54 59–64, 96–99
change 54
coercion and law 48, 50 Economic analysis
Hart, HLA 47–59 of law 78–81,
ignorance of facts 49 110, 111–14
indeterminacy Economic jurisprudence 3
of aim 49 Efficacy 5–6

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ESSENTIAL JURISPRUDENCE

Empiricism 6 Hohfeld,
Engels, Friedrich 110 Wesley Newcombe 83–86
Existence of laws 44–45 Hume, David 102
Fairness 87–94
Feminist theory of law 115–21 Imperatives 6
aims 117 Individual rights 96–97
care ethic 121 Interactional law 107–08
consciousness raising 120 International law 38
difference argument 120–21 Intuitionism 6
focus of 117–18
identity argument 119–20 Jhering, Rudolph von 103–04
justice 121 Judicial discretion 62–64
legal system 120 Justice 55–56, 59,
methodology 117 69–99, 120–21
nature of feminism 115–16
origins 117 Kelsen, Hans 6, 8, 11, 39–45
patriarchy 116, 119,
120, 121 Law and society 101–21
subjects of 118 bureaucratic law 108, 109
Feudal mode comparative analysis
of production 112–13 of law 107–08
Finnis, John 24–25 consensual law 109
Formalism 6, 7–8
customary law 107–08, 109
Fuller, Lon 64–67
evolutionary
transformation of law 109
General jurisprudence 3
feminist legal theory 115–21
Gilligan, Carol 120
historical analysis
Good 6
of law 107–08
distribution 93–96
interactional law 107–08
Natural Law 19, 20, 25
legal order 108, 109
Positivism 28
legal system 108
rights 88, 93–96
Marxism 110–15
Utilitarianism 70
Grotius, Hugo 23 regulatory law 108, 109
Grundnorms 41–3, 45 social expression,
law as 109
‘Hard cases’ 60–61, 63–64 socio-legal studies 101, 106
Harm principle 77 sociological
Hart, HLA 5, 8, 9, 11, jurisprudence 101, 102–06
36, 47–64, 67 sociology of law 101, 104–05,
Hegel, Georg 4, 5, 24, 115 106, 107
Historical Unger, Robert 107–09
jurisprudence 3 Weber, Max 107
Histrocial materialism 111–14 Legal order 104, 108, 109

124
 INDEX

Legal Positivism Moral philosophy 7–8, 12

See Positivism Morality 7
Legal systems concept of law 48, 55–57
feminist legal theory 120 legal systems, of 65
legality of 66–67 Natural Law 18–20, 26,
morality of 65–66 59, 61
purpose of 64 procedural 64–67
Unger, Roberto M 108 secular theories 18
Legislative authority, standards 61, 63
problem of 36
Lenin, Vladimir 110 Natural Law 8, 17–26
Libertarian 7 age of reason 23–24
Liberty 75–78, 87–94 Christian era 21–22
MacKinnon, classical period 21–22
Catharine 119 concept of law 57
Marx, Karl 5, 7, 110–15 criticisms 26
Marxism 110–15 decline of 23–24
capitalism 113–14 good 19, 20, 25
communist mode of higher powers 20, 26
production 114 historical origins 20–26
contradiction in implications of,
development assessment of 26
of society, legal theory,
importance of 114–15 contribution to 26
dialectical medieval period 22–23
materialism 114–15 methodology 19–20
economics 110, 111–14 morality 18–20, 26,
feudal mode of 59, 61
production 112–13 natural rights 24–25
historical materialism 111–14 Positivism 24, 26
labour 111–12 presuppositions 18
materialism 110–15 restatement 24–25
primitive revival 24
communalism 111–12 rights 24–25, 59
production, economic secular theories 18
relations of 110–14 secularisation of 23
slave mode of theological theories 17–18
production 112 Utilitarianism 70
socialist mode of Natural rights 24–25, 70
production 114 Normative jurisprudence 3, 8
Materialism 7, 110–15 Norms
Meaning of actions, legal
jurisprudence 2–12 significance of 41
Mill, John Stuart 73–78 basic 42–43, 45
Montesquieu, change 43
Charles de 102 efficacy 42–43

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ESSENTIAL JURISPRUDENCE

Grundnorms 41–42, 45 legal change 43

hierarchy of 41–42 legal efficacy 42–43
hypothetical legal rules 40
presuppositions 45 legal validity 42
legal 40–41, 44 legislative
moral 40 authority,
nature of law 40 continuation of 36–37
Positivism 40–45 Natural Law 24, 26
primary 40–41 norms 40–45
validity 42 official coercive
Nozick, Robert 95–96 activity 44
persistence of laws 37
Obligations 8 pure theory of law 39–45
implications and
Particular criticisms 43–45
jurisprudence 3 perception of law 40–43
Patriarchy 116, 119, purity of 43–44
120, 121 rationale and
Persistence of laws 37 methodology 39
Plato 21 rights 59–60
Policies 9, 98–99 sanctions 36, 43
Positivism 9, 27–45 sovereign 35–36, 38–39
actions, legal
State 44
significance of 41
types of law 34
analytical 32–36
Utilitarianism 29, 30, 32,
Austin, John 32–39
69–70
Bentham, Jeremy 29–32, 69–70
validity of laws 44–45
command theory
variety of laws 37–38
of law 29–36
Posner, Richard 79–81
concept of law 47, 51
Pound, Roscoe 105–06
discretion 60–61
Principles 9–10,
efficacy 42
existence of laws 44–45 62–63, 98–99
Fuller, Lon 64 Procedural morality 64–67
good 28 Pure theory of law 39–45
Grundnorms 41–43, 45
hard cases 60–61, 63–64 Rationalism 104–05
Hart, HLA 51, 60–64, 67 Rationality 10
identification Rawls, John 87–96
of law 60–61 Regulatory law 108, 109
imperative Relevance of
theories 29 jurisprudence 12–15
indivisibility 38–39 Rifkin, Janet 119
international law 38 Rights 59–64, 83–99
Kelsen, Hans 39–44 Bentham, Jeremy 89

126
 INDEX

choice 89–90 Social contract 87

consensus 90–91 Socialist mode of
definition 84 production 114
distribution of goods 93–96 Society and law
Dworkin, Ronald 96–99 See Law and society
entitlements 95–96 Socio-legal studies 101, 106
fairness 87–88, 91 Sociological
good 88, 93–96 jurisprudence 3, 101,
Hohfeld, Wesley 102–06
Newcombe 83–86 Sociology of law 101, 104–05,
human beings, 106, 107
nature of 89–90 Socrates 21
ignorance, veil of 91–92 Sovereign
individual rights 95–97 above the law, as 38
jural relations 85–86 commands 35–36
justice 87–95 indivisibility 38–39
legal protection 97–98 Positivism 35–36, 38–39
liberty 87–94 Standards 61, 63,
natural 24–25, 70 89–91, 97
Natural Law 24–25, 59 Stoics 22
Nozick, Robert 95–96 Subject matter of
original position 91–92 jurisprudence 12–15
policies 98 Synthesis 5
Positivism 59–60
principles 98 Teleology 12
rationality 89 Terminology 4–12
Rawls, John 87–96 Theological theories 17–18
self-interest 90, 92 Theories of justice
sentience 89 rights 83–99
social contract 87 Utilitarianism 69–81
social origin of 96–97 Theories of law
standards 89–91, 97 command theory of
trumps, as 99 law, alternatives to 47–67
Utilitarianism 70, 76–77, feminism 115–21
87, 89–90 imperative 29–45
well ordered society, Natural Law 17–26
requirements for 90, 93 Positivism 27–45
Rules 11, 40, 48–55, Thesis 5
60–62, 65–66 Total Utilitarianism 12

Sanctions 11, 36, 43, 50 Unger, Robert M 107–08

Scandinavian realism 10 Utilitarianism 12, 69–81
Secular theories 18, 23 altruism 73, 74
Self-interest 90, 92 Bentham, Jeremy 6, 24, 29–32,
Slave mode 69–75, 78,
of production 112 89–90

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ESSENTIAL JURISPRUDENCE

Classical 69–73, individuals, position of 75–77

78–79, 89 Jhering, Rudolph von 103–04
criticisms 71–73 justice 75, 78,
desires, balancing 79 79–81
distinctions in 12 liberty 75–78
economic analysis Mill, John Stuart 73–78
of law 78–81 morality 72–73
efficiency 80 Natural Law 70
felicific calculus 71, 72, natural rights 70
78–79 pleasure, predicting 79
good 70 Positivism 29, 30, 32,
happiness 75 69–70
forms of 73 Posner, Richard 79–81
maximisation of 71, 78 prediction 71–72
moral goal, as 72–73 qualitative altruism 73
nature of 73–74 quantitative hedonism 69–73
need for 74–75 rationality 78–79
sources of 73 rights 76–77, 87
value of 74 satisfaction 73–75, 77
harm principle 77 social goals 75–77
hedonism 74–75
human beings, Weber, Max 104–05, 107
nature of 74 Wishik, Heather 117

128