Jurisprudence Note

UNIT ONE: GENERAL CONSIDERATIONS

What is Jurisprudence

 The word comes from the Latin term juris prudentia, which means "the study, knowledge, or
science of law."
 In modern law jurisprudence is understood as a term that embraces spectrum of questions about
the nature and purpose of law and responses made to them.

 The most prevalent form of jurisprudence is that it seeks to analyze, explain, classify, and
criticize entire bodies of law, ranging from contract to tort to constitutional law. Legal
encyclopedias, law reviews, and law school textbooks frequently contain this type of
jurisprudential scholarship.

 The second type of jurisprudence compares and contrasts law with other fields of knowledge
such as literature, economics, religion, and the social sciences. The purpose of this
interdisciplinary study is to enlighten each field of knowledge by sharing insights that have
proved important to understanding essential features of the comparative disciplines.

 The third type of jurisprudence raises fundamental questions about the law itself. These
questions seek to reveal the historical, moral, and cultural underpinnings of a particular legal
concept.

 The fourth and fastest-growing body of jurisprudence focuses on even more abstract questions,
including, what is law? What is its relation to justice and morality? What is the role of a judge?
Is a judge more like a legislator who simply decides a case in favor of the most politically
preferable outcome? What is justice? What is liberty and freedom?

 Why we study Jurisprudence

 At the practical level, reading and participating in jurisprudential discussions develops the
ability to analyze and to think critically and creatively about the law. Such skills are always
useful in legal practice, particularly when facing novel questions within the law or when trying
to formulate and advocate novel approaches to legal problems.
 At a professional level, jurisprudence is the way lawyers and judges reflect on what they do and
what their role is within society.
 Finally, for some, jurisprudence is interesting and enjoyable on its own, whatever its other uses
and benefits.
 There will always be some for whom learning is interesting and valuable in itself, even if it
does not lead to greater wealth, greater self-awareness, or greater social progress.
 Schools of Jurisprudence

 Natural Law School: the oldest school of jurisprudence, it upholds that beyond, and superior to
the law made by man are certain higher principles, the principles of natural law. These
principles are immutable and eternal. With regard to the highest matter man-made law should
be in accord with the principles of natural law. And to the extent that man-made law conflicts
with natural law, it lacks validity: it is not a valid, binding law at all.
 Legal Positivism: also called Analytical School of jurisprudence, it holds that there is no higher
law than that created by governments, legitimate or self imposing, and that such law must be
obeyed, even if it appears unjust or otherwise at odds with the “natural” law. Unlike the natural
law theory, this one treats law and other values, such as, morality and religion separately.
 Historical School: this school of jurisprudence views law as an evolutionary process and
concentrates on the origin and history of the legal system. The law of a nation, like its
language, originates in the popular spirit, the common conviction of right, and has already
attained a fixed character, peculiar to that people, before the earliest time to which authentic
history extends. In this prehistoric period the laws, language, manners and political constitution
of a people are inseparably united and they are the particular faculties and tendencies of an
individual people bound together by their kindred consciousness of inward necessity.
 Sociological School: Unlike the Historical School that conceives a nation’s law as tied to the
primitive consciousness of its people, sociological conception of law locate the law in the
present-day institutions of its society. The proponents of sociological jurisprudence seek to
view law within a broad social context rather than as an isolated phenomenon distinct from and
independent of other means of social control. The sociological questions in jurisprudence are
concerned with the actual effects of the law upon the complex of attitudes, behavior,
organization, environment, skills, and powers involved in the maintenance of a particular
society. They are also concerned with the practical improvement of the legal system and feel
that this can be achieved only if legislation and court adjudications take into account the
findings of other branches of learning, particularly the social sciences.
 Legal Realism conceives law as judge made and by doing so it puts the court at the center. It
contends that positive law cannot be applied in the abstract; rather, judges should take into
account the specific circumstances of each case, as well as economic and sociological realities.
The law should not be static, it must adapt to various social and economic realities.

UNIT TWO: CLASSICAL NATURAL LAW THEORY

 It generally advocates that some laws are basic and fundamental to human nature and are
discover-able by human reason without reference to specific legislative enactments or judicial
decisions.
 The concept of natural law originated in Greece and received its most important formulation in
Stoicism. The Stoics believed that the fundamental moral principles that underlie all the legal
systems of different nations were reducible to the dictates of natural law. This idea became
 particularly important in Roman legal theory, which eventually came to recognize a common
code regulating the conduct of all peoples and existing alongside the individual codes of
specific places and times. Christian philosophers such as St. Thomas Aquinas perpetuated this
idea, asserting that natural law was common to all peoples—Christian and non-Christian alike
—while adding that revealed law gave Christians an additional guide for their actions.
 In modern times, the theory of natural law became the chief basis for the development by Hugo
Grotius of the theory of international law. Later writers and philosophers continued to consider
natural law as the basis of ethics and morality.
 The influence of natural law theory declined greatly in the 19th century under the impact of
Positivism. In the 20th century, however, such thinkers as Lon L. Fuller saw in natural law a
necessary intellectual opposition to totalitarian theories.
 The Notion of Natural Law

 ‘Natural law’ is not to be understood as meaning the same as the law of nature – in the sense of
laws that govern the physical world.
 The word ‘natural’, in natural law, refers to an idea that provides the foundation of natural law –
namely the reason why natural law ought to be obeyed. The idea is this. Man is part of nature.
Within nature, man has his own nature. His nature inclines him towards certain ends – to
procreate children, to protect his family, to ensure his survival. To seek such ends is natural to
him.
 Those things which impede man attaining his natural ends are contrary to natural law. Thus, if a
man-made law obstructs the achievement by man of what has been decreed by nature as his
ends, then the law is contrary to natural law.

Ancient Greece: Natural Law as Source of Justice and Virtue

 Socrates
 Socrates was one of the famous Greek philosophers who contributed a lot to the western
philosophy.
 Socrates was at the age of 70 when he appeared before court to defend himself. He was
prosecuted because he was said to be corrupting the youth and second he did not believe in the
gods of the state.
 In Plato’s Apology, Socrates refuted the accusations made by his opponents. Justifying his
teaching of philosophy and his consistency in continuing same work, he importantly said that it
was good to obey the law and the order of a commander so long as they are just. But if the
command was illegal or the laws unjust, then no man shall obey the order or the laws. From this
argument he had also developed the principle that the command of god is more pious and just
and as a result it is above and beyond any other human laws. Hence, it is wise to obey god’s
 command than human laws when they are in conflict. He believed that he was commanded by
god to teach people philosophy, to question and convince them whenever he got the chance.
 Just law, for Socrates, is measured based on the perfect laws of the gods. If the laws are unjust
and unholy we shall refuse obedience. In the case of Leon the Salamis, namely his refusal and
disobedience of the order to go to arrest Leon of Salamis fall under this conclusion. Under the
thirty’s dictatorship he was ordered, together with others, to arrest and kill this man just for the
sake of taking/stealing his property, and Socrates refused to obey the order since the order by
itself was unjust. At this time too there was a government and this government had laws to this
effect. Socrates did not say that he refused because they were not legitimate governments. His
disobedience was rather based on the idea that arresting Leon of Salamis with intent of putting
him to death (just to expropriate his wealth) was characterized as unjust and unholy.
 A conflicting, and yet important, idea of law is found in the second writing, Crito. He
subscribed that he would obey the laws irrespective of their moral values, whether they are just
or not. Socrates was unsuccessful in his argument and was sent to prison preceding his death.
 Socrates justified the coercive power of the state laws (positive law) and thereby upholding and
respecting the decision of the courts on three grounds.
 First, on moral grounds, in that it is bad and disgraceful to harm or to do injustice to another.
He also argued that to do injustice in return for injustice or in other words, to return harm for
harm is also bad. Although the judges sentence him to death, by escaping from prison he
harms the laws since Socrates’ refusal would send a message of disobedience to the laws,
which truly would harm them.
 Secondly, Socrates analogized the power and status of laws to one’s parents, for it was the
laws which administer the marriage of his family, ordered his family about his upbringing and
education etc. It is a great evil to make wrong to parents whatever they do to you. Similarly
citizens are not justified to back-harm their country whatever harm the country caused to
them.
 Thirdly, there was a tacit agreement between Socrates (and other citizens for that matter) and
the state of Athens, stipulating that Socrates either obey the laws or, when he sees the laws
unjust, he should persuade the city to act in a more suitable fashion. If he was not pleased with
the laws he could move to other countries. This means his living in the country shows that he
agreed to be governed by the law of the country.
 He summarizes his argument by stating his alternatives and the consequences of each
alternative as brought out by his argument:
 if he chooses to obey the court, he will die wronged (as victim of injustice) not by the laws but
by men,
 but if he escapes, he will disgracefully return injustice for injustice and harm for harm, he will
be breaking the contracts and agreements he made with the laws, and he will be doing harm;
to those he must least harm, his friends, his country, and the laws.
 Thus, he thinks that if he obeys the court he will be suffering but not doing injustice, whereas
if he escapes he will be doing injustice and harm.
 Plato
 In the restless intellectual and political climate of 5th-century Athens, Plato was concerned to
redefine the nature of justice by relating it to something far more permanent and absolute than
the nomos (man-made laws) of the city-state.
 He assigned “reality” to the unchanging archetypal forms—i.e., the ideas—of things rather than
to the ephemeral phenomena as superficially and confusedly perceived by individual men
unenlightened by philosophy. He says that what for us are abstractions, example redness,
square-ness, roundness, sharpness, honor, courage, beauty, equality, justice each had a
permanent and unvarying existence, an existence that is independent of the fact that certain
things or actions in the world as we know them reflect the qualities themselves. This is Plato’s
doctrine of ‘forms’.
 Plato’s forms are transcendental archetypes that exist independently of the physical world,
independently of the human mind, independently of space and time. Thus there is a ‘form’ of
beauty, of which things on earth which have the quality of beauty are mere manifestations.
Qualities such as justice and truth exist in their own form, too. All men in this earth can do is to
attempt to reproduce them. To reproduce these qualities, men must seek knowledge of the
eternal truths, a quest that is man’s finest endeavor (idealism). It refers to the notion that the
idea of a thing has its own existence
 Since for Plato the forms of ‘goodness’, ‘virtue’, ‘honesty’ were eternal and immutable, they
constituted moral principles of universal and timeless validity existing above and unaffected by
changing human attitudes or beliefs, moral principles by reference to which all human actions
and views must be judged.

 Aristotle
 Aristotle did not subscribe to Plato's theory of forms. But there was an element in his thinking
that contributed a further strand to what was to become part of natural law doctrine.
 Aristotle was concerned with the world as he saw it existing around him (as opposed to Plato,
Aristotle was materialist). He was a zoologist
 From his studies of the natural world he became conscious of the fact that natural phenomena
were in a state of perpetual change – the child growing into an adult; the seed growing into a
plant. There was always progress.
 Throughout the living world, Aristotle saw that, in the birth and growth of animals and plants,
the earlier stages always lead up to a final development. Yet we should not think of this end as a
termination. The process is constant. Thus, for Aristotle the universe is dynamic, always
engaged in the process of becoming, of moving towards an end immanent within itself from the
start.
 For Aristotle, the highest form of human society lay in the Greek city state (a polis). It was the
Polis that provided the society in which man could achieve his culminating fulfillment. Thus
from the start of organized human society, from its most primitive forms, through the various
stages of agricultural existence to the building of cities, and the creating of political societies
such as that at Athens, mankind was progressing towards that which had been its end from the
beginning.
 Aristotle says, ‘Because it is the completion of associations existing by nature, every polis
exists by nature, having itself the same quality as the earlier associations from which it grew. It
is the end to which those associations move and the ‘nature’ of things consists in their end or
consummation; what each thing is when its growth is completed, we call the nature of that
thing, whether it be a man or a horse or a family.’
 In his discussion on the nature of justice, Aristotle says: There are two sorts of political justice,
one natural and the other legal. The natural is that which has the same validity everywhere (as
fire burns both in Greek and in Persia are the same) and does not depend upon acceptance; the
legal is that which in the first place can take one form or another indifferently, but which once
laid down, is decisive: e.g. that the ransom for a prisoner of war is one mina (Greece money),
or that a goat shall be sacrificed to the gods and not two sheep….
 Speaking otherwise, Aristotle has declared that we have two types of laws. One is natural law,
and the other man-made. The latter kind of law is not the same everywhere for the custom and
behavior of people of different nations and tribes is different. But with regard to the former one,
it is one and same for it is immutable and beyond human touch.
 In case of conflict between the two, Aristotle tells us to resort to the natural law:
 This kind of thinking makes, hence, Aristotle one of the natural law thinkers. It seems that
Aristotle accepted that there is a natural and universal right and wrong, apart from any human
ordinance or convention. For Aristotle and the men of Greek of his time, the existence of higher
laws (natural law) is as sure enough as the existence of higher beings, which they called ‘gods.’

The Stoics: Natural Law as a Reason

 Law is the highest reason, implanted in nature, which commands what ought to be done and
forbids the opposite. True law is right reason in agreement with nature. To curtail this law is
unholy, to amend it illicit, to repeal it impossible. Cicero
 Stoicism existed from the life time of its founder Zeno (during the 3rd century BC) down to
about the fourth century AD. It was thus the prevailing philosophy during the greater part of the
Roman Republic and Empire. The contribution of the Stoic School of Philosophy may be
represented by the writings of Cicero, Seneca, and the Emperor Marcus Aurelius.
 Three important ideas of modern law and legal theory were derived mainly from Stoic
philosophy:
 The conception of a universal law for all mankind under which all men are equal;
 The idea of a method of deriving universal principles of law from the observation of the
laws of different people;
 And the conception of a law binding upon all states, which have got today the name
“international law”.
 Cicero
 Cicero was a Roman orator, politician, lawyer and a Stoic philosopher. In his book On Duties
he discusses “true law”, transcending the enactments and customs of particular nations, and
identified with “right reason”, which is immanent in nature, in the universe and in the minds of
the wisest men.
  The idea of law of Stoic philosophy: Law is the highest reason, implanted in nature, which
commands what ought to be done and forbids the opposite. True law is right reason in
agreement with nature. To curtail this law is unholy, to amend it illicit, to repeal it
impossible..The Stoic’s ideal is to live consistently with nature. Throughout our lives we
ought invariably to aim at morally right course of action.

 Universality and immutability of natural law or “true” law was indicated as: 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 wrong doing by its
prohibition. And it does not lay its commands or prohibitions upon good men in vain, though
neither have any effect upon the wicked.

 For Cicero, law is the highest product of the human mind which is in tune with the elemental
force of nature. The validity of human law depends upon its harmony with these forces. It was
the blending of the ideas of reason and law with nature that contrived to suggest that, while it
was possible for rulers to ignore the constraints of natural law, such actions ran against the grain
of the natural order of things in a way that was unholy and blasphemous.

 Seneca

 He wrote: Man is a sprit and his ultimate goal is the perfection of his reason in that sprit.
Because man is a rational animal, his ideal state is realized when he has fulfilled the purpose for
which he was born. And what is it that reason demands of him? Something very easy – that he
live in accordance with his own nature. Yet this is turned into something difficult by the
madness that is universal among men; we push one another into vices. And how can people be
called back to spiritual well-being when no one is trying to hold them back and the crowd is
urging them on?

 Seneca has also emphasized the need for rational approach, i.e. that man shall live in harmony
with nature. The principal contribution of Stoic’s was universality.

 Stoics saw mankind as one brotherhood. They looked outside the city state, outside the Empire
and saw the whole of human race as being bound and united by the brotherly love that the
precept of natural law enjoined.

 One can also see that the Stoics added flesh to the bones of natural law. Tolerance, forgiveness,
compassion, fortitude, uprightness, sincerity, honesty – these were the qualities that the Stoics
believed that natural law required of men. These were the qualities that man should aspire for in
order that he might live in accordance with what nature had ordained. These qualities in many
ways are the bases for the Roman law and thereby the modern western law.

 Based upon these natural law qualities, historically, compared to the Greeks, the Stoics
contributed much to the practical development of the Roman law. Greek law scarcely survived
as a system, because it never developed a class of legal specialists or abandoned to its lay
 administrators or its popular tribunals of grotesque size. Roman law, on the other hand,
developed through the efforts of expert jurisconsults (learned lawyers) and praetors (judges)
into a permanent heritage of Western society. By its adoption into works such as Cicero's De
republica as well as other works of the great jurisconsults, Stoic speculation concerning reason
and nature was brought onto the level of precepts for concrete problem solving. The crude,
tribal jus civile (“civil law”) of the Romans was thus transformed into a natural-law-based jus
gentium (law applying to all people), a set of principles common to all nations and appropriate,
therefore, equally applied for foreigners as well as the Romans.

Christianity: Natural Law as Morality

 The parallels between the tenets of Stoicism and the teaching of Christ come readily to mind.
But Christianity offered an advantage not made available by the Stoicism or any other religion
of that time competing to fill the place left by the decline of the old state religion of Rome.
 Stoicism taught that men should love one another, since this was in accord with nature and thus
was man’s duty. Christianity taught – ‘Love one another’, and it added ‘and if you do, there is a
reward – life everlasting.

 The teaching of Christ provided a code of conduct, but not a comprehensive theology. The
creation of the latter was the accomplishment of the fathers of the church, principally St.
Augustine and St. Thomas Aquinas. Having been born into the Roman world it was natural that
these men should reflect in their writings aspects of the philosophies of Greece and Rome that
could be enlisted to give intellectual support to the teachings of the new church.

1. St. Augustine of Hippo

 The incorporation of natural law into Christian theology was accomplished at a later period, but
when St. Augustine wrote ‘if a law be unjust, it is no law at all’; the idea that if a man-made law
conflicts with natural law, it is invalid.

 In the eye of Christian theologists, natural law is anterior in time and superior in hierarchy to
the man-made law.

 St. Augustine portrayed the human condition as torn between the attraction of good and evil,
with the perfect state being one voluntary submission to the will of God. The will of God is then
seen as the highest law, eternal law, for all people, playing something of Stoic cosmic reason.

 Positive law (state created law) is for St. Augustine relegated to an even less honored place.
Indeed, Augustine makes it mandatory for a positive law to rely on the eternal law. Nothing
which is just is to be found in positive law which has not been derived from eternal law. Thus an
unjust law is one which does not concord with the higher (divine) reason and which is thus
conceived, or directed, for an improper law. A positive law so devised might, of course, be
coercively enforced but could not be argued to have any moral force.
 Hence, in the eye of St. Augustine, to the extent that man-made law ran counter to natural law,
it was null and void, and unjust governments were equated with criminal gangs.

2. St. Thomas Aquinas

 It was in the work of St. Thomas Aquinas, principally in the Summa Theologica, that the final
and most complete synthesis of the classic doctrine of natural law and doctrine of the Christian
church was achieved.
 Aquinas proposed that the essential quality setting human beings apart from the rest of the
animal world was that of reason. In a development of Aristotle's theory, Aquinas asserts that all
men naturally possess an internalized divine spark of reason, which serves as the guide to an
autonomous and responsible decision making process.
 Aquinas distinguishes four kinds of laws:
 Eternal Law: is comprised of those laws that govern the nature of an eternal universe; as one
writer observed, one can "think of eternal law as comprising all those scientific (physical,
chemical, biological, psychological, etc.) ‘Laws’ by which the universe is ordered."

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

 Natural Law: is comprised of those precept of the eternal law that govern the behavior of
beings possessing reason and free will. One of the most basic precepts of the Natural Law is
not to commit suicide. On the level we share with all living things, the Natural Law
commands that we take care of our life, and transmit that life to the next generation. Thus,
almost as basic as the preservation of our lives, the Natural Law commands us to rear and
care for offspring. On the level that is most specific to humans, the fulfillment of the Natural
Law consists in the exercise of those activities that are unique of humans, i.e. knowledge and
love, and in a state that is also natural to human persons, i.e. society. The Natural Law, thus,
commands us to develop our rational and moral capacities by growing in the virtues of
intellect (prudence, art, and science) and will (justice, courage, temperance). Natural law
also commands those things that make for the harmonious functioning of society ("Thou
shalt not kill," "Thou shalt not steal.") Human nature also shows that each of us have a
destiny beyond this world, too. Man's infinite capacity to know and love shows that he is
destined to know and love an infinite being, God.

 Human Law: is a dictate of reason from the ruler for the community he rules. This dictate of
reason is first and foremost within the reason or intellect of the ruler. It is the idea of what
should be done to insure the well ordered functioning of whatever community the ruler has
care for. (It is a fundamental tenet of Aquinas' political theory that rulers rule for the sake of
the governed, i.e. for the good and well-being of those subject to the ruler.) But Aquinas is
also a natural law legal theorist. In his view, a human law (i.e., that which is promulgated by
human beings) is valid only insofar as its content conforms to the content of the natural law.
 As Aquinas puts the point: Every human law has just so much of the nature of law as is
derived from the law of nature. But if in any point it deflects from the law of nature, it is no
longer a law but a perversion of law.

Nature of Man and Justification for Law

1. Thomas Hobbes
 Thomas Hobbes, an original thinker and political philosopher, has supported a strong and
absolute sovereign that can maintain peace and security.
 He argued that the proper purpose of government and law was primarily to guarantee peace and
order. In his work, Leviathan, Hobbes postulates a natural condition of mankind in order to
explain the origin and nature of the state and to show the justifications behind a strong
sovereign power.
 He imagined a natural condition of man, termed as State of Nature, in which there was no law
and government. The outstanding character of the state of nature is War, where every man is
enemy to every man. Men compete with each other for the same thing: food, clothing, and so
on, but as they have a rough equality of power to attain their ends, the inevitable result is war
and conflict. Furthermore, men are vainglorious creatures who crave for honor and felicity and
this makes matters worse. The result is that man’s life in the sate of nature is “solitary, poor,
nasty, brutish and short.”
 In the state of nature each man possesses the natural right to do whatever he thinks fit to
preserve his life. He is bound also by the law of nature which forbids a man to do anything
which does n’t favor the preservation of his life. By the law of nature he discovers through his
reason, man should attempt to find peace and he can only do so if he renounces his natural right
to all things. It is the equal natural rights of all men which make life in the state of nature so
insecure. This mean, in the state of nature men are roughly equal physically (an ability to kill
each other), intellectually (mainly experience), and in right. Thus, he declared that man’s only
hope to escape from the natural conditions is to make social contract and enter in to a
commonwealth (civil society). To do this they must transfer all their natural rights, except few,
to one absolute sovereign (king, Parliament).
 He argued that an unlimited governmental authority is the only alternative to harness the wild
and evil nature of mankind. For man by nature is neither social nor political, civil society is the
artificial deterrent to man’s basically antisocial tendencies. He goes on to declare that whatever
the sovereign does can not injure his subjects because it is done with the authority of all. He
cannot, therefore, be accused of injustice. Since the sovereign is the ultimate law maker, he is
above all laws and thus he cannot be said illegal and unjust.

2. John Locke
 Locke is also another English, natural right political philosopher who depicted the nature of
man and the state of nature in a different way. Unlike Hobbes, who believes that man by nature
 is evil and self oriented, Locke started his argument from an opposite premise that claims the
human decency.
 The state of nature is, for Locke, a state of perfect freedom and equality. Unlike the Hobbesian
picture of man’s natural condition, which was a state of perpetual warfare, Locke depicts the
state of nature as one of peace in which most men respect the lives, liberties, and estates of
others.
 These are the natural rights of man, given to him by the law of nature which commands that “no
one ought to harm in his life, health, liberty, and possession”. Hobbes has declared that men
were bound by no moral obligation other than their own self-interest. Locke, on the other hand,
argued that the law of nature was a moral precept absolutely binding upon man at all times.
 Of the natural rights of man, none is regarded by Locke as more important than the right to
property. Such is its preeminence that at times Locke implies that the preservation of private
property is the main reason for entering into political society.
 According to Locke, originally men possessed the earth and its fruits and the beasts (animals)
therein in common. Private property is derived from the mixing of a person’s labor with land or
anything that was originally communally owned.
 As one’s person (labor of the body or intellect) is indisputably one’s own, anything with which
it is blended becomes equally one’s own property. At first, property appropriated in this way
was limited to the amount a person could use. Anything taken beyond that from the common
stock belongs to others. Moreover, the right of appropriation was limited by the necessity of
leaving “enough and as good” for others. However, Locke said, the introduction of money
transcended these limitations, and thereby enables men to accumulate property beyond their
immediate needs without spoilage.
 In the state of nature men have a further right, which is to judge and punish transgressors of the
natural law. As there is no formal authority to enforce the natural law and protect him, each
man must protect his own life, liberty, and property. Each man has also a right to enforce the
law by punishing the wrong doers. This procedure entails several obvious disadvantages; men
become “judges in their own cases” and hence their reaction to crimes against themselves,
relatives or friends likely to be extreme and inconsistent. The remedy to protect this problem is
to enter into social contract and establish a government.
 Although Locke admits that the establishment of government is the remedy for the
inconveniences of the state of nature, he points out that the arbitrary government of an absolute
monarchy is more intolerable than the natural state. If government is to be set up to improve
man’s natural condition, it must be based upon the consent of the governed.
 To setup a government the people as a political entity must first be established by a social
contract. Each individual contract with others to form a political community by agreeing to
transfer, to the community as a whole, his rights to execute the law of nature. The agreement
also involves obedience to the majority will which is taken to represent the whole community.
Such a contract is the only kind which will eventually produce lawful government.
 Having established the state, men’s first task is to erect the law making body that is the supreme
power of the commonwealth. Members will be elected from among the people. Then an organ
to execute these laws will also be established. This government which is established on trust
 should not betray this trust. It shall guarantee the protection of the natural rights to life, liberty,
and possessions of citizens otherwise the people will have the right to revolt.
 Kelson’s Criticism on Natural Law Theory

1. Natural law confuses value and reality

 Natural law, he says, obliterates the essential difference between the scientific laws of nature,
the rule by which the science of nature describes its objects, and the rule of ethics, or morality.
We may describe certain behaviors that are in conformity with a pre-existing standard as a
good, right, or correct and behavior that are not in conformity with the norm as wrong, or
incorrect. But these are value judgments. Such value judgments may be expressed by saying
that a person ought or ought not to behave as he does.
 But, and this is the heart of Kelsen’s attack: Value is not imminent in natural reality. Hence
value cannot be deduced from reality. It does not follow from the fact that something is, that is
ought to be or to be done, or that is ought not to be or to be done. The fact that in reality big
fish swallow small fish does not imply that the behavior of the fish is good or bad. There is no
logical inference from the ‘is’ to the ‘ought’, from natural reality to moral or legal value.
 He explains that the content of human laws depends on the purpose of the laws, what the laws
are designed to achieve. And what they are designed to achieve depends on the kind of society
that the law-making authority wishes to see exist.

2. Good/Bad contradiction
 In a second attack on natural law, Kelson found out another flaw. Natural lawyers justify
positive law (man-made or human law) on the ground that these are needed because of man’s
badness. At the same time their doctrine requires an assumption that man is good, because it is
from human nature that the principle of natural law are to be deducted. Thus natural lawyers
entangle themselves in a contradiction.
3. Insincerity
 Next Kelson criticizes natural lawyers on the ground of their insincerity: they fail to carry their
doctrine to its logical conclusion. According to their doctrine, if positive law conflicts with
natural law, it is void. But do they, Kelsen asks, abide by the consequences of this test? Where
laws of the state conflicts with natural law do natural lawyers in fact say that a citizen should
disobey it? If the answer is in the negative (he examines a lot of natural lawyers most of whom
prefer silence), then as Austin once said that natural law is ‘nothing but a phrase’.
4. Absolute values and Relative values
 That ethical judgments and values are relative with the tenet of Greek philosophers known as
Sophists. For them there can be belief, but not knowledge, in the sense of knowledge of
absolute truth. All knowledge is relative to the person seeking it.
 Sophists pointed out that customs and standards of behavior earlier accepted as absolute and
universal, and of divine institution, were, in fact local and relative. Habits abhorrent to one
society and time may be accepted as normal elsewhere. The view of the Sophists was reflected
by Democritus: ‘….we know nothing, for truth is in the depth, and either truth does not exist or
it is hidden from us.’ The notion of ‘truth’ and ‘knowledge’ are thus illusions. What seems to
each man, is as far as he is concerned. Reality exists only in relation to our own feelings and
 convictions. Kelsen summarizes, ‘there is one nature but we have different systems of law;
different beliefs of goodness and badness.’

UNIT THREE: THE REVIVAL OF NATURAL LAW

 During the nineteenth century natural Law was dominated and overshadowed by the positivist
school of thought. However, the massive human delinquencies by the Nazis during the Second
World War and the emergence of totalitarian States and dictators stimulate in the 20 th c the
rethinking of natural law theory.
 Jurists raised questions whether positive law is adequate enough to protect mankind. Besides to
others, Lon L. Fuller’s theory is the main theory in this camp. Fuller’s theory is known as
‘procedural naturalism’ that sets out the minimum requirements for a recognizable ‘legal
system’. The basis for this analysis was the perceived weakness of law in the Third Reich and
the extent to which it could realistically have been considered to have been ‘law’ in any
meaningful sense. By doing so Fuller wanted to show a point about the nature and function of a
legal system. His system is based on the procedural aspect of law than its substantive one.

1. Procedural Natural Law: Lon L. Fuller

 The pivot or at least the common starting-point in the beginning was the attitude taken by
Gustav Radbruch (German Professor of law) to the legality of laws passed during the Nazi era
in Germany. Radbruch had originally been positivist, holding that resistance to law was a matter
for personal conscience, the validity of a law depends in no way on its content. However, the
atrocities of the Nazi regime compelled him to think again. He noted the way in which
obedience to a posited law by the legal profession had assisted the perpetration of the horrors of
the Nazi regime, and reached the conclusion that no law could be regarded as valid if it
contravened with certain basic principles of morality.

 After the war it was this thinking that was followed in the trials of those responsible for war
crimes, or who had acted as informers for the former regime. In 1949 a woman was convicted
based on this principle. She denounces her husband and told authorities because he insulted
Hitler. The woman in defense claimed that her action had not been illegal since her husband’s
conduct had contravened a law prohibiting the making of statements against the government.
The court found that the Nazi statute, being ‘contrary to the sound conscience and sense of
justice of all decent human beings’, did not have a legality that could support the woman’s
defense, and she was found guilty.

 Morality of Aspiration and of Duty

 Fuller considered that debate upon the morality of law had become confused in part through a
failure adequately to distinguish between two levels of morality which he defined as moralities
of ‘aspiration’ and of ‘duty’. Fuller states the distinction between the two moralities in terms of
the level of the demand imposed: The morality of aspiration…is the morality of the Good Life,
of excellence, of the fullest realization of human powers…Where the morality of aspiration
 starts at the top of human achievement, the morality of duty starts at the bottom. It lays down
the basic rules without which an ordered society is impossible, or without which an ordered
society directed toward certain specific goals must fail of its mark.
 The morality of ‘aspiration’ is a goal of excellence, or even perfection, closely related as Fuller
points out, to the platonic ideal. It is in a sense a maximum goal. The morality of ‘duty’ on the
other hand is a minimum standard which must be attained before the enterprise can be
recognized to have the identity which it claims at all. One may aspire to excellence but the
standard of ‘duty’ is the minimum required for viable social order so that failure to achieve it is
not merely, in some sense or to some degree, a lapse but is actually a wrong.
 Fuller contends that the division between these two moralities is not separating polar extremes,
but a point upon a graduated scale. Thus: ….we may conveniently imagine a…scale…which
begins …with the most obvious demand of social living and extends upwards to the highest
reaches of human aspiration. Somewhere along this scale there is an invisible pointer that
marks the dividing line where the pressure of duty leaves off and the challenge of excellence
begins.

 Fuller’s Law Making Criteria

King Rex’s Law

 Professor Fuller believes that the German courts were correct in their approach. He proposes
that a system of government that lacks what he terms ‘inner morality of law’ cannot constitute a
legal system, the system lacking the very characteristic – order – that is a sine qua non of a legal
system
 Fuller explains what characteristics a system must show in order to be capable of constituting a
legal system. He begins his explanation with an allegory about ‘the unhappy reign of a monarch
who bore the convenient, but not very imaginative and not very regal sounding name of ‘Rex.’
King Rex was determined to reform his country’s legal system, in which procedures were
cumbersome, remedies expensive, the language of the law archaic and the judges sometimes
corrupt.

 His first step was to repeal all existing laws and to set about replacing these with a new code.
But, inexperienced in such matters, he found himself incapable of formulating the general
principles necessary to cover specific problems and, disheartened, gave up the attempt.

 Instead he announced that in future he would decide all disputes that arose himself. He
accordingly heard numerous cases but it became clear that no pattern was to be discerned
running through the judgments that he handed down.

 Seeking to learn from his mistakes, Rex undertook a course of study on making generalizations.
Having completed the course he resumed the task of providing a code and after much labor
produced a lengthy document, and announced that in the future he would be governed by its
principles in deciding cases. But, he decreed, the code was to remain a state secret known only
to himself and his scrivener (a scribe or a registrar).
 Next, Rex resolved that reform should be achieved by his deciding at the beginning of each year
all the cases that had arisen during the preceding year. This method would enable him to act
with the benefit of hindsight. His ruling would be accompanied by his reasons for making them.
But, since his object was to act with the benefit of hindsight, it was to be understood that
reasons given for deciding previous cases were not to be regarded as necessarily applying to
future cases.

 After his subjects (the people) had explained that they needed to know in advance the principles
according to which decision would be made, Rex realized that he had no choice but to publish a
code setting out the rules by which future disputes would be determined and after further labors
a new code was published. But when the code was finally published Rex’s subjects were
dismayed to find that its obscurity was such that no part could be understood either by laymen
or lawyers.

 To overcome this defect Rex ordered a team of experts to revise the code so as to leave the
substance intact but clarify the wording so that the meaning was clear to all. However, when
this was accomplished it became evident that the code was a mass of contradictions, each
provision being nullified by some other.

 Rex ordered that the code should be revised to remove the previous contradictions and that at
the same time the penalties for criminal offences should be increased, and the list of offences
enlarged. Failure to understand, believe in, and correctly profess the doctrine of evolutionary,
democratic redemption was made treason.

 The near revolution that resulted when the code was published caused Rex to order its
withdrawal. Once again a revision was undertaken. The new code was a masterpiece of
draftsmanship. It was consistent, clear, required nothing that could not reasonably be complied
with, and distributed freely. However, by the time that the new code came into operation its
provisions had been overtaken by events (became obsolete or lagging behind time). To bring
this code into line with current needs, amendments had to be issued daily.

 The Inner Morality of Law

 Corresponding to the eight defects illustrated by Rex’s mistakes Fuller lists eight qualities of
excellence. In a legal system the laws must be:
1. Generality (not made ad hoc or for temporary purpose only)
2. Published
3. Prospective, not retroactive
4. Intelligible (clear or understandable)
5. Consistent
6. Capable of being complied with
7. Endure without undue changes
8. Applied in the administration of the society
 These qualities make up the ‘inner morality of law’.
 What Fuller refers to is the inner character of a legal system, the characteristics without which a
system cannot properly be regarded as a legal system. The phrase also used by Fuller as
‘fidelity to law’, reflects the notion that a citizen can owe a duty to obey only where the features
that make up the inner morality of law are present.
 What we gain from Fuller’s is that the impression that it is not so much the failure to observe
the inner morality of law that sticks in Fuller’s throat as the evil that in practice results from this
failure. Be that as it may, what we can say is this: under mainstream natural law thinking a law
is not a valid law if it conflicts with a higher moral code.
 For Fuller a law is not valid if it forms part of a purported legal system that fails to comply with
a higher code, the code in Fuller’s case, however, being one based not on ethical values, but on
values stemming from rationality. In this sense, in that he judges a law’s validity by reference to
an outside standard.

 Criticisms on Fuller
 Hart’s well-known criticism of Fuller’s equally well known eight principles of the ‘inner
morality’ of law is one we choose as a criticism on this point. These principles, which loosely
describe requirements of procedural justice, were claimed by Fuller to ensure that a legal
system would satisfy the demands of morality, to the extent that a legal system which adhered
to all of the principles would explain the all important idea of ‘fidelity to law’.
 Fuller’s key idea is that evil aims lack ‘logic’ and ‘coherence’ that moral aims have. Thus
paying attention to the ‘coherence’ of the laws ensures their morality.
 Hart’s criticism is that we could, equally, have eight principles of the ‘inner morality’ of the
poisoner’s art (‘use tasteless, odorless poison’; ‘use poisons that are fully eliminated from the
victim’s body’; etc). Or we can improve further. We can talk of principles of the inner morality
of Nazism, for example, or the principles of the inner morality of chess. The point is that the
idea of principles in themselves with the attendant explanation at a general level of what is to be
achieved (elimination of non-Aryan races) and consistency is insufficient to establish the moral
nature of such practices.
 Kramer provides another version of Hart’s criticism of Fuller. He concludes that, in the end, the
idea that Fuller’s theory captures a moral ‘reciprocity’ between rulers and the ruled ultimately
fails. The forces of this idea of reciprocity is that however much we can imagine ‘evil’ legal
systems of a highly efficient kind appear to comply with the ‘inner morality’ of law, evil legal
systems built on such lines can still exist.

2. Substantive Natural Law: John Finns

 Unlike Fuller’s concept of procedural natural law the theory of ‘natural rights’ advanced by
John Finnis falls unequivocally into the category of naturalist theory. Finns has almost single-
handedly tried to resurrect the natural law tradition in moral philosophy and law since the mid
1960s.
 He tries to offer a "neo-Aquinian" natural law philosophy which does not presuppose a divine
being. Instead of speaking, as would Plato, about the Form of the Good, or seeking the Good, he
will speak about human desires to pursue "basic goods" in life. By focusing attention on goods
 rather than a single Good, Finnis skillfully articulates what he calls a theory of moral action for
our day. Or, in other words, he seeks a theory of how to live well.

 Finns’ Defense of Naturalism

 Hart says of Finnis’ restatement of natural law that it is of very great merit. By drawing upon
the works of natural lawyers such as Aquinas and Aristotle, Finnis attempts to dispose of what
he regards as two cardinal misconceptions about the theory.
 Finnis denies that natural law derives from the objectively determinable patterns of behavior,
but instead asserts it is ascertainable from inward knowledge of innate motivations.
 Natural law does not entail the view that law is not law if it contradicts morality.
 Natural law may be the set of principles of practical reasonableness in ordering human life and
human community, but he asserts that they are pre-moral. By this he means that they are not the
product of logical deduction, nor are they merely passions verified with reference to something
objectively regarded as good. The latter position represents the view of the empiricists such as
Hume, and is that all moral values are subjective whims that have the extra force of validity
because others accept them as being good.
 The goods that Finnis speaks of are not moral goods, but they are necessary objects of human
striving. The peculiar nature of this view is that theses goods are subjective so far as they
require no justification from the outside world, but are really objective since all human must
assent to their value. Finnis argues that these are the result of innate (inborn) knowledge.
 The major difference between Finnis’ view of natural law and that of Aquinas is that, for Finnis,
the existence of God is only possible explanation for the comparative order of that he seeks to
project on human values, not the necessary reason. Finns instead states that his goods are self-
evident. This is demonstrated by, though not inferred from, the consistency of values that are
identified throughout all human societies, such as a respect for human life.

 The Basic Goods of Human Nature

 The theory may be briefly stated as follows: all rational agents set out to preserve or obtain
things they perceive to be good for themselves. Even the most rational actors, however, can be
mistaken.

 Finns’ seven basic goods are generally the following:

 Life, meaning not merely existence but also the capacity for development of potential.
Within the category of life and its preservation Finns includes procreation.
 Knowledge, not only as a means to an end but as a good in its own right which improves life
quality.
 Play, in essence the capacity for recreational experience and enjoyment.
 Aesthetic experience, in some ways relate to play but not necessarily so, this is broadly a
capacity to experience and relate to some perception of beauty.
 Sociability or friendship, occurring at various levels but commonly accepted as a ‘good’
aspect of social life. One might add that this ‘good’ would seem to be an essential aspect of
human conducts as social creatures, as put by Aristotle.
  Practical reasonableness, essentially the capacity to shape one’s conduct and attitude
according to some ‘intelligent and reasonable’ thought process.
 Religion, this is not limited to, although it clearly includes, religion in the formal sense of
faith and practice centered upon some sense of the divine. The reference here is to a sense of
the responsibility of human beings to some greater order than that of their own individuality.

 Evaluation
 It may be seen that Finnis’ list is not radically different from the list of other philosophers. The
difference Finnis asserts is that these goods are not the result of speculative reason. They are not
goods because of anything, they are just good. The problem is that they are, according to Finnis,
‘primary, indemonstrable and self-evident.’
 Many jurists simply agree or prefer silence in Finnis approach. Micheal Doherty comments
about Finnis’ methodology as follows: By employing the principle that goods are self-evident,
rather than derived from objectively observable facts, Finnis not only avoids being accused of
deriving an ‘ought’ from ‘is’, but also deprives us of any attack on his methodology. Since we
cannot show precisely where values came from, we are reduced to attacking the paucity of
analogous arguments.
UNIT FOUR: POSITIVISM
 Positivism, also known as analytic-al jurisprudence is another school of jurisprudence whose
advocates believe in basically two concepts:

 First they consider law as a social fact rather than a set of rules derived from natural law.

 The second point is that they sharply separate law and morality, and that legal rules do
not derive their legitimacy from universal moral principles.

 A related issue is the separation thesis of “is” and “ought” argument. It says that unlike natural
law concept which is based on the belief that all written laws must follow universal principles
of morality, religion, and justice, a theory of law should focus on defining the concept of law as
it is rather than discussing what it ought to be/ moral standards that it needs to meet to be
considered as valid.

 The task of jurisprudents for positivists therefore is analytic-al, i.e. defining and analyzing the
concepts of law and legal system, identifying its essential features and outlining its meaning
from a social, logical and even semantic/linguistic perspective.

 Positivism serves two values.

 First, by requiring that all law be written or somehow communicated to society, it ensures
that the government will explicitly apprise the members of society of their rights and
obligations. In a legal system run in strict accordance with positivist tenets, litigants would
never be unfairly surprised or burdened by the government imposition of an unwritten legal
 obligation that was previously unknown and nonexistent. This argument was basically
propagated by Jeremy Betham during his attack of the common law.

 Second, positivism reduces the power of the judge to the application of laws, it does not
allow judges to make laws. In some cases judges are not satisfied with the outcome of a case
that would be dictated by a narrow reading of existing laws. Positivists believe that the
integrity of the law is maintained through a neutral and objective judiciary that is not guided
by subjective notions of equity.

 The word positivism is related to the English word ‘posit’ which means put something firmly,
or imposing something on somebody. The idea is that since positivists believe that law is made
by an authority and imposed on the people for obedience, the name positivism stems from this
root word. Positivism is also known in two other names: Imperative, and Analytic-al
Jurisprudence. The main proponent of this school is John Austin who boldly tried to define law
on the bases of state authority. He was influenced by Hobbes and Bentham.

1. Influence of David Hume

 Hume’s fundamental purpose in his philosophical writing was twofold: to challenge the
traditional framework of moral philosophy in such a way that morality and law would be
humanized by becoming more relative to human interests; and to undermine the overblown
pretensions to knowledge of the rationalist philosophers of the Enlightenment.
 Hume stipulated two conditions for speaking good sense on any subject.
 The first - which is known as ‘Hume’s Fork’ - is that all investigation should be confined to
the reporting of experimental observation on the one hand (‘matters of fact’) and the rational
elucidation of ‘relations between ideas’ (logical connections) on the other.
 The second condition is that such matters of fact should be understood in complete
independence from any subjective evaluation of the factual subject matter (the much quoted
‘separation of fact and value’ or ‘is’ and ‘ought’). Reasoning which moves from matters of
fact to matters of value results in confusion and nonsense.
 To these two claims, Hume added a third essential point concerning the nature of this reasoning.
Contrary to the suppositions of his predecessors, Hume argued that the faculty of human reason
is perfectly inert and morally neutral: ‘It is not contrary to reason to prefer the destruction of the
entire world to the scratching of one’s little finger.’ The idea here is that reason has no bearing
on human interests one way or the other. When this idea is applied to the first two conditions,
the Humean implications for the human sciences become clear. If reason is morally neutral, the
rational investigation of any kind of human behavior or institution will make no reference
beyond what is either empirically observable or logically demonstrable. The two cannot be
combined. Second, the investigation will have nothing to reveal about the moral content of its
subject matter. The moral worthiness of any human activity is simply not open to rational
analysis.
 Hume is saying reason is merely an instrument. It is about achieving something through the
most efficient means…but cannot be used to evaluate the end itself. Approval or condemnation
 may be felt by a subjective moral sense, but this is no more than the projection of an inner
feeling on to an external object.
 In effect, it was Hume who first opened the eyes of positivists who challenged the close
relationship of law and morality; that law has nothing to do with morality or religion. Law
should be investigated beyond any bias of morality.
2. Jeremy Bentham

His attack on the Common Law that was guided by natural law, custom etc

 The beginning of the decline of natural law theory can be dated quite precisely from the time of
Bentham’s scathing attack on Blackstone’s (1723-80) Commentaries on the Laws of England.
With hindsight, this can be seen as the historical turning point, the successful launching of
modern legal positivism.
 He regarded much of what happened in the English courts as ‘dog- law’: that is, as the practice
of waiting for one’s dog to do something wrong, and then beating it.
 His low opinion of the doctrine and practice of judicial precedent was illustrated by his likening
of the doctrine to a magic vessel from which red or white wine could be poured, according to
taste.
 This ‘double fountain effect’, whereby the decisions of judges are seen as capricious selection
of whichever precedent suits their prejudice, was regarded by Bentham as the inevitable
outcome of a legal system which is not controlled by universal rational legislation.
 Bentham’s overriding passion for legal reform required the kind of clarification which would
mercilessly expose the shortcomings, the corruption and obfuscation which he found in the
common law as it existed at the turn of the nineteenth century. This clarity, Bentham believed,
could only be achieved with a rigorous separation of law and morality. What Bentham himself
meant by it was reasonably clear.
 If the law was to be subjected to systematic criticism in the cause of reform, it was essential that
its workings should first be described in accurate detail. This was a matter of dispassionate
factual reporting of the nature and workings of law, which he termed ‘expository’
jurisprudence.
 This was precisely what Bentham accused traditional legal writers of doing. Blackstone, as one
of the most eminent of these writers, was singled out by Bentham as a prime example of one
who clothed moral preaching in the language of law. When law is analyzed in such a way that
each law is represented as the embodiment of a Christian moral principle, the result is the kind
of vagueness and indeterminacy which is inherently resistant to radical reform on the basis of
the utility of the laws. When, by contrast, law is analyzed according to Bentham’s expository
principles, the way is prepared for a clear-headed ‘censorial’ jurisprudence, subjecting the law
to moral criticism, based on the principles of utility.
 Bentham is the leading authority in the utilitarian school of thought that teaches the greater
happiness for the greater part of the society. Utility, hence, requires that law-making and legal
institutions be designed to promote the greatest happiness of the greatest number of people.
Utility would replace traditional, self-serving or subjectively moral evaluation with a rational
evaluation of the worth of particular practices, institutions and policies. These would be judged
 in terms of how far they served the common good, measured in terms of maximization of
satisfaction of the actual desires of the greatest possible number of the population.

3. John Austin on Positivism and Separation thesis

 Law is a command of the sovereign enforced by sanction. Austin
 John Austin was another English jurisprudent who for the first time boldly criticized natural law
and gave direct and clear definition of law. Before giving his definition of law, Austin identified
what kind of law it is he is seeking to define.

a. Positive Law and Positive Morality

 From one viewpoint, the most valuable contribution of Austin’s legal theory is its attempt to
distinguish clearly law from other phenomena (for example, moral rules, social customs) with
which it could be confused.
 Strongly influenced by Hume and Bentham, Austin wrote that the starting point for the science
of law must be clear analytic-al separation of law and morality. The separation would make
clear the independent character of legal and moral arguments and the special validity and
importance of each.
 So Austin's lecture begins by asserting that the subject-matter of jurisprudence, as he
understands it, is positive law , ‘law, simply and strictly so called: or law set by political
superiors to political inferiors’. Immediately, law is defined as expression of power. In its wider
proper sense, a law is ‘a rule laid down for the guidance of an intelligent being by an intelligent
being having power over him’.
 Austin distinguishes laws ‘properly so called’ from phenomena improperly labeled as law.
 There are two classes of laws properly so called: divine law (set by God for human kind) and
human laws (others called them man-made) which are set by human beings for other human
beings.
 The most significant category of human laws comprises what Austin calls Positive law. These
are laws set by superior acting as such or by people acting in pursuance of legal rights conferred
on them by political superiors (that is acting as delegates of political superiors in making laws).
 The term ‘positive’ refers to the idea of law placed or laid down in some specific way and, as
such, could apply to divine law, which Austin conceives as God’s command. But he wants to
reserve the term positive law for human laws laid down by, or on the authority of, political
superiors – the true subject of legal science. So the word ‘positive’ indicates a positing or
setting of rules by human creators.
 The other category of human law consists of rules laid down by persons having power over
others but not as political superiors or in pursuance of legal right. Austin clearly regards rule-
making in such cases as significant in shaping the attitudes, opinions or moral sentiments of
individuals or groups. Indeed, it forms part of what he calls positive morality.
 Positive morality also contains another category of rules: those without particular creators but
set by the opinion or sentiment of an indeterminate body of people – that is, by public opinion
or community opinion. Austin calls these authorless rules laws ‘by analogical extension’; they
are not laws ‘properly so called’ even though we sometimes talk of laws of fashion, etiquette or
honor.
 He also mentions one other category of laws ‘improperly so called.’ Scientific laws are not laws
in the jurisprudential sense. They are the regularities of nature which science discovers but
which is not laid down as laws. Austin calls them ‘metaphorical laws.’
 For Austin:
 The term ‘law’ is often improperly applied to rules or regularities that are in no strict sense
‘legal’; but
 The concept of law can properly embrace more than most lawyers would accept. Like
many social scientists writing long after him, Austin considers that some rules created
‘privately’ outside the particular provisions or procedures of the legal system of the state can
usefully be recognized as law.
 On the other hand, only positive law is the appropriate concern of jurisprudence and
enforced by the state.

b. Austin’s Concept of law

According to Austin, law is a command of the sovereign enforced by sanction. From this definition
we can identify three essential elements: sovereign, command, and sanction.

 Sovereignty

 Sovereignty exists, Austin says, where the bulk of a given political society are in the habit of
obedience to a determinate common superior, and that common superior is not habitually
obedient to a determinate superior.

i. Sovereign may be a king or a parliament: The common superior must be ‘determinate’. A

body of persons is ‘determinate’ if ‘all the persons who compose it are determined and
assigned’. Determinate bodies are of two kinds. (1) In one kind the ‘body is composed of
persons determined specifically or individually, or determined by characters or descriptions
respectively appropriate to themselves’. (In this category would be placed a sovereign such as
the king.) (2) In the other kind the body ‘comprises all the persons who belong to a given
class…. In other words, every person who answers to a given generic description…is… a
member of the determinate body.’ (In this category could be placed a sovereign such as a
supreme legislative assembly.

ii. Society must obey the sovereign: If obedience is ‘rare or transient and not habitual or
permanent’ the relationship of sovereignty and subjection is not created and no sovereign
exists.

iii. Obedience only to Sovereign: ‘…habitual obedience must be rendered by the generality or
bulk of the members of a society to…one and the same determinate person (king) or
determinate body of persons (parliament).

iv. Sovereign must be determinate: in order that a given society may form a political society, ‘the
generality or bulk of its members must habitually obey a superior determinate as well as
 common… for… no indeterminate body is capable of corporate conduct, or is capable, as a
body, of positive or negative deportment.’ In other words, the sovereign must be defined, best
known by all the society.

v. Sovereign obeys no one else: the common determinate superior to whom the bulk of the
society renders obedience must not himself be habitually obedient to a determinate human
superior. Thus, in the strictest sense of Austin’s sovereignty the prince is not a sovereign for
he obeys another human superior, e.g. the king.

vi. Supreme in power: the power of the sovereign is incapable of legal limitation. Austin says:
‘Supreme power limited by positive law is a flat contradiction in terms.’ A sovereign is
subject to no legal limitation. He explains that whenever there is a conflict between the
principles of the constitution and the act of the sovereign, the latter must thwart the former.

 Command

 According to Austin, law is a command given by a determinate common superior to whom the
bulk of a society is in the habit of obedience and who is not in the habit of obedience to a
determinate human superior, enforced by sanction. The concept of law expressed by Austin is
described as ‘the command theory’ or ‘the imperative theory’ of law.

 Power is again made central to law. Austin states: ‘a command is distinguished from other
significations of desire, not by the style in which the desire is signified, but by the power and
purpose of the party commanding to inflict an evil or pain in case the desire be disregarded’.
Thus, the power to inflict punishment (sanction) in case of non-compliance is what makes an
expression a command.

 Moral commands are not laws or commands in the Augustinianism sense of the word.

 This is one aspect of his legal theory, which indicates that his view of law is very different from
that of many liberal theories. The latter tend to see law as a set of rules whose purpose should
be to mark out a general sphere of liberty of the individual guaranteed against the risk of
arbitrary state power. Austin, by contrast, sees law as a technical instrument of government or
administration, which should, however, be efficient and aimed at the common good as
determined by utility.

 Sanction

 Since sanctions are essential for the existence of commands, they are, for Austin, essential to
the existence of laws.

 There must be, he said, ‘a power to inflict an evil to the party’ in case of non compliance. There
is here an important difference from Bentham’s legal theory, which also treats sanctions as
essential to laws. Bentham (and other writers) saw no reason why legal sanction could not
include rewards as well as penalties. Austin, after considering this, rejects it. A reward held out
 for compliance would indicate a promise or inducement but not a command, on the basis of
ordinary usage of the word which specifies non-optional conduct.

 Laws, by their nature, provide for sanctions, he said. Sanctions are analytically essential to
laws, whether or not they are sociologically necessary. Thus, any disadvantage formally
specified directly or indirectly by a law as to be imposed in case of non-compliance can serve as
that law’s sanction. Mere inconvenience or the fact that a transaction or document is rendered
null and void by law would count as sufficient sanction.

 A sanction can also be a further legal obligation. Thus, breach of one law (say, a traffic offence)
might lead to a further obligation (to appear in court to answer charges). A chain of legal
obligation is possible. At the end of the chain, however, there must be a sanction.

 ‘Imperative laws’, lacking sanctions completely, are not laws in the Austinian sense. Neither are
declaratory nor repealing ‘laws’, since they command nothing.

c. The Separation Thesis

 The existence of law is one thing, its merit or demerit is another... Austin
 Since ancient Greece all the way up to early Christian times, it had been widely considered that
a relationship existed between the validity of a law and its moral content.
 The doctrine that a man-made law is valid only if it does not conflict with a higher law –
religious or secular- constitutes a key element of the natural law theory.
 This notion is totally rejected by Austin. For Austin, a law is valid law if it is set by a sovereign.
It is valid if it exists, regardless of its moral content. If it is commanded by the sovereign, if the
law is decreed, placed in position, posited, then it is valid law.
 What he called as ‘positive law’ is a law whatever its source or contents. A positivist is, hence,
one who regards a law as being valid not by reference to some higher law or moral code, but by
reason of no more than its existence. Austin clearly declares: The existence of law is one thing,
its merit or demerit is another. Whether it be or be not [i.e. whether law exists or does not exist]
is one enquiry; whether it be or be not conformable to an assumed standard is a different
enquiry.
 When we say that human law is good or bad, or is what it ought to be or what it ought not to be,
we mean that the law agrees with or differs from something (E.g. Morality) to which we tacitly
refer it to measure or test. He makes a clear separation between the question and what the law
ought to be (it is possible one can make reference to higher laws) and the determination of what
the law is.
 ‘Is’ and ‘Ought’ must be kept separate. For Austin, the fact that the law, according to some
higher principle, is not what it ought to be is no reason for saying that it is not. In other words,
ought can be identified (to simplify) with criteria for distinguishing between good and bad law.
A law might be bad, but it is still law and must be obeyed by the subjects so long as it is made
by the sovereign.

d. Criticism on Austin
 HLA Hart is himself another positivist who approaches the concept of law from different
vantage point. He made a critical criticism on Austin’s concept of law and his criticisms fall
under three main heads.
A. Laws as we know them are not like orders backed by threats There are three reasons
why this so.
i. The content of law is not like a series of orders backed by a threat. Some laws, Hart
concedes, do resemble orders backed by threats, for example criminal laws. But there are
many types of laws that do not resemble orders backed by threats, For example, laws that
prescribe the way in which valid contracts, wills or marriages are made do not compel
people to behave in a certain way (as do laws that, for example, require the wearing of seat
belt in a car). The function of such laws is different. They provide individuals with facilities
for realizing their wishes by conferring legal powers upon them to create, by certain
specified procedures and subject to certain conditions, structures of rights and duties…’
Thus, such laws are laws which simply provide rights. Again, laws of public nature, in the
field of constitutional and administrative law, and in the field of procedure, jurisdiction and
judicial process, are not comparable with orders backed by threats. Such laws are better
regarded as power-conferring rules.
ii. The range of application of law is not the same as the range of application of an order
backed by a threat. In Austin’s scheme the law-maker (sovereign) is not bound by the
command he gives: the order is directed to others, not to himself. It is true, Hart concedes,
that in some systems of government this is what may occur. But in many systems of law
legislation has a force that is binding on the body that makes it. So, as a law-maker can be
bound by his own law, the Austinian concept of sovereign – command – obedience –
sanction can not be of universal application and so fails.
iii. The mode of origin of law is different from the mode of origin of an order backed by a
threat. This means, Austin assumes the sovereign as the only source of law. But in reality,
laws can be created by other bodies outside the law maker. For example, most customary
laws that are usually enforced by courts (in common law) can be good examples. Laws can
also be created by an administrative body.

B. Austin’s notion of the habit of obedience is deficient

 To explain the ways in which he finds the notion of the habit of obedience to be deficient Hart
tells a story. Suppose, he says, there is a country in which an absolute monarch has ruled for a
long time. The population has generally obeyed the orders of the king, Rex (his name), and are
likely to continue to do so. Rex dies leaving a son Rex II. There is no knowing, on Rex II’s
accession, whether the people will obey the orders he begins to give when he succeeds to the
throne. Only after we find that Rex II’s orders have been obeyed for some time can we say that
the people are in a habit of obedience to him. Yet, in practice, if Rex II was Rex I’s legal
successor we would regard Rex II’s orders as laws from the start. So the notion of the habit of
obedience fails to account for what our experience tells us in fact happens: it fails to account for
the continuity to be seen in every normal legal systems when one ruler succeeds another.

C. Austin’s notion of sovereignty is deficient

 In Austin’s theory of law, there is no legal limit on a sovereign’s power, since, if he is
sovereign, he does not obey any other legislator. Thus, according to Austin, if law exists within
a state, there must exist a sovereign with unlimited power. But when we examine states in
which no one would deny that law exists we find supreme legislatures, the powers of which are
far from unlimited. For example, the competence of a legislature may be limited by a written
constitution under which certain matters are excluded from the scope of its competence to
legislate upon. If the legislature acts beyond that competence/power given by the constitution,
then usually courts declare it as invalid. We can also add another point at this juncture that
Austin’s theory on sovereignty doesn’t conform to the well accepted principle of separation of
power.
4. Pure Theory of Law: Hans Kelsen

 He declares that law must be studied as a pure science independent of other incidents, like
morality and justice, which makes him part of the positive school of jurisprudence.

 Pure Theory of Law

 Kelson found out that natural law has flaws and it contaminates law with other standards, which
makes it impossible for scientific study of the subject matter. Hence, instead, Kelson suggested
a ‘pure’ theory of law which would avoid contamination of any kind.
 Jurisprudence, Kelson propounded, “characterizes itself as a ‘pure’ theory of law because it
aims at cognition focused on the law alone” and this purity serves as its “basic methodological
principle.”
A. The Basic Norm (Grand norm)

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

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

 We ascribe a legal ought to such norm-creating acts by, ultimately, presupposing it. Since
‘ought’ cannot be derived from ‘is’, and since legal norms are essentially ‘ought’ statements,
there must be some kind of an ‘ought’ presupposition at the background, rendering the
normativity of law intelligible.
 As opposed to moral norms which, according to Kelsen, are typically deduced from other moral
norms by syllogism (e.g., from general principles to more particular ones), legal norms are
always created by acts of will. Such an act can only create law, however, if it is in accord with
another ‘higher’ legal norm that authorizes its creation in that way. And the ‘higher’ legal norm,
in turn, is valid only if it has been created in accordance with yet another, even ‘higher’ legal
norm that authorizes its enactment. Ultimately, Kelsen argued, one must reach a point where the
authorizing norm is no longer the product of an act of will, but is simply presupposed, and this
is, what Kelsen called, the Basic Norm or Grundnorm. More concretely, Kelsen maintained that
in tracing back such a ‘chain of validity’ (to use Raz's terminology), one would reach a point
where a ‘first’ historical constitution is the basic authorizing norm of the rest of the legal
system, and the Basic Norm is the presupposition of the validity of that first constitution. It is
like constructing a pyramid, starting from wider bases to reach the pick, the apex, i.e. the
Grundnorm.

 Kelsen wants to identify a basic legal principle which will ultimately include or define the legal
structures of all cultures. The Grundnorm or Basic Norm is a statement against which all other
duty statements can, ultimately, be validated. The Basic Norm is ultimately a sort of act of
faith--it is the belief in a principle beyond which one cannot go and which ends up being the
foundational principle for all subsequent legal statements. You cannot "go beyond" the
Grundnorm because it is an unimprovable first step.

 Ultimately it appears that the Grundnorm for Kelsen is a belief that one's respective legal
system ought to be complied with. Lots of other principles can then flow from this basic
realization.

 The basic norm, then, is the most general norm which is hypothesized as the norm behind the
final authority to which all particular valid norms can be traced back. This is the only norm
which cannot itself be questioned or validated. It is in this sense that its validity is presupposed
or tacitly assumed in any legal activity - for example, the relevant actions of a court official, a
police officer, a solicitor, a gaoler - which acknowledges the validity of particular norms. It
should be noticed especially that the basic norm is not the actual constitution - of the USA, UK,
Germany or wherever - which would be the empirical object of political science.

 Kelsen attributed two main explanatory functions to the Basic Norm: It explains both the unity
of a legal system and the reasons for the legal validity of norms. Apparently, Kelsen believed
that these two ideas are very closely related, since he seems to have maintained that the legal
validity of a norm and its membership in a given legal system are basically the same thing.
Furthermore, Kelsen argued that every two norms which derive their validity from a single
Basic Norm necessarily belong to the same legal system and, vice versa, so that all legal norms
of a given legal system derive their validity from one Basic Norm. It is widely acknowledged
that Kelsen erred in these assumptions about the unity of legal systems. Generally speaking, in
spite of the considerable interest in Kelsen's theory of legal systems and their unity that derives
from a single Basic Norm, critics have shown that this aspect of Kelsen's theory is refutable.
 Although it is certainly true that the law always comes in systems, the unity of the system and
its separation from other systems is almost never as neat as Kelsen assumed.

B. Hart and Kelsen

 There are, of course, clear parallels between Hart’s rule of recognition as the source of legal
validity and Kelsen’s basic norm. They both serve the same vital function in grounding the
positivist interpretation of the idea of a legal system.
 The differences, however, are as great as the similarities. Hart’s basic rule is a (secondary) rule
of law, not a Kelsen-style norm, or ‘ought-statement’. As such, it is a social fact, rather than a
hypothetical norm which is presupposed by all legal activity. As a social fact and a rule of law,
it is itself a part of the legal system, whereas the Kelsenian basic norm lies outside of the
system.
 There is also a different reason for its validity being unchallengeable. For Hart, it is a
meaningless question to ask whether or not the rule of recognition is valid. The demand for a
demonstration of its validity, he says, is equivalent to demanding that the standard meter bar in
Paris is correct.
 Legal validity is measured against this basic rule of law; it cannot be measured against itself.
5. H L A Hart- The Concept of Law

 Hart (1907-1992) was a Barrister, a professor and well known legal philosopher in England and
in the world. The Concept of Law by H L A Hart was published in 1961. Hart is said to be the
leading philosopher in the positivist camp who extensively wrote about the nature of law. His
approach is grouped as soft positivism in which he rejects Austin's command theory but holds
on to the separabilty of law and moral thesis.
 Hart’s Concept of Rules
 Having rejected the command theory of Austin, as discussed in the Austin’s part, Hart develops
and rebuilds his own positivist theory of legal validity. Arguing that what is missing from
Austin’s analysis is the concept of an accepted rule Hart unfolds his own analysis which aims at
a more sophisticated understanding of the social practice of following a rule.
 He distinguishes first between social rules which constitute mere regularity from social habits.
A. Social Habits vs. Social Rules

 Habits are not rules. And if someone breaks the habit it will not be regarded as a fault.
 An example of social rule might be a rule that a man should take his hat off in church. If
someone breaks the rule, this is regarded as a fault, and renders the offender liable to criticism.
Such criticism is generally regarded as warranted, not only by those who make it but also by the
person who is criticized. Further, for a social rule to exist, at least some members of the group
must be aware of the existence of the rule, and must strive to see that it is followed, as a
standard, by the group as a whole.
The internal and external aspects of rules
 This awareness of, and support for, a social rule Hart calls the internal aspect of rule.
  The fact that something is a social rule will be observable by anyone looking at the group from
outside. The fact that the rule can be observed to exist by an outsider is referred to by Hart as
the external aspect of the rule.
 A statement about a rule made by an outside observer may be said to be made from an external
point of view; a statement made by a member of the group who accepts and uses the rules as a
guide to conduct may be said to be made from an internal point of view.
 Hence internal point of view signifies that the law would be taken as a standard by the citizen to
evaluate his own conduct and that it would be taken as a sufficient reason/justification for an
action or omission, and the external point of view emphasizes that the law will be used not only
to guide one’s own conduct but also to evaluate the conduct of others. This is manifested by the
conduct of members of society towards an illegal act…social protest…reprimand or
disapproval.
B. Social Rules
 If something is a social rule, then we would find that such words as ‘ought’, ‘must’, ‘should’ are
used in connection with it. Social rules are of two kinds.
i. Those which are no more than social conventions, for example, rules of etiquette or rules of
correct speech. These are more than habits, as a group strives to see that the rules are observed,
and those who break them are criticized.
ii. Rules which constitute obligations. A rule falls into this second category when there is an
insistent demand that members of the group conform, and when there is great pressure brought to
bear on those who break the rule, or threaten to do so. Are regarded as important because they are
believed to be necessary to maintain the very life of the society, or some highly prized aspect of
it. Examples are rules which restrict violence or which require promise to be kept. Rules of this
kind often involve some kind of sacrifice on the part of the person who has to comply with the
rule – a sacrifice for the benefit of the others in the society.
C. Obligations
 Rules which constitute obligations may be sub-divided into two categories:
i. Rules which form part of the moral code of the society concerned: these rules are moral
obligations. Such obligations may be wholly customary in origin. There may be no central
body responsible for punishing breaches of such rules, the only form of pressure for
conformity being a hostile reaction (stopping short of physical action) towards a person who
breaks the rule. The pressure for conformity may take the form of words of disapproval, or
appeals to the individual’s respect for the rule broken. The pressure may rely heavily on
inducing feelings of shame, remorse or guilt in the offender.
ii. Rules which take the form of law – even if a rudimentary or primitive kind of law. A rule
will come into this category if the pressure for conformity includes physical sanctions
against a person who breaks the rule – even if the sanctions are applied, not by officials, but
by the community at large.
 In both cases, there is serious social pressure to conform to the rule, and it is this which makes
the rule an obligation (as opposed to mere social convention, or even a habit).
D. Primary and Secondary rules
 Primary rules of law are said to be those which are essential for any kind of social existence,
those which prescribe, prevent or regulate behavior in every area with which the law is
 concerned. These are all the rules constraining anti-social behavior; rules against theft, cheating,
violence and so on. As such, they constitute the great bulk of the positive laws which the legal
system consists of. In simple words, primary rules define the rights and duties of citizens and
that the bulk of law including criminal and civil law…or what we call substantive law falls
under this category).
 Basically primary rules are rules that govern primitive society. These rules are not legislated or
made rather they evolve through the process of practice and acceptance. Their validity is to be
verified by checking whether they are accepted substantially by all members of the community.
 The secondary rules are fundamentally different in kind from the primary rules. They bring
primary rules into being, they revise them, they uphold them, or they change them completely.
In other words, secondary rules are those that stipulate how, and by whom, such primary rules
may be formed, recognized, modified or extinguished. The rules that stipulate how parliament is
composed, and how it enacts legislation, are examples of secondary rules. Rules about forming
contracts and executing wills are also secondary rules because they stipulate how very
particular rules governing particular legal obligations (i.e., the terms of a contract or the
provisions of a will) come into existence and are changed. Hart argues that the creation of
secondary rules marks the transition from a pre-legal society to a legal system.
The function of secondary rules
 It is possible to imagine a society which does not have a legislature, courts or officials of any
kind. Such society is one that lives by primary rules of obligations alone. For such society to
exist, certain conditions must be satisfied. They are as follows:
 In view of human nature, the primary rules must include rules which contain restrictions on
violence, theft, and deception.
 Although there may be a minority who reject the rules, the majority must accept them.
 The society must be a small one, with close ties of kinship, common sentiments and
beliefs.
 The society must live in a stable environment.
 If the society was large and there was no relative stability, then, the primary rules would not
continue to exist. Specifically the following defects would show themselves.
 If doubts arose as to what the primary rules were, there would be no means of resolving the
uncertainty. There would be no procedure for determining what the rules were (e.g. by
referring to some authoritative text, or asking guidance from an official whose function it
was to decide such matters).
 There would be no means of altering the rules according to changing circumstances. The
rules would be static.
 There would be no means of settling a dispute as to whether a rule has been broken. (This is
the most serious defect of all.)
 There would be no one with authority to impose punishments for breaches of the rules.
Conformity with the rules would only be secured by defuse social pressure, or by
punishments meted out by the group as a whole. This would be an inefficient way of
ensuring that the rules were observed. Unorganized efforts by the group to catch and punish
offenders would waste time: punish flexiablity
 ment inflicted by individuals might lead to vendettas.
 Secondary rules have something in common with primary rules and are connected with them.
Primary rules are concerned with what people must do or must not do. Secondary rules are
concerned with the primary rules in that they lay down the ways in which primary rules may be
introduced, varied, and abandoned; the way in which primary rules may be ascertained; and the
way in which it can be decided whether a primary rule has been broken.
 Secondary rules can provide remedies for the defects listed above. Following are these
remedies.
1) The defect of uncertainty as to what the primary rules are, can be remedied by having
secondary rules which provide a way of knowing whether a suggested rule is or is not in fact
a rule of the group. There may be more than one way of deciding what the primary rules are.
And if there is more than one way, there may be a means of resolving possible conflicts by
having an order of superiority (e.g. a proclamation overriding judicial decisions). A
secondary rule which enables one to know what the primary rules are is referred to by Hart
as a ‘rule of recognition’. If a society has a ‘rule of recognition’ then it has a way of
determining whether a law is valid or not.
2) The other defect that the rules are static can be remedied by having secondary rules that
provide for ways in which the primary rules can be changed. Secondary rules of this kind,
which are known as ‘rules of change’ may specify the persons who are to have power to
alter the law, and lay down the procedure to be followed in order to do so.
3) The third defect mentioned above under (3) can be remedied by having secondary rules
which enable any individual to find out whether or not a primary rule has been broken. Such
rules can lay down who is to decide this (e.g. a judge) and any procedure which must be
followed. These rules will be concerned with judges, courts, jurisdiction and judgments.
These are rules of adjudication
4) The defect which we set out under (4) above can be remedied by having secondary rules
which prohibit individuals from taking into their own hands the punishment of others for
breach of primary rules, and instead provide for an official system of penalties, with
maximum penalties, administered by officials (e.g. a judge). These rules provide the
sanctions of the system.

The Rule of Recognition

 The most fundamental of these secondary rules. This is the rule to which the authority of all the
primary rules is referred.
 The rule of recognition of a given community may be relatively simple (‘What the king enacts is
law’) or it may be very complex (the United States Constitution, with all its difficulties of
interpretation, may be considered as a single rule of recognition). The demonstration that a
particular rule is valid may therefore require tracing a complicated chain of validity back from
that particular rule ultimately to the fundamental rule.
 A rule of recognition cannot itself be valid, because by hypothesis it is ultimate, and so cannot
meet tests stipulated by a more fundamental rule. The rule of recognition is the sole rule in a
legal system whose binding force depends upon its acceptance. If we wish to know what rule of
recognition a particular community has adopted or follows, we must observe how its citizens,
and particularly its officials, behave. We must observe what ultimate arguments they accept as
 showing the validity of a particular rule, and what ultimate argument they use to criticize other
officials or institutions. We can apply no mechanical test, but there is no danger of our
confusing the rule of recognition of a community with its rules of morality. The rule of
recognition is identified by the fact that its province is the operation of the governmental
apparatus of legislatures, courts, agencies, policemen, and the rest.

E. Hart and legal positivism

 His concept of law was certainly a radical revision of what had previously been known as
positivism. This was due largely to its association with the command theory. Hart firmly
believed that there was continuity as well as discontinuity between himself and the Austinian
tradition. What he objected to in the command theory was that it concealed the real structure of
law as the interplay between different types of rules, as revealed by his own analysis. He did
not, however, regard the command theory as a complete distortion.
 Hart agrees with Austin that valid rules of law may be created through the acts of officials and
public institutions. But Austin thought that the authority of these institutions lay only in their
monopoly of power. Hart finds their authority in the background of constitutional standards
against which they act, constitutional standards that have been accepted, in the form of a
fundamental rule of recognition, by the community which they govern. This background
legitimates the decisions of government and gives them the cast and call of obligation that the
naked commands of Austin’s sovereign lacks. Thus Hart’s criterion for the unity of a legal
system is more general than Austin’s.

Dworkin’s criticism on Hart/Positivism

 As opposed to the separation thesis, the idea that the conditions of legal validity are at least
partly a matter of the moral content of the norms is articulated in a sophisticated manner by
Ronald Dworkin's legal theory. Dworkin is not a classical Natural Lawyer, however, and he
does not maintain that morally acceptable content is a precondition of a norm's legality. His
core idea is that the very distinction between facts and values in the legal domain, between what
the law is and what it ought to be, is much more blurred than Legal Positivism would have it:
Determining what the law is in particular cases inevitably depends on moral-political
considerations about what it ought to be. Evaluative judgments partly determine what the law is.
 Dworkin's legal theory is not based on a general repudiation of the classical fact-value
distinction, as much as it is based on a certain conception of legal reasoning. This conception
went through two main stages. In the 1970's Dworkin argued that the falsehood of Legal
Positivism resides in the fact that it is incapable of accounting for the important role that legal
principles play in determining what the law is. Legal positivism envisaged, Dworkin claimed,
that the law consists of rules only. However, this is a serious mistake, since in addition to rules,
law is partly determined by legal principles. The distinction between rules and principles is
basically a logical one. Rules, Dworkin maintained, apply in an ‘all or nothing fashion’. If the
rule applies to the circumstances, it determines a particular legal outcome. If it does not apply, it
is simply irrelevant to the outcome. On the other hand, principles do not determine an outcome
even if they clearly apply to the pertinent circumstances. Principles basically provide the judges
with a reason to decide the case one way or the other, and hence they only have a dimension of
 weight. That is, the reasons provided by the principle may be relatively strong, or weak, but
they are never ‘absolute’. Such reasons, by themselves, cannot determine an outcome, as rules
do.

 According to Dworkin's theory, unlike legal rules, which may or may not have something to do
with morality, principles are essentially moral in their content. It is, in fact, partly a moral
consideration which determines whether a legal principle exists or not.

 Legal principles occupy an intermediary space between legal rules and moral principles. Legal
rules are posited by recognized institutions and their validity derives from their enacted source.
Moral principles are what they are due to their content, and their validity is purely content
dependent. Legal principles, on the other hand, gain their validity from a combination of
source-based and content-based considerations. As Dworkin put it in the most general terms:
‘According to law as integrity, propositions of law are true if they figure in or follow from the
principles of justice, fairness, and procedural due process that provide the best constructive
interpretation of the community's legal practice.’ The validity of a legal principle then, derives,
from a combination of facts and moral considerations. The facts concern the past legal decisions
which have taken place in the relevant domain, and the considerations of morals and politics
concern the ways in which those past decisions can best be accounted for by the correct moral
principle.
 Needless to say, if such an account of legal principles is correct, the separation thesis can no
longer be maintained. But many legal philosophers doubt that there are legal principles of the
kind Dworkin envisaged. There is an alternative, more natural way to account for the distinction
between rules and principles in the law: the relevant difference concerns the level of generality,
or vagueness, of the norm-act prescribed by the pertinent legal norm. Legal norms can be more
or less general, or vague, in their definition of the norm-act prescribed by the rule, and the more
general or vague they are, the more they tend to have those quasi-logical features Dworkin
attributes to principles.

 In the 1980's Dworkin radicalized his views about these issues, striving to ground his anti-
positivist legal theory on a general theory of interpretation, and emphasizing law's profound
interpretative nature. Despite the fact that Dworkin's interpretative theory of law is extremely
sophisticated and complex, the essence of his argument from interpretation can be summarized
in a rather simple way. The main argument consists of two main premises. The first thesis
maintains that determining what the law requires in each and every particular case necessarily
involves an interpretative reasoning. Any statement of the form “According to the law in S, x
has a right/duty etc., to y” is a conclusion of some interpretation or other. Now, according to the
second premise, interpretation always involves evaluative considerations. More precisely,
perhaps, interpretation is neither purely a matter of determining facts, nor is it a matter of
evaluative judgment per se, but an inseparable mixture of both. Clearly enough, one who
accepts both these theses must conclude that the separation thesis is fundamentally flawed. If
Dworkin is correct about both theses, it surely follows that determining what the law requires
always involves evaluative considerations.

 Both of Dworkin's two theses are highly contestable. Some legal philosophers have denied the
first premise, insisting that legal reasoning is not as thoroughly interpretative as Dworkin
assumes. Interpretation, according to this view, is an exception to the standard understanding of
language and communication, rendered necessary only when the law is, for some reason,
unclear. However, in most standard instances, the law can simply be understood, and applied,
without the mediation of interpretation. Other legal philosophers denied the second premise,
challenging Dworkin's thesis that interpretation is necessarily evaluative.

 Dworkin's legal theory shares certain insights with the Inclusive version of Legal Positivism.
Note, however, that although both Dworkin and Inclusive Legal Positivists share the view that
morality and legal validity are closely related, they differ on the grounds of this relationship.
Dworkin maintains that the dependence of legal validity on moral considerations is an essential
feature of law which basically derives from law's profoundly interpretative nature. Inclusive
Positivism, on the other hand, maintains that such a dependence of legal validity on moral
considerations is a contingent matter; it does not derive from the nature of law or of legal
reasoning as such. Inclusive Positivists claim that moral considerations affect legal validity only
in those cases which follow from the social conventions which prevail in a given legal system.
In other words, the relevance of morality is determined in any given legal system by the
contingent content of that society's conventions. As opposed to both these views, traditional, or
as it is now called, Exclusive Legal Positivism maintains that a norm is never rendered legally
 valid by virtue of its moral content. Legal validity, according to this view, is entirely dependent
on the conventionally recognized factual sources of law.

 It may be worth noting that those legal theories maintaining that legal validity partly depends on
moral considerations must also share a certain view about the nature of morality, namely, they
must hold an objective stance with respect to the nature of moral values. Otherwise, if moral
values are not objective and legality depends on morality, legality would also be rendered
subjective, posing serious problems for the question of how to identify what the law is. Some
legal theories, however, do insist on the subjectivity of moral judgements, thus embracing the
skeptical conclusions that follow about the nature of law. According to these skeptical theories,
law is, indeed, profoundly dependent on morality, but, as these theorists assume that morality is
entirely subjective, it only demonstrates how the law is also profoundly subjective, always up
for grabs, so to speak. This skeptical approach, fashionable in so called post-modernist
literature, crucially depends on a subjectivist theory of values, which is rarely articulated in this
literature in any sophisticated way.

Law and Morality: Hart/Devlin debate

 The relationship between law and morality, or more accurately between legal validity and moral
quality, has posed major questions for jurisprudence over the centuries.
 The moral criteria for the evaluation of positive law and the implication of their application are
particular concerns of naturalist theories but have at various times troubled positivists also.
1. Liberalization and the Wolfenden Report
 The debate was initiated in 1957, when the Wolfenden Committee made two recommendations
to the government: (1) that private prostitution should remain legal, and public soliciting be
outlawed; and (2) that male homosexual acts in private between consenting adults over the age
of 21 should be legalized.

 What was of particular importance was the Wolfenden view of the function of the criminal law,
which was stated with exceptional clarity as follows: The function of the criminal law, as we
see it, is to preserve public order and decency, to protect the citizen from what is offensive or
injurious, and to provide safeguards against exploitation and corruption of
others….particularly the specially vulnerable, the young, weak and inexperienced…. It is not, in
our view, the function of the law to intervene in the private lives of citizens, or to seek to enforce
any particular pattern of behavior.

 Their justification for saying so was: the importance which society and the law ought to give to
individual freedom of choice and action in matter of private morality. Unless deliberate attempt
is to be made by society, acting through the agency of the law, to equate the sphere of crime
with that of sin, there must remain a realm of private morality which is, in brief and crude
terms, not the law’s business.

 Wolfenden was advocating a new spirit of tolerance. Any private individual activities that
presented no threat to other citizens, or to the maintenance of public order and decency, should
remain beyond the reach of the criminal law. It should be noted that the emphasis of the
recommendation was firmly on the private sphere; there were no liberal implications for the
 publication or public display of pornography, or any other kind of public behavior that might be
found offensive. Also the spirit of the report was morally neutral, in that it passed no judgment
on what was taking place in private place. It simply declared that it was none of the law’s
business.

2. John Stuart Mill and Liberty

 The findings of the Wolfenden Committee were clearly based on Mill’s classic essay On
Liberty.
 In one of the most influential statements in modern political and legal philosophy, Mill had
declared that: The sole end for which mankind is warranted, individually or collectively, in
interfering with the liberty of action of any of their number is self-protection. The only purpose
for which power can be rightfully exercised over any member of a civilized community, against
his will, is to prevent harm to others. His own good, either physical or mental, is not a sufficient
warrant.
 According to the principle of harm. According to this principle, there is no justification for the
use of the law (i.e. mankind collectively) against citizens for any purpose other than the
prevention of harm to other citizens. The law is limited in its function to the ‘self-defense’ of
society, and is legitimately employed if an individual’s action is threatening society in some
way. The second point Mill is making is that the law should also be limited to protecting people
against others, not against themselves. The first point is an argument against legal moralism, or
the enforcement of moral norms regardless of whether there is any danger. The second point is
an argument against paternalism, or the interference in a person’s freedom of action, when it is
ostensibly for that person’s own good.

3. Lord Patrick Devlin

 Lord Patrick Devlin, a prominent British High Court Judge and philosopher, was the first and
foremost to attack the conclusion and the rationale behind the conclusion of the Wolfenden
Report. In a lecture entitled The Enforcement of Morals, Devlin defended society’s right to pass
judgment on all matters of morality, but especially on what he described as “society’s
constitutive morality”.
On Consent

 One of the conclusions of the committee was that male homosexual acts in private between
consenting adults over the age of 21 should be legalized. As far as it is made between
consenting adults, it is none of the law’s business. Here, there are two essential elements,
namely: consent and majority (above the age of 21 years).
 Devlin’s attack begins and concentrates on the first element, consent. According to Devlin,
consent is not a sufficient ground for an action to be private morality and thereby a private
issue, not the law’s (or the society’s) concern. In effect, it means consent can overcome any
immoral action. Devlin argues that this is inconsistent with the fundamental principles of
criminal law. The criminal law of England (and other countries for that matter) has concerned
itself with moral principles. Subject to certain exceptions inherent in the nature of particular
crimes, the criminal law has never permitted consent of the victim to be used as a defense. That
is why the victim cannot forgive the aggressor in a criminal act and require the prosecutor to
 drop the case. Consent and forgiveness are irrelevant. He also mentioned criminal offences like
suicide, attempt to suicide, euthanasia (killing another at his own request), incest between
brother and sister, abortion, duel etc. All these may be acts committed privately and between
consenting adults. But they are still crimes and prohibited by law. Because, according to Devlin,
‘it is an offence against society….there are certain standards of behavior or moral principles
which society requires to be observed; and the breach of them is an offence not merely against
the person who is injured but against society as a whole’.

 According to Devlin, that the criminal law is based on moral grounds and the function of the
law is enforcement of moral principles and nothing else.

Justifications for Legal Enforcement of Morality

 In reality, in most of the cases, the law is serving to enforce morality. But what is the
justification? Why should a private action be considered as an issue of public morality that
concerns the society?
 In an attempt to answer this question, Lord Devlin has framed three questions addressed to
himself to answer:
a) Has society the right to pass judgment at all on matters of morals? Ought there, in other
words, to be a public morality, or are morals always a matter for private judgment?
b) If society has the right to pass judgment, has it also the right to use the weapon of the law to
enforce it?
c) If so, ought it to use the weapon in all cases or only in some; and if only in some, on what
principles should it distinguish?
 Lord Devlin answers the above questions in the following way.

a) Regarding the first question his answer is in the positive. Yes, there is a shared morality. Yes,
there is a public morality. Society is a community of ideas. These ideas could be moral or
political. These ideas are foundations or bondages to the unity of the society. He gives marriage
as an example. For example, in the western Christian society marriage is concluded between
one man and one woman. The moral background which emanated from Christianity forbids
bigamy or polygamy. So the idea of this morality, which is adopted by the couple, serves as a
base for the continuity of the marriage institution. One cannot remove this morality without
bringing down the marriage itself. If one of the spouses commits adultery (which is immoral)
with another consenting adult, this immoral act will be felt by the other spouse and the marriage
will collapse. In other words, ‘the institution of marriage would be gravely threatened if
individual judgments were permitted about the morality of adultery; on these points there must
be a public morality’. There is such thing as public morality and society has the right to make
judgment on morality.

b) In this second part, Devlin answers the next question: has society the right to pass law to
enforce morality? Lord Devlin says: …if society has the right to make a judgment and has it on
the basis that a recognized morality is necessary to society as, say, a recognized government,
then society may use the law to preserve morality in the same way as it uses it to safeguard
anything else that is essential to its existence. If therefore the first proposition is securely
established with all its implications, society has a prima facie right to legislate against
 immorality as such. why should society be given this power? Devlin analogizes morality to a
government, and immorality to treason. An established government is necessary for the
existence of society. Treason (conspiracy to overthrow the government) is in effect against the
security of the society. An established morality is as necessary as a good government to the
welfare of the society. Society disintegrates within more frequently than they are broken up by
external pressures. Hence, Devlin concludes that: ‘it is no more possible to define a sphere of
private morality than it is to define one of private subversive activity. There are no theoretical
limits to the power of the state to legislate against morality.’

c) In what circumstances should the state exercise its power is the third of the framed questions. It
is obvious that the society/government cannot forbid every kind of immoral act. For example,
refusing to share your wealth with your poor neighbor may be immoral, but difficult to
incorporate into the criminal law. Thus, Devlin prefers to be selective. But how are the moral
judgments of society to be ascertained? Who decides that an act is immoral so as to condemn it
to illegality? In whose eye is an act to be immoral? What are the clues for the legislature?
Devlin takes the judgment of a reasonable man. A reasonable man should not be confused with
a rational man, however. A reasonable man is the man in the street, a man with a right frame of
mind. The reasonable man ‘is not expected to reason about anything and his judgment may be
largely a matter of feeling’. ‘Immorality then, for the purpose of law, is what every right-
minded person is presumed to consider being immoral.’ Moreover, it must be ‘capable of
affecting society.´

Restraints

 It may be dismaying that Lord Devlin argues that any immoral acts can be made illegal if the
reasonable man feels so. Yet, there are about three guidelines for the legislature follow before
outlawing a certain immoral act.

1. Nothing should be punished by law that does not lie beyond the limits of tolerance: Devlin
says an immoral act which is tolerated by the society need not to be outlawed. Devlin puts
three kinds of feelings that can lead us to the conclusion that an action be beyond tolerance:
intolerance, indignation, and disgust. Thus, if the man on the street becomes intolerant,
indignant and disgusted by a certain action, that is a good clue for the legislature to act. Devlin
asks for maximum tolerance.

2. Laws should be slow in matters of moral: The human mind always needs greater freedom of
thought. After a time the mind can become accustomed to an action and relaxed. The feeling
of society or its moral standard on a certain matter is different from generation to generation.
Thus since tolerance can be shifted soon, the legislature shall act slowly.

3. As far as possible privacy should be respected: ‘English man’s home is his castle.’ This shows
that privacy is something respected. Devlin says for the sake of respect for privacy, police
should not violate individual privacy unless a complaint is made for investigation.
Hart’s reply to Devlin
 In 1963, H. L. A. Hart published the text of three lectures as Law, Liberty and Morality, in
which he developed a qualified defense of Mill’s liberalism, supporting the recommendations of
the Wolfenden Commission and countering Devlin’s critique of both. His main purpose was to
clarify the issues at stake, and in so doing to argue that the use of the criminal law to enforce
morals was deeply misguided.
 Much more in step than Devlin with the liberalizing spirit of the early 196Os, Hart set out to
undermine moral conservatism and to defend the Wolfenden contention that there is an area of
private behavior which should be no business of the criminal law.
 Mindful at the outset of the vulnerability of Mill’s libertarian position to a criticism of its
dangerous implications, Hart took care to distinguish between coercion for the sake of enforcing
society’s moral norms, and coercion for the agent’s own good. According to the version of
liberalism which Hart was developing in these lectures, it is only the latter form of state
coercion which is to some extent defensible. Society does have the right to prevent its members
from harming themselves as much as from harming others, but it does not have the right to
enforce conformity with collective moral standards.
 In the name of liberty, Mill had opposed any state interference into such activities, but Hart sets
a new limit to the ‘no-harm’ principle, which is in fact a more literal interpretation of this
phrase. What he argues is that the proper reach of the criminal law stops at the point of tangible
harm as such - to self or others - whereas for Mill it stops only at the point of harm to others.
What Hart endorses in Mill is his defense of the right to follow one’s own lifestyle; what he
rejects is his insistence that this right has no internal limits.
 One of Devlin’s main complaints about Devlin’s case against liberty is that he blurs the
distinction between paternalist law and what Hart now labels ‘legal moralism’. This is the
distinction between laws for people’s own protection (e.g. to prohibit one from using drugs for
the sake of his safety) and laws which merely seek to enforce moral standards (e.g. to prohibit
one from committing private homosexual activity). It is easy to see how this distinction can be
blurred and the issue confused. If behavior deemed to be immoral, it is widely regarded as by
definition harmful and self- destructive; laws prohibiting it will be seen as paternalistic and
defensible. In Devlin’s view, both are immoral and shall be forbidden; but in Hart’s view only
the first one shall be included in the criminal law.
 Hart disputes Devlin's thesis saying that ‘it assumes that immorality jeopardizes society, when
in fact there is no evidence of that proposition.’ There are no empirical or practical evidences
that show that the change of morality of a society is followed by its destruction. While Hart
conceded that some shared morality is essential to the existence of society, he questioned
Devlin's leap from there to the proposition that a change in society's morality is tantamount to
destroying it-- that society is equal to its morality-- because that implies that the morality of a
society cannot change, or rather that if it does, one society is actually disappearing, and being
replaced by another. According to Hart, Devlin's argument amounts to an assertion that law
should preserve existing morality, not that legal enforcement of morality is good in and of itself.
By contrast, Hart asserted that society cannot only survive individual differences in morality but
can profit from them, though he does not specify exactly how it might profit. The idea is society
can live with its differences.
 Hart also said that even if there is a valid argument for the legal enforcement of morality,
Devlin's argument as to how that morality should be ascertained is flawed: ". . . no one should
think even when popular morality is supported by an 'overwhelming majority' marked by
widespread ' intolerance, indignation, and disgust' that loyalty to democratic principles requires
him to admit that its imposition on a minority is justified." Hart's view of the connection
between society and society's morality is more flexible than Devlin's. A society's morality can
change without the society disappearing and democracy does not require the enforcement of
uniform morality, as Devlin suggested.
 In place of Devlin's justification for the full enforcement of morality, Hart developed his own
argument for the partial enforcement of morality based on a distinction he drew between
immorality which affronts public decency and that which merely 'distresses' others based on the
knowledge that immoral acts are taking place. In Hart's view, society may, for example, outlaw
the public expression of bigamy or prostitution, because such could be considered an affront to
public decency, as a nuisance, while it would not be justifiable to outlaw purely private
manifestations of these types of behavior, or of consensual homosexual behavior in private,
even though some might claim to be distressed by the private behavior as well. At this point,
Hart viewed it as a matter of balancing the distress from the knowledge that something immoral
is taking place with individual liberty: "[n]o social order which values individual liberty could
also value the right to be protected from this type of distress."

UNIT FIVE: HISTORICAL AND SOCIOLOGICAL LEGAL THEORY

 The so called historical school of the nineteenth century, led by the different theories of von
Savigny and Henry Maine, shows us that law cannot be fully understood until its historical and
social context is studied and appreciated.
 The sociological school of jurisprudence is largely a product of the 20th century. Its approach to
the analysis of law differs from that of the other schools in that it is concerned less with the
nature and origin of law than with its actual functions and end results.
 The proponents of sociological jurisprudence seek to view law within a broad social context
rather than as an isolated phenomenon distinct from and independent of other means of social
control.
 The sociological questions in jurisprudence are concerned with the actual effects of the law
upon the complex of attitudes, behavior, organization, environment, skills, and powers involved
in the maintenance of a particular society. They are also concerned with practical improvement
of the legal system and feel that this can be achieved only if legislation and court adjudications
take into account the findings of other branches of learning, particularly the social sciences. The
main propagators of this school of jurisprudence are Eugen Ehrlich and Roscoe Pound.
1. Historical School
a. The Spirit of the People: Savigny
 The German historical school of jurisprudence was launched on its way by Savigny’s little
published book. A scholar of the Roman law, he was a professor and energy to the new
jurisprudential school. His arguments on the nature and source of law as well as his view of
historical development of law is presented as follows:
 1. Law originates in custom which expresses national uniqueness. The principles of law derive
from the beliefs of the people.
2. At the next stage, juristic skills are added, including codification which does no more than
articulate the Volkgeist but adds technical and detailed expression to it.
3. Decay and sets in.
 The first is that the law of a nation, like its language, originates in the popular spirit, the
common conviction of right, and has already attained a fixed character, peculiar to that people,
before the earliest time to which authentic history extends. In this prehistoric period the laws,
language, manners and political constitution of a people are inseparably united and they are the
particular faculties and tendencies of an individual people bound together by their kindred
consciousness of inward necessity. This popular spirit (Volksgeist) is the foundation of all of a
nation’s subsequent legal development. Custom is its manifestation. The origin of the popular
spirit is veiled in mysticism, and its crude beginnings are colored with romanticism.
 But Savigny knew that the popular spirit did not create the complex system of rights in land in
Roman law or in any other advanced culture. Accordingly, he supplemented his ‘popular spirit’
origin with the theory that the jurists (legal scholars including professors and judges), who
become legal specialists with the advance of civilization, are the representatives of the
community spirit and are thus authorized to carry on the law in its technical aspects. Then after,
law has a twofold existence: First, as part of the aggregate life of the community, and, secondly,
as a distinct branch of knowledge in the hands of the jurists. Thus legal history has the ‘holy
duty’ of maintaining a lively connection between a nation’s present and its primitive state; to
lose this connection will deprive the people of the best part of their spiritual life.
 His three stage developmental process is that fist he sees principles of law deriving from the
conviction of the people; second, law reaches its pinnacle, with juristic skills which he calls the
“political element in law” added to these convections. It is at his stage that codification is
desirable, to retain the perfection of the system. The third stage is one of decay.
Evaluation
 The whole concept of Savigny’s discussion of the Volksgeist is said to be obscure. The whole
concept of the work, the spirit of the people, is difficult to accept for any less than homogenous,
or pluralistic, society.

b. The Changing process of Ancient Law: Henry Maine

 The German historical school had a profound influence upon jurisprudence and legal
scholarship, and even some influence on legal practice, in England and in the United States.
 The chief representative of the historical school in England was Sir Henry Maine who was for
many years professor of civil law at Cambridge.
 Maine partly accepted Savigny’s view of the importance of primitive legal institutions when he
said that the rudimentary ideas of early law are to the jurist what the primary crusts of the earth
are to the geologist. “They contain,” he said, “potentially all the forms in which law has
subsequently exhibited itself.” While
 Maine departed from Savigny in two important respects: he believed in stages of legal
evolution, in which the primitive ideas might be discarded; and he sought to discover by
comparative studies of different systems of law the ideas which they had in common.
 His chief contribution is his analysis of legal change. After due study of laws of the ancient
world, Maine comes to the conclusion that the development of legal systems followed a pattern
of six stages. Static societies passed through the first three stages; progressive societies then
moved through at least some of the latter three.
 Maine stated that the origins of legal development can be traced to religion and ritual. This can
be seen in societies that never developed literacy, at least so far as the majority of their
population are concerned. Their ritual is used as a means of education in circumstances where it
would be futile to reduce instructions into writings. Examples of ritual washing may
demonstrate this point. From this initial pool of ritual and religion flowed the stream of the
development of the law.
 The pattern of development that Maine was so concerned to identify was as follows.
 Royal Judgments: Royal judgments, divinely inspired, were the first stage. This was a
primitive stage which should not be confused with the command of a sovereign as it was not
a law making process, but dispute settlement. An example is the story of King Solomon and
the two mothers, proposing to divide the live baby in two as the mothers could not agree on
who was the real mother. There was no rule or principle that King Solomon was applying.
Within the context of Maine’s theory it can be observed firstly that it was to King Solomon
that the parties turned for resolution of the dispute and secondly that there was divinely
inspired in order to draw out the real mother who could rather have her child live but away
from her than die.
 Custom: Custom and the dominion of aristocracies follow royal judgments; the prerogative
of the king passes to different types of aristocracies (in the east religious; in the west, civil or
political), which were universally the depositaries and administrators of law. What the
juristical oligarchy now claims is to monopolize the knowledge of the laws, to have
exclusive possession of the principles by which quarrels are decided. Customs or
observances now exist as a substantive aggregate, and are assumed to be precisely known to
an aristocratic order or caste (interestingly in England it was judges). This is the stage of
unwritten law; knowledge of the principles is retained by being kept by a limited number.
 Codes: The third stage is the period of codes. This is when written and published laws
replace usages deposited with the recollection of a privileged oligarchy. This is not an era of
change, but rather a period at which, because of the invention of writings, the usage are
written down as a better method of storage. In Roman law, the Twelve Tables, and in
England the gradual move to written law reports, represent the code stage. Static societies
stop here and progressive societies move on.
 The major difference of the next three stages from the first three is that they are stages of
deliberate change. Most of the changes in the content of law in those first stages were the result
of spontaneous development. But to move to the next step it needed a deliberate act which
according to Maine consists of the following three stages.
 Legal fictions: That is any assumption which conceals, or affects to conceal, the fact that a
rule of law has undergone alteration, its letter remaining unchanged, its operation being
modified. Examples would be false allegations in writs to give a court jurisdiction.
 Equity: The development of a separate body of rules, existing alongside the original law and
claiming superiority over it by virtue of an inherent sanctity, is a second mode of progress
and change. Such a body grew up under the Roman praetors, and the English chancellors.
  Legislation: This is the final stage of the development sequence. It is the enactment of a
legislature in the form of either an autocrat prince, or a sovereign assembly (parliament).
These encasements are authoritative because of the authority of the body and not, as with
equity, because of something inherent in the content of the principles.
Criticism
 Maine’s contribution to jurisprudence is that his conclusions have not been proved; his
scientific and empirical method was the forerunner of much modern jurisprudence and
sociology.
 Some doubt the sequential development of a legal system of which Maine wrote. They argue
that considerable latitude is inherent in the content of primitive people’s customary practice. It
is not clear that primitive societies move through the first three stages, nor that they are static.
Some studies of primitive tribes show use of legislation, for example. Nor is it clear that the
Anglo-Roman experience of fictions and equity as the first two progressive stages is universally
experienced. An evolution along the six-stage pattern should not be expected for every legal
system.

2. Sociological School
a. Living Law: Eugen Ehrlich
 Unlike the Historical School that conceives a nation’s law as tied to the primitive consciousness
of its people, Ehrlich’s sociological conception of law located the law in the present-day
institutions of its society. He points the law’s place in society:At present as well as at any other
time, the center of gravity of legal development lies not in legislation, nor in juristic science
(jurisprudence), nor in judicial decision, but in society itself.
 While studying the effects of written law on the day to day commercial activities, Ehrlich was
led to the conception of the Living Law of a community. He argued that there was a living law
independent of legal propositions and that this living law is a proper study of the science of law:
 He noted that earlier legal theories that recognize law as a sum of statutes and judgments gave
an inadequate view of the legal reality of a community. He drew a distinction between norms of
decision and social norms or norms of conduct. The latter actually govern the life in a society
and can be regarded in popular consciousness, if not necessarily by lawyers, as law. The point
Ehrlich sought to make was that the "living law" which regulates social life may be quite
different from the norms for decision applied by courts.
 Norms for decision regulate only those disputes that are brought before a judicial or other
tribunal.
 Living law is a framework for the routine structuring of social relationships. Its source is in the
many different kinds of social associations in which people co-exist. Its essence is not dispute
and litigation, but peace and co-operation.
 In his sociological study he observed that what the law-books said and what actually are
followed by the people as well as by courts are different. It is this approach that enabled him to
show that law in his town as in ancient Rome had none of the qualities that legal doctrine
attributed to it but a host of qualities on which legal doctrine had nothing to say.
 Ehrlich tried to show these discrepancies by studying and analyzing ‘social associations’. He
did identify a great number of associations ranging from family, inheritance, clan, or tribe to
state, nation, or the community of nations. The associations could be religious, political,
economic or social in character. All these associations have ‘inner order’ which has a character
of law, but developed long ago before the creation of the positive law. And he concluded that
such inner order of associations still exists independent of the positive law, and hence courts
need to consider such rules during decision giving.

b. Law in Action: Roscoe Pound

 His concern was to examine law in action as opposed to the topic of law in books.
 All his philosophy (Programs of Sociological Jurisprudence) is included and classified in to six
main points:
 The first is the study of the actual social effects of legal institutions and legal doctrines.
 The second is sociological study in preparation for law making. It is not enough to study
other legislation analytically. It is much more important, says this school, to study its social
operation and the effects it produces when put into action.
 The third point is study of the means of making legal rules effective. This has been
neglected almost entirely in the past. But the life of the law is in its enforcement, and
accordingly Pound considers it part of the jurist’s work to study the question of how best to
bring about effective enforcement of law.
 The fourth point is sociological legal history, that is, a study not only of how legal rules
have evolved and developed, but also of how they have worked in practice and of the social
effects they have produced and of the manner in which they have produced them.
 The fifth point is the importance of reasonable and just decisions in individual cases. In
general this school conceives of the legal rules as guide to the judge, leading him toward the
just result, but insists that within wide limits he should be free to deal with the individual
case so as to meet the demands of justice between the parties.
 Finally, the sociological jurists stress the point that the end of juristic study is to make effort
more effective in achieving the purposes of law.
 If we compare sociological jurisprudence with the concept of the three other (Natural,
Analytical, and Historical) schools the following characteristics may be emphasized:
 It is concerned more with the working of the law than its abstract content.
 It regards the law as a social institution capable of improvement by intelligent human effort,
and it considers that it is the sociologist jurist’s duty to discover the best means of aiding and
directing such effort.
 It emphasizes the social purposes which law subserves rather than its sanction.
 It looks upon legal doctrines, rules and standards functionally and regard the form as a
matter of means only.

Legal Education

 He was the first to turn Holmes’ criticisms into complete new program.
 Pound and his school saw a legal system as being a phenomenon which intimately interacts
with the prevalent political, economic, and social circumstances in a given society and which
constantly alters with them in a living process of development. They are not interested in the
 abstract content of rules or in the logical and analytical connections which may exist between
them in a particular system. What they want to discover about legal rules is what concrete
effects in social reality they aim to produce as soon as they become “law in action” by the
behavior of judges or administrative authorities.

 Thus for Pound, law is in the first place a means for the ordering of social interests, and the
judge in balancing out these interests should be a “social engineer” who can only perform his
task properly if he has an accurate knowledge of the actual circumstances on which his decision
will have an effect.

 Pound in his first works attacked the existing legal education which depended more on
theoretical concepts and only inward looking. He insisted that teachers of law should have a
wider knowledge

Theory of Interest
 Pound’s theory of interest is said to be by many the focal point of his philosophy.
 He defines an interest as a claim or want or desire of a human being or group of human beings
which the human being or group of human beings seeks to satisfy, and of which, therefore, the
ordering of human relations in civilized society must take account.
 The first task of the jurist is to take a census of the claims and demands actually asserted. The
next is to generalize them in terms of social interests because the concern of the law, as a social
institution, is strictly only with social interests.
 It is the social interest in securing the individual interest that determines the law to secure the
latter. The third task confronting the jurist is to decide on the principles upon which conflicting
interests should be weighed or balanced in order to determine the extent to which the respective
interests are to be secured. Thereafter, the jurists must consider the means by which the law
may secure the interests which it recognizes, and in this connection we must take account of the
limitations upon effective legal action which preclude the complete securing of these interests.
It is important to remember, that these interests are not created by the law; they exist
independently of the law. It is the task of the law to take cognizance of their existence and to
secure them, subject to the conditions already mentioned.
 Pound points out that though the law is, strictly speaking, concerned only with social interests,
it is nevertheless convenient to classify interests as individual, public and social. Recognition of
individual interests follows the recognition of group interests. It is important to remember that
there is a social interest in the securing of individual interests with a view to protecting the
individual moral and social life. Hence there is not, as Pound shows, a conflict between
individual and social interests. There is a problem of balancing the social interest in the
individual life with other social interests; which is, of course, a very different thing.
 Pound classifies individual interests as (1) Interests of personality; (2) Interests in the domestic
relationships; and (3) Interests of substance.
Interests of personality: These Pound divides under three heads:-
(1) the physical person,
(2) honor and reputation,
(3) Belief and opinion.
 It is clear that there is an individual interest in the inviolability of the physical person.
 In this connection three questions are pertinent: firstly, what is the extent of this interest;
secondly, how far has this interest been recognized by the law; and thirdly, how far is this
interest protected by law to-day. In regard to the extent of the interest Pound shows that it
covers five points: (1) Immunity of the body from direct or indirect injury; (2) Preservation and
furtherance of bodily health; (3) Immunity of the will from coercion; (4) Immunity of the mind
and the nervous system from injury; ( 5) Preservation and furtherance of mental health. The first
three interests have long been recognized by the law and are secured by the law to-day. The last
two interests present a new problem, and the law thereon is still in a process of growth.
 The second interest of personality, namely, the interest in honor and reputation is equally as
important as the interest in the inviolability of the physical person, but it is much more difficult
to secure legally. In determining the nature and extent of the interest in honor Pound stresses the
importance of distinguishing it from the interest in reputation as part of one's substance. The
former is the claim of the individual to be secured in his dignity and honor as part of his
personality. The latter is the claim of the individual to be secured in his reputation as a part of
his substance because, in a world in which credit plays so large a part one's good reputation has
a definite money value.
 Lastly, there is the individual interest in free belief and opinion. There is of course a social
interest in free speech and belief and opinion not merely as guarantees of political efficiency
and instruments of social progress but also as furthering the moral and social life of the
individual. But this social interest often comes in conflict with another very important social
interest, namely, the interest in the security of social and political institutions, and consequently
it happens that it is often not granted that recognition and protection which we may think it
deserves.
Interests in the domestic relationships:
 Pound points out that one must consider the individual interests of the individual parties to these
relationships in the maintenance and integrity thereof and the securing of these interests both
against the world at large and between the parties. Domestic relationships are both personal and
economic in their nature and the individual interests therein therefore involve both the
individual personality and the individual substance.
 There are according to Pound four types of interests in the domestic relations which the law is
called upon to secure. These are (I) interests of parents- demands which the individual makes
arising out of parental relation; (2) interests of children-demands which the individual makes
arising out of the filial relation; (3) interests of husbands -demands which the individual makes
arising out of the marital relation; and (4), interests of wives- demands which the individual
makes arising out of the conjugal relation. These claims are made both against the other party
to the relationship and against the world at large.
 The relation of parent and child: The claims of parents against the world at large in respect
of their children are enumerated by Pound under three heads: (1) the claim of the society of
their children and to their custody and control; (2) the claim to the chastity of a daughter
which is intimately connected with the honor and mental comfort of the parent; and (3) the
claim to the services of the child which is, of course, an interest of substance. The claims of
parents against their children are, firstly, obedience and respect (an interest of personality);
secondly, service for the profit of the household (an interest of substance); and thirdly,
 support from an adult child in case the parent is poor. Accordingly the claim of parents to
the custody of their children and to control over their upbringing has in modern times come
to be greatly limited in order to secure this social interest. All civilized states have statutes
providing for' the compulsory education of children and many have laws making the
detention of children in public institutions compulsory in all cases where the parents are not
fit to have control of their children.
 The interests of children: As against the world at large a child, as Pound points out, has an
interest in the relationship because of the duty of the parent to support him during infancy or
even after majority if he is unable to support himself and the parent has sufficient means.
This is an interest of substance recognized and protected by our law, though not in the
Anglo-American law. The child also has an interest in the society and affection of the parent.
As against the parent a child has three claims: (1) support during infancy; (2) education, as
far as the financial position of the parent allows; and (3) in the case of indigent adult
children unable to support themselves, maintenance in as far as the means of the parent
permit. All these interests are recognized and secured by our law, though not by the Anglo-
American common law.
 The claims of a husband against the world at large arising out of the marital relationship: are
classified by Pound under four heads. The first is his interest in the society of his wife. The
second is his interest in the affection of his wife. The third is his interest in the chastity of his
wife; and the fourth is his interest in the services of his wife in the household. The first three
are interests of personality, the fourth is an interest of substance. In our law the first of these
interests is recognized and protected either by an action for damages or by a interdict against
the third person who harbors a man's wife and keeps her away from him. The third interest is
recognized and secured by an action for damages against an adulterer. This action is
independent of the action for divorce. As against the wife the claims of the husband are, as
tabulated by Pound, firstly, to her society and affection, secondly, to her services for the
benefit of the household, and thirdly, in the case of an indigent husband to support. In our
law the husband acquires the personal guardianship of the wife and thus his claim to her
society is secured. The husband as the administrator of the community has un- fettered
control of his wife's earnings. Our law also recognizes and secures the third interest, for a
wife may be compelled to maintain her husband when he is in want.
 Against the world at large a wife has four claims arising out of the conjugal relationship.
Pound classifies them as follows: (1) An interest in the society of her husband; (2) An
interest in the affection of her husband; (3) An interest in the chastity and constancy of her
husband; and (4) an interest of substance in that her husband supplies her with the
necessaries of life. As against her husband the claims of a wife are, firstly, a claim to his
society and affection, and, secondly, a claim to support. The first claim is left by the law to
the protection afforded by morality and good feeling. The second is fully recognized and
protected by our law.
 The law does not recognize and secure all the interests in the domestic relationships. The
reason for this appears from the following words of Dean Pound. "Three difficulties," says
Pound, "are involved in the attempt to secure these interests. In the first place the interests
which have to be weighed against them are more numerous and important than in other
cases. There is not only the individual interest of the other party to the relation, but there are the
 social interests in the family as a social institution, in the protection of dependent persons, and
in the rearing and training of sound and well-bred citizens for the future. Again, serious
infringements of the individual interests in the domestic relations, such as tale bearing and
intrigue, are often too intangible to be reached effectively by legal machinery. Finally, in 'so far
as these interests are in effect interests of personality, they are so peculiarly related to the
mental and spiritual life of the individual as to involve in the highest degree the difficulties
incidental to all legal reparation of injuries to the person."

UNIT SIX: LEGAL REALISM

 Had its origins in the twentieth century.
 The term realism is used in many ways to characterize intellectual and philosophical
movements.

 In the art of painting, ‘realism’ refers to portraying a picture exactly as what the painter saw
without idealizing it, choosing his subject from what was the ugly and commonplace of
everyday life.

 In literature ‘realism’ designates an approach that attempts to describe life without idealizing or
romantic subjectivity.

 Similarly, legal realism attempts to describe the law without idealizing it, to portray the law as it
is – not how it should be or how it was depicted in traditional theories that ignored the law’s
actual day-to-day operation – and to reform it.

American Realists
1. Pragmatist approach
 Oliver Wondel Holmes and John Chipman Gray are greatly considered as the two mental
fathers of the American Legal Realism.
 As with many new attitudes and schools of thought, the American brand of realism was a
reaction to an earlier school. Especially, it was against school of formalism, which concentrated
on logical and a priori reasoning, and was thus thought to be only theoretical and not practical
or pragmatic. Formalism, so the realist thought, had no regard to the facts of life experience.
Realism attempted to be both practical and pragmatic, rejecting theoretical and analytical
approaches to jurisprudential questions, and attempting to look at what it perceived to be the
reality in the question: how does law work in practice?
 It is always considered that the American legal realism found its source in the pragmatism of
William James. The pragmatism of William James, the general philosophy in the second and
third decades of the twentieth century, was decidedly similar to realism in its approach. In the
words of James: A pragmatist turns away from the abstraction and insufficiency, from verbal
solutions, from bad a priori reasons, from fixed principles, closed systems, and pretended
absolute and origins. He turns towards concreteness and adequacy, towards facts, towards
actions and towards power. That means the empiricist temper regnant and rationalist temper
 sincerely given up. It means the open air and the possibilities of nature, as against dogma,
artificiality, and the pretence of finality in truth.
 In applying the doctrine to law, James anticipated the realist skepticism of legal rules as
controlling factors in judicial decisions. He said: how the rule of law works, not what they are
on paper, is the theme of pragmatic approach to legal problems.

2. Law as prophesy of the court: Oliver W. Holmes

 The prophesies of what the court will do in fact, and nothing more pretentious, are what I
mean by the law.
 The life of the law has not been logic, it has been experience Oliver Wendell Holmes

A. On the Nature of Law

 It was the remark of Oliver Wendell Holmes, a US Supreme Court Judge. His predictive view
of the law has greatest influence on American legal realism.
 Holmes was a pragmatist in that he recognized the relevance of extra-legal factors.
 As early as his publication in 1881 of The Common Law Holmes in a famous passage attacked
the view that the Common Law was an entirely valid manifestation of higher reason hovering
over the troubled waters of the present, which could be concretized for the individual case by an
act of perception on the part of an intellectually detached judge operating on logical and
deductive principles: The actual life of the law has not been logic: it has been experience. The
felt necessities of the times, the prevalent moral and political theories, institutions of public
policy, avowed or unconscious, even the prejudices which judges share with their fellow men,
have had a good deal more to do than the syllogism in determining the rules by which men
should be governed.
 In speaking of the ‘bad man’ it is clear that Holmes was intending to include any person who is
having to contemplate legal proceedings, whether (as a bad man) as an accused in criminal
proceedings or a litigant, whether plaintiff or defendant, in a civil action. When the bad man
hires a lawyer, all he wants is to know the practical consequences of doing a certain act (which
might be considered illegal). The bad man is pragmatic in that he wants to know the
consequences not because he is a moralist, but because he knows there is what one may call the
law, a force he cannot challenge as applied by courts.
B. On morality

 Legal positivists, such as Austin argued that without the distinction between law and morality,
legal thinking became confused. Holmes agreed with the legal positivists on this point. Indeed,
it was Holmes’s belief that if all words with moral connotation were eliminated from the law,
the law would gain in precision.

C. Criticism

 The limitation of this notion that the essence of law consists of predictions have been well
explored. It has been pointed out for, example, that:

 This approach disregards the rules and laws that establish the judiciary itself.
  It also left out multitude rules particularly in the field of public administrative law that are
properly described as law but which do not lie in the field of litigation and therefore are not a
matter of prediction.

3. Centrality of the judge: John Chipman Gray

a. The Centrality of the Role of the Judge

 Another strand in American realism, linked with the first but distinct from it, is that which
emphasizes the significance of the role of the courts in any consideration of the nature of law. It
is the role of the judge that is central to a proper understanding of the law.

 This view was carried to its limit by J. C. Gray, who regarded all law as judge-made law.
Statutes (legislations made by parliament) are not laws by virtue of their enactment. They only
become law when applied by a decision of the courts. Only then does a legislative enactment
spring to life and acquire actual force.

 Gray defines law as follows: The law of the state or of any organized body of men is composed
of the rules which the courts, that is, the judicial organs of that body, lay down for the
determination of legal rights and duties.

 Legislation is therefore no more than a source of law.

 Gray distinguishes ‘the law’ from ‘a law’. ‘A law’ ordinarily means a statute passed by the
legislature of a state. ‘The law’ is the whole system of rules applied by the courts. Thus, Gray
considered ‘a law’, that is, a statute passed by the legislature (as well as precedents, custom, and
morality) as source of the law not the law itself. Thus, statute, precedent, custom, and morality
are on Gray’s view, the basis for the rules that the courts lay down for making their decision.
This means all of them are not binding. The judge’s choice is what matters.

B. On analytical Jurisprudence

 Irrespective of the difference on centrality of the sovereign on Austin’s concept of law, and the
centrality of the judge in Gray’s philosophy, Gray warmly accepts the sharp distinction of
science of law and other forms of ideologies. Speaking of the contribution made by
analytical/positivism jurisprudence, he says: The great gain in its fundamental conceptions
which jurisprudence made during the last century was the recognition of the truth that the law
of a state or other organized body is not an ideal, but something which actually exists. It is not
that which is in accordance with religion, or nature, or morality; it is not that which it ought to
be. But that which it is.

Criticism

 Gray suggests that until a statute had been enforced by a court, it was not a rule at all, but only a
source of law. Likewise, the power of an appellate court to overrule its precedents, and the
power of any court to interpret precedents, led Gray to a similar conclusion that precedents are
 not law but merely sources of law. Yet he defines law as “the rules that the courts…..lay down
for the determination of legal rights and duties.” Thus he was led to the curious position that the
rules laid down by a court in deciding a case are “the law” for the case but are only sources of
the law for the “next case.”
 By making precedents (and statutes for that matter) as sources of the law, rather than the law
itself, Gray did not classify or differentiate them from other lesser sources of law such as,
opinions of legal experts and principle of morality. To place these latter on the same plane with
the case law of the highest court of the jurisdiction in which the “next” case is to be decided, is
misleading.(Criticism by Patterson)

 Gray’s definition of the law denies the facilitative function of certain statutes, such as, for
example, the Companies Act (any law that incorporates a company). One does not go to a court
in order to incorporate a company, and yet the procedures and requirements for doing that are
prescribed in statute. (Criticism provided by Michael Doherty)

4. Rule Skepticism: Karl Llewellyn

a. On the nature and purpose of law
 Karl Llewellyn is another realist jurist in the American realism movement. In his book, The
Bramble Bush, he explains the concept and nature of law in the following manner: This doing of
something about disputes, this doing of it reasonably, is the business of law. And the people
who have the doing in charge, whether they be judges or sheriffs or clerks or jailors or lawyers,
are officials of the law. What these officials do about disputes is, to my mind, the law.
 Holmes and gray gave the power of making law to the judges of higher courts, but Llewellyn
widens it to all officers of the law.
 Law for Llewellyn was a means for the achievement of social ends and for this reason it should
not be backward looking for its development but should be forward looking in terms of molding
the law to fit the current and future needs of society. Furthermore, realists should be concerned
with the effects of law on society and he insisted that law should be evaluated principally in
terms of its effects.
b. Rule Skepticism
 Llewellyn is described as “rule skeptic” in that he distrusts rules as laws. Jerome Frank (another
American jurist) called this aspect of realism as ‘rule skepticism’ – skepticism as to whether
rules, if they exist, in practice play the part traditionally ascribed to them.
 For Llewellyn, legal rules do not describe what the courts are purporting to do nor do they
describe how individuals concerned with the law behave. Legal rules as found in books and
emphasized in judicial decisions do not accord with reality. Rules, as described in books and
judicial decisions, have essentially taken on a life of their own, and as such bear little
resemblance to the actuality of legal process. Legal rules are not the ‘heavily operative factors’
in producing the decisions of courts although they appear to be on the surface. The realist
should be concerned with discovering those factors that really influence judges, and judges in
return should be more open about using them.
c. Functions of Law
 The requirement that law must be evaluated in terms of its consequences led Llewellyn to
developing a sophisticated analysis of the purpose of law in his later works. In one of his works,
 My Philosophy of Law, Llewellyn described the basic functions of law as ‘law-jobs.’ He lists
them in five groups as follows:
1. The disposition of trouble cases (wrong, grievance, dispute), which he likened to garage
repair work. The continuous effect was to be the remarking of the order of society.
2. The preventive channeling of conduct and expectations so as to avoid trouble, and together
with it, the effective reorientation of conduct and expectations in a similar fashion. This
does not mean merely, for instance, new legislation; it is instead, what new legislation is
about, and is for.
3. The allocation of authority and the arrangement of procedures which mark action as being
authoritative; which includes all of any constitution, and much more.
4. The net organization of society as a whole so as to provide integration, direction and
incentive.
5. Juristic method as used in law and the settlement of disputes.

 The first three jobs ensure society’s survival and continuation, whilst the latter two increase
efficiency and expectations.
d. Characters of Realism
 By analyzing the realist movement in America, Llewellyn came up with a list of characteristics
of the American legal realism. Hence, the realist concept of law can be better explained in the
following ways:
1. The conception of law in flux, of moving law, and of judicial creation of law.
2. The conception of law as a means to social ends not as an end in itself; so that any part needs
constantly to be examined for its purpose, and for its effect, and to be judged in the light of
both and of their relation to each other.
3. The conception of society in flux, and in flux typically faster than the law, so that the
probability is always given that any portion of law needs re-examination to determine how
far it fits the society it purports to serve.
4. The temporary divorce of Is and Ought for purpose of study. By this Llewellyn means that
whereas appeal must always be made to value judgments in order to determine objectives for
inquiry itself into what Is, the observation, the description, and the establishment of relations
between the things described are to remain as largely as possible uncontaminated by what
the observer wishes might be or thinks ought (ethically) to be.
5. Distrust of traditional rules and concepts insofar as they purport to describe what either
courts or people are actually doing. Here, the emphasis is upon rules as ‘generalized
predictions of what courts will do.’
6. Distrust of the theory that traditional prescriptive rule-formulations are the heavily operative
factor in producing court decisions. This involves the tentative adoption of the theory of
rationalization for the study of options.
7. The belief in the worthwhile-ness of grouping cases into narrower categories than has been
the practice in the past.
8. An insistence on evaluation of any part of the law in terms of its effect, and an insistence on
the worthwhile-ness of attempting to ascertain these effects.
9. Insistence on sustained and pragmatic attack on the problems of law along any of these lines.
5. Fact Skepticism: Jerome Frank
a. On Rule skepticism
 Judge Jerome Frank categorizes the whole realist movement into “rule skepticism” and “fact
skepticism.”
 According to rule skepticism, those formal rules found in judicial decisions and in books, were
unreliable as guides in the prediction of decisions. The fact that such a multiplicity of rules
exists and that some can lead to conflicting results may mean that, in practice, in reaching a
decision a judge does not explore the whole corpus of the relevant law, the statutes and the
earlier cases, and from these by a process of distillation find the principle that guides him to the
correct decision.
 Frank is saying that he has a doubt if the judge can do all the research before decision. In the
common law a judge has to read a huge amount of case books and maybe also statutes. Jerome
Frank, he himself being one of the federal judges, is saying that judges in reality do not go all
the way. They decide first based on the arguments and evidences provided by both parties, and
then search for statute or case to support his reasoning.
b. On Fact Skepticism
 He has persuasively argued that the greatest uncertainties of the judicial process are not in the
law-finding but in the fact finding part; or at least, primarily in the witness-jury part. He points
out that the assumption that a fat-trial is intended to bring out “the truth” is contradicted by the
“fight” theory, that the best way to get the truth out is to have two skilful advocates hammering
away at each other’s witnesses. The contradiction comes when in their patrician zeal the
advocates distort or cover up the truth.
 The chief reason why legal rules do not more adequately perform the principal tasks they are
supposed to do –guide and predict the decisions of trial courts-is, he maintains, because of the
uncertainty as to what facts the trier of fact (especially the jury) will find as the ones to which
the legal rule or principle is to be applied. A man in possession of real property has a right to
use “reasonable” force in repelling willful intruders, but how can he tell, when confronted with
an intruder, what a jury will subsequently find to be “reasonable” force? Thus, one of the
supposedly securest of legal rights in American law, a basic part of the ownership of real
property, is rendered insecure by the uncertainty as to what the trier of fact will find.
 Frank underlines that in the lower courts prediction of the outcome litigation was not possible.
The major cause of uncertainty is not the legal rule, but the uncertainty of the fact finding
process. Much depends on witness, who can be mistaken as to their recollections; and on judges
and juries, who bring their own beliefs, prejudices and so on, into their decisions about witness,
party etc. It is not unusual for the jury to give a decision (guilty or not-guilty) which is not
expected and sometimes surprising.
 The uncertainty can also be found in the process by which a judge determines a particular fact
to be a material fact. This means whenever the judge decides a case he weighs facts and chooses
the material which as very relevant for his decision. Hence, the argument is that different judges
may come to different outcomes of same case because of application of different facts.
 PART TWO
UNIT SEVEN: RADICAL LEGAL THEORIES
1. Critical Legal Studies
 The critical legal studies movement, which initially emerged in the United States in the 1970s in
part as a successor to the American realist movement, is essentially offering a radical alternative
to established legal theories.
 It puts forward the proposition that all other legal theories are fundamentally flawed in their
belief that sense and order can be discerned from a reasoned analysis of law and the legal system
 The main thrust of their attack is against liberal legal theories, in which they group together as
one target most of the other theories identified in this material, although their principal targets
are the theories of positivism presented by Kelsen and Hart, in addition to the rights-based
theories such as those put forward by Dworkin, Rawls and Finnis.
 The critical legal scholars characterize liberal legal thought as an ideology whose surface
character hides its true nature. Furthermore, for the critical legal scholars, liberal legal theory
claims to be a politically neutral and objective way to resolve conflicts. The critical legal
scholars deny this and state that liberal legal thought is a conflict-ridden structure beneath its
purportedly objective exterior, an exterior which also conceals the political judgments and power
structures within the law.
 The critical legal scholars go far beyond American realism, although they are often seen as the
inheritors of the skeptical approach. While the realists rejected formalism they still saw legal
reasoning as distinct. Indeed, the realists were committed to liberalism.
 The critical scholars share, and indeed take further a profound skepticism of law in books, but
they reject any attempt, whether realist or formalist, to present a value-free model of the law.
 In many respects, the major themes of the critical legal studies movement are similar to those
ideas developed by the Marxists, particularly modern Marxist writers such as Gramsci and
Collins. Critical legal scholars appear to reject the theory of instrumentalism and the argument
that law is simply a part of the superstructure of society. Indeed, they see the operations of law
as being essential for the continuation of liberal society.
 The overall aim of critical theory is to destroy the notion that there is one single 'truth', and that
by disclosing the all-pervasive power structures and hierarchies in the law and legal system, a
multitude of other possibilities will be revealed, all equally valid. Herein lies the problem for
the critical legal scholars, for while they may be able to deconstruct the 'truth' of liberal
legalism, they cannot, within the terms of their own methodology, put forward the alternative,
only an alterative.
The Critique of the Liberal Legal Tradition
  The unifying feature of the realists was their attack on formalist modes of reasoning. This is
indeed one of the features of the critical legal studies movement and is one that links them
to early realism tradition, but it is not the common bond that unites it. Rather, the uniting
feature is a profound disenchantment with liberal legalism as a whole. This encompasses
not only a fundamental disbelief that the law has objective content and is neutral in its
operation, but also a belief that the liberal legal tradition has used this portrayal of the legal
system to mask the fundamental contradictions inherent in the law. The law is portrayed as
rational, coherent, necessary and just by liberal legal scholarship, when in fact, according to
the critical legal scholars, it is arbitrary, contingent, unnecessary and profoundly unjust.
This constitutes a direct attack on the ideal found embedded in Western legal and political
thought, the rule of law.

 Furthermore, critical legal studies is an attack on Western liberal concepts of basic civil and
political rights which purportedly guarantee, in a legal sense, the individual's freedom of
speech, assembly, religion, and in a political sense liberal democracies are based on the
concept of the freedom of the individual. These rights and freedoms are portrayed in the
Western tradition as being the only true way to self-realization and freedom of the individual.
The critical legal scholars' aim is to show that these rights and freedoms, although put
forward as essential to an individual's fulfillment, actually serve the political and economic
requirements of liberalism.

An attack on formalism

 This prong of the critical legal scholars' attack is derived from the realists' disbelief that formal
rules provide an answer to a dispute. However, whereas the realists concentrated their critique
of formalism on this aspect and were particularly concerned to try to find the real rules operated
by the judge and jury, the critical legal scholars seem to take this element as read. They add
little to the realist critique in this area apart from a few generalities. Indeed, such is the lack of
detail in this area that the following criticism of the critical scholars' approach to formalism
appears justified.

 It appears from their attack that formalism is: . . . the CLS [critical legal studies] caricature of
the notion that law is a deductive and autonomous science that is self-contained in the sense
that particular decisions follow from the application of legal principles, precedents, and rules of
procedure without regard to values, social goals, or political or economic context.

 Indeed, formalism in its strict black-letter sense is not to be found in legal theory, only in some
law teaching and academic writing and in legal practice. It seems that the critical scholars'
agenda stretches both to theory and practice, with the aim of enlightening practicing lawyers as
to the 'wider implications and consequences of certain courses of action, and in particular [to]
reveal that unless legal actions are seen in the context of larger political action, they may well
be counter-productive, at least in the long term'

 However, the lack of a detailed critique of formalism may be due to the fact that the thrust of
the critical lawyers' attack is on the wider issue of whether there is in fact a distinct mode of legal
reasoning. If they successfully demonstrate that there is no separate mode of legal reasoning at
 all then it is unnecessary for them to have to deal directly with formal legal reasoning as such.
Roberto Unger, one of the leading exponents of critical legal studies, indicates that this is the
real point of the movement's critique of formalism.

Critique of legal reasoning

 Whereas the realists did recognize that legal reasoning and rules played a part, albeit a minor
one, in the judge's decision, the critical legal scholars are of the opinion that these external
factors are the sole operative factor in the judgment.
 A problem with the critical legal studies approach to legal reasoning is that, like its critique of
formalism, it appears to lack any detail or precision.
Contradictions in the law
 It is the critical lawyers' view that liberal legalism represents the status quo in society and that it
seeks to mask the injustice of the system. They attempt to seek out the conflict-ridden substance
that is hidden beneath that apparently smooth surface.
 Kelman proceeds to identify the central contradictions in liberal thought that have been
identified by the critical lawyers. First Kelman identifies:. . . the contradiction between a
commitment to mechanically applicable rules as the appropriate form for resolving disputes
(thought to be associated in complex ways with the political tradition of self-reliance and
individualism) and a commitment to situation-sensitive, ad hoc standards (thought to
correspond to a commitment to sharing and altruism)

 The contradiction between rules and standards is one that Kelman identifies with the writings
of Duncan Kennedy. Kennedy contrasts the individualism present in the dominant liberal legal
thinking, in the form of the application of rigid and precise rules, with the notion of altruism or
collectivism: Altruism denies the judge the right to apply rules without looking over his
shoulder at the results. Altruism also denies that the only alternative to the passive stance is the
claim of total discretion as creator of the legal universe. It asserts that we can gain an
understanding of the values people have woven into their particular relationships, and of the
moral tendency of their acts. These sometimes permit the judge to reach a decision, after the
fact, on the basis of all the circumstances, as a person-in-society rather than as an individual.

 The second contradiction Kelman identifies in the critical lawyers' critique of liberalism is: . . .
the contradiction between a commitment to the traditional liberal notion that values or desires
are arbitrary, subjective, individual, and individuating while facts or reason are objective and
universal and a commitment to the ideal that we can 'know' social and ethical truths objectively
(through objective knowledge of true human nature) or to the • hope that one can transcend the
usual distinction between subjective and objective in seeking moral truth.

 The second contradiction is pointed at one of the central tenants of positivism - the separation of
law from value judgments. Nevertheless, as with the first contradiction between individualism
and altruism, this aspect goes further than simply a critique of writers such as Kelsen. The main
thrust is that both everyday culture and the liberal theory that supports and legitimates it
downgrade values and beliefs to the extent that they are simply seen as matters of taste, peculiar
 to the individual, whereas reasoned analysis of facts and laws yields universal maxims which can
guide any individual's behavior.

 The aim of the critical scholars is to show that these contradictions are to be found in all legal
concepts and rules, even in the so-called clear cases where the contradiction has simply been
successfully repressed over a period of time. The assumption behind this is that within each
contradiction one set of values is paramount in liberal legal theory, namely individualism over
altruism and objectivism over subjectivism.

Deconstruction: trashing, delegitimation and dereification

 These are the various techniques the critical lawyers use to reveal the underlying contradictions
in the law and the deep-rooted hierarchies of power that are also hidden beneath the neutral
exterior of the law. The political motivations behind these techniques must be understood for
they too tend to be obscured in the dense, often incomprehensible, language of the critical
lawyer.
 Deconstruction of law and legal language takes three main forms. 'Trashing' is essentially
aimed at revealing the illegitimate hierarchies (power structures) that exist within the law and
society in general. The task of the critical lawyers is to reveal those hierarchies and undermine
them. The hierarchy of power is not the simple one envisaged by Marxists, who see it in terms
of classes, but is much more complex and found at every level, including universities where
there is a power relationship between lecturer and student. The purpose of trashing or
debunking as explained by Kelman: We are also engaged in an active, transformative anarcho-
syndicalist political project. . . . At the workplace level, debunking is one part of an explicit
effort to level, to reintegrate the communities we live in along explicitly egalitarian lines rather
than along the rationalised hierarchical lines that currently integrate them.
 'Delegitimation' appears from the writings of the critical scholars to be a slightly different
aspect of the deconstruction process. It is aimed at exposing what the scholars see as one of the
most important functions of law in a liberal society, namely the legitimation of the socio-
economic system of that society. To delegitimate law the scholars attempt to strip away the
veneer of legitimacy to reveal the ideological underpinnings of the legal system. To many
scholars the legitimacy conferred on the social system by the law is vitally important to the
continuance of that system with all its unfairness and exploitation:
 Generally speaking the law serves to mask exploitation by using the imagery of fairness, equality
and justice.
 Finally an aspect of the deconstruction process which is firmly linked to trashing and
delegitimation is 'dereification'. For critical scholars like Gabel, the law is characterized by
reification, which involves a gradual process whereby abstractions, originally tied to concrete
situations, are then themselves used, and operate, instead of the concrete situations. Simply put,
the abstraction or concept takes on the form of a thing. This process can be seen in the law,
which over the centuries of its development gradually becomes divorced from the actual human
relations it is attempting to regulate.
 'Legal reification is more than just distortion: it is also a form of coercion in the guise of
passive acceptance of the existing world within the framework of capitalism'. Dereification is
simply the recognition and exposure of such fallacies, to reveal the law as it really is.

The constitutive theory of law

 This final trend in the critical legal studies movement is not only part of its critique of the
liberal legal tradition, but is also part of the movement's attempt to escape from the Marxist
shackles of determinism.
 The idea that law plays an important role in shaping society is part of the wider post-modernist
perspective that ideas, and not the economic base, constitute (form or make up) society. It
follows from this that if there is to be some sort of order in society, there must be a
convergence of ideas including ideas and beliefs about law, in other words a 'shared world-
view'. The critical legal scholars' critique is therefore directed at 'the analysis of world-views
embedded in modern legal consciousness'.
 The aim is to attack the shared world-view embedded in legal consciousness, to reveal its link
to domination in capitalist legal societies, and to change that consciousness. This is not an easy
task because the constitutive power of the dominant shared world-view in society is grounded
in that world-view's claim to be the truth, and since 'every world-view is hostage to its claim to
be true, its constitutive force can be undermined [only] if this claim can be refuted'. The shared
world-view that the liberal order is the only true and natural system can be refuted if it is
shown that there is any number of alternative ways which would not result in exploitation and
injustice.
2. Critical Legal Studies and Feminist Legal Theory

 Feminist legal theories represent a most important modern development in the analysis of
law, concerned with the treatment of women by the legal system and the perception, or lack
of perception, of women's experience and needs in legal provision. In engaging with this
agenda feminist theories not only seek to identify and counter a traditionally male-oriented
legal system but also to question male-oriented theories and ideologies. Part of this latter
element of feminist thought emphasises a rejection of a search for objective 'truths' about law
and puts in its place a contextual understanding of law as a social construct which is a
product of a variety of influences, some of which are covert or even unrecognized. It is also
suggested in some feminist theory that a 'male'-oriented appreciation of law emphasises
individualism and 'rights' at the expense of 'female' emphases upon interaction and
cooperation. This in turn demands a radical new methodology in legal theory which is, to a
significant extent, found in the critical legal method.

 Feminist theory is by no means limited to the context of critical legal studies; if it were, that
might be seen as fundamentally inconsistent with the dynamic of the feminist approach to
legal theory. Anne Bottomley, Susie Gibson and Belinda Meteyard remark that:
 Feminism and critical legal studies are, of course, two entirely different creatures. Feminism is
only partially and peripherally concerned with academic theorising. It is motivated by the
dissatisfactions of a wide spectrum of ... women and by the everyday experience of such
women. In this context, therefore, critical legal studies contribute a useful method rather than a
defining context. The method is, however, important as a means of demonstrating the explicit
and implicit male orientation of law and legal administration and the resulting disadvantage
and marginalisation often suffered by women. Katherine T. Bartlett offers three basic elements
which characterise a feminist legal theory. These are:
(a) asking the 'woman question', i.e the extent of the presence and recognition of women's
experience in law;
(b) feminist practical reasoning, meaning a reasoning which proceeds from context and values
difference and the experience of the unempowered; and
(c) consciousness raising, meaning an exploration of the collective experience of women through a
sharing of individual experiences.
 Upon these bases feminist legal theory seeks to articulate women's perspective upon law and
thereby to empower women in the future development or redevelopment of law.
 From a feminist perspective the expression of male domination in law may, in common with
other power structures subjected to critical legal analysis, take both overt and covert, or even
unrecognised, forms. Overt discrimination against women, as, for example, in certain historic
and sometimes continuing employment practices, is by definition obvious when encountered. It
is closely similar to race discrimination and other forms of illegitimate disadvantage and falls
more into the realm of policy making than theoretical analysis. Covert or unrecognised bias
presents much more difficult issues in the areas of both theory and practice.
 The key question here is the extent to which an inherently 'male' legal mindset implicitly
discriminates against women because it is framed in terms of male experience which does not
necessarily relate to that of women. Examples may be found, significantly, even in some of the
legal practices and provisions which are in principle directed towards securing gender equality.
Equality is often taken to mean simply the establishment of identity in the treatment of women
and men. It must first be said that in a broad range of situations the establishment of the co-
equal treatment of men and women as people is, of course, precisely what gender equality does
mean. However, in other issues, where the needs and experiences of women and men and their
respective experiences are not the same, such an approach tends to treat women 'as if they are
men with oppressive consequences.
 Women may be disadvantaged even by legal structures which purportedly seek to take account
of female needs and experience but which do so on the basis of analogy with irrelevant, and
sometimes outdated, male experience. An example of this is the treatment of maternity leave as,
in effect, analogous to the sick leave of a male employee, as well as the assumption that
parenting is an exclusively female role, shown in the very limited provision for paternity leave.
Other failures of law to deal adequately with women's experience may readily be found. The
issue of domestic violence and its treatment by criminal law and law enforcement agencies is an
obvious area of concern, characterised by the recognition by English law in R v R [1991] of the
possibility of rape within marriage. Again in the employment sector, different retirement ages
 and pension entitlement for women and men, which may prejudice either men or women who
might want to retire earlier or work later, has also been an issue of concern in the 1990s, with a
major compensation award to three women workers in the gas industry in June 1996. The
essential point in many, although not all, of these concerns has been put shortly by Katherine T.
Bartlett in her statement that the essential 'woman question' in law is: how the law fails to take
into account the experiences and values that seem more typical of women than of men, for
whatever reason, or how existing legal standards and concepts might disadvantage women.
 The value of critical methodologies in the display and analysis of such gender distortions in law
and legal administration should be evident. The point to be emphasised is perhaps that of the
disadvantaging effect of concealed and frequently unrealised bias in a legal order which has for
the most part developed from male rather than female experience. This is not to assert a
'conspiracy theory' or to claim that all law discriminates against women. It is also not necessary
to assert a gender-exclusive model in which there are claimed to be wholly incompatible
'individualist' male and 'collectivist' female viewpoints. This latter claim is also sometimes
made in relation to different human cultures and in both cases it can unwisely be forgotten that
we are, in an Aristotelian sense, social individuals, i.e. each person, woman or man, is an
individual who lives in association with others in a social structure. The key endeavour of
feminist legal theory may rather be to identify a fact of social, political and legal history which
in many important respects fails adequately to take account of the experience of somewhat more
than half of the human population. This is expressly a failure to afford mutuality and recognition
not only to women as members of society but, in fact, a failure to recognize the mutuality of all
society's members, women and men. Such failures, based upon whatever form of improper
discriminatory selectivity, generate alienation and, ultimately, disfunctionality in the working of
a legal order. The ways in which this has happened and the present real extent of the problem
are the issues central to the interface between feminist legal theory and critical legal studies.
This then opens the question of deconstructive and positive agendas. Much of the critical legal
endeavour is concerned with the identification of defects and concealed agendas in law;
feminism is at least as much concerned with establishing proper recognition of women's
experience in society and law. Nonetheless, the identification of the sources of marginalization
and alienation may be seen as at least an important stage in a process of response.

Postmodern Legal Theory

 Postmodern legal theory is the latest radical theory to challenge the liberal orthodoxies that
society has a natural structure and that history is simply a process of evolution towards that
truth.
 Liberalism and capitalism are not the end of the road but are simply the major components of
what the postmodernists call 'modernity'. Modernity's structures, its laws, its literature, its
architecture, its art, in fact any of its products, are all subject to 'deconstruction', a process
which reveals numerous alternatives. An inherent aspect of this process is recognition that
society is simply made up of a complex network of subjectivities and contains no objective truths
or natural laws upon which it can be grounded.
 Developing the radical critique promulgated by the Critical Legal Studies movement in the
1980s, postmodern legal theory offers a more profound, indeed more disturbing vision of law
and society in the 1990s.

A Critique of the Enlightenment

 Postmodernism groups 'progressive' versions of history under the label 'Enlightenment'.
Followers of these versions believe that the 'Enlightenment brings "light", and modernity's task
is to finish the task that the Enlightenment began.
 The progressives, the Lockeans, Benthamites, Millians, Social-Darwinists and most Marxists
see the Enlightenment as the unleashing of a great potential for good'.
 'The shackles' of superstition 'that held back political organization, thought, individual liberty,
and production were overthrown' by the Enlightenment (
 Followers of modernity deride the postmodern as 'chaotic, catastrophic, nihilistic' and 'the end
of good order'. Postmodernists, on the other hand, characterise modernity as 'an iron cage of
bureaucratization, centralisation and infinite manipulation of the psyche by the "culture
industry" and the disciplinary regimes of power and knowledge', while portraying
postmodernism as 'an exhilarating moment of rapture'.
 The post-Enlightenment concept of progress, of constant modernisation, with its overriding
sense of movement towards the truth or 'meta-narratives' is rejected. In law, modernist theories
such as those presented by Hart, Kelsen, Dworkin and Finnis try to portray law as a unified
whole, and posit the rule of law as the method of 'neutral, non-subjectivist resolution of value
disagreement and social conflict'.
 The lineage of postmodernism in law can be traced back to Legal Realism's fundamental tenet
that law is an instrument of policy, which was amplified by the Critical Legal Studies
movement's statement that all law is politics. However, the postmodernist disenchantment with
the rationalist desire to make sense of the world is much more wide ranging than either of its
predecessors. Its targets are everything from art to science and beyond.
 Postmodernism, then, is the rejection of . . . faith in rationalism, and a recognition that any
argument, no matter how perfectly logical, is only as good as its presuppositions. Thus the
postmodernist proclaims the death of western 'meta-narratives' such as capitalism, liberalism,
and marxism. But along with their rejection of rationality comes the rejection of the possibility
of truth.
 Nevertheless, there is the possibility that postmodernism, by rejecting many aspects of modern
society, does have a positive agenda. Postmodernism has an image problem of its own in the
sense that it is viewed as nihilistic, having no purpose except to undermine.
 The Enlightenment sought to free humanity from the chains of unthinking tradition and
religious bigotry. It sought to master the world through science and remake the world
according to the dictates of reason. It sought to understand and recast society in rational and
scientific terms, and it was confident about the ability of the human intellect to do this.
 Two centuries later, humanity is imprisoned by new chains that the Enlightenment forged for us.
These are the chains created by science, technology, and rationality, which in the course of
liberating us subjected us to new forms of control, bureaucracy, mediaization, suburbanization,
and surveillance. We still need liberation, we still need emancipation, but now it is from the
products of our previous emancipation - from computer data bases, sound bites, political
 action committees, voodoo economics, electronic surveillance, commodified video images,
and the industrialization of professional culture.
LYOTARD AND FOUCAULT
 The postmodernist dialectic is perhaps too narrowly portrayed as simply a recipe for relativism
when in fact it is a positive method of forcing individuals to confront and change the rigid
contexts and structures (including laws) within which they have arbitrarily confined themselves.
In this sense it is a liberating philosophy. This can be understood by Lyotard's depiction of the
world of the painter and the writer: If they do not wish to become supporters (of minor
importance) of what exists, the painter and the writer must refuse to lend themselves to such
therapeutic uses. They must question the rules of the art of painting or of narrative as they have
learned and received them from their predecessors. Soon those rules must appear to them as a
means to deceive, to seduce, and to reassure, which makes it impossible for them to be 'true'.
Under the common name of painting and literature, an unprecedented split is taking place.
Those who refuse to reexamine the rules of art pursue successful careers in mass conformism
by communicating, by means of the 'correct rules', the endemic desire for reality with objects
and situations capable of gratifying it.

 A postmodernist painter or writer is in the position of a philosopher: the text he writes, the
work he produces are not in principle governed by pre-established rules, and they cannot be
judged according to a determining judgment, by applying familiar categories to the text or to
the work. Those rules and categories are what the work of art itself is looking for. The artist and
the writer, then, are working without rules in order to formulate the rules of what will have been
done. Hence the fact that work and text have the characters of an event; hence also, they always
come too late for their author, or, what amounts to the same thing, their being put into work,
their realization (mise en oeuvre) always begin too soon. Post modem would have to be
understood according to the paradox of the future (post) anterior In essence, postmodernism is
not anti-modernism, for as Lyotard's example illustrates 'a work can only become modern if it is
first postmodern', so that postmodernism is definitely 'a part of the modern', not a historical
period beyond modernity.
 In some ways it is better to view postmodernism as post-structuralism or post-positivism - a
rejection of the structured, logical and internally consistent picture of society and law
exemplified in legal theory by Hart's union of primary and secondary rules, or Kelsen's pyramid
of norms. 'Positivist structuralism . . . treats the given order as the natural order' when in reality
'all truths are, in fact, products of past practices'. Those past practices are founded upon power
(F. Nietzsche) particularly if power is seen as something much more than repressive coercion.

 As Michel Foucault points out: . . . power is not to be taken as a phenomenon of one

individual's consolidated and homogenous domination over others, or that of one group or
class over others. What, by contrast, should always be kept in mind is that power, if we do not
take too distant a view of it, is not that which makes the difference between those who
exclusively possess it and retain it, and those who do not have it and submit to it. Power must
be analysed as something which circulates, or rather something which only functions in the
form of a chain. It is never localised here or there, never in anybody's hands, never
appropriated as a commodity or a piece of wealth. Power is employed and exercised through a
 net-like organisation. And not only do individuals circulate between its threads; they are
always in the position of simultaneously undergoing and exercising this power. They are not
only its inert or consenting target; they are also the elements of its articulation. In other words,
individuals are the vehicles of power not the points of application.

 Foucault's neo-Marxism shares with postmodernism an emphasis on the 'shifting relationships

between self and other' , in that at one point a person is exercising power and in another instance
she or he is subject to it.

Identity and the 'Other'

 The postmodernist concern with the 'other' combats to a certain extent the perception that it has
no ethical content. In simple terms the 'other' appears to be the individual who is outside the
system, who is disadvantaged by it, though with Foucault in mind this categorization must
necessarily take place at a macro level, for at a micro level we are both powerful and
powerless. In the legal sphere the 'other' cannot assert that the law is on their side within the
current structures since the system alienates them.
 Postmodernism recognizes that they have an equal claim to consideration since their assertions
are no less valid than those who are advantaged by the system, indeed no less valid than the
views of lawyers, judges or politicians.
 The concept of the 'other' is important in postmodernism, given that much of our traditional
thinking is based on presumptions, what the postmodern feminist would label white, male, and
middle class, thereby excluding lots of other groups and individuals from the structures of
society. In essence postmodernism is inclusive in that it purports to embrace the 'other'. Indeed,
following Foucault, by embracing the 'other' we are also embracing ourselves.
 The rigid structures of the law have been variously used to provide an artificial definition of a
'tribe' and of 'native title' thus denying land rights to the Mashpee Indians of Cape Cod in the
United States, and the Yorta Yorta people of Australia. Although it is inherently unclear as to
what a postmodernist 'result' would be in these cases, it is contended that the coming together
of 'postmodernism and the Law, with its stern capital "L" intact, promises to be a dynamic
coupling, postmodernism offering to put its delirious spin on the rigor and fixity of the body of
the law'. Presumably then, given postmodernist concern with the 'other', the law should seek to
accommodate their claims but to what extent and in what manner cannot be determined until
we have a truly fluid postmodernist debate in such disputes.

Postmodernism and Fundamental Values

 There appears to be a contradiction at the heart of the postmodernist concern with the 'other', at
least if this concern results in the elevation of certain 'truths' over other contrasting ones. In
many societies women and racial minorities have been disadvantaged, there is no doubt about
that, but the question remains whether postmodernism can embrace these 'others' over their
oppressors, namely the sexists and racists still found in great numbers in society. Hilaire Barnett
recognized that postmodernism presents a problem for feminism: The implications of the
postmodern critique for feminist jurisprudence are profound. If ‘grand theory’ is no longer
sufficient to explain women’s condition, concepts such as patriarchy and gender, the public and
private, loose their explanatory force, and throw doubt on the potential for a convincing
 coherent theoretical understanding of women’s lives and conditions. In place of grand theory,
there must be developed critiques which concentrate on the reality of the diversity of individual
women's lives and conditions, critiques which reject the universalist, foundation a list
philosophical and political understanding offered by modernism. With the 'age of innocence'
lost, in its place there exists diversity, plurality, competing rationalities, competing perspectives
and uncertainty as to the potentiality of theory.
 The question, in the radical tradition, is why a particular individual is oppressed or is the
oppressor. For women the answer is not always because of male dominance, or at least that is the
implication of postmodernism. Hilaire Barnett, provides a way forward for feminism if it is to
embrace the latest radicalism: Feminist theory which fails to identify the differences between
women, and the impact which those differences have on women's lives, fails to be inclusive. The
scepticism with gender may be helpful in so far as it obliges feminist scholarship to 'demote'
gender as an organising concept, in so far as it has been the dominant concept in feminist
modernist theory, and to set gender alongside crucial other factors such as race, class, age,
sexual orientation, the local and specific (as opposed to the universalising and general) and so
forth. Thus a postmodern feminism must focus on the specificities of women's lives, rather than
assuming the commonality of all women's lives. Feminist pluralism must replace feminist
modernism.
 Nevertheless, within the all pervading relativism of postmodernism there appears to be no grand
theory which explains why feminism is to be preferred to sexism.
Derrida and Deconstruction

 Poststructuralism is at the heart of postmodernism, and Jaques Derrida is commonly seen as its
founder.

 Derrida, Foucault and Lyotard are not academic lawyers, but their
postmodernist/poststructuralist writing in the areas of literary criticism, history, and philosophy
respectively, have made their impact. Derrida's deconstruction, in particular, has been
tremendously influential, since law is like literature: Language is a complex web of signs and,
for Derrida, is metaphorical. ? Metaphor is a figure of speech in which a word or a phrase is
applied to an object or action that it does not literally denote in order to imply a resemblance,
as in he is a lion in battle. Language can never mean literally what it says - language is made
up of metaphors and symbolisms.

 In the use of language, modernism posits the belief that language discloses dire relationship
between the word and the world - the principal function of language is representational - it
depicts the way things are. The proposition depicts reality.

 The postmodern approach is that there is no division of language into fact and opinion, all
statements are opinions because language is inherently indeterminate.

 Statements in law are assertions - assertions of the truth but simply assertions. In choosing
between competing assertions, an individual will favour those which clash least with everything
else that person takes to be true. In legal terms the law is self-reinforcing since individuals agree
with the 'right' legal propositions because they fit into the legal system which is presumed to be
 'right' -the whole system is based on dominant assertions which must ultimately be built on pure
ideology or power. In this way the law and the legal system are self-perpetuating hierarchies.

 The overriding postmodernist message is that the truth is, there is no truth.
 Derrida denies that an individual, group or culture can be identified by adherence to scripture or
moral code, because such codes will always be contradictory. It might be supposed that the
deconstruction of identity in this way may lead to a better world, in the sense that a realisation
that such identities are meaningless may result in a world where individuals do not define
themselves and identify others in terms of race, ethnicity, religion, or sex, thereby making
persecution of individuals or groups of individuals on these bases less likely. However, that
(possibly hypothetical) gain may be argued to be outweighed by the fact that deconstruction
actually seems to legitimate the beliefs or codes of the persecutors by placing them at the same
level as those beliefs of the persecuted. Indeed, Derrida seems to argue that 'like Nazism, all
creeds define themselves by their antipathies'. Thus, 'Derrida is . . driven to the unacceptable
conclusion that one cannot claim a Jewish identity as authentically one's own without becoming
a Nazi'
 Individuals within ethnic, religious or other minorities, whatever our views of their creed,
deserve better protection from persecution than this - one such form of protection is the law, for
instance the rights of minorities contained in Article 27 of the International Covenant on Civil
and Political Rights, and its accompanying mechanisms. International law is not posited as a
panacea, but at least it provides a universal, concrete, and in many ways 'moral' code - a form of
jus gentium. Of course, the texts of international laws are equally susceptible to the pens of the
deconstructionists.

 Nevertheless, postmodernism contains within it what has been labelled 'affirmative

postmodernism', where 'not all socio-political action is decried, not all values are rejected', as
well as 'skeptical postmodernism' which focuses 'on the negative: the uncertainties and
ambiguities of existence'. Representing the former stream, Balkin, for instance, makes the
following statement: The deconstruction of legal concepts, or of the social vision that informs
them, is not nihilistic. Deconstruction is not a call for us to forget moral certainty, but to
remember aspects of human life that were pushed into the background by the necessities of the
dominant legal conception we call into question. Deconstruction is not a denial of the legitimacy
of rules and principles; it is an affirmation of human possibilities that have been overlooked or
forgotten in the privileging of particular legal ideas . . . By recalling the elements of human life
relegated to the margin in a given social theory, deconstructive readings challenge us to remake
the dominant conceptions of our society.

 The question remains as to where those moral certainties can be found. That it is wrong to kill a
person for no reason - killing for killing's sake - is a moral certainty for affirmative
postmodernists as well as natural lawyers, but while the latter can point to their universal,
unchanging, rational moral code, all the former has is a conviction that it is wrong: 'the point is
that morality is not a matter of truth or logical demonstration. It is a matter of conviction based
on experience, emotion and conversation’. Nevertheless, 'the positive ethical thrust of
 deconstructive theory' is inherent in its challenges to the dominant conceptions which govern
liberal (legal) orders. Deconstruction reveals the law's inadequacies. Often legal language is
clearly indeterminate. Thus a deconstruction of how it is used to control and to oppress is
clearly ethical. Deconstruction helps individuals towards liberation upon realization that the
system or society they are part of has no superior claim than a system or society they might
prefer. Deconstruction may appear anarchical but it does reveal the coercive, arbitrary and
contingent nature of the legal system, and the broader societal structures.

 Derrida himself makes the claim that 'deconstruction is justice', and that justice itself is not
susceptible to deconstruction (which implies that deconstruction has become the meta-
narrative). The logic of deconstruction does not simply apply to legitimating legal concepts
such as the Rule of Law, or the constitution, but to much more basic 'truths', whereby good
is given priority over evil, and life over death. Derrida's analysis of these dichotomies or
polarities is intended to reveal that there is no rational process whereby one is given priority
over the other.

UNIT EIGHT: JUSTICE

John Rawls: Justice as Fairness

 The most complete argument for the theory of justice is possibly that provided by Rawls, who
argues for his two principles of justice in “Theory of Justice” (1972).
 His theory is of justice as fairness, accepting those principles that would result from an ‘original
position’ for the purpose of social cooperation. In this original position the parties set out,
subject to conditions considered reasonable (also under veil of ignorance) and fair, to agree the
principles by which their society should be organized. The original position is thus a social
contract position (remember natural rights theory?) although the contract is a hypothetical one.
The conditions to be fulfilled before the contract are basic democratic freedoms (also known as
pre-conditions for democracy) such as expression, demonstration, association, and vote and to
be voted for. The ‘veil of ignorance’ requires parties to temporarily put aside their backgrounds
such as envy, sex and status (social and economic) because those are unnecessary for the parties
to reach agreement on reasonable and fair principles for all.
 Rawls makes a distinction between the concepts of justice and conception of justice. He claims
that any theory of justice must deal with both of these. By a concept of justice, Rawls means the
role of its principles in assigning rights and duties and in defining the appropriate division of
social advantage. It is essentially an objective phenomenon. By a conception of justice, he
means the interpretation of the role of these principles in a particular situation; for example,
equal distribution can be interpreted in many ways for many particular situations to provide us
conceptions like liberal, utilitarian and so on.
 Rawls’ theory in its own terms is designed to cope with situations where mutually disinterested
(self-interested) persons put forward conflicting claims to a division of goods and services
under conditions of moderate scarcity. His theory is of no application in conditions of total
scarcity.
 The conception of justice for Rawls can be stated in the form of two principles as follows:
  first, each person participating in a practice, or affected by it, has an equal right to the most
extensive liberty compatible with a like liberty for all; and
 Second, inequalities are arbitrary unless it is reasonable to expect that they will work out for
everyone's advantage (especially for the least advantaged), and provided the positions and
offices to which they attach, or from which they may be gained, are open to all.
 The first principle is about providing everyone with basic human freedoms such as freedom of
thought, religion, belief, expression…etc. This principle highlights equality of liberty for all,
which means nobody is entitled to more or less liberty. The liberty referred to here should be
the most extensive that includes all the list of freedoms and each to its most extent possible
(limitations which do not apply for all are not allowed on some). There is no absolute freedom
and therefore all of them have to be limited at some point in order to make them compatible
with other people’s freedom
 The second principle is about equal distribution of primary social resources to everyone and
inequalities are arbitrary but incentives should be provided to the least advantaged without
sacrificing the interest of the rest. The public offices should be open for all under fair electoral
system and positions should be allocated on the basis of merit . The parties will choose these
principles since they are rational self-interested people under the veil of ignorance and the
principles serve the interest of all. The parties also want the social cooperation to work and
therefore, they want everyone to agree to the principles.
 The first principle has absolute priority over the second. This means there cannot be a trade-off
of liberty for the sake of distribution or economic development. However, Rawls admits that
under scarcity or poverty this rule can be relaxed until a certain level of economic development
is reached because the question is of survival rather than justice.

Will Kymlicka: Justice and Minority Rights

 Virtually, all liberal democracies are either multinational or Polyethnic, or both. The 'challenge
of multiculturalism' is to accommodate these national and ethnic differences in a stable and
morally defensible way. It is increasingly accepted in many countries that some forms of
cultural difference can only be accommodated through special legal or constitutional measures,
above and beyond the common rights of citizenship. Some forms of group difference can only
be accommodated if their members have certain group-specific rights.
 There are at least three forms of group-specific rights: (1) self-government rights; (2) polyethnic
rights; and (3) special representation rights.

1. Self-government Rights
 The right of national groups to self-determination is given (limited) recognition in international
law.
 According to the United Nations' Charter, 'all peoples have the right to self-determination'.
However, the UN has not defined 'peoples', and it has generally applied the principle of self-
determination only to overseas colonies, not internal national minorities, even when the latter
were subject to the same sort of colonization and conquest as the former. They demand certain
 powers of self-government which they say were not relinquished by their (often involuntary)
incorporation into a larger state.
 One mechanism for recognizing claims to self-government is federalism, which divides powers
between the central government and regional subunits (provinces/ states/ cantons).
 Where, national minorities are regionally concentrated, the boundaries of federal subunits can
be drawn so that the national minority forms a majority in one of the subunits. Under these
circumstances, federalism can provide extensive self-government for a national minority,
guaranteeing its ability to make decisions in certain areas without being outvoted by the larger
society. One difficulty in a federal system is maintaining the balance between centralization and
decentralization.
 Similar systems of self-government exist, or are being sought, by many other indigenous
peoples. A recent international declaration regarding the rights of indigenous peoples
emphasizes the importance of political self-government. In many parts of the world, however,
the hope for political powers is almost utopian, and the more immediate goal is simply to secure
the existing land base from further erosion by settlers and resource developers. Indeed, a recent
study showed that the single largest cause of ethnic conflict in the world today is the struggle by
indigenous peoples for the protection of their land rights.'
 Self-government claims, then, typically take the form of devolving political power to a political
unit substantially controlled by the members of the national minority, and substantially
corresponding to their historical homeland or territory. It is important to note that these claims
are not seen as a temporary measure, or as a remedy for a form of oppression that we might (or
ought) someday eliminate. On the contrary, these rights are often described as 'inherent', and so
permanent (which is one reason why national minorities seek to have them entrenched in the
constitution).

2. Polyethnic Rights
 These group-specific measures are intended to help ethnic groups and religious minorities
express their cultural particularity and pride without it hampering their success in the economic
and political institutions of the dominant society.
 Like self-government rights, these polyethnic rights are not seen as temporary, because the
cultural differences they protect are not something we seek to eliminate. But, unlike self-
government rights, polyethnic rights are usually intended to promote integration into the larger
society, not self-government.

3. Special representation right

 While the traditional concern of national minorities and ethnic groups has been with either self-
government or polyethnic rights, there has been increasing interest by these groups, as well as
other non-ethnic social groups, in the idea of special representation rights.
 However, there is increasing interest in the idea that a certain number of seats in the legislature
should be reserved for the members of disadvantaged or marginalized groups.
 Group representation rights are often defended as a response to some systemic disadvantage or
barrier in the political process, which makes it impossible for the group's views and interests to
be effectively represented. In so far as these rights are seen as a response to oppression or
 systemic disadvantage, they are most plausibly seen as a temporary measure on the way to a
society where the need for special representation no longer exists - a form of political
'affirmative action'. Society should seek to remove the oppression and disadvantage, thereby
eliminating the need for these rights.
 However, the issue of special representation rights for groups is complicated, because special
representation is sometimes defended, not on grounds of oppression, but as a corollary of self-
government. A minority's right to self-government would be severely weakened if some
external body could unilaterally revise or revoke its powers, without consulting the minority or
securing its consent. Hence it would seem to be a corollary of self-government that the national
minority be guaranteed representation on any body which can interpret or modify its powers of
self-government (e.g. the Supreme Court in USA hypothetically and the House of Federation in
Ethiopia actually). Since the claims of self-government are seen as inherent and permanent, so
too are the guarantees of representation which flow from it (unlike guarantees grounded on
oppression).

The Equality Argument

 Many defenders of group-specific rights for ethnic and national minorities insist that they are
needed to ensure that all citizens are treated with genuine equality. On this view, 'the
accommodation of differences is the essence of true equality', and group-specific rights are
needed to accommodate our differences. This argument is correct, within certain limits.
 Group-differentiated rights - such as territorial autonomy, veto powers, guaranteed
representation in central institutions, land claims, and language rights - can help rectify this
disadvantage, by alleviating the vulnerability of minority cultures to majority decisions. These
external protections ensure that members of the minority have the same opportunity to live and
work in their own culture as members of the majority. Any plausible theory of justice should
recognize the fairness of these external protections for national minorities.
 The legitimate scope of these rights will vary with the circumstances. In North America,
indigenous groups are more vulnerable to majority decisions than the Quebecois or Puerto
Ricans, and so their external protections will be more extensive. One of the most important
determinants of whether a culture survives is whether its language is the language of
government - i.e. the language of public schooling, courts, legislatures, welfare agencies, health
services, etc.
 Group-differentiated self-government rights compensate for unequal circumstances which put
the members of minority cultures at a systemic disadvantage in the cultural marketplace;
regardless of their personal choices in life. This is one of many areas in which true equality
requires not identical treatment, but rather differential treatment in order to accommodate
differential needs.

The Role of Historical Agreements

 A second argument in defence of group-differentiated rights for national minorities is that they
are the result of historical agreements, such as the treaty rights of indigenous peoples, or the
agreement by which two or more peoples agreed to federate.
 The equality argument assumes that the state must treat its citizens with equal respect. But there
is the prior question of determining which citizens should be governed by which states.
 United Nations declarations state that all 'peoples' are entitled to 'self determination' - i.e. an
independent state. Obviously this principle is not reflected in existing boundaries, and it would
be destabilizing, and indeed impossible, to fulfil. Moreover, not all peoples want their own
state. Hence, it is not uncommon for two or more peoples to decide to form a federation. And if
the two communities are of unequal size, it is not uncommon for the smaller culture to demand
various group-differentiated rights as part of the terms of federation. Forming a federation is
one way of exercising a people's right of self-determination, and the historic terms of federation
reflect the group's judgment about how best to exercise that right.
 The way in which a national minority was incorporated often gives rise to certain group-
differentiated rights. If incorporation occurred through a voluntary federation, certain rights
might be spelled out in the terms of federation (e.g. in treaties or constitutions), and there are
legal and moral arguments for respecting these agreements. If incorporation was involuntary
(e.g. colonization), then the national minority might have a claim of self-determination under
international law, which can be exercised by renegotiating the terms of federation so as to make
it a more voluntary federation. (Consider whether FDRE Constitution is the result of
renegotiation).
 Where historical agreements are absent or disputed, groups are likely to appeal to the equality
argument.
 The historical and equality arguments must work together.

Rawls Revisited

 Liberals can and should accept a wide range of group-differentiated rights for national
minorities and ethnic groups, without sacrificing their core commitments to individual freedom
and social equality. Kymlicka tried to show how freedom of choice is dependent on social
practices, cultural meanings, and a shared language. Our capacity to form and revise a
conception of the good is intimately tied to our membership in a societal culture, since the
context of individual choice is the range of options passed down to us by our culture. Deciding
how to lead our lives is, in the first instance, a matter of exploring the possibilities made
available by our culture.
 However, minority cultures in multination states may need protection from the economic or
political decisions of the majority culture if they are to provide this context for their members.
For example, they may need self-governing powers or veto rights over certain decisions
regarding language and culture, and may need to limit the mobility of migrants or immigrants
into their homelands.
 While these group-differentiated rights for national minorities may seem discriminatory at first
glance, since they allocate individual rights and political powers differentially on the basis of
group membership, they are in fact consistent with liberal principles of equality. They are
indeed required by the view, defended by Rawls and Dworkin, that justice requires removing or
compensating for undeserved or 'morally arbitrary' disadvantages, particularly if these are
'profound and pervasive and present from birth' (Rawls 1971). Were it not for these group
differentiated rights, the members of minority cultures would not have the same ability to live
 and work in their own language and culture that the members of majority cultures take for
granted. This can be seen as just as profound and morally arbitrary a disadvantage as the
inequalities in race and class that liberals more standardly worry about.
 This equality-based argument for group-differentiated rights for national minorities is further
strengthened by appeals to historical agreements and the value of cultural diversity. And it is
confirmed by the way that liberals implicitly invoke cultural membership to defend existing
state borders and restrictions on citizenship. Kymlicka has also argued that polyethnic rights for
ethnic groups can be justified in terms of promoting equality and cultural diversity within the
mainstream culture.
 Each of these claims is plausible. Anyone who disputes them would be required to provide
some alternative account of what makes meaningful choices available to people, or what justice
requires in terms of language rights, public holidays, political boundaries, and the division of
powers. Moreover, one would also have to offer an alternative account of the justification for
restricting citizenship to the members of a particular group, rather than making it available to
anyone who desires it. It is not enough to simply assert that a liberal state should respond to
ethnic and national differences with benign neglect. That is an incoherent position that avoids
addressing the inevitable connections between state and culture.
 The idea that group-differentiated rights for national and ethnic groups can and should be
accepted by liberals is hardly a radical suggestion. In fact, many multination liberal
democracies already accept such an obligation, and provide public schooling and government
services in the language of national minorities. Many have also adopted some form of
federalism, so that national minorities will form a majority in one of the federal units (states,
provinces, or cantons). And many polyethnic liberal states have adopted various forms of
polyethnic policies and group-specific rights or exemptions for immigrant groups. Providing a
liberal defence of minority rights does not create a mandate for vast change. It merely ratifies
and explains changes that have taken place in the absence of theory.

CHAPTER NINE: LIBERTY

 Liberty is generally considered as a concept of political philosophy that identifies the condition
in which an individual has the ability to act according to his or her own will. However, there are
two different concepts of liberty based on ‘ideological’ differences. One is concerned with the
autonomy of the individual and absence of external interference. All individual rights are
considered to be of this sort. The second idea of liberty focuses on people in general and groups
but does not rule out individuals. It is concerned with not only external interferences but also
mostly internal ones, which means that people may not be capable of freedom even in the
absence of external interference and thus may need assistance from the state.

Isaiah Berlin: Two Concepts of Liberty

1. The Notion of 'Negative' Freedom

 Berlin states, I am normally said to be free to the degree to which no man or body of men
interferes with my activity. Political liberty in this sense is simply the area within which a man
can act unobstructed by others. If I am prevented by others from doing what I could otherwise
do, I am to that degree unfree; and if this area is invaded by other men beyond a certain
 minimum, I can be described as being coerced, or, it may be, enslaved. Coercion is not,
however, a term that covers every form of inability. Coercion implies the deliberate interference
of other human beings within the area in which I could otherwise act. You lack political liberty
or freedom only if you are prevented from attaining a goal by human beings.
 Mere incapacity to attain a goal is not lack of political freedom. If my poverty were a kind of
disease which prevented me from buying bread, or paying for the journey round the world or
getting my case heard, (as lameness prevents me from running) this inability would not
naturally be described as a lack of freedom, least of all political freedom. It is only because I
believe that my inability to get a given thing is due to the fact that other human beings have
made arrangements where by I am, whereas others are not, prevented from having enough
money with which to pay for it that I think myself a victim of coercion or slavery. In other
words, this use of the term depends on a particular social and economic theory about the causes
of my poverty or weakness. The criterion of oppression is the part to be played by other human
beings, directly or indirectly, with or without the intention of doing so, in frustrating my wishes.
The wider the area of non-interference means that the wider my freedom.
 Equally it is assumed, especially by such libertarians as Locke and Mill in England, and
Constant and Tocqueville in France, that there ought to exist a certain minimum area of
personal freedom which, must on no account be violated. For if it is overstepped, the individual
will find himself in an area too narrow for even that minimum development of his natural
faculties which alone makes it possible to pursue, and even to conceive, the various ends which
men hold good or right or sacred. It follows that a frontier must be drawn between the area of
private life and that of public authority. Where it is to be drawn is a matter of argument. Men
are largely interdependent, and no man's activity is so completely private as never to obstruct
the lives of others in any way. The liberty of some must depend on the restraint of others.
'Freedom for an Oxford don', others have been known to add, 'is a very different thing from
freedom for an Egyptian peasant.'
 It is true that to offer political rights, or safeguards against intervention by the state, to men who
are half-naked, illiterate, underfed, and diseased is to mock their condition; they need medical
help or education before they can understand, or make use of, an increase in their freedom.
What is freedom to those who cannot make use of it? Without adequate - conditions for the- use
of freedom, what is the value of freedom? First things come first: there are situations in which
boots are superior to the works of Shakespeare; individual freedom is not everyone's primary
need. For freedom is not the mere absence of frustration of whatever kind; this would inflate the
meaning of the word until it meant too much or too little. The Egyptian peasant needs clothes or
medicine before, and more than, personal liberty, but the minimum freedom that he needs
today, and the greater degree of freedom that he may need tomorrow, is not some species of
freedom peculiar to him, but identical with that of professors, artists, and millionaires.
 Equality of liberty; not to treat others as I should not wish them to treat me; payment of my debt
to those who alone have made possible my liberty or prosperity or enlightenment; justice, in its
simplest and most universal sense- these are the foundations of liberal morality.
 Philosophers with an optimistic view of human nature and a belief in the possibility of
harmonizing interests, such as Locke, Adam Smith or Mill, believed that social harmony and
progress were compatible with reserving a large area for private life over which neither the state
nor any other authority must be allowed to trespass. Hobbes, and those who agreed with him,
 especially conservative or reactionary thinkers, argued that if men were to be prevented from
destroying one another and making social life a jungle or a wilderness, greater safeguards must
be instituted to keep them in their places; he wished correspondingly to increase the area of
centralized control and decrease that of the individual. However, both sides agreed that some
portion of human existence must remain independent of the sphere of social control. To invade
that preserve, however small, would be despotism. We must preserve a minimum area of
personal freedom if we are not to 'degrade or deny our nature'. We cannot remain absolutely
free, and must give up some of our liberty to preserve the rest. But whatever the principle in
terms of which the area of non-interference is to be drawn, liberty in this sense means liberty
from; absence of interference beyond the shifting, but always recognizable, frontier.
 'All the errors which a man is likely to commit against advice and warning are far outweighed
by the evil of allowing others to constrain him to what they deem is good.' The defence of
liberty consists in the 'negative' goal of warding off interference. To threaten a man with
persecution unless he submits to a life in which he exercises no choices of his goals; to block
before him every door but one, (no matter how noble the prospect upon which it opens, or how
benevolent the motives of those who arrange this), is to sin against the truth that he is a man, a
being with a life of his own to live. This is liberty, as has been conceived by liberals in the
modern world. Freedom in this sense is not, at any rate logically, connected with democracy or
self-government. Self-government may, overall, provide a better guarantee of the preservation
of civil liberties than other regimes, and has been defended as such by libertarians. But there is
no necessary connexion between individual liberty and democratic rule.
 " For the 'positive' sense of liberty comes to light if we try to answer the question, not 'What am
I free to do or be?' but 'By whom am I ruled?' or 'Who is to say what I am, and what I am not, to
be or do?' The connexion between democracy and individual liberty is weaker than it seemed, to
many advocates of both. The desire to be governed by myself, or at any rate to participate in the
process by which my life is to be controlled, may be as deep a wish as that of a free area for
action, and perhaps historically older. But it is not a desire for the same thing. So different is it,
indeed, as to have led in the end to the great clash of ideologies that dominates our world. For it
is this - the 'positive' conception of liberty: freedom to - to lead one prescribed form of life -
which the adherents of the 'negative' notion represent as being, at times, no better than a
specious disguise for brutal tyranny.

2. The Notion of Positive Freedom

 The 'positive' sense of the word 'liberty' derives from the wish on the part of the individual to be
his own master. I wish my life and decisions to depend on myself, not on external forces of
whatever kind. I wish to be the instrument of my own, not of other men's, acts of will. I wish to
be a subject, not an object; to be moved by reasons, by conscious purposes, which are my own,
not by causes which affect me from outside. This is at least part of what I mean when I say that
I am rational, and that it is my reason that distinguishes me as a human being from the rest of
the world. I wish, above all, to be conscious of myself as a thinking, willing, active being,
bearing responsibility for my choices and able to explain them by references to my own ideas
and purposes. I feel free to the degree that I believe this to be true, and enslaved to the degree
that I am made to realize that it is not.
 The 'positive' conception of freedom as self mastery has, in fact, and as a matter of history, of
doctrine and of practice, lent itself more easily to this splitting of personality into two: the
transcendent, dominant controller, and the empirical bundle of desires and passions to be
disciplined and brought under control. It is this historical fact that has been influential. This
demonstrates that conceptions of freedom directly derive from views of what constitutes a self,
a person, and a man. Enough manipulation with the definition of man and freedom can be made
to mean whatever the manipulator wishes. Recent history has made it only too clear that the
issue is not merely academic.

Charles Taylor: What’s wrong with Negative Liberty?

 Taylor makes an attempt to resolve one of the issues that separate 'positive' and 'negative'
theories of freedom
 There clearly are theories, widely held in liberal society, which want to define freedom
exclusively in terms of the independence of the individual from interference by others, be they
governments, corporations or private persons; and equally clearly these theories are challenged
by those who believe that freedom resides at least in part in collective control over the common
life. We unproblematically recognise theories descended from Rousseau and Marx as fitting in
this (the latter) category.

When people attack positive theories of freedom, they generally have some Left totalitarian theory
in mind, according to which freedom resides exclusively in exercising collective control over one's
destiny in a classless society, the kind of theory which underlies, for instance, official
Communism. This view, in its extreme form, refuses to recognise the freedoms guaranteed in other
societies as genuine. The destruction of bourgeois freedoms is no real loss of freedom, and
coercion can be justified in the name of freedom if it is needed to bring into existence the classless
society in which alone men are properly free. Men can, in short, be forced to be free.

Even as applied to official Communism, this portrait is a little extreme, although it undoubtedly
expresses the inner logic of this kind of theory. But it is an absurd misrepresentation if applied to
the whole family of positive conceptions. This includes all those views of modern political life
which owe something to the ancient republican tradition, according to which men's ruling
themselves is seen as an activity valuable in itself, and not only for instrumental reasons. It
includes in its scope thinkers like Tocqueville, and even arguably the J.S. Mill of On
Representative Government. It has no necessary connection with the view that freedom consists
purely and simply in the collective control over the common life, or that there is no freedom worth
the name outside a context of collective control. And it does not therefore generate necessarily a
doctrine that men can be forced to be free.

On the other side, there is a corresponding misrepresented version of negative freedom, which
tends to come to the forefront. This is the tough-minded version, going back to Hobbes, or in
another way to Bentham, which sees freedom simply as the absence of external physical or legal
obstacles. This view will have no truck with other less immediately obvious obstacles to freedom,
for instance, lack of awareness, or false consciousness, or repression, or other inner factors of this
kind. It holds firmly to the view that to speak of such inner factors as relevant to the issue about
freedom, to speak for instance of someone's being less free because of false consciousness, is to
abuse words. The only clear meaning, which can be given to freedom, is that of the absence of
external obstacles.

Now we have to examine more closely, what is at stake between the two views. The negative
theories, as we saw, want to define freedom in terms of individual independence from others; the
positive also want to identify freedom with collective self-government. But behind this lie some
deeper differences of doctrines.

Isaiah Berlin points out that negative theories are concerned with the area in which the subject
should be left without interference, whereas the positive doctrines are concerned with who or what
controls. Taylor wants to put the point behind this in a slightly different way. Doctrines of positive
freedom are concerned with a view of freedom, which involves essentially the exercising of control
over one's life. On this view, one is free only to the extent that one has effectively determined
oneself and the shape of one's life. The concept of freedom here is an exercise-concept.

By contrast, negative theories can rely simply on an opportunity-concept, where being free is a
matter of what we can do, of what it is open to us to do, whether or not we do anything to exercise
these options. This certainly is the case of the crude, original Hobbesian concept. Freedom consists
just in there being no obstacle. It is a sufficient condition of one's being free that nothing stands in
the way.

Plainly, this kind of view can't rely simply on an opportunity-concept. We can't say that someone is
free, on a self-realisation view, if he is totally unrealised, if for instance he is totally unaware of his
potential, if fulfilling it has never even arisen as a question for him, or if he is paralysed by the fear
of breaking with some norm which he has internalised but which does not authentically reflect him.
Within this conceptual scheme, some degree of exercise is necessary for a man to be thought free.
Or if we want to think of the internal bars to freedom as obstacles on all fours with the external
ones, then being in a position to exercise freedom, having the opportunity, involves removing the
internal barriers; and this is not possible without having to some extent realised myself. So, with
the freedom of self-realisation, having the opportunity to be free requires that I already an
exercising freedom. A pure opportunity-concept is impossible here.

But if negative theories can be grounded on either an opportunity- or an exercise-concept, the same
is not true of positive theories. The view that freedom involves at least partially collective self-rule
is essentially grounded on an exercise concept, for this view (at least partly) identifies freedom
with self-direction, i.e., the actual exercise of directing control over one's life. An exercise-concept
of freedom requires that we discriminate among motivations. If we are free in the exercise of
certain capacities, then we are not free, or less free, when these capacities are in some way
unfulfilled or blocked. But the obstacles can be internal as well as external. And this must be so,
for the capacities relevant to freedom must involve some self-awareness, self-understanding, moral
discrimination and self-control. Otherwise, their exercise couldn't amount to freedom in the sense
of self-direction; and this being so, we can fail to be free because these internal conditions are not
realised.

There are some considerations one can put forward straight off to show that the pure (negative)
concept won't work, that there are some discriminations among motivations which are essential to
the concept of freedom as we use it. Even where we think of freedom as the absence of external
obstacles, it is not the absence of such obstacles simply, for we make discriminations between
obstacles as representing more or less serious infringements of freedom. And we do this, because
we deploy the concept against a background understanding that certain goals and activities are
more significant than others.

Thus we could say that my freedom is restricted if the local authority puts up a new traffic light at
an intersection close to my home; so that where previously I could cross as I liked, consistently
with avoiding collision with other cars, now I have to wait until the light is green. In a
philosophical argument, we might call this a restriction of freedom, but not in a serious political
debate. The reason is that it is too trivial, the activity and purposes inhibited here are not
significant. It is not just a matter of our having made a trade-off, and considered that a small loss of
liberty was worth fewer traffic accidents, or less danger for the children; we are reluctant to speak
here of a loss of liberty at all; what we feel we are trading off is convenience against safety.

By contrast a law which forbids me from worshipping according to the form I believe in is a
serious blow to liberty-, even a law which tried to restrict this to certain times (as the traffic light
restricts my crossing of the intersection to certain times) would be seen as a serious restriction.
Why this difference between the two cases? Because, we have a background understanding of
some activities and goals as highly significant for human beings and others as less so. One's
religious belief is recognised, even by atheists, as supremely important, because it is that by which
the believer defines himself as a moral being. By contrast, my rhythm of movement through the
city traffic is trivial. We don't want to speak of these two in the same way. Freedom is no longer
just the absence of external obstacle but the absence of external obstacle to significant action, to
what is important to man. There are discriminations to be made; some restrictions are more serious
than others, some are utterly trivial. Therefore, some discrimination among motivations seems
essential to our concept of freedom. A minute's reflection shows why this must be so. Freedom is
important to us because we are purposive beings. But then there must be distinctions in the
significance of different kinds of freedom based on the distinction in the significance of different
purposes.

Although we have to admit that there are internal, motivational, necessary conditions for freedom,
we can perhaps still avoid any legitimating of second-guessing (anticipate or predict) of the
subject. If our negative theory allows for strong evaluation, allows that some goals are really
important to us, and that other desires are seen as not fully ours, then can it not retain the thesis that
freedom is being able to do what I want? That is, what I can identify myself as wanting, where this
means not just what I identify as my strongest desire, but what I identify as my true, authentic
desire or purpose. The subject would still be the final arbiter of his being free/unfree, and we are
retaining the basic concern of the negative theory. Freedom would be modified to read: the
absence of internal or external obstacle to what I truly or authentically want.

Taylor asserted that this hybrid or middle position is untenable, where we are willing to admit that
we can speak of what we truly want, as against what we most strongly desire, and of some desires
as obstacles to our freedom, while we still will not allow for second-guessing. For to rule this out
in principle is to rule out in principle that the subject can ever be wrong about what he truly wants.
And how can he never, in principle, be wrong, unless there is nothing to be right or wrong about in
this matter?
Well, to resume what we have seen: our attributions of freedom make sense against a background
sense of more and less significant purposes, for the question of freedom/ unfreedom is bound up
with the frustration/fulfilment of our purposes. Further, our significant purposes can be frustrated
by our own desires, and where these are sufficiently based on misapprehension, we consider them
as not really ours, and experience them as restraints. A man's freedom can therefore, be curtailed
by internal, motivational obstacles, as well as external ones. A man who is driven by malice to
jeopardise his most important relationships, in spite of himself, or who is prevented by unreasoning
fear from taking up the career he truly wants, is not really made freer if one lifts the external
obstacles to act on his ill feeling or acting on his fear. Or at best he is liberated into a very
impoverished freedom.

Once we see that we make distinctions of degree and significance in freedoms depending on the
significance of the purpose fettered/ enabled, how can we deny that it makes a difference to the
degree of freedom not only whether one of my basic purposes is frustrated by my own desires but
also whether I have grievously misidentified this purpose? The only way to avoid this would be to
hold that there is no such thing as getting it wrong, that your basic purpose is just what you feel it
to be. But there is such a thing as getting it wrong, as we have seen, and the very distinctions of
significance depend on this fact.

But if this is so, then the crude negative view of freedom is untenable. Freedom can't just be the
absence of external obstacles, for there may also be internal ones. And nor may the internal
obstacles be just confined to those that the subject identifies as such, so that he is the final arbiter;
for he may be profoundly mistaken about his purposes and about what he wants to repudiate. And
if so, he is less capable of freedom in the meaningful sense of the word. Hence we cannot maintain
the incorrigibility of the subject's judgements about his freedom, or rule out second-guessing, as we
put it above. And at the same time, we are forced to abandon the pure opportunity-concept of
freedom. For freedom now involves my being able to recognise adequately my more important
purposes, and my being able to overcome or at least neutralise my motivational fetters, as well as
my being free of external obstacles. I must be actually exercising self-understanding in order to be
truly or fully free. We can no longer understand freedom just as an opportunity-concept.
 CHAPTER TEN: EQUALITY
‘Equality’ is a contested concept: "People who praise it or disparage it disagree about what they
are praising or disparaging". Our first task is therefore to provide a clear definition of equality in
the face of widespread misconceptions about its meaning as a political idea. The terms "equality",
"equal," and "equally" signify a qualitative relationship. ‘Equality’ (or ‘equal’) signifies
correspondence between a group of different objects, persons, processes or circumstances that
have the same qualities in at least one respect, but not all respects, i.e., regarding one specific
feature, with differences in other features. ‘Equality’ thus needs to be distinguished from ‘identity’
-- this concept signifying that one and the same object corresponds to itself in all its features: an
object that can be referred to through various individual terms, proper names, or descriptions. For
the same reason, it needs to be distinguished from ‘similarity’ -- the concept of merely approximate
correspondence. Thus, to say e.g. that men are equal is not to say that they are identical. Equality
rather implies similarity but not ‘sameness.’

In distinction to numerical identity, a judgment of equality presumes a difference between the

things being compared. According to this definition, the notion of ‘complete’ or ‘absolute’ equality
is self-contradictory. Two non-identical objects are never completely equal; they are different at
least in their spatiotemporal location. If things do not differ they should not be called ‘equal,’ but
rather, more precisely, ‘identical,’ as e.g., the morning and evening star. Here usage might vary.
Some authors do consider absolute qualitative equality admissible as a borderline concept.
‘Equality’ can be used in the very same sense both to describe and prescribe, as with "thin": "you
are thin" and "you are too thin." The approach taken to defining the standard of comparison for
both descriptive and prescriptive assertions of the concept of equality is very important. In the case
of descriptive use of equality, the common standard is itself descriptive, e.g. two people weigh the
same. A prescriptive use of equality is present when a prescriptive standard is applied, i.e., a norm
or rule, e.g. people ought to be equal before the law. The standards grounding prescriptive
assertions of equality contain at least two components. On the one hand, there is a descriptive
component, since the assertions need to contain descriptive criteria, in order to identify those
people to which the rule or norm applies. The question of this identification -- who belongs to
which category? -- may itself be normative, e.g. to whom do the Ethiopian or U.S. laws apply? On
the other hand, the comparative standards contain something normative -- a moral or legal rule, in
the example, the U.S. laws -- specifying how those falling under the norm are to be treated. Such a
rule constitutes the prescriptive component. Sociological and economic analyses of (in-)equality
mainly pose the questions of how inequalities can be determined and measured and what their
causes and effects are. In contrast, social and political philosophy is in general concerned mainly
with the following questions: what kind of equality, if any, should be offered, and to whom and
when? Such is the case in this chapter as well.

‘Equality’ and ‘equal’ are incomplete predicates that necessarily generate one question: equal in
what respect. Equality essentially consists of a tripartite relation between two (or several) objects
or persons and one (or several) qualities. Two objects a and b are equal in a certain respect if, in
that respect, they fall under the same general terminus. ‘Equality’ denotes the relation between the
objects that are compared. Every comparison presumes a concrete attribute defining the respect in
which the equality applies -- equality thus referring to a common sharing of this comparison-
determining attribute. This relevant comparative standard represents a ‘variable’ (or ‘index’) of the
concept of equality that needs to be specified in each particular case; differing conceptions of
equality here emerge from one or another descriptive or normative moral standard. There is another
source of diversity as well: various different standards might be used to measure inequality, with
the respect in which people are compared remaining constant. The difference between a general
concept and different specific conceptions (Rawls 1971) of equality may explain why according to
various authors producing ‘equality’ has no unified meaning -- or even is devoid of meaning.

For this reason, it helps to think of the idea of equality or for that matter inequality, understood as
an issue of social justice, not as a single principle, but as a complex group of principles forming the
basic core of today's egalitarianism. Depending on which procedural principle one adopts, contrary
answers are forthcoming. Both equality and inequality are complex and multifaceted concepts. In
any real historical context, it is clear that no single notion of equality can sweep the field. Many
egalitarians concede that much of our discussion of the concept is vague and theoretical. But they
believe that there is also a common underlying strain of important moral concerns implicit in it.
Above all it serves to remind us of our common humanity, despite various differences. In this
sense, egalitarians tend to think of egalitarianism as a single coherent normative doctrine -- but one
in any case embracing a variety of principles. Following the introduction of different principles and
theories of equality, we will return in the last section of this chapter to the question of how best to
define egalitarianism and the value of equality.

10.4 Principles of Equality and Justice

Equality in its prescriptive usage has, of course, a close connection with morality and justice in
general and distributive justice in particular. From antiquity onward, equality has been considered a
constitutive feature of justice. Throughout history, people and emancipatory movements use the
language of justice to denounce certain inequalities. But what exactly is the connection between
equality and justice, i.e., what kind of role does equality play in a theory of justice? The role and
correct account of equality, understood as an issue of social justice, is itself a difficult
philosophical issue but we are already introduced to the matter through Rawls’ theory of justice.
To clarify this more, philosophers have defended a variety of principles and conceptions of
equality, many of which are mentioned in the following discussion. This section introduces four
well-known principles of equality, ranging from highly general and uncontroversial to more
specific and controversial.

Through its connection with justice, equality, like justice itself, has different justitianda, i.e.,
objects the term ‘just’ or ‘equal’ or their opposites can be applied to. These are mainly actions,
persons, social institutions, and circumstances (e.g. distributions). These objects of justice stand in
an internal connection and order that can here only be hinted at. The predicates "just" or "unjust"
are only applicable when voluntary actions implying responsibility are in question. Justice is hence
primarily related to individual actions.
Individual persons are the primary bearer of responsibilities (ethical individualism). Persons have
to take responsibility for their individual actions and for circumstances they could change through
such actions or omissions. Although people have responsibility for both their actions and
circumstances, there is a moral difference between the two justitianda, i.e., an injustice due to
unjust treatment through an individual or collective action and an injustice due to a failure to
correct unjust circumstances. The responsibility people have to treat individuals and groups they
affect in a morally appropriate and, in particular, even-handed way has hence a certain priority over
their moral duty to turn circumstances into just ones through some kind of equalization.

Establishing justice of circumstances (universally and simultaneously) is beyond any given

individual's capacities. Hence one has to rely on collective actions. In order to meet this moral
duty, a basic order guaranteeing just circumstances must be justly created. This is an essential
argument of justice in favour of establishing social institutions and fundamental state structures for
political communities with the help of such institutions and structures, individuals can collectively
fulfil their responsibility in the best possible manner. If circumstances can be rightly judged to be
unjust, all persons have the responsibility and moral duty, both individually and collectively, to
change the pertinent circumstances or distributive schemes into just ones.

In the following sections, the objects of equality may vary from topic to topic. However, as
indicated, there is a close relationship between the objects. The next three principles of equality
hold generally and primarily for all actions and treatment of others and for resulting circumstances.
From the fourth principle onward, i.e., starting with the presumption of equality, this section is
mainly concerned with distributive justice and the evaluation of distribution.

10.4.1 Formal Equality

When two persons have equal status in at least one normatively relevant respect, they must be
treated equally with regard to this respect. This is the generally accepted formal equality principle
that Aristotle formulated in reference to Plato: "treat like cases as like" (Aristotle, Nicomachean
Ethics, V.3.; Politics, III). Of course the crucial question is which respects are normatively relevant
and which are not. Some authors see this formal principle of equality as a specific application of a
rule of rationality: it is irrational, because inconsistent, to treat equal cases unequally without
sufficient reasons. But most authors instead stress that what is here at stake is a moral principle of
justice, basically corresponding with acknowledgment of the impartial and universalizable nature
of moral judgments, namely, the postulate of formal equality demands more than consistency with
one's subjective preferences. What is more important is possible justification vis-à-vis others of the
equal or unequal treatment in question -- and this on the sole basis of a situation's objective
features.

10.4.2 Proportional Equality

According to Aristotle, there are two kinds of equality, numerical and proportional (Aristotle,
Nicomachean Ethics, cf. Plato, Laws,). A form of treatment of others or as a result of it a
distribution is equal numerically when it treats all persons as indistinguishable, thus treating them
identically or granting them the same quantity of a good per capita. That is not always just. In
contrast, a form of treatment of others or distribution is proportional or relatively equal when it
treats all relevant persons in relation to thei r due. Just numerical equality is a special case of
proportional equality. Numerical equality is only just under special circumstances, viz. when
persons are equal in the relevant respects so that the relevant proportions are equal. Proportional
equality further specifies formal equality; it is the more precise and detailed, hence actually the
more comprehensive formulation of formal equality. It indicates what produces an adequate
equality.

Proportional equality in the treatment and distribution of goods to persons involves at least the
following concepts or variables: Two or more persons (P1, P2) and two or more allocations of
goods to persons (G) and X and Y as the quantity in which individuals have the relevant normative
quality E. This can be represented as an equation with fractions or as a ratio. If P1 has E in the
amount of X and if P2 has E in the amount Y, then P1 is due G in the amount of X and P2 is due G
in the amount of Y, so that the ratio X/Y = X/Y is valid. (N.B. For the formula to be usable, the
potentially great variety of factors involved have to be both quantifiable in principle and
commensurable, i.e., capable of synthesis into an aggregate value.)
When factors speak for unequal treatment or distribution, because the persons are unequal in
relevant respects, the treatment or distribution proportional to these factors is just. Unequal claims
to treatment or distribution must be considered proportionally: that is the prerequisite for persons
being considered equally.

This principle can also be incorporated into hierarchical, inegalitarian theories. It indicates that
equal output is demanded with equal input. Aristocrats, perfectionists, and meritocrats all believe
that persons should be assessed according to their differing deserts, understood by them in the
broad sense of fulfilment of some relevant criterion. And they believe that reward and punishment,
benefits and burdens, should be proportional to such deserts. Since this definition leaves open who
is due what, there can be great inequality when it comes to presumed fundamental (natural) rights,
deserts, and worth -- and such inequality is apparent in both Plato and Aristotle (such as what
slaves and women deserve).

Aristotle's idea of justice as proportional equality contains a fundamental insight. The idea offers a
framework for a rational argument between egalitarian and non-egalitarian ideas of justice, its focal
point being the question of the basis for an adequate equality. Both sides accept justice as
proportional equality. Aristotle's analysis makes clear that the argument involves the features
deciding whether two persons are to be considered equal or unequal in a distributive context.
On the formal level of pure conceptual explication, justice and equality are linked through these
principles of formal and proportional justice. Justice cannot be explained without these equality
principles; the equality principles only receive their normative significance in their role as
principles of justice.
Formal and proportional equality is simply a conceptual schema. It needs to be made precise -- i.e.,
its open variables need to be filled out. The formal postulate remains quite empty as long as it
remains unclear when or through what features two or more persons or cases should be considered
equal. All debates over the proper conception of justice, i.e., over who is due what, can be
understood as controversies over the question of which cases are equal and which unequal
(Aristotle, Politics). For this reason equality theorists are correct in stressing that the claim that
persons are owed equality becomes informative only when one is told -- what kind of equality they
are owed. Actually, every normative theory implies a certain notion of equality. In order to outline
their position, egalitarians must thus take account of a specific (egalitarian) conception of equality.
To do so, they need to identify substantive principles of equality, discussed below.

10.4.3 Moral Equality

Until the eighteenth century, it was assumed that human beings are unequal by nature i.e., that
there was a natural human hierarchy. This postulate collapsed with the advent of the idea of natural
right and its assumption of an equality of natural order among all human beings. Against Plato and
Aristotle, the classical formula for justice according to which an action is just when it offers each
individual his or her due took on a substantively egalitarian meaning in the course of time, viz.
everyone deserved the same dignity and the same respect. This is now the widely held conception
of substantive, universal, moral equality. It developed among the Stoics, who emphasized the
natural equality of all rational beings, and in early New Testament Christianity, which elevated the
equality of human beings before God to a principle: one to be sure not always adhered to later by
the Christian church. This important idea was also taken up both in the Talmud and in Islam, where
it was grounded in both Greek and Hebraic elements in both systems. In the modern period,
starting in the seventeenth century, the dominant idea was of natural equality in the tradition of
natural law and social contract theory. Hobbes (1651) postulated that in their natural condition,
individuals possess equal rights, because over time they have the same capacity to do each other
harm. Locke (1690) argued that all human beings have the same natural right to both (self-)
ownership and freedom. Rousseau (1755) declared social inequality to be a virtually primeval
decline of the human race from natural equality in a harmonious state of nature: a decline catalyzed
by the human urge for perfection, property and possessions. For Rousseau (1755, 1762), the
resulting inequality and rule of violence can only be overcome by tying unfettered subjectivity to a
common civil existence and popular sovereignty. In Kant's moral philosophy (1785), the
categorical imperative formulates the equality postulate of universal human worth. His
transcendental and philosophical reflections on autonomy and self-legislation led to a recognition
of the same freedom for all rational beings as the sole principle of human rights. Such
Enlightenment ideas stimulated the great modern social movements and revolutions, and were
taken up in modern constitutions and declarations of human rights. During the French Revolution,
equality -- along with freedom and fraternity -- became a basis of the Déclaration des droits de l
´homme et du citoyen of 1789.

The principle of equal dignity and respect is now accepted as a minimum standard throughout
mainstream Western culture. Some misunderstandings regarding moral equality need to be
clarified. To say that men are equal is not to say they are identical. The postulate of equality
implies that underneath apparent differences, certain recognizable entities or units exist that, by
dint of being units, can be said to be ‘equal.’ Fundamental equality means that persons are alike in
important relevant and specified respects alone, and not that they are all generally the same or can
be treated in the same way. In a now commonly posed distinction, stemming from Dworkin, moral
equality can be understood as prescribing treatment of persons as equals, i.e., with equal concern
and respect, and not the often implausible principle of treating persons equally. This fundamental
idea of equal respect for all persons and of the equal worth or equal dignity of all human beings is
accepted as a minimal standard by all leading schools of modern Western political and moral
culture. Any political theory abandoning this notion of equality will not be found plausible today.
In a period in which metaphysical, religious and traditional views have lost their general
plausibility, it appears impossible to peacefully reach a general agreement on common political
aims without accepting that persons must be treated as equals. As a result, moral equality
constitutes the ‘egalitarian plateau’ for all contemporary political theories (Kymlicka 1990).

To recognize that human beings are all equally individuals does not mean having to treat them
uniformly in any respects other than those in which they clearly have a moral claim to be treated
alike. Disputes arise, of course, concerning what these claims amount to and how they should be
resolved. That is the crux of the problem to which we now turn.

Since "treatment as an equal" is a shared moral standard in contemporary theory, present-day

philosophical debates are concerned with the kind of equal treatment normatively required when
we mutually consider ourselves persons with equal dignity. The principle of moral equality is too
abstract and needs to be made concrete if we are to arrive at a clear moral standard. Nevertheless,
no conception of just equality can be deduced from the notion of moral equality. Rather, we find
competing philosophical conceptions of equal treatment serving as interpretations of moral
equality. These need to be assessed according to their degree of fidelity to the deeper ideal of moral
equality (Kymlicka 1990). With this we finally switch the object of equality from treatment to the
fair distribution of goods and ills or bads.

10.4.4 Presumption of Equality

Many conceptions of equality operate along procedural lines involving a presumption of equality.
While more materially concrete, ethical approaches, as described in the next section below, are
concerned with distributive criteria; the presumption of equality, in contrast, is a formal, procedural
principle of construction located on a higher formal and argumentative level. What is here at stake
is the question of the principle with which a material conception of justice should be constructed --
particularly once the above-described approaches turn out inadequate. The presumption of equality
is a prima facie principle of equal distribution for all goods politically suited for the process of
public distribution. In the domain of political justice, all members of a given community, taken
together as a collective body, have to decide centrally on the fair distribution of social goods, as
well as on the distribution's fair realization. Any claim to a particular distribution, including any
existing distributive scheme, has to be impartially justified, i.e., no ownership will be recognized
without justification. Applied to this political domain, the presumption of equality requires that
everyone, regardless of differences, should get an equal share in the distribution unless certain
types of differences are relevant and justify, through universally acceptable reasons, unequal
distribution. This presumption results in a principle of prima facie equal distribution for all
distributable goods. A strict principle of equal distribution is not required, but it is morally
necessary to justify impartially any unequal distribution. The burden of proof lies on the side of
those who favour any form of unequal distribution.

The presumption in favour of equality can be justified by the principle of equal respect together
with the requirement of universal and reciprocal justification; that requirement is linked to the
morality of equal respect granting each individual equal consideration in every justification and
distribution. Every sort of public, political distribution is, in this view, to be justified to all
relevantly concerned persons, such that they could in principle agree. Since it is immoral to force
someone to do something of which he or she does not approve, only reasons acceptable to the other
person can give one the moral right to treat the person in accordance with these reasons. The
impartial justification of norms rests on the reciprocity and universality of the reasons. Universal
norms and rights enforced through inner or external sanctions are morally justified only if, on the
one hand, they can be reciprocally justified, i.e., if one person asks no more of the other than what
he or she is willing to give (reciprocity), and if, on the other hand, they are justified with respect to
the interests of all concerned parties, i.e., if everyone has good reasons for accepting them and no
one has a good reason for rejecting them (universality). In the end, only the concerned parties can
themselves formulate and advocate their (true) interests. Equal respect, which we reciprocally owe
to one another, thus requires respect for the autonomous decisions of each non-interchangeable
individual.

This procedural approach to moral legitimation sees the autonomy of the individual as the standard
of justification for universal rules, norms, rights etc. Only those rules can be considered legitimate
to which all concerned parties can freely agree on the basis of universal, discursively applicable,
commonly shared reasons. Equal consideration is thus accorded to all persons and their interests. In
a public distribution anyone who claims more owes all others an adequate universal and reciprocal
justification. If this cannot be provided, i.e., if there is no reason for unequal distribution that can
be universally and reciprocally recognized by all (since, lets assume, all are by and large equally
productive and needy), then equal distribution is the only legitimate distribution. How could it be
otherwise? Any unequal distribution would mean that someone receives less, and another more.
Whoever receives less can justifiably demand a reason for he or she being disadvantaged. Yet there
is no such justification. Hence, any unequal distribution is illegitimate in this case. If no convincing
reasons for unequal distribution can be brought forward, there remains only the option of equal
distribution. Equal distribution is therefore not merely one among many alternatives, but rather the
inevitable starting point that must be assumed insofar as one takes the justificatory claims of all to
be of equal weight.

The presumption of equality provides an elegant procedure for constructing a theory of distributive
justice. The following questions would have to be answered in order to arrive at a substantial and
full principle of justice.

 What goods and burdens are to be justly distributed (or should be distributed)? Which social
goods comprise the object of distributive justice?
  What are the spheres (of justice) into which these resources have to be grouped?
 Who are the recipients of distribution? Who has a prima facie claim to a fair share?
 What are the commonly cited yet in reality unjustified exceptions to equal distribution?
 Which inequalities are justified?
 Which approach, conception or theory of egalitarian distributive justice is therefore the best?
 What goods and burdens are to be justly distributed (or should be distributed)? There are
various opinions as to which social goods comprise the object of distributive justice.
 Does distributive justice apply only to those goods commonly produced, i.e., through social
and economic fair cooperation, or to other goods as well, e.g. natural resources that are not
the result of common cooperation? (At present, the former approach is most apparent in
Rawls (1971) and many of his adherents and critics follow Rawls in this respect.)

In the domain of public political distribution, the goods and burdens to be distributed may be
divided into various categories. Such a division is essential because reasons that speak for unequal
treatment in one area do not justify unequal treatment in another. What are the spheres (of justice)
into which these resources have to be grouped? In order to reconstruct our understanding of
contemporary liberal, democratic welfare states, four categories seem essential: 1. Civil liberties 2.
Opportunities for political participation 3. Social positions and opportunities 4. Economic rewards.
Despite views to the contrary, liberties and opportunities are seen in this view as objects of
distribution. For all four categories, the presumption of equality is the guiding principle. The
results of applying the presumption to each category can then be codified as rights.

After dividing social goods into categories, we must next ask what can justify unequal treatment or
unequal distribution in each category. Today the following postulates of equality are generally
considered morally required.

Strict equality is called for in the legal sphere of civil freedoms, since -- putting aside limitation on
freedom as punishment -- there is no justification for any exceptions. As follows from the principle
of formal equality, all citizens of a society must have equal general rights and duties. These rights
and duties have to be grounded in general laws applying to everyone. This is the postulate of legal
equality. In addition, the postulate of equal freedom is equally valid: every person should have the
same freedom to structure his or her life, and this in the most far-reaching manner possible in a
peaceful and appropriate social order.

In the political sphere, the possibilities for political participation should be equally distributed. All
citizens have the same claim to participation in forming public opinion, and in the distribution,
control, and exercise of political power. This is the postulate -- requiring equal opportunity -- of
equal political power sharing. To ensure equal opportunity, social institutions have to be designed
in such a way that persons who are disadvantaged, e.g. have a stutter or a low income, have an
equal chance to make their views known and to participate fully in the democratic process.

In the social sphere, social positions equally gifted and motivated citizens must have approximately
the same chances at offices and positions, independent of their economic or social class and native
endowments. This is the postulate of fair equality of social opportunity. An unequal outcome has to
result from equality of chances at a position, i.e., qualifications alone counting, not social
background or influences of milieu.

Since the nineteenth century, the political debate has increasingly centered on the question of
economic and social inequality (this running alongside the question of -- gradually achieved --
equal rights to freedom and political participation). The main controversy here is whether, and if so
to what extent, the state should establish far-reaching equality of social conditions for all through
political measures such as redistribution of income and property, tax reform, a more equal
educational system, social insurance, and positive discrimination.

The equality required in the economic sphere is complex, taking account of several positions that --
each according to the presumption of equality -- justify a turn away from equality. A salient
problem here is what constitutes justified exceptions to equal distribution of goods -- the main sub
field in the debate over adequate conceptions of distributive equality and its currency. The
following sorts of factors are usually considered eligible for justified unequal treatment: (a) need or
differing natural disadvantages (e.g. disabilities); (b) existing rights or claims (e.g. private
property); (c) differences in the performance of special services (e.g. desert, efforts, or sacrifices);
(d) efficiency; and (e) compensation for direct and indirect or structural discrimination (e.g.
affirmative action).

These factors play an essential, albeit varied, role in the following alternative egalitarian theories of
distributive justice. The following theories offer different accounts of what should be equalized in
the economic sphere. Most can be understood as applications of the presumption of equality
(whether they explicitly acknowledge it or not); only a few (like strict equality, libertarianism, and
sufficiency) are alternatives to the presumption.

Conceptions of Distributive Equality: Equality of What?

Every effort to interpret the concept of equality and to apply the principles of equality mentioned
above demands a precise measure of the parameters of equality. We need to know the dimensions
within which striving for equality is morally relevant. What follows is a brief review of the seven
most prominent conceptions of distributive equality, each offering a different answer to one
question: in the field of distributive justice, what should be equalized, or what should be the
parameter or "currency" of equality?

10.5.1 Simple Equality and Objections to Equality in General

Simple equality, meaning everyone being furnished with the same material level of goods and
services, represents a strict position as far as distributive justice is concerned. It is generally
rejected as untenable.

Hence, with the possible exception of Barbeuf (1796), no prominent author or movement has
demanded strict equality. Since egalitarianism has come to be widely associated with the demand
for economic equality and this in turn with communistic or socialistic ideas, it is important to stress
that neither communism nor socialism -- despite their protest against poverty and exploitation and
their demand for social security for all citizens -- calls for absolute economic equality. The
orthodox Marxist view of economic equality was expounded in the Critique of the Gotha Program
(1875). Marx here rejects the idea of legal equality, on three grounds. In the first place, he
indicates, equality draws on a merely limited number of morally relevant vantages and neglects
others, thus having unequal effects; right can never be higher than the economic structure and
cultural development of the society it conditions. In the second place, theories of justice have
concentrated excessively on distribution instead of the basic questions of production. In the third
place, a future communist society needs no law and no justice, since social conflicts will have
vanished.

As an idea, simple equality fails because of problems that are raised regards to equality in general.
It is useful to review these problems, as they require resolution in any plausible approach to
equality.

(i) We need adequate indices for the measurement of the equality of the goods to be distributed.
Through what concepts should equality and inequality be understood? It is thus clear that
equality of material goods can lead to unequal satisfaction. Money constitutes a usual-index --
although an inadequate one; at the very least, equal opportunity has to be conceived in other
terms.
(ii)The time span needs to be indicated for realizing the desired model of equal distribution. Should
we seek to equalize the goods in question over complete individual lifetimes, or should we seek
to ensure that various life segments are as equally well off as possible?
(iii) Equality distorts incentives promoting achievement in the economic field, producing an
inefficiency grounded in a waste of assets arising from the administrative costs of redistribution.
Equality and efficiency need to be placed in a balanced relation. Often, pareto-optimality is
demanded in this respect -- for the most part by economists. A social condition is pareto-
optimal or pareto-efficient when it is not possible to shift to another condition judged better by
at least one person and worse by none. A widely discussed alternative to the Pareto principle is
the Kaldor-Hicks welfare criterion. This stipulates that a rise in social welfare is always present
when the benefits accruing through the distribution of value in a society exceed the
corresponding costs. A change thus becomes desirable when the winners in such a change could
compensate the losers for their losses and still retain a substantial profit. In contrast to the
Pareto-criterion, the Kaldor-Hicks criterion contains a compensation rule. For purposes of
economic analysis, such theoretical models of optimal efficiency make a great deal of sense.
However, the analysis is always made relative to starting situation that can be unjust and
unequal. A society can thus be (close to) pareto-optimality -- i.e., no one can increase his or her
material goods or freedoms without diminishing those of someone else -- while also displaying
enormous inequalities in the distribution of the same goods and freedoms. For this reason,
egalitarians claim that it may be necessary to reduce pareto-optimality for the sake of justice if
there is no more egalitarian distribution that is also pareto-optimal. In the eyes of their critics,
equality of whatever kind should not lead to some people having to do with less even, though
this equalizing down does not benefit any of those who are in a worse position.
(iv) Moral objections: A strict and mechanical equal distribution between all individuals does not
sufficiently take into account the differences among individuals and their situations. In essence,
since individuals desire different things, why should everyone receive the same? Intuitively, for
example, we can recognize that a sick person has other claims than a healthy person, and
furnishing each with the same things would be mistaken. With simple equality, personal
freedoms are unacceptably limited and distinctive individual qualities insufficiently regarded; in
this manner they are in fact unequally regarded. Furthermore, persons not only have a moral
right to their own needs being considered, but a right and a duty to take responsibility for their
own decisions and their consequences. Working against the identification of distributive justice
with simple equality, a basic postulate of virtually all present-day egalitarians is as follows:
human beings are themselves responsible for certain inequalities resulting from their free
decisions; aside from minimum aid in emergencies, they deserve no recompense for such
inequalities. On the other hand, there are due compensations for inequalities that are not the
result of self-chosen options. For egalitarians, the world is morally better when equality of life
conditions prevail. This is an amorphous ideal demanding further clarification. Why is such
equality an ideal, and equality of what, precisely? By the same token, most egalitarians
presently do not advocate an equality of outcome, but different kinds of equality of opportunity,
due to their emphasis on a pair of morally central points: firstly, that individuals have
responsibility for their decisions; and secondly, that the only things to be considered objects of
equality are things serving the real interests of individuals. The opportunities to be equalized
between people can be opportunities for well being (i.e. objective welfare), or for preference
satisfaction (i.e., subjective welfare), or for resources. It is not equality of objective or
subjective well being or resources themselves that should be equalized, but an equal opportunity
to gain the well-being or resources one aspires to. Such equality of opportunity (to well-being or
resources) depends on the presence of a realm of options for each individual equal to the
options enjoyed by all other persons, in the sense of the same prospects for fulfilment of
preferences or the possession of resources. The opportunity must consist of possibilities one can
really take advantage of. Equal opportunity prevails when human beings effectively enjoy equal
realms of possibility.
(v) Simple equality is very often associated with equality of results (although these are two distinct
concepts). However, to strive only for equality of results is problematic. To illustrate the point,
let us briefly limit the discussion to a single action and the event or state of affairs resulting
from it. Arguably, actions should not be judged solely by the moral quality of their results as
important as this may be. One also has to take into consideration the way in which the events or
circumstances to be evaluated have come about. Generally speaking, a moral judgment requires
not only the assessment of the results of the action in question (the consequentialist aspect) but,
first and foremost, the assessment of the intention of the actor (the deontological aspect). The
source and its moral quality influence the moral judgment of the results. For example, if you
strike me, your blow will hurt me; the pain I feel may be considered bad in itself, but the moral
status of your blow will also depend on whether you were (morally) allowed such a gesture
(perhaps through parental status, although that is controversial) or even obliged to execute it
(e.g. as a police officer preventing me from doing harm to others), or whether it was in fact
prohibited but not prevented. What is true of individual actions (or their omission) has to be true
mutatis mutandis of social institutions and circumstances like distributions resulting from
 collective social actions (or their omission). Hence, social institutions are to be assessed not
solely on the basis of information about how they affect individual quality of life. A society in
which people starve on the streets is certainly marked by inequality; nevertheless, its moral
quality, i.e., whether the society is just or unjust with regard to this problem, also depends on
the suffering's caused. Does the society allow starvation as an unintended but tolerable side
effect of what its members see as a just distributive scheme? Indeed, does it even defend the
suffering as a necessary means, e.g. as a sort of Social Darwinism? Or has the society taken
measures against starvation, which have turned out insufficient? In the latter case, whether the
society has taken such steps for reasons of political morality or efficiency again makes a moral
difference. Hence, even for egalitarians, equality of results is too narrow and one-sided a focus.
(vi) Finally, there is a danger of (strict) equality leading to uniformity, rather than to a respect for
pluralism and democracy. In the contemporary debate, this complaint has been mainly
articulated in feminist and multiculturalist theory. A central tenet of feminist theory is that
gender has been and remains a historical variable and internally differentiated relation of
domination. The same holds for so called racial and ethnic differences. These differences are
often still conceived of as marking different values. The different groups involved here rightly
object to their discrimination, marginalization, and domination, and an appeal to equality of
status thus seems a solution. However, as feminists and multiculturalists have pointed out,
equality, as usually understood and practiced, is constituted in part by a denial and ranking of
differences; as a result it seems less useful as an antidote to relations of domination. "Equality"
can often mean the assimilation to a pre-existing and problematic ‘male’ or ‘white’ or ‘middle
class’ norm. In short, domination and a fortiori inequality often arise out of an inability to
appreciate and nurture differences -- not out of a failure to see everyone as the same. To
recognize these differences should however not lead to an essentialism grounded in sexual or
cultural characteristics. In contemporary multiculturalism and feminism, there is a crucial
debate between those who insist that sexual, racial, and ethnic differences should become
irrelevant, on the one hand, and those believing that such differences, even though culturally
relevant, should not furnish a basis for inequality: that rather one should find mechanisms for
securing equality, despite valued differences. Neither of these strategies involves rejecting
equality. Rather, the dispute is about how equality is to be attained (McKinnon 1989, Taylor
1992).

Proposing a connection between equality and pluralism, Michael Walzer's theory (1983) aims at
what he calls "complex equality". According to Walzer, relevant reasons can only speak in favour
of distribution of specific types of goods in specific spheres -- not in several or all spheres. Against
a theory of simple equality promoting equal distribution of dominant goods, hence underestimating
the complexity of the criteria at work in each given sphere the dominance of particular goods needs
to be ended. For instance, the purchasing power in the political sphere through means derived from
the economic sphere (i.e., money) needs to be prevented. Actually, Walzer's theory of complex
equality is not aimed at equality but at the separation of spheres of justice, the theory's designation
thus being misleading. Any theory of equality should however follow Walzer's advice not to be
monistic but recognize the complexity of life and the plurality of criteria for justice.
We thus arrive at the following desideratum: instead of simple equality, we need a concept of more
complex equality: a concept managing to resolve the above problems through a distinction of
various classes of goods, a separation of spheres, and a differentiation of relevant criteria.

10.5.2 Libertarianism

Libertarianism and economic liberalism represent minimalist positions in relation to distributive

justice. Citing Locke, they both postulate an original right to freedom and property, thus arguing
against redistribution and social rights and for the free market (Nozick 1974; Hayek 1960). They
assert an opposition between equality and freedom: the individual (natural) right to freedom can be
limited only for the sake of foreign and domestic peace. For this reason, libertarians consider
maintaining public order the state's only legitimate duty. They assert a natural right to self-
ownership (the philosophical term for "ownership of oneself" -- i.e., one's will, body, work, etc.)
that entitles everybody to thus far unowned bits of the external world by means of mixing their
labour with it. All individuals can thus claim property if "enough and as good" is left over for
others (Locke's proviso). Correspondingly, they defend market freedoms and oppose the use of
redistributive taxation schemes for the sake of social justice as equality. A principal objection to
libertarian theory is that its interpretation of the Lockean proviso -- nobody's situation should be
worsened through an initial acquisition of property -- leads to an excessively weak requirement and
is thus unacceptable (Kymlicka 1990). With a broader and more adequate interpretation of what it
means for one a situation to be worse than another, however, justifying private appropriation and, a
fortiori, all further ownership rights, becomes much more difficult. If the proviso recognizes the
full range of interests and alternatives that self-owners have, then it will not generate unrestricted
rights over unequal amounts of resources. Another objection is that precisely if one's own free
accomplishment is what is meant to count, as the libertarians argue, success should not depend
strictly on luck, extraordinary natural gifts, inherited property, and status. In other words, equal
opportunity also needs to at least be present as a counterbalance, ensuring that the fate of human
beings is determined by their decisions and not by unavoidable social circumstances. Equal
opportunity thus seems to be the frequently vague minimal formula at work in every egalitarian
conception of distributive justice. Many egalitarians, however, wish for more -- namely, an
equality of (at least basic) life conditions.

In any event, with a shift away from a strictly negative idea of freedom, economic liberalism can
indeed itself point the way to more social and economic equality. For with such a shift, what is at
stake is not only assuring an equal right to self-defense, but also furnishing everyone more or less
the same chance to actually make use of the right to freedom. In other words, certain basic goods
need to be furnished to assure the equitable or ‘fair value of the basic liberties’ (Rawls).

10.5.3 Utilitarianism

It is possible to interpret utilitarianism as concretising moral equality -- and this in a way meant to
offer the same consideration to the interests of all human beings. From the utilitarian perspective,
since everyone counts as one and no one as more than one (Bentham), the interests of all should be
treated equally without consideration of contents of interest or an individual's material situation.
For utilitarianism, this means that all enlightened personal interests have to be fairly aggregated.
The morally proper action is the one that maximizes utility. But this utilitarian conception of equal
treatment has been criticized as inadequate by many opponents of utilitarianism. At least in
utilitarianism's classical form -- so the critique reads -- the hoped for moral equality is flawed: this
because all desires are taken up by the utilitarian calculation -- including "selfish" and "external"
preferences, all having equal weight, even when they diminish the ‘rights’ and intentions of others.
And this, of course, conflicts with our everyday understanding of equal treatment. What is here at
play is an argument involving "offensive" and "expensive" taste: a person cannot expect others to
sustain his or her desires at the expense of their own. Rather, according to generally shared
conviction, equal treatment consistently requires a basis of equal rights and resources that cannot
be taken away from one person, whatever the desire of others.

In line with Rawls, many hold that justice entails no value to interests insofar as they conflict with
justice. According to this view, unjustified preferences will not distort mutual claims people have
on each other. Equal treatment has to consist of everyone being able to claim a fair portion, and not
in all interests having the same weight in disposal over my portion. Utilitarians cannot admit any
restrictions on interests based on morals or justice. As long as utilitarian theory lacks a concept of
justice and fair allotment, it must fail in its goal of treating all as equals. As Rawls also famously
argues, utilitarianism that involves neglecting the separateness of persons does not contain a proper
interpretation of moral equality as equal respect for each individual.

10.5.4 Equality of Welfare

The concept of welfare equality is motivated by an intuition that when it comes to political ethics,
what is at stake is the individual's well-being. The central criterion for justice must consequently be
equalizing the level of welfare. But taking welfare as what is to be equalized leads into major
difficulties, which resemble those of utilitarianism. If one contentiously identifies subjective
welfare with preference satisfaction, it seems implausible to count all individual preferences as
equal, some -- such as the desire to do others wrong -- being inadmissible on grounds of justice
(the offensive taste argument). Any welfare-centred concept of equality grants people with refined
and expensive taste more resources -- something distinctly at odds with our moral intuitions (the
expensive taste argument) (Dworkin 1981). However, satisfaction in the fulfilment of desires
cannot serve as a standard, since we wish for more than a simple feeling of happiness. A more
viable standard for welfare comparisons would seem to be success in the fulfilment of preferences.
A fair evaluation of such success cannot be purely subjective, rather requiring a standard of what
should or could have been achieved. And this itself involves an assumption regarding just
distribution; it is thus no independent criterion for justice. An additional serious problem with any
welfare-centred concept of equality is that it cannot take account of either desert or personal
responsibility for one's own well-being, to the extent this is possible and reasonable.

10.5.5 Equality of Resources

Represented above all by both Rawls (also refer back to ch.8) and Dworkin, resource equality
avoids such problems (Rawls 1971; Dworkin 1981). It holds individuals responsible for their
decisions and actions, not, however, for circumstances beyond their control -- race, sex, and skin-
colour, but also intelligence and social position -- which thus are excluded as distributive criteria.
Equal opportunity is insufficient because it does not compensate for unequal innate gifts. What
applies for social circumstances should also apply for such gifts, both these factors being purely
arbitrary from a moral point of view and requiring adjustment.

According to Rawls, human beings should have the same initial expectations of "basic goods," i.e.,
all-purpose goods; this in no way precludes ending up with different quantities of such goods or
resources, as a result of personal economic decisions and actions. When prime importance is
accorded an assurance of equal basic freedoms and rights, inequalities are just when they fulfil two
provisos. On the one hand, they have to be linked to offices and positions open to everyone under
conditions of fair equality of opportunity; on the other hand, they have to reflect the famous
‘difference principle’ in offering the greatest possible advantage to the least advantaged members
of society. Otherwise, the economic order requires revision. Due to the argument of the moral
arbitrariness of talents, the commonly accepted criteria for merit (like productivity, working hours,
effort) are clearly relativized. The difference principle only allows the talented to earn more to the
extent this raises the lowest incomes. According to Rawls, with regard to the basic structure of
society, the difference principle should be opted for under a self-chosen "veil of ignorance"
regarding personal and historical circumstances and similar factors. The principle offers a general
assurance of not totally succumbing to the hazards of a free market situation; and everyone does
better than with inevitably inefficient total equal distribution, whose level of well-being is below
that of those worse off under the difference principle.

Since Rawls' Theory of Justice is the classical focal point of present-day political philosophy, it is
worth noting the different ways his theory claims to be egalitarian: First, Rawls upholds a natural
basis for equal human worth: a minimal capacity for having a conception of the good and a sense
of justice. Second, through the device of the "veil of ignorance," people are conceived as equals in
the "original position." Third, the idea of sharing this "original position" presupposes the parties
having political equality, as equal participants in the process of choosing the principles by which
they would be governed. Fourth, Rawls proposes fair equality of opportunity. Fifth, Rawls
maintains that all desert must be institutionally defined, depending on the goals of the society. No
one deserves his or her talents or circumstances -- all products of the natural lottery. Finally, the
difference principle tends toward equalizing holdings.

Dworkin's equality of resources stakes a claim to being even more ‘ambition-sensitive’ and
endowment-insensitive’ than Rawls' theory. Unequal distribution of resources is considered fair
only when it results from the decisions and intentional actions of those concerned. Dworkin
proposes a hypothetical auction in which everyone can accumulate bundles of resources through
equal means of payment, so that in the end no one is jealous of another's bundle (the envy test).
The auction-procedure also offers a way to precisely measure equality of resources: the measure of
resources devoted to a person's life is defined by the importance of the resources to others
(Dworkin 1981).
In the free market, how the distribution then develops depends on an individual's ambitions. The
inequalities that thus emerge are justified, since one has to take responsibility for one's "option
luck" in the realm of personal responsibility. In contrast, unjustified inequalities based on different
innate provisions and gifts as well as brute luck should be compensated for through a fictive
differentiated insurance system: its premiums are established behind Dworkin's own ‘veil of
ignorance,’ in order to then be distributed in real life to everyone and collected in taxes. For
Dworkin, this is the key to the natural lottery being balanced fairly, preventing a "slavery of the
talented" through excessive redistribution.

Objections to all versions of "brute-luck egalitarianism" come from two sides. Some authors
criticize its, in their view, unjustified or excessively radical rejection of merit: The egalitarian
thesis of desert only being justifiably acknowledged if it involves desert "all the way down" not
only destroys the classical, everyday principle of desert, since everything has a basis that we
ourselves have not created. In the eyes of such critics, along with the merit-principle this argument
also destroys our personal identity, since we can no longer accredit ourselves with our own
capacities and accomplishments. Other authors consider the criterion for responsibility to be too
strong, indeed inhuman in its consequences, since human beings responsible for their own misery
would be left alone with their misery (Anderson 1999).

10.5.6 Equality of Opportunity for Welfare or Advantage

Approaches based on equality of opportunity can be read as revisions of both welfarism and
resourcism. Ranged against welfarism and designed to avoid its pitfalls, they incorporate the
powerful ideas of choice and responsibility into various, improved forms of egalitarianism. Such
approaches are meant to equalize outcomes, insofar as they are the consequences of causes beyond
a person's control (i.e., beyond circumstances or endowment), but to allow differential outcomes in
so far as they result from autonomous choice or ambition. But the approaches are also aimed at
maintaining the insight that individual preferences have to count, as the sole basis for a necessary
linkage back to the individual perspective: otherwise, there is an overlooking of the person's value.
In Arneson's (1989, 1990) concept of equal opportunity for welfare, the preferences determining
the measure of individual well-being are meant to be conceived hypothetically -- i.e., a person
would decide on them after a process of ideal reflection. In order to correspond to the morally
central vantage of personal responsibility, what should be equalized are not enlightened
preferences themselves, but rather real opportunities to achieve or receive a good, to the extent that
it is aspired to.

G.A. Cohen's (1989) broader conception of equality of access to advantage attempts to link and
integrate the perspectives of welfare equality and resource equality through the overriding concept
of advantage. For Cohen, there are two grounds for egalitarian compensation. Egalitarians will be
moved to furnish a paralyzed person with a compensatory wheelchair independently of the person's
welfare level. This egalitarian response to disability overrides equality of (opportunity to) welfare.
Egalitarians also favour compensation for phenomena such as pain, independent of any loss of
capacity -- for instance by paying for expensive medicine. But, Cohen claims, any justification for
such compensation has to invoke the idea of equality of opportunity to welfare. He thus views both
aspects, resources and welfare, as necessary and irreducible. Much of Roemer's (1998) more
technical argument is devoted to constructing the scale to calibrate the extent to which something is
the result of circumstances. An incurred adverse consequence is the result of circumstances, not
choice, precisely to the extent that it is a consequence that persons of one or another specific type
can be expected to incur.

10.5.7 Capabilities Approaches

Theories that limit themselves to the equal distribution of basic means -- this in the hope of doing
justice to the different goals of all human beings -- are often criticized as fetishistic, in that they
focus on means, rather than on what individuals gain with these means (Sen 1980), For the value
goods have for someone depends on objective possibilities, the natural environment, and individual
capacities. Hence, in contrast to the resourcist approach, Amartya Sen proposes orientating
distribution around "capabilities to achieve functionings," i.e., the various things that a person
manages to do or be in leading a life (Sen 1992). In other words, evaluating individual well-being
has to be tied to a capability for achieving and maintaining various precious conditions and
"functionings" constitutive of a person's being, such as adequate nourishment, good health, the
ability to move about freely or to appear in public without shame, and so forth. Also important here
is the real freedom to acquire well-being -- a freedom represented in the capability to oneself
choose forms of achievement and the combination of "functionings." For Sen, capabilities are thus
the measure of an equality of capabilities human beings enjoy to lead their lives. A problem
consistently raised with capability approaches is the ability to weigh capabilities in order to arrive
at a metric for equality.

The problem is intensified by the fact that various moral perspectives are comprised in the concept
of capability. Martha Nussbaum (1992, 2000) has linked the capability approach to an Aristotelian,
essentialistic, "thick" theory of the good -- a theory meant to be, as she puts it, "vague,"
incomplete, and open-ended enough to leave place for individuality and cultural variations. On the
basis of such a "thick" conception of necessary and universal elements of a good life, certain
capabilities and functionings can be designated as foundational. In this manner, Nussbaum can
endow the capability approach with a precision that furnishes an index of interpersonal
comparison, but at some risk: that of not being neutral enough regarding the plurality of personal
conceptions of the good, a neutrality normally required by most liberals (most importantly Rawls
1993).

10.6 Equality Among Whom?

Justice is primarily related to individual actions. Individual persons are the primary bearers of
responsibility (the key principle of ethical individualism). This raises two controversial issues in
the contemporary debate.
One could regard the norms of distributive equality as applying to groups rather than individuals. It
is often groups that rightfully raise the issue of an inequality between themselves and the rest of
society -- e.g. women; racial and ethnic groups. The question arises of whether inequality among
such groups should be considered morally objectionable in itself, or whether even in the case of
groups, the underlying concern should be how individuals (as members of such groups) fare in
comparative terms.

Do the norms of distributive equality (whatever they are) apply to all individuals, regardless of
where (and when) they live? Or rather, do they only hold for members of communities within
states and nations? Most theories of equality deal exclusively with distributive equality among
people in a single society. But there does not seem to be any rationale for that limitation. Can the
group of the entitled be restricted prior to the examination of concrete claims? Many theories seem
to imply this when they connect distributive justice or the goods to be distributed with social
cooperation or production.

Those who contribute nothing to cooperation, such as the disabled, children, or future generations,
would have to be denied a claim to a fair share. The circle of persons who are to be the recipients
of distribution would thus be restricted from the outset. Other theories are less restrictive, insofar as
they do not link distribution to actual social collaboration, yet nonetheless do restrict it, insofar as
they bind it to the status of citizenship. In this view, distributive justice is limited to the individuals
within a society. Those outside the community have no entitlement to social justice. Unequal
distribution among states and the social situations of people outside the particular society could
not, in this view, be a problem of social distributive justice. Yet here too, the universal morality of
equal respect and the principle of equal distribution demand that we consider each person as prima
facie equally entitled to the goods, unless reasons for an unequal distribution can be put forth. It
may be that in the process of justification, reasons will emerge for privileging those who were
particularly involved in the production of a good. But prima facie, there is no reason to exclude
from the outset other persons, e.g. those from other countries, from the process of distribution and
justification. That may seem most intuitively plausible in the case of natural resources (e.g. oil) that
someone discovers by chance on or beneath the surface of his or her property. Why should such
resources belong to the person who discovers them, or on whose property they are located?
Nevertheless, in the eyes of many if not most people, global justice, i.e., extending distributive
justice globally, demands too much from individuals and their states. The charge, open, of course,
to challenge, is one of excessive demands being made.

10.7 The Value of Equality: Why Equality?

 A conception of justice is egalitarian when it views equality as a fundamental goal of justice.

 L. Temkin has put it as follows: "an egalitarian is any person who attaches some value to
equality itself (that is, any person that cares at all about equality, over and above the extent it
promotes other ideals). So, equality needn't be the only value, or even the ideal she values
most.... Egalitarians have the deep and (for them) compelling view that it is a bad thing -- unjust
 and unfair -- for some to be worse off than others through no fault of their own." In general, the
focus of the modern egalitarian effort to realize equality is on the possibility of a good life, i.e.,
on an equality of life prospects and life circumstances -- interpreted in various ways according
to various positions in the "equality of what" debate (see above).
 Many writers maintain the presence of three sorts of egalitarianism: intrinsic, instrumental and
constitutive.
 Intrinsic egalitarians view equality as an intrinsic good in itself. As pure egalitarians, they are
concerned solely with equality, most of them with equality of social circumstances, according
to which it is intrinsically bad if some people are worse off than others through no fault of their
own. But it is in fact the case that we do not always consider inequality a moral evil. Intrinsic
egalitarians regard equality as desirable even when the equalization would be of no use to any
of the affected parties -- e.g. when equality can only be produced through depressing the level
of everyone's life. But something can only have an intrinsic value when it is good for at least
one person, i.e., makes one life better in some way or another. The following "levelling-down"
objection indicates that doing away with inequality in fact ought to produce better
circumstances -- it otherwise being unclear why equality should be desired. Sometimes
inequality can only be ended by depriving those who are better off of their resources, rendering
them as poorly off as everyone else. This would have to be an acceptable approach according to
the intrinsic concept. But would it be morally good if, in a group consisting of both blind and
seeing persons, those with sight were rendered blind because the blind could not be offered
sight? That would in fact be morally perverse. Doing away with inequality by bringing
everyone down contains -- so the objection -- nothing good. Such leveling-down objections
would of course only be valid if there were indeed no better and equally egalitarian alternatives
available; and nearly always there are such: e.g. those who can see should have to help the
blind, financially or otherwise. In case there are no alternatives, in order to avoid such
objections, intrinsic egalitarianism cannot be strict, but needs to be pluralistic. Then intrinsic
egalitarians could say there is something good about the change, namely greater equality --
although they would concede that much is bad about it. Pluralistic egalitarians do not have
equality as their only goal; they also admit other values and principles -- above all the principle
of welfare, according to which it is better when people are doing better. In addition, pluralistic
egalitarianism should be moderate enough to not always grant equality victory in the case of
conflict between equality and welfare. Instead, it needs to be able to accept reductions in
equality for the sake of a higher quality of life for all (as e.g. with Rawls' difference principle).

At present, many egalitarians are ready to concede that equality in the sense of equality of life
circumstances has no compelling value in itself; but that, in a framework of liberal concepts of
justice, its meaning emerges in pursuit of other ideals: universal freedom, full development of
human capacities and the human personality, the mitigation of suffering and defeat of domination
and stigmatization, the stable coherence of modern, freely constituted societies, and so forth. For
those who are worse off, unequal circumstances often mean considerable (relative) disadvantages
and many (absolute) evils; and as a rule these (relative) disadvantages and (absolute) evils are the
source for our moral condemnation of unequal circumstances. But this does not mean that
inequality as such is an evil. Hence, the argument goes, fundamental moral ideals other than
equality stand behind our aspiring for equality. When we are against inequality on such grounds,
we are for equality either as a by product or as a means and not as a goal or intrinsic value. In its
treatment of equality as a derived virtue, the sort of egalitarianism -- if the term is actually suitable
-- here at play is instrumental.

As indicated, there is also a third, more suitable approach to the equality ideal: a constitutive
egalitarianism. According to this approach, we aspire to equality on other moral grounds -- namely,
because certain inequalities are unjust. Equality has value, but this is an extrinsic value, since it
derives from another, higher moral principle of equal dignity and respect. But it is not instrumental
for this reason, i.e., it is not only valued on account of moral equality, but also on its own account.
Equality stands in relation to justice, as does a part to a whole. The requirement of justification is
based on moral equality; and in certain contexts, successful justification leads to the above-named
principles of equality, i.e., formal, proportional equality and the presumption of equality. Thus
according to constitutive egalitarianism, these principles and the resulting equality are justified and
required by justice, and by the same token constitute social justice. We should further distinguish
two levels of egalitarianism and non-egalitarianism, respectively.

On a first level, a constitutive egalitarian presumes that every explication of the moral standpoint is
incomplete without terms such as ‘equal,’ ‘similarly,’ etc. In contrast, a non-egalitarianism
operating on the same level considers such terms misplaced or redundant. On a second level, when
it comes to concretizing and specifying conceptions of justice, a constitutive egalitarian gives
equality substantive weight. On this level, we can find more and less egalitarian positions
according to the chosen currency of equality (the criteria by which just equality is measured) and
according to the reasons for unequal distributions (exemptions of the presumption of equality) the
respective theories regard as well grounded. Egalitarianism on the second level thus relates to the
kind, quality and quantity of things to be equalized. Because of such variables, a clear-cut
definition of second level egalitarianism cannot be formulated. In contrast, non-egalitarians on this
second level advocate a non-relational entitlement theory of justice.

Alongside the often-raised objections against equality mentioned in the section on "simple
equality" there is a different and more fundamental critique formulated by first level non-
egalitarians: that equality does not have a foundational role in the grounding of claims to justice.
While the older version of a critique of egalitarianism comes mainly from the right side of the
political spectrum, thus arguing in general against "patterned principles of justice", the critique's
newer version also often can be heard in liberal circles. This first-level critique of equality poses
the basic question of why justice should in fact be conceived relationally and (what is here the
same) comparatively. Referring back to Joel Feinberg's (1974) distinction between comparative
and non-comparative justice, non-egalitarians object to the moral requirement to treat people as
equals and many demands for justice emerging from it. They argue that neither the postulate nor
these demands involve comparative principles -- let alone any equality principles. They reproach
first-level egalitarians for confusion between "equality" and "universals." As the non-egalitarians
see things, within many principles of justice -- at least the especially important ones -- the equality-
terminology is redundant. Equality is thus merely a by product of the general fulfilment of actually
non-comparative standards of justice: something obscured through the unnecessary inserting of an
expression of equality. At least the central standards of dignified human life are not relational but
"absolute." As Harry Frankfurt puts it: "It is whether people have good lives, and not how their
lives compare with the lives of others." And again: "The fundamental error of egalitarianism lies in
supposing that it is morally important whether one person has less than another regardless of how
much either of them has."

From the non-egalitarian vantage, what is really at stake in helping those worse off and improving
their lot is humanitarian concern, a desire to alleviate suffering. Such concern is understood as not
egalitarian. It is not centred on the difference between those better off and those worse off as such
(whatever the applied standard), but on improving the situation of persons in bad circumstances.
Their distress constitutes the actual moral foundation. The wealth of those better off only furnishes
a means that has to be transferred for the sake of mitigating the distress, as long as other, morally
negative consequences do not emerge in the process. The strength of the impetus for more equality
lies in the urgency of the claims of those worse off, not in the extent of the inequality. For this
reason, instead of equality the non-egalitarian critics favor one or another entitlement theory of
justice, such as Nozick's (1974) libertarianism (cf. 10.4.2. above) and Frankfurt's (1987) doctrine of
sufficiency, according to which "What is important from the moral point of view is not that
everyone should have the same but that each should have enough. If everyone had enough, it
would be of no moral consequence whether some had more than others." Parfit's (1997) priority
view accordingly calls for focus on improving the situation of society's weaker and poorer
members and indeed all the more urgently the worse off they are, even if they can be less helped
than others in the process. In any case, entitlement-based non-egalitarian arguments can result in
praxis in an equality of outcome as far-reaching as egalitarian theories. Hence fulfilling an absolute
or non-comparative standard for everyone (e.g. to the effect that nobody should starve) frequently
results in a certain equality of outcome, such a standard comprising not only a decent living but a
good life. Consequently, the debate here centres on the basis -- is it equality or something else?
And not so much on the outcome -- are persons or groups more or less equal, according to a chosen
metric? Possibly, the difference is even deeper, lying in the conception of morality in general,
rather than in equality at all.

Egalitarians can respond to the anti-egalitarian critique by conceding that it is the nature of some
(if certainly far from all) essential norms of morality and justice to be concerned primarily with the
adequate fulfilment of the separate claims of individuals. However, whether a claim can itself be
considered suitable can be ascertained only by asking whether it can be agreed on by all those
affected in hypothetical conditions of freedom and equality. This justificatory procedure is all the
more needed the less evident -- indeed the more unclear or controversial -- it is if what is at stake is
actually suffering, distress, an objective need. In the view of the constitutive egalitarians, all the
judgments of distributive justice should be approached relationally by asking which distributive
scheme all concerned parties can universally and reciprocally agree to. As described at some length
in the pertinent section above, many egalitarians argue that a presumption in favor of equality
follows from this justification requirement. In the eyes of such egalitarians, this is all one needs for
the justification and determination of the constitutive value of equality.

Secondly, even if -- for the sake of argument -- the question is left open of whether demands for
distribution according to objective needs (e.g. alleviating hunger) involve non-comparative
entitlement-claims, it is nonetheless always necessary to resolve the question of what we do owe
needy individuals. This is tied in a basic way to the question of what we owe persons in
comparable or worse situations, and how we need to invest our scarce resources (money, goods,
time, energy) in light of the sum total of our obligations. While the claim on our help may well
appear non-relational, determining the kind and extent of the help must always be relational -- at
least in circumstances of scarcity (and resources are always scarce).

Claims are either "satiable" i.e., an upper limit or sufficiency level can be indicated after which
each person's claim to X has been fulfilled, or they are not so. For insatiable claims, to stipulate
any level at which one is or ought to be sufficiently satisfied is arbitrary. If the standards of
sufficiency are defined as a bare minimum, why should persons be content with that minimum?
Why should the manner in which welfare and resources are distributed above the poverty level not
also be a question of justice? If, by contrast, we are concerned solely with claims that are in
principle "satiable," such claims having a reasonable definition of sufficiency, then these standards
of sufficiency will most likely be very high. In Frankfurt's definition, for example, sufficiency is
reached only when persons are satisfied and no longer actively strive for more. Since we find
ourselves operating, in practice, in circumstances far beneath such a high sufficiency level, we (of
course) live in (moderate) scarcity. Then the above mentioned argument holds as well -- namely,
that in order to determine to what extent it is to be fulfilled, each claim has to be judged in relation
to the claims of all others and all available resources. In addition, the moral urgency of lifting
people above dire poverty cannot be invoked to demonstrate the moral urgency of everyone having
enough. In both forms of scarcity, i.e., with satiable and insatiable claims, the social right or claim
to goods cannot be conceived as something absolute or non-comparative. Egalitarians may thus
conclude that distributive justice is always comparative. This would suggest that distributive
equality, especially equality of life-
conditions, is due a fundamental role in an adequate theory of justice in particular and of morality
in general.