Haleluya T. Belay (LL.B) (LL.

M, AAU)(MBA)
Lecturer of Law, Ethiopian Defense University
⚖

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 Chapter One
Introduction to Philosophy
What is philosophy?
 The term 'philosophy' was coined by a philosopher-
mathematician known as Pythagoras. He form the term
from two Greek words: 'philos' which means love, and
'sophia' which means wisdom, and hence it is the love of
wisdom.
 Different scholars define philosophy from various
perspective.
 Their perspectives and approaches to define philosophy
provides ways to construe the very definition of
philosophy and what particular philosophers may say
about the nature and
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1. Philosophy is a set of views or beliefs about life
and the universe, which are often held
uncritically.
2. Philosophy is a process of reflecting on and
criticizing our most deeply held conceptions and
beliefs.
3. Philosophy is a rational attempt to look at the
world as a whole.
4. Philosophy is the logical analysis of language and
the clarification of the meaning of words and
concepts.
5. Philosophy is a group of perennial problems that
interest people and for which philosophers always
have sought answers.
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 Philosophy was the much needed wisdom that would
enable one to extricate oneself from the web of superstitions
around which the conventional order has been woven.
 Philosophy is also an inquiry. It is methodic and rational
inquiry into the ultimate causes of things.
 Philosophy asks the question of "why" and "how". It is the
ambition of philosophy to give interpretation to reality as a
whole.
 While different fields of study concern themselves with
specific aspects of reality, philosophy concerns itself with
reality as a whole.
 For example, Biology may explain in the parts of the human
body in detail but it can never explain why the human body
has its form in the first place.
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Branches of philosophy
Philosophy
Skepticism of Religion
Dogmatism Philosophy
of Mind

Epistemology Universals
Ethics
Metaphysics

Ontology
Axiology
Aesthetics PHILOSOPHY

Causality
Politics

History
of
Logic Philosophy
Categorical
Mathematical

Ideas
Propositional Predicate People
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 Metaphysics - the philosophical study of reality:

 Ontology - What kinds of things actually exist?
 Philosophy of Mind - What is the nature of consciousness
 Philosophy of Religion – What is the nature of God?
 Logic - the philosophical study of reason and arguments
 What is an argument?
 What makes an argument work?
 What makes an argument fail?
 Epistemology - the philosophical study of knowledge:
 What is knowledge?
 Can we have knowledge?
 How do we get knowledge?

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 Axiology - the philosophical study of value:

Ethics - the philosophical study of morality:
 What
makes an action Right or Wrong?
 Is morality relative?

 What do the words 'right' and 'wrong' actually

mean?
Political Theory - the philosophical study of justice
Aesthetics - the philosophical study of beauty:
 Philosophy of Literature -

 Philosophy of Art -

 Philosophy of Music -

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 History of Philosophy – the philosophical examination of
the development of ideas People – what did philosophers
of the past think about and why?
 Ideas – how do ideas arise over time and influence the
development of new ideas in the future?
 These are the main topics or problems in Philosophy.
Thinking about it in this way helps us understand why it is
an academic discipline (i.e., an area of concentration in
higher education).
 In the academic world, the word ‘philosophy’ is very much
like the word ‘science’: it covers a wide variety of distinct,
but related topics. But, as you can see, the field of
Philosophy is more broad than Science because it has more
primary sub disciplines (Science only has three: Physics,
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 Unlike other academic disciplines, Philosophy also has a

profoundly personal dimension. Many, if not most, people
will—at some point in their life—struggle with
philosophical questions. “Why am I here?” “Why do bad
things happen?” “Is there consciousness beyond the death
of the body?”
 “How do I know when I can trust my senses or the
testimony of other people?” “Are the choices I make really
free, and will they have an impact on my future?” And, of
course, there’s the old classic from “The Breakfast Club,”
“who am I?” Being aware of these questions, struggling
with possible answers, considering how others have tried
to answer them makes up the personal dimension of
Philosophy.
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 The Nature of Jurisprudence

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 Jurisprudence: What and Why Study?
What is jurisprudence?
 The word comes from the Latin term juris
prudentia, which means "the study, knowledge,
or science of law." This signifies that like any
other social study, law can also be studied
scientifically or systematically.
 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.
 Jurisprudence has many aspects, with four types
being the most common.
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 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.
 The second type of jurisprudence compares and contrasts law
with other fields of knowledge such as literature, economics,
religion, and the social sciences.
 The third type of jurisprudence 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?
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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.
 At a professional level, jurisprudence is the way lawyers and
judges reflect on what they do and what their role is within
society.
 This truth is reflected by the way jurisprudence is taught as
part of a university education in the law, where law is
considered not merely as a trade to be learned (like
carpentry or fixing automobiles) but as an intellectual
pursuit.
 Finally, for some, jurisprudence is interesting and enjoyable
on its own, whatever its other uses and benefits
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Schools of Jurisprudence
 There are many schools of jurisprudence which
concentrate on the nature and function of law.
 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.
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 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.(The existence of law is one
thing, whether it is immoral or moral is
another thing.) This is separation thesis.
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 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.
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 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.
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 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.
 In other words, the law should not be static, it must
adapt to various social and economic realities. This
theory emphasizes the role of the judge, that is it
emphasizes that law is made not found, and considers
judges as the true law makers

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 CLASSICAL NATURAL LAW THEORY

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 Introduction
 Natural law theory is one of the jurisprudential approaches to
law. It generally advocates that some laws are basic and
fundamental to human nature and are discoverable 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
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 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.
 For practical reasons in this unit we shall confine ourselves
to the investigation of the Greeks, Stoics, and the Middle
Age Christian Fathers. In the next chapter, where we
investigate the downfall of natural law theory, we will
also look at Lon L. Fuller in the Revival of Natural Law
Theory.
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The Notion of Natural Law
The Word and Its Significance
The dilemma of the child

Let’s suppose that a fair haired child returns from school one
day and says to his father
Child: Mr. Smith (the head master of the school) has made a new
rule. No children with fair hair are to get arithmetic lessons.
They are to do extra woodwork instead. I think it’s stupid,
Father: Wow
Child: After all, we’re at school to learn aren’t we? How can I do
what I’m there for if I get arithmetic?
Father: Well, it seems unfortunate, I agree. But Mr. Smith is the
head master. He makes the rules. What he says goes.
Child: But surely, he can’t make a rule like that? I mean, it goes
against what the school is for. The school governors wouldn’t
allow it. It can’t really be a rule at all, can it?
Father: Um!
Child: Well, I don’t think it is a rule. It can’t be.
Father: And do you intend to disobey it?
Child: Um!

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 What do you think is meant by natural law? What is natural
about it?
 In dealing with this matter we must explain first that ‘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. Also
distinct must be kept with the notion of a ‘state of nature’,
indicating the condition in which man lived, or is by some
philosophers supposed to have lived (e.g. Hobbes & Locke),
before the birth of ordered society.
 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 assist the achieving of such ends assist the
purpose of nature. Thus laws that further the achievement by
man of his natural ends assist the achievement of the purpose of
nature.
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 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.
 What does natural law consist of? What are its precepts?
 Natural law ordains that society should be ordered in such a way
as to assist man in fulfilling his purpose. Since violence will
impede this fulfillment, violence is contrary to natural law.
Since peace assists the fulfillment, man should honor promises,
since to dishonor a promise can lead to disharmony or even
violence.
 Since man’s natural ends are the same for all mankind, and
remain the same for all time, it is natural that the principles
of natural law are constant. Thus natural law comprises a
body of permanent, eternal truths, truths embodying
precepts of universal applicability, part of immutable
order of things, unaffected by changing human beliefs or
attitudes.
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 Ancient Greece: Natural Law as Source of Justice and Virtue
1. Socrates
 One of the famous Greek philosophers who
contributed a lot to the western philosophy.
 Apology and Crito, two different writings written by
his pupil Plato, indicated his conception about the law.
 Apology is all about Socrates’ defense in court, while
Crito is a discourse made between Socrates and his
friend Crito in prison.
 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.
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 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.
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 For Socrates, to follow the order was unjust since it was

against the Athenian laws. Thus he preferred to obey the
laws to the government. He was sticking to the rule of law.
He strictly followed the positive law and disobeyed the
action of the officials which is contrary to the written
law.
 The second principle is that we shall obey the law if it is
only a just law. 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.
 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
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 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.
 While in prison, his friend, Crito, visited him and told him
that plans were in place to prepare for his escape and
journey to another country.
 Socrates justified the coercive power of the state laws
(positive law) and thereby upholding and respecting the
decision of the courts (not to escape from prison) on three
grounds.
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 First, on moral grounds, in that it is bad and disgraceful
to harm or to do injustice to another.
 To do injustice in return for injustice or in other words, to
return harm for harm is also bad.
 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.
 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.
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 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.
 Do you find any contradiction in both of Socrates’
arguments?
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2. 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’.
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 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 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 (for your
information, this school of thought is known as idealism).
 It refers to the notion that the idea of a thing has its own
existence.
 The chair you are sitting on may be of wood, metal, plastic or
something of a mixture. It is not perfect in design or quality.
The perfect chair with all essential qualities cannot be found
on this earth; it exists only in the transcendental world, a
world beyond time and space.)
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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.
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Aristotle
 Aristotle did not subscribe to Plato's theory of
forms.
 Aristotle was concerned with the world as he saw it
existing around him (as opposed to Plato, Aristotle
was materialist).
 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
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 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.
 In his book, politics, 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.’
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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…. Some hold the view that all regulations are of this kind. They can see that
notions of justice are variable. But this contention is not true as stated, although
it is true in a sense. Among the gods, indeed, justice presumably never changes at
all; but in our world, although there is such a thing as natural law, everything is
subject to change; but still some things are so by nature and some are not, and it
is easy to see what sort of things, among those that admit of being otherwise, is
so by nature and what is not, but is legal and conventional…. Rules of justice
established by convention and on the ground of expediency may be compared to
standard measures; because the measure used in the wine and corn trades are not
everywhere equal: they are larger in the wholesale and smaller in the retail trade.
Similarly laws that are not natural but man-made are not the same everywhere,
because forms of government are not the same either; but everywhere there is
only one natural form of government, namely that which is best.

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 Aristotle has declared that we have two types of laws. One is

natural law, and the other man-made.
 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. Moreover, the state made law is usually binding and
decisive compared to the natural law. In case of conflict
between the two, Aristotle tells us to resort to the natural
law:

“If the written law tells against our case, clearly we must appeal to universal law, and
insist on a greater equity and justice…… We must urge that the principle of equity are
permanent and changeless, and that the universal law does not change either, for it is
the law of nature, whereas written laws often do change.”

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 The Stoics: Natural Law as a Reason
 Introduction (Stoic School of 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.” Cicero

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 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 has
got today the name “international law”.
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1.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 following well known passage
illustrates 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.”
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 The universality and immutability of natural law or
“true” law was indicated in another passage:

“The universality and immutability of natural law or

“true” law was indicated in another passage: 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.”

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He moreover declares:
“Indeed this idea – that one must not injure anybody else for
one’s profit – is not only natural law, an international valid
principle: the same idea is also incorporated in the statutes
which individual communities have framed for their national
purposes. The whole point and intention of these statutes is
that one citizen shall live safely with another.
….the finest and noblest characters prefer a life of dedication
to a life of self-indulgence; and one may conclude that such
men conform with nature and are therefore incapable of doing
harm to their fellow men.
For there is an ideal of human goodness: nature itself has
stored and wrapped this up inside our minds. Unfold this ideal,
and you will straightaway identify the good man as the person
who helps everybody he can, and, unless wrongfully provoked,
harms none …”
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 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.
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2. Seneca
 In his letter Seneca, another Roman lawyer and Stoic
philosopher, 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? What has the philosopher investigated? What has the
philosopher brought to light? In the first place, truth and
nature; and secondly, a rule of life, in which he has brought life
into line with things universal.
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 One can observe that Seneca has also emphasized the need for
rational approach, i.e. that man shall live in harmony with
nature.
 If we were to single out the principal contribution of Stoic’s
thinking to the evolution of the doctrine of natural law, it would
perhaps be its 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.
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 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 (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 juris consults, 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.
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 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.
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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’; we can see
foreshadowed what was to come later: 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.
 In his greatest work, De Civitate Dei (the City of God), 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.
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 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.
 The argument, in short, relates to the moral obligation
attaching to law rather than the ability of a State actually to
do wrong through its laws.
 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.
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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: (1) Eternal Law;
(2) Divine Law; (3) Natural Law; and (4) Human Law
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A. 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."
B. 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. For
example, it is revealed to man by the Holy Scriptures that Jesus
Christ is the son of god, who was sent into the world; that, by his
death on the cross, a means of salivation should be offered to all
those who confess their sins and acknowledge Christ as their
savior; further that it is God’s will that on six days should man
labor, and on the seventh, rest. No man can attain such knowledge
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C. Natural Law: is comprised of those precepts of the eternal law

that govern the behavior of beings possessing reason and free
will. On the level that we share with all substances, the Natural
Law commands that we preserve ourselves in being.
 Therefore, 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).
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 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.
 The first precept of the natural law, according to Aquinas,
is the somewhat vacuous imperative to do good and avoid
evil. Here it is worth noting that Aquinas holds a natural
law theory of morality: what is good and evil, according
to Aquinas, is derived from the rational nature of human
beings.
 Good and evil are thus both objective and universal.
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D. 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.
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As Aquinas puts the point:

[E]very human law has just so much of

the nature of law as is derived from the
law of nature. But if in any point it
deflects from the law of nature, it is no
longer a law but a perversion of law.

This, in effect, paraphrases the earlier Augustine's

famous remark, an unjust law is really no law at all.

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 Nature of Man and Justification for Law
 The medieval power of the church
dissolved with the coming of Renaissance
and political writers such Hobbes, Locke
and Rousseau.
 These theorists all sought to base a view of
the purpose and authority of law upon a
social contract, a covenant that
underlines the surrender of the powers
of the individual to a state
organization, the ‘Sovereign’.
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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 state of
nature is “solitary, poor, nasty, brutish and short.”
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 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 doesn’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).
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 Hobbes 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. Thus, we can see in the philosophy
of Hobbes both natural law and positivist ideas. As we
shall see it later, Bentham and Austin of the positivist
school of jurisprudence have been influenced by this
mode of thinking.
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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, in his book, The
Second Treatise of Civil Government, 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 Hobbessian 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.
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 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 labour with
land or anything that was originally communally owned. As
one’s person (labour of the body or intellect) is indisputably
one’s own, anything t 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 needsDepartement
without spoilage.
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 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.

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 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 contracts 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.
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 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 this 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.

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 Kelsen’s Criticism on Natural Law Theory
A. 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:

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Value is not immanent 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.

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 The content of human laws, Kelsen explains, 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. A decision about this entails a value
judgment. Value here may conflict, for example, between
personal freedom and social security. On such on issue
a decision has to be made: which of the two is to be
preferred. This question cannot be answered in the same
way as the question whether iron is heavier than water, or
water heavier than wood. The question as to which of two
conflicting values is to be preferred can only be decided
emotionally, according to the feeling or wishes of the
whoever makes the decision. So, what is law is what is
decided to be law by the law-maker, not some other
thing, ought.
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B. Good/Bad contradiction
 In a second attack on natural law, Kelsen
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.
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C. Insincerity
 Next Kelsen 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 a law 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’.
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D. Absolute values and Relative values
Is value absolute or relative? This means what is right and wrong?
Is it one and an absolute one, or relative with civilizations,
religions, and a different period of time? This is as old as European
philosophy. That ethical judgments and values are relative was
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.’
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 THE REVIVAL OF NATURAL LAW

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 Introduction
 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 20th 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’.
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 The basis for Fuller’s 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.
 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.
 John Finnis’s Natural Law and Natural Rights as
another concept of modern natural law
theory.(Substantive One)
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 Procedural Natural Law: Lon L. Fuller
The Story
 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.
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 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
denounced 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.
 The case thus illustrated a conflict between positivism and
natural law, the latter triumphing. The principle adopted in the
decision was followed in many latter cases.
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 Con’d…

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.
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 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.
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 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.

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 Fuller argues that, wherever the pointer might be
fixed, the appropriate standard of evaluation
in the analysis of law, in terms of its claim to be
‘law’, is one of ‘duty’ rather than ‘aspiration’.
 This relates partly to a view of the basic function
of law.
 It is implicit in Fuller’s analysis that it is not the
business of law to prescribe for excellence but
rather to ensure the minimum baseline from
which development towards excellence might
moved.
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 To express the point in somewhat different terms, law cannot
make people ‘good’ but rather establish a base for the
inhibition of ‘badness’ from which a good life may develop.
 This is rather minimalist moral analysis of the limits of the
moral questions which may be asked about law.
 Beyond the establishment of the base for a viable society, it
does not seem unreasonable to suggest that law may also
facilitate, or hinder, aspiration towards higher social
conditions, even accepting the validity of the distinction
between ‘aspiration’ and ‘duty’.
 This indeed figures prominently amongst the concerns of some
of the classical naturalist theories.
 The analysis of moral criteria and their relationship with law
advanced by Fuller is important in itself but also to a large extent
informs the nature of his general legal theory.
 Ultimately this goes to the root of the question which may be
raised upon the claim of the theory fully to fit into a naturalist
context.

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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.
 In his book, Morality of Law, published in 1963, 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.
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 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. The confusion that ensued caused the
fiasco to be abandoned.
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 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). The resentment of his
subjects was such that the plan had to be
abandoned.
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 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.

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 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.
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 Undeterred by this latter failure, 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.
 This was done, and it was made, for example, a
crime punishable by ten years’ imprisonment to
cough, sneeze, hiccup, faint or fall down in the
presence of the king.
 Failure to understand, believe in, and correctly
profess the doctrine of evolutionary,
democratic redemption was made treason.
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 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.
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 With time the number of amendments began to
diminish and public discontent to ease.
 But before this had happened Rex announced that he
was resuming the sole judicial role in the country: all
cases would be tried by himself. At first all went well.
His decisions indicated the principles that had guided
him, and those by which future issues would be
determined. At least a coherent body of law seemed
to be appearing. But with time, as the volumes of Rex’s
judgments were published, it became clear that there
was no link between Rex’s decisions and the provisions
of the code. Leading citizens met to discuss what
should be done but before any decision was reached
Rex died ‘old before his time and deeply
disillusioned with his subjects’.
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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
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 These qualities make up the ‘inner morality of

law’. The word ‘morality’ is misleading. The
word carries ethical connotations, yet none are
intended. 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.
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 Does Fuller’s view that a system of government that lacks

the ‘inner morality of law’ can command no allegiance
from a citizen mean that Fuller is to be regarded as a
natural lawyer? In one sense Fuller stands outside the
natural law camp. Imagine a law that required all children
of ten who were left-handed to be executed. To a natural
lawyer the law would, being in conflict with a code higher
than man-made decrees, be void. Yet the law would not
conflict with any of the Fuller requirements: the law would
display the inner morality of law. So for Fuller the law
would, we must presume, be valid. In this sense Fuller
stands as a positivist. And yet the flavor of natural law
hangs about him. Consider this passage from his book:

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To me there is nothing shocking in saying that a dictatorship

which clothes itself with a tinsel of legal form can so far
depart from the morality of order, from the inner morality
of law itself, that it ceases to be a legal system. When a
system calling itself law is predicted upon a general disregard
by judges of the terms of the laws they purport to enforce,
when this system habitually cures its legal irregularities,
even the grossest, by retroactive statutes, when it has only
to resort to forays of terror in the streets, which no one dares
challenge, in order to escape even those scant restraints
imposed by the pretence of legality – when all these things
have become true of dictatorship, it is not hard for me, at
least, to deny to it the name of law.

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 Here and elsewhere in his writing we gain 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, Fuller’s
thinking can fairly be regarded as forming a strand in
the natural law tradition.
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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’.
 In other words, such a legal system would
command obedience with moral
justification.
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 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.
 The argument is unfortunate because it does, of course,
claim too much. 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.
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 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.
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Substantive Natural Law: John Finnis
 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.
Finnis has almost single-handedly tried to resurrect the
natural law tradition in moral philosophy and law since the
mid 1960s.
 Since the 1980s he has had several more companions, some
of whom teach in elite schools in the USA. 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.
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Finnis’ Defence 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.
a. 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.
b. Natural law does not entail the view that law is
not law if it contradicts morality.
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 In his book, Natural Law and Natural Rights, Finnis
seeks to distance his own position and that of his
philosophical predecessors from these much-vaunted
criticisms.
 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.
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 To the extent that the empiricists’ and also

positivists’ criticism of some natural lawyers
might be right, he states that there is no
inference from fact to value. Therefore 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.
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 As stated above, there is a strong affinity
between Finnis’ view of natural law and that of
Aquinas.
 However, the major difference 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. Finnis 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.
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 Finnis’ process of reasoning is to address any individual

with the question, ‘X is good, don’t you think?’ He
maintains that it is because of the consistency of these
basic values of human nature that one gets one’s
ability sympathetically, though not uncritically, to see
the point of actions, life-styles, characters and
cultures that one would not choose for oneself.
 This argument about consistency of human nature is
a compelling one. Often we refer to the writings of
Shakespeare whose observations about humanity are as
relevant today as they were when he was writing. Finnis
can certainly say with justification, that, as a speculative
truth, human nature seems remarkably constant.
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 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.
 We need to exercise practical reason (he takes
this term from Aristotle) to obtain that good at
any one time. Based on the consistent
behaviour of human kind he isolates what he
calls seven "basic goods" in life, goods that are
fundamental, underived from other goods and
irreducible to other things that are the
motivation and goal of action.
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 Finnis’ seven basic goods are generally the
following:
a. Life, meaning not merly existence but also the
capacity for development of potential. Within
the category of life and its preservation Finnis
includes procreation.
b. Knowledge, not only as a means to an end but
as a good in its own right which improves life
quality.
c. Play, in essence the capacity for recreational
experience and enjoyment.
d. 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.
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e. 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.
f. Practical reasonableness, essentially the capacity
to shape one’s conduct and attitude according to some
‘intelligent and reasonable’ thought process.
g. 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.
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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.’ The
student may be tempted to view life as a necessary material
pre-condition to all of the others. One cannot play football
or study law if s/he is a corpse. However, Finnis, with his
emphasis on life as being a good rather than an empirical
necessity, forestalls this criticism. The value of life is
nothing without the other goods in some measure. Simply,
the student must ask him/her self: ‘Do I believe that any of
these seven goods is intrinsically good?’
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 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.
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 POSITIVISM

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 Introduction
 Positivism, also known as analytical
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. Thus, law is essentially
posited, that is created by human beings…be it
the individual sovereign or the state as an
organized group of human persons. This
works for Hart, Austin, Raz or Coleman. The
second point is that they sharply separate law
and morality, and that legal rules do not derive
their legitimacy from universal moral principles.
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 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
analytical, 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.
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 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.
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 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. For example,
some judges may not want to allow a landlord to
evict an elderly and sick woman in the middle of
muddy Kiremt, even if the law requires such
action when rent is overdue. However,
positivism requires judges to decide cases in
accordance with the law.
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 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 above introduction is, of course, a
general approach to the ideas of the
positivist school of jurisprudence.
 John Austin (together with Hume &
Bentham), H L A Hart, and Hans Kelsen
are the main positivists.
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 1. The Command Theory: John Austin’s Positivism
Introduction
 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 Analytical 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.
 David Hume, Jermy Bentham, and John Austin are known
in this camp.
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 2. Influence of David Hume (1711-1776 )
 The exact nature of the influence of David Hume on
European philosophy has always been controversial, but
there is a hard core which is undisputed. Our concern here
is limited to the themes which are relevant to legal theory,
in particular the rise of positivism and the eclipse of
natural law.
 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. In carrying out this purpose, Hume
inadvertently did much to establish the conceptual
framework within which the transformation of every
discipline into a rigorous science would be undertaken.
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 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. This is the philosophical source of
the separation thesis in jurisprudence for it gives the
positivists the tool to attack natural law principle (ought
principle) which usually blends facts and values.
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 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.
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 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.
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 The implications of Hume’s austere

proposals, when drawn out, would
transform the very idea of law. Do you see
any similarity between Hume’s idea and
Kelsen’s criticism against natural law? 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.
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 3. Jeremy Bentham (1748-1832)

 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. Bentham had many specific
complaints about common law theory and its
practice. 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.
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 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.
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 As we have seen, the exact meaning of this
‘separation thesis’ has become deeply
controversial. 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. What he found
obstructing this project of clarification was the
blurring of the boundary between legal reality
and value judgment.
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 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.

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 Remember that 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.

As a Utilitarian, putting yourself in Bentham’s place, would you allow cloning?

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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.
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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 analytical separation of law and
morality.
 Such a strategy would in no way imply that moral
questions were unimportant. Indeed, the
separation would make clear the independent
character of legal and moral arguments and the
special validity and importance of each.
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 Con’d…
 So Austin's lecture begins by asserting that the
subject-matter of jurisprudence, as he
understands it, as 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’s view of law recognizes it not as
something evolved or immanent in community
life, as in the implicit common law conception,
but as an imposition of power.
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 The lectures then embark on a rather tedious

classification of law, some of which, however, is
of the greatest importance in understanding key
points of Austin’s legal theory.
 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.
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 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.
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 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. This seems to cover
many rules which lawyers would not usually regard as law,
although Austin has no doubt that the term ‘law’ can be
used here ‘with absolute precision or propriety’.
 Since he uses the word ‘power’ in a general sense, it seems
to include the capacity of any authority figures – for
example, priests or religious leaders, employers, teachers,
parents, guardians or political orators – to control or
influence the actions of followers, dependents or those in
their charge. 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.
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 As morality it is distinguished from positive
law; and it is positive because it is laid down by
human beings for human beings.
 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.
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 Finally, for completeness, he 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 are not laid down as laws.
Austin calls them ‘metaphorical laws.’ We can say,
therefore, that for Austin:
i. The term ‘law’ is often improperly applied to rules or
regularities that are in no strict sense ‘legal’; but
ii. 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.
iii. On the other hand, only positive law is the appropriate
concern of jurisprudence, which is backed and enforced
by the state.
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 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.

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A. 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.)
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ii. Society must obey the sovereign: The society must be in
‘the habit of obedience’. If obedience is ‘rare or transient
and not habitual or permanent’ the relationship of
sovereignty and subjection is not created and no sovereign
exists. (But isolated acts of disobedience will not preclude the
exercise of sovereignty.)
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).’ For example, if a part of society gives
obedience to one body/king and another part to another body,
and if each society is in the habit of obeying only its own
king, then the given society is simply or absolutely in a state
of nature or anarchy.
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iv. Sovereignty 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. How? Maybe someone who came to the
throne through blood from the former king, or
someone elected by the people.

For Thomas Hobbes, the sovereign is subject to no

one. It is supreme beyond any law.
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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.
 For example, a regional prince may be superior
to the people he governs. But he is yet not really
superior within his province, nor are he and his
society an independent society. 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.
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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.’
 One may ask what about his position in relation
to the constitution? May a body be sovereign yet
subject to the constitutional law? Austin
answers, no. 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.
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B. 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. It is the
element of command that is crucial to Austin's thinking, and the
concept of law expressed by Austin is described as ‘the
command theory’ or ‘the imperative theory’ of law.
 Like Hobbes, Austin defines a law as a kind of command. 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. Remember again that sssare not laws or
commands in the Austinian sense of the word.
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 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.
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C. Sanction
 Austin’s view of law is also reflected clearly in the emphasis
he attaches to punitive sanctions in the structure of a law.
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.
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 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. For example,
most of the rules in the civil code are without sanction and
hence, according to Austin, they are no laws. This is one of the
reasons for his criticism.
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 The Separation Thesis

“The existence of law is one

thing, its merit or demerit is
another...” Austin

 Austin is the first serious thinker in the positivism school

of jurisprudence. He was strongly influenced by Hume and
Bentham.

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 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. For example, as we have discussed before, in
the middle ages the view took a form of a belief that if a
man-made law conflicted with the law of God7 then
the law was not a valid law. 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.
 7 Look, for example, our discussion on the Christianity,
ideas of St. Augustine and St. Thomas Aquinas.

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 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. Thus, 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:
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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.

 Austin has no problem with making the enquiries. But it should

not go beyond that; simple comparison. This means, 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.
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 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.
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 Con’d…
 Take , for example, the issue of abortion or homosexuality.
Both are contrary to morality and God’s laws since in most
religious scriptures (at least the Bible and the Koran) these
acts are sins. When you think of an ‘Ought’, you must think
as a natural law theorist. If you are to obey the law it ought
to be in conformity with the higher laws, such as
morality or divine laws (the Bible or the Koran.)
 As a positivist, however, what comes to your mind first is
whether the law is (means actually exists). You will not
consider whether it should have been conforming to a
higher law or not. Thus, if a government legalizes abortion
or homosexuality, the natural law believer will not
recognize it, as the new law doesn’t conform to his ideals
(for him what the law ought to be was prohibiting these
acts). But for a positivist, the problem is simple. If the
sovereign says so, then let it be.
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Reminder
Please read ‘the dilemma of the child’ in the
beginning of the previous chapter, on natural
law theory, and consider the position of the
child and his father. This is the dilemma of
today’s world, too.

 Therefore, for a positivist, the subject matter of

jurisprudence is positive law.
 The scientific investigation and analysis of law must
revolve around or concentrate on the positive law, law
created by sovereign power.

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 Criticism on Austin
 HLA Hart’s critiques on Austin includes;
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.(there are many types of laws that do not
resemble orders backed by threats , like valid contracts,
wills or marriages)
ii. The range of application of law is not the same as the
range of application of an order backed by a threat. (as
a law-maker can be bound by his own law)
iii. The mode of origin of law is different from the mode
of origin of an order backed by a threat.(laws can be
created by other bodies outside the law maker like
customary law, common law, administrative law)
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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.
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 What Hart in short means is that law should not be
based on one particular body. It rather must be a
system that gives uninterrupted continuity. What is
in fact found in any legal system is the existence of rules
which secure the uninterrupted transition of power
from one law-maker to the next.
 These rules regulate the succession in advance,
naming or specifying in general terms the
qualifications of and mode of determining the law
giver. In short, Austinian laws lack institutional
strength. Look for example at the Ethiopian Civil
Code, which even after 40 years still continues to be
obeyed.
 Change of the sovereign doesn’t change its
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 Con’d…
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.
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 Austin’s Analysis of Laws
 See the chart (Significance of
desire)
Requests/
Admonitions
Commands

Orders
Laws
Laws not
properly Laws by
Laws so called analogy
properly
so called
God Laws by
Laws Metaphor
Human Laws not
Laws Strictly so
Laws set by men as
called
political superiors to
Laws political inferiors
strictly Laws set by men in
so called pursuance of political
rights
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 Pure Theory of Law: Hans Kelsen
Kelsen is most famous for his studies
on law and especially for his idea
known as the pure theory of the law.
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.

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Pure Theory of Law

 Kelsen 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, Kelsen suggested
a ‘pure’ theory of law which would avoid
contamination of any kind.
 Jurisprudence, Kelsen propounded,
“characterizes itself as a ‘pure’ theory of law
because it aims at cognition focused on the
law alone” and this purity serves as its “basic
methodological principle.”
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 Con’d…
A. The Basic Norm (Grundnorm)
 The law, according to Kelsen, is a system of norms. Norms
are ‘ought’ statements, prescribing certain modes of
conduct.
 Unlike moral norms, however, Kelsen maintained that
legal norms are created by acts of will. They are products
of deliberate human action.
 For instance, some people gather in a hall, speak, raise their
hands, count them, and promulgate a string of words. These
are actions and events taking place at a specific time and
space. To say that what we have described here is the
enactment of a law, is to interpret these actions and
events by ascribing a normative significance to them.
Kelsen, however, firmly believed in Hume's distinction
between ‘is’ and ‘ought’, and in the impossibility of
deriving ‘ought’ conclusions from factual premises alone.
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 Con’d…
 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.
 How is it possible, then, to ascribe an ‘ought’ to those
actions and events which purport to create legal norms?
 Kelsen's reply is enchantingly simple: we ascribe a legal
ought to such norm-creating acts by, ultimately,
presupposing it. Since ‘ought’ cannot be derived from ‘is’,
and since legal norms are essentially ‘ought’ statements,
there must be some kind of an ‘ought’ presupposition at the
background, rendering the normativity of law intelligible.
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 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.
 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.
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 Con’d…
 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 improvable
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.
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Con’d…

 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.
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 Con’d…
 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.
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 Con’d…

Kelsen’s Grundnorm as the top of the Pyramid

GN

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 Con’d…
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 rule of recognition, like the basic norm, is the linchpin which
gives the system unity, and every other rule must be referred to it. 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 metre bar in Paris is
correct.
 Legal validity is measured against this basic rule of law; it cannot be
measured against itself.
Departement of Law, College of Resource
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 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.
5/12/2024
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 Con’d…
Hart’s Concept of Rules
 Having rejected the command theory of
Austin, 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.
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 CON’D…
A. Social Habits vs. Social Rules
 An example of a social habit might be the habit of a group to go
to the cinema on Saturday evening. Habits are not rules. If
some people in the group do not go to the cinema on Saturday
evenings, this will not be regarded as a fault, nor render them
liable to criticism.
 When a group have a particular habit, although this may be
observable by an outsider, no member of the group may be
conscious of the habit – either that he is in the habit of going to
the cinema on Saturday evening, or that others in the group do
not in any way consciously strive to see that the habit is
maintained. 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.
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Con’d…

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 Hare
as the external aspect of the rule.
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 Con’d…
 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.
 Suppose that an observer watches the behavior of a certain
group, for example, suppose that he watches traffic approaching
traffic lights, and records everything that happens. After a while
he concluded that red sign is for stop. But he may not know the
reasons immediately. But this way of looking at the matter is very
different from that of the people in the cars approaching the
lights. For them it is a simple rule. Whenever it turns red they
stop. The observer was looking at the rule from an external point
of view. The person in the car looks at the rule from an internal
point of view. Since social habits are observable by an outsider,
but the group is not aware of them, they have an external aspect,
but not an internal one. Social rules have both an external and
internal aspect. Remember, for example, the rule of the taking
off of the hat inside a church. It can not only be observable by
outsiders but also felt by the members.
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 Con’d…

 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.

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 Con’d…
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.
 Rules of this second kind 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.

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 Con’d…
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 therefore 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 the case of both (i) and (ii), 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).
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 Con’d…
D. Primary and Secondary rules
 Third, the crucial distinction is drawn between different
types of legal rules, which Hart calls primary and
secondary.
 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). These are
standards of conduct set for citizens.
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 Con’d…
 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. However, such rules serve
only a small number of people and one that has close tribal relations. In other
words, primary rules no longer serve a modern society. A modern legal
system must comprise more than this; it must also include what Hart called
secondary rules, the function of which is exclusively addressed to the status
of the primary rules. 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. Why? How?

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 Con’d…
The function of secondary rules
 It is possible to imagine a society which does not have a
legislature, courts or officials of any kind. Many societies of this
kind have in fact existed, and have been described in detail. In
this kind of society, the only means of social control is the
attitude of the group towards behavior that it will accept as
permissible. 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:
1. In view of human nature, the primary rules must include rules
which contain restrictions on violence, theft, and deception.
2. Although there may be a minority who reject the rules, the
majority must accept them.
3. The society must be a small one, with close ties of kinship,
common sentiments and beliefs.
4. The society must live in a stable environment.
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 Con’d…
 If either of the last two conditions were not satisfied, the society could
not continue to exist by means of such a simple system of social
control. In other words, 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.
1) 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).
2) There would be no means of altering the rules according to changing
circumstances. The rules would be static.
3) 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.
4) 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: punishment inflicted by individuals might
lead to vendettas.

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 Con’d…

 All these defects can be rectified by supplementing

primary rules by other rules of different kind, rules
already referred to as secondary rules.
 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.
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 Con’d…

 Thus, in effect, 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 are many ways in which this can be
achieved
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 Con’d…

 For example it may become accepted that the rules are as

written in some text (e.g. statute). Or the secondary rule
may be that a primary rule is to become a rule of group if it
is enacted by a certain body (e.g. parliament) or it is
decreed by a judge.
 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.

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 Con’d…

2) The other defect (in society having only primary rules)

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.
 There may be a closed relation between rules of
recognition and rules of change. For example, it may be a
rule of change that the king can change the law. It may be a
rule of recognition that what is enacted by the king is the
law.

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 Con’d…

 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.But what you shall remember is that rules that
confer power to a judge are rules of recognition
 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 structure made up of the combination of primary rules and
secondary rules of recognition, change and adjudication, and
sanction imposing rules make up the heart of a legal system.
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 CON’D…

Things Social Habits Have an external Aspects only

That
influence
Human
Social Rules
Conventions
Have internal
& external aspects Moral Obligations
Obligations

Primary rules
Laws
Secondary rules

Rules of Recognition Constituents

Rules of Change of a
Rules of Adjudication Legal
Sanction-imposing rules System
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 Con’d…
The Rule of Recognition
 The most fundamental of these secondary rules is what
Hart calls ‘the rule of recognition’. This is the rule to
which the authority of all the primary rules is referred.
Dworkin in his book Taking Rights Seriously (Third Indian
Reprint, 2005).
Primitive communities have only primary rules, and these are
binding entirely because of practices of acceptance. Such
communities cannot be said to have ‘law,’ because there is no
way to distinguish a set of legal rules from amongst other
social rules, as the first tenet of positivism requires. But when
a particular community has developed a fundamental
secondary rule that stipulates how legal rules are to be
identified, the idea of a distinct set of rules, and thus of law, is
born.
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Con’d…

Hart calls such a fundamental secondary rule a ‘rule of

recognition’. 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. Thus a parking ordinance of a city of New
Heaven is valid because it is adopted by a city council, pursuant
to the procedures and within the competence specified by the
municipal law adopted by the state of Connecticut, in
conformity with the procedures and within the competence
specified by the constitution of the state of Connecticut, which
was in turn adopted consistently with the requirement of the
United States Constitution.
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Con’d…

Of course, 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.
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 Con’d…

E. Hart and legal positivism

 We have to be clear about the sense in which Hart was a
legal positivist. 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, as we have seen, 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.

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 Con’d…

 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.
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 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.
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 Con’d…

 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.
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 Con’d…
 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.
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 Con’d…

 Dworkinn gives an example of a legal principle in the

case of Riggs v Palmer, in which a New York court had
to decide whether a murderer could inherit under the
will of the grandfather he had murdered. The court
held that the relevant statutes literally gave the
property of the deceased to the murderer. But then the
court reasoned:

…all laws as well as all contracts may be controlled in their

operation and effect by general, fundamental maxims of
the common law. No one shall be permitted to profit by his
own fraud, or to take advantage of his own wrong, or to
found any claim upon his own iniquity, or to acquire
property by his own crime.
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 Con’d…
 As a result the court denies the murdered his inheritance. Such,
kind of grounds are, according to Dworkin, principles to which
the courts may stretch their hands in the absence of the legal
rules emphasized by positivists like Hart. Yet positivists deny the
existence of such kinds of laws. The most interesting, and from a
Positivist perspective, most problematic, aspect of legal
principles, however, consists in their moral dimension.
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. Why is that? Because a legal principle exists, according to
Dworkin, if the principle follows from the best moral and
political interpretation of past judicial and legislative decisions
in the relevant domain. In other words, legal principles occupy
an intermediary space between legal rules and moral principles.
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 Con’d…

 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.’ (Law's Empire, at p. 225)
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Con’d…

 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
principles.
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 Con’d…

 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.
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 Con’d…

 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.
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 Con’d…

 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.
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 Con’d…

 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.

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 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.
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 Con’d…

 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.
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 Con’d…

 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.
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 Con’d…
 Some legal theories, however, do insist on the
subjectivity of moral judgments, 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.
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 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.
 A particular interest in this section is the famous debate
made between Lord Devlin and H.L.A. Hart on the
issue of enforcement of morality, whether the law
should enforce morality or not.

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 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.
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 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.

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 Con’d…
 In short, 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.
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 Con’d…

 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.
 But what is private or public morality in this
sense?
 This is a question that must be answered. Does
private mean here ‘out of public view’, or does
it mean that it is the individuals business?
Are privacy and publicness separate? What is
harm?
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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.
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 This is, as one might recall from the reading of Mill,

called 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.

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 Con’d…
 These two points are easy to conflate, under the
heading of a single ‘no-harm’ principle, but they
need to be kept distinct.
 According to the first point, if there is no threat to
others, there is no justification for legal
intervention.
 According to the second point, if the action is
only a threat to the agent, there is no
justification.
 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.
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 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).
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 Con’d…

 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 theDepartement
victim of Law,to be
College used as a defense.
of Resource
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 Con’d…
 For example, consent of the victim is not a defense in a
murder charge. 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. Why? Because, according to Devlin, ‘it is an offence
against society….there are certain standards of
behaviour 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’.
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 Con’d…

 His argument here is that if consent

between prostitutes and their clients, and
between adult homosexuals, is made the
basis of their legality, then consistency
will demand that all of these other acts are
legalized as well.
 This shows, 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.
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 Con’d…
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?
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 Con’d…
 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.

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 Con’d…
 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.
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Con’d…

 Now to enlarge his argument of ‘society is a

community of ideas’, Devlin says:

Each one of us has ideas about what is good and what is evil;
they cannot be kept private from the society which we live. If
men and women try to create a society in which there is no
fundamental agreement about good and evil they will fail; if,
having based it on common agreement, the agreement goes,
the society will disintegrate. For society is not something that
is kept together physically; it is held by the invisible bonds of
common thought. If the bonds were too far relaxed the
members would drift apart. A common morality is part of the
bondage. The bondage is part of the price of society; and
mankind, which needs society, must pay its price.
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Con’d…

 b) In the above we have seen the existence of public

morality and that society has the right to judge
morality. 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.
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 Con’d…
 But what is the rationale behind? In other words, 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. Historically, the fracture of common morality
is the first stage of disintegration of a society. Thus, the
suppression of vice (immoral acts) is as much the law’s business
as the suppression of subversive activities. 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.’
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 Con’d…

 c) In what circumstances should the state exercise its

power is the third of the framed questions. Now this is a
tough question. 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?

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Con’d…

 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.´

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Con’d…

One point which should be noted is that

this argument seeks to establish a
conclusion diametrically opposed to that
of Mill. Where Mill argued that there was
an empirical link between a healthy and
enduring society and allowance of
maximum freedom to individuals in
choice of moral principles and lifestyle,
Devlin argues that it is a necessary truth
that without individual conformity with
the consensus, society will collapse.
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 Con’d…
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. What are they?
i. 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. Now,
you may ask: when will an action be beyond tolerance. Devlin
puts three kinds of feelings that can lead us to the conclusion:
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. It is nevertheless a vague and highly
subjective standard that he is proposing, which opens the door to
the perpetuation of popular prejudice as the guiding force
behind the use of the criminal law.
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 Con’d…

ii. 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.
iii. 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.

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 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 behaviour which should be no
business of the criminal law.
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 Con’d…
 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.
The particular example he has in mind here is the prohibition of the
sale and use of hard drugs, which is justified on paternalistic grounds.
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
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 Con’d…
 With this modified version of Mill’s defense of individual
liberty to hand, Hart was able to confront Devlin’s arguments
on more solid ground.
 One of his 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 behaviour 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.
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 Con’d…
 With this distinction now drawn clearly, however, it becomes a
question of whether Devlin’s other arguments are strong or not. 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. We can call it in our
own way as unity in diversity; don’t you agree?
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 Con’d…

 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.

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 Con’d…
 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."
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 Historical and Sociological Legal Theories

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 Introduction
 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 present unit will give a concise survey
of the legal theories of the historical school of the German Savigny
and English jurist Maine. 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,
behaviour, 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.
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Historical School
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.
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 Con’d…

 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 popular spirit is shown, for example, in
the various symbolic acts by which legal transactions are
solemnized. The origin of the popular spirit is veiled in
mysticism, and its crude beginnings are colored with
romanticism.
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 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.
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 In short, 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.
 What idea in Savigny’s theory still have value for our times
jurisprudence? His distinction between the ‘political’ and
‘technical’ elements in law is essentially the same to the modern
time thinkers like Cardozo. The principle also provides greater
latitude to Law professors in assisting technically the
development and improvement of law, which is common in
today’s world. It seems in today’s Ethiopia law faculties are given
such a chance in drafting and improving existing laws.
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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.
 Nineteenth century Germany may have fitted
the concept, but it is relatively rare to find
societies of which the same can be said.
 Some fundamentalist Muslim societies might
fit his model.
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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.
 England already had its own historical jurists in
Coke, who glorified the English common law as
at once the common custom of the realm and
the embodiment of reason.
 Moreover, Blackstone, whose theory that
judges only find in? The law is akin to the
popular-spirit idea of Savigny.
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 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 this may seem to be the Volksgeist garbed in a
scientific analogy, 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.

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 With regard to jurisprudence Maine’s 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.
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 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 99
 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 the was divinely inspired in
order to draw out the real mother who could rather have
her child live but away from her than die.
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 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.
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 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
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 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 n the
content of the principles.
 Criticism
 In a single sentence, we may evaluate Maine’s contribution to jurisprudence
by saying that while his conclusions have not been proved, his scientific and
empirical method was the forerunner of much modern jurisprudence and
sociology.

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 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.
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 Sociological School
Living Law: Eugen Ehrlich
 Eugen Ehrlich (Austro-Hungarian) is the leading jurist of
this school of thought. Unlike the Historical School that
conceives a nation’s law as tied to the primitive
consciousness 101
 of its people, Ehrlich’s sociological conception of law
located the law in the present-day institutions of its
society. In his book, Fundamental Principles of the
Sociology of Law, 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.
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 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:
This then is the living law in contradistinction to that which is
being enforced in the courts and other tribunals. The living law is
the law which dominates life itself even though it has not been
posited in legal propositions. The source of our knowledge of this
law is, first, the modern legal document; secondly, direct
observation of life, of commerce, of customs, and usages, and of
all associations, not only those that the law has recognized but
also of those that it has overlooked and passed by, indeed even of
those it has disapproved. (Patterson P. 79)
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 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. For
example, commercial usage and custom may develop and be
recognized and respected by courts of 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.
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 There were jurists in Europe by that time who believed

that people should be governed and administered by
the written-books.
 They needed to be reminded that law is only one
means of social control.
 Although, there are still critics against calling ‘law’
those living laws, Ehrlich’s conception of Living Law
was a useful rhetorical device to call attention to his
real contribution, the sociological method of inquiry
into the grounds for making and interpretation of law.
 In his other work he made a stern attack against the
traditional understanding of law and legal doctrine
was followed:
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For most lay people and for many lawyers it is

evident today that the main task of judicial
decision-making is to deduce the decisions in
the individual case from what the laws and
statutes say. There is so much which is not
evident from this evidence that it takes the
combined forces of the theory of knowledge,
legal history, logic, psychology and sociology
to find out where this assumption which
dominates all of the modern jurisprudence
comes from, what it means, how far it reaches
and where it leads to.
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 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.
 It was this gap between the law as it operated
and what legal doctrine said it was which
fascinated Ehrlich from his earliest works.
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 Ehrlich tried to show this 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.
 Examples, the rules followed in marriage or inheritance by the
people have nothing to do with the positive law. Not only that
but also that they originated a long time ago. 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. This approach of law has great
similarity with the present realism approach. From its
inception this approach has indeed impressed the American
Realists and especially Roscoe Pound, the American leader of
the Sociological school of law.
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Law in Action: Roscoe Pound
 Pound was the principal advocate of the sociological based
study of the law in the United States. His concern was to
examine law in action as opposed to the topic of law in
books. In a series of law review articles published between
1905 and 1923, Roscoe Pound of the Harvard Law School
discusses different issues pertaining to the sociological
concept of law. 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.
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• 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.
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 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.

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Legal Education
 Roscoe Pound, who ranks in America as the founder of
“sociological Jurisprudence” 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 behaviour of
judges or administrative authorities.

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 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:
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The modern teacher of law should be a student of

sociology, economics, and politics as well. He should
know not only what the court decide and the
principles by which they decide, but quite as much
the circumstance and conditions, social and
economic, to which these principles are to be
applied…..and the state of popular thought and
feeling which makes the environment in which the
principles must operate in practice. Legal monks who
pass their lives in an atmosphere of pure law, from
which every worldly and human element is excluded,
cannot shape practical principles to be applied to the
restless world of flesh and blood.
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 LEGAL REALISM

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 Introduction
 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.
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 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 legal realists were concerned with
portraying actual practice: the centrality of the court and
the unimportance of rules in statute books for predicting
what courts do. They sought to make law an empirical
science. Scandinavian legal realists wanted to expose and
eliminate the hidden basis of the law – the metaphysical
assumptions of orthodox legal thought – and to base law on
sociological and psychological facts. The difference is that
the Scandinavian realists were interested in the legal
system as a whole rather than the narrow area of interest of
the courts adopted by the Americans
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 American Realists
Pragmatist approach
 Oliver Wondel Holmes and John Chipman Gray are greatly
considered as the two mental fathers of the American Legal
Realism. Prominent are also other writers in this class of
philosophy. In this discussion, besides the two giants, we shall in
particular investigate the philosophical approaches of Karl
Llewellyn and Jerome Frank. 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?
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 At this juncture, it seems practical and relevant to raise

briefly the idea of pragmatism. 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.

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 In applying the doctrine to law, James anticipated the

realist skepticism of legal rules as controlling factors in
judicial decisions. He said:

Given previous law and a novel case the judge will twist them
into fresh law….All the while, however, we pretend that the
eternal is unrolling, that the one previous justice, grammar or
truth are simply fulgurating and not being made. But imagine a
youth in the courtroom trying cases with his abstract notion of
“the” law (or the censor of speech with his “mother-tongue,” a
professor with his Truth), and what progress do they make?
Truth , land and language fairly boil away from them at the least
touch of novel fact…. Far from being antecedent principles that
animate the process, law, language, truth are but abstract names
for results.
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 Pragmatism has, thus, stimulated a
new approach to law, that “of looking
towards last things, fruits,
consequences or results.
 Generally speaking, how the rule of law
works, not what they are on paper, is
the theme of pragmatic approach to
legal problems

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 Law as prophesy of the court: Oliver W. Holmes
 Tip

• 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

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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.
 Concerning his contribution, Patterson has (in his
book, Jurisprudence, Men and Idea of Law) remarked
that the aggregation of ideas which came in time to be
known as American Legal Realism contained many
which were either genuinely derived from Holmes or
were inspired by his ripped-out aphorism.
 For legal realism the two most influential Holmes’ ideas
were his prediction concept of law and his view that
policies and prejudices have more to do with judicial
decisions than the logical application of rules.

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 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.
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 In his celebrated essay, The Path of the Law, he provided
his most known realist concept of law: The prophesies of
what the court will do in fact, and nothing more
pretentious, are what I mean by the law. Let’s see more
from this essay.
Take the fundamental question, what constitutes the law? You
will find some text writers telling you that it is ….a system of
reason, that it is deduction from principles of ethics or admitted
axioms or what not, which may or may not coincide with the
decisions. But if we take the view of our friend the bad man we
shall find that he does not care two straws for the axioms or
deductions, but that he does want to know what the
Massachusetts or English court are likely to do in fact. I am
much of his mind. The prophesies of what the court will do in
fact, and nothing more pretentious, are what I mean by the law.
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 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.
The whole of Holmes’ idea of bad man prediction can be
better understood by reading attachment B. Although the
dialogues are perfectly fictitious, the case was what really
happened.
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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.

For my own part, I often doubt whether it would not be a gain if
every word of moral significance could be banished from the law
altogether, and other words adopted which should convey legal
ideas uncolored by anything outside the law. We should lose the
fossil records of a good deal of history and majesty got from
ethical associations, but by ridding ourselves of unnecessary
confusion we should gain very much in the clearness of thought.
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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:
i. This approach disregards the rules and laws
that establish the judiciary itself.
ii. 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.
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 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.
 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.

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 In his book, The Nature and Source of the Law, 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.

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 Legislation is therefore no more than a source of law. According

to his view, it is not a law until it had been interpreted by the
courts, for “the courts put life into the dead words of the
statutes.” Hence by relegating statutory legislation from the
center of the law and putting it as one form of source of the law,
he puts the judge in the center, instead. 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.
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 Accordingly, one may conclude that the Austinian sovereign

lies in the person of the judge. In his book he cited Bishop
Hoadley’s words which say: “Nay, whoever hath an absolute
authority to interpret any written or spoken laws, it is He
who is truly the Law Giver to all intents and purposes, and
not the person who first wrote and spoke them.” Carrying
his definition to its full logical extent, Gray concluded, “The
law of a great nation means the opinions of half-a dozen old
gentlemen,” for “if those half-a-dozen old gentlemen form
the highest judicial tribunal of a country, then no rule or
principle which they refuse to follow is Law in the country.”

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 Gray offers two lines of evidence in support of this

argument.
 First, he points to the common circumstances where a
situation before the court is entirely novel. In the absence
of statutes, precedents, or custom on the issue, there is
absolutely no doubt but that the court will still come to a
conclusion and state ‘the law’ governing the matter.
 Second, Gray points to the mutability of law itself through
judicial decision making. Both through review of trial court
decisions at the appellate level, and through appellate
reconsideration of its own prior decisions, the ‘law’
becomes very much a product of judicial function.

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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.
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5. Criticism
 As discussed above, 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.”

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 Another criticism observed by Patterson goes as follows. 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. A third
criticism provided by Michael Doherty is that 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.
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 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.

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 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. In fact, within the decade, Llewellyn
subsequently disagreed with himself, and suggested
that no definition of law has really proved adequate to
the task. 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 moulding 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.
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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 125
 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.
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 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.
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The first three jobs ensure society’s

survival and continuation, whilst the
latter two increase efficiency and
expectations. One may disagree with
Llewellyn’s list of the jobs of the law
but they do provide a more holistic
approach to law making and judicial
activity than others. You can also
compare the list with Fuller’ inner
morality of laws.
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 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.

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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.
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All of these did not being to Llewellyn,

but to all of the preceding realists we
discussed. For example, Gray’s theories
are readily evident under numbers 1
and 6 above; Holmes’ influence is
apparent in all nine, and in particular
in 2 and 8; Pound’s ideas are
particularly obvious in 1,2,3,5,6,and 8;
James’ influence is manifested in 2 and
8.
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 Fact Skepticism: Jerome Frank
A. On Rule skepticism
 Judge Jerome Frank categorizes the whole realist movement
into “rule skepticism” and “fact skepticism.” As shown above,
Llewellyn and others grouped under the former class, and Frank
himself in the latter. 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. He may pretend to do this, and his judgment may be
written in a way that suggests that he has done this. But it may
be that what has happened is that the judge has thought about
the matter, decided who he thinks has the best case, and then
gone to his law books to work out the chain of reasoning that
will lead to his predetermined conclusion.

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 Can you see to what extent the realists go? 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.
 Thus the main thrust of Frank’s attack was directed against
the idea that certainty could be achieved through legal
rules. This, in his view, was absurd. If it were so, he argued,
why would anyone bother to litigate? To strength his
argument he gave an example from the US Supreme Court
cases. In 1917 the court ruled the validity of a certain
statute.
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 But in 1923, by majority vote, the court ruled

that the statute was invalid. In between the two
years judges were changed. He said that the
answer to the validity of the statute turned, not
on the certainty of the applicable rule, but on
the personnel of the court. He said that this is
natural. We want the law to be certain. But this
cannot happen. It is only our deep need for
security and safety, like children who place
their trust in the wisdom of their fathers that
we want to rely on the law. We should, he
urged, grow up.
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B. On Fact Skepticism
But Frank expounded a theory more extreme than the
above approach. Judge Frank 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.

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 Hence, 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.
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 But why do the others fail to see that? Because the rule
skeptics see only the practice of the higher courts, the
appellate and supreme courts. 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.
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 Further, 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.
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 Justice

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 Introduction
 Justice concerns the proper ordering of things and persons
within a society. Usually, people use a simplistic division of
justice such as corrective justice, referring to the manner with
which society address or redress wrong and distributive justice,
concerned with how basic social resources are distributed
among members. These aspects of justice are treated in detail
by many courses in law and other disciplines like economics. In
jurisprudence, we are concerned with how society can
cooperate for the interest of all and how the fundamental
institutions of such cooperation can be just or founded up on
principles of justice.
 The issues are broadly analyzed so that they apply to every
situation in which they arise; for example, chapter ten
(equality) has similar approach. In addition, we are also
concerned with the fundamental concept of justice behind the
two aspects. As a concept, it has been the subject of
philosophical, legal, and theological reflection and debate
throughout history
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 A number of important questions surrounding justice

have been fiercely debated over the course of western
history:
 What is justice? What does it demand of individuals
and societies? What are liberty and equality? Why are
they principles of justice? What is the proper
distribution of rights, duties, opportunity, wealth and
resources in society: equal, meritocratic, according to
status, or some other arrangement?
 There is a myriad of possible answers to these
questions from divergent perspectives on the political
and philosophical spectrum.

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John Rawls: Justice as Fairness
Q. What is justice? What are the principles of justice? What circumstances
give rise to the question of justice? What is 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.
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 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. He acknowledges that this is much more
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 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.
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 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.

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 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 (again, there is more discussion in the
chapter on Equality).
 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.

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 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. In addition, the question of justice does not arise
among the community of saints but only between self-interested
people. The parties in the contract treat each other in farness, as
reasonable person averting any risk since it means treating others as
one wants to be treated. The contract affects not only those
participating in it but also those affected by it or those benefiting
from the practice. Consequently, the contract involves future
generations and the parties will be saving, as they are self-interested
on family basis too. Once the two principles are selected out of
various alternatives, all the basic institutions of the community will
be found upon them and such system is considered as just and the
result as fair. There will be more discussion on the two principles, in
chapter nine and ten. In the mean time, the Canadian philosopher,
Kymlicka, most notable for his works on communitarianism,
identifies a major gap (unaddressed issue) in Rawls’ theory in the
following section.
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Will Kymlicka: Justice and Minority Rights
Q. What are group specific rights? What is the best mechanism to
accommodate and protect these 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. For example, a recent
government publication in Canada noted that:
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In the Canadian experience, it has not been enough

to protect only universal individual rights. Here, the
Constitution and ordinary laws also protect other
rights accorded to individuals as members of
certain communities. This accommodation of both
types of rights makes our constitution unique and
reflects the Canadian value of equality that
accommodates difference. The fact that community
rights exist alongside individual rights goes to the
very heart of what Canada is all about.
(Government of Canada 199 1 a: 3)

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 Such a combination exists in many other federal

systems in Europe, Asia, and Africa. Even the
constitution of the United States, which is often
seen as a paradigm of individualism, allows for
various group-specific rights, including the
special status of American Indians and Puerto
Ricans. There are at least three forms of group-
specific rights:
(1) self-government rights;
(2) polyethnic rights; and
(3) special representation rights.
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