Austin anticipated more than mere threats backed by sanctions he wanted universal education so that the populace would recognise the expediency of a Government and know the principles that guided its rational exercise of power but he simultaneously recognised that Government do in fact rely on irrational habitual compliance by the populace.
Austin elaborating a rule of men and not law is unconcerned with the issues of restraint on arbitrary power, concerns that are important in the modern world, where it was seen that positive morality was not enough to hold Hitler or other totalitarians.
Several criticisms have been levelled at Austin notably by Hart on the illimitability of the sovereign, sovereign succession, the continuity of valid law, the location of the sovereign in the modern state, the negation of international law to positive morality. I chose not to deal with these criticisms as I feel that if Austin’s theory is analysed in its fullest sense which Cottrell does in fact do, then to a certain extent those criticisms do become void. There is in fact one criticism by Hart that I am concerned with because it highlights the deficiencies of the imperative nature of Austin’s theory.
Hart believed it was implausible to attach a sanction to power-conferring rules, because they are facilitative rather than duty-imposing. Even if it is accepted that the smallest inconvenience can be a sanction because the ‘smallest chance’ of the ‘smallest evil’ warrants an extensive range of sanctions, a problem still remains. If all laws are sanction based ho w is it then possible to distinguish between the congestion charge and a parking fine? Austin’s theory does not allow for the explication of the different types of law that exist and their corresponding social utility. In failing to do so it ignores the social domain of law and thus largely it’s function.
Austin’s positivism also fails significantly because it offers only compulsion due to fear as a reason for obeying the law which is an overly simplistic way of viewing the effect of sanctions
The sanction theory is not wrong in terms of ordering behaviour around sanction consequences as a practical tool that can work…but only to a point. Faced with the threat of a sanction there are two available options 1) comply with the demand and therefore avoid the threat, or merely 2) avoid the threat. Austin’s theory presupposes that option no.1) will always apply, why? It may be a realistic alternative to not obey the demand but still avoid the sanction, if no more than fear is your compulsion then what else will make you obey the command. Consequently sanctions will not definitely induce conformity rather it is better to order peoples behaviour around something which they can adhere to.
Austin provided a bare minimum of what is actually needed for a legal system to work, one ultimate authorising body and the ability to achieve compliance but more is needed, can Kelsen fill the gaps or will it be left to Hart to amend his deficiencies?………
Kelsen is an altogether different proposition from Austin because his project is conceptual. His pure theory of law is not concerned with reflecting the reality of actual legal systems only in constructing concepts which allow us to interpret what the law is, but their theories are obviously similar in their imperative nature.
When the administrative organ within a legal system applies general norms to a particular case, the individual norm created constitutes the ‘law’.
Law for Kelsen is an order of human behaviour; he says that it designates a specific technique of social organisation. This technique is essentially one of coercion, by the systematic use of sanctions, applied by officials authorised by the legal order. Kelsen develops the concept of law as essentially the idea of sanctions and officials. Thus a legal norm becomes an ought proposition directed at the officials to apply a sanction in certain circumstances. Consequently citizens for Kelsen cannot break the law they can only commit delicts, which is fulfilling the condition for the application of a sanction by an official, so law is just a set of norms that take the form of directions to officials to apply sanctions.
Legal norms are those for Kelsen which prescribe sanctions. For Kelsen validity comes not from a Sovereign body but from the fact that another legal norm of a higher rank has authorised it although there needs to be a minimum of effectiveness. Minimum effectiveness has been achieved if there is a sufficient standard of adherence to the Grundnorm. The Grundnorm is the ultimate source for the validity of all the other norms belonging to the same legal order. Thus the Grundnorm replaces the Sovereign which can be seen as advancement because we are no longer concerned with deriving validity from individuals.
For Kelsen because the rule of law is integral, the state is not a body which has elevated status above the individuals which make use of it for Kelsen the state is no more the totality of a norm with in a hierarchy. The state is subject to the law and not the other way around as Austin would have it because of the Rule of law. Thus where the possibility of autocratic domination lurked with Austin’s illimitable Sovereign there is no possibility for this with Kelsen, Kelsen therefore addresses modern concerns.
The Grundnorm is Kelsen’s theoretical construct, made for the purpose of portraying the unity of the legal system, the fact that all norms trace their validity back to just one source and must do if they are to be considered part of the legal system. Legal norms derive their validity from other legal norms this process of attributing validity must come to an end at some point the Grundnorm is that point. Many criticisms have been levelled at Kelsen stemming from the implausibility of the Grundnorm , the implications of his theory on international law, and his negation of justice in his theory and it’s too narrowly defined scope of material, although some would say that was the point .I am however concerned with one related criticism.
Because Kelsen has translated every law into an authorisation to impose a sanction in the event of a non-action by a citizen, his reductionism, simplification becomes a misrepresentation. It becomes non-sensical to describe the civil law in such a way.
Kelsen has also been slighted for apparently confusing coercion and obligation. The central presence of coercion in his theory suggests that the effectiveness of law is derived solely from sanctions and force, an apparatus of compulsion. When in reality we are able to attach a measure of coercion to a rule only because the community considers the rule as obligatory in its nature not just because it is related to sanction. Clearly Kelsen has taken a reductionist approach in his determination not to adulterate the pure theory, so it should not really be expected that Kelsen could answer the question: what other elements are involved in acceptance of law other than the fear of sanction? Can Hart provide an answer?
Hart’s project can in my view be seen as a better one because its very nature in my opinion is better equipped to find a basis for defining the concept of law. Hart is responding to the idea that when studying social institutions, like law, a theory which takes in to account or helps to explain the way participants understand the institution or practices is better than one which does not .
Hart’s argument is that whatever advantage a scientific approach might have it is simply not sufficient enough for a full understanding of law as a social institution, set up to achieve certain human goals. It is not possible to understand purposive behaviour and normative rule following behaviour without leaving the role of the spectator and tries to understand the perception of the people who are following the rules. As opposed to an Austinian method of reducing normativity in law to mere empiricism.
Hart calls for a hermeneutic method of study which involves portraying rule governed behaviour as it appears to its participants.
Hart endeavours to achieve this form of study through a study of linguistics in the tradition of Ludwig Wittgenstein and J.L Austin. Words for Hart illuminate the social context in which they were used, statements constitute the social reality. Also central to Hart’s theory is the significance of rules to protect, ‘persons, property and promises’. It is the combination of these two themes which allow Hart to solve the deficiencies of Austin and Kelsen earlier highlighted.
Against an imperative view that reduced all legal rules to a variation of some single type hart emphasised the multiplicity of law. He contrasted rules that imposed duties, primary with those that conferred power, secondary, be it on the officials or on the delegation of certain legal powers to citizens. The secondary rules include rules of change, rules of adjudication and the rule of recognition Rules of change are those that empower people to create new primary rules, rules of adjudication empower individuals to make authoritative determinants whether on a particular occasion a primary rule has been broken. The rule of recognition being the ultimate validating rule by which officials determine which rules are and are not part of the legal system. The two necessary conditions for a legal system are that the valid obligation rues are obeyed generally and that the officials have an internal attitude towards the rule of recognition. It is the union of the primary and secondary rules which constitute the ‘key to the science of jurisprudence’. The other significant tenet of the theory is that there is an internal aspect to rules which lies at the heart of its normativity.
Why is this an improvement from Hart and Austin’s model?
Firstly by acknowledging a multiplicity of laws Hart avoids reducing all laws to a simple formula too difficult to sustain as with Austin and Kelsen. Simultaneously then Hart can acknowledge the wide social functions of law
The imperative theories suggest that laws are to a certain extent meaningless if they do not have the threat of a sanction, they are only predictive and so do not take a normative explanatory approach. Neither Austin or Kelsen were able to provide the meaning of obligation, only oblige.
Hart is able to offer a remedy for this in his explication of the difference between a habit and a rule. Social habits have only an external, observable aspect to them and breach of habitual conduct will not result in fault attribution but a social rule has two aspects the external and the internal. The internal aspect consists in a critical reflective attitude. Thus a social rule as opposed to a habit involves a critical support for its significance and acceptance with in the group, it involves the word ‘ought’. A breach of a social rule becomes a matter for general concern and fault is attributed it .The internal aspect of a rule then makes sense of the fact that people can follow rules, law, whether or not they are followed by a sanction .
So then it follows that in a society as a bare minimum even if the citizens do not have an internal attitude toward the rules then the officials need to because they through the secondary rules police the primary rules.
However that does not mean that the positivism that Hart elucidates is perfect, there are critics to his project none more prominent than Ronald Dworkin. Dworkin rejects Hart’s project for a social fact theory of law because for him law is in fact an interpretive evaluative process. So to answer the question what is law, is to ask how is law used? That for Dworkin is the more relevant question, if law is merely rules then they run out in hard cases and something else must be in action. Dworkin thinks that the law/rules end at the beginning of uncertainty about shared meanings or understandings about the identification of law. And thus a rule theory is inadequate because it does not accommodate for this exercise of principle.
Another line of critics would be those of the American rule scepticism tradition who negate the relevance of rules as really representing what law is, rather rules are bent and manipulated by political considerations.
The validity of these arguments is negated somewhat by defence of Hart by his heir apparent Raz.
Whether Hart was right in all his propositions or whether they merely needed to be added to is debatable, but what is not is that through his hermeneutic enterprise he allowed positivism to reflect a reality that the imperative theories lacked due to their formalist empiricist approach., which is that law as a social institution is about ordering society in a way which facilitates permanent order maintenance, not submission until revolt.
