JURISPRUDENCE – UNIT II – THEORIES OF LAW

SASI K.G.

Professor Keeton said that an attempt to establish a satisfactory definition of law is to seek, to confine jurisprudence within a Straight Jacket from which it is continually trying to escape.

01. Austin’s Theory of Sovereignty and Law

Austin said that law is the aggregate of the rules set by men as political superior or sovereign to men as politically subject. In short, Law is the command of sovereign. It imposes a duty and duty is backed by a sanction. He further said that there exists three elements in law:

a. Command

b. Duty

c. Sanction

Austin’s Theory of Law or Imperative Theory of Law

As we know, according to Austin, there are three elements in law:

a. It is a type of command

b. It is laid down by a political superior

c. It is enforced by a sanction

He goes on to elaborate this theory. For him, Requests, wishes etc. are expressions of desire. Command is also an expression of desire which is given by a political superior to a political inferior. The relationship of superior and inferior consists in the power which the superior enjoys over the inferior because the superior has ability to punish the inferior for its disobedience.

He further said that there are certain commands that are laws and there are certain commands that are not laws. Commands that are laws are general in nature. Therefore, laws are general commands. Laws are like standing order in a military station which is to be obeyed by everybody.

He goes on to define who is a sovereign. According to him, Sovereign is a person or a body or persons whom a bulk of politically organized society habitually obeys and who does not himself habitually obey some other person or persons. Perfect obedience is not a requirement.

He further goes on to classify the types of laws:

1. Divine Law- Given by god to men

2. Human Law- Given by men to men

   a. Positive Laws- Statutory Laws

   b. Not Positive Laws- Non- Statutory Laws, Customs, Traditions etc.

Criticism of Austin’s Theory of Law

1. Laws before state- It is not necessary for the law to exist if the sovereign exists. There were societies prior to existence of sovereign and there were rules that were in prevalence. At that point of time, there was no political superior. Law had its origin in custom, religion and public opinion. All these so called ‘laws’ were later enforced by the political superior. Thus, the belief that sovereign is a requirement for law has received criticism by the Historical and Sociological School of Thought.

However, the above mentioned criticism is not supported by Salmond. Salmond said that the laws which were in existence prior to the existence of state were something like primitive substitutes of law and not law. They only resembled law. Salmond gave an example. He said that apes resemble human beings but it is not necessary to include apes if we define human beings.

2. Generality of Law- The laws are also particular in nature. Sometimes, a Law is applicable only to a particular domain. There are laws which are not universally applicable. Thus, laws are not always general in nature.

3. Promulgation- It is not necessary for the existence of the law that the subjects need to be communicated. But, Austin thought otherwise.

4. Law as Command- According to Austin, law is the command of the sovereign. But, all laws cannot be expressed as commands. Greater part of law in the system is not in the nature of command. There are customs, traditions, and unspoken practices etc. that are equally effective.

5. Sanction- The phrase ‘sanction’ might be correct for a Monarchical state. But for a Democratic state, laws exist not because of the force of the state but due to willing of the people. Hence, the phrase ‘sanction’ is not appropriate in such situations. Also, there exists no sanction in Civil Laws unlike Criminal Laws.

6. Not applicable to International Law- Austin’s definition is not applicable to International Law. International Law represents law between sovereigns. According to Austin, International Law is simply Positive Morality i.e. Soft Laws.

7. Not applicable to Constitutional Law- Constitutional Law defines powers of the various organs of the state. It comprises of various doctrines such as separation of power, division of power etc. Thus, no individual body of a state can act as sovereign or command itself. Therefore, it is not applicable to constitutional law.

8. Not applicable to Hindu Law or Mohameddan Law or Cannon Law- Personal Laws have their origin in religion, customs and traditions. Austin’s definition strictly excludes religion. Therefore, it is not applicable to personal laws.

9. Disregard of Ethical elements- The moment law is devoid of ethics, the law loses it colour and essence. Justice is considered an end of law or law is considered a means to achieve Justice. However, Austin’s theory is silent about this special relationship of Justice and Law. Salmond said that any definition of law which is without reference to justice is imperfect in nature. He further said ‘Law is not right alone, it is not might alone, it a perfect union of the two’ and Law is justice speaking to men by the voice of the State. According to Salmond, whatever Austin spoke about is ‘a law’ and not ‘the law’. By calling ‘the law’ we are referring to justice, social welfare and law in the abstract sense. Austin’s definition lacked this abstract sense. A perfect definition should include both ‘a law’ and ‘the law’.

10. Purpose of law ignored- One of basic purposes of Law is to promote Social Welfare. If we devoid law of ethics, the social welfare part is lost. Again, this part has been ignored by Austin.

 Merit in Austin’s Definition

Not everything is faulty about Austin’s theory of law. He gave a clear and simple definition of law because he has excluded ethics and religion from the ambit law. Thus, he gave a paramount truth that law is created and enforced by the state.

02. Salmond’s definition of law

Salmond defined law as the body of principles recognized and applied by the state in the administration of justice.

According to Salmond ‘Law may be defined as the body of principles recognized and applied by the state in the administration of justice’. In other words, law consists of rules recognized and acted upon by the Courts of Justice.

Salmond believed that law may arise out of popular practices and its legal character becomes patent when it is recognized and applied by a Court in the Administration of Justice. Courts may misconstrue a statute or reject a custom; it is only the Ruling of the Court that has the Binding Force of Law.

He further said that laws are laws because courts enforce them. He drew a lot of emphasis on Administration of Justice by the Courts. He was of firm belief that the true test of law is enforceability in the courts of law.

Thus, we see that Salmond has defined law in the abstract sense. His definition brings out the ethical purpose of law. In his definition, law is merely an instrument of Justice.

Criticism by Vinogradoff

Vinogradoff heavily criticized Salmond’s definition. He said that the definition of law with reference to Administration of Justice inverts the logical order of ideas. The formulation of law is necessary precedent to the administration of justice. Law has to be formulated before it can be applied by a court of justice.

He further said that the definition given by Salmond is defective because he thinks law is logically subsequent to administration of justice. Existence of a Rule of Law because Courts of Justice could apply it and enforce it while deciding cases, vitiates the definition of law.

03. Kelsen’s Pure Theory of Law

Kelsen was a Prof. of Jurisprudence in Vienna University, Austria.  He owes his fame mainly due to his Pure Theory of Law.  According to him, a theory of law must deal with law as it is actually laid down not as it ought to be.  Kelsen advocated that a theory of law should be uniform and it should be to all time & in all places.  A theory is something, which has universal application.    In order to make his theory to have universal application, he desisted from including the elements of sociology, politics, economics, history or other disciplines because they r subject to variation from one place to another & from one time to another.  Thus, he devised a pure theory, which would have the ingredient of only one discipline, i.e., law & totally devoid of sociology, political science, economics, etc.

He insisted that a theory of law must be free from ethics, politics, sociology, history, etc.  Though their value is not denied, but Kelsen insisted that a theory of law must not have such considerations.  There must be a pure theory of law.  It is for this reason that Kelsen refused to define law as a command of sovereign, as Austin stated, because that introduces subjective & political considerations. He wished his science to be really objective.

For Kelsen, law is normative & not a natural science based on cause & effect.  It is a norm that directs an official to apply force under certain circumstances.  Thus, his theory of law is a theory of positive law.

Every body of facts has two distinguishable elements :

(i)  external manifestation of human conduct that is perceived by our senses

(ii) the legal meaning of this act, i.e., the meaning conferred upon the act by the law.

e.g., people assemble in a large room, make speeches, some raise their hands, others don’t.  This is the external manifestation of the fact.  Its meaning is that a statute is being passed, that a law is being created.

Every manifested act is subject to 2 meanings – subjective & objective meaning, e.g., somebody makes some dispositions stating in writing what is to happen to his belongings when he dies.  The subjective meaning of this act is a testament.  Objectively, however, it may not be a testament due to non-observance of some legal formalities, etc.

Difference between Austin & Kelsen

(i)  The view of Austin is that law is a command backed by a sanction.  However, Kelsen rejects the idea of command as it introduces a psychological element into a theory which should be pure.

(ii) To Austin, ‘sanction’ is something outside the law which imparts validity to law.  However Kelsen maintains that the legal ‘ought’ can’t be derived from any fact outside the law.

(iii) To Austin, only command is a norm, while, to Kelsen, policy, rule, doctrine, standards, etc. r all norms in addition to the command.

Norm & Grundnorm :

Kelsen said that ‘norm’ is a rule forbidding or prescribing certain behaviour.  In other words, norm is the meaning of an act of will by which certain behaviour is commanded or permitted or authorised.  Legal norms always belong to the realm of the ‘ought’.  It is different from moral norm.  The ‘ought’ in the legal norm refers to the sanction to be applied to contra-legal behaviour.  In this process, Kelsen achieved two objectives :

(i) he removed the natural law and moral or ethical criteria from the concept of positive law; &

(ii) it also enabled him to solve the problem – how a norm can be said to be valid in case of illegal behaviour.

‘Grundnorm’ or the basic/fundamental norm is the initial hypothesis upon which the whole system rests.  The ‘Grundnorm’ is the justification for the rest of the legal system.  It is essential that it should command a minimum of support. When it ceases to be the basis of the legal order, it is replaced by some other ‘Grundnorm’ which obtains the support of the people.  The ‘Grundnorm’ is the starting point for the philosophy of Kelsen.

A legal order is comprised of norms placed in a hierarchical manner – one norm placed above another norm & every norm deriving its validity from the norm above it.  The hierarchy takes a pyramid form & symbolizes the legal order.  The highest norm in the hierarchy is called the basic norm or the Grundnorm.

The function of ‘Grundnorm’ is to give objective validity to positive legal order, i.e., it is the common source for the validity of all norms that belong to legal order.  Kelsen offered no explanation about the source of validity of the ‘Grundnorm’.  He just presupposed that the ‘Grundnorm’ is valid.  Kelsen stated that ‘Grundnorm’ need not be the same in every legal order, but a ‘Grundnorm’ of some kind will always be there.  The basic point is that those who are in effective control ought to be obeyed.

The following various features of ‘Grundnorm’ will illustrate the reason for its position in pyramidal structure :

(i)  Grundnorm is not a positive norm or rule of law, but is an extra-legal or non-legal norm as it is not derived from any higher norm.

(ii)      It itself is not valid or invalid, it is an assumption or a jural postulate.

(iii)     It only empowers & does not impose sanctions.

(iv)     It validates the rest of the legal system / order.

(v)      The pre-supposition of basic norm is based upon effectiveness.

(vi)     Basic norm is the pre-supposed starting point of the procedure of creation of norms.

(vii)    It gives validity to norms, but does not give content to norms.

Kelsen builds his pure science on a philosophical basis.  Many philosophers emphasize that jurisprudence must study relationship between law & justice, but Kelsen wished to free the law from the metaphysical mist of justice, material of social science & natural law.  He also refused to follow Austin’s view (law is a command of sovereign) as it introduces subjective & political considerations in the concept of law.  He insisted that the sole object of the study of jurisprudence is the nature of norms or standards which r set up by law. 

For him, law & state r really the same thing viewed from different aspects.  A legal order becomes a state when it has developed organs for creation, declaration & enforcement of law.  Kelsen specially emphasized that the relations between state & law r inter-connected & traditional approach can’t continue in the emerging conditions of the society.  But the practical importance of Kelsen’s approach is that he emphasized that law is a more fundamental notion than that of the state.  While it is true that law can’t exist without a legal order, that order may take forms other than that of the state.  Hence, Kelsen’s theory is wider and, therefore, more acceptable than that of Austin.

An important feature of Kelsen’s doctrine is that the state is viewed as a system of human behaviour & an order of compulsions.  Thus, only relatively centralised legal orders r states.

Kelsen also applied his theory of pure science of law to the system known as ‘International Law’, but revealed many limitations.  The pure theory requires that ‘Grundnorm’ be discovered.  What Kelsen said was that the ‘Grundnorm’ should command a minimum of support.  There r two possible ‘Grundnorm’ in Intl. Law – (i) The supremacy of each system; & (ii) the supremacy of intl. law.  Every national legal order can recognise any norm superior to its own Grundnorm.

In view of Prof. Dias, it may be the principle of pacta sunt servanda & with ref. to intl. law, the ‘Grundnorm’ is a pure supposition unlike that of municipal law.

Kelsen didn’t regard the distinction between public & private law.  He stated that contract may play as great a part as public law.  To him, law may be made either by a parliament, a judge or a private citizen.  Thus, a contract executes a superior norm & creates a binding obligation.  Kelsen believed that reason could derive one form from another, but that reason would not create an original norm, i.e., ‘Grundnorm’ / one which was not derived from another.

Criticisms :

(i)       The basic norm is a very troublesome feature of Kelsen’s system.  It is not clear what sort of norm this really is, nor what it does, nor where we can find it.  (per Lord Lloyd)

(ii)      Kelsen did not explain the existence of the basic norm on which the whole legal system was founded by him.  (per Prof. Goodhart)

(iii)     As regards the quality of purity, for all purposes, it is dependent on the basic norm.  Since that basic norm itself is the most impure, the subsequent operations must reproduce that original impurity in the inferior norm, thereby making the whole system impure.

(iv)     The reasons for the validity of a norm can only be the validity of another norm – total pre-supposition.

Kelsen’s legal theory is an original piece of research, which has successfully made a vital contribution to jurisprudential thought.  His views reg. norms, right, state, public & private law, have received wide appreciation from various academicians & jurists.  His analysis about legal order is thought-provoking.  Being original & creative piece of research, it was bound to encourage contemporary jurists, eminent judges & philosophers to react & raise many questions for further clarification & research.

Though Kelsen emerged 100 years after Austin, due to lack of development of communication channels, he was totally unaware of Austin’s theory.  Hence, Kelsen viewed positivism from an angle different from that of Austin.  Resultantly, it can’t be said that Kelsen’s Pure Theory of Law is an improvement upon Austin’s Command Theory. 

However, complete diversity is not possible within the same discipline & there were similarities between Kelsen’s & Austin’s approach to the extent that they both:

         took law as it is;

         talked of fact as it exists;

         were positivist;

         were analysist; &

         were imperative thinker.

Kelsen wrote two editions of the Pure Theory of Law: the first edition 1934 and the second 1960. A key feature of the Pure Theory is a paradigm change of legal theory and proposing a new juridical methodology. Kelsen introduced new concepts and terms, in particular, norm, basic norm, the hierarchy of norms, legal act, etc.

Kelsen stopped the scientific discussion and took over from the natural law doctrine:

The denial of the duality of Is and Ought implicit in the concepts of entelechy and practical reason is an essential element of the doctrine of Natural Law (Kelsen 1991 § 16II; p. 70).

Here we recall René Marcic (1971) as one of the last important thinkers of natural law. Legal logic and legal informatics succeeded in the research.

A scientific mainstream after Kelsen was the legal logic invented by Georg Henrik von Wright with his article on deontic logic (1951). Other important exponents of this direction are Ilmar Tammelo, Ota Weinberger, Jürgen Rödig and Hajime Yoshino. Since 1970’s, legal informatics exponents are Herbert Fiedler, Leo Reisinger, Alfred Schramm, Erich Schweighofer, Roland Traunmüller, Maria Wimmer, just to mention a few.

To characterize Kelsen’s position, we invoke Stanley L. Paulson’s formulation on resolving the antinony between the reductive thesis and the normativity thesis. In the introduction to 1992 translation of Reine Rechtslehre first edition 1934, Paulson expresses a view of “how Kelsen distinguishes his own position from those of the tradition” (Kelsen 1992, p. xxviii):

(i) Is the normativity thesis derivable from the morality thesis? The tradition: yes. Kelsen: yes.

(ii) Turning the question around, is the morality thesis derivable from the normativity thesis? The tradition: yes. Kelsen: no.

(iii) Is the separability thesis derivable from the reductive thesis? The tradition: yes. Kelsen: yes.

(iv) Turning the question around, is the reductive thesis derivable from the separability thesis? The tradition: yes. Kelsen: no.

Paulson finds that “Kelsen’s answers to questions (ii) and (iv) suggest the hypotheses which he begins – the normativity thesis without the morality thesis, and the separability thesis without the reductive thesis”.

Kelsen uses a categorical distinction between Is and Ought; see (Kelsen 1967, § 3ff.):

An ought cannot be reduced to an Is, or an Is to an Ought; and so an Is cannot be inferred from an Ought, or an Ought from an Is. (Kelsen 1991 § 16I; p. 58)

The duality of Is and Ought coincides with that of reality and value/ Thus no value can be derived from reality, and no reality from value. (Kelsen 1991 § 16I; p. 61)

The Is realm is associated with causality and the Ought with imputation. The irreducible Is-Ought duality corresponds to a very old mythical and religious duality between the Earth and Heaven, in other words, nature and spirit. In Fig. 2 we visualize the Is with a horizontal plane and the Ought with a vertical one. Is/Ought terminology was used already by Pufendorf; see his impositio. Pure Theory of Law as theory aims at cognition and therefore appears on a metalevel (Kelsen 1967, § 1).[i]

04. H.L.A Hart’s Theory of Primary and Secondary Rules

HART’S CONCEPT OF LAW

Prof. H.L.A. Hart, a British Philosopher and an eminent jurist, is considered as the significant exponent of Analytical Positivism.  Hart in his vital contribution ‘The Concept of Law’ (1961) has expounded his legal theory as a system of rules by exploring the relationship between law & society.  His main objective is to further explain understanding of law, coercion & morality.

According to Hart, the law is a system of rules.  Two types of rules are – ‘Primary’ & ‘Secondary’.  Hart rejects Austin’s theory that rule is a kind of command and substitutes a more elaborate & general analysis of what rules are.  Hart observed, “Union of these two types of rules is the most powerful tool, which will lead to proper general analysis of the situation created by Austin’s definition of law.

PRs are those that impose duty upon individuals & are binding because of practices of acceptance which people are required to do or to abstain from certain actions.  In other words PRs impose duties obligations on individuals in primitive community.  Due to social control, such community suffers from 3 defects – uncertainty, static character & inefficiency.  The stage of primitive community requires proper modification to make the social structure more effective, efficient & certain.   This gives rise to Secondary Rules & introduction of Secondary Rules (power conferring rules, enabling legislations, to determine when the rules have been broken) is described as step forward as important to society as the invention of the wheel.  He emphasized that ‘Law is a union of P&SRs’ &, thus, it is born in the society.   Under PRs, human beings are required to do or abstain from certain action, whether they wish or not.  Secondary Rules are in a sense parasitic upon or secondary to Primary Rules.  While Primary Rules impose duties, Secondary Rules confer powers.

While Primary Rules are concerned with the actions which the individuals must or must not undertake, the Secondary Rules specify the ways in which the Primary Rules may be conclusively ascertained, introduced, eliminated, varied & the fact of their violation conclusively determined.

According to Hart, a rule is :

(i)       something, which creates obligation & simultaneously  

(ii)      a standard by which one can judge whether rule is right or wrong.

Defects of primitive society / regime of PRO :

(i)       Uncertainty about what are primary rules of obligation.

(ii)      Static Character, i.e., new rules are not created & old ones are not repealed.

(iii)     Inefficiency of the diffused social pressure by which rules are maintained. There is a question of who will ascertain finally & authoritatively if a rule has been violated or not or in case of conflict between two rules.

The remedy for each of these 3 defects consists in supplementing the PRO with Secondary Rules, which are rules of a different kind – recognition, change & adjudication (RCA).

The removal of defects will transform a primitive society, i.e., a pre-legal society into a developed society, i.e., a legal society.  If we consider the structure which results from the combination of PRO with the Secondary Rules of RCA, we have a systematic legal system to meet the requirements of the society.

Remedies :

(i)       First remedy for uncertainty is the introduction of the rules of recognition (ROR).  ROR may be simple or complex.  It is simple when it is written in texts/statutes.  It is complex when it is not directly mentioned anywhere & has to be deciphered or deduced from other sources, i.e., doctrine of basic structure, the rule of death sentence only in the rarest of rare cases, etc.  In a developed legal system, the ROR are more complex & lay down more than one criterion for identification of the ROR–customs, precedents, etc.

(ii)      Second remedy for static nature is the introduction of the rules of change (ROC), i.e., introduction of legislature which may enact new ROR & repeal old ones that were created by customs or traditions & are now undesirable.  Whenever ROC is present, the primary ROR will also be there because only ROR will identify by reference the legislation as a ROC.

(iii)     Third remedy for inefficiency is the introduction of the rule of adjudication (ROA), i.e., the judiciary to authoritatively determine whether on a particular occasion a Primary Rule has been violated or not.  ROA don’t impose upon the judges the duty to adjudicate.  Rather, they confer judicial powers & a special status on judicial declaration reg. the breach of obligations.

The Secondary Rules (ROR, ROC & ROA) provides the centralized official ‘sanctions’ of the system.  They describe the heart of a legal system in combination with Primary Rules.

Validity & Efficacy :

The statement that a particular rule is valid means that it satisfies all the criteria provided by the ROR.  Thus, the ROR is the reason for the validity of a PRO.  The efficacy of the rule means that a PRO, which requires certain behaviour, is obeyed more often than not.  The validity & the efficacy of a rule of obligation are two different things.  But where a rule is not efficacious in the sense that it is not obeyed by anybody, then a serious challenge can be posed on its validity also.

Rule of Recognition as an ultimate rule :

The ROR, which provides the criteria by which the validity of other rules of the system is assessed, is an ultimate rule.  ROR gives validity to PRO but there is no rule which provides criteria for the assessment of the validity of the ROR itself.  The validity of the ROR can’t be questioned; such questions are invalid questions.  However, the existence & validity of the ROR need not be presupposed as is the case with Kelsen’s Grundnorm.  Hart’s ROR is positive.

According to Hart, there are two minimum conditions necessary & sufficient for the existence of a legal system :

(i)       PRO, which are valid according to the ultimate ROR, must be generally obeyed; &

(ii)      ROR, which specifies the criteria of legal validity & ROC & ROA, i.e., SRO must be effectively accepted as common public standards of official behaviour by its officials.

While the first contention is one which only private citizens need to satisfy, the second condition must be satisfied by the officials of the system.  The officials should observe ROR from internal as well as external point of view, while the private citizens need not have an internal point of view. 

External View : It is taken by those who are concerned with the rules merely as an observer who does not himself accept them.  They are concerned with the rules only to the extent that any violation of the rules invites sanctions, “I was obliged to do it, I am likely to suffer for it if ...”

Internal View : It is taken by those members of the society who voluntarily accept the rules & uses them as guides of their own conduct & as a criterion to evaluate other people’s conduct. 

Criticisms / Difference with Austin : The foundation of Hart’s theory of law is made of the critical evaluation of Austin’s theory of law. 

(i)       Hart said that Austin has talked about society & not a legal system.

(ii)      He said that Austin failed to acknowledge that the laws are applicable not only to the general members of the society, but also to the sovereign members of the society in their role as individual citizens.

(iii)     All the laws are not coercive commands.  There are other varieties of law, such as laws conferring legal powers to adjudicate (public powers) or legislate or to create or vary legal relations (private powers).

(iv)     There are legal rules like customs, which Austin completely ignored.

(v)      The analysis of law in terms of the sovereign, habitually obeyed, failed to take into account model legal system.

(vi)     While Austin’s command merely predicts the obligation, Hart’s rule actually constructs the obligation.  

(vii)    In place of Austin’s monolithic model, Hart suggests a dual system consisting of two types of rules – which he described as Primary Rules & Secondary Rules.

(viii)   Hart said that the judges have a limited discretion, but, in fact, the judicial discretion must be conceived in positivism permitting judges to look outside law for standards to guide them while deciding cases.

(ix)     Austin & Kelsen condemned natural law, but Hart considers that it is necessary for law or morality to have a certain content of natural law.  Rules of morality are implicit in Hart’s system of law of Primary Rules & Secondary Rules.

(x)      For Prof. Dias, distinction between a legal & pre-legal state of affairs is not at all clear.  There is difficulty in finding ROR.  He also questioned the sharp distinction between rules creating duties & rules creating powers as a legal system is constituted by their union.

The idea of obligation : The Gunman situation : A orders B to hand over his money & threatens to shoot him if he doesn’t comply.

According to Austin, it illustrates the notion of obligation or duty in general.  A must be the sovereign habitually obeyed & the orders must be general prescribing courses of conduct & not single actions.  Here, the meaning of obligation lies in the fact that B, if he obeyed, was obliged to hand over money. B had an obligation or duty to hand over money.  But there is a difference between the assertion that someone was obliged to do something & the assertion that he had an obligation to do it.  The first is often a psychological statement about the beliefs & motives.  Hart says that it can be said that B was obliged to hand over his purse, but it can’t be said that he had an obligation to do that.

A person had an obligation, e.g., to tell the truth or report for military service.  The statement that he had an obligation is quite independent of the question whether or not he in fact reported for service; the statement that someone was obliged to do something normally carried the implication that he actually did it.

Hart has made further contributions on Austin’s approach to law as also his research has provoked many other jurists from European Countries to develop & critically examine his ideas thereby enriching the Analytical Jurisprudence.

05. Jurisprudence of Interests according to Rudolf Von Ihering and Roscoe Pound

According to Rudolf Von Ihering, human will is directed towards the furtherance of individual purposes.  In realisation of individual purposes, there is bound to be a conflict between social interests & individual’s selfish interests.  Ihering tries to reconcile the individual interest with that of the society.  So, law is only an instrument for serving the needs of the society ... its purposes & interests.  The success of the legal process depends on achieving proper balance between social & individual interests.  It is through two impulses – coercion & reward, the society compels individuals to subordinate selfish individual interests to social purposes & general interests.  The natural impulse of duty & love also make man to sub-serve social ends.  Therefore, Ihering views law as an instrument of social control balancing of individual interest with that of the society.

Dean Roscoe Pound (RP) has been acknowledged as the unchallenged chief of the sociological school of jurisprudence.  Sociological jurisprudence arose as a reaction to positivism (19^th century positivist jurisprudence) since it refused to consider social & economic circumstances.  Its main contribution was broadening the scope of jurisprudence.  Law is not an isolated phenomenon, but is a part of social reality.  Roscoe Pound, one of the leading American jurists & pioneer in the American jurisprudence, can be said to be the father of sociological jurisprudence in America.  According to Roscoe Pound, law takes account of social facts / reality.

Roscoe Pound asserts that law is a method or technique for harmonizing conflicting social interests.  His school is known as functional school as it concentrates more on the functional aspect of law.  In modern society, there r various interests & if claims of these groups r not harmonized, there may be strife & thereby production may suffer.  By social engineering, Roscoe Pound means a balance between the competing interests in society.  In other words, social engineering is a term used to define the act of balancing of different interests, i.e., individual interests, public interests & social interests.  The aim of social engineering is to build as efficient a structure of society as possible, e.g., if a factory is polluting the environment & an injunction suit is filed for closing it, the court must balance various claims & interests –claim of the mill owner to do his business, claims of the workers in the factory to retain their jobs, claim of local residents to have a clean environment, etc.  Roscoe Pound says law exists for the benefit of the society.  Any law, which is against the interest of the society, can’t be said to be a law. 

Despite the broadness of his views, he gave preference to the practical means in the study of law, which are as under:

(i)       to make a study of the actual social effects of legal institutions & legal doctrine/to look more to the working of law than to its abstract content;

(ii)      to regard law as a social institution which may be improved by intelligent efforts discovering the best means of furthering & directing such effort.

(iii)     to lay stress upon the social purposes which law sub-serves rather than upon sanction.

(iv)     to study what social effect the doctrines of law have produced in past.

(v)      to stand for equitable application of law.

(vi)     to make effort more effective in achieving the purposes of law.

Roscoe Pound’s theory is that the interests are the main subject-matter of law & the task of law is the satisfaction of human wants & desires.  It is the duty of law to make a valuation of interests.  He classified interests under three heads –

(i) Individual;                  (ii) Public; &                             (iii) Social

(i)       Individual Interests – These are claims or demands or desires involved in & looked at from the standpoint of the individual life such as (i) Personality e.g. freedom of will, privacy, belief & opinion as also honour & reputation; (ii) Domestic relations e.g. relations of husband & wife, parents & children; & (iii) Interests of substance e.g. proprietary rights, inheritance & testamentary succession, contract, continuity of employment, freedom of association.

(ii)      Public Interests – These are claims or demands or desires asserted by individuals involved in & looked at from the standpoint of political life such as (i) Interests of the State as a juristic person e.g. (a) integrity, freedom of action & honour of the State personality; & (b) claims of the politically organised society as a corporation to property acquired & held for corporate purposes; (ii) Interests of the State as guardian of social interests – this seems to overlap with the next category, i.e., Social Interests.

(iii)     Social Interests – These are claims or demands or desires thought of in terms of social life & generalised as claims of the social group.  They concern: (i) Interest in the preservation of peace, public health & order and maintaining general security; (ii) Interest in preserving social institutions like marriage, domestic & religious institutions; (iii) Interest in preserving general morals by counteracting corruption, drunkenness, prostitution, gambling, etc.; (iv) Interest in conserving social resources; (v) Interest in general progress (economic, political & cultural) which is to be achieved by freedoms of education, speech, trade, property, etc.; & (vi) Social interest in individual life like promotion of human personality, self-assertion, etc. – each individual to be able to live a human life according to the standards of the society.

06. Purpose of Law

Society is dynamic and not static in nature. Laws made for the people are also not static in nature. Thus, purpose and function of law also cannot remain static. There is no unanimity among theorists as to purpose and function of law. Thus, we will study purpose and function of law in the context of advantages and disadvantages.

1. Advantages of law-

a. Fixed principles of law

i. Laws provide uniformity and certainty of administration of justice.

ii. Law is no respecter of personality and it has certain amount of certainty attached to it.

iii. Law avoids the dangers of arbitrary, biased and dishonest decisions because law is certain and it is known. It is not enough that justice should be done but it is also important that it is seen to be done.

iv. Law protects the Administration of Justice from the errors of individual judgments. Individual whims and fancies are not reflected in the judgment of the court that follow the Rule of Law.

b. Legislature represents the wisdom of the people and therefore a law made by the legislature is much safer because collective decision making is better and more reliable than individual decision making.

2. Disadvantages of law-

a. Rigidity of Law- An ideal legal system keeps on changing according to the changing needs of the people. Therefore, law must adjust to the needs of the people and it cannot isolate itself from them. However, in practice, law is not usually changed to adjust itself to the needs of the people. Therefore, the lack of flexibility results into hardship in several cases.

b. Conservative nature of law- Both lawyers and judges favour in continuation of the existing laws. This creates a situation where very often laws become static and they do not respond to the progressive society because of the conservative nature of law.

c. Formalism of law- Most of the times, people are concerned with the technical operation of law and not the merits of every individual case. It creates delay in the Justice Delivery system. It also leads to injustice in certain cases.

d. Complexity of law- Sometimes, the laws are immensely intricate and complex. This causes difficulty in Interpretation of Statutes.

3. Therefore, advantages of law are many but disadvantages are too much- Salmond.

07. Justice

Classification of Justice- It can be divided into two parts

a. Private Justice- This is considered to be the justice between individuals. Private Justice is a relationship between individuals. It is an end for which the court exists. Private persons are not allowed to take the law in their own hands. It reflects the ethical justice that ought to exist between the individuals.

b. Public Justice- Public Justice administered by the state through its own tribunals and courts. It regulates the relationship between the courts and individuals. Public Justice is the means by which courts fulfil that ends of Private Justice.

08. Theories of Justice

01. Distributive Justice

Thomas Aquinas said that a just law was one that served the common good, distributed burdens fairly, promoted religion, and was within the lawmaker's authority.  However, what are “the common good” and a "fair distribution of burdens” and what is the position of religious values in a secular legal system?  Later philosophers have developed the concept of Distributive Justice has produced other theories of justice.

 02. Utilitarianism 

Utilitarianism as a theory of justice is based on a principle of utility, approving every action that increases human happiness (by increasing pleasure and/or decreasing pain, those being the two "sovereign masters" of man) and disapproving every action that diminishes it.

A utilitarian view is that justice should seek to create the greatest happiness of the greatest number.  A law is just if it results in a net gain in happiness, even at the expense of minorities.  The problem here is that minorities may not form part of the "greater number".  This is a particular problem in a pluralist society.

Utilitarianism still plays a major part in the democratic decision-making process; it is a secular theory requiring no reference to any natural rights or other abstract religious principles defensible only by faith.  The idea of maximizing the total happiness of the community is often applied on a national political level and in ordinary dealings among friends.

In marginal cases, the theory breaks down and produces results far removed from those that most people would consider right.  In an Economic Theory of Justice, there is conflict between the views of the individual and the collective view, sometimes referred to as the, social contract.  Such conflict can be seen by asking how a doctor with £100,000 to spend should chose between 100 patients with a minor condition; he can treat all of them, or 1 very sick person who would take all his resources. There is no legal requirement that the National Health Service distributes its assets evenly.  This can produce results that anger the majority, who respond emotionally; the case of Child B produced national anger, fuelled by newspaper reports. Jaymee Bowen (Child B) has come to epitomize the dilemmas involved in making tragic choices in health care.  When 11 year-old Jaymee needed life-saving cancer treatment for the third time, the hospital refused funding in R v. Cambridge Heath Authority ex parte B [1995] CA the Court of Appeal upheld the hospital’s decision.  Medical advice that Jaymee had only a 2.5 per cent chance of survival was basically that the £75,000 it would cost to carry on her treatment would be wasted and could be put to better use for others.   An anonymous benefactor stepped in and paid for Jaymee to receive the treatment privately, she died 16 months later.  T S Eliot famously remarked, “Human kind cannot take very much reality".

03. Harm principle

Jeremy Bentham and John Stuart Mill believed that the law should not interfere with private actions unless they caused harm to others. 

JS Mill writing in “On Liberty” said that private acts of immorality increase the pleasure of those who indulge in them and cause little pain to others.  Their net effect is to increase the sum of human happiness and laws prohibiting them would be unjust.

The idea that wealth should be distributed evenly denies the possibility that individuals will be stimulated to improve their own income and thereby increasing the wealth available to all.  The theory that we all live in a society from which we draw benefits and to which we contribute is called the “social contract”.   Bentham said that the “social contract” and its claim to natural rights is "nonsense on stilts" that inhibits desirable social changes.

Bentham might argue that compelling people to have their babies vaccinated using the MMR vaccine, would be morally preferable than leaving such a decision to the discretion of parents because it would drastically reduce the incidence of measles, mumps and rubella (and their horrible consequences) within the population at large.

04. Liberal-Natural Rights theories

The Liberal-Natural rights view of justice is measured according to the extent minorities and the most vulnerable are protected.  It uses a notion of natural rights, the minimum rights to which all are entitled.

05. What are these ‘basic rights’?

Rawls' hypothesis of the ‘original position’ (see below) gives some guidance on what these basic rights are.  It can be argued that this simply returns us to the statement that what is just, is what is fair’?

06. Libertarian-market theories

The libertarian-market view holds that any interference in market distribution of benefits and burdens is an unjust restriction on individual freedom, and that justice should only allow limited intervention to prevent unjust enrichment, by which they mean basically theft and fraud and exploitation.  ‘What is justice?’ is as much a political question as a legal or philosophical one.

07. Marx, Perelman, Nozick, Hart and compensation

In “The Concept of Law”, Hart linked the idea of justice with that of morality.  Like cases, he said, should be treated alike.  This is a common theme in all theories of justice, which has its origins with Aristotle.  Aristotle believed that like should be treated alike and unlike treated accordingly.  In this case, Aristotle was referring to people of similar class and status, free men should be treated alike, but not treated the same as slaves.  A slave was entitled to be treated like any other slave.  In less structured societies, it raises the question "what makes cases alike or different?"  In terms of sentencing and defences such as insanity, it raises other questions dealt with under “Corrective Justice”, below.

 08. “To each according to…” 

In the Bible (Romans 2), there is reference to “to each according to his works”.  Marx believed that a communal society would operate under the slogan: "From each according to his ability, to each according to his need." Other Marxists, such as Perelman have developed this idea.  To each according to his works/needs/merit/rank/entitlement/means/ etc.

Most people would agree that most of the system of distribution supported by law in the UK is just and leads to just results most of the time. Marxists would disagree; the Marxist perspective is that distributive justice favours capital and therefore works against the interests of the working classes (the proletariat).

09. Rawls and the original position

American jurist John Rawls in "A Theory of Justice" (1971) analysed law on the basis that a rational person will pay for those things wanted badly enough.   His theory rejects utilitarianism, which was based on maximising happiness and constructs a social contract aimed at establishing principles of justice. Free and rational persons concerned to further their own interests adopt principles of justice, which define the basis of their association.

His analysis is purely hypothetical. It holds that the concept of the rational choice as one that could help our understanding of what justice might require.  In practice, all human beings are born into a particular society with no option. 

10. "Veil of ignorance" the original position

In making the hypothetical choice, Rawls insisted that the individual should operate behind a "veil of ignorance" where they do not know their sex, class, religion or social position or whether they are strong, clever or stupid, the state or period in history in which they exist. Rawls then predicted that any such society would exhibit two essential features.

First, people in the original position would agree that each person should have an equal right to certain basic liberties, such as freedom of person, freedom of speech and thought, freedom to participate in government, and freedom to possess property, to the greatest extent compatible with the enjoyment of the same basic liberties by others.

Second, social and economic inequalities, and differences of treatment, would be acceptable only insofar as they were available in principle to anyone, and were for the benefit of the least well off members of the society.

Thus, for example people would agree that doctors should be paid higher than average incomes, because this would encourage able people to qualify as doctors and so benefit everyone in the long run.

 On ‘lifting the veil’, anyone could be at the bottom of the social hierarchy. Rawls considers that there are two principles of justice namely; liberty and equality, and they would select liberty over equality.   Liberty (ensures an equal right to basic liberties).  Equality (economic and social inequalities arranged for the benefit of the least advantaged, and equality of opportunity).

 Rawls is criticised for not explaining why liberty would be selected before equality or why natural talents to be treated as collective assets.

11. Nozick and historical entitlement

To Robert Nozick in "Anarchy State and Utopia" (1974) Justice is based on rights.  One of these rights is the right to retain our own property, even against the state. He would claim that we have no obligation to help those worse off unless we had obtained our wealth from them improperly.  There could therefore be no question of redistribution of wealth for social purposes.  This philosophy heavily influenced the thinking of Margaret Thatcher, who was determined to “Roll back the State”. Therefore, Rawls’ theory of distributive justice involved interference with the inherent rights of individuals.

12. Justuce – Does it have boundaries?

Justice is, perhaps giving people what they are due. In this context, one can ask, “To whom (or what) is justice owed?”   Historically, full political equality has expanded slowly for example, recognition of white property owning males, recognition of white females, immigrants, members of minority and ethnic groups, gays and lesbians.  What then is the scope of justice?  Justice is not only about what courts and legal systems do there are some fundamental philosophical questions that need to be addressed. Are foetuses “persons”? What rights do children have?   Can claims of justice be made on behalf of the dead or even on behalf of generations of people as yet unborn (concerning, for example, claims to the preservation of natural resources)?  What is the moral standing of nonhuman animals, whether as whole species or even as individual living creatures?

A further set of problems concerns the significance of geographical boundaries, state boundaries.  As UK subjects, we are increasingly challenged to think of ourselves as citizens of Europe and perhaps citizens of the world and not just as subjects of the UK.  If we consider, and act on, what others are due, the question of what human beings in other counties are due becomes increasingly important.  Are there basic human rights? If so, do such rights require supranational legal institutions to see that they are recognized?

Should we be considering these questions in the same legal and philosophical way as we view domestic theories of distributive justice?  In particular, in a utilitarian sense, based on Rawls entitlement should justice be concerned with larger community issues, perhaps globally?

09. Relation of Justice to Law

Concept of Justice According to Law

Justice is rendered to the people by the courts. Justice rendered must always be in accordance with the law. However, it is not always justice that is rendered by the courts. This is because the judges are not legislators, they are merely the interpreters of law. It is not the duty of the court to correct the defects in law. The only function of the judges is to administer the law as made by the legislature. Hence, in the modern state, the administration of justice according to law is commonly considered as ‘implying recognition of fixed rules’.

10. Justice and law: Approaches of different schools

01. Civil and Criminal Justice

Civil Justice and Criminal follow from Public Justice and Private Justice. Looking from a practical standpoint, important distinctions lie in the legal consequences of the two. Civil Justice and Criminal Justice are administered by a different set of courts.

A Civil Proceeding usually results in a judgment for damages or injunction or restitution or specific decree or other such civil reliefs. However, a Criminal Proceeding usually results in punishment. There are myriad number of punishments ranging from hanging to fine to probation. Therefore, Salmond said that ‘the basic objective of a criminal proceeding is punishment and the usual goal of a civil proceeding is not punitive’.

02. Theories of Punishment

a. Deterrent Theory- Salmond said that the deterrent aspect of punishment is extremely important. The object of punishment is not only to prevent the wrongdoer from committing the crime again but also to make him an example in front of the other such persons who have similar criminal tendencies.

The aim of this theory is not to seek revenge but terrorize people. As per this theory, an exemplary punishment should be given to the criminal so that others may take a lesson from his experience.

Even in Manu Smriti, the Deterrent Theory is mentioned. Manu said “Penalty keeps the people under control, penalty protects them, and penalty remains awake when people are asleep, so the wise have regarded punishment as the source of righteousness”. However, critics believe that deterrent effect not always leads to a decrease in crime.

b. Preventive Theory- This theory believes that the object of punishment is to prevent or disable the wrongdoer from committing the crime again. Deterrent theory aims at giving a warning to the society at large whereas under Preventive Theory, the main aim is to disable the wrongdoer from repeating the criminal activity by disabling his physical power to commit crime.

c. Reformative Theory- This theory believes that Punishment should exist to reform the criminal. Even if an offender commits a crime, he does not cease to be a human being. He might have committed the crime under circumstances which might never occur again. Thus, the main object of Punishment under Reformative theory is to bring about a moral reform in the offender. Certain guidelines have been prescribed under this theory.

i. While awarding punishment, the judge should study the characteristics and the age of the offender, his early breeding, the circumstances under which he has committed the offence and the object with which he has committed the offence.

ii. The object of the above mentioned exercise is to acquaint the judge with the exact nature of the circumstances so that he may give a punishment which suits those circumstances.

iii. Advocates of this theory say that by sympathetic, tactful and loving treatment of the offenders, a revolutionary change may be brought about in their character. However, the Critics say that Reformative Theory alone is not sufficient, there must be a mix of Deterrent Theory and Reformative Theory in order to be successful. Critics believe that in a situation of deadlock between the two theories, the Deterrent Theory must prevail.

Distinction between Deterrent Theory and Reformative Theory

1. Reformative Theory stands for the reformation of the convict but the Deterrent Theory aims at giving exemplary punishment so that the others are deterred from following the same course of action.

2. Deterrent Theory does not lead to a reformation of the criminal as it imposes harsh punishments. Whereas, Reformative Theory believes that if harsh punishment is inflicted on the criminals, there will be no scope for reform.

3. Deterrent Theory believes that the punishment should be determined by the character of the crime. Thus, too much emphasis is given on the crime and too little on the criminal. However, Reformative Theory takes into consideration the circumstances under which an offence was committed. Reformative Theory further believes that every effort should be made to give a chance to the criminal to improve his conduct in the future.

d. Retributive Theory- In primitive societies, the punishment was mostly retributive in nature and the person wronged was allowed to have his revenge against the wrongdoer. The principle was “an eye for an eye”. This principle was recognized and followed for a long time. Retributive theory believes that it is an end in itself, apart from a gain to the society and the victim, the criminal should meet his reward in equivalent suffering.

e. Theory of Compensation- This theory believes that punishment should not only be to prevent further crime but it should also exist to compensate the victim who has suffered at the hands of the wrongdoer. However, critics say that this theory is not effective in checking the rate of crime. This is because the purpose behind committing a crime is always economic in nature. Asking the wrongdoer to compensate the victim will not always lower the rate of crime though it might prove beneficial to the victim. Under this theory, the compensation is also paid to the persons who have suffered from the wrongdoing of the government.

03. Kinds of Punishment

a. Capital Punishment- This is one of the oldest form of punishments. Even our IPC prescribes this punishment for certain crimes. A lot of countries have either abolished this punishment or are on their way to abolish it. Indian Judiciary has vacillating and indecisive stand on this punishment. There have been plethora of cases where heinous and treacherous crime was committed yet Capital Punishment was not awarded to the criminal.

b. Deportation or Transportation- This is also a very old form of punishment. It was practised in India during the British Rule. The criminal is put in a secluded place or in a different society. Critics of this punishment believe that the person will still cause trouble in the society where he is being deported.

c. Corporal Punishment- Corporal punishment is a form of physical punishment that involves the deliberate infliction of pain on the wrongdoer. This punishment is abolished in our country but it exists in some Middle Eastern Countries. Critics say that it is highly inhuman and ineffective.

d. Imprisonment- This type of punishment serves the purpose of three theories, Deterrent, Preventive and Reformative.

i. Under Deterrent Theory, it helps in setting an example.

ii. It disables the offender from moving outside, thus serving the purpose of Preventive Theory.

iii. If the government wishes to reform the prisoner, it can do so while the person is serving his imprisonment, thus serving the purpose of Reformative Theory.

e. Solitary Confinement- Solitary confinement is a form of imprisonment in which a prisoner is isolated from any human contact. It is an aggravated form of punishment. It is said that it fully exploits and destroys the sociable nature of men. Critics say that it is inhuman too.

f. Indeterminate Sentence- In such a sentence, the accused is not sentenced for any fixed period. The period is left indeterminate while awarding and when the accused shows improvement, the sentence may be terminated. It is also reformative in nature.

11. Administration of Justice according to Law

01. Views of Theorists on the ‘Importance of Justice

a. Salmond- Salmond said that the ‘Definition of law itself reflects that Administration of Justice has to be done by the state on the basis of rules and principles recognized’.

b. Roscoe Pound- He believed that it is the court who has to administer justice in a state. Both, Roscoe Pound and Salmond emphasized upon the Courts in propounding law. However, Roscoe Pound stressed more on the role of courts whereas Salmond stressed more on the role of the State.

02. Administration of Justice

There are two essential functions of every State

a. War

b. Administration of Justice

Theorists have said that that if a state is not capable of performing the above mentioned functions, it is not a state.

Salmond said that the Administration of Justice implies maintenance of rights within a political community by means of the physical force of the state. However orderly society may be, the element of force is always present and operative. It becomes latent but it still exists.

Also, in a society, social sanction is an effective instrument only if it is associated with and supplemented by concentrated and irresistible force of the community. Social Sanction cannot be a substitute for the physical force of the state.

03. Origin and Growth of the concept of Administration of Justice

It is the social nature of men that inspires him to live in a community. This social nature of men demands that he must reside in a society. However, living in a society leads to conflict of interests and gives rise to the need for Administration of Justice. This is considered to be the historical basis for the growth of administration of justice.

Once the need for Administration of Justice was recognized, the State came into being. Initially, the so called State was not strong enough to regulate crime and impart punishment to the criminals. During that point of time, the law was one of Private Vengeance and Self-Help.

In the next phase of the development of Administration of Justice, the State came into full-fledged existence. With the growth in the power of the state, the state began to act like a judge to assess liability and impose penalty on the individuals. The concept of Public Enquiry and Punishment became a reality.

Thus, the modern Administration of Justice is a natural corollary to the growth in the power of the political state.

04. Advantages and Disadvantages of Legal Justice

Advantages of Legal Justice

i. Uniformity and Certainty- Legal Justice made sure that there is no scope of arbitrary action and even the judges had to decide according to the declared law of the State. As law is certain, people could shape their conduct accordingly.

ii. Legal Justice also made sure that the law is not for the convenience of a particular special class. Judges must act according to the law. It is through this that impartiality has been secured in the Administration of Justice. Sir Edward Coke said that the wisdom of law is wiser than any man’s wisdom and Justice represents wisdom of the community.

Disadvantages of Legal Justice

i. It is rigid. The rate of change in the society is always more rapid than the rate of change in the Legal Justice.

ii. Legal Justice is full of technicalities and formalities.

iii. Legal Justice is complex. Our society is complex too. Thus, to meet the needs of the society, we need complex laws.

iv. Salmond said that ‘law is without doubt a remedy for greater evils yet it brings with it evils of its own’.

05. Interrelation between Law and Justice

Law and Justice Critically analyse the relationship between law and justice. In order to achieve justice, countries institute a legal system of some sort. However, sometimes those systems are flawed, and therefore, an injustice will occur, such as when innocent people are convicted of crimes they did not commit. The most common example used being the numbers cases. Justice is an entirely subjective concept, largely depending on political affiliation, and previous experience of the legal system. Similarly to law, there is a vast amount of documentation providing different definitions and different theories of justice. The Greek philosopher Aristotle was one of the earliest thinkers in relation to justice, and his theories are still influential today. Aristotelian justice is based upon the premise that a just law will allow citizens to fulfil their potential in society, and therefore developed the theory of distributive justice. As opposed to corrective justice, distributive justice is concerned with allocation of assets such as wealth and honour, and achieving proportion. However, Aristotle believed that individuals should receive benefits; however benefits should be given to individuals in proportion to their individual claim. On the other hand, corrective justice is an application of disturbed distributive justice, by a wrongdoing. A judge is supposed to find out what damage has been done, and then attempt to restore equality by both confiscation and compensation. Similarly, Aquinas believed that laws should serve the "summum bonum" or "common good", and that all laws are derived from a higher order, or a system of natural law, and this natural law is derived from God.

12. Law and Morality – interrelation

Hart does take morality seriously. Hart stated that law and morality are very close, though not necessarily related. He is deeply sympathetic to what he calls "the core of good sense of natural law" and believes that law should continually be subject to moral scrutiny. Hart endorses the formal principle of justice as desirable in any legal system. This basic principle of fairness emphasizes that laws should treat like cases alike, and different cases differently. This constancy is necessary to give moral legitimacy to a legal order. Now one should be careful not to put too much weight on this principle, as the commentator Frankena perceptively reminded us through the following example. The mad king of Transylvania had just called all of his subjects together. He showed them a huge vat of acid, which, if one were to jump into it, would cause instantaneous death. He ordered all of his subjects to jump into the vat and then jumped in himself. The formal principle of justice was adhered to; yet the principle did not successfully ground a moral system. Material principles were clearly needed as well.

Impartiality in rule application is a moral standard which, according to Hart, is necessary in a legal system. Thus, any judge applying a particular legal rule is expected to do so uninfluenced by, to use Hart's words, "prejudice, interest, or caprice. "Once again, however, the notion of impartiality will not take us too far down the road to morality. Hart himself noted "though that most odious laws may be justly applied, we have, in the bare notion of applying a general rule of law, the germ at least of justice.'' This is not the same as the formal principle of justice since the judge could show adherence to the principle of formal justice and yet be influenced by "prejudice, interests or caprice."

13. Enforcement of Morals through Law

What kinds of conduct ought to be criminalized? According to a position known as legal moralism, the criminal law ought only to prohibit immoral/wrongful conduct. That is to say: a necessary condition for the criminalization of any conduct is that the conduct be immoral.

Legal moralism does not state a sufficient condition for criminalization. It just limits the possible scope of criminal law to the set of immoral conduct. Follow up questions must be asked of the moralist. Which members of that set are most apt for criminalization? What kinds of factors speak against the criminalization of immoral conduct? Only when those questions are will we be able to tell whether a particular type of conduct ought to be criminalized.

A common view among liberal legal theorists is that criminalization should be restricted to that subset of immoral conduct that causes harm to others. This view was famously set out in John Stuart Mill’s On Liberty. Something akin to it was also defended, at much greater length, by Joel Feinberg in his four-volume work The Moral Limits of Criminal Law (though Feinberg added that some offensive acts could be criminalized too).

Recently, some people have tried to defend more expansive versions of legal moralism. In this series of posts, I want to take a look at one of those defenders: Steven Wall. In his article “Enforcing Morality”, published last year in the journal Criminal Law and Philosophy, Wall defends something he calls the “Presumption”:

The Presumption: There is a presumption in favour of the view that criminal law should prohibit conduct that is immoral, even if that conduct is neither harmful nor disrespectful to others.

Wall breaks his defence of the presumption down into three parts. The first part is dedicated to clarifying the presumption. The second part presents an argument in favour of the presumption. And the third part defends that argument from some criticisms posed by Ronald Dworkin. I’m going to replicate his tripartite structure in this series of posts. Thus, the remainder of this post is dedicated to clarifying the thesis. The argument and the response to criticisms will be taken up in subsequent posts.

01. What is the scope of morality?

If the legal moralist believes that only immoral conduct can be criminalized, then it behooves him/her to first trace out the general domain of morality. In tracing out the domain of morality, the goal is to identify the objects of moral concern, i.e. the things we should care about protecting. Once we do this, we can link wrongful conduct to the violation or destruction of those objects of moral concern, and thence determine what kinds of conduct might be worthy of criminalization.
Thankfully, Wall is willing to play this game. He suggests that morality consists of four separate “domains” of concern. They are:

Autonomy: This refers to the individual right to self-determination. This is understood as the freedom to make choices from a wide range of valuable options. This right ought to be protected from coercive and manipulative types of interference.

Well-being: This refers to things that are in person’s interests (or, put another way, what is good for a person). Ceteris paribus, we should look to increase well-being and prevent its diminishment.

Character: This refers to a person’s traits and dispositions. The morally ideal person would have traits and dispositions that direct them toward moral actions. Again, ceteris paribus, we should look to cultivate such traits and dispositions.

Excellence: This refers to objects of impersonal intrinsic value. Wall gives the examples of the paintings in the Louvre or the natural beauty of the Grand Canyon. The claim is that if these objects have a value that is not fully accounted for by their effects on autonomy, well-being or character, then they belong in a distinct domain of moral concern, and we ought to protect them from destruction or denigration.

These four domains of moral concern are illustrated in the four-quadrant diagram below.

Now that we have a better sense of the domains of moral concern, we can be much more precise in our characterisation of legal moralism. We need no longer rest content with the general principle that only immoral conduct can be criminalized; we can say exactly which domains of moral concern ought to be covered by that principle.

02. Which domains of moral concern ought to be covered by the criminal law?

Of course, working out exactly what is meant when someone calls themselves a legal moralist is still going to be a complicated thing. If we accept Wall’s four domains of moral concern as our starting point, we are still left with the fact that are as many different forms of legal moralism as there are combinations of those four domains. In other words, there is a version of legal moralism which holds that criminal law should only concern itself with protecting autonomy; another version which holds that criminal should concern itself with both autonomy and well-being; and another claiming that it should cover well-being and character, but not autonomy. And so and so on. This doesn’t even begin to include versions of moralism that are possible when you break the four domains of moral concern down into more even more precise sub-domains.

Fortunately, many of these possible varieties of legal moralism can be ruled out pretty quickly. For example, it is highly unlikely that anyone would endorse a version of moralism that said that the criminal law should concern itself with protecting objects of excellence but nothing else. There are certain things that everyone seems to agree should be within the scope of the criminal law.
Still, there are plenty of variants worth considering. Wall mentions six. These variants tend to build upon one another. Thus, when we move through them we will tend to assume that we have already accepted the preceding variant. Wall refers to these variants as “Enforcement Theses”, on the basis that they each make claims about the moral norms the criminal law ought to enforce.
The first enforcement thesis is:

E₁: It is a proper function of the criminal law to enforce respect for the autonomy of persons.

This is a pretty common starting point for all liberal theories of criminalization. It is a quasi-Kantian in nature since it encourages us to use the law to respect persons. It is not a version of the “harm” principle. The concept of “harm” can include more than simply the violation of autonomy.
The second enforcement thesis is:

E₂: It is a proper function of the criminal law to protect persons from rights-violations that lower their well-being.

The lowering of well-being is a classic form of harm, hence this enforcement thesis is closer to the harm principle of the liberals. But two points must be noted. First, the concept of “harm” is pretty fuzzy. If we were sufficiently loose with our definition, it could include wrongful actions from all the other domains of morality. That would arguably make the harm principle pretty trivial. The second point is that E₂ is limited to “rights-violations” that lower well-being. This is so as to exclude self-harm from the scope of the criminal law.

But is it right to exclude self-harm? The boilerplate liberal position is that it is right to do so on the grounds that interference in acts of self-harm would be paternalistic and insufficiently protective of individual autonomy. There are, however, more nuanced forms of liberalism that distinguish between hard and soft versions of paternalism. The distinction can be captured by the third and fourth enforcement theses:

E₃: It is a proper function of the criminal law to restrain persons from harming themselves when they act with a defective will (soft paternalism) 

E₄: It is a proper function of the criminal law to restrain persons from harming themselves when they act with a non-defective will (hard paternalism)

The soft paternalist view is that some people are mentally ill or disturbed or otherwise lacking in mental capacity. If these people harm themselves, it is right for the law to step in and regulate their behaviour (though one has to ask whether criminalization could ever be the best solution to this problem). Contrariwise, the soft paternalist thinks that if a fully competent adult harms themselves, it is not a proper function of the law to intervene.

Hard paternalists hold that the law can step-in in both instances. Interestingly enough, Wall cites the famous legal theorist HLA Hart as a potential proponent of paternalism (maybe even in its hard variety). This is odd given Hart’s liberal sensibilities. But it’s hard to say for sure since Hart’s writings didn’t distinguish between the two varieties. Wall feels more confident in saying that there are many contemporary liberal theorists who endorse E₃ but reject E₄.

Given the vagueness of the term “harm”, Wall argues that paternalism could be expanded so as to include the concept of “moral harm”, that is: harm to one’s own (or indeed another’s) moral character. This would bring the domain of character within the scope of the criminal law. As follows:

E₅: It is a proper function of the criminal law to promote good character, and to restrain or discourage people from engaging in activities that cause moral harm to themselves or others.

The idea here is that having a good moral character is part of what it means to live a good life, and if the law can intervene to protect individual well-being from self-harm then why can’t it also intervene to protect moral character from self-harm?

This then brings us to the sixth possibility:

E₆: It is a proper function of the criminal law to preserve objects of excellence and to ensure that they are respected.

Walls suggests that laws against the destruction of artwork or sites of natural beauty could be possible instantiations of this thesis. But he doesn’t dwell on the matter.

With these six enforcement theses in place, we gain a much clearer understanding of what it means to be a legal moralist. If you like, you can look at legal moralism as a spectrum of views, with these six enforcement theses representing different points along this spectrum. The most minimalistic forms of legal moralism will only accept E₁ and E₂; the most expansive forms will accept all six theses. The classic, liberal view, typically covers E₁ to E₃; the more recent moralistic view tries to push us into the E₄ to E₆ half of the spectrum.

Wall’s argument fits within this spectrum of views. It urges us to accept E₅ at a minimum. In other words, to accept that there is a presumption in favour of the view that the criminal law can properly concern itself with improving moral character. We’ll look at his argument in favour of that presumption in part two.

14. Hart and Fuller Debate

The Hart–Fuller debate is an exchange between Lon Fuller and H. L. A. Hart published in the Harvard Law Review in 1958 on morality and law, which demonstrated the divide between the positivist and natural law philosophy. Hart took the positivist view in arguing that morality and law were separate. Fuller's reply argued for morality as the source of law's binding power.

Positivists believe in a separation between the law as it is and the law as it should be. Legal rights and moral rights are not related, beyond mere coincidence. Hart believes the method of deciding cases through logic or deduction is not necessarily wrong, just as it is not necessarily right to decide cases according to social or moral aims. Hart uses the problem of "the core and the penumbra" to illustrate the idea that laws must be related to the meaning of the words, not any natural or moral belief. A "core" case would be one that the statute is intended to cover. In the classic example, a statute that bans vehicles from a park is obviously intended to cover cars. A "penumbra" case would be one not considered by the creators of the law, such as a skateboard in the example above. A judge interpreting such a law from a positivist viewpoint would look to a definition of the words in the statute. The natural law view believes that the creation of law should be based on natural laws or common morals.

15. Hart and Devlin Debate

Hart-Devlin Debate	The issue of legalising of homosexuality and prostitution was investigated by the Wolfenden Committee headed by Sir John Wolfenden.  The Report claimed that it is not the duty of the law to concern itself with immorality. Professor Hart, and Patrick (later Lord) Devlin (Law Lord) contributed to the debate. It was argued that homosexuality should be decriminalisation on the basis of: 1) Freedom of choice 2) Privacy of morality
Devlin’s position	Law without morality, said Devlin  “… destroys freedom of conscience and is the paved road to tyranny”. Devlin appealed to the idea of society's "moral fabric." He argued that the criminal law must respect and reinforce the moral norms of society in order to keep social order from unravelling. "Societies disintegrate from within more frequently than they are broken up by external pressures. There is disintegration when no common morality is observed and history shows that the loosening of moral bonds is often the first stage of disintegration, so that society is justified in taking the same steps to preserve its moral code as it does to preserve its government... the suppression of vice is as much the law's business as the suppression of subversive activities." Devlin, "The Enforcement of Morals" (1959) Devlin’s view was that any category of behaviour was capable of posing a threat to social cohesion.  Therefore, morals laws are justified to protect society against the disintegrating effects of actions that undermine the morality of a society. This social cohesion argument, i.e. the notion of a shared morality was he said necessary for the survival of society. However, what is not clear is what “society” is and whether society's views are always correct. Devlin argued that immorality is what every right-minded person considered immoral. Devlin argued that there could be no theoretical limit to the reach of law; no acts are “none of the laws business”. (Margaret Thatcher once declared, "There's no such thing as society, there are individual men and women and there are families.") Devlin suggested that the common morality could be discerned by asking "What is acceptable to the ordinary man, the man in the jury box, who might also be called the reasonable man or the right minded man" Devlin chose the man in the jury box because; a) The verdict of a jury (twelve men and women) must be unanimous (at the time he was writing) b) The jury will only reach its verdict after the issue has been fully examined and deliberated. c) The jury box is the place where the ordinary person's conception of morality is enforced. Devlin "The Enforcement of Morals" (1959) Devlin's guidelines Privacy should be respected. Law should only intervene when society won't tolerate certain behaviour. Law should be a minimum standard not a maximum standard.
Hart’s position	Hart warned against the dangers of “populism”.  Why should the conventional morality of a few members of the population be justification for preventing people doing what they want? This is based on the theory that most people's views are coloured by superstition and prejudice.  Hart reiterated Mill's "harm principle", Hart pointed out that societies survive changes in basic moral views. It is absurd to suppose that when such a change occurs, to say one society has disintegrated and been succeeded by another. Both Hart and Devlin raise important issues. Devlin's view is pragmatic and focused on the majority rule. Harts is more humanistic and individual.
Dworkin	Dworkin suggests that we should abandon the Hart-Devlin debate and concentrate of Liberties.  If a behaviour is a Basic Liberty (like sex), this should never be taken away, even if someone has a different way of 'doing' sex e.g. R v  Brown (The Spanner Case)  General liberties could be restricted if they cause harm.  But, it is not clear how you tell the difference between a basic and a general liberty?

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[i] Visualization of Hans Kelsen’s Pure Theory of Law  by Vytautas Cyras et al