Abstract
This chapter depicts John Austin’s and Hans Kelsen’s theories of law as basic prototypes of legal positivism and then examines Hart’s criticisms to them. The chapter shows that Austin and Kelsen were primarily intent on setting the borders of jurisprudence as a new scientific discipline. Austin’s insistence on the fact that the subject matter of jurisprudence must be positive law was instrumental in defining the borders of this new science. He believed that legal theorists need criteria for determining whether something is legal or not. According to him, legal theorists are simply required to ascertain if what is under scrutiny is the command of someone who is habitually obeyed by the bulk of the population and who has no habit to obey anybody else. Kelsen thought that this view turned out to render legal theorists into sociologists required to scrutinise actual reality in order to verify if such commands are socially effective. He thus proposed a ‘purifying’ amendment to legal positivism. He argued that legal theorists must provide a description of law as it is, regardless of whether its rules are concretely followed. The chapter continues by examining Hart’s attempt to overcome some of the puzzles and dilemmas occurring in Austin’s and Kelsen’s types of positivism. Hart’s basic argument is that those who defend the idea that there is a basic and uniform type of rules conceive of the legal order as an artificial device meant to outline certain conducts and to discourage them by threatening disadvantages. Consequently, he claims, these scholars fail to understand how law really works in social life. To show this, Hart develops two robust lines of argument, which however prove not to be decisive for rebutting Austin’s and Kelsen’s conceptions of rules.
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Notes
- 1.
Author’s translation.
- 2.
- 3.
Gaius (Institutiones 1,1) maintains that “all peoples ruled by laws and customs employ a law which is partly peculiar to them and partly shared by the whole of mankind” (author’s translation). Neither of these kinds of law is seen as commands, but, respectively, as the internal organisation of a social body and as the natural law of reason.
- 4.
Emphasis added.
- 5.
Unlike Hobbes, Austin did not believe judicial legislation to be inadmissible, though he was a fierce supporter of codification and legislative law. But what really counts here is not the tolerance or the refusal of judge-made law, but its position within the legal system: judicial legislation could represent neither an alternative way for producing law nor an alternative source. Also Kelsen demonstrates that at the heart of positivism there is not the battle against judicial powers. He acknowledges that judicial decisions may also create “a general norm”, but solely provided that it is “clearly distinguished from the creation of general norms through permanent practice of the courts” (Kelsen 1945, 149–150).
- 6.
This is proven by the fact that to the two mentioned criteria (i.e. the habitual obedience of a population to a commander and the absence of a similar habit on the part of the commander) Austin added a further criterion, namely that a society must be “somewhat advanced in civilization” (ibid., 173). However, such a criterion appears to be all too arbitrary to serve its task of criterion.
- 7.
It is highly significant that in the Digest (Constitutio Deo auctore, 12) Justinian, the first Emperor who managed to render the whole Roman legal tradition into a sole written corpus (though monumental), explicitly prevented jurists from commenting upon it: “[N]o person learned in the law shall dare hereafter to add any commentaries thereto, and to confuse by his own prolixity the abridgement of the aforesaid work, as was done in former times, for almost all law was thrown into confusion by the opposite opinions of those interpreting it”. This is evidence that the demands for certainty and clarity were not a concern of enlightened philosophers of the nineteenth century only, but were frequently instrumental in the reduction in the sources of law.
- 8.
It is worth noting that there are many significant differences among the first edition of Kelsen’s Reine Rechtslehre: Einleitung in die rechtswissenschaftliche Problematik, published in 1934, and translated into English in 1967 with the title Introduction to the Problems of Legal Theory, and the second edition, completely revised, published in German in 1960 and translated into English with the title Pure Theory of Law. However, these differences do not affect the main thrust of my argument here and hence I will omit to discuss them.
- 9.
I think my reading to be somehow close to that of Neil MacCormick (1998a, 497), especially when he says that “[o]ne of Hans Kelsen’s greatest contributions to the theory and philosophy of law was to have shown the incorrectness of” the idea that law’s normative power arises out of “the fact that law includes norms of competence or power-conferring rules as part of its raw data”. MacCormick claims that, on the contrary, Kelsen has clarified that “[t]he systematized character of law (where it exists) is product of legal science and legal theory, not a datum for it” (ibid.). In this interpretation, power-conferring rules are not an intrinsic element of law, but a conceptual tool that is instrumental in its systematisation.
- 10.
Ross’s reflections on the nature of legal norms as well as on the role of legal theorists are even plainer. Karl Olivecrona had already condemned the voluntarist roots of both natural law theory and legal positivism (see Peczenik 2008, 211–213) so as to present legal rules as “independent imperatives”. Ross (1951/2004, 8) agrees with him but prefers the term ‘directives’, namely utterances “with intent to exert influence” (ibid., 6), since legislative organisms have the “social intention” to influence the members of their society, although such an intention is not proper of single individuals. Moreover, he argues that all norms, including norms of competence, can be reduced to norms of conduct: “Norms of competence are logically reducible to norms of conduct in this way: norms of competence make it obligatory to act according to the norms of conduct which have been created according to the procedure laid down in them” (Ross 1968, 118). Doctrinal propositions, on their part, have a twofold nature. When referred to students of law, they are utterances about the validity of legal norms; when intended to tell how legal rules should be interpreted, they are directives aimed at influencing the judges.
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Unfortunately, different authors render these distinctions into different terms (to the extent that they use the same signifier for referring to a different signified) and therefore it is not easy to provide a common reconstructive framework. I will thus use the general term ‘secondary rule’ as Hart generally employs it, namely to denote different rules from those aimed at forbidding certain conducts deemed as detrimental to society. Of course, as we will see in the following pages, such an employment leads to many ambiguities.
- 12.
As Dennis Patterson (2009, 119) correctly observes, “Hart came to jurisprudence with only the Command Theory in view”.
- 13.
Emphasis added.
- 14.
See e.g. Zaibert and Smith (2007).
- 15.
Author’s translation. Emphasis added.
- 16.
In my view, there are stronger reasons for refusing to compare Hart with Searle. Firstly, it is central to the distinction operated by Searle to mention a previous distinction between “brute” and “institutional” facts, which, as George Fletcher (2003, 93) explains, breaks down in the field of legal practice, since “[t]here are many mixed questions of fact and law, which are left to the jury’s determination”. Secondly, as I showed elsewhere (see Croce 2010, 28–41), constitutive rules cannot be defined as rules at all, in that they are pre-intentional causal mechanisms operating at a neurophysiologic level.
- 17.
Emphasis added.
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Croce, M. (2012). Legal Theory as a Scientific Discipline and the Variety of Rules. In: Self-sufficiency of Law. Law and Philosophy Library, vol 99. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-4298-7_1
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