LIA3001 - Legal Positivism - Austin Bentham Hart PDF

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1. Explain how identification and separation theses in legal positivism developed from Bentham and Austin’s criticisms of natural law.(15 marks)Legal positivism essentially emerged to rebut the natural law theory; in that it seeks to establish that morality plays no part in determining what law is. ...

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1. Explain how identification and separation theses in legal positivism developed from Bentham and Austin’s criticisms of natural law. (15 marks) Legal positivism essentially emerged to rebut the natural law theory; in that it seeks to establish that morality plays no part in determining what law is. Author Prof Hari Chand in his work called “Modern Jurisprudence” has set forth a good interpretation of legal positivism, whereby it is concerned with describing law in respect to a particular time and place by referring to formal (rather than moral or ethical) criteria of identification. Here, Prof Hari Chand is saying that the legal positivists do not negate the idea of morality under natural law per se, but rather they think it is not a relevant criteria in identifying what is a valid law. Therefore, the positivists’ theory of law is not only focused on analyzing what law is, but it also intends to produce this formal criteria of identification. At the core of legal positivism are these two identification and separation theses. Identification thesis (or pedigree thesis) aims to address the question of ‘what law is’, and this can be done by way of analyzing the law. The legal positivists asserted that it is important to analyze and know what law is in order to define and conceptualize the law. This illustrates their notion of legal jurisprudence as being analytical rather than normative as purported by natural law. Meanwhile, separation thesis seeks to address the questions of ‘what law is’ and ‘what law ought to be’ separately. This is grounded on the positivists’ idea that the analysis of law is not dependent on the morality of law, meaning that law need not undergo the normative evaluation of law for it to be valid as according to natural law. Thus, the separation thesis is a matter of separating these two inquiries. These two theses can be said to be a product deriving from Bentham and Austin’s criticisms of natural law, whose theories of legal positivism are formulated on the common idea that law and morals have no necessary connection. Bentham began his criticism by contending that there is a need to distinguish expositorial jurisprudence from censorial jurisprudence. Expositorial jurisprudence deals with the question of ‘what law is’. This is related to the identification thesis under legal positivism as mentioned earlier, where it focuses on analyzing the meaning of law to the fullest extent. On the other hand, censorial jurisprudence seeks to answer the question of ‘what law ought to be’. This is what we commonly know as normative jurisprudence under natural law, where it is crucial to evaluate the moral basis of a law in order to render it a good and valid law that is consistent with natural law. As such, this is the positivists’ separation thesis, which aims to separate the question of ‘what law is’ from the question of ‘what law ought to be’. Thus, Bentham took the view that legal positivism is a branch of expositorial jurisprudence as he is concerned with analyzing law as it is and not as it ought to be. In order for us to further understand Bentham’s criticism of natural law, we have to look into his description of natural rights. Bentham is famously known for his controversial statement that natural rights are just ‘nonsense on stilts’. This is stemmed from his disapproval of Locke’s belief that law must be consistent with natural rights, and he contended that this needs to be further analyzed. To Bentham, the notion of natural rights is not propounded in such a way that they could ever be

useful. What he meant by ‘nonsense on stilts’ is that natural rights do not really have a real existence unless and until it becomes law. A person may claim whatever rights that they might have, but it is not existent until it becomes law. Only by becoming law can the right be used to protect individuals and be adjudicated on. Thus, to Bentham, for rights to be protected, it needs to be manifested in the form of law, and this can be done by way of identification thesis. Much like Bentham, Austin’s criticism of natural law is also pertaining to the lack of connection between law and morality. Further to the separation thesis argument is his contention that the existence of law is one thing, its merit and demerits is another. According to Austin, the two fields of inquiry must be addressed separately, namely i) the question of the existence of law; and ii) the question of whether law is good or bad. Here, we can see that Austin is opposed to the natural law doctrine of “lex in justa non est lex” or ‘an unjust law is not a law’ because he does not think that a law should be analyzed or determined according to its moral or ethical values. To him, the study of knowing what law is should not overlap with the question of whether a law is good or bad. As such, the separation thesis plays a vital role in his positivist theory because to him, what the law is should be separated from what it ought to be, and he believed that the focus should be more analyzing law as it is rather than delving into the evaluation of law based on moral standards. On that account, it can be inferred that the significant difference between natural law and legal positivism is through its approach to the validity of law. From the perspective of natural law, a law is valid if it is consistent with natural law, hence, a law that is inconsistent with natural law would be deemed invalid as it fails to fulfil the quality or standard of a law. This notion of validity is necessary under natural law for a law to be moral and legitimate because a law that is immoral or illegitimate (due to its inconsistency with natural law) will not be able to command obedience on those whom the law is directed at. Therefore, a law that lacks consistency with natural law will therefore lack acceptance or fidelity by the people. On the other hand, from the perspective of legal positivism, a law is valid if it fulfils the criteria of identification. Here, the notion of validity according to legal positivists is more concerned on the fulfilment of the criteria of identification by way of identification thesis, rather than taking into account the question of morality. Unlike natural law, the validity of law will not be affected even if it is inconsistent with natural law. This would mean that a law, even if it is immoral, is still a law. This further illustrates the common theme in legal positivism in that the principle of morality is irrelevant to the identification of what law is. As such, the criteria of identification is paramount in determining what law is according to legal positivism. As a conclusion, legal positivism is regarded as one of the most prominent schools of thought in legal jurisprudence, and both Bentham and Austin had played a huge role in developing this school. This can be seen through the conception of the identification and separation theses, which arose from their criticisms of natural law that law and morality have no necessary relation and that law should be analyzed as it is and not as it ought to be. (1209 words)

2. Explain how Hart’s analysis of law as social rules provides the foundation for his conception of law as the union of primary and secondary rules. (15 marks) Hart departed from the classical legal positivists’ theory of law as orders backed by threat and instead argued that law is a form of social rules, putting Austin's idea of law aside. Rather than using the words ‘orders’ and ‘command’, he opted for the word ‘rules’ in describing law to correlate it with social rules. His notion suggests that law is a form of social construct, as obedience is also achieved through various other forms of social obligation including norms, customs, traditions, moral codes, and social practices. Thus, Hart presented a social analysis of obligation and obedience which is divided into two big parts, namely social habits and social rules. Before diving into his analysis of law as form of social rules, it is necessary to distinguish it from social habits. Social habits are where members of a group would do certain things or behave a certain way in a consistent manner, however they do not consciously strive to maintain that habit is as there is no coercion or social pressure to conform, nor are there any social consequences for failure to conform. On the other hand, social rules are where members of the group are aware of the existence of the rule and collectively strive to observe the rule as a standard. Unlike social habits, there is an apparent social pressure to conform to social rules, and failure to observe such rules will warrant criticisms rather than physical sanction. Hart went on to divide social rules into two, namely social conventions and rules which constitute obligation. Social conventions include ‘situational’ matters such as etiquettes in a specific social event, whereas rules which constitute obligation are rules that require an insistent demand to conform. The difference between the two rules is that while failure to observe social conventions would merely subject the member to criticisms by other members of society, rules which constitute obligation impose a higher demand of conformity and a stronger pressure to observe them. Additionally, rules which constitute obligation can be further divided into two, namely moral obligations and rules which take the form of law. Moral obligations are rules forming part of the moral codes of the society. They are usually customary in origin and the pressure to conform might come in the form of verbal “sanction” such as words of disapproval. Rules which take the form of law, however, exist when the pressure to conform includes physical sanctions. Regardless of the differences, both forms of obligatory rules give rise to a serious social pressure for conformity to such rules, which set it apart from the mere social convention. Further to his analysis of law as social rules is his notion of internal and external aspects of law, which concerns his explanation of law as a form of obligation. To Hart, law is not obeyed simply due to its coercive force, but also because there is an internal sense of obligation. Here, the external aspect of law can be seen through Austin’s idea that people conform to the law because of an external source of coercion, such as fear of sanction or sovereign. Meanwhile, the internal aspect of law is derived from Hart’s belief that people obey the law because they are driven internally; that they themselves feel they have the duty to do so. In a sense, this is Hart’s way of saying that law is a form of social rules in that there is an acceptance of the law which

stemmed from an internal sense of duty, thus resulting in obedience. Here, Hart suggested that such obedience is better off described as ‘compliance’. Central to Hart’s theory of legal positivism is that law is a matter of rules. Here, it is essential for us to understand how do rules become law. According to Hart, law is the product of the union of primary and secondary rules. He referred to this union as the “heart” of the legal system. Primary rules are what Hart described as duty-imposing rules. They impose specific duties and obligations upon the people. In other words, they are “basic” rules that tell people what to do and what not to do under the law. An example would be the prohibition of stealing or harming others. Primary rules can also be understood as part of social rules. Meanwhile, secondary rules are what Hart referred to as power-conferring rules, which confer power upon a legislative body to recognize, change and adjudicate primary rules. A good example of power-conferring rules would be the Constitution, which creates the legislative body and thus presumes the existence of a legal system. A question that commonly arises as to Hart’s notion of law is; why is there a need for secondary rules in order for law to exist? In answering this, Hart suggested to us to imagine a society governed by only primary rules. In doing this, he illustrated a hypothetical ‘pre-legal society’, where members of society solely relies on primary rules to govern their behaviour due to the inexistence of a legal system. What they have in this society is a sense of obligation that existed internally rather than forced externally. However, in this pre-legal society, Hart identified a number of problems with the sole reliance on primary rules. He discovered three defects namely uncertainty, static, and inefficiency. Firstly, Hart believed that primary rules can often be uncertain. For instance, the prohibition of harming others is vague as to what extent would “harm” cover? Does it include emotional harm as well or is it confined to physical harm? Secondly, the issue with primary rules is that it can be static. This is apparent in cases pertaining to customs and traditions as they are often entrenched culturally and due to this entrenched nature, it would be difficult to change or depart from it. Thirdly, primary rules are found to be inefficient due to the lack of mechanism to resolve disputes, mainly the absence of punishment to violators. Therefore, these defects, until it is remedied, will perpetuate non-legal status. In addressing such defects found in the primary rules, Hart came up with three secondary rules namely rules of recognition, rules of change, and rules of adjudication which deal with the three defects of uncertainty, static and inefficiency respectively. Firstly, rules of recognition deal with the issue of uncertainty in the law by establishing a formal distinction between rules which are law (legal rules) and rules which are not laws (social rules). Here, rules of recognition will provide a formal process which converts social rules into law, which then distinguishes law from other social rules such as moral obligation. Due to the existence of this formal process, there is a need for the creation of an institution to exercise it. Hence, secondary rules would confer power to these lawmaking institutions to recognise certain aspects of the primary rules and convert it into law. In short, law in the form of primary rules is uncertain but it can be made certain through the process of rules of recognition. Here, it must be noted that certainty is a crucial element to the legal positivists, as they believe that law is and has to be certain. Additionally, we need to remember that rules of recognition need not be legalistic, or in other words, it does not have to be a law.

This is because Hart is of the view that this rule is accepted internally rather than externally. Another form of secondary rules are rules of change, which address the concern of primary rules as being static by allowing changes to be made to the primary rules. What this rule basically does is that it confers power upon the legislature to make amendments to the existing rules and tweak them into a more certain, relevant law. The third type of secondary rules are rules of adjudication, which solve the problem of inefficiency by providing a mechanism to resolve dispute. These rules mainly empower the judges or courts to adjudicate or enact law. In essence, Hart’s analysis of law as social rules has provided the foundation for his conception of law as the union of primary and secondary rules through his understanding that law is not simply a product of sovereign command as purported by Austin, but rather law is derived from social rules. However, social rules or primary rules alone are not enough for law to emerge as they are tainted with defects. This is why secondary rules came into existence, as Hart believed that they can supplement and rectify such defects found in the primary rules. In short, this led to the union of primary rules and secondary rules, as they work hand in hand for law to exist in Hartian positivism.

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