PHIL 4110: Philosophy of Law

Dr. Robert Lane

Lecture Notes: Monday February 19, 2007

[2.3.] Legal Positivism.

Once again, legal positivism can be summarized as follows:

(LP1) The Social Thesis: whether a rule or principle counts as law in a given society is a matter of nothing but
social convention; more specifically, the law for a given society is just whatever has been enacted by the
lawmaking agency of that society.

(LP2) The Separability Thesis: law is completely separate from morality; more specifically, the question
whether a principle is a law is separate from the question of that principle/law’s morality.

And again, LP does not deny that laws can be evaluated from a moral point of view. You can accept LP and still
think it makes sense to ask whether a law is morally good.

We will look at the traditional legal positivism of John Austin and the modern legal positivism of H. L. A. Hart.
But first, we need to look at an important philosophical distinction that positivists can use to help clarify exactly
what their position is.

[2.3.1.] Hume and the Is/Ought Distinction.

But LP does insist on that there is deep distinction between the descriptive (what is) and the
normative/prescriptive (what ought to be).

This is a distinction that David Hume (1711-1776, Scottish; leading member of the philosophical tradition called
empiricism) famously insisted upon. Hume was not a legal positivist, but his is/ought distinction can be used to
[1]
make one of positivism’s central points. [See the long passage from Hume, quoted at p.68].

According to Hume, you cannot derive an “ought” from an “is.” In other words, the way things actually are
does not imply anything about the way they should be. In particular, it does not imply anything about the way
people should behave. An argument that has premises all of which are descriptive, and a conclusion that is
normative, must be invalid—descriptive claims never imply normative claims.

Hume supported this assertion with the following argument:

Take any action allow'd to be vicious: Wilful murder, for instance. Examine it in all lights, and see if you can find that
matter of fact, or real existence, which you call vice. In which-ever way you take it, you find only certain passions,
motives, volitions and thoughts. There is no other matter of fact in the case. The vice entirely escapes you, as long as
you consider the object. You never can find it, till you turn your reflection into your own breast, and find a sentiment
of disapprobation, which arises in you, towards this action. Here is a matter of fact; but `tis the object of feeling, not of
reason. It lies in yourself, not in the object. So that when you pronounce any action or character to be vicious, you
mean nothing, but that from the constitution of your nature you have a feeling or sentiment of blame from the
[2]
contemplation of it.
Legal positivists maintain that whether a given rule or principle counts as law in a given society is a simple
factual matter, a matter of what is. Whether it ought to be a law is an altogether different question.

[3]
[2.3.2.] John Austin.

 1790-1859; English
 served for five years in the British army
 went into law, but was not very successful
 began teaching jurisprudence (study, theory and/or philosophy of law) at the University of London, but didn’t
attract many students
 his lectures were published as The Province of Jurisprudence Determined (1832)
 not to be confused with 20th century analytic philosopher John L. Austin
 a proponent of utilitarianism, along with Jeremy Bentham.

Hart succinctly describes the way Austin used the is/ought distinction:

… first, in the absence of an expressed constitutional legal provision, it could not follow from the mere fact that a rule
violated standards of morality that it was not a rule of law; and, conversely, it could not follow from the mere fact that
a rule was morally desirable that it was a rule of law. (Hart, quoted at Simon, pp.76-77)

Austin wished to make jurisprudence scientific, and to that end he wanted to distinguish all those principles
which are genuine laws from those which are not. Only genuine laws are the proper subject for a science of
jurisprudence. It should not concern itself with those principles or rules that are commonly called “law” but which
are merely laws by analogy (codes of honor, international law) or laws by metaphor (laws of nature, laws of
animal or human instinct).

Austin defined law in a purely descriptive way. His particular descriptive definition has become known as his
command theory of law:

law (Austin’s df.): “a series of commands issued by a sovereign and backed by sanctions.”

For Austin, a sovereign is an entity that is habitually obeyed by most of the population and that itself does
not obey any other (earthly) entity. Austin sees a sovereign as analogous to a legal gunman, one who issues
commands and threatens to cause harm if those commands aren’t followed. Since the law flows from the sovereign
and his (or its) power, the sovereign is not subject to law.

There is no place in Austin’s theory of law for the normative or prescriptive. The following is a famous statement
by Austin of what he takes to be the relation between morality and law:

The existence of law is one thing; its merit or demerit is another. Whether it be or be not is one enquiry; whether it be
or be not conformable to an assumed standard, is a different enquiry. A law, which actually exists, is a law, though we
happen to dislike it, or though it vary from the text, by which we regulate our approbation and disapprobation. (quoted
by Hart at Simon p.75)

Objection: this view of law is almost certainly too narrow, in that it excludes some things that most people would
want to include within the category of law: e.g.
 international law (but as we saw earlier, Austin was a skeptic about international law, so he would not have
 seen this as a problem).
 private law, the area of law that covers relations among private citizens, e.g., the legal rules that govern
contracts, marriage, wills, etc.
Austin seems to have modeled his account of law on criminal law, and thus he leaves out too much of the law.

th
Avoiding this objection was one thing that Hart had in mind when he revived LP in the middle of the 20 century...

[2.3.3.] H. L. A. Hart.

 1907-1992
 son of a Jewish tailor of Polish and German descent
 practiced law in England before becoming an instructor at Oxford University, where he taught from 1945-1969
 most important work is the book The Concept of Law (1961), which is perhaps the most important work of
th
20 century philosophy of law [it is from this work that the first reading from Hart in your textbook is
excerpted: pp.72-74]
th
 One of the most famous exchanges of ideas between 20 century philosophers of law occurred between Hart
and the procedural natural law theorist Lon Fuller. The so-called Hart-Fuller debate was published in the
Harvard Law Review in 1958 [the second reading from Hart in your textbook (pp.75-77) is excerpted from his
[4]
contribution to this debate, as is what you will read by Hart for next time (pp.92-94). ]

As a legal positivist, Hart agreed with Austin that law and morality are conceptually separate .

But he thought that Austin’s definition of law is too narrow:

 it is accurate for some areas of the law, namely, the ones that threaten punishment, like criminal law,
 but it is inaccurate for laws that facilitate action, e.g., contract law, which “describes conditions someone
must fulfill in order to enter into a legally enforceable agreement.”

In improving on Austin’s legal positivism, Hart provides us with a version of positivism that is not a command
theory of law.

To improve on Austin’s version of legal positivism, Hart introduced the distinction between primary and secondary
rules:

 primary rules (rules of obligation): rules that create obligations by saying what people must or must not do.

 All societies, even primitive ones, must have this sort of rule; at a minimum, they must have primary rules
against “the free use of violence, theft, and deception” (Hart, p.73 of Simon)
 Lying behind this idea is that there are some rules that every viable society must recognize in order
to continue as a society at all. In a society in which no one could depend on not being killed by his or her
neighbor, people would not associate with others, and social living would be impossible. In a society in
which there was no rule requiring parents to take care of their children, the youngest generation would not
[5]
survive, and so the society would, too.

 If this is the only sort of rule the members of a group have, they are faced with three problems:
1. They are in a state of uncertainty—when there is disagreement about what exactly these rules say, or
about whether a given principle is a rule, there is no established way of settling the disagreement.
 2. The rules will be static (relatively unchanging), since there is no way of deliberately altering them; the
only way they can change is by slow and natural evolution: “There will be no means, in such a society,
of deliberately adapting the rules to changing circumstances, either by eliminating old rules or
introducing new ones…” (p.73)
3. This sort of system will be inefficient, by which Austin means there is no way to settle disputes about
whether a given primary rule really has been violated.

 secondary rules : rules that are about primary rules and that confer power related to those rules. There are
three types of secondary rule (each type corresponds to one of the problems listed above):

1. rules of recognition: rules that specify the criteria for determining whether a given rule is a primary rule.
In Hart’s words, such rules “specify some feature or features possession of which by a suggested rule is
taken as a conclusive affirmative indication that it is a rule of the group to be supported by the social
pressure it exerts.” (74) It is “whatever a legal system uses as its final authority for determining whether
something is a law.” (71)
 these help to remedy uncertainty

2. rules of change: state procedures for making new laws and changing existing ones.
 these help to remedy the static character of primary rules

3. rules of adjudication: “confer competence upon judicial officials to judge and enforce the law.”
 these help to remedy the inefficiency described by Austin

In sum, secondary rules provide “ways in which the primary rules may be conclusively ascertained, introduced,
eliminated, varied, and the fact of their violation conclusively determined.” (74)

Hart used the concepts of primary and secondary rules to define law:

law (defined by Hart): a union of primary rules of obligation and secondary rules.

The distinction between primary and secondary rules helps Hart avoid a problem faced by Austin’s view. If
Austin were correct, then the sovereign would be completely above the law. But on Hart’s legal positivism,
there need be no sovereign who is the source of law and therefore must stand outside the law. Whether a given
principle counts as a primary rule does not depend on the say-so of any sovereign; rather, it depends on whether it
meets the criteria set forth in the rules of recognition.

Two further details about Hart’s legal positivism:

 He insisted that it makes sense to evaluate a system of law from a moral point of view. “Hart considered
himself to be a critical moralist and thought that the separation of law from morality should encourage
unrelenting moral criticism of law. He believed the separation thesis should prevent the uncritical acceptance of
a law as moral simply because it was law…” (p.72)
 He had a more nuanced view of international law than Austin. On Hart’s view, there are international
primary rules that impose duties on states (e.g., treaties, and decisions of international judicial bodies).
However, international law lacks secondary rules , including rules of recognition that would make it clear
exactly what does count as a primary rule of international law, and rules of adjudication, which would confer
authority on international judicial bodies, like the International Court of Justice (ICJ).

Stopping point for Monday February 19. For next time, read pp.80-82 and 90-94.
[1]
For more on Hume, see William Edward Morris, “David Hume,” The Stanford Encyclopedia of Philosophy (Spring 2001
Edition), Edward N. Zalta (ed.), URL = <http://plato.stanford.edu/archives/spr2001/entries/hume/. For more on Hume’s moral
philosophy, see Rachel Cohon, “Hume's Moral Philosophy”, The Stanford Encyclopedia of Philosophy (Winter 2004
Edition), Edward N. Zalta (ed.), URL = <http://plato.stanford.edu/archives/win2004/entries/hume-moral/>.

[2]
A Treatise of Human Nature (1739-40), book III, online at <
http://www.class.uidaho.edu/mickelsen/texts/Hume%20Treatise/hume%20treatise3.htm >.
[3]
For more on Austin, see Bix, Brian, “John Austin”, The Stanford Encyclopedia of Philosophy (Spring 2005 Edition),
Edward N. Zalta (ed.), URL = <http://plato.stanford.edu/archives/spr2005/entries/austin-john/>. I draw on this article by Bix in
this set of lecture notes.

[4]
H.L.A. Hart, “Positivism and the Separation of Law and Morals,” (1958) 71 Harvard Law Review 593 [followed by Hart’s The
Concept of Law (1961)]; Lon L. Fuller, “Positivism and Fidelity to Law - A Reply to Professor Hart,” (1958) 71 Harv. L. Rev. 630
[followed by Fuller’s The Morality of Law (1964)].
[5]
I take the latter example from James Rachels, The Elements of Moral Philosophy.

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