This paper explores the positivism and natural law philosophies especially their consistency with the known commonplaces of law. The paper also shows evidence of how the philosophies display themselves in clear cases.
Austin (cited in Murphy, 2007, pp. 17) defines the law as the threat backed commands of a sovereign. The sovereign is always a legal superior with the authority to legislate and to make law. (Murphy, pp. 22)
To Austin, law depends on a habit of compliance due to the superiority of the sovereign. In short subjects’ reasons for compliance there are the sanctions that accompany non-compliance. This is how Austin addresses the commonplace of law’s authority (Murphy, pp. 22).
Concerning the commonplace that law is for the common good, Austin holds the view that just because law is for the common good, it does not necessarily mean that all the laws serve the common good. The idea that law ought to be made or remade in the way that best maximizes social good is no more than a moral claim; imprudent laws are still enforced (Murphy, pp. 17).
The fulcrum of the Austinian theory is the existence of a sovereign whose ability and willingness to set down commands and back them by threats makes law possible. This appeal to commands is a wrong turn that leads Austin to distort clear cases of law and legal systems and yet to ignore others.
To begin with, a number of laws do not fit the order-threat model at all. For example, laws on marriage will indicate the pre-requisite conditions for a valid marriage. These are certainly not orders nor are they backed by threats.
Additionally, the law making authority is most often the product of the law itself. Bills become law having come through legislative processes but not being the command of a sovereign backed by threats. Austin’s theory in this regard fails.
Similarly, the “habit of compliance” aspect contradicts the known commonplace that law persists. Yet the theory would mean that the state should ideally remain lawless, the new habits of compliance form with regard to the new sovereign. The theory also flies in the face of the clear case that law making power ordinarily can and does move from party to party without gaps in waiting for a new set of compliance habits to develop (Murphy, pp. 22).
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Moreover, the existences of small and unlikely threats of punishment do not give a strong or decisive reason for compliance in some cases. Therefore, Austins theory fails to account for the commonplace that law is authoritative. At least the reasons he cites are implausible to justify the authority of law (Salmond, 1956, pp. 33).
Equally, the reasons for compliance are wrong as well. An armed gunman on the street may have the ability to threaten dreadful consequences if one refuses to hand over their personal property. However, this can never create an obligation to hand over the property. Briefly, the reason for compliance as given by Austin is insufficient to bestow authority (Murphy, pp. 23). People often comply with the law because it says so and not of the threats backing it.
In the same way, Austin’s theory fails to address the issue of the internal incoherence of unjust laws, laws that purport to be for purely partial and private good. A sufficiently powerful sovereign should have no problem declaring that it is ruling for its own good and making laws in that direction. Nevertheless, such laws would be extraordinary, contradictory, and defective according to Alexy (cited in Murphy, 2007, pp. 24)
All in all, Austin’s theory of law excels in two fronts. Firstly, his insistence on the ideal that law is a matter of social fact is meritorious. Indeed, a study of the nature of law is no more than an abstract characterization of a social practice. Law, like human life, is a social thing. Secondly, Austin is justified on the proposition that “the existence of the law is one thing and its merits or a demerit is another thing” (Murphy Philosophy of Law, 16). The same law is capable of both encouraging lofty ideals as well as patronizing grandiose corruption.
H. L. A. Hart
To Hart (cited in Murphy, 2007 at pp. 26), law is a certain sort of social rule, or a certain sort of system of rules. To distinguish law from other social rules, Hart turns to the internal concept of law-forming social rules.
Firstly, social rules are either descriptive or normative. The former merely describe persistent patterns of social behaviour while the latter are used by a significant portion of the group to justify its own behaviour in praise and criticism of others’ behaviors (Murphy, pp 26).
As such normative rules neither require a commander nor describe the behaviour of members, Hart states that law is some kind of normative social rule (Murphy, pp. 27). Legal systems are therefore responses to deficiencies in other kinds of social rules. Hart’s theory of law recognizes that law is a matter of social fact; it exists to make good the deficiencies in other social rules.
The first problem with Hart’s theory is that the ‘rules of custom’ theory breeds uncertainty. It is not certain how many, and in what manner, members must follow a rule before it gains notoriety as a customary rule.
Secondly, rules of custom are immune to deliberate change. They are static. A change in the rules requires a lot of people to change their minds and accept to act differently. This tremendous social inertia can result in customary rules that are quite outdated, repugnant or illogical. At the same time, the inertia bars the formation of novel rules of custom, no matter how convenient.
Thirdly, a theory of law as rules of custom meets the brick wall of compliance or enforcement. Indeed, customary sanctions, if any, are insufficient in dealing with actual or suspected infringements . Likewise, customs lack definite dispute resolution mechanisms (Murphy, pp. 28).
To come round the challenges posed by the uncertainty, fixity, and inefficiency of customary rules, Hart proposes secondary rules. These secondary rules add to modify or subtract from the primary rules. The primary rules therefore consist of rules which dictate the basic duties and rights of social life, while the secondary rules consist of rules of recognition, change, and adjudication (Murphy, pp. 28-9). Hart conceives of law as a fusion of primary and secondary social rules.
The rules of recognition specify what are recognized as a binding legal norm. Once recognized, the rules attain social acceptance and consequential validity. The recognition and acceptance therefore forms a credible reason for compliance. This formulation meets the threshold of the authority commonplace.
Concerning the commonplace that law is for the common good, Hart suggests that any legitimate legal system must provide a basis for the survival of the majority of subjects. Only then can the legal system remain acceptable.
Dworkin challenged the Hartian philosophy saying that it did not properly account for the role of principles as opposed to rules in law. Judges often cite moral principles to justify their verdict without accompanying evidence of how the rules found their way into law. One such principle is that one can be released for unconscionable or inequitable contractual obligations on the basis of the principle of reasonableness (cited in Murphy (2007), at pp. 32).
The exigencies of practical justice in fact demand that judges are allowed to make reference to general principles of law in special cases. This is because it is impossible for the human mind to foresee and regulate all with apposite rules all the vast sources of future conflicts (Vecchio, 1956, pp. 1-2).
The answer to this dilemma creates a point of departure amongst the positivists; soft and hard. The former hold that morality may form a part of law because the rules of recognition of a society acknowledge morality or some part of it as law. The latter strictly contend that law is a matter of social and not moral facts, therefore judges who in their decisions turn to stray from the law.
In reply, Hart concedes that the application principles may lead to uncertainty. However, he retorts that certainty is not the only end to the law. There are far greater and higher ideals.
Raz holds the view that law has the potential to be genuinely authoritative. The function of authority is to guide people. To be sufficiently authoritative, subjects must understand at once what the law requires without resorting to their own moral value judgment. Consequently, moral values cannot be a part of the law (cited in Murphy (2007), at pp 34).
According to Raz, though the law might employ moralist language, the law is uncertain until there is a conclusive ruling on the matter. Therefore even when judges engage in moral reasoning, the result is not a discovery of what the law is, but a product of the judges’ limited law-making power (Murphy, pp. 35).
The hard positivists contradict themselves. They say that to be sufficiently authoritative, the law must be capable of identification without recourse moral determination. Yet in their quest to detach law from morality, they ascribe a moral-based law-making power to the judges.
Fuller emerged as a critic of Hart. Hart and positivists generally tie up legality to the source of the law with generality in form as the only constraint. Fuller, however, demonstrates that the content of law is equally important (Murphy, pp 37). Fuller’s procedural theory of natural law emphasizes that legitimate law must be made in a certain way and employ a certain form. To be authoritative, law must not be contradictory, incomprehensible or ephemeral but certain, clear, and credible.
To Aquinas, law is a promulgated ordinance of reason made by one who cares of the community for the common good. He says that law consists of rational standards of conduct. His theory satisfies the commonplace that law is for the common good since law is made for the governance of the group (cited in Murphy (2007), at pp. 38).
Aquinas further says that since law is made by one who has care of the community and who can render an authoritative ruling on what law is, it gains sufficient authority. Similarly, law meets the sociality by promulgation and by the fact that it is made by one who cares of the community (Murphy, 39). Law is therefore a matter of social facts.
Social facts, however, are not all there law. There are normative constraints that determine whether norms are law. Any attempt to make law that does not contain a minimum threshold of norms is dismissed by Aquinas as mere act of violence (Murphy, p. 40). Aquinas’ theory satisfies the three commonplaces of law.
Yet the natural law theory as formulated by Aquinas is not without defects. First, there are numerous clear cases of bad law or even laws that are not necessarily the products of rational thought. On this account, Aquinas’ theory is frail.
All in all, Aquinas is right that the legality of law depends as much on its content as on its source. One clear case is that the Supreme Court could readily annul a bill passed by Congress which purported to take away voting rights for.
There is no perfect philosophy of law. All are right and wrong in certain respects. The question of what law is has no conclusive answer in any single philosophy but in a careful reading and selective mix of both.