legalmaterials

Jurisprudence: Introductory Notes

2011-12-26T23:48:00.001-08:00

JURISPRUDENCE

Introductory notes

Issues confronting the subject:

General issues and questions confronting students approaching jurisprudence: Questions of definition, content and relevance.

These allow students to have initial appreciation of the nature and scope of the subject as well as the mode and purpose of the inquiry which it involves.

Differences between jurisprudence and other law subjects

Jurisprudence is occupied with different issues and generally takes a different approach from other, mainly substantive or black-letter, law subjects, in the manner in which it deals with the subject matter of its inquiry.

The difference involves the devices – terminological and methodological – which it employs.

(Michael Doherty, p3) – Jurisprudence is a different sort of subject to study from most of the law which largely deal with case law and statutory materials. Reason – it is ideas, and not facts, that are at a premium. There is, relatively, a greater proportion of abstract, theoretical material in jurisprudence, and students often fails to come to terms with it.

"Jurisprudence is not a course on law, but rather an exploration into the philosophy and nature of law." John E Finn

The origin of the term 'jurisprudence'

Meaning of Jurisprudence:

Problems of definition

The term 'jurisprudence' is derived from two Latin words, juris– meaning 'of law', and prudens – meaning 'skilled'. Different usages of the term – ranging from describing mere knowledge of the law to a more specific definition as a description of a scientific investigation of fundamental legal phenomena.

Difficulties in precisely defining the term jurisprudence
It is difficult to precisely define the term jurisprudence. Reasons – its scope of inquiry ranges over many different subject and touches on many other disciplines - economic, politics, sociology and psychology – normally regarded as having little to do with law and legal study.
Jurisprudence involves the study of a wide range of social phenomena, with the specific aim of understanding the nature, place and role of law within society. Main question raised in jurisprudence – What is the nature of law?

The main question raised in jurisprudence

Ratnapala, p.1

Jurisprudence … has been around since at least the time of the Greek philosopher Socrates (470 – 399 BC). Great minds have sought answers to questions about the nature of law, right and justice, but questions persist. This says as much about the complexity of these ideas as it does about the limits of our language and reason. Theories that have been proposed answers to questions have themselves become subjects of ongoing debate… It does not matter that there is no consensus about the meaning of concepts such as law and justice. There may never be. We can make up our own minds after getting to know relevant theory, and in so doing learn a great deal about the legal system and the society we find ourselves in …

p.3

The various usages of the term jurisprudence

Jurisprudence is an imprecise term. Sometimes it refers to a body of substantive legal rules, doctrines, interpretations and explanations that make up the law of a country: thus, English, French, or German jurisprudence refers to the laws of England, France and Germany. Jurisprudence may also refer to the interpretation of the law given by a court. We speak in this sense of the constitutional jurisprudence of the US supreme Court, the High Court of Australia, and the jurisprudence of the European Court of Human Rights. Jurisprudence in this sense is not synonymous with law, but signifies the juristic approaches and doctrines associated with particular courts.

[Jurisprudence used here refers to] scientific and philosophical investigations of the social phenomenon of law and justice generally. It embraces studies, theories and speculations about law and justice undertaken with the knowledge and theoretical tools of different disciplines – such as law, history, sociology, economics, political science, philosophy, logics, psychology … and even physics and mathematics. No discipline is unwelcome that sheds light on the nature of law and its relation to society.

Alternative terms used for jurisprudence

(Tim Murphy p.2) – Jurisprudence is the philosophical pursuit of wisdom about law, legal system and justice. It is also known as "legal theory" or "legal philosophy", or sometimes as the "science of law".

Ratnapala, pp.3-4

The difference between 'legal theory' and jurisprudence

Legal Theory and Jurisprudence

The term 'legal theory' is associated with theories seeking to answer the question: what is law? It is a specific project in jurisprudence. John Austin, the 19^th century legal positivist …, thought that this was the only project in jurisprudence … Most British legal positivist since Austin have tended to limit their inquiries to the task of finding a universally valid definition of law or set of criteria to distinguish law from other kinds of rules. The best known of the modern British legal positivists, Herbert Hart, devoted his book The Concept of Law to the challenge of showing how rules of law are different from: (a) commands such as those of a gunman who relives you of your wallet; (b) moral rules that fall short of law; and (c) mere coincidences of behavior that represent social habits or practices … Legal positivists prefer the term 'legal theory' to describe what they do.

Definition of a 'theory' and positivists' understanding of legal theory

It is worth mentioning that legal theory does not stop with the range of questions posed by the positivists. A theory is a testable hypothesis or proposition about the world. It is possible to theorize about many other aspects of the phenomena of law, such as the law's origins, its emergent quality, its role as a factor of production, its psychological force, and so on. Hence, legal theory, when used in relation to the central themes of legal positivism, should be understood as limited to theories about the idea of law and its basic concepts.

Ian Mcleod, pp 2-3

…it is particularly Anglo-American idea to treat legal theory as being more or less synonymous with jurisprudence. In French, for example, the word jurisprudence means the body of law developed through the decisions of the courts. This explains the use of the phrase Strasbourg jurisprudence to identify the law contained in the European Convention on Human Rights as developed by the European Court of Human Rights at Strasbourg. The phrase theorie generale du droit, on the other hand, reflects the theoretical nature of that kind of material which, in the Anglo-American usage, is called jurisprudence.

Nyazee, p.4

[Roscoe Pound] says:

In America the word 'jurisprudence' has been used to some extent in the French sense. Thus the phrase "equity jurisprudence," meaning the course of decision of Anglo-American courts of equity, has been fixed in good usage by the classical work of justice Story.

[Thus meaning] throws some light on the nature of American jurisprudence with its emphasis on the nature of the judicial process and theories of adjudication. When the judge is faced with hard cases, the question arises as to where does he get his law from when the statutes or existing decisions do not help? This is where the theories of law, and the political philosophy of the judge, whether he has one or not, become relevant.

Chinhengo (p2) – The question encompasses two aspects – 'what is the law?' and 'what constitutes good law?'

Analytical Jurisprudence and Normative Jurisprudence

Guess, University of London External Program Handbook

Descriptive, Normative, Interpretive

The broad distinction very commonly used between two types of theory is that they are either descriptive of the subject-matter of law, in all its forms, or that they are normative or prescriptive about what the subject matter of law ought to be. These two ideas – the descriptive and the normative – are very common in jurisprudential thought. In recent years in Anglo-American jurisprudence, they have been joined, largely through the work of Ronald Dworkin, by a third type of theory, an interpretive theory.

The answer to these two questions constitutes two major divisions in jurisprudential inquiry: Analytical Jurisprudence and Normative Jurisprudence.

Austin's 'particular jurisprudence' and 'general jurisprudence'

(Michael Doherty, p6) – Austin says that there are two ways of studying jurisprudence. This is 'particular jurisprudence', which is the study of the positive law of a particular legal system, and there is 'general jurisprudence', which is the study of 'the principles, notions, and distinctions which are common to systems of law'. By 'system of law' he means '…the ampler and mature systems which, by reason of their amplitude and maturity, are pre-eminently pregnant with instruction.'

As a comparative lawyer Austin thought it was blind of lawyers to be concerned only with their own particular system. What was needed was a general overall view of the structure and content of law, a view of the nature of law. In this way, he thought, lawyers could fully appreciate in practice what they were doing.

Sources of jurisprudence

Ian Mcleod, p.3

For students of legal theory … the primary sources are frequently not cases or legislative enactments, but the works of legal theorists. Furthermore, legal theorists are not necessarily lawyers, because the subject matter is inextricably linked with both philosophy and political theory. A W Friedmann puts it:

'all legal theory must contain elements of philosophy – man's reflections on his position in the universe – and gain its colour and specific content from political theory – the ideas entertained on the best form of society.'

More particularly:

'Before the nineteenth century … the great legal theorists were primarily philosophers, churchmen and politicians.'

and

'the new era of legal philosophy arises mainly from the confrontation of the professional lawyers, in his legal work, with problems of social justice.

… 'It is, therefore, inevitable that an analysis of earlier legal theories must lean more heavily on general philosophical and political theory, while modern legal theories can be more adequately discussed in the lawyer's own idiom and system of thought. The difference is, however, one of methods and emphasis. The modern jurist's legal theory, no less than the scholastic philosopher's, is based on ultimate beliefs whose inspiration comes from outside the law itself.'

The questions commonly posed in general jurisprudence

There are many ways to arrange the questions posed in general jurisprudence. The following are the common ones:

What is law?
What is a law?
What is a legal system?
Should law enforce morality?
How does the nature of society affect law?
What role/s does law play in society?
What is the purpose of law?
Is law necessarily just?
What are the appropriate criteria for assessing a legal theory?

These questions demonstrate that general jurisprudence is an area where the work of the legal scientist overlaps with other disciplines such as the study of morality, anthropology, politics and economics.

Value of general jurisprudence

Harris – general jurisprudence is of little value in instilling the technical skills of legal reasoning and argumentation. These skills come from 'immersing oneself in substantive legal studies'. However, some value can be gained in particular jurisprudence which involves speculations about particular legal concepts such as rights and duties.

Ratnapala, p.4

Analytical and Normative Jurisprudence

Questions concerning the meaning of law in general and of the major concepts of law are grouped within analytical jurisprudence, and questions focused on the moral dimensions of law are left to the normative jurisprudence … Analytical jurisprudence is roughly co-extensive with legal theory, as identified with legal positivism. Some scholars have further classified analytical jurisprudence into general and particular branches… General analytical jurisprudence is focused on the concepts of law generally, and particular jurisprudence on the basic concepts of law that are common to most, if not all, legal systems … These are the building blocks of legal rules and include concepts such as right, duty, liberty, liability, property, possession and legal personality.

It is important to keep in mind that these are labels of convenience [but not as true categories]. There is much analysis in normative jurisprudence and, … there is much that is normative in various analyses of the concept of law.

Nyazee, p.3

"As Austin's method of was exclusively analytical, a narrow meaning of jurisprudence became current in English speaking countries. "It [this concept of jurisprudence] thinks of law as an aggregate of laws and of laws as rules, and this narrow definition of law gives a narrower limitations of the science of law." In this sense jurisprudence might be called the comparative anatomy of developed systems of law. Pound says: "This is one side of the science of law (jurisprudence). I shall call it analytical jurisprudence."

Wacks, p. 7

Descriptive and normative legal theory

It is important to distinguish carefully … between two principal forms of legal theory. Descriptive legal theory seeks to explain what the law is, and why, and its consequences. Normative legal theories, on the other hand, are concerned with what the law ought to be. Put differently, descriptive legal theories are about facts: normative legal theories are about values.

Types of descriptive legal theory

Descriptive legal theory may, first, be 'doctrinal'. It provides a theory to explain a particular legal doctrine. For example, freedom of expression might be justified by decisions of the courts on the limits of free speech. Doctrinal legal theory seeks to answer questions such as 'Can these cases be elucidated by some underlying theory?' Secondly, descriptive legal theory may be 'explanatory'; it attempts to explain why the law is as it is. Marxists legal theory, for example, is 'explanatory' in this sense, for it offers an account of law as expressing the interests of the ruling class. A third form of descriptive legal theory concerns the consequences that are likely to follow from a certain set of legal rules. For example, economic analysis of law might use their tools of analysis to assess the probable behavioral effects of a strict liability regime on manufacturing.

Types of normative legal theory

Normative legal theory, on the other hand, is concerned with values. Such a theory may, for instance, seek to establish whether strict liability ought to be adopted in order to protect consumers. Normative legal theories tend invariably to be associated with moral or political theories. In pursuing an evaluation of the law, normative legal theories might be either 'ideal' or non-ideal'. The former relate to what legal rules would create the best legal system if it were politically achievable. The latter presuppose an assortment of constraints on the choice of legal rules, such as the difficulty in enforcing such rules.

The nature of distinction between the legal theories – clear cut?

But there is no clear-cut distinction between these two categories of legal theory. A normative legal theory may rely on a descriptive theory to obtain its purchase. Thus it is hard to sustain the normative theory of utilitarianism without a descriptive account of the consequences of the application of a specific rule. …Similarly, a descriptive legal theory may, on the basis of predictions about the likelihood of success, say, law reform, put a brake on the normative legal theory that gave birth to the improvement.

Nyazee p. 4 et seq

Jurisprudence as a General Theory of Law – Dworkin's

The positivists have consistently maintained that the judge uses his "discretion" in hard cases, and this is where philosophers like Dworkin have opposed them. These philosophers maintain that the "discretion" of the judge is not uncontrolled and he is bound by a body of "general principles," which are law as well, and he is also bound by a determined methodology.

In addition to the judge, the legislators exercise the power to grant and take away rights from the public. What guides them in determining these rights? What are the limits on the authority that they exercise? What are the sources of this authority and of the rights that they lay down in the law? The legislators too are bound, or should be bound, by some methodology. Their power is not absolute. Here too the theories of law become relevant.

As a result of the identification of a methodology for the judge and the legislator, the study of the theories of law has assumed significance even in England. The British jurists can no longer ignore the theories of law as "mere theory." In fact, it is the study of analytical jurisprudence that has now been given up. In short, the nature of the study of jurisprudence has changed. In many former colonies of Britain, however, the focus is still on analytical jurisprudence. The importance of legal theories and general jurisprudence has not been realized so far.

Jurisprudence today is, therefore, viewed as a general theory of law. What is the format of this theory? The best format for the study of jurisprudence has been provided by Ronald Dworkin as the "General Theory of Law" a title that is obviously influenced by the second meaning of jurisprudence given above. Dworkin describes the structure of a general theory of law, in his book, Taking Rights Seriously. This has been amended slightly and described below in Dworkin's own words:

1. A general theory of law, says Dworkin, must be normative as well as conceptual.

2. The conceptual part should deal with law as it is, while the normative part should deal with the law as it ought to be.

3. Its normative part must have a theory of legislation, a theory of adjudication and a theory of compliance. These three theories look at the normative part of the law (or the law as it ought to be) from the standpoint of the lawmaker, the judge and the ordinary citizen.

4. The theory of legislation must contain a theory of legitimacy, which describes the circumstances under which a particular person or group of persons is entitled to make law. It should also contain a theory of legislative justice, which describes the law they are entitled or obliged to make.

5. The theory of adjudication must contain a theory of controversy, which sets out standards that judges should use to decide hard cases at law. It should also contain a theory of jurisdiction, which explains why judges, rather than other groups or institutions, should make the decisions required by the theory of controversy.

6. The theory of compliance must contrast and discuss two roles. It must contain a theory of deference, which discusses the nature and limits of the citizen's duty to obey the law in different forms of state and under different circumstances. It should also contain a theory of enforcement, which identifies the goals of enforcement and punishment and describes how officials should respond to different kinds of crime or fault.

7. The categories described above are not watertight compartments and a subject described in one may fall in another.

8. A general theory of law will have many connections with other departments of philosophy. The normative part of the general theory will be embedded in a more general political and moral philosophy which may in turn depend upon philosophical theories about human nature and morality.

9. The conceptual part will draw upon the philosophy of language and upon logic.

We are indebted to Dworkin for providing such a clear picture of the general theory of law, a picture that helps us elaborate the scope of usul-ul-fiqhas it has always existed in the past and as it should be viewed in the modern context.

To expand this general format, we may add that in the present century there has been a revival of natural law. This has led to what is called a value-oriented jurisprudence. Values are seen in the shape of interests that need to be secured by society. These are: (1) national and social safety; (2) sanctity of the person; (3) sanctity of property;(4) social welfare; (5) equality; (6) consistency and fidelity to rules, principles, doctrine and tradition; (7) morality; (8) administrative convenience; and (9) international comity. Each dispute or issue is seen as a clash between two or more interests and the decision involves preference of one interest over the other. This is achieved through the concept of justice prevailing in society. In other words, these values provide the highest general principles, which may also be considered a part of law. For Dworkin himself, the judge enforces some rights. These rights lie outside the ambit of the law, so to say. His ideas are to be viewed in the context of what is called "Dworkin's Rights Thesis."

Adam Smith's usage of the term 'jurisprudence' and the issues considered there under

Jurisprudence as the study of law and government?

(Veitch et al, p. vii) Adam Smith, the Professor of Moral Philosophy, defined the term jurisprudence as 'the theory of the rules by which civil governments ought to be directed', otherwise, 'the theory of the general principles of law and government' (Smith 1978, pp5 and 398). This he saw as comprising four main objects:

the maintenance of justice;
the provision of police;
the raising of revenue; and
the establishment of arms.

Notable in Smith's theory of law and government is that it requires that we attend not merely to matters of the definition or application of law, but also of how these relate to politics and the practice of governing. As well his approach to the topic involves a method that is both historical and sociological: that is, he is concerned with both the question of understanding the historical development of forms of law and government, and that of how it relates to stages of social and economic development of the society to be governed.

Comparison between Adam Smith's idea of jurisprudence and that of the Anglo-American's

The contemporary study of jurisprudence rarely aspires to a comparable breath in either subject matter or method. Anglo-American jurisprudence, indeed, has for a long time been more interested in law than government, has focused more on abstract rules than institutions, and has paid patchy attention to the historical and sociological context within which law band legal and political institutions develop. This risks undermining the relevance of the subject.

Jurisprudence is the study of law and legal institutions in their historical, philosophical and political contexts. The study of law in this sense cannot be abstracted from the questions of the nature and theory of government: indeed, the two must be considered in relation to each other. Issues considered:

relation between law and politics;
relation between law and the economy;
relation between law and moral values;
role of judges in democracy;
the virtues of the rule of law and threats to its realization in practice.

Fields of jurisprudence

Fields of jurisprudence

Analytical jurisprudence – involves the 'scientific' analysis of legal structures and concepts and the empirical exercise involved in discovering and elucidating the basic elements constituting law in specific legal systems. The question to be answered – "What is the law?"
Normative jurisprudence – focuses on the evaluation of legal rules and legal structures on the basis of some standard of perfection and the specification of criteria for what constitutes 'good law'. Preoccupied with the question of what the law ought to be?
General (analytical) jurisprudence – an abstract study of the legal rules to be found generally in the more developed legal system.
Particular (analytical) jurisprudence – specific analysis of the structures and other elements of a single legal system.
Historical jurisprudence – historical development and growth of legal systems, and the changes involved in that growth.
Critical jurisprudence –intended to provide an estimation of the real value of existing legal systems, with a view of providing proposals for necessary changes to such systems.
Sociological jurisprudence – clarify the link between aw and other social phenomena, and to determine the extent to which its creation and operation are influenced and affected by social interest.
Economic jurisprudence – investigates the effects on the creation and application of the law of various economic phenomena, eg, private ownership of property.

(Sandra Berns, p.v)

In jurisprudence today no settled paradigms prevails. Legal literature reflects this lack of consensus. Traditional schools of jurisprudence, such as positivism and natural law, vie for hegemony with contemporary mainstream movements such as law and economics, law and literature, and jurisprudence of rights. New voices have emerged from hitherto marginalized groups. Feminist jurisprudence, critical race theory and the critical legal studies movement have, during the last 10 years, assumed new prominence. Many of these schools have been influenced by philosophical ides quite alien to the Anglo-American tradition of analytic philosophy, drawing upon Hegelian philosophy, existentialism, structuralism, deconstructionism and more recently semiotics. Despite the proliferation of new voices and new responses much of the landscape traversed is familiar.

Guess

Jurisprudence is full of outstanding thinkers. Austin and Bentham –both of whom, in their own ways could be claimed to be the founders of legal education at the University of London, thought law was about power. Hart and Kelsen thought it was imbued with authority – although not moral authority as did Fuller of the Harvard Law School and as does Dworkin. Austin thought judges were deputy legislators. Dworkin thinks that judges only create law that is largely coherent with existing legal practice. Marxists think that law only serves the interests of the powerful and the rich. The 'critical legal scholars' think law schools provide a veneer of respectability over chaos and conflict. Some jurists believe that courts enforce moral rights; others, such as Bentham, think that this idea is 'nonsense upon stilts'.

Or take Kelsen, the distinguished constitutional lawyer, international lawyer and jurist. One only has to observe many of the great constitutional cases fought in the highest courts in countries of present or former Commonwealth jurisdiction over the past 30 years to see the impact that Kelsen had. Indeed, the 1,000pages of the 1965 decision of the Rhodesian General Division court of Madzimbamuto v Lardner-Burke (see [l966] RLR 756; SA l968 (2) 284; and [l965] AC 645) portray a formidable line-up of jurists whose ideas were marshalled both for and against the Rhodesian government's case. The example of the Nazi legal system, too, with its barbaric laws, has also raised real, live problems. Did Nazi bureaucrats really have a legal defence of any sort at all when they declared that they were just obeying orders? This was an acute problem at the famous Nuremberg war crimes trials which took place after the Second World War had ended. It continues to be alive issue.

Emerging forms of jurisprudential thinking

Dickson (2003, p66) provides an account of the diverse forms that jurisprudential thinking can take:

Law and economics;
The sociology of the judiciary;
Comparative legal analyses;
Criminology;
Legal anthropology;
Methods of alternative dispute resolution;
Constitutional interpretation;
Accounts of the relation and interaction between law and other kinds of social norms;
The role of artificial intelligence in legal reasoning;
Philosophical treatment of the black-letter law areas – philosophy of contract law, tort law, and criminal law;
Critiquing the traditional ways of conceiving law in critical legal scholarship.

McCoubrey & Nigel D White Chp. 6

Islamic jurisprudence

… Islamic law is a religious law, founded upon the Qu'ran revealed to the Prophet Muhammad. As with any anciently established system of religious law, its jurisprudence is called upon to deal with two basic structural issues. The law was revealed, by definition, at a given point in history and it has therefore been necessary to developed modes of interpretation to enable the application of legal rules and principles in social circumstances in some ways very significantly different from the context in which they were first received. This is not, of course, an issue in itself unique to Islamic law … but the structure of this law and its particular relation to the social structures which it moulds and guides render this processes in the present case of especial importance both in legal theory and practice. There is then also the question of the relations with 'secular' provision, which is to some degree permitted in Islam.

… a preliminary question arises as to the basic character of Islamic legal theory. Is it to be considered a form of 'naturalism' as its religious base and ethical structure must seem strongly to suggest, or is it better considered to be sui generis in its character and essentially outside such categorization?

[The first point to be understood is that the Islamic theory of law is not, as most western naturalism is, a theory about law upon the basis of which comparisons and evaluations may be made about its substance. On the contrary, Islamic law, the Shari'ah, in the Muslim concept quite simply is the law. In this sense Islamic jurisprudence should not strictly be seen as either 'naturalist' or 'positivist' in character since these categories have little real meaning in a Muslim context.]

[However, whilst this is true in principle, the reality is, inevitably, somewhat more complex. In practice Islamic States, and multi-cultural States in which Islam is the dominant faith tradition, do have 'secular' law-making institutions and indeed do by necessity.]

[The Shari'ah lays down both highly specific rules and broad principles and the latter at least require implementation in given and mutable, social circumstances which may differ in a number of regards from those which obtained in the lifetime of the Prophet … Basic principles of social responsibility within the law, however, indicate clearly what sort of measures are required and these can be translated into specific rules by a 'secular' legislative process. In many Islamic States there will be one or another form of Religious Council which advises the government upon the Shari'ah rectitude of its 'secular' legislation. Such constitutional mechanisms come quite close at least to certain aspects of historical naturalism …]

The Structure and Sources of Islamic Law

The Shari'ah is considered a holy law revealed by Allah through the prophet Muhammad. The matter of divine origin is fundamental to Islamic jurisprudence and the bedrock and primary source of Islamic law is the text of the Qu'ran received by the Prophet … As suggested above, the Qu'ranic texts of course required and require interpretation and application and in these processes lie much of the Islamic 'science' of jurisprudence. One possible source of confusion is immediately obviated in that only the classical Arabic text is accepted as authentically the Qu'ran – translations are permissible but are not in themselves authoritative. All other 'sources' of the Shari'ah are thus not in any way conceived as alternatives to or variations of Qu'ranic norms but rather as parts of the process of Tafsir – interpretation and clarification. The accepted hierarchy and significance of these other 'sources' was established by one of the greatest of early Islamic jurists, Muhammad ibn-Idris ash-Shafi'i…

[A significant amount of customary Arabian practice was almost certainly ingested into the Shari'ah which came thereby to have attributed to it the authority of God … Although Muslims refer to the period before the Prophetic revelation as 'the time of ignorance' it was never suggested that everything which had gone before should ex hypothesi have been abandoned. The point which is worth emphasizing in the present context, is that the development of Islamic jurisprudence has by no means so simple as some of the adherents and its opponents seem to wish to suggest.

The most important of the sources of the Shari'ah beyond the Qu'ran itself is treated in effect as a supplementary, but not alternative, primary source and is the Sunnah – the life and teaching of the Prophet.

Terms and terminologies of Jurisprudence

There are many terms used in Jurisprudence which many students are relatively unfamiliar with. These terms belong more to the realm of philosophy than to that of law.

Interdisciplinary quality of jurisprudence

Subject matter of jurisprudence

Jurisprudence covers a wide area of study, dealing with a variety of issues and topics, as well as touching on a whole range of other (law) subjects and disciplines. The unifying element in all these aspects of the study is to find a satisfactory answer to the question - 'what is law?'

This interdisciplinary quality of jurisprudence means that a student of the subject has to touch on matters that would normally belong to such diverse other disciplines as philosophy, political theory, economic theory, sociology, anthropology, history, theology and even geography.

(Tim Murphy p2) – Theorizing about law necessarily involves substantial engagement with other disciplines – Julius Stone famously described jurisprudence as the lawyer's "extraversion". M Van Hoecke has suggested that jurisprudence could be defined as "critical external reflection on law", where "external" means not from the internal point of view of the doctrinal analysis of the law within one specific legal system.

This critical external reflection on law is undertaken by many non-lawyers and non-legal materials and methodologies are frequently invoked in jurisprudential debates. In addition to encountering philosophy, theology, sociology, economics and several other modes of thought, students of legal theory are faced with a historical canvas that begins in approximately the fifth century BC with the Greek philosophical tradition.

Ian Mcleod, p. 4

The most practical consequence of the fact that many legal theorists are not lawyers is that some of the skills required to read and evaluate texts drawn from non-legal disciplines may not come easily to law students, whose habits of conceptualizing, and whose expectations or language and those who use it, have been conditioned by the protracted study of legal texts. One of the characteristics which the other academic disciplines may possess, when contrasted with law, is a greater dependence on soft concepts, in the sense that the concepts are, in their very nature, incapable of the degree of precise verbal formulation which would enable their exact content and limits to be easily identified. It follows that some law students, who often used to working with harder (using the term harder in the sense of more precise) concepts, may well find that it takes time to adapt to some aspects of the academic discipline involved in legal theory. However, this adaptation is part of the mind-broadening process of education, and must be accepted as a valuable part of the academic challenge which the subject presents.

(Denis Meyerson p1) Studying jurisprudence means stepping back and reflecting on the ideas and assumptions that underlie and thereby define legal practices and institutions. Whereas in other law courses one studies areas of substantive law, jurisprudence studies law in a much more general way, and asks much more abstract and theoretical questions about law as such. It asks questions about:

The commonly asked questions about law and justice within jurisprudence

Where does law fit into our lives and our society viewed as a whole?
What is the function value of law in society?
Why law is important?
What would a society be like without it?
What contribution to the world is being made by those who have devoted a large part of their lives to legal practice?
Why should we obey the law?
A legal system provides norms by which we are supposed to live, but what is the difference between these norms and the norms prescribed by morality, or by a religion?
Where does the authority of a legal system come from?
Are laws necessarily good, in the sense of having a moral basis?
What is the relation between law and morality?
Is it possible for law and morality to be in conflict, so that we may sometimes be morally obliged to disobey law?

(Tim Murphy, p 5) – This is what jurisprudence amounts to: disquisitions or discussion about law, about legal systems or justice. Generally speaking, jurisprudence examines the many alternative responses to questions such as:

"What is law?"
"What is justice?"
"What is the relation between law and justice?";
"What constitutes a legal system?"
"What roles do law and legal systems play in society?"
"What do courts actually do when they adjudicate?" and
"Whose interests are served by the law?"

Guess

What is jurisprudence?

Jurisprudence consists of the study of the nature of law and its related ideas.

Many of the difficult problems are purely philosophical. The following are such problems, and you will be expected to develop your own views in relation to them. What is definition? What is a rule? What is law? What is morality? What is justice? What is a critical standpoint?

But there are also interesting questions of political morality which impinge on your life. Examples are: Should the law enforce conventional morality? What is the relationship between freedom and equality? How should difficult legal cases be decided? Can equality take into account differences between sexes? Should

judges be concerned with economic questions? What follows from a person's 'having a right' to something? What is the justification, if any, for punishing people? Should 'hate speech' be a criminal offence? Jurisprudence will help you formulate your convictions on these vital questions.

There are, finally, interesting questions of sociology and history. The following are such questions. What generally shaped the law in Western societies? What were the main claims of the feminists? What major trends influenced law schools in the United States in the twentieth century? What are the effects of law? What events can be shaped by the adoption of laws? Is law of any sort naturally repressive – or liberating?

(Denis Meyerson p1) – Jurisprudence is a branch of philosophy – the branch which deals with philosophical questions about the nature, purpose and operation of law.

Ratnapala, p.3

The range of questions about law and justice asked within … jurisprudence is indefinite.

What is law, and can it be defined?
What are the historical origins of law?
How do rules of behavior emerge in a society before they are recognized or enforced by the state?
Is there a basic set of rules that make social life possible?
How does law shape society?
What qualities must law possess to be effective?
How do judges decide hard cases?
Whence comes their authority?
Is there superhuman natural law?
If so, how do we find its principles?
Why do people obey some laws even when they face no sanction for disobedience?
Is there a duty to obey an unjust law?
Can we make moral (or economic) judgment about particular laws or legal systems?
What do we mean by justice?
Is there a special brand of legal justice?
Are there universal standards of justice?
What is natural justice and what are its minimum demands?
What do we mean by social justice?

These questions are not just interesting in themselves, but are critical for understanding the phenomenon of law and its relation to justice. They are legitimate questions in jurisprudence …

The general questions regarding the incidence, existence and consequence of law as a social phenomenon

Essentially, but with varying degree of emphasis, jurists seek to explain the incidence, existence and consequence of law as a social phenomenon. Consequently, general questions to be answered are concerned with such matters as the following:

The origin and sources of law generally and/or in specific societies;
The historical development of law in general and the emergence and evolution of specific legal systems, tradition and practices;
the meaning of specific concepts and the construction of various legal structures and processes;
the link between law and other social phenomena, such as political, ideologies, economic interests, social classes, and moral and religious conventions;
the operation of the law as a mode of social control and the effects that it has on the persons to whom it applies, in terms of justice as well as social, economic and political developments.

The general attitude in the Common Law tradition towards theoretical investigation of law

(Michael Doherty, p3) – There is in the Common Law tradition skepticism for anything theoretical in connection with the law. This is in marked contrast to the position in Europe where theoretical perspectives are welcomed. In Common Law law schools, many of the lecturers are also practitioners in the law and have little time for what they often perceive to be abstract waffle/ wooly stuff. Despite this, lawyers often display in practice an approach to the subject of law that would legitimately be the scope of inquiry of a jurisprudence course. By studying jurisprudence, students will avoid falling into the trap of "accepting without question the correctness of other people's views on the issues within the jurisprudence course without necessarily knowing why or how".

The benefits of studying jurisprudence

Jurisprudence helps students to formulate what questions need to be asked and gives guidance on how others have sought to answer these questions. Jurisprudence has real effect on the real practical world - the theory or theories of law developed by certain legal philosophers have had deep impact on people's idea and belief about law. In the UK, for instance, a theory of law known as positivism, developed by Bentham, Austin and Hart, is most influential. Ronald Dworkin, too, is having increasing effect on the way people think about law. "Dworkin is one of the few writers on general jurisprudence who accepts and engages with the reality of what judges have to do…Readers who want to know what judges are supposed to be doing [should] buy Law's Empire." (Sir Leonard Hoffman, Judge of the Chancery Division of the (English) High Court, Law Quarterly Review, 1999)

The relevance of jurisprudence to the real world

Jurisprudence has relevance to the real world. It helps students develop a sense of what is law about. Examples:

Bentham and Austin thought law was about power.
Hart and Kelsen think it is, instead, imbued with 'authority' but not 'moral authority' as do Dworkin and Fuller.
Austin thought judges were deputy legislators; Dworkin thinks that judges only 'create' law from what is already there.
Marxists think that law only serves the interests of the powerful and the rich.
Those in the critical realist studies movement regard law schools serve the insidious purpose of placing a veneer of respectability over what is essentially chaos and conflict.
Some jurists believe that courts enforce moral rights; other, like Bentham, think that idea is 'nonsense on stilt'.
Feminists legal scholars think that law is patriarchal, made by men and serves the interests of men.

Jurisprudence assists students to appreciate and value the importance of theories in law as well as in other fields generally. Lenin - theory without practice is pointless and practice without theory is mindless. He was espousing a Marxist notion that the point was not so much to interpret the world as to change it. Likewise, legal practice outside of a theoretical context would be mindless, while a legal theory that did not refer to practice would be pointless.

It is 'practical' to develop students' intellectual skills.

Pit your wits against any of the jurists encountered in the course.
Analyze what it is that you accept in any theory proposed.

The above abilities can be developed by studying the 'greats' of the subject in order to get some clues as to what position one should hold.

Jurisprudence and deeper understanding of law

(Denis Meyerson p2) – Another way in which jurisprudence contributes to a deeper understanding of law is by providing the tools to engage in rational criticism of the law. Here we are interested in the shape the law should take – the standards, in other words, which good law should meet. Such standards can then be used to appraise existing laws.

Examples of questions which focus on the evaluation and criticism of existing law are the following:

What role should the state play in our lives?
What is the right balance between individual and collective interests?
Are there, for instance, any moral limit on the authority of government over us – certain objectives which it is not legitimate for government to pursue and certain limits on the way it should pursue its legitimate objectives?
Are there certain goods which government is under a duty to provide for us?

The answers to questions like these are to be found in an understanding of rival moral and political theories. Familiarity with these theories generates powerful resources for criticism of actual legal rules and policies.

Purposes of studying jurisprudence

What is the point of it all?

Caution – student's initial failure to appreciate the relevance of the subject of study influences the her attitude that has a substantial impact on the way the subject is treated during the period of study and the manner in which she will approach and seek to answer examination questions.

Jurisprudence, as a subject in many law school curricula, is intended to provide the law student with a device by which she can ground her academic knowledge of the black-letter of the law to the reality of the social context in which the legal rules, structures and processes actually occur and operate. "The idea, then, is to link the wealth of legal concepts, rules, statutes, precedents, structures and processes, which one has imbibed haphazardly over a period of time, to the systematic theoretical and sociological insights about the role and place of law in society which jurisprudence seeks to provide". (Chinhengo, p14) Students are supposed to see the 'law'
- in context;
- as a systematized and comprehensive whole;
- with a definite strategically position in the social scheme of things;
- not as a series of distinct and disparate 'legal subjects' whose only essence is contained in the dry rules, concepts and cases that need to be crammed.

(Michael Doherty, p.7) –Austin believes that a full education in the law requires more than just empirically pocketing bits of statutes, or bits and pieces of the common law. By studying the nature of law, a knowledge of how it is coherent becomes more apparent.

Jurisprudence is an investigation of the dynamic link between law and other social facts. Hence, the various theoretical and philosophical propositions involved are serious attempts by committed scholars to give some meaning to the black-letter of the law.
Jurisprudence demands students to grasp the link between theory and practice (of law) and to positively evaluate the arguments of the various jurists, from the point of view of whether or not they provide a meaningful explanation of the law as they have encountered it at both the academic and practical level.
Students will benefit by continuously reflecting on the law as a social fact and to try and see the link between it and actual events and developments in society; as well as in the world in general.
Students will also do well to ask herself the following questions as she progresses into the subject:
- Is it true to say that the law is more a matter of coercion than anything else and, if so, are there examples to be found, either in history or in contemporary events, to justify this proposition?
- Is law synonymous with morality, or does it even substantially reflect the conventional morality of particular communities – what are the realities in this or other societies?
- To what extent may the legislators in this society be said to be concerned with the welfare of the citizens and, if they are, how do the various measures which they take or have taken to promote that welfare compared with the various conceptions of justice which have been advanced by different jurists?
- Is any one conception of justice decidedly better than any of the others, and why?
- Do judges have any substantial influence at all on the development of the law and the promotion of various ideas and values in society through the medium of the law?
- What do actual cases that have been decided show about the judicial role in determining the way in which the law affects specific people or groups of people?
Attempting to answer such practical questions as the above will involve looking at the issues of legal theory, legal practice and legal attitudes. These make up the subject matter of jurisprudence.
In light of the foregoing, jurisprudence is not the same as the study of fiction, where one is concerned with the analysis of occurrences, ideas and concepts which are merely the figment of the author's imagination and which may, therefore, be more or less removed from reality. Instead, it concerns the ideas and thoughts of jurists with regard to concrete issues of legal and social ordering, along with the welfare of real people in actual communities.

(Bix, pviii):

At the practical level, reading and participating in jurisprudential discussion develops students' ability to analyze and to think critically and creatively about the law. Such skills are always useful in legal practice, particularly when facing novel questions within the law or when trying to formulate or advocate novel approaches to legal problems. So even those who need 'bottom line' justification for whatever they do should be able to find reason to read legal theory.
Philosophy has many indirect benefits. It is a kind of mental exercise programme. Through philosophy,
- one trains to think sharply and logically;
- one learns how to find the weaknesses in other people's arguments, and in one's own;
- one learns how to evaluate and defend, as well as attack, claims and positions.

At a professional level, jurisprudence is the way lawyers and judges reflect on what they do and what their role is within society. It is for this reason that jurisprudence is taught as part of a university education in the law. For those who believe that only the reflective life is worth living, and who also spend most of their waking hours working within (or around) the legal system, there are strong reasons to want to think deeply about the nature and function of law, the legal system, and the legal profession.
Christopher Gray (Tim Murphy, p.2) – Interest in philosophy of law "thrives today around the world. New developments in law in both age-old and more recently established nations call for a good deal of philosophical reflection. New institutional and disciplinary contexts encourage that reflection and have further increased its range."
Jurisprudence is interesting and enjoyable on its own, whatever its other uses and benefits.

Ratnapala, p. 2

Rewards of Jurisprudence

The study of jurisprudence brings immediate rewards to the lawyer. [Unlike a physicist and a chemist who are not constrained in what they do by definitions of their disciplines] … it is critically important to a legal practitioner to be recognized as doing law, particularly by judges and clients. A practicing lawyer is restricted, if not by a definition of law, at least by the way law is understood by judges and other officials who enforce the law. A good lawyer is one who knows when to argue strictly from statutes and precedents, when to re-interpret laws or distinguish precedents and when to appeal to policy, justice or the good sense of the judge. This is the stuff of jurisprudence. Make no mistake: jurisprudence sharpens legal professional skills.

There are rewards too for the social scientist and the philosopher. Law is part of the structure of society, whether modern or primitive. Law both shapes and is shaped by society. Law impacts on every human activity undertaken within society … Just imagine about any activity and you will find law in attendance – sometimes helping, sometimes hindering. For the sociologist, anthropologist, economist and just about any social scientist, it pays richly to consider the nature of law and the legal system.

Law raises critical issues in moral philosophy. The question of why a person should observe the laws of a society is a moral question... Law is normative in the sense that it lays down rules of conduct – what ought to be done and what ought not to be done. Basic laws of society, such as the rules against harming person and property and rules that promises must be performed, are also moral rules. Particular law, though, may offend the moral sense of individuals. Some enactments – such as those authorize war crimes and genocide – will shock the human conscience and draw international condemnation. Are they laws, and, if so, are there moral obligations to obey them?

Ian Mcleod

Why study legal theory?

The discussion of the nature of legal theory which you have just read, and any number of similar discussions which you may read elsewhere, will leave many students saying 'So what? How will all this help me when I am a lawyer?'. You may even pray in aid Cotterrell's comment that 'no-one could suggest that legal theory has at any time been necessary to help the lawyer earn a living in everyday practice' . (The Politics of Jurisprudence, 1989, p. 223.) But the key word here is necessary, for there can be equally little doubt that cases do arise where practitioners with acknowledge of legal theory are better equipped than those who lack it.(See, in particular but by no means exclusively, the cases discussed in Chapter 11, dealing with the relationship between law and morality.)Indeed, it may even be argued that without a knowledge of legal theory there is a sense in which you cannot credibly claim to be a lawyer, as distinct from someone who knows some laws: 'while legal science is capable of being intelligently learnt, legal facts are capable only of being committed to memory'. (IE. Holland, The Elements of Jurisprudence, 13^thedn, 1924, p. 4.)

In similar vein, Holmes, having noted that the English meaning of jurisprudence' is confined to the broadest rules and most fundamental conceptions', adds that 'one mark of a great lawyer is that he sees the application of the broadest rules'. He proceeds to illustrate this basic truth with a practical anecdote.

'There is a story of a Vermont justice of the peace before whom a suit was brought by one farmer against another for breaking a churn. The justice took time to consider, and then said that he had looked through the statutes and could find nothing about churns, and gave judgment for the defendant .... If a man goes into law it pays to be a master of it, and to be a master of it means to look straight through all the dramatic incidents and to discern the true basis[for predicting what the court will do if the matter ever comes before it] .' (The Path of the Law (1897) 8 Harv LR, pp. 474-5.)

Developing this point requires a return to the comment which concluded Section 1.2, that the study of legal theory takes you beyond laws and into law. Making the point more explicitly in relation to professional practice, the value of a knowledge of legal theory lies in the fact that
it provides a principled overview of law as a whole, which enables practitioners to relate a large number of individualized statements of legal doctrine to, and evaluate them in the light of, each other. Practitioners with a knowledge of legal theory will be able to construct arguments, and counter opposing arguments, with more confidence, and with a greater likelihood of success, than would otherwise be the case. As Holmes puts it:

'The remoter and more general aspects of the law are those which give it universal interest. It is through them that you not only become a great master in your calling, but connect your subject with the universe and catch an echo of the infinite, a glimpse of its unfathomable process, a hint of the universal law.' (Op. cit., p. 478.)

More polemically, if less poetically, members of the critical legal studies movement regard acknowledge of legal theory as being unequivocally essential to practitioners. Thus Alan Thomson challenges the view (which he takes to be prevalent among both students and practitioners), that legal theory is marginal, and that the only thing which really matter s, even for a radical lawyer, is to be a good lawyer:

'Critical legal theory must ... make explicit the implicit theory on which the

existing legal rules, institutions and practices are based, with the aim of showing that since that theory cannot support what it claims it can, the world could be otherwise ... '

and

'critical legal theory attempts to reconnect law with everyday political and moral argument, struggles and experiences, with all their attendant incoherences, uncertainties and indeterminacies. Most importantly, in rejecting a view of law as the expression of reason, critical legal theorists reveal, in different ways, law as the expression and medium of power.' (Foreword: Critical Approaches to Law: Who Needs Legal Theory?, in Ian Grigg-Spalland Paddy Ireland (eds), The Critical Lawyers' Handbook, 1992, pp. 2-3.)

Ronald Dworkin, who is by no stretch of the imagination a member of the critical legal studies movement, goes even further than Thomson, arguing that legal theory and legal practice are, in fact, two aspects of a single, seamless, whole. (See p. 131.)

Finally, however, although it is easy to justify the study of legal theory by reference to the demands of legal practice, it is not necessary to do so:

'It is perfectly proper to regard and study the law simply as a great anthropological document. It is proper to resort to it to discover what ideals of society have been strong enough to reach that final form of expression, or what have been the changes in dominant ideals from century to century. It is proper to study it as an exercise in the morphology and transformation of human ideas.' (Oliver Wendell Holmes, Law in Science and Science in Law (1899) 12 Harv LR p. 444.)

SUMMARY

Legal theory involves a progression from the study of laws to the study of law.
Differences of terminology between legal theory, jurisprudence and legal philosophy/philosophy of law are largely matters of personal taste.
The study of legal theory involves the use of sources other than the law, including works on philosophy and political theory.
All legal theories must be seen in the context of the historical period and the culture within which their authors were working, as well as within the context of the questions which their authors were seeking to answer.
Legal theories are classified in a variety of ways, but all classificatory schemes are only aids to understanding and not substitutes for it.
There is no universally accepted way of identifying what is morally right and what is morally wrong, but three of the major approaches to these questions involve theories that are either duty-based, consequence-based or virtue-based.
Legal theory can be relevant to practitioners of law when it makes them think about the basis of what they are doing. It also has its own intrinsic value as a branch of the study of ideas.

Ratnapala, p.17

Old debates and new frontiers in Jurisprudence

The province of jurisprudence is vast. If jurisprudence is understood as the study of law and justice in all their dimensions, it is not solely the presence of jurists. Historians, sociologists, anthropologists, economists, philosophers, psychologists and scientists have a great deal to offer to the discipline, as seen from the increasing and exciting contributions … The phenomenal transformation of the world through the information revolution revives old debates in jurisprudence and opens new frontiers.

New frontiers in jurisprudence

The convergence of legal systems and the emergence of new legal orderings as a consequence of globalized markets, the rise of international institutions, the proliferation of new technologies, the discovery of cyberspace and the emergence of new forms of property and of communication are generating new challenges for scholars seeking to explain the nature of law and the processes of legal change. Legal theories need to be reconsidered, and where necessary restated, n the light of these changes. Although the nation state remains strong and its coercive powers to regulate economic and social activity are mostly intact, a large part of the global trade is regulated by norms that originate in usage or in the quasi-legislative activities of international trade associations such as the International Chamber of Commerce [and World Trade Organization, free trade agreements, international commercial arbitration] … These factors suggest that the centre of gravity of legal systems is no longer so closely located in national legislatures.

On the political side, the international human rights regime has been strengthened immeasurably, partly by being linked to global trade and partly by the construction of institutions such as the International Criminal Court. The international community has greater capacity to punish crimes against humanity after they are committed, but appears powerless to halt or pre-empt large scale politically perpetrated human tragedies … The so-called responsibility to protect (RP2) has not moved beyond theory.

Some of the most exciting [prospects for jurisprudence lie in two new branches of science. One is the evolutionary psychology and cognitive science. These disciplines are shedding light on the psychology of rule following. A fundamental question in jurisprudence remains: why do people observe rules? The simplistic explanation that people obey the law for fear of punishment is long abandoned. Mutual convenience is a better explanation, but it is insufficient because people usually do not stop and calculate convenience before acting. These psychological disciplines hold out prospects of deeper understanding of legal systems. The other branch consists of the work of researchers in many disciplines working collaboratively or inter-disciplinarily to study the phenomenon of emergent complexity. The research in this field is adding to knowledge of complex systems, including the law, by revealing how self-ordering systems emerge band change over time.

Basic features of Islamic Jurisprudence

Nyazee, p. 9

Islamic jurisprudence

It has been stated that in the United States the emphasis has been more on the French meaning of theorie generale or general theory. Accordingly, Ronald Dworkin has used the format on a general theory for understanding jurisprudence. This format, it is suggested here, would be suitable for a comparison not only of Western jurisprudence with Islamic jurisprudence, but also for identifying a format for the study of usul al-fiqh in the modern age.

… there cannot be one model or format for [the study of usul al-fiqh]. The needs of Muslims in an Islamic state are different from those living as minorities in non-Muslim countries or even for those living in states with a Muslim population, but which have a more or less secular ideological orientation. We, therefore, have to adopt a flexible model that can be adjusted to the needs of Muslim wherever they are and whatever system they are living under.

… the Islamic legal system [tries] to achieve or secure certain goals or values. These are known as the maqasid al-shariah. They are quite similar to the modern interests or values that the legal system seeks to preserve and implement. These interests were discussed in detail and finalized by the Muslim jurists a thousand years ago. These purposes are vital for the methodology called takrij and equally important for ijtihad.

Islamic jurisprudence, when viewed in the meaning of usul al-fiqh covers three things:

The Formal Structure of Islamic Law: The formal structure of Islamic law is studied by Muslim jurists under the title 'the hukm shar'i". This study of the conceptual structure of Islamic law attempts to answer the following questions:

CG Weeramantry, Islamic Jurisprudence

Islamic law is based … on unqualified submission to the will of God. This is a fundamental tenet of the Islamic religion, and since Islamic law is based upon Islamic religion, it proceeds on the same fundamental assumption. The will of God embraces all aspects of life and the law hence covers all of them. It is a path or way guiding the Muslim and the revealed law governing all these matters is known as the Shari'a (the Arabic for track or road). The Shari'a governs in every detail the lives of several hundreds of millions, provides the basic moral and legal framework for dozens of nations and has now held sway for upwards of thirteen and a half century.

From these observations it will be seen that the Shari'a is not, strictly speaking, a legal system, for it reaches much deeper into thought, life and conduct than a purely legal system can aspire to do … It places the individual in his relationship to society, the universe and his Creator. 'The sacred law of Islam is an all-embracing body of religious duties rather than a legal system proper; it comprises on an equal footing ordinances regarding cult and ritual, as well as political and (in narrow sense) legal rules.' (Schacht, 1950, Introduction, p.v).

p.27

…In the Islamic world …[t[he pre-eminence of jurisprudence was self-evident It resulted from the fact that Qur'anic principles applied to every aspect of law and living, and as such came to be the central concern of scholars of all branches of learning …

In the words of Joseph Schacht …, 'Islamic law is the epitome of Islamic thought, the most typical manifestation of the Islamic way of life, the core kernel of Islam itself. The very term fikh, 'knowledge', shows that early Islam regarded knowledge of the sacred law as the knowledge par excellence.'

Another factor of importance, especially with the orthodox, was that God had not in the Qur'an revealed Himself or His nature, but rather His law. The Divine Being was beyond the comprehension of humans but His commands were expressly revealed so that they may be known and understood. Speculation over God's nature or person hence yielded in importance in the understanding of God's commands. Having regard to the limitations of man's intellect this seemed therefore a more suitable and useful arena for study, thus giving law the edge over theology as the primary intellectual activity of Islam.

Namja Moosa& NMI Goolam

Islamic jurisprudence (interchangeably called Islamic law or Shari'a) … has a fairly well-defined structure … Why is this so? Is it because Islamic jurisprudence is primarily concerned with the manner in which laws are derived from the Qur'an and the Sunnah (the precedent of the prophet Muhammad)? Kamali explains in this regard that revelation, which is given to the human beings to restore unity and help him/her achieve a just and devout order in society as well as in the soul, must be interpreted so as to render it practicable in every culture, while not betraying its spirit and immutable provisions. Islamic jurisprudence, therefore, deals with the sources of the law as well as their interpretation.

However, Islamic jurisprudence could also refer … to legal philosophy or philosophy of the law…

Is Islamic law related in any way to Islamic legal philosophy? The greatest Muslim legal thinkers … wrote treatises, not only on Islamic legal philosophy, but also on substantive law issues such as Islamic family law. Understanding their philosophical foundations would therefore greatly enhance one's understanding of their views and opinions on questions of Shari'a (Islamic law).

The most profound difference, perhaps, between Western jurisprudence and Islamic jurisprudence is the fact that morality and religion acquire much greater prominence in Islamic jurisprudence. Kamali explains:

The values that must be upheld and defended by law and society in Islam are not always validated on rationalist grounds alone. Notwithstanding the fact that human reasons always played an important role in the development of the Shari'ah through the medium of ijtihad [personal reasoning], the Shari'ah itself is primarily founded on divine revelation.

The idea of revelation and reason is thus central and forms the core of Islamic legal philosophy.

Islamic Jurisprudence

…The history of Islam and its spread across the world spanned several centuries. It started with the prophethood of Muhammad (PBUH) 6 in 610 AD7 and has ultimately shaped the nature of Islamic law as we understand it today. Islamic law is the product of centuries of juristic development and interpretation and has furthermore been formed by a variety of processes. Apart from a period of pre-Islamic Arabia, it is convenient to divide the development of Islam and Islamic law into seven periods. The first five periods cover the developments during the classical period or early centuries of Islam up to and including the Abbasid period which ended in 1258. Period six covers developments during the post Abbasid period to 1900 and period seven from 1900 to the present.

Sources of Islamic law

We want the readers to picture Islam as a tree which has at its base two main roots (primary sources), namely the Qur'an,(the holy book of Islam) and Sunna (the traditions of Prophet Muhammad), and as its fruits, the Shari 'a (Islamic law or jurisprudence). The Qur'an is considered by Muslims to be the ipsissima verba or actual and literal word of God. It was revealed to Muhammad piecemeal over a period of approximately 23 years- partly in Mecca and partly in Medina. It is the foundation stone of Islam and therefore the most important and primary source of Islam. The Qur'an is not, however, a law-book in the main with clear-cut answers to all legal questions. Approximately 80 of the 6000 odd verses are legal in nature. The Qur'an is by its own definition a 'huda' or source of guidance. Its broad ethical injunctions emphasizing justice and fairness clearly predominate Over(but do not re place) its legal formulations. Yet, today these legal verses are given more weight, which often overshadows the egalitarianism which is a fundamental part of the spiritual message of Islam.

The Sunna is the other important source. With the passing of time, this tree of Islam grew stronger as two new roots (secondary sources) were added by human endeavour, namely ijma (consensus) and qiyas (analogical deductions). They are really instruments or subsidiary sources or legal techniques for resolving specific legal issues. They were designed and introduced by human endeavour to provide legislative guidance and solutions to new problems which are not directly available from the Qur'an and Sunna. The two sources of ijma and qiyas, therefore, developed out of the two primary sources. While it has been argued that these sources were developed by two centuries of experience, the classical exposition of Islamic law believes that these sources existed from the very beginning of Muslim exegesis. The fruits (Shari'a) as the by-products of the tree obviously only grew and ripened once the tree itself was firmly rooted. The tree only bears fruits because of strong and healthy roots. Yet fruits may have latent (unseen)defects and even patent (clear) defects. The apple may, for example, contain a worm. Furthermore, fruits are seasonal and different varieties/strains can also be found. Different countries have different families of the same fruit and fruits unique to their region. The same is true for Islam and Islamic law. It is clear from the illustration in our mind that the tree came before the fruit. Yet certain Muslims have confused the two and have given the Islamic law(Shari'a) more importance than the sources of Islam.

Primary sources versus Shari'a and Fiqh

Shari'a (Islamic law or jurisprudence) is essentially the interpretation and application of the primary sources (Qur'an and Sunna) by early Muslim male jurists like Imams Abu Hanifa and Shafi' i. These interpretations have often been given precedence over the divine Islamic injunctions themselves. In this section, the primary sources of Islam per se are distinguished from, and must not be confused with, Islamic law or Shari 'a, which in our context is the 'common law' of Islam. Often these terms are used interchangeably by various writers. This gives the impression that Islam is Sharia and vice versa. The primary sources of Islam do, however, form the basis of Shari'a. It is very important to highlight this distinction as it becomes fundamental when dealing with the question of reform. Fiqh is the science of Muslim jurisprudence. Very often scholars use the term Shari'a (Islamic law) in a technical sense to describe the law as expounded in the primary sources of Islam itself, namely the Qur'an and Sunna. They (scholars) then use the term fiqh to describe the Islamic jurisprudence as developed from these primary sources. There are also scholars who use the terms shar'ia and fiqh synonymously. There are also other scholars who reserve the term fiqh for Islamic law and usul ul-fiqh (principles of the science of Islamic jurisprudence)to denote Islamic jurisprudence.

However, in this chapter for the sake of simplicity and regardless of whether or not Western colonialists may have been responsible for the usage of this term, Shari'a refers to the actual practice of Islamic law or jurisprudence per se, whilst fiqh is used to denote the theory or reasons for the theoretical formulation and framework of these rules of law. Although the basis of both these concepts (Shari'a and fiqh) can be traced back to the primary sources of Islam, it must be distinguished from these sources. Shari'a(Islamic law) is essentially the work of early Muslim male jurists some two centuries after Islam came into existence. Islamic law is still very much alive both in spirit and in fact, and it is part of the present as it was of the past. This is clearly evident in Muslim countries following an Islamic legal system. As detailed below, the jurists of the four main schools of law have constructed their jurisprudence with the Qur'an and Sunna as their foundation and for this reason we should not disregard their work. However, by the same token we should not be limited by their understanding of the primary sources. The(divine) sources remain immutable but their (human) interpretations do not. While the fruits of Islam were themselves the products of men, these men pointed people back to the main sources if they could be proved wrong.

Schools of law

While the development of Islamic law can be traced back to the Prophet, it was in the eighth century AD and second century of Islam (AH) and due to political dissatisfaction, that four orthodox Sunni schools (madhhabs or versions) of Islamic law (Jurisprudence) were established and named in order of precedence after their founders, namely Hanafi, Maliki, Shafi'i and Hanbali. The founding fathers or jurists of these schools, namely Imams Abu Hanifa, Malik, Shafi'i and Hanbal, who were nearly contemporaries, were also the first to formulate the principles of the science of Islamic jurisprudence(usul ul-fiqh). These four schools, discussed below, together comprise the Sunni school as opposed to the Shi'ite sect. These schools were geographically spread all over the Muslim world. In time they established themselves in various parts of the world so that today they are found mainly in the following areas: the Maliki in North, West and Central Africa; the Hanafi in the Near and Middle East and India and Pakistan, the Shafi'i in East Africa and Southeast Asia and the Hanbali in Saudi Arabia. South African Muslims in general belong to the Sunni (traditionalist) school and are more or less equally divided between the Hanafi and Shafi'i schools. For this reason and the fact that Sunni jurists do not consider the adoption of legal principles from a heterodox (Shi'ite) sect as an acceptable basis for legal reform, Shi'ite legal principles will therefore not be focused on in this section. While their already existing but small numbers have increased since the Iranian Revolution of 1979, there are no figures available on the exact number of Shi 'ites in South Africa.

Today these four schools of law are universally accepted by Sunni Muslims, as equally valid interpretations of the primary sources of Islam. This is due primarily to the integrity of their founders and authenticity of the method that they followed. Furthermore, each of the four schools recognizes the conclusions of the others as valid. Changing schools is traditionally frowned upon. However, not only is any Muslim free in principle to chose her own school of law, but s/he is also permitted to change from one school to another (talfiq), when doing so would genuinely provide a better solution to a legal matter and is not done merely for opportunistic reasons. Even legislation, especially pertaining to Muslim Personal Law (MPL), in certain Muslim and other countries, (for example, India) has allowed for such a change in schools of law to allow for a more liberal application of the law, especially as concerns the rights of women.

Although the jurists differ mainly in their emphasis on the four primary sources, these differences are not deemed fundamental - they are not doctrinally different. It is true that we find minor variations regarding certain issues in the four schools. For example, the Qur'an states that before praying one must perform an ablution. One of the requirements of this ablution is to wash the arm up to the elbow. The schools might differ on whether this is meant to include the washing of the elbow as well. However, this does not detract from the fundamental fact that Muslims must pray and cleanse themselves before doing so.

As will now be briefly illustrated , it is also true that, while the four schools of Islamic jurisprudence differ in both subtle and overt ways with respect to women's legal rights, they have more in common in this respect than differences. Abortion is one such example. Notwithstanding that both the Qur'an and Sunna do not provide a clear directive on abortion and that Islam generally permits preventing pregnancy for valid reasons, abortion is prohibited on the basis of various Qur'anic verses relating to infanticide. There are views for and against abortion. In some Muslim countries (eg Tunisia) abortion is legal, whereas in others (eg Pakistan and Sudan) it is criminalized. The four schools of law all make some form of abortion illegal. While different positions on abortion are proposed by the four schools as to the time when an abortion may be permitted, they a re unanimous that abortion is generally unlawful and forbidden. It is also true that there are cases where these seemingly minor differences in interpretation result in laws which vary greatly in their consequences for women. The laws of marriage (eg polygyny) and divorce (eg grounds of divorce) contain many examples illustrating this.

LAW AND MORALITY: LEGAL REGULATION OF MPORALITY

2011-12-04T19:22:00.001-08:00

LAW AND MORALITY

(Legal Regulation of Morality)

The material below is essentially extracted from PATRICK HANNON in Tim Murphy (ed) Western Jurisprudence

An account of the relationships between law and morality is a standard feature of textbooks on jurisprudence, and standard accounts tend to focus on two questions:

whether there is a moral obligation to obey the law, and
whether it is the business of the law to enforce morality

These questions may arise also for the discipline of political philosophy and of course for ethics, and the answer which comes out of any of the disciplines is likely to be influenced by views concerning the subject matter of the others. So, for example, what legal philosophers believe about the relationships between morality and law will depend to some extent on their understanding of politics, and it will certainly be coloured by what they understand morality to be; and these understandings need not be at all consciously held or explicitly adverted to.

But it is arguable that of the three disciplines—jurisprudence, political philosophy and ethics - that of ethics is the basic one, or at any rate that the experience with which ethics deals, the experience of morality, is as it were prior to the experience of law and of politics. For moral responsibility would exist even if there were no laws or no political system, difficult as it may be to imagine such a state of affairs. Moral responsibility arises directly from the fact that human beings are able to choose, as we shall shortly see, and though we are also social beings, so that law and politics follow hard upon, the originating experience is that of morality.

Importance of understanding morality

This is a warrant for taking some time, in a chapter dealing with law and morality in a jurisprudence textbook, to reflect on morality at some length. Many authors seem to assume that we all agree on what morality is, or they leave the reader to infer the theory of morals to which they subscribe, or occasionally—they seem unaware that what one makes of the relationships between morality and law depends at least in part on how one understands morality. But of course a utilitarian or other consequentialist account of morality is likely to give rise to conclusions about morality and law (conclusions, indeed, about law) which differ from those implied in the view of, say, a deontologist.

It would be impossible, even if it were desirable, to treat here every plausible combination of ethical theory and theory of law. Nor would it be especially useful simply to review the main contributions of philosophers and jurisprudent who have written upon the relationship between law and morality. The latter is admirably done elsewhere, and in any case there is no substitute for reading the work of the authors themselves; and if summaries of their thought are required they can be found in standard encyclopedias of law and of ethics. A better approach may be to enter the discussion by way of one particular viewpoint, and to offer an account that might provide the reader with a starting-point for criticism and debate.

Liberalism and its insistence on the intrinsic and fundamental worth of individual freedom

Ian Mcleod

Enforcement of individual morality

[The specific question to be raised here] is the extent (if any) to which the law may properly seek to enforce individual morality. Admittedly, [this] question … is sometimes expressed rather differently, in terms of the legal enforcement of private morality, but this formulation is best avoided … because it assumes that there is such a thing as private morality; and … the question of the validity of this assumption may well be at the heart of the debate.

Acceptability (or otherwise) of liberalism - fundamental worth of individual freedom

Many of the issues discussed [here] are essentially concerned with the acceptability (or otherwise) of liberalism and its insistence on the intrinsic and fundamental worth of individual freedom. There are, of course, many variations within the general area of liberalism …

Of course, all governments must govern, which is simply another way of saying that the essential function of government is to seek to control the conduct of those who are being governed; and it is obvious that this control must inevitably restrict individual freedom. From the liberal standpoint, therefore, while the fact of interference with individual freedom must be accepted as necessary, each specific instance of interference will nevertheless require specific justification. It follows that the arguments for and against liberalism will turn on assessing the extent (if any) to which such interference can be justified.

Natural law tradition

The viewpoint taken here will be readily identified as coming out of the natural law tradition, in its conception both of morality and of law and in its view of the main questions regarding their interrelationships. Not that one is forgetful of the difficulties which natural law theory must contend with. For one thing, its history has shown it to exhibit what H.L.A. Hart has called a "protean" character: it has looked differently at different times and has meant different things to different adherents, as is seen when one examines the various versions propounded by, say, Aristotle, Cicero, Ulpian, St Thomas Aquinas, Grotius, Lon Fuller and John Finnis .

And even when we consider only what is a persistent theme—that the demands of the moral law are available to a reasoned reflection on what it is to be a human being in the world which we inhabit—cultural and ethnic differences are such as to make one wonder whether any useful general theory of human nature is attainable, or any guidance for right living. Yet the concept of a natural moral order has over centuries proved remarkably resilient in face of the sometimes apparently fatal objections of its critics. The interest in it that was stirred by the need to refute the "positivist" defence of officials and military arraigned at Nurnberg has been replicated more recently in the context of debate about the foundations of human rights.

What follows then is an account of the lineaments of an understanding of morality that is in the broadly classical natural law tradition. An attempt is made to draw attention to aspects of morality that are especially relevant to discussion of its relationship to law. It is hoped that the account will shed light on the response later given to questions about the interrelationships between the two spheres, and in particular to the question whether there is a moral obligation to obey the law, and to that of the legal enforcement of morals.

Ian Mcleod

Objection against liberalism

… it may be worth dealing with one general objection which some opponents of liberalism sometimes raise, namely that the whole liberal enterprise is based on fundamentally self-contradictory proposition and is therefore irremediably flawed.

The substance of this objection is that liberalism, while proclaiming the importance of freedom of choice, nevertheless asserts that it, and it alone, is right. According to this objection, therefore, liberalism is based on the self-contradictory proposition that freedom is compulsory.

Those whose instincts are authoritarian may find this objection compelling. On the other hand, those whose instincts are located towards the liberal end of the spectrum may prefer argument that liberalism does not seek to prevent individuals from voluntarily submitting to the authority of others (subject to the possibility of exceptional situations where the paternalistic prevention of self-harm may be justified), because such submission will be the exercise of, rather than being inconsistent with, the freedom which liberalism values so highly. On the other hand, of course, in the absence of any convincing argument to the contrary, liberalism does reject the proposition of authority on those who do not voluntarily accept it. The most commonly accepted arguments to the contrary are the protection of the legitimate interests of other people and, perhaps, paternalism. However, the balancing of rights is an intrinsic element of government; and paternalism constitutes a limitation on, rather than a rejection of, liberalism. Those who accept this argument would, therefore, reject the contention that liberalism rests on self-contradictory proposition.

Michael Doherty, p. 299

Hart also adopts the harm principle, but denies that consent can be used as a mitigating factor. In the case of a minor, for example, the fact that the child consents to something does not necessarily mean that the law should not protect it from harm. Equally, immoral acts in public may be harmful to others and, as such, open to legal censure, whereas acts in private should not be a matter for the law. His justification is that while the first is the legitimate prevention of harm, the latter is the enforcement of societal will over the individual. Hart finds paternalism justified, but not enforced morality, per se.

2. WHAT IS MORALITY?

Morality may be described as the art of right relationship with each other and with the world around us. The use of the word "art" may at first sight be puzzling, and its choice will be explained in due course. But first we must look at other elements in the description.

Relational nature of human beings

Relationship is a fundamental feature of being human. We come into the world as the fruit of the relationship of our parents, and if we are to survive we need from the outset to be in some kind of sustaining relationship with another. In normal circumstances a child is in dependent relationship first to the mother, and he or she comes to maturity in a network of relationships which contribute to nurturing and education in a complex variety of ways.

Non-reflective and reflective relationships

At first our relationships are non-reflective, some even unconscious; spontaneously we just are—children or sisters or brothers or pupils or friends, or a doctor's patients or a newsagent's customers. But as we grow in self-awareness we become aware of our relationships, and gradually we become aware of being able to make some choices in their regard. I cannot change the fact that I am the sibling of X and Y, but I find I have some control over the way in which I behave toward them. I cannot avoid being in the relationship of classmate to Z, but I can choose whether or not I want Z to be my friend.

Awareness and capacity for choice as foundation of morality

These two characteristics of the human-person, awareness and a capacity for choice, are the foundation of morality. For our awareness tells us something about the way the world is, and our capacity for choice allows us to decide how we are going to conduct ourselves in it. A more familiar way of putting this, perhaps, is to say that humans are knowing and free, and that their knowledge and freedom are the basis for morality.

Not that our knowledge is always full and clear, or our freedom absolutely pure. We forget, make mistakes, are sometimes i^gnorant of truth, and sometimes our judgement is clouded by excess of emotion or by factors deep in our psychology of which we may not even be conscious. Our freedom is always bounded by our knowledge, and it may be trammelled too by compulsions and fears and other stirrings of the psyche, including, again, forces within us - of which we may not be aware.

Michael Doherty, p.295

… The empiricist's view of morality seems to be one that offers us no absolute moral facts. However, when we approach the question of how people should act, there seems to be convergence of views. Professor Isaiah Berlin suggests that the fact that people do react consistently when they communicate matters of morality would seem to suggest a relative stability in moral values. Moral values may thus be found in the consistency of attitudes, rather than resulting from some empirical or logical process.

The modern view of ethical philosophers shies away from the relativist concept of moral norms. Singer, a notable ethical philosopher, observes that human nature has its constant and there are only a limited number of ways in which human beings can live together and flourish. Now, how ethics has arrived at this view is hard to understand and still harder to explain, but it suggests that it is morally acceptable to make moral judgments about the behavior of others…

The enforcement of morality debate is essentially a moral or ethical one … Law either prohibits it or it does not… Most settled issues of morality that English law enforces can be reduced to attitudes to property, especially if you reduce people to being mere chattels.

However, the process of modern development confuses society and the state. Social cohesion is built up on moral institutions and values. The things that make it work are factors such as reliability, trustworthiness, affection, loyalty, and so on, and most human endeavours are founded on these aspects of mutuality and consistency. Equally, it carries with it taboos, which do not fit easily into the legal framework. Law seeks to superimpose rules of behavior on this matrix and to tinker with it, without destroying the links that make society work. Law is a social fact, but if society breaks down so does law.

The idea of moral responsibility

Yet normally we have sufficient knowledge and capacity for choice to be able in some fashion to direct our lives. The recognition that we are always influenced by our make up and our environment has not persuaded people to abandon the language of praise or blame, or to cease to try to change our ways or encourage others to change theirs. Which is to say that people generally hold on to the idea of moral responsibility, the idea that we are able to make something of ourselves and of our world, and that we are answerable for what we make of ourselves and how.

Right and wrong ways of relating

So the dimension of our experience which we call morality is founded on our capacity to know and to choose: these characteristics of the human are what enable us to practise the art of relating to other people and to our world. But the description with which we are working mentions "right relationship", and the concept of morality includes the notion that there are right and wrong ways of relating.

Right and Wrong, Good and Evil?

Right and wrong in terms of what? For the moment we may think of right as meaning conformity to a standard or rule: of being just, for example, as required by the rule that we ought to be just; or giving food or shelter to a poor person in accordance with a principle that we ought to help people who are in need; or refraining from stealing, according to the precept that we ought not to steal. But why these rules, and where did they come from, and why should we conform to them?

One approach is to say that another way of putting all this is that it is "good" to be just or to help people in need, "evil" or "bad" to steal. Speaking strictly, the terms right and wrong, even in a moral context, are probably mainly descriptiveof compliance or otherwise with some standard; though inevitably there is also a suggestion of commendation or disapproval of whatever or whomever is said to be right or wrong. With the expressions good and evil this evaluative ingredient comes into prominence: a good radio is to be prized and praised, as is a good read; and a good person makes, as it were, a demand on our regard.

A good person? It is not hard to judge whether a radio is good or bad, or a book—or indeed a singer or footballer or student. For it is not difficult to find criteria by which these judgements may be made, even if for some of them we may have to allow for "taste", and even if people differ sometimes as to the precise criteria, or how they are to be ranked, or how exactly applied. But a good person? Following a classical philosophical tradition and adapting the OED one might say that we call a thing good when it is what it is called to be. So a person is good when he or she is what he or she is called to be. "Call" is figurative; a religious person may think here of a call of God, but the expression need mean no more than that a particular way of being or acting is according to our nature.

Human nature

And what is "our nature"? Several answers are possible. If what characterises the human person is reason and freedom, the interlinked powers of understanding and of choice, we are what we are called to be when exercising our freedom rationally. And that indeed is an apt description of what being moral means. But it is abstract and general, and people are more attracted by a somewhat warmer way of putting it; and more than one religious and philosophical tradition would be happy with the proposition that the human person is called to love.

Love is a troublesome word of course, its meaning confused in the variety of its usage. A child loves ice-cream as well as its parents, a whole generation loved the Rolling Stones, Dante loved Beatrice, Hamlet loved Ophelia, and Don Juan loved many women. C.S. Lewis wrote a book called The Four Loves, from which it may be seen that even when we use the word aptly we may be talking of different forms of love. But there is at least the residue of a core meaning, and for present purposes we can say that love means wishing people well and doing them good.

So the good person is one who loves. But this is too general, it tells us nothing about how we ought in practice to behave, and we need immediately to give it concrete content. We could say that to love is to appreciate another, to have regard (in more than one sense); and to express this appreciation and regard in our dispositions and attitudes and intentions and actions. We should therefore acknowledge the dignity of others, respect their life and person, aim to do them good, be just and truthful, don't steal from them or take away their good name, refrain from harming them in any way.

Moral Rules – general and specific

These are some of the "rules" of morality, and they follow from the nature of the enterprise, and the nature of the enterprise is determined by our nature as human beings. Humans are called to love, and the "precepts" or "commandments" which are a feature of all moral systems are statements of a standard or test of loving. It may be noticed, incidentally, that the rules are of differing kinds.

Some are general: respect the dignity of others, respect their life and person, aim to do good.
Others are more specific: be just and truthful, don't steal or defame.

Of both general and specific kinds some have to do in the first place with states of mind (acknowledgment of dignity, respect, a will to do good, a disposition to justice)—which is why earlier when referring to the content of loving we mentioned, as well as action, an internal dimension comprised of factors such as disposition, attitude and intention. This is an important point, for we need to grasp that morality is not just external conformity with rules. T.S. Eliot's Becket expresses a persistent ethical theme in Murder in the Cathedral when he reflects that "the greatest treason [is] to do the right deed for the wrong reason".

Origin – tradition of community

But where do the rules come from? Most immediately they come from the moral tradition of the community into which each of us is born. Tradition refers both^-to a process of handing on and to what is handed on, and a moral tradition in the second sense consists in the values and principles and rules which comprise the "code" of the community. Normally it is handed on through the usual educational processes, formal and informal, at home or in school or in church, or through other educational agencies of society. In our time the media are potent agents of the transmission of moral value and of information relevant to moral assessment: think of the effect of a television documentary about AIDS in Africa or famine in Asia, or the power of a clever advertisement. Think also of the increasing influence of the internet, and the information and value systems to which it gives instant access.

A word on terminology may be in order at this point again. The code just referred to is not necessarily something which is written; the word is used here to designate the ensemble of values and principles and rules in the light of which a community lives or aspires to live its life. A "value" is something that is prized, considered to be important: in a moral context prized and considered important because of its bearing on human flourishing. An older term for the same thing is "good", something which is commendable, prized, thought important, either in itself or instrumentally. Life is a value or a good, as are honour and honesty and the keeping of promises. Societies or families usually rank values—even if not always consciously—in a certain order of priority, and by both teaching and example they try to communicate these to the next generation.

This means, among other things, expressing them in the form of "principles" or "rules" or "norms", which are intended to guide action so that the value is "realised". We saw some examples of these earlier. The value of life, for instance, is recognised in the principle that human life ought to be respected and in the norm or rule that we ought not to kill. The former of these is general, giving a general shape to our thoughts and activities but not on its face saying anything concerning concrete action or behaviour. The second is concrete, referring to a particular kind of act, the kind of act which takes away life. Both kinds are necessary in guiding our lives: the first gives moral meaning to the second, the second helps translate the first into practice.

Moral rules as prohibition

Notice that the second is also negative in form—it is a prohibition. Now the picture which many people have of morality is of a list of prohibitions; though we sometimes refer colloquially to moral precepts as "do's and don'ts" we seem to find it easier to think of examples of the don'ts. No doubt this is partially explained by the fact that moral education is still often negatively cast: thou shalt not kill, commit adultery, steal, lie, lust, and so on. But perhaps it is in some sense natural to latch on to prohibitions, especially those which are concrete. For one thing they have a relative clarity—each refers to a definite type of action or state of affairs or state of mind. And each helps mark off what is nowadays called the bottom line, beyond which a particular value or good is totally frustrated, so that we are clear at least on morality's minimal demands.

These prohibitions have an irreplaceable function, for it is important to be able to mark off the bottom line; but they are not the whole of morality. There is a great deal more to respect for life than refraining from killing people, and truthfulness is more than not tellin^g lies. Being just and doing justice is more than not stealing, and there are many ways in which a person might fail in faithfulness to his or her spouse or partner apart from adultery or being violently abusive.

Obligation

In ethical writing the terms "principle" and "rule", together with "norm" and "commandment" and "precept" and "imperative", tend to be used interchangeably. But perhaps one may say that the words commandment, precept and imperative, though used synonymously with the others, possess or at least accentuate an additional nuance. For these words bring out the sense of obligation which is a feature of our understanding of morality. We do not think of being just or truthful or fair-minded as merely a good idea; rather we think of these things as somehow demanded of us. Demanded by whom and why?

Why be Moral?

Earlier when we asked ourselves where moral rules come from we saw that in the most obvious sense they come from the tradition of the community. Now, again obviously, we can see that the demand that we keep the rules comes from the community, concretely mediated through parents, teachers, peers and society. But where did the community get the rules, and why should it ask us to keep them? It is worth pursuing these questions a little. One of the chief reasons why people—especially the young—resist moral rules is that they reject the authority of whomever they perceive to be imposing them.

Search for the right way to live

Where do the rules come from, and why obey them? Their author is the human mind, reflecting on human experience, discovering what is or is not fit living for a creature with a human nature. This discovery is always in process, for there is no end to change in the conditions of our living, and the change forces us to a ceaseless search for the right way for humans to live. There are of course some constants: we are body-spirits, with minds and hearts and will—rational and free, as the philosophers have it. We are sexual beings with an instinct for the reproduction of our kind. We need food, clothing and shelter. We need also to search for the "truth" of things, to comprehend ourselves and our world. There is in us also a "dark side", imperilling our ability to grasp our true good, or our ability to carry through what we recognise to be for our good. And these constants generate certain general requirements of human flourishing, which is another way of saying that the general requirements of morality do not change. But their concrete application varies, and we are never freed from the quest for the right way.

I have used the expression "human flourishing" in reference to the point of being moral; an older expression is "fulfillment", older still (but perhaps misleading) the word "happiness". What is in question is the idea that the point of anything is that it should be in the way which best suits the kind of thing it is: that things always aim at the "perfection" of whatever their nature is. And the perfection of a human nature is in the direction of rational choice—or of loving, if you prefer that way of putting it. Humans flourish inasmuch as they exercise their freedom according to the claims of reality, the claims of their own nature and the nature of things generally, or again, more warmly, when they truly love.

Human Survival

Of course some will say that the point of being moral is simply survival: that the demands of morality originated and have their justification in the concrete conditions of the persistence of individuals and of the species. But does this accord with our experience? It may well be that historically the first perceptions of, say, the value of life were self-interested, or that what came to be called the Golden Rule—positively formulated as that you should do unto others as you would have others do unto you—was at first no more than the insight that it is expedient to live and let live. And no doubt in practice we often do what is right from self-interest rather than from nobler motives.

But we are never content for long with this version of things. We are not content with mere survival but are drawn to a certain "quality" in our living. In the context of our relationships that quality includes attitudes such as gentleness and compassion and unselfishness. It calls on us sometimes to turn the other cheek or go the second mile; and it asks some to lay down their life for their friend. Such manifestations of the flourishing of humanity are not explicable in terms of survival merely.

Moral rules come to us out of the tradition of the community, but their ultimate origin is in the race's attempt to make sense of its experience; or, if you like, in human reason reflecting on human nature. And we ought, therefore, to obey the rules not just, as it were, on the say-so of the community or its authorities but because, and to the extent that, they indicate the way of human flourishing. The answer to the question, why be moral? is not that society or a church or even God requires it, but that it is through being moral that we become truly human.

An Art?

The description with which we began spoke of morality as an art, and now it is time to explain why. The word seems apposite at several levels. Its most basic sense is of a skill which comes from knowledge and practice, and we have seen enough to appreciate how morality might be described as an art in this sense. Plainly it requires a knowledge, an ensemble of notions and values and principles which express in the concrete the requirements of the good life. But the good life is to be lived, not just known or appreciated in the abstract. Moral knowledge is for putting into practice, and the practice both expresses and reinforces our ideas about how we are meant to live.

The word art is suggestive in a second way, for it also intimates a performance or achievement which is more than the simple application of a rule. There are principles of musical composition, for example, but the art of Beethoven is more than his observance of these rules. One could say that among the things which make us regard him as a great composer is the way in which he "works with" the rules, fashioning in music his vision. Vision in this context is not (if it ever is) something of the mind only; music too is, as Wordsworth in Tintern Abbey said of poetry, felt in the blood and felt along the heart. And, as in poetry or music, moral sensibility includes an engagement of the feelings and of the imagination which allows us to "see into the life of things".

Justice, as Aristotle said, is not merely the doing of just actions but the doing of them in the way of the just person. That means behaving out of a right intention and motive and attitude, and a general disposition to justice. And a disposition to justice or any other form of goodness, translated into practice, leads to a certain ease of performance. Someone who possesses the appropriate "art" will be observed to play golf or to sing or paint with a kind of fluency. And so it is with morals: disposition translates into habit, and habit tends toward facility, and we develop a "style". In this third sense too, therefore, we might speak of an art of good living.

There is a fourth reason for conceiving of good living as an art. It is that the best achievements of the artist are sometimes experienced by him or her (and perceived by others) as somehow "given", as it were from outside. People speak of being "taken over", "possessed", "inspired", so that their performance—as painter, actor, footballer—exceeds in excellence what they had thought to be their potential. This too may happen in the moral life when we appear to transcend ourselves, to be more courageous or loving or truthful than is "natural" for us; and we may aptly speak of having been "gifted". The religious person will think of the concept of grace, which imports the notion of gift from God, as well as empowering and enhancement, but the experience may be recognised and named without recourse to religious perspectives.

3. MORALITY AND LAW

We may now turn to compare and contrast morality and law. For the two are interrelated and interdependent, and we live our lives under the influence of each, and sometimes we may confuse the one with the other. Of course morality itself is often called the moral law, but the law now in question is that made as it were additionally by those who have the care of a community—positive law, as it is sometimes called, from a Latin word which means to lay down.

Positive law

Positive law is there because it was enacted by a lawmaker in some sense of that expression, or perhaps because it grew out of custom. In modern experience it is usually written, and its precepts are to be found in constitutions and charters and statute books and, in some systems, in the decisions of judges. There are understandable reasons for referring ^'to morality as the moral law but the expression may also be misleading, and for clarity we may continue to prefer the term morality in reference to those demands imposed on us not in the first place by decision of a lawmaker or by custom but by our nature as rational and free beings.

Similarities between law and morality

Morality and law resemble each other:

each has to do with the regulation of behaviour,
each deals in rules which enjoin or forbid certain acts or omissions or states of affairs.
Morality requires that we respect human life, the law that we drive on a particular side of the road. It is morally wrong to drive in a way that endangers life, it is illegal to exceed the speed limit in a built-up area.
- Both morality and law oblige us in a way that we recognize as more cogent than the force of convention or etiquette or taste.
  Only in an attenuated sense is anyone obliged to use a fish-knife, and no-one is compelled to read Shakespeare, unless by way of having to comply with, say, the requirements of a course in English literature.

Overlapping of scopes and interdependence of support

In some matters the scopes of law and morality overlap. They both forbid murder, perjury, rape and theft, to mention but a few of the items which come within the purview of each. They intersect in another sense too, for law requires the support of morality, and aspects of morality may be expressed in law; and morality normally requires that we obey the law. To fail to pay one's taxes is as morally wrong as it is against the law, as is a misrepresentation in the sale of goods or services.

Divergence between law and morality

But morality and law differ too, and the differences are profoundly important.

For one thing—a point which we have glimpsed already—they differ in their origins: the one has its roots in reasoned reflection on our nature, the other in a lawmaker's fiat.
Relatedly, the source of obligation of each is different: reason's understanding of the exigencies of human flourishing, and the will of the ruler or of whomever is the bearer of authority in the polis.
Another difference between law and morality is that the latter always pays attention to internal factors such as one's disposition or attitude or intention, whereas a good deal of law does not. From the law's point of view it doesn't matter with what degree of resentment I pay my taxes: if I pay them I comply with the law. But from a moral point of view resentment may mar what is ostensibly correct, as when I do a good deed with bad grace. If I wrong someone inadvertently I cannot be blamed morally, since I didn't mean to do so. But if inadvertently I exceed the speed limit or fail to pay my TV licence I can only hope for the indulgence of a police officer or judge; I stand liable to punishment, for I have broken, unquestionably, the law. An incidental implication is that compliance with the law is no guarantee of moral worth; and indeed morality may require that we disobey a law, a proposition that we must look at more closely later.

Virtue and legality

So although law and morality are in some ways alike and are interrelated and interdependent, the differences between them are radical. The one is not the other, nor can either take the other's place. It is wrong to expect too much of the law: to think that it can make us morally good is to confuse legality with virtue. A propensity to legislate instead of to educate inhibits moral growth. That is not to say, as we shall also shortly see, that law has no role in assisting the promotion of moral value.

Hart's Four Questions

H.L.A. Hart (1907-1992) has listed the main questions that may be put about the relationships between morality and law.

The first is whether the development of law has been influenced by morality (and vice versa);
the second, whether some reference to morality must enter into an adequate definition of law;
a third asks whether the law is open to moral criticism; and
the fourth is whether it is the business of the law to enforce morality—more exactly, to make immorality a crime.

The second and third questions have often been debated by moralists and jurisprudents, notably in discussion of the relative merits of legal positivism and natural law theory. We shall shortly meet a practical illustration of their significance, and of course they bear upon the question of whether there is a moral obligation to obey the law. The fourth question has long been associated with the name of John Stuart Mill, though nowadays it is more likely to evoke the names of Hart and Lord Devlin and the famous debate engendered by their exchanges.

Hart's first question is reasonably briefly dealt with. It seems clear that the development of law is influenced by morality, even if morality is not the sole influence. An easy example is that of legislation aimed at ending discrimination on the basis of race or gender; for the impulse toward this sort of legislation comes from the moral insight that people are equal and should be treated equally. Similarly, legislation concerning conditions in the workplace is founded ultimately on such considerations as the dignity of the person, the right to fair remuneration for one's labours, and the need to preclude exploitation—all of which are issues of morality.

That law may influence the development of morality seems equally clear. Legislation concerning drink driving was greeted with reluctance by many drivers, and no doubt is not wholeheartedly accepted by all yet. And it may be complied with reluctantly, and only for fear of punishment, so that the moral value of compliance in an individual case is slight if it exists at all. Yet there are many drivers who, though they complied at first reluctantly, do so now more freely, because they recognise that this law concerns the protection of life and the elimination of a threat to life and bodily integrity. Free choice of an action which is perceived to be for good is, of course, what we mean by moral choice.

Michael Doherty, p. 298

In Law, Liberty and Morality, Hart recognizes that there does not seem to be any real widely shared morality, and there can be no freedom if we are compelled to accept only those things that others approve of.

Hart notes that there are certain constants of the human condition, which he terms the minimum content of natural law, such as the vulnerability of human beings. If we disregard these sociological facts it would tantamount to suicide. But beyond these facts, society is faced with a choice of what rules to adopt in order to protect us from the frailties of the human condition. Hart seems to assert that since the development of a society is a collective odyssey, the values that a society has adopted for its preservation and progress constitutes a shared morality of sorts. This does not mean that the norms that a society has accepted and retained are ones that are logically necessary for the achievement of social preservation. However, they are instrumental in the maintenance of social cohesion. For this reason he would not accept Devlin's analogy of deviation from moral norms with treason against society. It may be that a change in morality can result in friction, but it need not result in the collapse of society.

Law and Moral Obligation

It has been remarked that Hart's second and third questions are related: whether a reference to morality must enter into any adequate definition of law, and whether the law is open to moral criticism. These are, of course, the questions at the centre of the debate between natural law theorists and positivists, and they bear directly upon the question of whether there is a moral obligation to obey the law. For if it is necessary for the validity of a law that it be not immoral, immorality is a basis for disobedience; and the failure of a law to meet criticism from a moral standpoint is also a reason why someone might decide that he or she was justified in disobeying it.

Normally we are obliged to keep the law of the land, and it is morally wrong to do what is illegal. Laws are laid down in aid of community welfare, and compliance with them is usually a precondition of human flourishing. But a law may be immoral, as when it discriminates unfairly on the basis of race or religion or sex. A law may enjoin an immorality, as in Hitler's Germany in relation to Jews. From a moral standpoint it will not do to seek to justify ourselves by saying "I obeyed the law", or to defend a wrong done under the law by saying "I was only obeying orders". For all that we are normally obliged to keep the law there may be times when we are morally obliged to disobey.

This last theme is as old as Antigone, yet as fresh in the memory as the Ndrnberg trials after the Second World War. Antigone buried her brother Polynices, defying an order made by Creon, king of Thebes, who had forbidden him honourable burial. In Sophocles' play she defends herself by appeal to a higher law.

"That order did not come from God. Justice

That dwells with the gods below, knows no such law.

I did not think your edicts strong enough

To overrule the unwritten unalterable laws

Of God and heaven, you being only a man.

They are not of yesterday or today, but everlasting,

Though where they came from, none of us can tell."

The notion of a higher law to which all, even rulers, are answerable has persisted in Western thinking in the form of some version of the doctrine of a "Natural Law". Not that all versions of the doctrine have come to the same thing, as was mentioned earlier, and no version has escaped criticism. Yet commentators have seen some such notion at work even in the ostensibly positivist climate of the Nurnberg tribunal for the trial of war crimes. "An order is an order", the accused officials and officers pleaded, meaning that they were obliged to do what was commanded by political and military superiors and were thus justified in what they had done. But the plea did not succeed, and A.P. d'Entri'ves has written: "The rejection of the defence of superior orders ... is nothing less than the old doctrine that the validity of laws does not depend on their `positiveness', and that it is the duty of the individual to pass judgement on laws before he obeys them."

Positivists' response

It was remarked earlier that Hart's second and third questions—whether an adequate definition of law must include a reference to morality and whether the law is open to moral criticism—are related. But they are nevertheless separate questions, and one might answer the former negatively whilst giving an affirmative answer to the latter. Positivists characteristically deny a connection between legal validity and morality, but that doesn't mean that they consider that the law is beyond moral criticism; nor do they think that one is always morally obliged to obey the law. John Austin thought that to say that a law was invalid because immoral was "stark nonsense",but H.L.A. Hart recalls that for Austin as for Jeremy Bentham, a positivist stance regarding legal validity went along with the conviction that "if laws reached a certain degree of iniquity then there would be a plain moral obligation to resist them and to withhold obedience".

A non-lawyer might regard these questions as merely technical and perhaps fussy, for if on either view one is morally entitled and sometimes obliged to resist unjust law, it seems that what is feared about positivist doctrine—the tyranny of law and of the lawmaker—is in reality a bogey. One author who was not so sanguine was Gustav Radbruch (1878-1949), a German jurisprudent who dramatically repudiated positivism when he saw the way in which Nazi leaders exploited the disjunction between law and morality which positivism espoused. He came to take the view that "the fundamental principles of humanitarian morality were part of the very concept of Recht or Legality and that no positive enactment or statute, however clearly it was expressed and however clearly it conformed with the formal criteria of validity of a given legal system, could be valid if it contravened basic principles of morality".

Hart notes that this doctrine can be appreciated fully only if the nuances imported by the German term Recht are appreciated. "But it is clear that the doctrine meant that every lawyer and judge should denounce statutes that transgressed the fundamental principles not as merely immoral or wrong but as having no legal character, and enactments which on this ground lack the quality of law should not be taken into account in working out the legal position of any given individual in particular circumstances."

The Enforcement of Morals

Ian Mcleod

… the enforcement of morality is usually discussed in relation to criminal law. The question may, however, arise equally in a civil context …

Although the fundamental issue is ageless, two particularly famous contributions to the debate were made in the second half of the 19^th century, by John Stuart Mill and Sir James Fitzjames Stephen. The debate became particularly topical again a century or so later with the publication, in 1957, of the Wolfenden Report on homosexuality and prostitution.

The debate in the 19^th century

John Stuart Mill (1806-73)

In his Essay on Liberty, published in 1859, John Stuart Mill states the classic liberal view of the relationship between law and morality. This statement is in terms of what is generally known as the harm principle or the harm condition, which is formulated thus:

'That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinion of others, to do so would be wise, or even right ... The only part of the conduct of anyone, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.'

… Mill's view is extensive enough to preclude the law from intervening even on a paternalistic basis ('His own good, either physical or moral, is not sufficient warrant').

Sir James Fitzjames Stephen

In his essay Liberty, Equality, Fraternity, published in 1873, James Fitzjames Stephen … challenges Mill. More particularly, he argues that moral and religious obligations operate as real constraints on individual conduct, and that they cannot be convincingly distinguished from legal constraints.

'Criminal legislation proper may be regarded as an engine of prohibition unimportant in comparison with morals and the forms of morality sanctioned by theology. For one act from which one person is restrained by the fear of the law of the land, many persons are restrained from innumerable acts by the fear of the disapprobation of their neighbours, which is the moral sanction; or by the fear of punishment in a future state of existence, which is the religious sanction; or by the fear of their own disapprobation, which may be called the conscientious sanction, and may be regarded as a compound case of the other two. Now, in the innumerable majority of cases, disapprobation, or the moral sanction, has nothing whatever to do with self-protection. The religious sanction is by its nature independent of it. Whatever special forms it may assume, the fundamental condition of it is a being intolerant of evil in the highest degree, and inexorably determined to punish it wherever it exists, except upon certain terms. I do not say that this doctrine is true, but I do say that no one is entitled to assume it without proof to be essentially immoral and mischievous. Mr. Mill does not draw this inference, but I think his theory involves it, for I know not what can be a greater infringement of his theory of liberty, a more complete and formal contradiction to it, than the doctrine that there are a court and a judge in which, and before whom, every man must give an account of every work done in the body, whether self-regarding or not. According to Mr. Mill's theory, it ought to be a good plea in the day of judgment to say 'I pleased myself and hurt nobody else.' Whether or not there will ever be a day of judgment is not the question, but upon his principles the conception of a day of judgment is fundamentally immoral. A God who punished anyone at all, except for the purpose of protecting others, would, upon his principles, be a tyrant trampling on liberty …

Why draw so strongly marked a line between social and legal penalties? Mr. Mill asserts the existence of the distinction in every form of speech. He makes his meaning perfectly clear. Yet from one end of his essay to the other I find no proof and no attempt to give the proper and appropriate proof of it. His doctrine could have been proved if it had been true. It was not proved because it was not true.'

Hart's fourth question, whether it is the business of the law to enforce morality "as such", or to proscribe immorality just because it is immoral, was the subject of a debate between himself and Sir Patrick (later Lord) Devlin, following publication of the latter's 1959 Maccabaean lecture on morals and the criminal law. Devlin's lecture was a critique of the Report of a Committee which, under the chairmanship of Lord Wolfenden, had been charged with the task of making proposals for the reform of the law concerning prostitution and concerning homosexual activity. Wolfenden's Committee sought a principle that would allow it to address both sets of concerns—indeed any matter which involved the criminal law and was regarded as immoral—in a consistent way. The Committee found their principle in a version of one first enunciated by John Stuart Mill (1806-1873).

In On Liberty (1859) Mill wrote that the only purpose for which the criminal law can rightfully be used is to prevent harm to others. The version espoused by the Wolfenden Committee is that the function of the criminal law is "to preserve public order and decency, to protect the citizen from what is offensive or injurious, and to provide sufficient safeguards against exploitation and corruption of others, particularly the young, weak in body and mind, inexperienced, or in a state of special physical, official or economic dependence". Devlin interpreted this to mean that "no act of immorality should be made a criminal offence unless it is accompanied by some other feature such as indecency, corruption or exploitation", or, of course, if it injures someone's person or property. It is features such as these that, according to Wolfenden, bring what is immoral into the public domain. And only when there is this kind of public dimension is it permissible for the law to take an interest.

Devlin rejected this on the ground that it was inconsistent with English law and, more fundamentally, because it did not take account of the fact that there is a public morality which is necessary for the integrity of society and which it is the business of the law to enforce. His position may be put summarily as follows. People who form a civil society do so on the basis of certain shared ideas, including ideas about right and wrong. A society's existence is threatened by deviance from the morality so shared, and it is as entitled to protect itself from moral subversion as it is from political subversion. It is for society to say how much deviance it will tolerate, and society is entitled to use the criminal law to enforce its morality when deviance exceeds toleration's bounds. A legislator will know when this point has been reached by reference to the standard of the reasonable man (sic), "the man on the Clapham omnibus".

On this view there is no private immorality in the sense envisaged by the Wolfenden Committee.
The most private of acts has a social resonance, however indirectly produced: any immorality is of its nature capable of threatening a society's existence. In theory therefore, there is no immoral act that might not be proscribed by law. But in practice a line must be drawn, for the individual "cannot be expected to surrender to the judgement of society the whole conduct of his life". And in deciding what to forbid, a lawmaker may be helped by some general principles.

[See the discussion on "rights"]

Private and Public Morality

Before reviewing these general principles it might be useful to look at a core question upon which Devlin and Hart were at
odds—whether there is a "private morality" which is, as Wolfenden put it, not the law's business. The expression "private morality" was to prove troublesome, and it may be as well at this point to be clear at least about what it does not mean.

For a start it doesn't make sense to think of it as referring to the morality of acts done in private; most murders are done in private, and privacy is virtually essential to the thief; and it would be ludicrous to suggest that the law should never intervene in cases of domestic violence.
Nor is it helpful to think of the term "private morality" as referring to what is a matter of private (in the sense of personal) moral judgement. For the question whether something is properly left to the individual's conscience, or whether it is a claim of the moral order, is usually only the starting-point of a debate. So, for example, the claim that women have a moral right to choose abortion comes up against the claim that the unborn have a moral right to life from conception. The first claim says that it is a matter for the personal conscience of a woman whether to have an abortion or not, the second—in a familiar version—maintains that the moral order precludes the directly intended taking of any innocent life. The argument cannot be settled by asserting the one right or the other, and there remains for the legislator the question whether either of these moral beliefs is to be "enforced".

Such questions are complicated nowadays by the pluralism of moral belief and practice that is a feature of so many modern societies. For it is a fact of modern life that societies are composed of people of a variety of religious traditions and of none, and the religions have generally been bearers also of a moral tradition, as has agnostic or atheistic humanism. If the law is to reflect and promote moral values—and it must, in some sense, as we have seen—then the question is: whose values? The values of the majority religious (or other) moral tradition? What then of minorities in the community; are they to be coerced into following patterns of behaviour which are contrary to conscience as they experience it, or prevented from acting according to their consciences simply because the majority subscribes to a different world-view?

One of the reasons why it is difficult to think clearly about these questions is that it is difficult to find a starting-point that has the prospect of common acceptance. But perhaps a starting-point is to be found in the general principle that no one should be forced to act against
conscience, nor should anyone be restrained from acting according to conscience within the limits of the common good. This principle is founded on the dignity of the human person, based in turn on the twin gifts of reason and the power of choice, and human dignity is possessed equally by all human beings. As already seen, we are at our most human when we act freely, so we ought not to be coerced or restrained beyond what is necessary in terms of a "common good". And this is especially true in the human search for truth, including moral truth.

But what of the proviso? What is meant by the common good? This concept has its roots in classical thought and, as developed by classical and Christian thinkers, is rich and complex. For present purposes it will suffice to adopt a description taken from relatively modern social thought in the Christian tradition, that it is the totality of conditions of social living which enable people to achieve a fuller measure of fulfilment with relative ease. The core idea is that the law should be such as to facilitate the flourishing of each person, but in such a way that the flourishing of any person or group is not at the expense of the flourishing of others.

A mistake sometimes made in debates about law and morals is to counterpose the common good and the individual's good. This happens when it is identified with the moral beliefs of a majority of citizens, so that in the Republic of Ireland, for example, it might be identified with the moral values of Christianity. On that premise people could argue that the right of someone from another religious tradition (say Islam) to believe and practise according to his or her faith need not be upheld by law. But this is not so. The common good is the ensemble of conditions of social living enabling each person to flourish to maximum potential. It includes individual freedoms, including freedom of religious and moral belief and practice.

Of course the exercise of anyone's freedom cannot be at the expense of the rightful freedom of others. A right to freedom of expression cannot mean right to say what one likes, true or untrue, about someone else in the community, and so we have defamation laws. A right to privacy against trespass cannot be invoked by someone who wishes to conceal the fact that he has bomb-making equipment in the garden shed. A right to the truth does not entail entitlement to pry into the personal business of one's next-door neighbour. The exercise of rights and freedoms of the individuals who make up a society must be harmonized, and in some matters this bespeaks regulation by law. This is often put by saying that the exercise of individual freedom is limited by the requirements of peace, justice and public morality.

News of the World phone hacking scandal

The News International phone hacking scandal is an ongoing controversy involving the News of the World, a now-defunct British tabloid newspaper published by News International — a subsidiary of News Corporation — and the allegations that individuals working for the newspaper engaged in phone hacking.

While the affair originally appeared to be limited to the hacking of celebrities, politicians and members of the British Royal Family, further revelations that victims of the phone hacking included murdered schoolgirl Milly Dowler, relatives of deceased British soldiers, and victims of the 7/7 London bombings generated widespread public outrage in the United Kingdom. Advertiser boycotts^[1] contributed to the closure of the News of the World, which published its final edition on 10 July 2011 after 168 years of publication.^[1]

On 6 July 2011, British prime minister
David Cameron declared that a public government inquiry would convene to investigate the affair, once police inquiries had been completed. On 13 July, Cameron named Lord Justice Leveson as chairman of the inquiry, with a remit to look into the specific claims about phone hacking and police bribery by the News of the World, while a separate inquiry would consider the culture and ethics of the British media.^[2] He also said the Press Complaints Commission would be replaced "entirely".^[1]

The affair has resulted in several high-profile resignations and arrests. Staff who quit News Corporation in the wake of the scandal have included Les Hinton, a subsidiary chief executive, News International's legal manager Tom Crone, and its chief executive Rebekah Brooks. The Metropolitan Police Service's commissioner and Britain's most senior police officer, Sir Paul Stephenson, also resigned his post. Former News of the World editor Andy Coulson, the paper's former executive editor Neil Wallis, and Brooks were all arrested. Rupert Murdoch and his son James were summonsed to give evidence in parliament.

The scandal eventually garnered attention in the United States, where News Corporation is headquartered and operates a multitude of media outlets. On 14 July the Federal Bureau of Investigation launched its own investigation into News Corporation, focusing on claims that its newspapers had violated the Foreign Corrupt Practices Act and accessed voicemails of victims of the 9/11 attacks. On 15 July, U.S. Attorney General
Eric Holder announced that the Department of Justice had also opened an investigation into the company.

Source: http://en.wikipedia.org/wiki/News_International_phone_hacking_scandal 19/7/2011

The Devlin-Hart Debate

And so we return to the question at the core of the debate between Devlin and Hart: whether or in what sense there is a "public morality" which it is the law's business to enforce. Devlin, as was seen, contended that there is, and that it is discerned by reference to the standard of the man in the Clapham omnibus; and he also offered some principles—Devlin calls them "elastic" principles—which might guide the legislator when it comes to the question of which items of this public morality ought to be enforced by law.

The first of these principles is that there should be the maximum freedom consistent with the integrity of society. The law should not attempt to enforce all of a society's moral code, but only those items without the observance of which society would disintegrate.
Second, Devlin says, the law should move slowly, for the limits of society's tolerance are apt to shift from time to time.
Third, as far as possible privacy should be respected: he sees a value in allowing people what would nowadays be called their personal space.
And the fourth elastic principle is that the law is concerned with minimum and not maximum standards of behaviour, and it should not try to do too much.

Lord Devlin's thesis was challenged in Law, Liberty and Morality by H.L.A. Hart, then Professor of Jurisprudence at Oxford, whose position was essentially that of John Stuart Mill and the Wolfenden Committee. That is, Hart reaffirmed the view that

there is a realm of private morality which is not the law's business, and
unless conduct involves an identifiable public harm it ought not to be proscribed by law.
On this view the law should confine itself to the prohibition of conduct which would injure others in their person or property, or corrupt or exploit, or violate public sensibility or public order.

In making his case Hart counters Devlin's arguments, and in particular he rejects the latter's concept of a public morality. The detail of their exchanges (for the debate did not end with Hart's rejoinder to the Maccabaean lecture) is beyond the scope of a short chapter such as this. But it is worth drawing attention to Hart's starting-point, for it sets the tone of his contribution as a whole. His starting-point is the contention that the question whether morals should be enforced is itself a moral question. For enforcement involves the curtailment of freedom, and the curtailment of freedom requires moral justification.

In support of this way of looking at the matter Hart points out that legal enforcement has two aspects.

The first is that it involves the punishment of offenders, and this is typically done by depriving them of freedom of movement or of property or of association with family or friends, or the infliction of physical pain or even death. But all of these are normally regarded as evil, and normally their infliction is considered wrong. If, therefore, it is to escape moral censure, their infliction requires special justification.
The second aspect of enforcement is no less pertinent to the need for justification. It is that law restricts freedom also in coercing conformity through threat of punishment. One's freedom is just as surely, even if differently, inhibited when one refrains from some act for fear of being put in jail as it is when one is jailed for doing the forbidden deed. And this kind of restriction also needs to be justified, for freedom is valuable both in itself and because it enables people to experiment with various ways of living.
But there is a further reason, according to Hart, why restriction of freedom requires to be justified from the standpoint of morality: "interference with individual liberty ... is itself the infliction of a special form of suffering—often very acute—on those whose desires are frustrated by the fear of punishment". He observes that this is especially true of laws that impose a sexual morality.

The common ground

For all that there are differences, of vantage point and of perspective, between Lord Devlin's view and that of Hart, they are not without common ground. There is this much at least:

that both envisage the main issue as one of reconciling personal freedom and the public interest, in some sense of that expression.
Each requires advertence to a social dimension in human conduct, and to a public interest in preventing social harm; and
each is prepared to recognise a role for the criminal law in that process.

Indeed one commentator has said that "both are recognizably liberal"," meaning no doubt that each puts a premium on freedom. In Hart's case this is clear even in the way he frames the main question, but it is intimated also in Devlin's assertion that "the individual has a locus standi too; he cannot be expected to surrender to the judgement of society the whole conduct of his life". And this insight is made concrete in the "elastic principles" to which Devlin would have the legislator advert, and especially in the requirements that there should be toleration of maximum freedom consistent with the integrity of society, and that privacy must as far as possible be respected.

It may be, as is sometimes suggested, that the principal difference between them is one of emphasis; but the difference in emphasis is critical. Devlin's overriding interest is in the "integrity of society", and in that sense he is "conservative". Hart's concern, first and last, is with the protection of individual freedom. Devlin's way of looking at the issues will probably recommend itself to someone whose instinct is to preserve societal values, Hart's will be the more congenial for someone who is inclined to a more "liberal" political view.

Moral code and morality distinguished

Of course, strictly speaking the term "enforcement of morals" is a misnomer. For the law can at best ensure only external compliance, whereas to be moral it is not enough to behave in a way which is merely externally correct. From a legal point of view, as we saw, it does not matter with what degree of resentment I pay my taxes; all the law requires is that I pay them. But from the viewpoint of morality a bad attitude or unworthy motive or perverse intention may mar what, on the face of it, is a good act, as when I give money with bad grace to someone in need. Hence it seems better to say that what the law enforces is a moral code, or at least that part of a code which commands or prohibits observable conduct: that it cannot enforce morality "as such". Indeed if someone refrains from misconduct wholly out of fear of punishment it is hardly correct to speak of morality at all.

And this provides a clue, as James Mackey has suggested, to the truth that emerges from the Devlin-Hart debate, and it shows that each was partly right. "Law does, and must always, make its business what would be morally right for people to do or refrain from doing. That is always true of law, in any form of human society which proposes to be essential to human living ... This is the part of the truth that Devlin protected so well on his side of the debate." But it is the merit of Hart's contribution that "he has pointed unerringly to the quite literally demoralising tendency of the apparatus of extraneous punishment and of its ever-present threat".

The truth of such observations as these is underscored if one accepts the description of morality with which this chapter began, that it is the "art" of right relationship with each other and with the world around us. And it is confirmed if one considers that "love" is an apt characterization of the most fundamental moral imperative. One of the reasons for the choice of the word art was that it suggests a skill which comes from knowledge and practice, and it can be seen that a community's laws offer an intimation of what the community values, and so can aid the process of moral education. And insofar as laws ensure the practice of, say, road safety or fair trade or just industrial relations, they may contribute to the acquisition of skills important for moral development. There is, as we have seen, a pedagogical dimension.

But we saw too that morality is as much a matter of the "heart" as it is of external performance, that it is a matter of being as well as of doing, a matter of attitude and motivation and intention as well as of doing "the right thing", which is one of the reasons why the word love is an appropriate characterization. And art also involves performance or achievement which is more than the simple application of a rule, and the art of right relationship with others and with our world bespeaks a sensibility which is not ensured by the mere existence of a law. Law's reach does not extend to these dimensions and indeed, as Mackey's remark on Hart's contribution indicates, there is always a risk that the coercive element in the apparatus of law may breed a fear which demoralises.

For reasons such as these, and leaving aside the difficulties inherent in ascertaining the value system operative in any society and the problems presented by today's pluralism and multiculturalism, the notion of the law as pedagogue must be viewed with caution. Law does reflect a community's values, and there is a "rhetoric of law" which signals something of the importance which a society attaches to the values which its members profess to hold. And modern practice as regards, for example, equality or health legislation, or such legislation as there is concerning the environment, acknowledges a right and responsibility on the part of government to promote behaviour called for by a moral responsibility. But we need not expect law to make people good, and there is no substitute for moral education.

Dworkin's argument on Political integration

Ian Mcleod

Dworkin's argument on Political integration

In an essay entitled Liberal Community, Dworkin seeks to show the falsity of both the distinction between private and public morality generally, and the idea that the law is entitled to be authoritarian in respect of individuals' conduct in matters such as sexuality …

Dworkin accepts as 'right and important' the ingrationist proposition that:

'political communities have a communal life, and the success or failure of a community's communal life is part of what determines whether its members' lives are good or bad.'

However, he continues:

'The argument succumbs to anthropomorphism; it supposes that a communal life is the life of an outsize person, and that it has the same shape, encounters the same moral and ethical watersheds and dilemmas, and is subject to the same standards of success or failure, as the several lives of the citizens who make it up.'

In order to avoid falling into this error, it is necessary to consider more closely 'what the phenomenon of integration is supposed to be'. He answers his own question thus:

'The collective life of a political community includes its official political acts; legislation, adjudication, enforcement, and the other executive functions of government. An integrated citizen will count his community's success or failure in these formal political acts as resonating in his own life, as improving or diminishing it. On the liberal view, nothing more should be added. These formal political acts of the community as a whole should be taken to exhaust the communal life of a political body, so that citizens are understood to act together, as a collective, only in that structured way.'

[Dworkin makes the point that] for liberals the quality of life depends on the nature of the community into which they are integrated…

'[The] fusion of political morality and critical self-interest seems to me to be the true nerve of civic republicanism, the important way in which individual citizens should merge their interests and personalities into political community…

A community of people who accept integration in this sense will always have one important advantage over communities whose citizens deny integration. An integrated citizen accepts that the value of his own life depends on the success of his community as treating everyone with equal concerns.'

Morality and Ethics in Islam

Description: The place of morality in Islam and its relation to worship.
By Khalid Latif (edited by IslamReligion)
Source: http://www.islamreligion.com/articles/1943/

(Morality as rules for preservation of human rights as recognized under Islam)

Islam is a comprehensive way of life, and morality is one of the cornerstones Islam. Morality is one of the fundamental sources of a nation's strength, just as immorality is one of the main causes of a nation's decline. Islam has established some universal fundamental rights for humanity as a whole, which are to be observed in all circumstances. To uphold these rights, Islam has provided not only legal safeguards, but also a very effective moral system. Thus, whatever leads to the welfare of the individual or the society and does not oppose any maxims of the religion is morally good in Islam, and whatever is harmful is morally bad.

(Islam supports and protects those moral rules)

Given its importance in a healthy society, Islam supports morality and matters that lead to it, and stands in the way of corruption and matters that lead to it. The guiding principle for the behavior of a Muslim is "Virtuous Deeds". This term covers all deeds, not only acts of worship. The Guardian and Judge of all deeds is God Himself.

(Virtues prescribed by Islam for promotion of moral life)

The most fundamental characteristics of a Muslim are piety and humility. A Muslim must be humble with God and with other people:

"And turn not your face away from people (with pride), nor walk in insolence through the earth. Verily, God likes not each arrogant boaster. And be moderate (or show no insolence) in your walking, and lower your voice. Verily, the harshest of all voices is the voice (braying) of the ass." (Quran 31:18-19)

Muslims must be in controls of their passions and desires.

A Muslim should not be vain or attached to the ephemeral pleasures of this world. While most people allow the material world to fill their hearts, Muslims should keep God in their hearts and the material world in their hand. Instead of being attached to the car and the job and the diploma and the bank account, all these things become tools to make us better people.

"The Day whereon neither wealth nor sons will avail, but only he (will prosper) that brings to God a sound heart." (Quran: 26:88-89)

Principles of Morality in Islam

God sums up righteousness in verse 177 of Surat Al Baqarah:

"It is not righteousness that you turn your faces towards East or West; but it is righteousness (the quality of ) the one who believes in God and the Last Day and the Angels, and the Book, and the Messengers; who spends of his wealth, in spite of love for it, to the kinsfolk, to the orphans, to the needy, to the wayfarer, to those who ask and for the freeing of slaves; and who is steadfast in prayers, and gives Zakah (Alms); and those who fulfill their covenants which they made; and who are patient and perseverant in poverty and ailment and throughout all periods of fighting. Such are the people of truth, the pious."

This verse teaches us that righteousness and piety is based before all else on a true and sincere faith. The key to virtue and good conduct is a strong relation with God, who sees all, at all times and everywhere. He knows the secrets of the hearts and the intentions behind all actions. Therefore, a Muslim must be moral in all circumstances; God is aware of each one when no one else is. If we deceive everyone, we cannot deceive Him. We can flee from anyone, but not from Him. The love and continuous awareness of God and the Day of Judgment enables man to be moral in conduct and sincere in intentions, with devotion and dedication:

"Indeed, the most honorable among you in the sight of God is the most pious." (Quran 49:13)

Then come deeds of charity to others, especially giving things we love. This, like acts of worship, prayers and Zakah (mandatory alms), is an integral part of worship. A righteous person must be reliable and trustworthy.

Finally, their faith must be firm and should not wane when faced with adversity. Morality must be strong to vanquish corruption:

"And God loves those who are firm and steadfast."

Patience is often hardest and most beautiful when it's against one's own desires or anger:

"And march forth toward forgiveness from your Lord, and for Paradise as wide as are the heavens and the earth, prepared for the pious. Those who spend (in the way of God) in prosperity and in adversity, who repress anger, and who pardon people; verily, God loves the doers of the good deeds." (Quran 3:133)

These three acts are among the hardest things for most people, but they are also the key to forgiveness and to paradise. Are they not the best, those who are able to exercise charity when they are in need themselves, control when they are angry and forgiveness when they are wronged?

This is the standard by which actions are judged as good or bad. By making pleasing God the objective of every Muslim, Islam has set the highest possible standard of morality.

Morality in Islam addresses every aspect of a Muslim's life, from greetings to international relations. It is universal in its scope and in its applicability. Morality reigns in selfish desires, vanity and bad habits. Muslims must not only be virtuous, but they must also enjoin virtue. They must not only refrain from evil and vice, but they must also forbid them. In other words, they must not only be morally healthy, but they must also contribute to the moral health of society as a whole.

"You are the best of the nations raised up for (the benefit of) men; you enjoin what is right and forbid the wrong and believe in God; and if the followers of the Book had believed it would have been better for them; of them (some) are believers and most of them are transgressors." (Quran: 3:110)

The Prophet, may the mercy and blessings of God be upon him, summarized the conduct of a Muslim when he said:

"My Sustainer has given me nine commands: to remain conscious of God, whether in private or in public; to speak justly, whether angry or pleased; to show moderation both when poor and when rich, to reunite friendship with those who have broken off with me; to give to him who refuses me; that my silence should be occupied with thought; that my looking should be an admonition; and that I should command what is right."

Third Path Theorists: Lon L. Fuller

2011-10-31T23:14:00.001-07:00

Third Path Theorists: Between Positivism and Natural

Law, Lon L. Fuller

INTRODUCTION

Jurisprudence is often presented as a polarity with views either falling into the positivist camp or the natural law camp. Both camps have come under attack.

Positivists are sometimes attacked for their uncritical stance towards the status quo, the law as it is. However fair or unfair this criticism may be, one of the central tenets of positivism is that one should not confuse what the law is with what anyone (the judge, advocate, citizen or even the positivist her or himself) thinks the law ought to be. Positivism itself, self avowedly, lacks the tools necessary to critique the law, to provide alternative models, or to demonstrate better paths for the law to take. This is because positivism is primarily concerned with identifying or describing the law as it is and not law as it should be.

Unlike positivists, natural law theorists are accused of having a view of law which is merely an ideal with little or no connection to the realities of the law, or even, in some cases, the context in which the law is embedded. They are accused of having a view that confuses what the law is with what it ought to be.

Take the analogy of law as a boat afloat in the sea of ever changing context. For the positivist, the boat should not be propelled by the sails of political morality; nor should it be set adrift in this sea of ever changing context. Rather, the boat's sails should be removed, and the boat should be firmly anchored to the bottom of the sea.' To extend the nautical metaphor, the natural law approach is like a boat that is all sail with little or no anchor.

The middle ground approach to law and morality

Those who attempt a middle road between positivism and natural law may be viewed as trying to meet the challenges raised by the above metaphor. From the perspective of the challenge against positivism, they may be seen as bringing substantive values into the analysis of the law as it is (i.e., putting up some sails to negotiate the sea of change). From the perspective of the challenge against natural law, they may be seen as more closely connecting up the substantive values found in political morality to actual legal rules and practices (i.e., anchoring the boat in the law as it is).

Many legal theorists … occupy a position that has aspects of both natural law and positivism. Even HLA Hart's soft positivist view may be understood from this perspective. Nonetheless, from among the diverse range of theorists, two in particular stand out as exemplifying attempts at a third path or middle of the road view, namely Lon L Fuller and Ronald Dworkin.

Ratnapala, p. 161

Separation of Law and Morality

Jurisprudence was enlivened in the second half of the 20th century by new debates about law and morality. Two of these involved Herbert Hart, the major figure in British legal positivism. Hart argued that the connection between law and morality was not necessary but contingent. He acknowledged that law often gives effect to morality, as when it prohibits crimes and torts and demands the performance of contracts. However, he maintained that a law, however immoral, will be law if it is recognised as law according to the established rules of recognition. The sensible response to such acts, Hart argued, is not to deny that they are law but to correct their effects by other laws passed where necessary with retrospective effect.

Two American professors of law questioned this general theory, and argued that law cannot be separated from morality in the sense proposed by Hart and his positivist predecessors. The first was Lon Fuller, whose theory was inspired by the German legal philosopher Gustav Radbruch. The second was Ronald Dworkin, who was a student of Fuller at the Harvard Law School. Their arguments are related in some ways to the classical ideas of natural law… , but they also introduced new dimensions to the debate about the relation of law and morality. Fuller and Dworkin approached the question from different directions, but I conclude that their theories are fundamentally similar.

LON L FULLER

(a) The inner morality of law - Law as good order

Lon L Fuller is well known for his now famous hypothetical case of the `Speluncean Explorers' developed in 1949, as well as his debate in the Harvard Law Review with HLA Hart over the possibility and desirability of separating law from morality. In this latter debate which carried on into L Lon Fuller's book, The Morality of Law and in HLA Hart's review, Fuller depicted the issues raised by his debate with Hart as amounting to a distinction between law as order (Hart) and law as good order (Fuller). Good order, as Fuller describes it, is law that corresponds with the demands of justice, morality, or "what ought to be." According to Fuller, Hart is intent on distinguishing the two and keeping them separate. Law is order simpliciter and nothing more. Fuller does not think that order can so easily be separated from good order for, at the very least, the order must be a workable or functioning order. For a legal order to be functioning or workable, it must meet a number of requirements that Fuller labels the internal morality of law. The principles of the inner morality of law make the point of law possible. For Fuller, that point is 'the enterprise of subjecting human conduct to the governance of rules'. If the end or point of law is good order, then Fuller's inner moral principles are the means needed to achieve that end. In Chapter two of The Morality of Law: 'The Morality that Makes Law Possible,' Fuller identifies eight ways in which this inner morality may be violated. In each case the result is a failure to make law, a failure to subject human conduct to the governance of rules.

Eight conditions of inner morality of law

He illustrates these eight ways of failing to make law through the allegory of Rex, a king who, upon coming into power, decides to comprehensively reform the corrupt and inefficient legal system in his state. However, despite Rex's good intentions, Rex fails to reform the law and in fact fails to make any law at all.

How did he fail?

After repealing all existing law, he failed to replace the previous laws with any legal rules. (This was due to his inability to codify general rules of law under, and his inability to generate general rules of precedence in, his decisions.) The people protested.
He corrected this by creating a code for himself that would enable him to make decisions that cohered with the code. However, the people protested again because they wanted to know what the rules were.
He corrected this upon discovering that it is always easier to decide matters after the case, with the use of hindsight. Thus, he decided that at the beginning of each year he would decide all the cases from the previous year and lay down the rules, along with all of his reasons for these decisions for that prior year. However, the decisions and reasons given for them were not meant to lay down rules of law for the next year (for that would defeat the benefits of using hindsight.) Again, the people protested and wanted to know the rules in advance so they could act according to them, rather than simply being judged by them after the fact.
Rex, the consummate innovator, then attempted to meet the needs of his people by creating-a code which laid out the rules in advance. However, his code was unintelligible. Not even lawyers could make sense of it. And again the people protested.
With the help of a commission of lawyers, Rex was able to make a clear code. However, the result was a code full of loopholes and contradictions. Again, the people protested.
Rex became angered and frustrated with the people and commissioned a coherent, strict, and thoroughly impossible set of legal rules to follow (no sneezing, a duty to report to the King within ten seconds of being summoned, etc.). The people again protested under the banner, 'To command what cannot be done is not to make law; it is to unmake law, for a command that cannot be obeyed serves no purpose but confusion, fear, and chaos'.
Rex responded by making the code, not only clear and coherent, but also fair (in the sense of not requiring more of his subjects than what was within their power.) However, the socio-economic conditions of his people had significantly changed in the period since the beginning of his code. Hence, Rex undertook to amend the code daily to bring it up to modern conditions. Again, yes, the people protested, for as they claimed, "A law that changes every day is worse than no law at all".
This state of affairs began to cure itself over time as the law caught up the changes in socio-economic conditions. However, as it did, Rex decided to sit as judge once again, for he mistrusted the judiciary in its application if the law. Rex was no longer afflicted with the inability to set down general rules of law in his judgments, and he constantly referred to the code as the touchstone of the law, the basic supreme law of the kingdom. However, when the volumes of his opinions became open to public scrutiny, it became clear that his judgments bore no relation to the rules of law laid down in the code. In light of his inconsistency, the people again took issue with the jurisprudence of poor Rex.

It is important to keep in mind that, according to Fuller, Rex did not fail to make 'good law', nor did he create bad law. Rex, in fact, failed to make any law at all. Rex's failures can be summarized as follows:

failing to make general rules,

failing to make the rules public or known,
enacting retroactive legislation,
failing to make the rules understandable,
enacting contradictory rules,
enacting rules that are not possible to follow,
1. changing the rules too often for one to be able to orient one's conduct to them, and
2. failing to produce congruence between the promulgated rules and their administration.

As Lon Fuller states:

This morality of order must be respected if we are to create anything that can be called law... Law by itself is powerless to bring this morality into existence. Until our monarch is ready to face the responsibilities of his position, it will do no good for him to issue still another futile command.

Fuller justifies his claim that these conditions are necessary, not only for the efficacy of law, but also for there to be any moral obligation to obey the law, with the following argument:

Certainly there can be no rational ground for asserting that a man can have a moral obligation to obey a legal rule that does not exist, or is kept secret from him, or that came into existence only after he had acted, or was unintelligible, or was contradicted by another rule of the same system, or commanded the impossible, or changed every minute.

This is a version of the argument that, in order to say someone morally ought to do something, it is necessary that they must be able to do it. The goal of having people ordering their lives under a system of rules, the goal of establishing the rule of law, simply cannot be achieved unless enough of the requirements of the inner morality of law are met.

The principles of the inner morality of law may or may not be laid down in constitutional rules. Most of them are not found in constitutions, nor are they hard and fast rules, instead they are principles. In the words of Ronald Dworkin, they have gravitational force or weight. Fuller himself gives four sets of reasons for why it is impossible to replace these implicit laws of lawmaking with explicit rules of recognition in a Constitution:

The most grotesque aberrations from ordinary conceptions of lawmaking are the ones constitutional drafts-people are most likely to leave out of the constitution (eg, Caligula appointing his horse as consul or putting his laws in fine print on the highest of poles);
A statute that seems in one context to be inconsistent with the very idea of law, in another context may serve the cause of legal decency (eg, retroactive laws or specific laws to correct gross injustices or mistakes);
It is difficult to anticipate states of emergency and what is required by way of deviation from the basic norms of law making under such circumstances (and it is arguably better not to have written rules that simply suspend normal lawmaking functions under such conditions, as these may be manipulated); and
Constitutions cannot be applied without being interpreted first. Interpretation is drawn from implicit principles, the attitudes and practices of the community, and shared conceptions of the purpose to which the Constitution and its provisions serve.

There are of course degrees to which a legal system satisfies these principles. No legal system is completely clear to all of its people. Many technical areas of the law are virtually inaccessible, even to the educated citizen, and no doubt when there are great deficiencies in educational background and language abilities, this may result in the bulk of the law being inaccessible to large parts of the population. Further, no legal system is completely free from contradictions or inconsistencies in its application. Sometimes it is necessary to enact specific or individualized rules, and at times, it is important to make retro-active laws, or laws with retroactive effect. States undergoing substantial political, social, and economic changes, for example, post communist countries and countries like South Africa, will always have a serious tension between principle number seven, which requires that the laws not change on a daily basis, and the need for creating a more substantively just order.

Critique

Most criticisms of Fuller have either been that the principles or canons he points out are not internal to law or that they are not in fact moral principles. For a strict minimalist positivist like Austin, Fuller has gone too far in stating these principles because they are not necessary for law to be law. These principles are external moral principles. On the other hand, from the view of natural law, or even from a Dworkinian view, these principles do not go far enough, for the law in most jurisdictions contains many more internal moral principles than the bare list provided by Fuller. It should be pointed out that despite these criticisms, no one … has criticized him on the basis that these principles are not sound principles for effective legislation or for good law.

While general compliance with the above principles may be necessary in order to create law, the above principles are not sufficient for creating 'good law'. One cannot ensure a moral obligation to follow the law based on Fuller's principles alone. As Hart noted in his critique of Fuller, one could have an inner morality of the poisoner's art, or of Nazi law, or of apartheid law. According to Hart, Fuller confuses the efficiency of pursuing a craft with morality. There may be internal requirements for one to be a poisoner, and a failure to follow these internal rules may not only make one a bad poisoner, but no poisoner at all. Nonetheless, as Hart states, . . . to call these principles of the poisoner's art "the morality of poisoning" would simply blur the distinction between the notion of efficiency for a purpose and those final judgments about activities and purposes with which morality . . .is concerned'.

Fuller's response

There can be no question that Hart makes a strong point. Fuller does,
however, have a response. Part of his response can already be found in his 1958 article. In that article, Fuller points out that it is much more difficult, and often impossible, for wicked legal systems to adhere to the inner morality of law. In fact, while some of the Nazi and Apartheid laws did conform to these principles, much of the most wicked aspects of these regimes did not.

It is much more difficult to make public evil laws of general application in advance for the simple reason that by definition these laws will have an evil effect on a great number of people, and everyone will be aware of this fact. If one is intent on evil ends, it is much easier to make secret ad hoc decisions by fiat after the fact. Such judgments are subject to change at will to meet the needs of the evil regime. No doubt they will conflict with the public rules of general application in the societies or the world they are presented to, whether in the form of the former Soviet Constitution, the creation of the several so-called independent states by South Africa, or the tri-cameral legislature. The less the evil system conforms to these requirements, the easier it is to hide the 'legal' practices behind notions like the rule of law. It is easier for evil regimes to hide behind notions of 'plausible deniability', which is achieved by very vague commands issued in private, rather than clearly promulgated public rules.

This connects up with a further response that is elaborated in his 1969 revised edition of The Morality of Law. Here, he further draws the connection between the inner morality of law, or the procedural morality of law, and substantive morality. The former furthers the latter. As he states, '[L]egal rules play [a role] in making possible an effective realization of morality in the actual behavior of human beings'. In Fuller's view, the only permissible form of legislation is the sort that lets individuals plan their own lives. Simply put, legislative enactments are 'baselines for self-directed conduct by citizens, providing the minimal restraints necessary for continuing interaction'. Legislation on Fuller's view is meant to defer to the individual's right to self-determination, to allow them the autonomy to pursue their own conception of the good life. As Francis Mootz puts it, ' . . .[T]o be in a position to pursue morally praiseworthy goals, citizens require a stable, institutionalized social framework within which to act. Consequently, providing such a framework for moral behaviour — which is precisely the work of legislators, judges and lawyers — is itself a moral undertaking'. Thus, the failures of Rex to enact law are affronts to 'the dignity of citizens as autonomous agents'. This raises a crucial difference between activities such as poisoning or even pushpin making and others, such as law making or raising children. The purposes these different activities serve make their inner principles non-comparable, and thus take a good deal of sting out of Hart's critique.

Concluding remarks/comments

Both of the major points made in the two preceding paragraphs rely on an overall positive view of human nature. They rely on the notion that it is more difficult to pursue an open, coherent, general plan of evil, than a similar plan of good. In other words, it is easier for us to be thoroughly good than for us to be thoroughly evil or bad. Fuller's argument is that his principles support and further the former, while they undermine the latter. At its base, the notion is quite simple: If one believes that evil can be effectively fought by bringing it to light, then Fuller's inner morality of law may in fact help bring about a more moral system overall. Similarly, if one believes that humans flourish as moral beings when they are provided a stable institutional framework, or clear boundaries, then Fuller' principles do help.

In the concluding remarks of his review of the first edition of Fuller's (1964) The Morality of Law, Hart states,

In conclusion I would say this: the virtues and vices of this book seem to me to spring from the same single source. The author has all of his life been in love with the notion of purpose and his passion, like any other can both inspire and blind a man. I have tried to show how this has done both to the author.

In his reply in his 1969 revised edition Fuller states, 'In my view Hart makes too little of purpose; he suffers from the positivist delusion that some gain —unstated and unanalyzed — will be realized if only we treat, insofar as we can, purposive arrangements as though they served no purpose'.

While in this crucial respect Hart and Fuller are at cross-purposes, at the end of the day, Hart and Fuller may not actually be so far apart. Hart … has not claimed that Fuller's principles are inappropriate inner requirements for effective law. He would not call them moral principles, for the above stated reasons, but he would agree that a claim of legality entails at least some moral force. Law requires more justification than the handgun theory of obedience to a political superior with the capacity to enforce his other rules. Authority does not make law. Rather, it is law that is the precondition of authority.

Even a positivist like Hart has admitted that legal rules must have at least some minimum moral content to be recognized as legal rules. This is what he terms the 'core of good sense' in the doctrine of natural law. For Hart, that core should be rules that protect people against violence, secure their property, and impose liability for the breach of certain promises. These are required according to Hart, because for him without them there would be no reason, short of the threat of sanction, for people to obey any rules. Hart's basic rules (or `rights'?) are based on the basic facts of human life, such as our basic equality, vulnerability to bodily harm, our limited altruism, limited knowledge/understanding, and limited strength of will. These, in conjunction with limited/scarce resources lead to our inability to fully trust the future conduct of each other (or even ourselves for that matter). Thus, we need rights to protect our life, liberty, and property, as well some form of contractual rights so-that we may be assured that we can bind ourselves and others into the future." On Hart's view, these are compelling reasons for every legal system to include such rules." While it is true that these rules are more clearly based on substantive morality than are Fuller's principles, they are a minimal set. Notice that this minimal set is designed to achieve much of what Fuller claims his inner moral principles would achieve. Nonetheless, they are more explicitly set out and appear to be based on a somewhat less favourable view of human nature.

To sum up, Fuller's main points are based on the following three things:

(I) His main claim is that it is neither easy, nor desirable, to separate law from morality if the function of law is to allow people to regulate their lives under a system of rules;

At the very least, a legal system must conform to the procedural requirements of the inner morality of law if it is to serve the purpose in point (1); and finally,
A legal system that meets these requirements is less likely to be an evil system and is more likely to foster morality, both within the law and among its citizens, by allowing them to regulate their lives in this way.

Thus, it may he said that Fuller's procedural moral "principles" or inner moral principles serve the more substantial moral view of human nature.

Lon Fuller on the morality of law

Lon Louvois Fuller (1902-78) was Carter Professor of General Jurisprudence at the Harvard Law School. The significance of his work in legal philosophy is insufficiently recognised outside the United States. He is best known for the debate with Hart on the connection between law and morality. Fuller was not a natural law theorist in the traditional sense, but in some respects his theory is more far reaching. Fuller's theory of the morality of law is best understood against the background of the post-war debate about the legality of crimes against humanity committed under positive law.

Historical roots of Fuller's theory: the closing period of the Nazi regime in Germany

The first of the great 20th century debates on law and morality arose in the aftermath of the Second World War, which witnessed human atrocities on an unimaginable scale in Europe and Asia. The victorious Allied powers (the United States, the Unite d Kingdom, France and the Soviet Union) established international military tribunals in Nuremberg, Germany and in Tokyo, Japan to bring to justice officials of Nazi Germany and Imperial Japan accused of war crimes and crimes against humanity. The common defence of the accused persons was that they were acting under lawful orders and hence their actions were lawful. Any retrospective punishment of these acts, they argued, would contravene the basic rule of justice that a person should only be punished for crimes against the law (nullum crimen, nulla poena sine lege .The debate was precipitated by the conviction of Nazi officials by the Nuremberg Tribunal.

The National Socialist (Nazi) Party came to power through democratic elections under Germany's Weimar Constitution. The Constitution, though democratic in character, had certain fatal defects, including the president's power to suspend civil liberties in case of emergencies and the legislature's power to amend the constitution by two thirds majority. These defects allowed the Nazi Party to transform the Constitution from within. In the short period that it held power, the Nazi Party under Hitler converted the liberal democratic German state into an unrecognizable abomination of tyranny. At the height of Hitler's powers, the German political system displayed the following features.

frequent retroactive laws punishing the guiltless or excusing atrocities
enforcement of secret (unpublished) laws that denied citizens the guidance of the law
uncontrolled discretions that identified the law with the momentary wishes of officials
the fact that a verbal order by Hitler was regarded as sufficient authority to exterminate thousands of people
frequent lawlessness, seen in the practice of extra-judicial punishment by the state acting through 'the Party in the streets ' - a euphemism for party thuggery
unification of legislative, executive and judicial power in the person of Adolph Hitler (the Fuehrer principle)
total intimidation of courts, which did the bidding of party officials. Judges were required to decide cases as the Fuehrer would.

The question that Fuller raised was whether in such conditions there can be a legal system capable of producing laws in a meaningful sense.

The Radbruch doctrine

Gustav Radbruch (1878-1949) was a professor of law at the University of Heidelberg and one of the leading German philosophers before the Second World War. A member of the Social Democratic Party, he was elected to the Reichstag (the lower house of parliament) and served as Germany's Minister of Justice from1921 to 1924. He returned to Heidelberg in 1926 and taught until his removal by the Nazi government in 1933. After the war he resumed his academic life at Heidelberg, where he proposed the so-called 'Radbruch doctrine', which became influential in the post-war jurisprudence concerning crimes against humanity.

Radbruch's early views on the concept of law are found in Legal Philosophy (Rechtsphilosophie 1932). He sought to combine elements of German legal positivism with natural law thinking, but the finished theory placed him closer to the positivists than to the natural lawyers. The idea of law, according to Radbruch, has three aspects: (1) Law serves expediency - the various purposes of human co-existence. (2) It serves justice. (3) It promotes legal certainty. (Radbruch1950 (1932), 118) These three aspects are of equal value. He wrote that 'the legal certainty that positive law affords may justify even the validity of unjust or inexpedient law', but argued that the demand of legal certainty has no absolute precedence over the demands of justice and expedience (1950, 118).

Importance of individual conscience

Conflicts between these qualities are left to the resolution of individual conscience, Conscience will usually choose legal certainty over personal conviction 'but there may be "shameful laws" which conscience refuses to obey' (Radbruch 1950, 118). A judge's conscience may direct them to enforce an unjust law against a person who disobeys it because of their own conscience. Radbruch stated that in relation to such a person, 'the law may prove its power but can never demonstrate its validity' (1950, 119). What does this mean? The power of the law is different from the validity of the law. Validity in the case of an unjust law is a matter of subjective judgment according to one's conscience. An unjust law may be valid from a judge's point of view, but from the viewpoint of the person who violates it the law may be effective but invalid. This suggests that officials may in good conscience enforce even the most unjust laws.

Reformulation of the theory

The horror of the Nazi reign of terror led to much soul searching by German legal positivists. In 1946 Radbruch published the essay 'Statutory lawlessness and supra-statutory law', in which he revised his pre-war theory of law. Radbruch used as his context one of the so-called 'grudge informer' cases. Grudge informers were persons who betrayed critics of the Nazi regime to the authorities, with knowledge that the betrayed persons faced certain execution. The common defence of grudge informers was that they did not violate any law by informing on critics. The defence of the officials who ordered the executions was that they were simply obeying the law in putting to death the betrayed critics. Radbruch argued that post-war German courts were right to convict the informers in disregard of the Nazi law. He could not do this without revising his pre-war theory that left the resolution of conflicts between statutes and justice to the conscience of judges. Radbruch reformulated his theory in the following terms:

The conflict between justice and legal certainty may well be resolved in this way:

The positive law, secured by legislation - and power, takes precedence even when its content is unjust and fails to benefit the people, unless the conflict between statute and justice reaches such an intolerable degree that the statute, 'as flawed law' must yield to justice. It is impossible to draw a sharper line between cases of statutory lawlessness and statutes that are valid despite their flaws. One line of distinction, however, can be drawn with utmost clarity: Where there is not even an attempt at justice, where equality, the core of justice, is deliberately betrayed in the issuance of positive law, then the statute is not merely 'flawed law', it lacks completely the very nature of law. For law, including positive law, cannot be otherwise defined than as a system and an institution whose very meaning is to serve justice. Measured by this standard, whole portions of National Socialist law never attained the dignity of valid law.(2006 (1946), 7)

Radbruch thus proposed a moral test that applies to all positive laws. His test is not a high hurdle to clear. It does not invalidate every unjust law, for what is unjust is a matter of legitimate debate. It nullifies only laws whose injustice is beyond rational doubt. The Radbruch doctrine proved influential in many post-war trials in German courts and in the Nuremberg trials.

GERMANIC LEGAL POSITIVISM: KELSEN’S PURE THEORY OF LAW

2011-10-28T08:20:00.001-07:00

GERMANIC OR CONTINENTAL LEGAL POSITIVISM: KELSEN'S

QUEST FOR THE PURE THEORY OF LAW

Ratnapala, p. 59 et seq

British legal positivism was founded on empiricism. Empiricist legal theorists reject metaphysical or mystical explanations of law and assert that law exists as social fact and nothing more. The main inspiration for Germanic legal positivism is not empiricism but the transcendental idealism of the German philosopher Immanuel Kant (1724-1804). Whereas British legal positivists regard law as fact distinct from morals, their Germanic counterparts seek to separate law from both fact and morals …

The key elements of Kelsen's theory are these:

Facts consist of things and events in the physical world. Facts are about what there is. When we wish to know what caused a fact we look for another fact.
A norm, unlike a fact, is not about what there is but about what ought to be done or not done.
Whereas facts exist in the physical world, norms exist in the world of ideas/thoughts.
Facts are caused by other facts.
Norms are imputed by other norms. The requirement that a person who commits theft ought to be punished is a norm. It does not cease being a norm because the thief is not punished. (He may not get caught). The norm that the thief ought to be punished exists because another norm says so.
Not all norms are laws. There are also moral norms. Legal norms are coercive; morals norms are not.
A legal norm has the quality of 'validity'. A legal norm is valid if it is endowed with validity by another norm.
Whereas physical things arise from causation, legal norms arise from validation by another valid norm.
A norm that confers validity upon another norm owes its own validity to another norm, and so on. This regression cannot go on infinitely. Kelsen conceived the idea of a basic norm (Grundnorm), a kind of First cause of the legal system beyond which we cannot speculate in a legal sense.
The basic norm is presupposed.
A legal norm exists because of a chain of validity that links it ultimately to the basic norm.
The legal system is a system of legal norms connected to each other by their common origin, like the branches and leaves of a tree.

Note:

It is not possible to gain an accurate understanding of the pure theory without a reasonable grasp of the philosophy on which it is based – transcendental idealism. In particular, the claim of purity of the pure theory can be understood only through this mode of thought. (The term 'idealism' is used here in the philosophical sense and not in the more commonplace sense of commitment to ideals).

Kelsen claimed that, despite its conceptual subtlety, he was merely making lawyers conscious of what they intuitively or subconsciously do in practice.

Like Hart, Hans Kelsen (1881-1973) was interested in providing a general theory of law, that is, one not tied to any particular legal system. He aimed, he said, to 'discover the nature of law itself, to determine its structure and its typical forms, independent of the changing content which it exhibits at different times and among different peoples' (Kelsen, 1941, p 44).

Ratnapala, p. 59 et seq

From empiricism to transcendental idealism

David Hume (1711-76) is considered the father of British empiricism, but he also provided the inspiration for transcendental idealism. Immanuel Kant, the instigator of the latter school, confessed that it was Hume's writing that interrupted his dogmatic slumber.

Hume made two famous observations about the limits of human knowledge.

First, he observed that there is an unbridgeable gap between the physical world as it is and the way we perceive it.
Hume's second important insight concerning human knowledge was that it is impossible logically to derive what ought to be done from observed facts. This is the error of trying to derive the 'ought' from 'is'.

Illustration:

Suppose we know as a fact that in a particular society all persons speak. It does not follow that John, who is a member of that society, ought to engage in speech. John, for instance, may have taken a vow of silence. If we say that John ought to speak because everyone else speaks, we draw an illicit inference of ought from fact ['is']. If we say that John has a duty to speak we must find some other source of obligation.

Hume was a sceptic but not an idealist. Idealism in its strict form is the belief that thoughts and ideas are all there is and that nothing else exists outside our mind. Hume did not deny the existence of things; he only doubted our ability to know them as they really are. Hume's insights. Particularly those concerning causation, shook the philosophical community and awoke Immanuel Kant from intellectual slumber.

In his seminal work, Critique of Pure Reason, Kant agreed with Hume that we cannot know objects as they really are. In other words, we cannot know the thing in itself … But Kant firmly believed that things exist outside [or beyond] our minds. These he called noumena. What we know are only the impressions that things create in our minds. These he called phenomena. There is thus a noumenal world of things and a phenomenal world of our impressions about things. Our knowledge is of the latter world. However, Kant argued that we possess a form of a priori knowledge, or knowledge that is prior to any experience. This knowledge shapes our experience. Kant thought that we cannot think of any object except in relation to time and space. Hume thought the reverse – that we have a sense of time and space only because we perceive separate objects. Kant said that we cannot conceive something that has no cause. As noted previously, Hume argues that we can.

Pure Theory of Law

This required, he thought, a 'pure' theory of law, because in order to discover the essence of law — what distinguishes law from other social phenomena — one would have to exclude all extraneous and non-legal elements, such as moral, sociological, psychological and political factors. 'The pure theory of law', Kelsen said:

undertakes to delimit the cognition of law against these disciplines ... because it wishes to avoid the uncritical mixture of methodologically different disciplines ... which obscures the essence of the science of law and obliterates the limits imposed upon it by the nature of its subject matter.

(Kelsen, 1967, p 1)

Kelsen believed that moral and political factors are extraneous to an account of law because he took the view that what is right and wrong is a subjective matter. He thought that value judgments are based on 'emotional factors' and therefore cannot be verified by facts (Kelsen, 1945, p 6). Law, by contrast, he thought of as an objective matter and therefore susceptible to what he called 'scientific' study. He thought that it would contaminate the legal scientist's detached, objective descriptions of the subject matter if subjective moral tests were to be used in identifying law. Hence he concluded that moral considerations cannot contribute to determining what the law is (as opposed to determining what it ought to be).

Ratnapala, p. 61

From transcendental idealism to the pure theory of law

Transcendental idealism is the epistemological foundation of Kelsen's 'pure theory of law', which presents law not as a fact but as norms that exist in the realm of ideas. Facts are about what there is, whereas norms are propositions as to what ought to be done or not done. Kelsen said of his theory: 'It is called "pure" theory of law, because it only describes the law and attempts to eliminate from the object of this description everything that is not strictly law: Its aim is to free the science of law from alien elements.' Specifically, Kelsen claimed that his theory is pure on two counts.

First it distinguishes law from fact. As Paulsen remarked: "at its core, Kelsen's legal theory does not consort with facts at all.'
Second, it distinguishes law from morals.

Kant's thoughts provided inspiration on both counts. The chief ingredients of Kelsen's pure theory are supplied by Kant's two distinctions between:

The world of things (noumena) and the world of ideas (phenomena); and
What is (sein) and that ought to be done or not done (sollen).

Legal science is different from sociological and psychological accounts of law, in Kelsen's view, because the latter do not account for law's normativity. They describe the phenomena of law 'in propositions that tell how [men] actually . . . behave 'whereas the science of law 'describes the phenomena of law ... in propositions that state how men should behave' (Kelsen, 1941, p 52). Social scientific theories of law are therefore inadequate as a description of law because they fail to recognise that 'jurisprudence can describe its object' not 'in is-statements' but 'only in ought-statements' (Kelsen, 1959-1960, p 270, Kelsen's emphasis).

Ratnapala, p. 62 et seq

Law as norm

Kelsen applied the Kantian distinctions with the following results. The physical acts that give rise to law (passing of a statute, delivery of a judgment etc) belong in the world of things or fact. They occur in time and space so we perceive them with our senses. The question of whether these acts represent a legal norm (an 'ought') cannot be answered simply by observing the facts. It requires a mental inquiry about what the facts mean in a normative sense (Kelsen 1967, 2-4). For example, a group of persons assemble in a building called the Parliament House and engage in a debate about a document called the Terrorism Bill, which states that a person who commits an act of terrorism shall be punished by life imprisonment. (This actually means that terrorists ought to be punished, as the Act cannot guarantee that they will be caught and punished.) At the end of the debate there is a vote and a majority of the assembled group approves the Bill. The document is then certified as an Act of Parliament. What we have observed is not the law but a series of facts. The question for the legal scientist is whether these facts can be interpreted as giving rise to the norm that acts of terrorism ought to be punished with life imprisonment. What creates the norm is not Parliament's say-so but another norm that states that the will of Parliament expressed in a particular way ought to be obeyed.

Nature of norm

Kelsen wrote: 'Norm is the meaning of an act by which a certain behaviour is commanded, permitted or authorized' (1967, 5). A norm may take the form of a rule or a specific command. A police officer's order to stop traffic, the minister's order under the Land Acquisition Act to acquire a person's property and a judge's decree in a civil case are all norms. Kelsen's theory obliterates the distinction between rules and orders. A norm, according to Kelsen, need not supply a rule of conduct that can be known beforehand - a necessary condition for achieving the rule of law. However, not every expression of will directed to a person is a norm. An armed robber's demand that I hand over money is not a norm, whereas a tax collector's demand of money is a norm. The subjective meaning of the two acts is the same. Each wills that I hand over money. But only the latter demand has objective meaning in Kelsen's sense. It is objective because an antecedent valid norm authorized the demand (Kelsen 1967, 8). Thus, we may say that a norm is an 'ought' proposition that is objectively recognized. I may state in writing that in the event of my death my wife and child ought to be given all my property. This is an expression of my subjective will. It does not oblige anyone else to respect my wishes unless it is also objectively regarded by the community as binding. That is, others have cause to recognize my will as binding on them (Kelsen 1967, 4). For instance, if my writing is not witnessed as the law requires, my intent is not binding on others. Likewise, the subjective intent of the people who approved of the Terrorism Act will not be objectively valid unless it was expressed according to established legal requirements. Did the assembled group constitute Parliament? Was the enacting procedure correct? Is Parliament authorized to make law on the subject of crimes? The answers depend on other norms. Section 51 of the Australian Constitution states that Parliament shall, subject to the Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to the subjects enumerated in that section. A lawyer may conclude from this and other provisions of the Constitution that the provisions of an Act of Parliament on a prescribed subject ought to be observed by citizens, courts and officials alike. This type of inquiry takes place in the world of ideas.

Kelsen used the term 'imputation' to signify the effect of a norm. We speak of causation in relation to the natural world. One physical event causes another event. Norms are not material things and one norm cannot cause another. A norm creates a duty to behave in a certain way by imputing a sanction to the breach of that duty (Kelsen 1967, 81).

Notice, however, that Kelsen did not say that the law should not be studied in its moral, social and historical context. He claimed only that such study does not amount to legal science, which is the study of how people ought to behave according to positive law — according to the law as we find it, rather than the law as we would like it to be. As Joseph Raz explains, '[t]he picture of law dictated by the methodology of the Pure Theory is of law in the books, of an analysis of law using as the raw material only law reports and statute-books' (Raz, 1994, p 201).

Ratnapala, p. 64

Commands, authorisations and permissions

We typically associate the law with commands to do or not do something – for example, that we ought to repay our debts or that we ought not to commit theft. According to Ke1sen there is no norm where there is no 'ought'. Yet many laws at first sight seem to lack an 'ought'. An Act of Parliament authorises (but does not compel) the minister to make regulations. My driving licence permits (but does not compel) me to drive my car on public roads. The Social Security Act grants me the right to receive a pension if I am unemployed or disabled but does not compel me to do anything. How do we explain these laws as norms? According to Kelsen, each of these laws has normative force. Such laws, in effect, say that people ought to 'endure' the actions of another person (Kelsen 1967, 16-17).The law under which I hold my driving licence means that people (including the police) ought to respect (endure) my liberty to drive. The law that authorises the minister to make traffic regulations means that the minister's regulations ought to be obeyed. The law that entitles me to a pension means that some official ought to pay me a sum of money.

Legislation, legal norm and statement of the law

It is vital to distinguish three elements of the legal process in order to gain an accurate understanding of Kelsen's theory. They are as follows:

legislation, judicial precedent or custom - this is a fact
the legal norm - this is the 'ought' proposition that results from the· interpretation of the legislation, precedent or custom
the statement of the rule of law.

Legal norms represent the meaning we give to a particular series of facts. The statement in a statute that something ought to be done is not a norm but a fact. The norm is the meaning we give to this fact when considered with certain other facts. The Queensland Parliament enacted the Criminal Code Act 1899. Section 291 of the Act states: 'It is unlawful to kill any person unless such killing is authorised or justified or excused by law'. Other provisions of the law describe authorisations, justifications, and excuses for killing. Section 302(1) states that a person who unlawfully kills another under the circumstances set out in that section commits murder. Section 305(1) states that 'any person who commits the crime of murder is liable to imprisonment for life'. Provisions of other Acts determine how a person is charged and tried and, if found guilty, how sentence is imposed and executed. From all of this we glean the norm that a person ought not to commit murder. The coercive (hence legal) nature of this norm is evident only when all the interlocking provisions are taken into account.

Kelsen also drew an important distinction between a legal norm and the statement of a rule of law. A legal norm is a command. Hence it is neither true nor false. I ask you to leave my property. My statement is neither true nor false. It is simply the expression of my wish. Similarly, an Act of Parliament states: 'A person convicted of murder shall be sentenced to life imprisonment'. It is the expression of the will of Parliament. It may be valid or not valid, but not true or false. On the contrary, the statement 'According to the law of England murder is punishable by life imprisonment' can be true of false. The former statement in the statute prescribes behaviour. The latter statement describes what the law is(Kelsen 1967, 73).Raz usefully pointed out that statements about the law may be morally committed or detached (1986, 89-91). Committed statements affirm in a moral sense the rules, rights and duties under the law. A person who says 'You have no right to enter my property' may be making a moral statement about the law. This kind of statement has no place in the science of law; according to the pure theory. Detached statements are those typically made by lawyers, who state the law without expressing a moral commitment. The position is as follows.

Act of Parliament	A person convicted of murder shall be sentenced to life imprisonment
Legal norm	The court ought to sentence a person convicted of murder to life imprisonment
Morally committed statement of the law	Persons who commit murder are rightly sentenced to life imprisonment
Detached statement of the law	It is the law in England that a person convicted of murder is liable to be sentenced to life imprisonment

Kelsen answered our question about the distinctive features of law in the following way. He said that law is not a fact, but a norm; that law, unlike morality, is a coercive order; that legal norms are created by acts of human beings; that such norms cannot be regarded as valid unless they are by and large effective; that the reason for their validity is a constitution which authorises their creation and that the reason for the validity of the constitution is a norm we presuppose; and hence that this presupposition is the condition under which every effective coercive order established by acts of human beings may be interpreted as a system of objectively valid norms.

This sounds very obscure but its meaning will become clearer if we pay attention to each of the building-blocks of the definition in turn: 'norms', 'coercion', `validity', 'presupposition' and 'effectiveness'.

As we have seen, Kelsen insisted that law is a system of norms or `ought'-statements, rejecting, like Hart, all reductionistic theories, such as Austin's, which aim to convert statements of law into descriptive statements. He thought that to say that a law is 'valid' is to say that an individual ought to behave in a way determined by the law. Kelsen further claimed that what distinguishes legal norms from other norms, like moral norms, is that legal norms are coercive in nature and that they are addressed to legal officials. Thus Kelsen thought that legal norms are authorisations to officials to impose sanctions, such as the deprivation of life, liberty, health or property. Thus a norm prohibiting murder can be translated, according to Kelsen, into the following instruction to a judge: `if anyone commits murder, you (the judge) ought to impose a sanction on that person.' All legal norms can be formulated in statements of this kind, according to Kelsen.

Note, however, that when Kelsen talks about legal statements as `ought'-statements it is legal 'ought' he has in mind, not moral 'oughts'. In this respect his theory is similar to Hart's. Legal statements are, for Kelsen, statements which describe the circumstances under which law provides that sanctions ought to be applied. Whether such sanctions are justly applied is another matter entirely.

Ratnapala, p. 65 et seq

Distinguishing legal and moral norms

Legal order as a coercive order

Kelsen, like other legal positivists, denied that there was a necessary connection between law and morality. A law that gives effect to a moral rule is law not because of its moral content but 'because it has been constituted in a particular fashion, born of a definite procedure and a definite rule of law' (Kelsen 1935,517-18). A norm in the sense of an 'ought' could be legal or moral. Often it is both. The rule against theft is moral as well as legal. Law is not the only regulative system in society. Moral norms play an important role in guiding behaviour. Moral norms, like legal norms, have both subjective and objective existence. A vegetarian may say that all persons ought to abstain from eating animal products. This is subjectively true for the vegetarian, but it has no objective existence in a society of committed meat eaters. Hence, it is not a moral norm of that society. On the contrary, my wish that people ought not to inflict gratuitous cruelty on animals will be objectively true in most civilised societies, and therefore be amoral norm in those societies.

Kelsen also argued that law and morals cannot be distinguished according to their respective content. The only kind of moral norm that cannot be a legal norm is one that is addressed wholly to a person's own mind, such as: 'Suppress your inclinations' (Kelsen 1935, 62). Kelsen regarded such morals rules as incomplete. A positive (complete) moral rule deals with both internal and external behaviour. So does a positive legal rule (Kelsen 1935, 60).

It is also not possible to distinguish moral and legal rules by the way they are created. There are two ways in which legal rules come about: by custom and by the will of a law making authority. Positive moral rules are also established by custom, or by the will of a moral authority such as a divine being, a prophet or a church. According to Keisen, moral prescriptions derived from purely philosophical speculation have no force as rules unless they gain currency in society. That happens by force of custom or authority.

Legal and moral norms also cannot be distinguished by the methods of their application. Moral systems lack the kind of specialised enforcement agencies (courts, police etc) that we associate with legal systems. Yet, as Kelsen observed, primitive legal systems also lack such organs (1935, 62). How then can we distinguish legal from moral norms? The difference, according to· Kelsen, lies in the fact that the legal order is a coercive order, whereas the moral order is not:

The fundamental difference between law and morals is: law is a coercive order, that is, a normative order that attempts to bring about a certain behaviour by attaching to the opposite behaviour a socially organised coercive act; whereas morals is a social order without such sanctions. The sanctions of the moral order are merely the approval of the norm-conforming and the disapproval of the norm-opposing behaviour and no coercive acts are prescribed as sanctions. (1935,62; emphasis added)

This statement requires two clarifications. First, according to this view what is needed for a society to have law is the means of applying 'socially organised 'coercion. Such means may exist (as in primitive societies) without specialised agencies such as courts and governments. This allows Kelsen to dispense with the requirement of a sovereign and to recognise that primitive law and international law are actually law.

The second clarification is that a law may exist even if no coercion is in fact applied. The thief may not get caught, or if caught and tried may be acquitted for want of evidence or because of judicial error. The moral norm states: 'A person ought not to commit theft'. The legal norm states: 'If a person commits theft, they ought to be punished'. The legal norm, like the moral norm, is not a statement of fact. It does not assure that what ought to happen will in fact happen.

Legal order is a dynamic order

Legal and moral order can be distinguished in another respect. Whereas moral order may be static or dynamic, legal order is always dynamic. Kelsen pointed out that legal order is dynamic in the sense that the content of its norms is variable depending on the will of the norm creating authority. In contrast, the content of the norms of a static order is in a sense predetermined as they derive from the content of a higher norm. The lower norms are subsumed by the higher norm. This is the case with some moral systems. As Kelsen explained:

From the norm to love one's neighbour one can derive the norm not to harm one's fellowman, not to damage him physically or morally, to help him in need and – particularly not to kill him. Perhaps one might reduce the norm of truthfulness and love for one's fellow man to a still higher norm, such as to be in harmony with the universe. On this norm a whole moral order may be founded. Since all norms of an order of this type are already contained in the content of the presupposed norm, they can be deduced from it by way of logical operation, namely a conclusion from the general to the particular. This norm, presupposed as the basic norm, supplies both the reason for validity and the content of the norms deduced from it in a logical operation. (1935, 195)

It is important to notice that not all moral systems are static in the sense just described. Norms of a customary moral system may change as society adapts to changing circumstances. Moral systems founded on {he authority of a church may also be changed legislatively. (Consider the changes with respect to homosexuality, divorce and contraception in some churches.) Kelsen's point is that legal order, unlike moral order, is always dynamic in the sense that the content of its norms is not predetermined. The norm creating authority determines what norms to create and with what content. Parliament mayor may not prohibit polygamy or the consumption of cannabis. Parliament may outlaw trade monopolies or create a trade monopoly. The legal order is dynamic in this sense. This is not to say that the norm creating authority has unlimited discretion to determine the content of norms. The discretion of Parliament may be limited by constitutional provisions. The legislative discretion of the Australian Parliament is limited by the separation of powers doctrine and the federal distribution of powers, as well as the express and implied rights and freedoms guaranteed by the Constitution. Likewise, the powers of ministers and local authorities to make subordinate laws are constrained by the terms imposed by parent legislation. The key point is that norm creating authorities have discretion to determine content within the limits of their jurisdiction. A higher norm confers jurisdiction but does not dictate content.

Note also that we should not confuse Kelsen's theory about the role sanctions play in law with Austin's theory (McCoubrey and White, 1996, p 136). For Austin, legal obligations should be understood as predictions of the likelihood of being punished: law is what is enforced by coercion. For Kelsen, by contrast, legal statements convey information about the sanctions which officials (legally) ought to apply. For instance, the statement 'X is under a legal obligation to do Y' means `if X fails to do Y, the law stipulates that coercion ought to be applied to X.' The statement does not predict the application of a sanction and remains true regardless of whether the sanction is or is not applied.

At the same time, Kelsen's and Austin's views are similar in one respect, namely, that both think that coercion is law's distinctive function, and Kelsen's views 'consequently suffer from the same defect that Hart identified in Austin's —the dogmatic attempt to reduce the complex phenomenon of law to just one element. The price of such 'spurious uniformity' is, according to Hart, distortion of the subject matter (Hart, 1994, p 49, 38). In particular, it conceals the fact that different kinds of laws serve different functions.

As we know from our discussion of Austin, Hart emphasises the fact that some laws play a facilitative role, not a coercive role. They provide us with options we would not otherwise have — the option, for instance, of disposing of our property on death (see 1.3). Hart concedes that, with sufficient ingenuity, legal rules which confer powers on us, such as rules which empower us to make a will, can be rewritten in Kelsen's format as conditional ought-statements. Thus the rule that states that two witnesses are required for the making of a valid will can be seen as a mere fragment of a more complete rule, stating: 'if there has been a will witnessed by two witnesses, and signed by the testator, and if the executor has not given effect to the provisions of the will, then the court ought to apply sanctions to the executor.'

But the trouble with this, as Hart points out, is that we do not really understand the nature of rules which confer powers on individuals, such as the power to make a will, if we leave out the perspective of those whom they empower. Such power-conferring rules are extremely valuable to us, and they therefore appear to us as `an additional element introduced by the law into social life over and above that of coercive control' (Hart, 1994, p 41, my emphasis). Kelsen's analysis of legal norms as authorisations to officials to impose sanctions therefore conceals the distinctive nature and function of the different kinds of rules which go to make up a legal system.

Kelsen's hierarchy of norms

In order to explain the source of the validity of positive legal norms — legal norms laid down by human beings — and to explain what confers unity on a legal system, Kelsen, like Hart, took the view that the validity of any legal norm depends on its membership in a system of norms. In particular, Kelsen postulated a hierarchy of norms, each norm deriving its validity from a higher norm in the hierarchy. This hierarchy culminates in an ultimate source of validity which Kelsen called the `grundnorm' or basic norm — a point at which the chain of validation can go no further. Kelsen writes: `Valid norms whose validity can be traced back to one and the same basic norm constitute a system of norms, a normative order. The basic norm is the common source for the validity of all norms that belong to the same order — it is their common reason of validity' (Kelsen, 1967, p 195).

In order to understand this, consider the following situation. Suppose you find a parking ticket on your car and you want to know if you are obliged to pay the fine. Does the law objectively require you to pay the fine? The answer to this question depends on whether you parked unlawfully. That will depend in the first instance on whether the local authority has made relevant regulations. But that is just the beginning of the inquiry. The validity of the regulations in turn depends on their conformity with another norm, namely an act of parliament authorizing the authority to make regulations with respect to parking. The validity of parliament's statute likewise depends on another norm, namely, that in terms of constitutional law parliament has the legislative power to pass the statute, either because the statute is not in breach of any limits on its legislative power or because its legislative power is unlimited. The validity of the constitution may in turn be a function of the fact that it has evolved from an older constitution or was created in terms of the rules of an older constitution by way of constitutional amendment. At a certain point in this chain or hierarchy of norms we arrive at the starting-point of the current constitutional order. Kelsen calls this the 'historically first' constitution. It is a constitution that cannot be traced to an older constitution but arose either as a result of a revolution (that is, in a manner not consistent with the constitution valid until that point) or as a result of a grant of independence to a former colony. The historically first constitution in the case of England would be the settlement which followed the Glorious Revolution of 1688.

If we now ask why this 'historically first constitution' is valid we cannot trace its validity to a positive or created legal norm. Instead, according to Kelsen, we have to postulate a basic norm or `grundnorm' — a non positive norm which authorises the creation of all legal norms, including that of the historically first constitution, and which provides that [c]oercive acts ought to be performed under the conditions and in the manner which the historically first constitution, and the norms created according to it, prescribe' (Kelsen, 1967, p 201). In short, the grundnorm provides that one ought to behave as the historically first constitution prescribes. When we reach the grundnorm we have, according to Kelsen, reached a point at which the enterprise of justifying legal statements must stop.

It is the existence of the grundnorm which, for Kelsen, makes the difference between a gangster's demands and a tax official's demands. Both demands express an individual's subjective wish that another person should pay over a certain amount of money, but the official's demands are authorised by a tax law, and ultimately by the grundnorm, and this confers objective validity on them. It is by virtue of the grundnorm that we can say that the official's demands objectively ought to be obeyed. By contrast, 'no basic norm is presupposed according to which one ought to behave in conformity with [the gangster's] order' (Kelsen, 1967, p 47). Once again, however, Kelsen does not identify legal validity with moral validity: it is not the justifiability of the official's demands which distinguishes them from the gangster's but the fact that they have been created in a way which is authorised by the grundnorm. To say that a legal norm is valid is merely to say that it exists within the legal system.

The chain of authorisation can also, of course, be followed in the other direction: from the abstraction of the grundnorm down to an actual decision or legal action. Kelsen calls this a process of `concretisation', because at each point down the chain the norms become more specific and concrete. At the end-point we reach a norm authorising force in the particular set of circumstances which define the case at hand — for instance, a judge's order that a particular defendant should pay damages of a certain amount to a particular plaintiff, an order which will be backed up by the threat of seizure of the defendant's property should the defendant not pay what he or she owes.

Wacks, p. 114

Law is created by facts (e.g., a judicial decision) which convey normative force from the authorizing norm to the authorized norm. The authorizing norm being valid and capable of endowing law-creating acts with status to create law, the norm so created is also valid. Law-creating acts thereby confer validity from one norm to another.

Ratnapala, p. 67 et seq

Validity and the basic norm

Legal order differs from moral order because of its coercive character. This is an incomplete explanation of legal order. An armed robber's command that I handover my wallet is coercive and so is the tax collector's command that I pay the state a part of my income. The reason the tax collector's command is law is that it is 'valid'. The robber's command is not law because it is not valid. So what is 'validity'?

In KeIsen's theory a valid norm is a norm that exists, and a norm that exists is valid (1945,30). A norm's existence is obviously different from the existence of a physical thing like a chair or an animal. A norm is incorporeal. We cannot see it, hear it, touch it or smell it. So how do we know it exists? As Hume and Kant pointed out, an 'ought' (which is what a norm is) cannot be derived from an 'is'. It can only be derived from another 'ought', or norm. Thus, a norm is valid if it has been made in accordance with another valid norm. That is to say, it has been issued by a person or body that is authorised to do so by that other norm in accordance with procedure stipulated by that norm. That norm is valid if it is made as authorised by another valid norm, and so on. Ultimately this chain of validity stops at a norm whose validity cannot be derived from another valid norm. It simply has to be presupposed if we are to make sense of the legal system. Let us see how this system works in practice.

Consider the norm that the prison warden ought to imprison X. This norm is valid because a judge has stated that X ought to be imprisoned after X was found guilty at the trial. The judge's order is valid because according to the Crimes Act a person found guilty (after trial) of the offence of doing Y ought to be sentenced by the judge to imprisonment. The Crimes Act is valid because according to the Constitution the commands of an Act of Parliament ought to be obeyed by judges. In the case of some legal systems the inquiry may extend further. The Constitution's validity may be derived from another Constitution. The validity of the Australian Constitution at the time of its commencement in 1901 was derived from the norm established by the Commonwealth of Australia Constitution Act, a statute enacted by the British Parliament. [I consider the legal position as it was in 1901 for simplicity. The basic norm of the Australian legal system has since changed, owing to political and legal developments that occurred after Federation].That norm was valid because of the basic norm of the British Constitution that commands of the British Parliament (Crown in Parliament) issued in the form of Acts of Parliament ought to be obeyed by subjects. The last mentioned norm, it is found, is not derived from another valid norm. It was established by the political events that followed the Glorious Revolution of 1688. It is what Kelsen called the basic norm that must be presupposed. Kelsen described the basic norm thus:

Coercive acts ought to be performed under the conditions and in the manner which the historically first constitution, and the norms created according to it, prescribe.(In short: One ought to behave as the constitution prescribes.) (1945,201)

So how did the basic norm arise? The basic norm that the will of the Crown in Parliament expressed in the form of an Act ought to be obeyed was established following the political settlement that occurred after the Revolution of 1688, under which William of Orange and Mary of Scotland jointly took the throne of England and Scotland after conceding supreme legislative power to the Parliament at Westminster. However, following Kant and Kelsen (and before them Hume) we acknowledge that the basic norm (an 'ought' or Sollen) cannot be derived from the historical event of the Revolution Settlement (an 'is' or Sein).Yet it is highly improbable that the basic norm would exist if the historical event had not happened. The Kelsenian explanation would be along the following lines. The actors that brought about the political settlement after the Glorious Revolution willed that the norms expressed by the Crown in Parliament ought to be obeyed as supreme law. This was the subjective meaning of what they did and said. This meaning was generally accepted within the polity; hence it became an objective norm. If key actors or the populace generally did not accept this norm, it would not have become the basic norm. This acceptance was not logically necessary. It was simply a political fact.

Basic norm of customary law systems

The reader will recall that according to 'command theories' of law customary law is not law until it is convened to law by the director indirect command of the political sovereign. In practical terms, it means that a customary law is not law until it is enacted by Parliament or recognised and enforced by a court of law . This view of the law leads to the necessary conclusion that a society that lacks a sovereign political authority lacks law. According to this view of the law many tribal societies are lawless. Hart's rejection of the 'command concept' of law allowed him to appreciate that law was a feature of all societies, primitive as well as modern. Primitive societies have laws in the form of primary obligation rules. Modern societies have in addition secondary obligation rules(rules of recognition) that enable primary rules to be authoritatively recognised, changed and enforced by specialised organs of the state such as parliaments and courts. Hart thought that it is the presence of the secondary rules that brings about a legal system. A primitive legal system has a set of laws but not a legal system (Hart 1997, 234).

Kelsen, like Hart, recognized that primitive society possesses legal norms. However, Kelsen's theory of the legal order was more abstract than Hart's idea of a legal system, and was broad enough to encompass both customary and developed legal systems. The existence of the basic norm is not dependent on the existence of formal norm creating authorities such as parliaments and courts. Every norm, including the basic norm, is the result either of deliberate human action or of custom. It is possible to locate the basic norm of a customary legal order. Kelsen explained:

In a social community, a tribe, it is customary that a man who marries a girl pays a certain amount to her father or uncle. If the groom asks why he ought to do this, the answer is: because in this community such a payment has always been made, that is, because there is a custom to make this payment and because it is assumed to be self-evident that the individual member of the tribe ought to behave as
all other members customarily do. This is the basic norm of the normative order that constitutes the community. (1967, 197; emphasis added.)

Although both Hart's rule of recognition and Kelsen's grundnorm are ultimate norms, in the sense that there is no more fundamental norm from which they derive their legal authority and therefore no legal justification for them (Hart, 1994, pp 107-10; Raz, 1979, pp 68-9), there is also an important difference between their views. In particular, whereas Hart insists that the rule of recognition is identifiable empirically by reference to social facts — namely, the practice of the courts in identifying what counts as law — Kelsen conceptualised the grundnorm as a theoretical idea or hypothesis we have to make if 'we want to interpret the acts performed according to [the historically first constitution] as the creation or application of valid general legal norms' (Kelsen, 1967, p 200). This difference can be accounted for in part by the different influences on their thought. Where Hart was influenced by Bentham and Austin's social realism, and especially by their emphasis on law as a social construct, Kelsen was under the influence of Kantian philosophy.

Immanuel Kant (1724-1804) thought that knowledge is not independent of the human mind, but is partly constructed by it. In particular, categories like time, space and causality do not inhere in reality [or nature] but are imposed by us on the world as a means of understanding it. Kelsen applied this analysis to the phenomenon of law, saying that the 'science' of law is a way of making sense of legal reality. 'Science', here, does not mean 'natural science'. It does not, in other words, mean the science which is concerned with evidence and causality. For Kelsen, the science of law aims to expose the logical structure of legal systems or the categories which must be imposed on the phenomenon of law in order to understand it. [In particular it imposes the grundnorm or basic norm on the phenomenon of law].

According to Kelsen, the science of law has to hypothesise the concept of the grundnorm in order to make sense of the fact that we describe conduct as legal or illegal, that is, as conduct which objectively ought or ought not, according to law, to be done. This hypothesis or presupposition provides the logical basis, he says, for understanding how a subjective act of will (a demand that other people act in a certain way) can assume the form of an objectively valid legal norm. It is therefore a merely theoretical construction.

Kelsen explains: The basic norm] is presupposed to be valid because without this presupposition no human act could be interpreted as a legal, especially as a norm-creating act... The basic norm is the answer to the question: how ... are all these juristic statements concerning legal norms, legal duties, legal rights, and so on, possible?' (Kelsen, 1945, pp 116-17). It is, in other words, only by assuming that the grundnorm is valid — by assuming that all laws made in accordance with the historically first constitution ought to be obeyed — that we are able to make sense of the fact that we count certain standards as legal standards rather than as an 'aggregate of commands' (Kelsen, 1959-1960, p 276).

As JW Harris observes:

[e]ffectively enforced acts of purported legislation come first and, indeed, could be recorded sociologically, without the help of any basic norm. But if we interpret them juristically, by speaking of their contents as 'legally binding', then we presuppose a basic norm. That presupposition adds a top-dressing of `oughtness' to the power-facts on the ground.

(Harris, 1997, p 77)

It should be obvious that Kelsen does not believe that legal norms manifest themselves or are explicitly formulated in the way he describes — that as we go about our daily business we are self-consciously invoking the grundnorm as the basis of the validity of our particular transactions.

Kelsen and revolutionary political changes

As we have seen, Kelsen believes that the grundnorm validates whatever constitutional order is currently in force. But how do we know what constitutional order is in force? Kelsen's answer to this is: whatever constitution is 'effective', a constitution being effective when the norms whose creation it licenses are on the whole applied and obeyed. This implies that if there is a revolution in a particular country (i.e., an unlawful break with the past rather than a change by constitutional means), and if the revolutionary leaders are effectively in control and generally obeyed, we have to postulate a new grundnorm as the reason for the validity of the new constitutional order.

Kelsen explains that he does not regard validity and effectiveness as identical. Effectiveness is a condition of the validity of legal norms but the reason for their validity is the grundnorm. Thus legal norms are valid only while the political order to which they correspond is effective, but the reason that the norms are valid is the presupposed grundnorm.

Kelsen writes:

[s]uppose that a group of individuals attempt to seize power by force ... If they succeed, if the old order ceases, and the new order begins to be efficacious, because the individuals whose behaviour the new order regulates actually behave, by and large, in conformity with the new order, then this order is considered as a valid order. It is now according to this new order that the actual behavior of individuals is interpreted as legal or illegal. But this means that a new basic norm is presupposed. It is ... a norm endowing the revolutionary government with legal authority. (Does this mean that a grundnorm can be presupposed to exist in an effective political order?]

(Kelsen, 1945, p 118)

Kelsen's pragmatic line of reasoning is easy to understand: if political reality no longer corresponds to the old order, that order must have ceased to be legally valid, and the usurpers must be acknowledged as the lawful government against the background of a new grundnorm. The new order may not be morally legitimate but that is an entirely different issue, relying on moral and political considerations which, as we know, fall outside Kelsen's pure theory.

There _.are some interesting cases in which courts asked to pronounce on the legality of a coup d'etat have validated the coup by reference to Kelsen's doctrine of effectiveness. Finding that the coup has been effective, they pronounce the new order lawful. Some scholars criticise this approach on the ground that it rewards and even encourages treason, though it is not, in fact, clear that Kelsen would have endorsed this particular use of his theory. For Kelsen, the grundnorm is a presupposition made by jurists — that is, people who are not officials — after an effective seizure of power has taken place. By contrast, judges who are asked to pronounce a coup valid are usually in the midst of events and are being asked to put their weight behind the seizure of power. This was exactly the situation in the recent case of Republic of Fiji v Prasad (2001).

In 2000, the military had overthrown Fiji's elected government and had issued a decree abrogating the 1997 Fijian Constitution. Prasad, a farmer who had been forced off his land during the upheaval, brought an action in the High Court of Fiji, seeking a declaration that the revocation of the 1997 Constitution was unconstitutional and that the elected government was still a legally constituted government. The High Court found for Prasad, at which point the Interim Civilian Government, established by the military, appealed to the Court of Appeal.

As George Williams explains:

the High Court and Court of Appeal were not placed in the passive role of observers of an historical shift in the Grundnorm of Fiji. They were cast in the centre of an unfolding drama as important actors, and were asked by the coup leaders to recognise a new regime so as actually to lead to a shift in the basic norm of the nation.

(Williams, 2001, pp 91-2)

Prasad is a very important case because the court refused to recognise the validity of the coup, saying that the overthrow of the 1997 Constitution was illegal. This makes it the only case in which a domestic court has pronounced a coup illegal (Williams, 2001, p 74). Though the court spoke the language of effectiveness, in fact it departed from Kelsen's understanding of effectiveness, saying that compliance with the new laws is not sufficient: obedience to the new regime must stem from popular acceptance and support, not from tacit submission to coercion or fear of force. It then went on to find that the Interim Civilian Government did not enjoy the required public support and that the revolution had therefore not been successful. Remarkably, the government agreed to implement the court's decision

Prasad was, it must be admitted, a very special case. The usurping government had been in existence for only seven months. The situation would obviously have been very different if many years had elapsed and the revolutionary government had decisively established itself in power. Furthermore, there had been no attempt to replace the court system of the old regime and it was the usurping government itself which made the legality of the new order the subject of a court case, promising to promote a return to constitutional legality if the court were to uphold the 1997 Constitution. Prasad nevertheless has something to teach us, namely, that while Kelsen is right that there may come a point at which the brute facts of political reality require legal acknowledgment, we should not be too quick to assume that this point has been reached.

Further cases for consideration:

The State v Dasso (1958) 2 PS CR 180. On 7 October 1958 the President of Pakistan issued a proclamation annulling the existing Constitution. On 27 October 1958 the Supreme Court of Pakistan held that a valid new legal order had been established: "the essential condition to determine whether a Constitution has been annulled is the efficiency of the change", said the Chief Justice, at p. 185.

Uganda v Commissioner of Prisons, Ex parte Matavu [1966] EA 514. On 22 February 1966 the Prime Minister of Uganda issued a statement declaring that he had assumed full powers of government, and also the function of the President, and on 14 April 1966 the legislative repealed the existing Constitution, enacted in 1962 and promulgated a new Constitution, with the former Prime Minister as executive President. In August 1966 the High Court held that the 1962 was repealed, and the 1966 was the valid Constitution of the country. The Chief Justice said, p 539:

". . . our deliberate and considered view is that the 1966 Constitution is a legally valid constitution and the supreme law of Uganda; and that the 1962 Constitution having been abolished as a result of a victorious revolution in law does no longer exist nor does it now form part of the Law of Uganda, it having been deprived of its de facto and de jure validity. The 1966 Constitution, we hold, is a new legal order and has been effective since 14 April 1966 when it came into force".

Madzimbamuto v Lardner-Burke [1969] 1 AC 645. On 11 November 1965 the government of the British colony of Southern Rhodesia repealed the existing Constitution and promulgated a new Constitution. On 16 November 1965 the British Parliament passed the Southern Rhodesia Act 1965 which reasserted that Southern Rhodesia was a British colony and withstand order in council to be made to provide for the government of the country. The Privy Council held in July 1968 that Ms. Smith's regime was not in effective control of Southern Rhodesia because the British Government was still asserting control, and it cited with approval the comments of the Chief Justice of Pakistan in Dasso's case, above.

Jilani v Government of Punjab PLD 1972 SC 139. A full bench of the Supreme Court held that Dasso's case (above) had been wrongly decided. The Chief Justice said, at p. 180: "such things as revolutions do also happen but even when they are successful they do not acquire any authority to revoke or annul the previous "general norm" until they have themselves become a legal order by habitual obedience by the citizens of the country. It is not the success of the revolution, therefore, that gives it legal validity but the effectiveness it acquires by habitual submission to it from the citizens".

Bhutto v Chief of Staff PLD 1977 SC 670. General elections were held in Pakistan in March 1977 resulting in many claims that the elections were manipulated by the Government. Demonstrations and strikes developed and on 5 July 1977 the Chief of Army Staff removed the Prime Minister and took over control of the government of the country under martial law. The Court criticized Dasso's case, above, and endorsed its rejection in Jilani's case above, "because by making effectiveness of the political change the scale condition or criterion of its legality, it excludes from consideration sociological factors of morality and justice which contribute to the acceptance or effectiveness of the new legal order . . . The legal consequences of such change must therefore be determined by a consideration of the total milieu in which the change is brought about, including the motivation of those responsible for the change and the extent to which the old legal order is sought to be preserved or suppressed".

Controller of Taxes v Valabhaji, CA 11 of 1981, Court of Appeal, Seychelles unreported, 11 August 1981. On 13 June 1977 the President took over all the power of government of Seychelles, revoked the existing Constitution, and replaced it by another Constitution which was endorsed by elections. The Court of Appeal upheld the validity of the Constitution. Hogan P commented: "Control of nearly all thinking on this subject is the belief that sovereignty literally depends on consent or acceptance by the people, manifested by obedience to the principles of those claiming authority . . . Acceptance, consent or its equivalent, are a touchstone".

Mitchell v DPP [1986] LRC (Const.) 35 On 13 March 1979 the lawful government of Grenada was overthrown by a group calling itself the People's Revolutionary Government, which suspended the Constitution and assigned all executive and legislative powers. For the next 4 ½ years it held control of Grenada, but no elections were held. On 19 October 1983 there was an uprising, later supported by troops from other Caribbean states, and the Governor-General assigned full power of Government and later re-established the Constitution which has been suspended in 1979, and elections were held for a new Parliament. The majority of the Court of Appeal held that there was not sufficient evidence before it, to enable it to determine whether the People's Revolutionary Government had the support of the peoples and therefore that that Government could not be regarded as the lawful government: Hughes P. said, at pp. 72,74:

"The Court should not take an approach which might encourage power-seeking politicians or over-ambitious army officers to believe that, if by force of arms they can gain and retain governmental power for a few years, then government will become consequentially lawful and legitimate . . . .A revolutionary regime should not be accorded legitimacy by this court unless it is established that, on the whole, the regime had the people behind it and with it. Legality should be achieved only if and when the people accept and approve for in them lies political sovereignty and the Court so finds. This length of time might not be sufficient to infer it. It should give legitimacy to a successful and effective revolutionary regime. The support of a real majority is sufficient. This could be shown by its majority vote at a general election or a referendum or a majority percentage at polls. In Court it can be proved by an agreed statement of facts (as in Valabhaji) or by affidavits (as in Matovo). And these modes are not exhaustive . . . I would hold that what is needed there is proof of particular facts or circumstances from which the court itself can infer popular support . . . What I . . . found is a lack of sufficient proof of that popular acceptance and support which would have legitimated the regime".

Makatso v King MoshaeshaeII [1989] LRC (Const.) 24. In 1970 the Prime Minister of Lesotho, after his defeat in a general election, suspended the Constitution, and took over power of government. In 1986 the military forces staged a coup and a military council assumed legislative and executive powers. The High Court upheld the validity to the military government, and Cullinan CJ said, 132-3:

"If the people ultimately acquiesced, then the new regime is entitled to recognition by the courts . . . [a] court may hold a revolutionary government to be lawful, and its legislation to have been legitimated ab initio, where it is satisfied that (a) the government is firmly established, there being other government in opposition thereto; and (b) the government administration is effective, in that the majority of the people are achieving, by and large, in conformity therewith".

Ratnapala, p. 75 et seq

Legitimacy and revolution

In an ongoing legal order, a norm remains valid until it is terminated by its own terms or by a higher norm. Some laws contain 'sunset clauses' according to which they cease to operate after the expiration of a prescribed period. Generally, though, norms established by a law remain valid until repealed by another norm enacted by another valid law. In other words, a valid norm remains valid until it is terminated in the way prescribed by the legal order founded on the basic norm. Kelsen called this the principle of legitimacy (1967, 209). The basic norm itself may be transformed in the manner prescribed by the basic norm. In other words, the basic norm may be changed legitimately. Written constitutions usually contain special rules by which they may be changed. The Australian Constitution may be amended by a procedure that requires approval by a special majority at a national referendum (section 128).

However, it is possible that a constitution may prohibit certain kinds of constitutional amendment. Article 79(3) of the German Constitution states that 'Amendments to this Basic Law affecting the division of the Federation into Lander, their participation on principle in the legislative process, or the principles laid down in Articles 1 and 20 shall be inadmissible'. Articles 1 and 20 guarantee basic human rights and the democratic structure of the state. In short, the most fundamental values of the German Constitution are said to be unalterable. The Indian Supreme Court has taken the view that the basic features of the Indian Constitution cannot be altered by recourse to the amending procedure(Kesavanonda Bharathi Sripadagalvaru v The State of Kerala AIR 1973 SC 1461). It is generally regarded by constitutional scholars that the Act of Union 1707 cannot be repealed by the UK Parliament. This Act united the Parliaments of England and Scotland and hence is constitutive of the current sovereign Parliament of the United Kingdom (Smith &Brazier 1998, 77). Similarly, scholarly opinion takes the view that the UK Parliament cannot limit its own sovereign power (Smith &Brazier 1998, 78; Vauxhall Estates Ltd v Liverpool Corporation[1932]1 KB 733). Where a constitution or some aspect of it cannot be changed by a constitutional process, such change may nevertheless occur by way of a revolution.

Revolution

Sometimes the basic norm of the legal order changes by means not authorized by the basic norm. This can happen in a number of different ways – sometimes violently, sometimes by peaceful and consensual means. It happens when one state conquers another and imposes its own sovereign power over the conquered state. The establishment of Crown sovereignty over Britain's colonies subordinated local legal systems to the English law and constitution. It happens when a region of a country secedes from the whole and establishes its own legal order. Recent examples include the separation of: Bangladesh from Pakistan (1971);Eritrea from Ethiopia (1993); Slovenia (1991), Bosnia-Herzegovina (1991) and Croatia (1995) from Yugoslavia; East Timor from Indonesia (1999); and Kosovo from Serbia (2008). The basic norm also changes when an empire or federation breaks up into independent states. The basic norm may also be displaced by domestic events, as when the constitution is overthrown in a coup d'etat or by a popular uprising. The English Revolution of 1688, the American Revolution of 1776, the French Revolution of 1789 and the Russian Revolution of 1917 are monumental historical examples of such constitutional change.

Consensual revolution

The basic norm can be changed by peaceful and consensual means. Such change is revolutionary when the new basic norm does not derive its validity from the old basic norm. The constitutional evolution of the Australian Commonwealth provides a good illustration of revolution by consensus. The Australian Constitution is a part of an Act of the UK Parliament passed in 1900 - the Commonwealth of Australia Constitution Act 63 &64 Victoria (Chapter 12). The Constitution was alterable by the UK Parliament, as it was not bound by its own laws. In 1931, the UK Parliament enacted the Statute of Westminster, which declared that no Act of Parliament of the United Kingdom shall extend to a dominion unless that dominion requested it and consented to it (section 4). The Statute was adopted by Australia in 1942 and from that date the UK Parliament refrained from making law for Australia in the absence of a request. In theory, the UK Parliament could have repealed the Statute of Westminster. but any UK law made for the Commonwealth of Australia without a request would have been regarded as ineffectual by Australian courts. The ultimate source of legislative power for the Commonwealth of Australia became the Australian Constitution. The reason for this change was the political reality that Australia would no longer recognise UK law directed at the federation. The power to legislate on request remained until it was relinquished by the UK Parliament by the Australia Act 1986 (UK). This is the position even though, as a sovereign legislature, the UK Parliament is not bound by its own previous laws, and may repeal them or may legislate against them. The UK Parliament has lost competence in relation to Australia through a revolutionary process in which it was a willing participant.

A revolution may also occur peacefully, when an independent nation makes a collective decision to adopt a new constitution in a manner unauthorised by the existing constitution. Such constitutions are known as autochthonous constitutions. The current US, Indian and, Irish constitutions and the 1972 Sri Lankan Constitution were adopted by autochthonous processes. The US Constitution was adopted by the Constitutional Convention in Philadelphia in 1787 and ratified by conventions in the different states. The Indian Constitution in 1950 and the Sri Lankan Constitution in 1972 were adopted by specially created constituent assemblies. Ireland's 1937 Constitution, though enacted by the existing parliament(Dai! Eireann), was approved at a referendum as an autochthonous (independently established) constitution. In each case the new constitution marked a break with the past. Australia's Constitution is not an autochthonous constitution, although it was drafted by constitutional conventions and approved at referenda held in the several colonies. The draft so approved was enacted into law by the UK Parliament, ensuring legal continuity. The continuity was broken only by the political effects of the Statute of Westminster Adoption Act 1942 and the Australia Act 1986 (UK).

Revolution by force

The basic norm of a legal order may be displaced by force. The American, French and Russian revolutions are among the best known historical illustrations. In each case the existing basic norm was changed by violent struggle. In some cases the change is swift and decisive and in other cases the struggle for legal supremacy may stretch over many months or even many years, with the basic norm remaining in a stare of uncertainty.

The American Revolution and the establishment of the US Constitution are remarkably instructive of the fluctuations of the basic norm in revolutionary conditions. The 13 British colonies that became the United States of America were subject to British law. Hence, the legal order of each colony was founded on the basic norm of the British Constitution. Though the colonists were subject to the laws of the British Parliament they were not represented in it. In 1775, following accumulated grievances, the colonies established their own governments in defiance of the British Crown. The British government's efforts to maintain its sovereignty by military force led to the War of Independence (also known as the Revolutionary War), which lasted six years. Significant events concerning the legal order occurred during this period of conflict. The colonies formed the Second Continental Congress, which on 4 July 1776 adopted the famous American Declaration of Independence. The Congress then proceeded to draft Ankles of Confederation that were finally ratified by all states in 1781. The Articles established a confederation called the 'the United States of America'. However, under Article 2, the states retained their separate sovereignty. States adopted their own separate constitutions. There was no certainty during this time about the basic norm of each state, as the outcome of the Revolutionary War remained uncertain. Eventually. the British forces were defeated, with substantial help from France, and in the Treaty o/Paris 1783 Britain recognised the independence of the American states. A period followed in which each of the 13 states functioned as independent political entities loosely confederated with each other. Each state had its own legal order based on its distinct basic norm. In 1787, the Congress of the Confederation invited delegates from each state to a convention in Philadelphia for the purpose of discussing improvements to the Articles of Confederation. Delegates from all the states except Rhode Island attended. After deliberation, the delegates agreed to expand their mandate and proceeded to draft a new constitution for the United States of America. They agreed that the Constitution would be binding on the ratifying states if a minimum of nine states ratified it. On 21 June 1788, New Hampshire became the ninth state to ratify the Constitution. The Constitution commenced its operation on the swearing in of George Washington as the President on 30 April 1789.

The change in the basic norm by revolution usually means that the courts of the country recognise it. This may happen in one of two ways. The courts may accept the new reality and interpret the events as creating a new legal order founded on the new basic norm. In 1958, the President of Pakistan in a coup d'etat proclaimed the annulment of the country's constitution and assumed supreme power. There was no effective political resistance to this move. When the legality of the action was questioned, the Chief Justice of Pakistan, the Honourable Muhammed Munir, declared that the effect of the 1958 annulment of the Constitution by the President 'is not only the destruction of the existing Constitution but also the validity of the national legal order' (The State v Dosso [1958 J 2 PSCR 180, 184). In 1966 the Prime Minister of Uganda, in complete disregard of the 1962 Constitution, assumed all state powers and proclaimed a new constitution. There was no political opposition to this action. 'The Chief Justice of Uganda, Sir Udo Udoma, declared: '. .. our deliberate and considered view is that the 1966 Constitution is a legally valid constitution and the supreme law of Uganda; and that the 1962 Constitution having been abolished as a result of a victorious revolution in law does no longer exist nor does it now form part of the Laws of Uganda, it having been deprived of its de facto and de jure validity' (Uganda v Commissioner of Prisons; Ex parte Matovu
[1966 JEA 514).

In Kelsenian terms, the superior courts of Pakistan and Uganda regarded the revolutionary acts and the absence of resistance to them as reasons for recognising a new basic norm. From one point of view the courts were interpreting the nonnative significance of certain political realities. From another point of view, the judicial rulings were themselves revolutionary acts that contributed to the effectiveness of the new basic norm.

Effects of revolution on existing law

A revolution in the legal sense is about changing the basic norm of me legal order. Not all attempted revolutions succeed. Some have temporary success when their leaders gain and hold power for a period before the old order is restored. The short-lived Confederacy of the United States and the white minority regime of Southern Rhodesia offer historical examples. In 1861, 11 southern stares broke away from the American Union and established the Confederacy, which lasted until its defeat in the Civil War in 1865. In 1965 the white minority government of the British colony of Southern Rhodesia (now Zimbabwe) unilaterally declared its independence from the UK and ruled the country until 1979, when me nation returned to British sovereignty.

The legal situation must be considered in relation to the following scenarios:

The an attempted revolution has failed and the basic norm remains unchanged.
The revolution has succeeded, there is no opposition to the new regime and a new basic norm is established.
The revolution is in progress and the outcome is uncertain owing to resistance.
The old order is restored after the initial success of the revolution.

An attempted revolution fails and the existing basic norm is unchanged

A revolution in the legal sense is a direct and deliberate violation of the basic norm. Revolutionary activity almost certainly will violate many other criminal laws, such as those concerning treason and mutiny. If the attempted' revolution fails, the basic norm stands and so do all the norms that derive their validity from it. Hence, the commands and statutes of the revolutionaries have no legal effect. The fate of the revolutionaries will depend on how the authorities deal with them under existing norms. Often it is harshly.

The revolution succeeds and a new basic norm is established

A revolution changes the basic norm of the legal order, but it is unusual for the new rulers to make wholesale changes to the laws of the land. Many of the existing laws, particularly the private law, will remain unaffected. Thus, contracts of the past will continue to be enforced, property owners will retain title, torts will remain actionable and crimes will be punishable. The Bolshevik Revolution of October 1917 in Russia was an exceptional case. The revolutionary forces led by Vladimir Lenin aimed not only to take supreme power but also to radically change the laws of the land in order to socialise the means of production, exchange and distribution. They succeeded in establishing the first communist state. Similar revolutions followed in many countries where communist or workers' parties took power. In each case the laws were fundamentally altered. The Islamic Revolution in Iran in 1979 also brought about radical legal change. However, it is more often the case that the new regime leaves the bulk of the general laws untouched.

What is the source of the post-revolution validity of the old laws? The ousted basic norm no longer supports them. Kelsen's answer is simple. If the old laws are regarded as valid it is because the new constitution has validated them expressly or tacitly (Kelsen 1967, 209). The content of these norms remains unchanged but the reason for their validity changes as the old basic norm is displaced by the new.

The revolutionary struggle is in progress and there is uncertainty about

the basic norm

As noted previously. a revolutionary struggle may last many months or even years. The revolutionary group may even gain temporary control of the machinery of government. There will be uncertainty during such periods as to what the basic norm is, and hence uncertainty about the validity of specific laws. Courts that derive their authority from the old constitution may have to consider the validity of three types of laws or purported laws.

Existing non-political law

The first category comprises non-political laws that existed at the commencement of the revolution, which are validated by the basic norm that the revolution seeks to overthrow. In other words, these are the laws of the old regime. Of these existing laws, some are political and some non-political law. Non-political law here refers to private law governing matters such as contract, tons, property, marriage, succession, criminal law protecting person and property and the laws of evidence and procedure. Political law refers to the constitution and other laws that concern the powers of government and the political system. (The distinction between political and non-political law is one of convenience and is not always easy to draw, as shown by communist and Islamic revolutions.)

A rebel regime that is striving forcibly to change the political laws may not have an immediate interest in changing non-political laws. In such cases, as Kelsen suggested, the non-political laws may be deemed to be tacitly adopted by the rebel regime, and hence may be valid under both contending basic norms. A key reason for judicial willingness to recognise and enforce non-political law in these circumstances is the avoidance of hardship to innocent individuals.

Non-political law enacted by the rebel regime

The second category comprises laws of a non-political nature made by a rebel regime that is in temporary control. There are sound practical reasons for courts to apply the non-political laws of a rebel regime, chief among them being the avoidance of general lawlessness and hardship to individuals. Assume that the rebel regime makes a law [hat dispenses with the need for consideration in fanning an enforceable contract, and that many contracts are concluded by persons relying on this enactment. It will be manifestly unjust if these contracts are not enforced because they are invalid according to the old law. Again, if the criminal laws against theft, murder, assault and other injuries are not enforced because they have been modified by the rebel regime, the society will descend into chaos. This is, of course, a moral reason for enforcing the law. Is there a legal reason in the Kelsenian sense?

It is conceivable that the norm enacted by the rebel regime is validated by a norm of the legal order that the rebels are seeking to overthrow. This reasoning is known as the 'doctrine of necessity'. As the Privy Council stated, the doctrine holds: ' ... when a usurper is in control of a territory, loyal subjects of the lawful Sovereign who reside in that territory should recognise, obey and give effect to commands of the usurper in so far as that is necessary in order to preserve law and order and the fabric of civilised society (Madzimbamuto v Lardner-Burke [1969)1 AC 645, 726). The origin of the doctrine is found in Hugo Grotius' De Jure Belli ac Pacis:

Now while such a usurper is in possession, the acts of government may have a binding force, arising not from a right possessed by him, for no such right exists, but from the fact that the one {Q whom sovereignty actually belongs, whether people, or king, or senate, would prefer that measures promulgated by him should meanwhile have the force of law, in order to avoid the utter confusion which would result from the subversion of laws, and suppression of the courts. (1927 (1625), 159)

This rationale was adopted by the US Supreme Court in a number of cases considering the validity of laws enacted by the Confederate stares during the Civil War. In Texas v White, the Court stated:

It may be said, perhaps with sufficient accuracy, that acts necessary to peace and good order among citizens, such for example, as acts sanctioning and protecting marriage and the domestic relations, governing the course of descents, regulating the conveyance and transfer of property, real and personal, and providing remedies for injuries to person and estate, and other similar acts, which would be valid if emanating from a lawful government, must be regarded in general as valid when proceeding from an actual, though unlawful government; and that acts in furtherance or support of rebellion against the United States, or intended to defeat the just rights of citizens, and other acts of like nature, must, in general, be regarded as invalid and void. (74 US 700,733 (1868))

The doctrine of necessity (or implied mandate) allows the courts to justify the enforcement of rebel laws, on the authority of a norm of the old legal order to which the courts owe allegiance.

Political law enacted by the rebel regime

The most difficult problems for the courts arise in relation to political laws enacted by a rebel regime for the time being in control of the machinery of government. The usurper in this scenario is in temporary command but has not gained lasting control of the state. Judges derive their jurisdiction from the old constitution, to which they have pledged loyalty. The ultimate source of their authority is norm of the legal order challenged by the rebels. Consider a decree that abolishes the parliament and grants legislative power to the commander of the rebel forces. This decree directly violates the constitution. If the court gives effect to the decrees of the commander, it will in effect recognise a new basic norm and thereby advance the revolution. (This new basic norm would be something like: 'The commander's decrees ought to be obeyed'.) The alternatives are for the judges to refuse enforcement of the commander's decrees (and risk retribution)or to stand down as judges. If the court is not physically situated within the territory controlled by the rebel regime, the judges will he less intimidated, but their decisions may be ineffective so long as the rebel regime controls the organs of enforcement.

Madzimbamuto v Lardner-Burke vividly illustrates the legal issues. Southern Rhodesia Dater Zimbabwe) was a British colony administered under a constitution (Constitution 1961) that granted a high degree of autonomy to the local legislature and executive. The UK Parliament retained the power to legislate for the colony, including the power to amend the Constitution 1961 at will. The highest appellate court of the colony remained the Privy Council sitting in London. The majority of the people of the colony were black Africans, but the government was dominated by minority whites led by the Prime Minister. Ian Smith. Britain was planning to grant the colony independence under a constitution that would have led to black majority rule. On 6 November 1965, Madzimbamuto was detained lawfully under a detention order made under emergency regulations in keeping with the Constitution 1961. The regulations were effective for three months and could have been extended only with the approval of the Legislative Assembly (Constitution 1961, s 72). On 11 November 1965, Ian Smith and his Cabinet made a 'Declaration of Independence' that Southern Rhodesia was no longer a Crown colony but was an independent sovereign state. The Governor(Queen's representative in the colony) responded immediately with a public statement that the Declaration of Independence was unconstitutional. and on 16 November 1965 the UK Parliament passed the Southern Rhodesia Act 1965, which reaffirmed UK sovereignty over Southern Rhodesia) nullified the enactments of the Smith regime and suspended the power of the Legislative Assembly. The UK government, with the support of the international community, instigated a range of measures to reverse the revolution, including trade embargoes on the colony. The rebel regime disregarded the Southern Rhodesia Act and established itself as a de facto government. Although the state of emergency expired on 4 February 1966. Madzimbamuto continued to be held under new purported emergency regulations made by the rebel regime. When his detention was challenged, the High Court of Southern Rhodesia agreed that the Declaration of Independence was unlawful but that it was necessary for the court to give effect to the emergency regulations of the rebel regime because it was the only effective government in the colony. This argument was supposedly based on the doctrine of necessity.

The applicant appealed to the Privy Council. The majority of the Council (Lord Pearce dissenting) firmly rejected the High Court's reasoning and allowed the appeal. They held that the practical difficulties of ruling against the usurper did not absolve the court from upholding valid law. The doctrine of necessity was overridden by the express commands of the sovereign UK Parliament:

Her Majesty's judges have been put in an extremely difficult position. Bur the fact that the judges among o!:hers have been put in a very difficult position cannot justify disregard of legislation passed or authorised by the United Kingdom Parliament, by the introduction of a doctrine of necessity which in their Lordships' judgment cannot be reconciled with the [eons of the Order in Council. It is for Parliament and Parliament alone to determine whether the maintenance of law and order would justify giving effect to laws made by the usurping Government, to such extent as may be necessary for that purpose. ([1969 J 1 AC 645, 730--1)

Lord Pearce, in a dissenting opinion, spelled out the limits of the doctrine of necessity. The acts of the usurper may be recognised as valid so far as they:

are directed to and reasonably required for ordinary orderly running of the state
do not impair the rights of citizens under the lawful 1961 Constitution, and
are not intended to and do not in fact directly help the usurpation and do not run contrary to the policy of the lawful sovereign (at 732).

Contrary to the majority view, Lord Pearce concluded that the detention orders, though unlawful, should be recognised (hence validated) under the doctrine of necessity. A principal reason was that the continuation of the emergency rule was consistent with the UK government's policy of seeking the reversal of the revolution through non-disruptive means (at 741-2). Lord Pearce's disagreement with the majority was not about the rule but about its application to the facts. These opinions, when put into Kelsenian terms, hold that the doctrine of necessity refers to a norm derived from the constitution under which the courts were established. Its validity is traceable to the basic norm of the old constitution, not the usurper's constitution. It must therefore yield to the overriding acts validly made under the old constitution. In Madzimbamuto the Privy Council explained the content of this norm as it exists in the legal order of the UK and its colonies. In another legal order. there may not be a norm of necessity, or the norm may have a different content.

The old legal order is restored after the initial success of the revolution

A rebel regime may be successful over a period of rime but be eventually over thrown, with the result that the old regime is reinstated. In this scenario, the courts are no longer under the physical control of the usurper. In the previous scenario we considered the norm that would validate a usurper's enactment while the usurper was still in control. Here we consider the norm that would validate the usurper's enactment after the usurpation has ended. The first is a case of contemporaneous validation and the second a matter of retrospective validation. Why should the two cases be treated differently? Lord Pearce in Madzimbamuto offered the following explanation:

If acts are entitled to some retrospective validity, there seems no reason in principle why they should not be entitled to some contemporaneous validity. It is when one comes to assess the question of public policy that there is a wide difference between the retrospective and contemporaneous. For during a rebellion it may be harmful to grant any validity to an unlawful act, whereas, when the rebellion has failed, such recognition may be innocuous. (at 733)

Lord Pearce suggested that the courts are more likely to validate rebel aces if the rebellion is at an end. The statement is consistent with Kelsen's view that the question of validity of a usurper s enactment is determined by a norm of the prevalent legal order. The judges' decision to confer or refuse validity to a rebel enactment will be valid law if it is authorised by a valid' higher norm ultimately derived from the basic norm of the restored legal order.

Ratnapala, 89 et seq

An evaluation of the pure theory of law

Kelsen's pure theory of law enriched jurisprudence. Kelsen was the first legal positivist, long before Hart, to abandon the concept of law as sovereign command. Hart, in my view, did not sufficiently acknowledge his debt to Kelsen. Kelsen introduced a new dimension to legal theory by compelling us to think of the distinction, and also the relation, between fact and norm, between legislative act and its nonnative effect. Kelsen offered an internally consistent model of the legal system that in some respects reflects the intuitive thinking of lawyers and law makers. Tracing a law's validity back to the constitution is normal legal reasoning. So is the idea that valid laws form an internally consistent system of laws. Kelsen's theory, unlike his predecessors', recognised the laws of primitive societies and of the international community as law.

Criticisms of Kelsen are often directed at the concepts and the internal consistency of his theory. Critics may question the adequacy of his theory to explain legal systems as they actually exist. Kelsen's idea of law as a norm to which a sanction is attached does not easily· account for some kinds of laws. Procedural and evidentiary laws, laws creating organisations, laws conferring liberties and rights and laws repealing other laws fit uncomfortably within the pure theory. His arguments for the logical unity of the international and national legal orders are unconvincing at the present time in history.

Purity of Kelsen's theory

Kelsen claimed that his theory is pure on two counts. It distinguishes law from morals and law from fact. Did Kelsen succeed in separating law from morals? According to Kelsen's theory a legal norm exists because it is valid. It is valid because its making is authorised by another valid norm and so forth. Ultimately it is validated by the presupposed basic norm. A legal norm may (and often does)imitate a moral norm or draw its content from the content of a moral norm. This imitation does not convert the moral norm into a legal norm or the legal norm into a moral norm. What is the nature of the duty to obey each of these norms? Let us consider the norm 'Do not steal', which, as we know, is a moral norm as well as a legal norm in most countries. Let us call the moral norm Norm M and the legal norm Norm L.

There is a moral duty to obey Norm M because it is a moral norm. There is a legal duty CO obey Norm L because it is a legal norm validated in Kelsen's theory by the basic norm. However, two further questions may be asked to test Kelsen's claim that law is totally separate from morality.

Given that the content of Norm L is identical to the content of Norm M, is there a special moral duty to observe Norm L?

The answer to this question according to Keisen's theory is as follows. There is a legal duty under Norm L not to steal in addition to the moral duty under Norm M not to steal. A breach of Norm L attracts a sanction prescribed by law, such as imprisonment. This sanction may not be imposed if the thief is not caught or the prosecution fails to make the case. The thief who escapes the state sanction may still suffer some other kind of social or psychological sanction for his breach of the duty under Norm M. (An acquitted thief may be shunned by society and may suffer from feelings of guilt and pressures of conscience or faith.) The coincidence of the content of Norms L and M does not defeat Kelsen's separation thesis.

Is there a general moral duty to obey a valid legal norm?

A moral system may contain a general moral duty to obey valid legal norms. Kelsen does not deny that such a moral duty may exist. His position is that the moral duty should not be confused with the legal duty. The duty to obey a legal norm arises not from a moral norm but from a higher valid legal norm. Ultimately the legal duty to obey Norm L is imposed by the basic norm of the legal system.

Here is the ultimate problem for Kelsen's thesis concerning the separation of law and morals. The basic norm depends for its existence on efficacy. Efficacy of the basic norm depends on whether the particular legal norms derived from it are generally observed. Assume that the basic norm of a legal system is: 'Do as the Dictator commands'. If the Dictator's commands are ignored and the Dictator is powerless to enforce them, the basic norm of the dictatorship will cease. Is it possible to argue then that the existence of the basic norm depends on the moral attitudes of the people?

The moral attitudes of the people may be part of the state of affairs that makes the basic norm possible. This does not mean that the law is nor separate from morality in Kelsen's scheme. The basic norm is not derived from this factual situation but is a mental construction of this state of affairs. The legal duty to observe the basic norm arises from this construction. This duty exists apart from any moral duty that one may have to observe the basic norm.

Separation of law from fact

Kelsen, following Hume and Kant, holds that an 'ought' cannot be derived from an 'is'. This logical proposition has not been contradicted. The law when understood as an 'ought' statement is eternally distinct from fact. The 'ought', however, cannot exist unless there are facts. Consider the norm that a court ought to impose a fine on a motorist convicted of a traffic offence under the Traffic Act. This norm exists because the following conditions exist:

1. It is validated by a higher valid norm such as: 'Acts of Parliament ought to be observed'

2. Parliament has passed the Traffic Act.

The second condition is a fact. The norm is separate from this fact in the sense that it is a mental construction of what the fact means. Nevertheless the relation between fact and norm is patent.

The same reasoning applies to the basic norm. The basic norm is presupposed because there is no higher norm from which it is derived. Nevertheless a basic norm must be effective. The state of effectiveness is a state of fact. The basic norm is a construction of this state of fact. The relation between fact and norm is again clear.

Kelsen's view that law is separate from fact is correct in the sense that legal norms are not derived from fact but are interpretations of fact. However, from another viewpoint law has an indispensable relation to fact inasmuch as the content of a legal norm is always an interpretation of a fact.

Explanatory weakness of the pure theory

Perhaps the most serious criticism of Kelsen is that his theory gives an elegant but misleading account of the law because of the particular definition of law on which it is based. FA Hayek remarked that this definition 'is postulated as the only possible and significant definition, and by representing as "cognition" what are simply the consequences of the definition adopted, the "pure theory" claims to be entitled to deny (or represent as meaningless) statements in which the term "law" is used in a different and narrower sense' (1982, II, 49). A theory is as good as its explanatory value. The pure theory defines a norm to include not only rules capable of guiding future behaviour, but also every ad hoc command that a person in authority issues. A tyrant's order to the executioner to hang an innocent man is as much a norm as the rule that persons ought to observe their contracts. Lumping together rules, commands, decrees and judgments under the term 'legal norm' serves the purposes of Kelsen's chosen theory, but at the cost of obscuring some important features of law as a social phenomenon. The concept of the rule of law (Rechtscaat) loses meaning when the distinction between a rule of conduct and arbitrary command is obliterated. Kelsen was not a friend of dictatorship. He was in fact a fugitive from the Nazi regime. Yet, according to the pure theory, Germany was a law governed society under Hitler's Reich.

Kelsen equated the existence of a legal norm with validity, and defined validity as derivation from a basic norm. Many of the fundamental rules of social life (rules that made social life possible) existed before governments, parliaments and courts were established. The idea that these rules are valid today because they are derived from the basic norm of the current legal order is fictitious. The spontaneous emergence of new norms governing conduct that have no derivation from authority is an ongoing feature of social order. The rules of cyberspace and electronic transacting are but one illustration of this phenomenon.

Alternative concepts of legal systems

Hart provided an alternative view of a legal system. A legal system, according to Hart, arises when a society develops secondary legal rules. These rules establish ways to formally recognise primary legal rules, to make new legal rules (or modify existing ones) and to adjudicate disputes concerning their application. In practice, they establish legislatures and courts and determine their powers and procedures. The overriding rule among them is the rule of recognition. In Hart's system, legal rules - whether they are primary or secondary rules - exist because they are accepted by persons not simply through coercion but through a sense of obligation.

Legal positivist concepts of legal systems offered by Bentham, Austin, Kelsen, Hart and Raz have an important common element. It is that legal systems arise directly or indirectly out of the deliberate acts of human agents. There is an alternative conception of legal systems, which proposes that legal systems can and do arise spontaneously, as a result of human actions but not of deliberate human design. The roots of the spontaneous order tradition are commonly traced to the thinkers of the Scottish Enlightenment, principally Hume, Ferguson and Smith. Its later revival owes much to the work of the Austrian school in economics and modern institutional theory.

Evaluation of Legal Positivism

From the above discussion it should be clear that

legal positivism is neither a simple nor a single doctrine.
It has undergone numerous changes in the course of time and differences among its adherents are many and sharp.
What has remained constant is the insistence on a view of law as a product of human action.
Law cannot be romanticised as the result of a set of metaphysical laws 'out there', but must be understood as a cultural and contingent social fact. Therefore it is no longer possible to hide behind ideas of natural law as justification for sometimes unjust laws.
If law is a social fact, not a moral injunction, it can be criticised on the same basis as all other social facts.
It is in this sense that legal positivism has provided the impetus for a number of later schools of thought. For example, the sociological school used the social thesis as a starting point to study law as a social phenomenon,'" and the American Realists insisted on an empirical study of law as experience." Even the activities of the Critical Legal Studies movement would-be unthinkable without the anti-metaphysical thrust of the legal positivists. Feminists, too, owe a debt of gratitude to the legal positivists for the questioning of 'natural' categories of male and female roles.