Positivism and the Tradition of Austin - Essay Example

?Introduction HLA Hart upended the legal world with his treatise about the nature of law. In doing so, he critiqued the legal philosophies of Bentham and Austin, stating that they were naive, especially Austin, in stating that laws are based upon coercion and just the fact that these laws are in existence, without taking into account the standards by which these laws should be based. This paper will attempt to explain the philosophy of Hart, contrasted with the philosophies of Bentham and Austin, along with the critiques of Hart, then attempt to reach a conclusion as to whether Hart’s philosophy is as flawed as Bentham and Austin’s, or if Hart’s philosophy is grounded on a sounder basis than the philosophies of these two men. Positivism and the Tradition of Austin In H.L.A. Hart’s critique of the legal philosophies of Bentham and Austin, Hart explains that these two men saw that laws as they are should be distinguished from laws as they should be. In other words, there is a distinction between law and morality, and a separation between the two. That said, Hart declares that Austin and Bentham also engage in legal positivism, in that the law as it is (law), and law as it ought to be (Law), is separated.1 Austin sees that there are laws which are based upon morality, such as those based upon God’s laws, and then there are man-made laws, which might, or might not, be based upon morality. Man-made laws which are not based upon reality might be benign, such as a so-called “silly law” such as the law in California that women may not drive in a house coat (dumblaws.com). That is the kind of law which Bentham would obey, yet censure.2 In other words, the law is on the books, so the citizens must obey, yet the laws are silly, so it also the citizen’s duty to attempt to get the law changed by censure. Alternatively, according to Hart (1958), there might be laws with evil intent, such as those put forth by the Nazis. It was these kinds of laws, Hart (1958) states, that led to Bentham stating that there must be some kind of civil disobedience, in that resistance to these laws must be had, not only through censure but through not obeying these laws (Hart, 1958). Hart explains that Bentham states that there are extremists in positive law, on either side of the coin. There are those extremists who see laws with which they do not agree, and, because they have a personal disagreement with the law, they opt not to follow it. These individuals are anarchists, according to Hart (1958). On the other hand, there are those who see a law, and, no matter how dumb it is, or evil it is, state that the law is the law, therefore it must not only be obeyed, but must not be criticized. This would mean that criticisms of bad laws will be “stifled…at its birth.”3 That said, Hart says that there is often an intersection between law and morality, as each mirrors the other. Laws are often based upon morals, and morals are often a reflection of laws. However, one does not follow the other – just because something is immoral does not mean that there is a law against it, and just because there is a law against something does not mean that it is immoral.4 Bentham and Austin are correct, in that morality cannot be a basis for the law, simply because morality is, often, subjective. For instance, in the United States, in the case of Bowers v. Hardwick, 478 U.S. 186 (1986), the Supreme Court upheld a law against homosexual sodomy, partially on the basis of moral concerns, in that a large portion of society considered, and still considers, homosexuality to be immoral and a violation of God’s law. However, Lawrence v. Texas, 539 U.S. 558 (2003) overturned Bowers, stating that homosexual sodomy cannot be made illegal, individual beliefs about the morality of the act non-withstanding. Indeed, the United States Supreme Court has decided a number of cases in favor of the rights of the individual to engage in certain practices which are deemed immoral by wide swaths of the country – abortion (Roe v. Wade, 410 U.S. 113 (1973)), contraceptive use (Griswold v. Connecticut, 381 U.S. 479 (1965)), miscegenation (Loving v. Virginia, 388 U.S. 1 (1967)), and possession of pornography (Stanley v. Georgia, 394 U.S. 557 (1969)). These cases make up the pantheon of the so-called “privacy cases,” which means that morality cannot be the sole purpose for the law, and that individuals have a right to private perform acts which are deemed abhorrent to others. And this is how it should be, because “morality” often conflicts. For instance, take the case of contraceptives and abortion – one man would argue that it is immoral to bring unwanted children in the world, or to procreate so extensively that resources are depleted. Another man would state that his morality is that contraceptives and abortion are both sins. Whose morality controls? It is not up to the government to say, which is why morality cannot be a basis for laws. Hart’s Problems with Austin’s Theory Hart had criticisms with Austin’s theory, and one of these criticism was dubbed by Hart as the “problems of the penumbra.”5 This means that there is settled meaning on what a certain term means, and there are also other meanings which the term might, debatably, mean. For instance, using Hart’s example, the word “vehicle” has a certain meaning, which is common to most individuals – an automobile. This is the settled meaning of the word. The penumbra is that other items might also be considered a vehicle, in that they, like the automobile, can transport a person. Items such as a bicycle or roller-skates. This means that the law is inherently uncertain, so that logical deduction cannot be used to decide cases. Judges make decisions on these penumbral cases by examining how the law should be, and Bentham and Austin ignore the penumbral problems in their distinction between Law and law, as it were.6 Therefore, Hart makes the assertion that the law is inherently uncertain, which puts him squarely into the camp of advocates of critical legal studies camp.7 While Hart would argue that a word has several different meanings, therefore there cannot really be any formalism in the law, in that a judge will examine the law and not bring interpretation, just look at the words, a legal studies advocate would go one step further and state that words really don’t refer to anything that is real, but, rather, a “criteria of its own application.”8 Hart criticizes judges who are formalists, who use logic excessively, in that they make decisions which are blind to the fact that there are different interpretations of a word, and there are different, conflicting, social norms and mores which might be brought to bear on a word.9 Another problem with the Austin-Bentham view of the law, according to Hart (1958), is that there is sometimes so much evil behind laws, that the collapsing of the two spheres of law – as it is, and how it should be – is morally incumbent. There just should not be a law which is not tied to morality, argues these individuals, because, when law is unmoored by reality, Nazism is the result, or some other kind of evil which might be perpetrated by men who are hiding behind an evil law. Hart uses the example of a woman in 1944 who denounced her husband to the Nazis, after which he was sentenced to death. He did not die, and, after the war, the woman was prosecuted for a war crime – depriving her husband of his freedom. She stated that she did nothing illegal, which was true. The West German prosecutors told her that she still deprived her husband of his liberty, and found her guilty.10 In other words, she violated a Law, even though she was following the law. Slattery (1998) states that Hart’s view of the law is that laws are based upon the “critical reflective attitude of certain standards of behavior as a common standard.”11 In other words, communities adopt certain standards, which are based upon what ought to be done, and this reflects the internal viewpoint of the community members. This “internal viewpoint” is what gives the law its force. Kalmanovitz (2005) concurs in this analysis, stating that, according to Hart, “we can talk of rules as having an internal aspect when rule-followers take a particular intentional attitude towards them.”12 Kronman (1975) states that these laws come from “natural law,” which means are laws which are based on the theory that “there are certain rules of conduct which any social organization must contain if it is to be viable.”13 Primary Rules and Why They Need Secondary Rules The positivist view of the law consists of primary, secondary and a rule of recognition.14 Primary rules direct individual conduct. Positive laws, such as those against stealing, are an example of primary rules. Secondary rules are more akin to rules of procedure. They tell us how to resolve disputes about rules, as well as inform us how to create, change or identify them. Law-making bodies and judiciaries are bound by the secondary rules. The positivist view also encompasses the rule of recognition, which is similar to natural law, which is explained below. The rule of recognition is a social rule, and the term “rule of recognition” presumably means that these rules are those that anybody can recognize, because they are, in essence, common sense. They are based upon social norms and convergent behaviors. Society imposes an obligation to behave in a certain way, and this is what the rule of recognition encompasses.15 The rule of recognition is at the foundation of primary rules, because primary rules are formed to bring order to society, by forcing norms upon the people in society, and providing punishment for those who violate these societal norms.16 Hart would argue that secondary rules are necessary for the implementation of primary rules, because, among other reasons, there must be a body which can decide between conflicting norms and which of these norms should prevail in the law. Certain norms are going to prevail over other norms. For example, the right to privacy will prevail over the religious objections of those who are fundamentally opposed to contraception. It is up to those who create secondary laws to decide which norms should prevail in the law, and which norms should be extinguished in the law.17 According to Kronman (1975), the norms which are selected should be those which the community has designated as a norm. 18 According to Groudine (1980), the people who create the primary laws have the weight of authority, therefore they are not coercive.19 The primary rules are dependent upon the decisions of the lawmakers as to which norms will be given voice in the law. The arbiter might be a court, as in the privacy cases in the United States, or it might be a legislature, but, no matter which body is making the law, their decisions give force to the primary laws. Critique of Hart One critique of Hart comes from Schauer (2009).20 Schauer (2009) states that Hart reduced Austin’s legal theory to obligation by the factual existence of sanctions (or coercion), and that Hart stated that Austin failed to recognize the internal point of view of legal officials, while also failing to explain the “normativity of the law.”21 In other words, Schauer’s interpretation of Hart’s critique of Austin is that Austin stated that the fact that a law exists is enough to induce the obligation to obey the law, without taking into account that a law should have a basis in norms, and should be based upon sound secondary legal principles. Schauer states that this is the basis of Hart’s critique, while also stating that Hart treats sanctions as irrelevant and peripheral to law. In other words, Schauer states that Austin relies only on sanctions to give force to law, and Hart relies only upon intrinsic motivations for obeying the laws.22 Schauer (2009) seems to misstate Hart’s viewpoint, stating that Hart ignores the coercive aspects of law. Payandeh (2011) states that this is not necessarily true, as Hart only states that “not all legal rules can be understood as coercive orders.”23 Nevertheless, Schauer (2009) did critique Hart, stating that Hart was as naive as Austin. Schauer (2009) states that Hart’s theory ignores the fact that law is coercive, stating that behavior is often shaped by the threat of punishment.24 Fuller (1958) also critiques Hart, stating that Hart never definitively stated from where the “fundamental rules” which ground laws come. Fuller (1958) states that this authority comes from a number of different sources, from general acceptance, to the perception that the laws are “right and necessary.”25 Conclusion There are two distinct views of the law which are embodied by Hart and by Austin. Austin believes that coercion is a sound basis for the law, and that the very existence of the law is enough to provoke obedience. Hart believes that the law must be based upon something else, something which underpins the law. This “something else” is that the laws should reflect community norms, therefore there is an internal reason for the laws. The critique of Hart is that his theory does not adequately explain the proper basis for the laws. There also seems to be some indication that Hart discounts the coercive nature of the laws, stating that laws are in place because, essentially, the community wants them in place, because they reflect the community norms and values. Nevertheless, if the critique that Hart ignores coercion is correct, then this is naive, just as naive as Austin, who believes that, according to the critique of his work, coercion is enough for disobedience. The fact that a law exists is enough reason to obey the law. By this logic, there would be no reason to disobey Nazi laws. By Hart’s logic, people do not have consequences for disobeying laws, because coercion does not come into play. People obey laws, by Hart’s logic, because it is the right thing to do. Of course laws are coercive – if a community would simply obey the standards and norms without laws in place, there would be no need for laws. The community would just obey their internal standards, and it would be Utopia. Because of this naivete, I believe that Hart’s philosophy is as flawed as Austin’s. Bibliography Kronman, A “Hart, Austin and the Concept of Legal Sanctions,” Yale Law Review, vol. 84, (2010), pp. 584-607. Himma, Kenneth E. “The Conventionality Thesis, the U.S. Constitution, and Dworkin’s Semantic Sting Argument.” Journal of Law in Society. Kutz, Christopher L. “Just Disagreement: Indeterminacy and Rationality in the Rule of Law.” Yale Law Journal 103 (1994): 997-1030. Leiter, Brian. “Explaining Theoretical Disagreement.” The University of Texas School of Law, Public Law and Legal Theory Research Paper No. 124 (August 2007): 1-43. Protevi, Scott. A Dictionary of Continental Philosophy. New Haven: Yale University Press, 2006. Shapiro, Scott J. “The ‘Hart-Dworkin’ Debate: A Short Guide for the Perplexed.” Michigan Law, Public Law and Legal Theory Working Paper Series No. 77 (March 2007): 1-54 Bentham, J. A Fragment on Government. Oxford: The Clarendon Press, 1859. Hart, H. “Positivism an the Separation of Law and Morals.” Harvard Law Review, vol. 71, 1958, pp. 593-629. Carlson, D. “Dworkin in the Desert of the Real,” viewed on April 29, 2012, Slattery, B. “Three Concepts of Law: The Ambiguous Legacy of HLA Hart,” Saskatchewan Law Review, vol. 61, pp. 323-335. Kalmanovitz, P. “HLA Hart, Internal Points of View and Legal Systems,” viewed on 29 April 2012 Kronman, A. “Hart, Austin and the Concept of Legal Sanctions,” Faculty Scholarship Series, Paper 1077, viewed on 29 April 2012 Hart, HLA. The Concept of Law. Clarendon Press, Oxford, 1961. Groudine, C. “Authority: HLA Hart and the Problem with Legal Positivism,” The Journal of Libertarian Studies, vol. IV, no. 3, Summer 1980, pp. 273-295. Schauer, F. “Was Austin Right After All?” viewed on 29 April 2012 Payandeh, M. “The Concept of International Law in the Jurisprudence of HLA Hart,” The European Journal of International Law, vol. 21, no. 4, 2010, pp. 967-993. Fuller, L. “Positivism and Fidelity to Law: A Reply to Professor Hart,” Harvard Law Review, vol. 71, no. 4, February 1958, pp. 630-672. Bowers v. Hardwick, 478 U.S. 186 (1986 Lawrence v. Texas, 539 U.S. 558 (2003) Roe v. Wade, 410 U.S. 113 (1973) Griswold v. Connecticut, 381 U.S. 479 (1965) Loving v. Virginia, 388 U.S. 1 (1967) Stanley v. Georgia, 394 U.S. 557 (1969) . Read More