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0 Bonaventure , 14 Bondevik , 2 Boni, T. , 22 Borry, P. , 199, 202 Buchanan, J.M. , 135 Buddhism , 5, 6, 47–56, 61 C Camus, A. , 9, 104 Care , 29–30, 211–214 ethics , 209 Carse, A.L. , 210 Chakraborty , 6 Chandel, B. , 4, 6 Chaplin, C. , 160 Chattopadhyaya, D.P. , 5, 38, 50, 70 Chernyshevsky, N.G. , 81 Childress, J.F. , 196 Christianity , 63 Clover, J. , 121 Coker, C. , 187 Confucius , 5, 96 Conservatism , 62, 64 Cribb, A. , 199, 208 Index 218 D Dahl, T. , 12 Dasein , 148 Dasgupta, S. , 6 da Vinci, L. , 174 Dean, A. , 187, 189, 192 den Hartogh, G.A. , 197 Descartes, R. , 183 de Vries, R. , 201, 202, 208 Dharma , 4, 5, 35–45, 47, 51, 54, 55, 63, 65–67 Diericks, K. , 201 Dilthey, W. , 11, 131, 132 Dion-Labrie, M. , 199 Dissociété , 20, 21 Draper, H. , 202, 203 Drucker, P. , 168 E Eichmann, O.A. , 20 Eisenman, P. , 178 Empiricism , 53, 102, 103 Engelhardt, H.T. Jr. , 196 Engels, F. , 136 Ethics architectural ethics , 177, 179 Aristotelian ethics , 133, 136, 138, 184 deontological ethics , 1, 100, 102, 134 Eco-ethica , 12, 145, 146, 148, 149, 152, 153 Indian ethics , 5, 35, 37, 43, 45–47 Jaina ethics , 51, 52 kantian ethics , 78, 88, 133 meta-ethics , 1, 2, 9, 100, 102–104 teleological ethics , 1 universal ethics , 10, 99, 100, 107 value-ethics , 102 Vedic ethics , 35–37 Éthique éthique médicale , 195, 196, 200 éthique narrative , 206, 207 éthiques du soin , 209–211 Ethos , 6, 134, 179, 183 Eudaimonia , 1, 7, 9, 12, 137, 154 Evers, K. , 206 Eyde, S. , 2 F Fagot-Largeault, A. , 14, 196 Falkner, W.C. , 187 Fischer, B. , 3, 29 Flahault, F. , 19, 22 Forrest , 187 Fox, R. , 200 Franklin, B. , 162 Freear, A. , 189, 190 Freedom , 5, 10, 36, 42, 43, 46, 48, 50, 56, 68–70, 77, 78, 102, 105, 106, 115, 116, 118, 124, 133, 135, 155, 156, 161, 162, 169, 180, 183, 184 Freyburger, G. , 31 Friedman, M. , 161, 213 Fromstein, M. , 166 G Gadamer, H.-G. , 11, 13, 131–134, 136, 138–141, 179, 180, 182–186, 191, 192 Gagarin, M. , 93 Galen , 14 Galileo , 179, 183 Gandhi, M. , 4, 67–70 Garfi eld, C. , 13, 157 Garfi eld, J.L. , 68 Garrard, E. , 204, 208 Garrau, M. , 209, 212 Gastmans, C. , 201 Gateau, V. , 14 Gehry, F. , 188 Gender , 17, 112, 116 Généreux, J. , 21 Ghosh, A. , 70 Giedion, S. , 182 Gilligan, C. , 29, 209 Gillon, R. , 214 Globalization , 4, 32, 59–70, 120–126, 131 Golden rule , 3, 4, 7–11, 94–96, 112 Goodman, T. , 14, 187 Gordijn, B. , 201, 208 Gore, B. , 163–164 Bill , 163–164 Gouvernance , 24–26, 210 Governance , 25, 26, 40, 61, 155, 156, 210 Greisch, J. , 210 Guba, E. , 179, 182 Guérin, S. , 212 Guseynov, A.A. , 8 Guyer, P. , 118 H Habermas, J. , 100, 115, 119, 120 Haimes, E. , 200 Hare , 1, 104 Harries, K. , 178, 192 Harrison, L.E. , 62 Harrison, S. , 207 Hartmann, N. , 9, 102, 103, 105, 106, 134 Index 219 Hashimoto, N. , 12 Hayek, V.F.A. , 135 Häyry, M. , 197 Heathcott, J. , 190 Hedgecoe, A.M. , 200 Hegel, G.W.F. , 11, 132, 136 Heidegger, M. , 11, 13, 14, 74, 132, 138, 139, 145, 179–181, 192 Held, D. , 125 Held, V. , 209 Hellsten Sirkku, K. , 201, 214 Herr, D. , 210 Hinduism , 6, 61, 64, 66 Hippocrates , 14 Hoersts, N. , 102 Höffe, O. , 126 Holm, S. , 201 Homer , 8, 76, 93, 95 Honneth, A. , 20 Hottois, G. , 196, 214 Howard-Jones, N. , 196 Hudgens, D. , 189 Hume, D. , 210 Huntington, S.P. , 62 Husserl, E. , 13, 179, 180 I Ihde, D. , 181 Imamichi, T. , 12, 145–149 Islam , 3, 61, 63 Ives, J. , 202, 203 Ivy, R. , 188 J Jacobs, J. , 177 Jacques, M. , 9 Jaggar, A.M. | Contemporary |
, 124 Jaimini , 38, 39 Jainism , 48, 50–52 Jonas, H. , 9, 104, 210 Jonsen, A.R. , 206 K Kampchen, M. , 69 Kant, I. , 8–10, 15, 73, 78, 81, 88, 90, 92, 96, 102, 103, 105, 109–120, 122–125, 127, 128, 131, 134, 135, 142, 206, 210 Karma , 35, 42–44, 50, 52, 66, 67 Kautilya , 35, 40–42 Kelly, T. , 163 Kemp, P. , 149, 197 King, G.B. , 96 Kittay, E. , 212 Kleingeld, P. , 125 Klibansky, R. , 100 Koenig, B.A. , 201 Kohlberg, L. , 209 Koolhaas, R. , 178 Kotler, P. , 168 Kuçuradi, I. , 7, 9, 10 Kuhse, H. , 214 Küng, H. , 10, 107 L Lal, D. , 65, 67 Langthaler, R. , 117 Laugier, S. , 209 Lebensanschauung , 103 Legendre, P. , 32 Leget, C. , 201, 202 Levinas, E. , 9, 11, 104 Levitt, M. , 200, 202, 208 Libertarianism , 135 Liberty , 42, 88, 115, 135, 141 Lincoln, Y. , 179, 182 Lindenberger, J.M. , 95 Lindsey, B. , 190 Locke, J. , 8, 87–91, 93 Lübbe , 107 Luhmann, N. , 31 Lyotard, J.-F. , 181 M Madison, G.B. , 184 Maghatithi , 38 Manu , 36, 38, 40–44, 66 Marcuse, H. , 27 Marquard , 107 Marshall, D.G. , 131 Marshall, P.A. , 201 Marx, K. , 10, 136 Maslow, A. , 160 Maury, H. , 65, 212, 213 McDowell, J. , 133, 134 McGregor, D. , 159, 164, 172 Medhatithi , 66 Merleau-Ponty, M. , 180 Mill, J.S. , 88, 209 Minsky , 147 Misch, G. , 132 Mishler, W. , 62 Misra, P. , 38 Missa, J.-N. , 214 Index 220 Mockbee, S. , 13, 14, 187–192 Mokœa , 35, 47 Moksa , 37, 38, 42–45 Moksha , 66, 67 Molinier, P. , 209 Moore, G. , 83 Morality , 5, 8, 38, 42, 47, 48, 63, 73–76, 78, 80–85, 87, 88, 90–94, 97, 103, 108, 109, 112, 113, 116, 117, 120–127, 140, 141 Moreno, J.D. , 214 Murty, T.R.V. , 45, 56 N Nagl-Docekal, H. , 10, 109, 110, 113, 117, 118 Nakamura, H. , 55 Naturalism , 47–56 Nehru, J. , 64 Nida-Rümelin, J. , 137, 141 Nietzsche, F. , 91 Nirvana , 5, 6, 35, 66 Noddings, N. , 209 Noopolitique , 21 Nosism , 146 Nozick, R. , 135 Nussbaum, M. , 14, 121, 213–216 Nys, H. , 201 O Oakeshott, M. , 8, 90–94 Ogien, R. , 211 Olivetti, M.M. , 148, 149 O’Neill, O. , 112 Oshima, K. , 147 Oughtness , 74, 75 P Pandurangi, K.T. , 40 Paperman, P. , 209 Parizeau, M.-H. , 196 Passmore, J.A. , 1, 2 Patañjali , 36 Patzig, G. , 137, 141 Pears, D. , 100 Pérez-Gómez, A. , 182, 183 Pericles , 185 Peters, T. , 168 Phronesis , 13, 137–139, 184–186, 189, 192 Pico della Mirandola , 10, 13 Plato , 14, 131, 135, 137, 140 Platonism , 6 Pleonexia , 135 Pogge, T. , 116, 121, 122, 124, 126 Pollack, D. , 62 Porsenna , 31 Postmodernism , 107 Post, S.G. , 214 Prahlada Char, D. , 40 Prasad, R. , 42 Praxis , 7, 11, 13, 133–137, 139–142 Protestantism , 6, 61 Putnam, H. , 1 Q Quintilian , 11 R Rademacher, T. , 123 Radhakrishnan, S. , 45, 60, 64, 70 Rand, A. , 3 Rawls, J. , 9, 104, 115, 206, 210, 212, 213 Rembert, R.B. , 96 Responsabilité , 18, 20, 21, 202, 203, 209, 210 Revivalism , 60, 69 Rich, A. , 10, 13 Ricœur, P. , 18, 180, 207 Riedel, M. , 104 Robert-Dufour, D. , 25, 27 Rorty, R. , 107 Rousseau, J.-J. , 91, 93, 210 Russell, B. , 1 Ruth, D.K. , 188 Ryker, L. , 187, 191 S Sabara , 38 Scheler, M. , 102, 134 Schlothfeldt, S. , 112 Schopenhauer, A. , 5, 210 Schotsmans, P. , 201 Schott, R.M. , 113 Schuler, M. , 9 Schwartz, S. , 62 Schweitzer, A. , 169 Seaford, R. , 90 Seamon, D. , 192 Sen, A. , 213 Sénèque , 28 Shaw, G.B. , 160 Simmel, G. , 30 Singer, P. , 121, 214 Index 221 Sirowy, B. , 13, 14 Sloterdijk, P. , 28 Smith, A. , 10, 210 Socrates , 77 Sokal, A. , 133 Solidarité , 22 Solomon, M. , 1 | Contemporary |
Contemporary Philosophy: A New Survey
Guttorm Fløistad
Editor
Ethics or Moral
Philosophy
98 Somol, R. , 178 Souriau, É. , 149 Spector, T. , 13, 177, 178 Spinoza, B. , 12, 14 Spiritualism , 50 Stiegler, B. , 21 Sugarman, J. , 197 T Tagore, R. , 4, 68–70 Takala, T. , 201, 214 Tange, K. , 147 Taylor, F.W. , 160 Thales , 185 Tharoor, S. , 61, 64 Tiedemann, P. , 110 Tippett, K. , 189, 190 Tite-Live , 31 Tolstoy, L. , 76 Toulmin, S. , 206 Tronto, J. , 29, 212, 213 Truth , 4, 36, 37, 54, 131, 132 Tschumi, B. , 178 Tugendhat, E. , 136 Tullberg, J. , 90 Turner, L. , 208 U Utilitarianism , 9, 104, 135, 136 V Veatch, R.M. , 196, 209, 211 Venturi, R. , 177 Vernant, J.-P. , 27 Vesely, D. , 182 Vial, M. , 211 Vincent-Buffault, A. , 18, 21 Vitruvius , 13, 182 Vivekananda, S. , 5 W Wang, H. , 1 Wasserman, B. , 178 Wayne, J. , 172 Weber, M. , 6, 8, 61, 63, 119 Weil, S. , 30 Weinsheimer, J. , 131 Weischedel, W. , 111 Weltanschauung , 103, 136 Whiting, S. , 178 Wieland, W. , 141, 142 Wilkie, T. , 199 Wilkinson, S. , 204, 208 Wilson, B. , 67 Windelband, W. , 132 Wingert, L. , 119 Wisdom , 2, 4, 8, 36, 41, 44, 64, 77, 95, 158, 163, 184–186 Indian wisdom , 4, 5, 35 Wittgenstein, L. , 18, 134 Worms, F. , 209 Z Zelizer, V.A. , 212 Zovko, J. , 11, 13 Zussman, R. , 200 Index | Contemporary |
THE CONCEPT
OF LAW
SECOND EDITION
BY
H.L.A.HART
With a Postscript edited by
Penelope A. Bulloch and Joseph Raz
CLARENDON PRESS · OXFORD
Oxford University Press, Walton Street, Oxford ox2 6oP
Oxford New York
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and associated companies in
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Oxford is a trade mark of Oxford University Press
Published in the United States
by Oxford University Press Inc., New York
© Oxford University Press 1961
First edition published 1961
Second edition published 1994
(with a new Postscript)
All rights reserved. No part of this publication may be reproduced,
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PREFACE
MY aim in this book has been to further the understanding
of law, coercion, and morality as different but related social
phenomena. Though it is primarily designed for the student
of jurisprudence, I hope it may also be of use to those whose
chief interests are in moral or political philosophy, or in so
ciology, rather than in law. The lawyer will regard the book
as an essay in analytical jurisprudence, for it is concerned
with the clarification of the general framework oflegal thought,
rather than with the criticism of law or legal policy. More
over, at many points, I have raised questions which may well
be said to be about the meanings of words. Thus I have
considered: how 'being obliged' differs from 'having an obli
gation'; how the statement that a rule is a valid rule of law
differs from a prediction of the behaviour of officials; what is
meant by the assertion that a social group observes a rule
and how this differs from and resembles the assertion that its
members habitually do certain things. Indeed, one of the
central themes of the book is that neither law nor any other
form of social structure can be understood without an appre
ciation of certain crucial distinctions between two different
kinds of statement, which I have called 'internal' and 'exter
nal' and which can both be made whenever social rules are
observed.
Notwithstanding its concern with analysis the book may
also be regarded as an essay in descriptive sociology; for the
suggestion that inquiries into the meanings of words merely
throw light on words is false. Many important distinctions, | Clarendon |
which are not immediately obvious, between types of social
situation or relationships may best be brought to light by an
examination of the standard uses of the relevant expressions
and of the way in which these depend on a social context,
itself often left unstated. In this field of study it is particularly
true that we may use, as Professor J. L. Austin said, 'a sharp
ened awareness of words to sharpen our perception of the
phenomena'.
vi
PREFACE
I am heavily and obviously indebted to other writers;
indeed much of the book is concerned with the deficiencies of
a simple model of a legal system, constructed along the lines
of Austin's imperative theory. But in the text the reader will
find very few references to other writers and very few foot
notes. Instead, he will find at the end of the book extensive
notes designed to be read after each chapter; here the views
expressed in the text are related to those of my predecessors
and contemporaries, and suggestions are made as to the way
in which the argument may be further pursued in their writ
ings. I have taken this course, partly because the argument of
the book is a continuous one; which comparison with other
theories would interrupt. But I have also had a pedagogic
aim: I hope that this arrangement may discourage the belief
that a book on legal theory is primarily a book from which
one learns what other books contain. So long as this belief is
held by those who write, little progress will be made in the
subject; and so long as it is held by those who read, the
educational value of the subject must remain very small.
I have been indebted for too long to too many friends to
be capable now of identifying all my obligations. But I have
a special debt to acknowledge to Mr A. M. Honore whose
detailed criticisms exposed many confusions of thought and
infelicities of style. These I have tried to eliminate, but I fear
that much is left of which he would disapprove. I owe to
conversations with Mr G. A. Paul anything of value in the
political philosophy of this book and in its reinterpretation of
natural law, and I have to thank him for reading the proofs.
I am also most grateful to Dr Rupert Cross and Mr P. F.
Strawson, who read the text, for their beneficial advice and
criticism.
H. L.A. HART
EDITORS' NOTE
WITHIN a few years of its publication The Concept Of Law
transformed the way jurisprudence was understood and stud
ied in the English-speaking world and beyond. Its enormous
impact led to a multitude of publications discussing the book
and its doctrines, and not only in the context of legal theory,
but in political and moral philosophy too.
For many years Hart had it in mind to add a chapter to
Tlze Concept if Law. He did not wish to tinker with the text
whose influence has been so great, and in accordance with his
wishes it is here published unchanged, except for minor cor
rections. But he wanted to respond to the many discussions
of the book, defending his position against those who miscon
strued it, refuting unfounded criticism, and-of equal im
portance in his eyes-conceding the force of justified criticism
and suggesting ways of adjusting the book's doctrines to meet
those points. That the new chapter, first thought of as a
preface, but finally as a postscript, was unfinished at the time
of his death was due only in part to his meticulous perfec
tionism. It was also due to persisting doubts about the wis
dom of the project, and a nagging uncertainty whether he
could do justice to the vigour and insight of the theses of
the book as originally conceived. Nevertheless, and with many
interruptions, he persisted with work on the postscript and at | Clarendon |
the time of his death the first of the two intended sections was
nearly complete.
When J enifer Hart asked us to look at the drafts and
decide whether there was anything publishable there our
foremost thought was not to let anything be published that
Hart would not have been happy with. We were, therefore,
delighted to discover that for the most part the first section of
the postscript was in such a finished state. We found only
hand-written notes intended for the second section, and they
were too fragmentary and inchoate to be publishable. In con
trast the first section existed in several versions, having been
typed, revised, retyped, and rerevised. Even the most recent
version was obviously not thought by him to be in a final
Vlll
EDITORS' NOTE
state. There are numerous alterations in pencil and Biro.
Moreover, Hart did not discard earlier versions, but seems to
have continued to work on whichever version was to hand.
While this made the editorial task more difficult, the changes
introduced over the last two years were mostly changes of
stylistic nuance, which itself indicated that he was essentially
satisfied with the text as it was.
Our task was to compare the alternative versions, and where
they did not match establish whether segments of text which
appeared in only one of them were missing from the others
because he discarded them, or because he never had one
version incorporating all the emendations. The published text
includes all the emendations which were not discarded by
Hart, and which appear in versions of the text that he con
tinued to revise. At times the text itself was incoherent. Often
this must have been the result of a misreading of a manu
script by the typist, whose mistakes Hart did not always notice.
At other times it was no doubt due to the natural way in
which sentences get mangled in the course of composition, to
be sorted out at the final drafting, which he did not live to do.
In these cases we tried to restore the original text, or to re
capture, with minimum intervention, Hart's thought. One
special problem was presented by Section 6 (on discretion).
We found two versions of its opening paragraph, one in a
copy which ended at that point, and another in a copy con
taining the rest of the section. As the truncated version was
in a copy incorporating many of his most recent revisions,
and was never discarded by him, and as it is consonant with
his general discussion in the postscript, we decided to allow
both versions to be published, the one which was not contin
ued appearing in an endnote.
Hart never had the notes, mostly references, typed. He had
a hand-written version of the notes, the cues for which were
most easily traced in the earliest typed copy of the main text.
Later he occasionally added references in marginal comments,
but for the most part these were incomplete, sometimes indi
cating no more than the need to trace the reference. Timothy
Endicott has checked all the references, traced all that were
incomplete, and added references where Hart quoted Dworkin
or closely paraphrased him without indicating a source.
EDITORS' NOTE
lX
Endicott also corrected the text where the quotations were
inaccurate. In the course of this work, which involved exten
sive research and resourcefulness, he has also suggested several
corrections to the main text, in line with the editorial guide
lines set out above, which we gratefully incorporated.
There is no doubt in our mind that given the opportunity
Hart would have further polished and improved the text before
publishing it. But we believe that the published postscript con
tains his considered response to many of Dworkin's arguments.
P.A.B.
J.R.
| Clarendon |
CONTENTS
I. PERSISTENT QUESTIONS
I. Perplexities of Legal Theory
2. Three Recurrent Issues
3· Definition
II. LAWS, COMMANDS, AND ORDERS
I. Varieties of Imperatives
2. Law as Coercive Orders
III. THE VARIETY OF LAWS
I. The Content of Laws
2. The Range of Application
3· Modes of Origin
IV. SOVEREIGN AND SUBJECT
I. The Habit of Obedience and the
Continuity of Law
2. The Persistence of Law
3· Legal Limitations on Legislative Power
4· The Sovereign behind the Legislature
V. LAW AS THE UNION OF PRIMARY AND
SECONDARY RULES
I. A Fresh Start
2. The Idea of Obligation
3· The Elements of Law
VI. THE FOUNDATIONS OF A LEGAL
SYSTEM
I. Rule of Recognition and Legal Validity
2. New Questions
3· The Pathology of a Legal System
VII. FORMALISM AND RULE-SCEPTICISM
I. The Open Texture of Law
2. Varieties of Rule-Scepticism
6
I 3
I8
I 8
20
26
27
42
44
so
5 I
6I
66
7 I
79
79
82
9I
IOO
IOO
I IO
I I 7
I24
I 24
I 36
XII
CONTENTS
3· Finality and Infallibility in Judicial
Decision
4· Uncertainty in the Rule of Recognition
VIII. JUSTICE AND MORALITY
I. Principles of Justice
2. Moral and Legal Obligation
3· Moral Ideals and Social Criticism
IX. LAWS AND MORALS
1. Natural Law and Legal Positivism
2. The Minimum Content of Natural Law
3· Legal Validity and Moral Value
X. INTERNATIONAL LAW
1. Sources of Doubt
2. Obligations and Sanctions
3· Obligation and the Sovereignty of States
4· International Law and Morality
S· Analogies of Form and Content
Postscript
Introductory
1. The Nature of Legal Theory
2. The Nature of Legal Positivism
(i) Positivism as a Semantic Theory
(ii) Positivism as an Interpretive Theory
(iii) Soft Positivism
3· The Nature of Rules
(i) The Practice Theory of Rules
(ii) Rules and Principles
4· Principles and the Rule of Recognition
Pedigree and Interpretation
S· Law and Morality
(i) Rights and Duties
(ii) The Identification of the Law
6. judicial Discretion
Notes
Index
I4I
I47
ISS
IS 7
I 67
I So
ISS
ISS
I93
200
2I3
2 I 3
2 I 6
220
227
232
23S
23S
239
244
244
24S
2SO
2S4
2S4
2S9
263
263
26S
26S
269
272
277
gog
I
PERSISTENT QUESTIONS
I. PERPLEXITIES OF LEGAL THEORY
FEw questions concerning human society have been asked
with such persistence and answered by serious thinkers in
so many diverse, strange, and even paradoxical ways as the
question 'What is law?' Even if we confine our attention to
the legal theory of the last I 50 years and neglect classical and
medieval speculation about the 'nature' of law, we shall find
a situation not paralleled in any other subject systematically
studied as a separate academic discipline. No vast literature
is dedicated to answering the questions 'What is chemistry?'
or 'What is medicine?', as it is to the question 'What is law?'
A few lines on the opening page of an elementary textbook is
all that the student of these sciences is asked to consider; and
the answers he is given are of a very different kind from those
tendered to the student oflaw. No one has thought it illumin
ating or important to insist that medicine is 'what doctors do
about illnesses', or 'a prediction of what doctors will do', or
to declare that what is ordinarily recognized as a character
istic, central part of chemistry, say the study of acids, is not
really part of chemistry at all. Yet, in the case of law, things
which at first sight look as strange as these have often been
said, and not only said but urged with eloquence and passion,
as if they were revelations of truths about law, long obscured
by gross misrepresentations of its essential nature.
'What officials do about disputes is ... the law itself'; I 'The
prophecies of what the courts will do ... are what I mean by
the law';• Statutes are 'sources of Law ... not parts of the | Clarendon |
Law itself'; 3 'Constitutional law is positive morality merely';4
'One shall not steal; if somebody steals he shall be punished.
' Llewellyn, The Bramble Bush (2nd edn., 1951 ), p. g.
'0. W. Holmes, 'The Path of the Law' in Collected Papers (1920), p. 173.
3 J. C. Gray, The Nature and Sources of the Law (1902), s. 276.
4 Austin, The Province of jurisprudence Determined (1832), Lecture VI (1954 edn.,
p. 259).
2
PERSISTENT QUESTIONS
... If at all existent, the first norm is contained in the second
norm which is the only genuine norm .... Law is the primary
norm which stipulates the sanction'.'
These are only a few of many assertions and denials con
cerning the nature of law which at first sight, at least, seem
strange and paradoxical. Some of them seem to conflict with
the most firmly rooted beliefs and to be easily refutable; so
that we are tempted to reply, 'Surely statutes are law, at least
one kind of law even if there are others': 'Surely law cannot
just mean what officials do or courts will do, since it takes a
law to make an official or a court'.
Yet these seemingly paradoxical utterances were not made
by visionaries or philosophers professionally concerned to
doubt the plainest deliverances of common sense. They are
the outcome of prolonged reflection on law made by men who
were primarily lawyers, concerned professionally either to
teach or practise law, and in some cases to administer it as
judges. Moreover, what they said about law actually did in
their time and place increase our understanding of it. For,
understood in their context, such statements are both illumin
ating and puzzling: they are more like great exaggerations of
some truths about law unduly neglected, than cool defini
tions. They throw a light which makes us see much in law
that lay hidden; but the light is so bright that it blinds us to
the remainder and so leaves us still without a clear view of
the whole.
To this unending theoretical debate in books we find a
strange contrast in the ability of most men to cite, with ease
and confidence, examples of law if they are asked to do so.
Few Englishmen are unaware that there is a law forbidding
murder, or requiring the payment of income tax, or specify
ing what must be done to make a valid will. Virtually every
one except the child or foreigner coming across the English
word 'law' for the first time could easily multiply such exam
ples, and most people could do more. They could describe, at
least in outline, how to find out whether something is the law
in England; they know that there are experts to consult and
courts with a final authoritative voice on all such questions.
' Kelsen, General Theory rif Law and State (1949), p. 61.
PERSISTENT QUESTIONS
3
Much more than this is quite generally known. Most educated
people have the idea that the laws in England form some sort
of system, and that in France or the United States or Soviet
Russia and, indeed, in almost every part of the world which
is thought of as a separate 'country' there are legal systems
which are broadly similar in structure in spite of important
differences. Indeed an education would have seriously failed
if it left people in ignorance ofthese facts, and we would hardly
think it a mark of great sophistication if those who knew this
could also say what are the important points of similarity
between different legal systems. Any educated man might be
expected to be able to identify these salient features in some
such skeleton way as follows. They comprise (i) rules forbid
ding or enjoining certain types of behaviour under penalty;
(ii) rules requiring people to compensate those whom they | Clarendon |
injure in certain ways; (iii) rules specifying what must be
done to make wills, contracts or other arrangements which
confer rights and create obligations; (iv) courts to determine
what the rules are and when they have been broken, and to
fix the punishment or compensation to be paid; (v) a legislature
to make new rules and abolish old ones.
If all this is common knowledge, how is it that the question
'What is law?' has persisted and so many various and extra
ordinary answers have been given to it? Is it because, besides
the clear standard cases constituted by the legal systems of
modern states, which no one in his senses doubts are legal
systems, there exist also doubtful cases, and about their 'legal
quality' not only ordinary educated men but even lawyers
hesitate? Primitive law and international law are the foremost
of such doubtful cases, and it is notorious that many find that
there are reasons, though usually not conclusive ones, for
denying the propriety of the now conventional use of the word
'law' in these cases. The existence of these questionable or
challengeable cases has indeed given rise to a prolonged and
somewhat sterile controversy, but surely they cannot account
for the perplexities about the general nature of law expressed
by the persistent question 'What is law?' That these cannot
be the root of the difficulty seems plain for two reasons.
First, it is quite obvious why hesitation is felt in these cases.
International law lacks a legislature, states cannot be brought
PERSISTENT QUESTIONS
4
before international courts without their prior consent, and
there is no centrally organized effective system of sanctions.
Certain types of primitive law, including those out of which
some contemporary legal systems may have gradually evolved,
similarly lack these features, and it is perfectly clear to every
one that it is their deviation in these respects from the standard
case which makes their classification appear questionable.
There is no mystery about this.
Secondly, it is not a peculiarity of complex terms like 'law'
and 'legal system' that we are forced to recognize both clear
standard cases and challengeable borderline cases. It is now
a familiar fact (though once too little stressed) that this dis
tinction must be made in the case of almost every general
term which we use in classifying features of human life and
of the world in which we live. Sometimes the difference be
tween the clear, standard case or paradigm for the use of an
expression and the questionable cases is only a matter of
degree. A man with a shining smooth pate is clearly bald;
another with a luxuriant mop clearly is not; but the question
whether a third man, with a fringe of hair here and there, is
bald might be indefinitely disputed, if it were thought worth
while or any practical issue turned on it.
Sometimes the deviation from the standard case is not a
mere matter of degree but arises when the standard case is in
fact a complex of normally concomitant but distinct elements,
some one or more of which may be lacking in the cases open
to challenge. Is a flying boat a 'vessel'? Is it still 'chess' if the
game is played without a queen? Such questions may be in
structive because they force us to reflect on, and make ex
plicit, our conception of the composition of the standard case;
but it is plain that what may be called the borderline aspect
of things is too common to account for the long debate about
law. Moreover, only a relatively small and unimportant part
of the most famous and controversial theories of law are con
cerned with the propriety of using the expressions 'primitive
law' or 'international law' to describe the cases to which they | Clarendon |
are conventionally applied.
When we reflect on the quite general ability of people to
recognize and cite examples of laws and on how much is
generally known about the standard case of a legal system, it
PERSISTENT QUESTIONS
5
might seem that we could easily put an end to the persistent
question, 'What is law?', simply by issuing a series ofremind
ers of what is already familiar. Why should we not just repeat
the skeleton account of the salient features of a municipal
legal system which, perhaps optimistically, we put (on page
3) into the mouth of an educated man? We can then simply
say, 'Such is the standard case of what is meant by "law" and
"legal system"; remember that besides these standard cases
you will also find arrangements in social life which, while
sharing some ofthese salient features, also lack others of them.
These are disputed cases where there can be no conclusive
argument for or against their classification as law.'
Such a way with the question would be agreeably short.
But it would have nothing else to recommend it. For, in the
first place, it is clear that those who are most perplexed by
the question 'What is law?' have not forgotten and need no
reminder of the familiar facts which this skeleton answer
offers them. The deep perplexity which has kept alive the ques
tion, is not ignorance or forgetfulness or inability to recognize
the phenomena to which the word 'law' commonly refers.
Moreover, if we consider the terms of our skeleton account of
a legal system, it is plain that it does little more than assert
that in the standard, normal case laws of various sorts go
together. This is so because both a court and a legislature,
which appear in this short account as typical elements of a
standard legal system, are themselves creatures of law. Only
when there are certain types of laws giving men jurisdiction
to try cases and authority to make laws do they constitute a
court or a legislature.
This short way with the question, which does little more
than remind the questioner of the existing conventions gov
erning the use ofthe words 'law' and 'legal system', is therefore
useless. Plainly the best course is to defer giving any answer
to the query 'What is law?' until we have found out what it
is about law that has in fact puzzled those who have asked or
attempted to answer it, even though their familiarity with the
law and their ability to recognize examples are beyond ques
tion. What more do they want to know and why do they want
to know it? To this question something like a general answer
can be given. For there are certain recurrent main themes
6
PERSISTENT QUESTIONS
which have formed a constant focus of argument and counter
argument about the nature of law, and provoked exaggerated
and paradoxical assertions about law such as those we have
already cited. Speculation about the nature of law has a long
and complicated history; yet in retrospect it is apparent that
it has centred almost continuously upon a few principal issues.
These were not gratuitously chosen or invented for the pleas
ure of academic discussion; they concern aspects oflaw which
seem naturally, at all times, to give rise to misunderstanding,
so that confusion and a consequent need for greater clarity
about them may coexist even in the minds of thoughtful men
with a firm mastery and knowledge of the law.
2. THREE RECURRENT ISSUES
We shall distinguish here three such principal recurrent is
sues, and show later why they come together in the form of
a request for a definition of law or an answer to the question
'What is law?', or in more obscurely framed questions such as
'What is the nature (or the essence) of law?'
| Clarendon |
Two of these issues arise in the following way. The most
prominent general feature of law at all times and places is
that its existence means that certain kinds of human conduct
are no longer optional, but in some sense obligatory. Yet this
apparently simple characteristic of law is not in fact a simple
one; for within the sphere of non-optional obligatory conduct
we can distinguish different forms. The first, simplest sense in
which conduct is no longer optional, is when one man is
forced to do what another tells him, not because he is phys
ically compelled in the sense that his body is pushed or pulled
about, but because the other threatens him with unpleasant
consequences if he refuses. The gunman orders his victim to
hand over his purse and threatens to shoot if he refuses; if the
victim complies we refer to the way in which he was forced
to do so by saying that he was obliged to do so. To some it has
seemed clear that in this situation where one person gives
another an order backed by threats, and, in this sense of
'oblige', obliges him to comply, we have the essence of law,
or at least 'the key to the science of jurisprudence'.' This is
' Austin, op. cit., Lecture I, p. 13. He adds 'and morals'.
PERSISTENT QUESTIONS
7
the starting-point of Austin's analysis by which so much
English jurisprudence has been influenced.
There is of course no doubt that a legal system often presents
this aspect among others. A penal statute declaring certain
conduct to be an offence and specifying the punishment to
which the offender is liable, may appear to be the gunman
situation writ large; and the only difference to be the rela
tively minor one, that in the case of statutes, the orders are
addressed generally to a group which customarily obeys such
orders. But attractive as this reduction of the complex phe
nomena of law to this simple element may seem, it has been
found, when examined closely, to be a distortion and a source
of confusion even in the case of a penal statute where an ana
lysis in these simple terms seems most plausible. How then
do law and legal obligation differ from, and how are they
related to, orders backed by threats? This at all times has
been one cardinal issue latent in the question 'What is law?'.
A second such issue arises from a second way in which
conduct may be not optional but obligatory. Moral rules im
pose obligations and withdraw certain areas of conduct from
the free option of the individual to do as he likes. Just as a
legal system obviously contains elements closely connected
with the simple cases of orders backed by threats, so equally
obviously it contains elements closely connected with certain
aspects of morality. In both cases alike there is a difficulty in
identifying precisely the relationship and a temptation to see
in the obviously close connection an identity. Not only do law
and morals share a vocabulary so that there are both legal
and moral obligations, duties, and rights; but all municipal
legal systems reproduce the substance of certain fundamental
moral requirements. Killing and the wanton use of violence
are only the most obvious examples of the coincidence be
tween the prohibitions of law and morals. Further, there is
one idea, that of justice which seems to unite both fields: it is
both a virtue specially appropriate to law and the most legal
of the virtues. We think and talk of 'justice according to law'
and yet also of the justice or injustice if the laws.
These facts suggest the view that law is best understood
as a 'branch' of morality or justice and that its congruence
with the principles of morality or justice rather than its
8
| Clarendon |
PERSISTENT QUESTIONS
incorporation of orders and threats is of its 'essence'. This is
the doctrine characteristic not only of scholastic theories of
natural law but of some contemporary legal theory which is
critical of the legal 'positivism' inherited from Austin. Yet
here again theories that make this close assimilation of law to
morality seem, in the end, often to confuse one kind of obli
gatory conduct with another, and to leave insufficient room for
differences in kind between legal and moral rules and for
divergences in their requirements. These are at least as im
portant as the similarity and convergence which we may also
find. So the assertion that 'an unjust law is not a law" has
the same ring of exaggeration and paradox, if not falsity, as
'statutes are not laws' or 'constitutional law is not law'. It is
characteristic of the oscillation between extremes, which make
up the history of legal theory, that those who have seen in
the close assimilation of law and morals nothing more than a
mistaken inference from the fact that law and morals share a
common vocabulary of rights and duties, should have pro
tested against it in terms equally exaggerated and paradox
ical. 'The prophecies of what the courts will do in fact, and
nothing more pretentious, are what I mean by the law.»
The third main issue perennially prompting the question
'What is law?' is a more general one. At first sight it might
seem that the statement that a legal system consists, in gen
eral at any rate, of rules could hardly be doubted or found
difficult to understand. Both those who have found the key to
the understanding of law in the notion of orders backed by
threats, and those who have found it in its relation to moral
ity or justice, alike speak oflaw as containing, if not consisting
largely of, rules. Yet dissatisfaction, confusion, and uncertainty
concerning this seemingly unproblematic notion underlies
much of the perplexity about the nature of law. What are
rules? What does it mean to say that a rule exists? Do courts
really apply rules or merely pretend to do so? Once the notion
is queried, as it has been especially in the jurisprudence of
this century, major divergencies in opinion appear. These we
shall merely outline here.
' 'Non videtur esse lex quae justa non fuerit': St. Augustine I, De Libero Arbitrio,
' Holmes, Joe. cit.
s; Aquinas, Summa Theologica, Qu. XCV, Arts. 2, 4·
PERSISTENT QUESTIONS
9
It is of course true that there are rules of many different
types, not only in the obvious sense that besides legal rules
there are rules of etiquette and of language, rules of games
and clubs, but in the less obvious sense that even within any
one of these spheres, what are called rules may originate in
different ways and may have very different relationships to
the conduct with which they are concerned. Thus even within
the law some rules are made by legislation; others are not
made by any such deliberate act. More important, some rules
are mandatory in the sense that they require people to be
have in certain ways, e.g. abstain from violence or pay taxes,
whether they wish to or not; other rules such as those pre
scribing the procedures, formalities, and conditions for the
making of marriages, wills, or contracts indicate what people
should do to give effect to the wishes they have. The same
contrast between these two types of rule is also to be seen
between those rules of a game which veto certain types of
conduct under penalty (foul play or abuse of the referee) and
those which specify what must be done to score or to win. But
even if we neglect for the moment this complexity and con | Clarendon |
sider only the first sort of rule (which is typical of the crimi
nal law) we shall find, even among contemporary writers, the
widest divergence of view as to the meaning of the assertion
that a rule of this simple mandatory type exists. Some indeed
find the notion utterly mysterious.
The account which we are at first perhaps naturally tempt
ed to give of the apparently simple idea of a mandatory rule
has soon to be abandoned. It is that to say that a rule exists
means only that a group of people, or most of them, behave
'as a rule' i.e. generally, in a specified similar way in certain
kinds of circumstances. So to say that in England there is a
rule that a man must not wear a hat in church or that one
must stand up when 'God Save the Queen' is played means,
on this account of the matter, only that most people generally
do these things. Plainly this is not enough, even though it
conveys part of what is meant. Mere convergence in behavi
our between members of a social group may exist (all may
regularly drink tea at breakfast or go weekly to the cinema)
and yet there may be no rule requiring it. The difference be
tween the two social situations of mere convergent behaviour
10
PERSISTENT QUESTIONS
and the existence of a social rule shows itself often linguist
ically. In describing the latter we may, though we need not,
make use of certain words which would be misleading if we
meant only to assert the former. These are the words 'must',
'should', and 'ought to', which in spite of differences share
certain common functions in indicating the presence of a rule
requiring certain conduct. There is in England no rule, nor is
it true, that everyone must or ought to or should go to the
cinema each week: it is only true that there is regular resort
to the cinema each week. But there is a rule that a man must
bare his head in church.
What then is the crucial difference between merely conver
gent habitual behaviour in a social group and the existence of
a rule of which the words 'must', 'should', and 'ought to' are
often a sign? Here indeed legal theorists have been divided,
especially in our own day when several things have forced
this issue to the front. In the case of legal rules it is very often
held that the crucial difference (the element of 'must' or
'ought') consists in the fact that deviations from certain types
of behaviour will probably meet with hostile reaction, and in
the case of legal rules be punished by officials. In the case of
what may be called mere group habits, like that of going
weekly to the cinema, deviations are not met with punish
ment or even reproof; but wherever there are rules requiring
certain conduct, even non-legal rules like that requiring men
to bare their heads in church, something of this sort is likely
to result from deviation. In the case oflegal rules this predict
able consequence is definite and officially organized, whereas
in the non-legal case, though a similar hostile reaction to devia
tion is probable, this is not organized or definite in character.
It is obvious that predictability of punishment is one im
portant aspect of legal rules; but it is not possible to accept
this as an exhaustive account of what is meant by the state
ment that a social rule exists or of the element of 'must' or
'ought' involved in rules. To such a predictive account there
are many objections, but one in particular, which character
izes a whole school of legal theory in Scandinavia, deserves
careful consideration. It is that if we look closely at the ac
tivity of the judge or official who punishes deviations from
legal rules (or those private persons who reprove or criticize
| Clarendon |
PERSISTENT QUESTIONS
I I
deviations from non-legal rules), we see that rules are involved
in this activity in a way which this predictive account leaves
quite unexplained. For the judge, in punishing, takes the rule
as his guide and the breach of the rule as his reason and jus
tification for punishing the offender. He does not look upon the
rule as a statement that he and others are likely to punish
deviations, though a spectator might look upon the rule in
just this way. The predictive aspect of the rule (though real
enough) is irrelevant to his purposes, whereas its status as a
guide and justification is essential. The same is true of infor
mal reproofs administered for the breach of non-legal rules.
These too are not merely predictable reactions to deviations,
but something which existence of the rule guides and is held
to justify. So we say that we reprove or punish a man because
he has broken the rule: and not merely that it was probable
that we would reprove or punish him.
Yet among critics who have pressed these objections to the
predictive account some confess that there is something ob
scure here; something which resists analysis in clear, hard,
factual terms. What can there be in a rule apart from regular
and hence predictable punishment or reproof of those who
deviate from the usual patterns of conduct, which distinguishes
it from a mere group habit? Can there really be something
over and above these clear ascertainable facts, some extra
element, which guides the judge and justifies or gives him a
reason for punishing? The difficulty of saying what exactly
this extra element is has led these critics of the predictive
theory to insist at this point that all talk of rules, and the
corresponding use of words like 'must', 'ought', and 'should',
is fraught with a confusion which perhaps enhances their
importance in men's eyes but has no rational basis. We merely
think, so such critics claim, that there is something in the rule
which binds us to do certain things and guides or justifies us
in doing them, but this is an illusion even if it is a useful one.
All that there is, over and above the clear ascertainable facts
of group behaviour and predictable reaction to deviation, are
our own powerful 'feelings' of compulsion to behave in
accordance with the rule and to act against those who do not.
We do not recognize these feelings for what they are but
imagine that there is something external, some invisible part
12
PERSISTENT QUESTIONS
of the fabric of the universe guiding and controlling us in
these activities. We are here in the realm of fiction, with
which it is said the law has always been connected. It is only
because we adopt this fiction that we can talk solemnly of the
government 'of laws not men'. This type of criticism, what
ever the merits of its positive contentions, at least calls for
further elucidation of the distinction between social rules
and mere convergent habits of behaviour. This distinction is
crucial for the understanding of law, and much of the early
chapters of this book is concerned with it.
Scepticism about the character of legal rules has not, how
ever, always taken the extreme form of condemning the very
notion of a binding rule as confused or fictitious. Instead, the
most prevalent form of scepticism in England and the United
States invites us to reconsider the view that a legal system
wholly, or even primarily, consists of rules. No doubt the courts
so frame their judgments as to give the impression that their
decisions are the necessary consequence of predetermined rules
whose meaning is fixed and clear. In very simple cases this
may be so; but in the vast majority of cases that trouble the | Clarendon |
courts, neither statutes nor precedents in which the rules are
allegedly contained allow of only one result. In most impor
tant cases there is always a choice. The judge has to choose
between alternative meanings to be given to the words of a
statute or between rival interpretations of what a precedent
'amounts to'. It is only the tradition that judges 'find' and do
not 'make' law that conceals this, and presents their decisions
as if they were deductions smoothly made from clear pre
existing rules without intrusion of the judge's choice. Legal
rules may have a central core of undisputed meaning, and in
some cases it may be difficult to imagine a dispute as to the
meaning of a rule breaking out. The provision of s. g of the
Wills Act, 1837, that there must be two witnesses to a will
may not seem likely to raise problems of interpretation. Yet
all rules have a penumbra of uncertainty where the judge
must choose between alternatives. Even the meaning of the
innocent-seeming provision of the Wills Act that the testator
must sign the will may prove doubtful in certain circumstances.
What if the testator used a pseudonym? Or if his hand was
guided by another? Or if he wrote his initials only? Or if he
PERSISTENT QUESTIONS
13
put his full, correct, name unaided, but at the top of the first
page instead of at the bottom of the last? Would all these
cases be 'signing' within the meaning of the legal rule?
If so much uncertainty may break out in humble spheres
of private law, how much more shall we find in the magnilo
quent phrases of a constitution such as the Fifth and Four
teenth Amendments to the Constitution of the United States,
providing that no person shall be 'deprived of life liberty or
property without due process of law'? Of this one writer' has
said tha.'t the true meaning of this phrase is really quite clear.
It means 'no w shall be x or y without z where w, x, y, and
z can assume any values within a wide range'. To cap the tale
sceptics remind us that not only are the rules uncertain, but
the court's interpretation of them may be not only authorita
tive but final. In view of all this, is not the conception of law
as essentially a matter of rules a gross exaggeration if not a
mistake? Such thoughts lead to the paradoxical denial which
we have already cited: 'Statutes are sources of law, not part
of the law itsel£ ' 2
3· DEFINITION
Here then are the three recurrent issues: How does law differ
from and how is it related to orders backed by threats? How
does legal obligation differ from, and how is it related to,
moral obligation? What are rules and to what extent is law
an affair of rules? To dispel doubt and perplexity on these
three issues has been the chief aim of most speculation about
the 'nature' of law. It is possible now to see why this specu
lation has usually been conceived as a search for the def
inition of law, and also why at least the familiar forms of
definition have done so little to resolve the persistent difficul
ties and doubts. Definition, as the word suggests, is primarily
a matter of drawing lines or distinguishing between one kind
ofthing and another, which language marks offby a separate
word. The need for such a drawing of lines is often felt by
those who are perfectly at home with the day-to-day use of the
word in question, but cannot state or explain the distinctions
'J.D. March, 'Sociological Jurisprudence Revisited', 8 Stariford Law Review (1956),
' Gray, Joe. cit.
p. 518.
PERSISTENT QUESTIONS
which, they sense, divide one kind of thing from another. All
of us are sometimes in this predicament: it is fundamentally
that of the man who says, 'I can recognize an elephant when | Clarendon |
I see one but I cannot define it.' The same predicament was
expressed by some famous words of St Augustine' about the
notion of time. 'What then is time? If no one asks me I know:
ifl wish to explain it to one that asks I know not.' It is in this
way that even skilled lawyers have felt that, though they know
the law, there is much about law and its relations to other
things that they cannot explain and do not fully understand.
Like a man who can get from one point to another in a
familiar town but cannot explain or show others how to do it,
those who press for a definition need a map exhibiting clearly
the relationships dimly felt to exist between the law they know
and other things.
Sometimes in such cases a definition of a word can supply
such a map: at one and the same time it may make explicit
the latent princiRle which guides our use of a word, and may
exhibit relationships between the type of phenomena to which
we apply the word and other phenomena. It is sometimes
said that definition is 'merely verbal' or 'just about words';
but this may be most misleading where the expression de
fined is one in current use. Even the definition of a triangle
as a 'three-sided rectilinear figure', or the definition of an
elephant as a 'quadruped distinguished from others by its
possession of a thick skin, tusks, and trunk', instructs us in a
humble way both as to the standard use of these words and
about the things to which the words apply. A definition of
this familiar type does two things at once. It simultaneously
provides a code or formula translating the word into other
well- understood terms and locates for us the kind of thing to
which the word is used to refer, by indicating the features
which it shares in common with a wider family of things and
those which mark it off from others of that same family. In
searching for and finding such definitions we 'are looking not
merely at words ... but also at the realities we use words to
talk about. We are using a sharpened awareness of words to
sharpen our perception of the phenomena. ' 2
' Confessiones, xiv. 17.
'J. L. Austin, 'A Plea for Excuses', Proceedings <if the Aristotelian Sociery, vol. 57 (Igs6-
7), p. 8.
PERSISTENT QUESTIONS
This form of definition (per genus et dif.ferentiam) which we
see in the simple case of the triangle or elephant is the sim
plest and to some the most satisfying, because it gives us a
form of words which can always be substituted for the word
defined. But it is not always available nor, when it is avail
able, always illuminating. Its success depends on conditions
which are often not satisfied. Chief among these is that there
should be a wider family of things or genus, about the char
acter of which we are clear, and within which the definition
locates what it defines; for plainly a definition which tells us
that something is a member of a family cannot help us if we
have only vague or confused ideas as to the character of the
family. It is this requirement that in the case of law renders
this form of definition useless, for here there is no familiar
well-understood general category of which law is a member.
The most obvious candidate for use in this way in a definition
oflaw is the general family of rules qf behaviour; yet the concept
of a rule as we have seen is as perplexing as that of law itself,
so that definitions of law that start by identifying laws as a
species of rule usually advance. our understanding of law no
further. For this, something more fundamental is required
than a form of definition which is successfully used to locate
some special, subordinate, kind within some familiar, well | Clarendon |
understood, general kind of thing.
There are, however, further formidable obstacles to the
profitable use of this simple form of definition in the case of
law. The supposition that a general expression can be defined
in this way rests on the tacit assumption that all the instances
of what is to be defined as triangles and elephants have com
mon characteristics which are signified by the expression
defined. Of course, even at a relatively elementary stage, the
existence of borderline cases is forced upon our attention, and
this shows that the assumption that the several instances of
a general term must have the same characteristics may be
dogmatic. Very often the ordinary, or even the technical, usage
of a term is quite 'open' in that it does not forbid the extension
of the term to cases where only some of the normally con
comitant characteristics are present. This, as we have already
observed, is true of international law and of certain forms of
primitive law, so that it is always possible to argue with plau
sibility for and against such an extension. What is more
16
PERSISTENT QUESTIONS
important is that, apart from such borderline cases, the sev
eral instances of a general term are often linked together in
quite different ways from that postulated by the simple form
of definition. They may be linked by analogy as when we
speak of the 'foot' of a man and also of the 'foot' of a moun
tain. They may be linked by different relationships to a central
element. Such a unifying principle is seen in the application
of the word 'healthy' not only to a man but to his complexion
and to his morning exercise; the second being a sign and the
third a cause of the first central characteristic. Or again-and
here perhaps we have a principle similar to that which unifies
the different types of rules which make up a legal system
the several instances may be different constituents of some
complex activity. The use of the adjectival expression 'rail
way' not only of a train but also of the lines, of a station, of
a porter, and of a limited company, is governed by this type
of unifying principle.
There are of course many other kinds of definition besides
the very simple traditional form which we have discussed,
but it seems clear, when we recall the character of the three
main issues which we have identified as underlying the recur
rent question 'What is law?', that nothing concise enough to
be recognized as a definition could provide a satisfactory
answer to it. The underlying issues are too different from
each other and too fundamental to be capable of this sort of
resolution. This the history of attempts to provide concise
definitions has shown. Yet the instinct which has often brought
these three questions together under a single question or re
quest for definition has not been misguided; for, as we shall
show in the course of this book, it is possible to isolate and
characterize a central set of elements which form a common
part of the answer to all three. What these elements are and
why they deserve the important place assigned to them in
this book will best emerge, if we first consider, in detail, the
deficiencies of the theory which has dominated so much
English jurisprudence since Austin expounded it. This is the
claim that the key to the understanding of law is to be found
in the simple notion of an order backed by threats, which
Austin himself termed a 'command'. The investigation of the
deficiencies of this theory occupies the next three chapters. In
PERSISTENT QUESTIONS
17
criticizing it first and deferring to the later chapters of this
book consideration of its main rival, we have consciously
disregarded the historical order in which modern legal theory | Clarendon |
has developed; for the rival claim that law is best understood
through its 'necessary' connection with morality is an older
doctrine which Austin, like Bentham before him, took as a
principal object of attack. Our excuse, if one is needed, for
this unhistorical treatment, is that the errors of the simple
imperative theory are a better pointer to the truth than those
of its more complex rivals.
At various points in this book the reader will find discus
sions of the borderline cases where legal theorists have felt
doubts about the application of the expression 'law' or 'legal
system', but the suggested resolution of these doubts, which
he will also find here, is only a secondary concern of the book.
For its purpose is not to provide a definition of law, in the
sense of a rule by reference to which the correctness of the use
of the word can be tested; it is to advance legal theory by
providing an improved analysis of the distinctive structure of
a municipal legal system and a better understanding of the
resemblances and differences between law, coercion, and
morality, as types of social phenomena. The set of elements
identified in the course of the critical discussion of the next
three chapters and described in detail in Chapters V and VI
serve this purpose in ways which are demonstrated in the rest
of the book. It is for this reason that they are treated as the
central elements in the concept of law and of prime impor
tance in its elucidation.
II
LAWS, COMMANDS, AND ORDERS
I. VARIETIES OF IMPERATIVES
THE clearest and the most thorough attempt to analyse the
concept of law in terms of the apparently simple elements of
commands and habits, was that made by Austin in the Province
qf jurisprudence Determined. In this and the next two chapters
we shall state and criticize a position which is, in substance,
the same as Austin's doctrine but probably diverges from it
at certain points. For our principal concern is not with Austin
but with the credentials of a certain type of theory which has
perennial attractions whatever its defects may be. So we have
not hesitated where Austin's meaning is doubtful or where
his views seem inconsistent to ignore this and to state a clear
and consistent position. Moreover, where Austin merely gives
hints as to ways in which criticisms might be met, we have
developed these (in part along the lines followed by later the
orists such as Kelsen) in order to secure that the doctrine we
shall consider and criticize is stated in its strongest form.
In many different situations in social life one person may
express a wish that another person should do or abstain from
doing something. When this wish is expressed not merely as
a piece of interesting information or deliqerate self-revelation
but with the intention that the person addressed should con
form to the wish expressed, it is customary in English and
many other languages, though not necessary, to use a special
linguistic form called the imperative mood, 'Go home!' 'Come
here!' 'Stop!' 'Do not kill him!' The social situations in which
we thus address others in imperative form are extremely di
verse; yet they include some recurrent main types, the impor
tance of which is marked by certain familiar classifications.
'Pass the salt, please', is usually a mere request, since normally
it is addressed by the speaker to one who is able to render him
a service, and there is no suggestion either of any great urgency
or any hint of what may follow on failure to comply. 'Do not
LAWS, COMMANDS, AND ORDERS
19
kill me', would normally be uttered as a plea where the speaker
is at the mercy of the person addressed or in a predicament
from which the latter has the power to release him. 'Don't | Clarendon |
move', on the other hand, may be a warning if the speaker
knows of some impending danger to the person addressed (a
snake in the grass) which his keeping still may avert.
The varieties of social situation in which use is character
istically, though not invariably, made of imperative forms of
language are not only numerous but shade into each other;
and terms like 'plea', 'request', or 'warning', serve only to
make a few rough discriminations. The most important of
these situations is one to which the word 'imperative' seems
specially appropriate. It is that illustrated by the case of the
gunman who says to the bank clerk, 'Hand over the money
or I will shoot.' Its distinctive feature which leads us to speak
of the gunman ordering not merely asking, still less pleading with
the clerk to hand over the money, is that, to secure compli
ance with his expressed wishes, the speaker threatens to do
something which a normal man would regard as harmful or
unpleasant, and renders keeping the money a substantially
less eligible course of conduct for the clerk. If the gunman
succeeds, we would describe him as having coerced the clerk,
and the clerk as in that sense being in the gunman's power.
Many nice linguistic questions may arise over such cases: we
might properly say that the gunman ordered the clerk to hand
over the money and the clerk obeyed, but it would be some
what misleading to say that the gunman gave an order to the
clerk to hand it over, since this rather military-sounding phrase
suggests some right or authority to give orders not present in
our case. It would, however, be quite natural to say that the
gunman gave an order to his henchman to guard the door.
We need not here concern ourselves with these subtleties.
Although a suggestion of authority and deference to authority
may often attach to the words 'order' and 'obedience', we
shall use the expressions 'orders backed by threats' and
'coercive orders' to refer to orders which, like the gunman's,
are supported only by threats, and we shall use the words
'obedience' and 'obey' to include compliance with such orders.
It is, however, important to notice, if only because of the great
influence on jurists of Austin's definition of the notion of a
20
LAWS, COMMANDS, AND ORDERS
command, that the simple situation, where threats of harm
and nothing else is used to force obedience, is not the situation
where we naturally speak of 'commands'. This word, which
is not very common outside military contexts, carries with it
very strong implications that there is a relatively stable hier
archical organization of men, such as an army or a body of
disciples in which the commander occupies a position of pre
eminence. Typically it is the general (not the sergeant) who
is the commander and gives commands, though other forms
of special pre-eminence are spoken of in these terms, as when
Christ in the New Testament is said to command his disci
ples. More important-for this is a crucial distinction between
different forms of 'imperative' -is the point that it need not
be the case, where a command is given, that there should be
a latent threat of harm in the event of disobedience. To com
mand is characteristically to exercise authority over men, not
power to inflict harm, and though it may be combined with
threats of harm a command is primarily an appeal not to fear
but to respect for authority.
It is obvious that the idea of a command with its very
strong connection with authority is much closer to that of
law than our gunman's order backed by threats, though the
latter is an instance of what Austin, ignoring the distinctions
noticed in the last paragraph, misleadingly calls a command. | Clarendon |
A command is, however, too close to law for our purpose; for
the element of authority involved in law has always been one
of the obstacles in the path of any easy explanation of what
law is. We cannot therefore profitably use, in the elucidation
of law, the notion of a command which also involves it. In
deed it is a virtue of Austin's analysis, whatever its defects,
that the elements of the gunman situation are, unlike the
element of authority, not themselves obscure or in need of
much explanation; and hence we shall follow Austin in an
attempt to build up from it the idea of law. We shall not,
however, hope, as Austin did, for success, but rather to learn
from our failure.
2. LAW AS COERCIVE ORDERS
Even in a complex large society, like that of a modern state,
there are occasions when an official, face to face with an
individual, orders him to do something. A policeman orders
LAWS, COMMANDS, AND ORDERS
21
a particular motorist to stop or a particular beggar to move
on. But these simple situations are not, and could not be, the
standard way in which law functions, if only because no so
ciety could support the number of officials necessary to secure
that every member of the society was officially and separately
informed of every act which he was required to do. Instead
such particularized forms of control are either exceptional or
are ancillary accompaniments or reinforcements of general
forms of directions which do not name, and are not ·addressed
to, particular individuals, and do not indicate a particular act
to be done. Hence the standard form even of a criminal statute
(which of all the varieties of law has the closest resemblance
to an order backed by threats) is general in two ways; it in
dicates a general type of conduct and applies to a general
class of persons who are expected to see that it applies to
them and to comply with it. Official individuated face-to-face
directions here have a secondary place: if the primary general
directions are not obeyed by a particular individual, officials
may draw his attention to them and demand compliance, as
a tax inspector does, or the disobedience may be officially
identified and recorded and the threatened punishment im
posed by a court.
Legal control is therefore primarily, though not exclusively,
control by directions which are in this double sense general. This
is the first feature which we must add to the simple model of
the gunman if it is to reproduce for us the characteristics of
law. The range of persons affected and the manner in which
the range is indicated may vary with different legal systems
and even different laws. In a modern state it is normally
understood that, in the absence of special indications widen
ing or narrowing the class, its general laws extend to all persons
within its territorial boundaries. In canon law there is a simi
lar understanding that normally all the members of the church
are within the range of its law except when a narrower class
is indicated. In all cases the range of application of a law is
a question of interpretation of the particular law aided by
such general understandings. It is here worth noticing that
though jurists, Austin among them, sometimes speak of laws
being addressed' to classes of persons this is misleading in
' 'Addressed to the community at large', Austin, above, p. 1 n. 4 at p. 22.
22
LAWS, COMMANDS, AND ORDERS
suggesting a parallel to the face-to-face situation which really
does not exist and is not intended by those who use this
expression. Ordering people to do things is a form of commun
ication and does entail actually 'addressing' them, i.e. at
tracting their attention or taking steps to attract it, but making | Clarendon |
laws for people does not. Thus the gunman by one and the
same utterance, 'Hand over those notes', expresses his wish
that the clerk should do something and actually addresses the
clerk, i.e. he does what is normally sufficient to bring this
expression to the clerk's attention. If he did not do the latter
but merely said the same words in an empty room, he would
not have addressed the clerk at all and would not have ordered
him to do anything: we might describe the situation as one
where the gunman merely said the words, 'Hand over those
notes'. In this respect making laws differs from ordering
people to do things, and we must allow for this difference in
using this simple idea as a model for law. It may indeed be
desirable that laws should as soon as may be after they are
made, be brought to the attention of those to whom they
apply. The legislator's purpose in making laws would be
defeated unless this were generally done, and legal systems
often provide, by special rules concerning promulgation, that
this shall be done. But laws may be complete as laws before
this is done, and even if it is not done at all. In the absence
of special rules to the contrary, laws are validly made even if
those affected are left to find out for themselves what laws
have been made and who are affected thereby. What is usu
ally intended by those who speak of laws being 'addressed' to
certain persons, is that these are the persons to whom the
particular law applies, i.e. whom it requires to behave in
certain ways. If we use the word 'addressed' here we may
both fail to notice an important difference between the mak
ing of a law and giving a face-to-face order, and we may
confuse the two distinct questions: 'To whom does the law
apply?' and 'To whom has it been published?'
Besides the introduction of the feature of generality a more
fundamental change must be made in the gunman situation
if we are to have a plausible model of the situation where
there is law. It is true there is a sense in which the gunman
has an ascendancy or superiority over the bank clerk; it lies
LAWS, COMMANDS, AND ORDERS
23
in his temporary ability to make a threat, which might well
be sufficient to make the bank clerk do the particular thing he
is told to do. There is no other form of relationship of super
iority and inferiority between the two men except this short
lived coercive one. But for the gunman's purposes this may
be enough; for the simple face-to-face order 'Hand over those
notes or I'll shoot' dies with the occasion. The gunman does
not issue to the bank clerk (though he may to his gang of
followers) standing orders to be followed time after time by classes
of persons. Yet laws pre-eminently have this 'standing' or
persistent characteristic. Hence if we are to use the notion of
orders backed by threats as explaining what laws are, we
must endeavour to reproduce this enduring character which
laws have.
We must therefore suppose that there is a general belief on
the part of those to whom the general orders apply that dis
obedience is likely to be followed by the execution of the threat
not only on the first promulgation of the order, but continu
ously until the order is withdrawn or cancelled. This con
tinuing belief in the consequences of disobedience may be
said to keep the original orders alive or 'standing', though as
we shall see later there is difficulty in analysing the persistent
quality of laws in these simple terms. Of course the concur
rence of many factors which could not be reproduced in the
gunman situation may, in fact, be required if such a general
belief in the continuing likelihood of the execution ofthe threat | Clarendon |
is to exist: it may be that the power to carry out threats
attached to such standing orders affecting large numbers of
persons could only in fact exist, and would only be thought
to exist, if it was known that some considerable number of
the population were prepared both themselves to obey volun
tarily, i.e. independently offear of the threat, and to co-operate
in the execution of the threats on those who disobeyed.
Whatever the basis of this general belief in the likelihood
of the execution of the threats, we must distinguish from it a
further necessary feature which we must add to the gunman
situation if it is to approximate to the settled situation in which
there is law. We must suppose that, whatever the motive,
most of the orders are more often obeyed than disobeyed by
most ofthose affected. We shall call this here, following Austin,
LAWS, COMMANDS, AND ORDERS
'a general habit of obedience' and note, with him, that like
many other aspects oflaw it is an essentially vague or imprecise
notion. The question how many people must obey how many
such general orders, and for how long, if there is to be law,
no more admits of definite answers than the question how few
hairs must a man have to be bald. Yet in this fact of general
obedience lies a crucial distinction between laws and the
original simple case of the gunman's order. Mere temporary
ascendancy of one person over another is naturally thought of
as the polar opposite of law, with its relatively enduring and
settled character, and, indeed, in most legal systems to exercise
such short-tenn coercive power as the gunman has would con
stitute a criminal offence. It remains indeed to be seen whether
this simple, though admittedly vague, notion of general ha
bitual obedience to general orders backed by threats is really
enough to reproduce the settled character and continuity which
legal systems possess.
The concept of general orders backed by threats given by
one generally obeyed, which we have constructed by succes
sive additions to the simple situation of the gunman case,
plainly approximates closer to a penal statute enacted by the
legislature of a modern state than to any other variety of law.
For there are types of law which seem prima facie very unlike
such penal statutes, and we shall have later to consider the
claim that these other varieties of law also, in spite of appear
ances to the contrary, are really just complicated or disguised
versions of this same form. But if we are to reproduce the fea
tures of even a penal statute in our constructed model of gen
eral orders generally obeyed, something more must be said
about the person who gives the orders. The legal system of a
modern state is characterized by a certain kind of supremacy
within its territory and independence of other systems which
we have not yet reproduced in our simple model. These two
notions are not as simple as they may appear, but what, on
a common-sense view (which may not prove adequate) is
essential to them, may be expressed as follows. English law,
French law, and the law of any modern country regulates
the conduct of populations inhabiting territories with fairly
well-defined geographical limits. Within the territory of
each country there may be many different persons or bodies of
LAWS, COMMANDS, AND ORDERS
25
persons giving general orders backed by threats and receiv
ing habitual obedience. But we should distinguish some of
these persons or bodies (e.g. the LCC or a minister exercising
what we term powers of delegated legislation) as subordinate
lawmakers in contrast to the Queen in Parliament who is
supreme. We cari express this relationship in the simple
terminology of habits by saying that whereas the Queen in | Clarendon |
Parliament in making laws obeys no one habitually, the sub
ordinate lawmakers keep within limits statutorily prescribed
and so may be said in making law to be agents of the Queen
in Parliament. If they did not do so we should not have one
system of law in England but a plurality of systems; whereas
in fact just because the Queen in Parliament is supreme in
relation to all within the territory in this sense and the other
bodies are not, we have in England a single system in which
we can distinguish a hierarchy of supreme and subordinate
elements.
The same negative characterization of the Queen in Parlia
ment, as not habitually obeying the orders of others, roughly
defines the notion of independence which we use in speaking of
the separate legal systems of different countries. The supreme
legislature of the Soviet Union is not in the habit of obeying
the Queen in Parliament, and whatever the latter enacted
about Soviet affairs (though it would constitute part of the
law of England) would not form part ofthe law ofthe USSR.
It would do so only if the Queen in Parliament were habitu
ally obeyed by the legislature of the USSR.
On this simple account of the matter, which we shall later
have to examine critically, there must, wherever there is a
legal system, be some persons or body of persons issuing
general orders backed by threats which are generally obeyed,
and it must be generally believed that these threats are likely
to be implemented in the event of disobedience. This person
or body must be internally supreme and externally independ
ent. If, following Austin, we call such a supreme and inde
pendent person or body of persons the sovereign, the laws of
any country will be the general orders backed by threats which
are issued either by the sovereign or subordinates in obedi
ence to the sovereign.
III
THE VARIETY OF LAWS
I F we compare the varieties of different kinds of law to be
found in a modern system such as English Law with the
simple model of coercive orders constructed in the last chap
ter, a crowd of objections leap to mind. Surely not all laws
order people to do or not to do things. Is it not misleading so
to classify laws which confer powers on private individuals
to make wills, contracts, or marriages, and laws which give
powers to officials, e.g. to a judge to try cases, to a minister
to make rules, or a county council to make by-laws? Surely
not all laws are enacted nor are they all the expression of
someone's desire like the general orders of our model. This
seems untrue of custom which has a genuine though modest
place in most legal systems. Surely laws, even when they are
statutes deliberately made, need not be orders given only to
others. Do not statutes often bind the legislators themselves?
Finally, must enacted laws to be laws really express any leg
islator's actual desires, intentions, or wishes? Would an en
actment duly passed not be law if (as must be the case with
many a section of an English Finance Act) those who voted
for it did not know what it meant?
These are some of the most important of many possible
objections. Plainly some modification of the original simple
model will be necessary to deal with them and; when they
have all been accommodated, we may find that the notion of
general orders backed by threats has been transformed out of
recognition.
The objections we have mentioned fall into three maip.
groups. Some of them concern the content of laws, others/their
mode if origin, and others again their range if application;"Alllegal
systems, at any rate, seem to contain laws whjch in respect of
one or more of these three matters diverge from the model of
general orders which we have set up. In the rest of this chapter | Clarendon |
we shall consider separately these three types of objection. We
shall leave to the next chapter a more fundamental criticism
THE VARIETY OF LAWS
27
that apart from these objections on the score of content, mode
of origin, and range of application, the whole conception of
a supreme and independent sovereign habitually obeyed, on
which the model rests, is misleading, since there is little in
any actual legal system which corresponds to it.
I. THE CONTENT OF LAWS
The criminal law is something which we either obey or dis
obey and what its rules require is spoken of as a 'duty'. If we
disobey we are said to 'break' the law and what we have done
is legally 'wrong', a 'breach of duty', or an 'offence'. The
social function which a criminal statute performs is that of
setting up and defining certain kinds of conduct as something
to be avoided or done by those to whom it applies, irrespec
tive of their wishes. The punishment or 'sanction' which is
attached by the law to breaches or violations of the criminal
law is (whatever other purpose punishment may serve) in
tended to provide one motive for abstaining from these activ
ities. In all these respects there is at least a strong analogy
between the criminal law and its sanctions and the general
orders backed by threats of our model. There is some analogy
(notwithstanding many important differences) between such
general orders and the law of torts, the primary aim of which
is to provide individuals with compensation for harm suffered
as the result of the conduct of others. Here too the rules
which determine what types of conduct constitute actionable
wrongs are spoken of as imposing on persons, irrespective of
their wishes, 'duties' (or more rarely 'obligations') to abstain
from such conduct. This conduct is itself termed a 'breach of
duty' and the compensation or other legal remedies a 'sanc
tion'. But there are important classes of law where this anal
ogy with orders backed by threats altogether fails, since they
perform a quite different social function. Legal rules defining
the ways in which valid contracts or wills or marriages are
made do not require persons to act in certain ways whether
they wish to or not. Such laws do not impose duties or obli
gations. Instead, they provide individuals with facilities for
realizing their wishes, by conferring legal powers upon them
to create, by certain specified procedures and subject to certain
THE VARIETY OF LAWS
conditions, structures of rights and duties within the coercive
framework of the law.
The power thus conferred on individuals to mould their
legal relations with others by contracts, wills, marriages, &c.,
is one of the great contributions of law to social life; and it is
a feature of law obscured by representing all law as a matter
of orders backed by threats. The radical difference in function
between laws that confer such powers and the criminal stat
ute is reflected in much of our normal ways of speaking about
this class oflaws. We may or may not 'comply' in making our
will with the provision ofs. g ofthe Wills Act, 1837, as to the
number of witnesses. If we do not comply the document we
have made will not be a 'valid' will creating rights and duties;
it will be a 'nullity' without legal 'force' or 'effect'. But, though
it is a nullity our failure to comply with the statutory provi
sion is not a 'breach' or a 'violation' of any obligation or duty
nor an 'offence' and it would be confusing to think of it in
such terms.
If we look into the various legal rules that confer legal
powers on private individuals we find that these themselves
fall into distinguishable kinds. Thus behind the power to make
wills or contracts are rules relating to capacity or minimum | Clarendon |
personal qualification (such as being adult or sane) which
those exercising the power must possess. Other rules detail
the manner and form in which the power is to be exercised,
and settle whether wills or contracts may be made orally or
in writing, and if in writing the form of execution and attes
tation. Other rules delimit the variety, or maximum or min
imum duration, of the structure of rights and duties which
individuals may create by such acts-in-the-law. Examples of
such rules are those of public policy in relation to contract, or
the rules against accumulations in wills or settlements.
We shall consider later the attempts made by jurists to
assimilate those laws which provide facilities or powers and
say, 'If you wish to do this, this is the way to do it' to the
criminal laws which, like orders backed by threats, say, 'Do
this whether you wish to or not.' Here, however, we shall
consider a further class of laws which also confer legal powers
but, in contrast to those just discussed, the powers are of a
public or official rather than a private nature. Examples of
THE VARIETY OF LAWS
29
these are to be found in all the three departments, judicial,
legislative, and administrative, into which government is cus
tomarily though vaguely divided.
Consider first those laws which lie behind the operation of
a law court. In the case of a court some rules specify the
subject-matter and content of the judge's jurisdiction or, as
we say, give him 'power to try' certain types of case. Other
rules specify the manner of appointment, the qualifications
for, and tenure of judicial office. Others again will lay down
canons of correct judicial behaviour and determine the pro
cedure to be followed in the court. Examples of such rules,
forming something like a judicial code, are to be found in the
County Courts Act, I 959, the Court of Criminal Appeal Act,
I907, or Title 28 of the United StatesCode. It is salutary to
observe the variety of provisions made in these statutes for
the constitution and normal operation of a law court. Few of
these seem at first sight to be orders given to the judge to do
or abstain from doing anything; for though of course there is
no reason why the law should not also by special rules pro
hibit a judge under penalty from exceeding his jurisdiction or
trying a case in which he has a financial interest, these rules
imposing such legal duties would be additional to those con
ferring judicial powers on him and defining his jurisdiction.
For the concern of rules conferring such powers is not to
deter judges from improprieties but to define the conditions
and limits under which the court's decisions shall be valid.
It is instructive to examine in a little detail a typical pro
vision specifying the extent of a court's jurisdiction. We may
take as a very simple example the section ofthe County Courts
Act, I 959, as amended, which confers jurisdiction on the
county courts to try actions for the recovery of land. Its lan
guage which is very remote from that of 'orders', is as follows:
A county court shall have jurisdiction to hear and determine any
action for the recovery of land where the net annual value for rating
of the land in question does not exceed one hundred pounds. 1
If a county court judge exceeds his jurisdiction by trying a
case for the recovery of land with an annual value greater
' Section 48 (1).
THE VARIETY OF LAWS
30
than £100 and makes an order concerning such land, neither
he nor the parties to the action commit an rif.fence. Yet the
position is not quite like that which arises when a private
person does something which is a 'nullity' for lack of compli | Clarendon |
ance with some condition essential for the valid exercise of
some legal power. If a would- be testator omits to sign or
obtain two witnesses to his will, what he writes has no legal
status or effect. A court's order is not, however, treated in this
way even if it is plainly one outside the jurisdiction of the
court to make. It is obviously in the interests of public order
that a court's decision should have legal authority until a
superior court certifies its invalidity, even if it is one which
the court should not legally have given. Hence, until it is set
aside on appeal as an order given in excess of jurisdiction, it
stands as a legally effective order between the parties which
will be enforced. But it has a legal defect: it is liable to be set
aside or 'quashed' on appeal because of the lack of jurisdic
tion. It is to be noted that there is an important difference
between what is ordinarily spoken of in England as a 're
versal' by a superior court of an inferior court's order and the
'quashing' of an order for lack of jurisdiction. If an order is
reversed, it is because what the lower court has said either
about the law applicable to the case or the facts, is considered
wrong. But an order of the lower court which is quashed for
lack of jurisdiction may be impeccable in both these respects.
It is not what the judge in the lower court has said or ordered
that is wrong, but his saying or ordering of it. He has pur
ported to do something which he is not legally empowered to
do though other courts may be so empowered. But for the
complication that, in the interests of public order a decision
given in excess of jurisdiction stands till quashed by a su
perior court, conformity or failure to conform to rules of
jurisdiction is like conformity and failure to conform to rules
defining the conditions for the valid exercise of legal powers
by private individuals. The relationship between the con
forming action and the rule is ill-conveyed by the words 'obey'
and 'disobey', which are more apposite in the case of the
criminal law where the rules are analogous to orders.
A statute conferring legislative power on a subordinate legis
lative authority similarly exemplifies a type of legal rule that
THE VARIETY OF LAWS
31
cannot, except at the cost of distortion, be assimilated to a
general order. Here too, as in the exercise of private powers,
conformity with the conditions specified by the rules con
ferring the legislative powers is a step which is like a 'move'
in a game such as chess; it has consequences definable in
terms ofthe rules, which the system enables persons to achieve.
Legislation is an exercise of legal powers 'operative' or effec
tive in creating legal rights and duties. Failure to conform to
the conditions of the enabling rule makes what is done in
effective and so a nullity for this purpose.
The rules which lie behind the exercise of legislative pow
ers are themselves even more various than those which lie
behind the jurisdiction of a court, for provision must be made
by them for many different aspects of legislation. Thus some
rules specify the subject-matter over which the legislative
power may be exercised; others the qualifications or identity
of the members of the legislative body; others the manner and
form of legislation and the procedure to be followed by the
legislature. These are only a few of the relevant matters; a
glance at any enactment such as the Municipal Corporations
Act, 1882, conferring and defining the powers of an inferior
legislature or rule-making body will reveal many more. The
Consequence of failure to conform to such rules may not al | Clarendon |
ways be the same, but there will always be some rules, failure
to conform to which renders a purported exercise of legisla
tive power a nullity or, like the decision of an inferior court,
liable to be declared invalid. Sometimes a certificate that the
required procedures have been followed may by law be made
conclusive as to matters of internal procedure, and sometimes
persons not qualified under the rules, who participate in leg
islative proceedings, may be liable to a penalty under special
criminal rules making this an offence. But, though partly
hidden by these complications, there is a radical difference
between rules conferring and defining the manner of exercise
of legislative powers and the rules of criminal law, which at
least resemble orders backed by threats.
In some cases it would be grotesque to assimilate these two
broad types of rule. If a measure before a legislative body
obtains the required majority of votes and is thus duly passed,
the voters in favour of the measure have not 'obeyed' the law
32
THE VARIETY OF LAWS
requiring a majority decision nor have those who voted against
it either obeyed or disobeyed it: the same is of course true if
the measure fails to obtain the required majority and so no
law is passed. The radical difference in function between such
rules as these prevents the use here of the terminology appro
priate to conduct in its relation to rules of the criminal law.
A full detailed taxonomy of the varieties of law comprised
in a modern legal system, free from the prejudice that all must
be reducible to a single simple type, still remains to be ac
complished. In distinguishing certain laws under the very
rough head oflaws that confer powers from those that impose
duties and are analogous to orders backed by threats, we
have made only a beginning. But perhaps enough has been
done to show that some of the distinctive features of a legal
system lie in the provision it makes, by rules of this type, for
the exercise of private and public legal powers. If such rules
of this distinctive kind did not exist we should lack some of
the most familiar concepts of social life, since these logically
presuppose the existence of such rules. Just as there could be
no crimes or offences and so no murders or thefts if there
were no criminal laws of the mandatory kind which do re
semble orders backed by threats, so there could be no buying,
selling, gifts, wills, or marriages if there were no power
conferring rules; for these latter things, like the orders of courts
and the enactments of law-making bodies, just consist in the
valid exercise of legal powers.
Nevertheless the itch for uniformity in jurisprudence is
strong: and since it is by no means disreputable, we must
consider two alternative arguments in favour of it which have
been sponsored by great jurists. These arguments are de
signed to show that the distinction between varieties of law
which we have stressed is superficial, if not unreal, and that
'ultimately' the notion of orders backed by threats is adequate
for the analysis of rules conferring powers as well as for the
rules of criminal law. As with most theories which have per
sisted long in jurisprudence there is an element of truth in
these arguments. There certainly are points of resemblance
between the legal rules of the two sorts which we have distin
guished. In both cases actions may be criticized or assessed
by reference to the rules as legally the 'right' or 'wrong' thing
THE VARIETY OF LAWS
33
to do. Both the power-conferring rules concerning the making
of a will and the rule of criminal law prohibiting assault
under penalty constitute standards by which particular actions | Clarendon |
may be thus critically appraised. So much is perhaps implied
in speaking of them both as rules. Further it is important to
realize that rules of the power-conferring sort, though differ
ent from rules which impose duties and so have some analogy
to orders backed by threats, are always related to such rules;
for the powers which they confer are powers to make general
rules of the latter sort or to impose duties on particular per
sons who would otherwise not be subject to them. This is
most obviously the case when the power conferred is what
would ordinarily be termed a power to legislate. But, as we
shall see, it is also true in the case of other legal powers. It
might be said, at the cost of some inaccuracy, that whereas
rules like those of the criminal law impose duties, power
conferring rules are recipes for creating duties.
Nullity as a sanction
The first argument, designed to show the fundamental iden
tity of the two sorts of rule and to exhibit both as coercive
orders, fastens on the 'nullity' which ensues when some es
sential condition for the exercise of the power is not fulfilled.
This, it is urged, is like the punishment attached to the crim
inal law, a threatened evil or sanction exacted by law for
breach of the rule; though it is conceded that in certain cases
this sanction may only amount to a slight inconvenience. It
is in this light that we are invited to view the case of one who
seeks to enforce by law, as contractually binding, a promise
made to him, and finds, to his chagrin, that, since it is not
under seal and he gave no consideration for the promise, the
written promise is legally a nullity. Similarly we are to think
of the rule providing that a will without two witnesses will be
inoperative, as moving testators to compliance with s. 9 of the
Wills Act, just as we are moved to obedience to the criminal
law by the thought of imprisonment.
No one could deny that there are, in some cases, these
associations between nullity and such psychological factors
as disappointment of the hope that a transaction will be
valid. None the less the extension of the idea of a sanction
THE VARIETY OF LAWS
34
to include nullity is a source (and a sign) of confusion. Some
minor objections to it are well known. Thus, in many cases,
nullity may not be an 'evil' to the person who has failed to
satisfy some condition required for legal validity. A judge
may have no material interest in and may be indifferent to
the validity of his order; a party who finds that the contract
on which he is sued is not binding on him, because he was
under age or did not sign the memorandum in writing re
quired for certain contracts, might not recognize here a
'threatened evil' or 'sanction'. But apart from these trivial
ities, which might be accommodated with some ingenuity,
nullity cannot, for more important reasons, be assimilated to
a punishment attached to a rule as an inducement to abstain
from the activities which the rule forbids. In the case of a rule
of criminal law we can identify and distinguish two things: a
certain type of conduct which the rule prohibits, and a sanc
tion intended to discourage it. But how could we consider in
this light such desirable social activities as men making each
other promises which do not satisfy legal requirements as to
form? This is not like the conduct discouraged by the criminal
law, something which the legal rules stipulating legal forms
for contracts are designed to suppress. The rules merely with
hold legal recognition from them. Even more absurd is it to
regard as a sanction the fact that a legislative measure, if it | Clarendon |
does not obtain the required majority, fails to attain the sta
tus of a law. To assimilate this fact to the sanctions of the
criminal law would be like thinking of the scoring rules of a
game as designed to eliminate all moves except the kicking of
goals or the making of runs. This, if successful, would be the
end of all games; yet only if we think of power-conferring
rules as designed to make people behave in certain ways and
as adding 'nullity' as a motive for obedience, can we assim
ilate such rules to orders backed by threats.
The confusion inherent in thinking of nullity as similar to
the threatened evil or sanctions of the criminal law may be
brought out in another form. In the case of the rules of the
criminal law, it is logically possible and might be desirable
that there should be such rules even. though no punishment
or other evil were threatened. It may of course be argued that
in that case they would not be legal rules; none the less, we
THE VARIETY OF LAWS
35
can distinguish clearly the rule prohibiting certain behaviour
from the provision for penalties to be exacted if the rule is
broken, and suppose the first to exist without the latter. We
can, in a sense, subtract the sanction and still leave an intel
ligible standard of behaviour which it was designed to main
tain. But we cannot logically make such a distinction between
the rule requiring compliance with certain conditions, e.g.
attestation for a valid will, and the so-called sanction of
'nullity'. In this case, if failure to comply with this essential
condition did not entail nullity, the rule itself could not be
intelligibly said to exist without sanctions even as a non-legal
rule. The provision for nullity is part of this type of rule itself
in a way which punishment attached to a rule imposing duties
is not. If failure to get the ball between the posts did not
mean the 'nullity' of not scoring, the scoring rules could not
be said to exist.
The argument which we have here criticized is an attempt
to show the fundamental identity of power-conferring rules
with coercive orders by widening the meaning of a sanction or
threatened evil, so as to include the nullity of a legal trans
action when it is vitiated by non-compliance with such rules.
The second argument which we shall consider takes a differ
ent, indeed an opposite, line. Instead of attempting to show
that these rules are a species of coercive orders, it denies them
the status of 'law'. To exclude them it narrows the meaning of
the word 'law'. The general form of this argument, which
appears in a more or less extreme form in different jurists,
is to assert that what are loosely or in popular modes of
expression referred to as complete rules of law, are really
incomplete fragments of coercive rules which are the only
'genuine' rules of law.
Power-conferring rules as fragments qf laws
In its extreme form this argument would deny that even the
rules of the criminal law, in the words in which they are often
stated, are genuine laws. It is in this form that the argument
is adopted by Kelsen: 'Law is the primary norm which stipu
lates the sanction'.' There is no law prohibiting murder: there
' General Theory rif Law and State, p. 6g. See above, p. 2.
THE VARIETY OF LAWS
is only a law directing officials to apply certain sanctions in
certain circumstances to those who do murder. On this view,
what is ordinarily thought of as the content of law, designed
to guide the conduct of ordinary citizens, is merely the ante
cedent or 'if-clause' in a rule which is directed not to them
but to officials, and orders them to apply certain sanctions if
certain conditions are satisfied. All genuine laws, on this view, | Clarendon |
are conditional orders to officials to apply sanctions. They are
all of the form, 'If anything of a kind X is done or omitted or
happens, then apply sanction of a kind Y.'
By greater and greater elaboration of the antecedent or if
clauses, legal rules of every type, including the rules confer
ring and defining the manner of exercise of private or public
powers, can be restated in this conditional form. Thus, the
provisions of the Wills Act requiring two . witnesses would
appear as a common part of many different directions to courts
to apply sanctions to an executor who, in breach of the pro
visions of the will, refuses to pay the legacies: 'if and only if
there is a will duly witnessed containing these provisions and
if ... then sanctions must be applied to him.' Similarly, a
rule specifying the extent of a court's jurisdiction would ap
pear as a common part of the conditions to be satisfied before
it applies any sanctions. So too, the rules conferring legisla
tive powers and defining the manner and form of legislation
(including the provisions of a constitution concerning the su
preme legislature) can also be restated and exhibited as spec
ifying certain common conditions on the fulfilment of which
(among others) the courts are to apply the sanctions men
tioned in the statutes. Thus, the theory bids us disentangle
the substance from the obscuring forms; then we shall see
that constitutional forms such as 'what the Queen in Parlia
ment enacts is law', or the provisions of the American consti
tution as to the law-making power of Congress, merely specify
the general conditions under which courts are to apply sanc
tions. These forms are essentially 'if-clauses', not complete
rules: 'lf the Queen in Parliament has so enacted ... ' or 'if
Congress within the limits specified in the Constitution has so
enacted ... ' are forms of conditions common to a vast number
of directions to courts to apply sanctions or punish certain
types of conduct.
THE VARIETY OF LAWS
37
This is a formidable and interesting theory, purporting to
disclose the true, uniform nature oflaw latent beneath a variety
of common forms and expressions which obscure it. Before
we consider its defects it is to be observed that, in this ex
treme form, the theory involves a shift from the original con
ception of law as consisting of orders backed by threats of
sanctions which are to be exacted when the orders are dis
obeyed. Instead, the central conception now is that of orders
to officials to apply sanctions. On this view it is not necessary
that a sanction be prescribed for the breach of every law; it is
only necessary that every 'genuine' law shall direct the appli
cation of some sanction. So it may well be the case that an
official who disregards such directions will not be punishable;
and of course this is in fact often the case in many legal
systems.
This general theory may, as we have said, take one of two
forms, one less extreme than the other. In the less extreme
form the original conception of law (which many find intui
tively more acceptable) as orders backed by threats directed
to ordinary citizens, among others, is preserved at least for
those rules that, on a common-sense view, refer primarily to
the conduct of ordinary citizens, and not merely to officials.
The rules of the criminal law, on this more moderate view,
are laws as they stand, and need no recasting as fragments of
other complete rules; for they are already orders backed by
threats. Recasting is, however, needed in other cases. Rules
which confer legal powers on private individuals are, for this
as for the more extreme theory, mere fragments of the real | Clarendon |
complete laws-the orders backed by threats. These last are
to be discovered by asking: what persons does the law order
to do things, subject to a penalty if they do not comply?
When this is known the provisions of such rules as those of
the Wills Act, I 837, in relation to witnesses, and other rules
conferring on individuals powers and defining the conditions
for valid exercise of them, may be recast as specifying some
of the conditions under which ultimately such a legal duty
arises. They will then appear as part of the antecedent or
'if-clause' of conditional orders backed by threats or rules
imposing duties. 'If and only if a will has been signed by the
testator and witnessed by two witnesses in the specified manner
THE VARIETY OF LAWS
and if. .. then the executor (or other legal representative)
shall give effect to the provisions of the will.' Rules relating
to the formation of contract will similarly appear as mere
fragments of rules ordering persons, if certain things are the
case or have been said or done (if the party is of full age, has
covenanted under seal or been promised consideration) to do
the things which by the contract are to be done.
A recasting of rules conferring legislative powers (including
the provisions of a constitution as to the supreme legislature),
so as to represent them as fragments of the 'real' rules, may
be carried through along the lines similar to those explained
on page 36 in the case of the more extreme version of this
theory. The only difference is that on the more moderate view
the power-conferring rules are represented by the antecedents
or if-clauses of rules ordering ordinary citizens, under threat
of sanctions, to do things and not merely (as in the more
extreme theory) as the if-clauses of directions to officials to
apply sanctions.
Both versions of this theory attempt to reduce apparently
distinct varieties of legal rule to a single form alleged to con
vey the quintessence of law. Both, in different ways, make the
sanction a centrally important element, and both will fail if it
is shown that law without sanctions is perfectly conceivable.
This general objection must be, however, left till later. The
specific criticism of both forms of the theory which we shall
develop here is that they purchase the pleasing uniformity of
pattern to which they reduce all laws at too high a price: that
of distorting the different social functions which different types
of legal rule perform. This is true of both forms of the theory,
but is most evident in the recasting of the criminal law de
manded by the theory in its more extreme form.
Distortion as the price of uniformity
The distortion effected by this recasting is worth considering
for it illuminates many different aspects of law. There are
many techniques by which society may be controlled, but the
characteristic technique of the criminal law is to designate by
rules certain types of behaviour as standards for the guidance
either of the members of society as a whole or of special classes
within it: they are expected without the aid or intervention of
THE VARIETY OF LAWS
39
officials to understand the rules and to see that the rules apply
to them and to conform to them. Only when the law is broken,
and this primary function of the law fails, are officials con
cerned to identify the fact of breach and impose the threatened
sanctions. What is distinctive of this technique, as compared
with individuated face-to-face orders which an official, like a
policeman on traffic duty, might give to a motorist, is that
the members of society are left to discover the rules and con
form their behaviour to them; in this sense they 'apply' the
rules themselves to themselves, though they are provided with | Clarendon |
a motive for conformity in the sanction added to the rule.
Plainly we shall conceal the characteristic way in which such
rules function if we concentrate on, or make primary, the rules
requiring the courts to impose the sanctions in the event of
disobedience; for these latter rules make provision for the
breakdown or failure of the primary purpose of the system.
They may indeed be indispensable but they are ancillary.
The idea that the substantive rules of the criminal law have
as their function (and, in a broad sense, their meaning) the
guidance not merely of officials operating a system of penalties,
but of ordinary citizens in the activities of non-official life,
cannot be eliminated without jettisoning cardinal distinctions
and obscuring the specific character of law as a means of
social control. A punishment for a crime, such as a fine, is not
the same as a tax on a course of conduct, though both involve
directions to officials to inflict the same money loss. What dif
ferentiates these ideas is that the first involves, as the second
does not, an offence or breach of duty in the form of a violation
of a rule set up to guide the conduct of ordinary citizens. It
is true that this generally clear distinction may in certain cir
cumstances be blurred. Taxes may be imposed not for revenue
purposes but to discourage the activities taxed, though the
law gives no express indications that these are to be abandoned
as it does when it 'makes them criminal'. Conversely the fines
payable for some criminal offence may, because ofthe depreci
ation of money, become so small that they are cheerfully paid.
They are then perhaps felt to be 'mere taxes', and 'offences'
are frequent, precisely because in these circumstances the
sense is lost that the rule is, like the bulk of the criminal law,
meant to be taken seriously as a standard of behaviour.
THE VARIETY OF LAWS
It is sometimes urged in favour of theories like the one
under consideration that, by recasting the law in a form of a
direction to apply sanctions, an advance in clarity is made,
since this form makes plain all that the 'bad man' wants to
know about the law. This may be true but it seems an inad
equate defence for the theory. Why should not law be equally
if not more concerned with the 'puzzled man' or 'ignorant
man' who is willing to do what is required, if only he can be
told what it is? Or with the 'man who wishes to arrange his
affairs' if only he can be told how to do it? It is of course very
important, if we are to understand the law, to see how the
courts administer it when they come to apply its sanctions.
But this should not lead us to think that all there is to under
stand is what happens in courts. The principal functions of
the law as a means of social control are not to be seen in
private litigation or prosecutions, which represent vital but
still ancillary provisions for the failures of the system. It is to
be seen in the diverse ways in which the law is used to con
trol, to guide, and to plan life out of court.
We may compare the inversion of ancillary and principal,
which this extreme form of the theory makes, to the following
suggestion for recasting the rules of a game. A theorist, con
sidering the rules of cricket or baseball, might claim that he
had discovered a uniformity hidden by the terminology of the
rules and by the conventional claim that some were primarily
addressed to players, some primarily to officials (umpire and
scorer), some to both. 'All rules', the theorist might claim,
'are really rules directing officials to do certain things under
certain conditions.' The rules that certain motions after hitting
the ball constitute a 'run', or that being caught makes a man | Clarendon |
'out', are really just complex directions to officials; in the one
case to the scorer to write down 'a run' in the scoring- book
and in the other to the umpire to order the man 'offthe field'.
The natural protest is that the uniformity imposed on the
rules by this transformation of them conceals the ways in
which the rules operate, and the manner in which the players
use them in guiding purposive activities, and so obscures their
function in the co-operative, though competitive, social enter
prise which is the game.
The less extreme form of the theory would leave the criminal
THE VARIETY OF LAWS
41
law and all other laws which impose duties untouched, since
these already conform to the simple model of coercive orders.
But it would reduce all rules conferring and defining the man
ner of exercise of legal powers to this single form. It is open
here to the same criticism as the extreme form of the theory.
If we look at all law simply from the point of view of the
persons on whom its duties are imposed, and reduce all other
aspects of it to the status of more or less elaborate conditions
in which duties fall on them, we treat as something merely
subordinate, elements which are at least as characteristic of
law and as valuable to society as duty. Rules conferring private
powers must, if they are to be understood, be looked at from
the point of view of those who exercise them. They appear
then as an additional element introduced by the law into
social life over and above that of coercive control. This is so
because possession of these legal powers makes of the private
citizen, who, if there were no such rules, would be a mere
duty- bearer, a private legislator. He is made competent to
determine the course of the law within the sphere of his
contracts, trusts, wills, and other structures of rights and duties
which he is enabled to build. Why should rules which are
used in this special way, and confer this huge and distinctive
amenity, not be recognized as distinct from rules which im
pose duties, the incidence of which is indeed in part deter
mined by the exercise of such powers? Such power-conferring
rules are thought of, spoken of, and used in social life differ
ently from rules which impose duties, and they are valued for
different reasons. What other tests for difference in character
could there be?
The reduction of rules conferring and defining legislative
and judicial powers to statements of the conditions under
which duties arise has, in the public sphere, a similar obscur
ing vice. Those who exercise these powers to make author
itative enactments and orders use these rules in a form of
purposive activity utterly different from performance of duty
or submission to coercive control. To represent such rules as
mere aspects or fragments of the rules of duty is, even more
than in the private sphere, to obscure the distinctive charac
teristics of law and of the activities possible within its frame
work. For the introduction into society of rules enabling
42
THE VARIETY OF LAWS
legislators to change and add to the rules of duty, and judges
to determine when the rules of duty have been broken, is a
step forward as important to society as the invention of the
wheel. Not only was it an important step; but it is one which,
as we shall argue in Chapter IV, may fairly be considered as
the step from the pre-legal into the legal world.
2. THE RANGE OF APPLICATION
Plainly a penal statute, of all the varieties of law, approx
imates most closely to the simple model of coercive orders.
Yet even these laws have certain characteristics, examined in
this section, to which the model is apt to blind us, and we | Clarendon |
shall not understand them till we shake off its influence. The
order backed by threats is essentially the expression of a wish
that others should do or abstain from doing certain things. It
is, of course, possible that legislation might take this exclu
sively other-regarding form. An absolute monarch wielding
legislative power may, in certain systems, always be consid
ered exempt from the scope of the laws he makes; and even in
a democratic system laws may be made which do not apply
to those who made them, but only to special classes indicated
in the law. But the range of application of a law is always a
question of its interpretation. It may or may not be found on
interpretation to exclude those who made it, and, of course,
many a law is now made which imposes legal obligations on
the makers of the law. Legislation, as distinct from just order
ing others to do things under threats, may perfectly well have
such a self-binding force. There is nothing essentially other
regarding about it. This is a legal phenomenon which is puzzl
ing only so long as we think, under the influence ofthe model,
of the laws as always laid down by a man or men above the
law for others subjected to it.
This vertical or 'top-to-bottom' image of law-making, so
attractive in its simplicity, is something which can only be
reconciled with the realities by the device of distinguishing
between the legislator in his official capacity as one person
and in his private capacity as another. Acting in the first
capacity he then makes law which imposes obligations on
other persons, including himself in his 'private capacity'. There
is nothing objectionable in these forms of expression, but the
THE VARIETY OF LAWS
43
notion of different capacities, as we shall see in Chapter IV,
is intelligible only in terms of power-conferring rules of law
which cannot be reduced to coercive orders. Meanwhile it is
to be observed that this complicated device is really quite un
necessary; we can explain the self-binding quality of legisla
tive enactment without it. For we have to hand, both in daily
life and in the law, something which will enable us to under
stand it far better. This is the operation of a promise which in
many ways is a far better model than that of coercive orders
for understanding many, though not all, features of law.
To promise is to say something which creates an obligation
for the promisor: in order that words should have this kind of
effect, rules must exist providing that if words are used by
appropriate persons on appropriate occasions (i.e. by sane
persons understanding their position and free from various
sorts of pressure) those who use these words shall be bound
to do the things designated by them. So, when we promise,
we make use of specified procedures to change our own moral
situation by imposing obligations on ourselves and conferring
rights on others; in lawyers' parlance we exercise 'a power'
conferred by rules to do this. It would be indeed possible, but
not helpful, to distinguish two persons 'within' the promisor:
one acting in the capacity of creator of obligations and the
other in the capacity of person bound: and to think of one as
ordering the other to do something.
Equally we can dispense with this device for understanding
the self-binding force of legislation. For the making of a law,
like the making of a promise, presupposes the existence of
certain rules which govern the process: words said or written
by the persons qualified by these rules, and following the pro
cedure specified by them, create obligations for all within the
ambit designated explicitly or implicitly by the words. These
may include those who take part in the legislative process.
| Clarendon |
Of course, though there is this analogy which explains the
self- binding character of legislation, there are many differ
ences between the making of promises and the making of
laws. The rules governing the latter are very much more
complex and the bilateral character of a promise is not present.
There is usually no person in the special position of the
promisee to whom the promise is made and who has a special,
THE VARIETY OF LAWS
44
if not the only, claim to its performance. In these respects
certain other forms of self-imposition of obligation known to
English law, such as that whereby a person declares himself
trustee of property for other persons, offer a closer analogy to
the self- binding aspect of legislation. Yet, in general, making
of law by enactm~nt is something we shall understand best
by considering such private ways of creating particular legal
obligations.
What is most needed as a corrective to the model of coer
cive orders or rules, is a fresh conception of legislation as the
introduction or modification of general standards of behavi
our to be followed by the society generally. The legislator is
not necessarily like the giver of orders to another: someone by
definition outside the reach of what he does. Like the giver of
a promise he exercises powers conferred by rules: very often
he may, as the promisor must, fall within their ambit.
3. MODES OF ORIGIN
So far we have confined our discussion of the varieties of law
to statutes which, in spite of the differences we have empha
sized, have one salient point of analogy with coercive orders.
The enactment of a law, like the giving of an order, is a deliber
ate datable act. Those who take part in legislation consciously
operate a procedure for making law, just as the man who
gives an order consciously uses a form of words to secure re
cognition of, and compliance with, his intentions. Accordingly,
theories which use the model of coercive orders in the analysis
of law make the claim that all law can be seen, if we strip
away the disguises, to have this point of resemblance to legis
lation and to owe its status as law to a deliberate law-creating
act. The type of law which most obviously conflicts with this
claim is custom; but the discussion whether custom is 'really'
law has often been confused by the failure to disentangle two
distinct issues. The first is whether 'custom as such' is law or
not. The meaning and good sense of the denial that custom,
as such, is law lie in the simple truth that, in any society, there
are many customs which form no part of its law. Failure to
take off a hat to a lady is not a breach of any rule of law; it
has no legal status save that of being permitted by law. This
shows that custom is law only if it is one of a class of customs
THE VARIETY OF LAWS
45
which is 'recognized' as law by a particular legal system. The
second issue concerns the meaning of 'legal recognition'. What
is it for a custom to be legally recognized? Does it, as the model
of coercive orders requires, consist in the fact that someone,
perhaps 'the sovereign' or his agent, has ordered the custom
to be obeyed, so that its status as law is due to something
which, in this respect, resembles the act of legislation?
Custom is not in the modern world a very important 'source'
of law. It is usually a subordinate one, in the sense that the
legislature may by statute deprive a customary rule of legal
status; and in many systems the tests which courts apply, in
determining whether a custom is fit for legal recognition,
incorporate such fluid notions as that of'reasonableness' which
provide at least some foundation for the view that in accepting
or rejecting a custom courts are exercising a virtually uncon | Clarendon |
trolled discretion. Even so, to attribute the legal status of a
custom to the fact that a court or the legislature or the sov
ereign has so 'ordered' is to adopt a theory which can only be
carried through if a meaning is given to 'order' so extended
as to rob the theory of its point.
In order to present this doctrine of legal recognition we
must recall the part played by the sovereign in the conception
of law as coercive orders. According to this theory, law is the
order of either the sovereign or of his subordinate whom he
may choose to give orders on his behal£ In the first case law
is made by the order of the sovereign in the most literal sense
of 'order'. In the second case the order given by the subordin
ate will only rank as law if it is, in its own turn, given in
pursuance of some order issued by the sovereign. The sub
ordinate must have some authority delegated by the sovereign
to issue orders on his behalf. Sometimes this may be con
ferred by an express direction to a minister to 'make orders'
on a certain subject-matter. If the theory stopped here, plainly
it could not account for the facts; so it is extended and claims
that sometimes the sovereign may express his will in less
direct fashion. His orders may be 'tacit'; he may, without
giving an express order, signify his intentions that his sub
jects should do certain things, by not interfering when his
subordinates both give orders to his subjects and punish them
for disobedience.
THE VARIETY OF LAWS
A military example may make the idea of a 'tacit order' as
clear as it is possible to make it. A sergeant who himself
regularly obeys his superiors, orders his men to do certain
fatigues and punishes them when they disobey. The general,
learning of this, allows things to go on, though if he had
ordered the sergeant to stop the fatigues he would have been
obeyed. In these circumstances the general may be consid
ered tacitly to have expressed his will that the men should do
the fatigues. His non-interference, when he could have inter
fered, is a silent substitute for the words he might have used
in ordering the fatigues.
It is in this light that we are asked to view customary rules
which have the status of law in a legal system. Till the courts
apply them in particular cases such rules are mere customs, in
no sense law. When the courts use them, and make orders in
accordance with them which are enforced, then for the first
time these rules receive legal recognition. The sovereign who
might have interfered has tacitly ordered his subjects to obey
the judges' orders 'fashioned' on pre-existing custom.
This account of the legal status of custom is open to two
different criticisms. The first is that it is not necessarily "the case
that until they are used in litigation customary rules have no
status as law. The assertion that this is necessarily the case
is either merely dogmatic or fails to distinguish what is nec
essary from what may be the case in certain systems. Why,
if statutes made in certain defined ways are law before they
are applied by the courts in particular cases, should not cus
toms of certain defined kinds also be so? Why should it not
be true that, just as the courts recognize as binding the gen
eral principle that what the legislature enacts is law, they also
recognize as binding another general principle: that customs
of certain defined sorts are law? What absurdity is there in
the contention that, when particular cases arise, courts apply
custom, as they apply statute, as something which is already
law and because it is law? It is, of course, possible that a legal
system should provide that no customary rule should have | Clarendon |
the status of law until the courts, in their uncontrolled dis
cretion, declared that it should. But this would be just one
possibility, which cannot exclude the possibility of systems in
which the courts have no such discretion. How can it establish
THE VARIETY OF LAWS
47
the general contention that a customary rule cannot have the
status of law till applied in court?
The answers made to these objections sometimes reduce to
no more than the reassertion of the dogma that nothing can
be law unless and until it has been ordered by someone to be
so. The suggested parallel between the relationships of courts
to statute and to custom is then rejected on the ground that,
before it is applied by a court, a statute has already been
'ordered' but a custom has not. Less dogmatic arguments are
inadequate because they make too much of the particular
arrangements of particular systems. The fact that in English
law a custom may be rejected by the courts if it fails to pass
the test of 'reasonableness' is sometimes said to show that it
is not law till applied by the courts. This again could at the
most only prove something about custom in English law. Even
this cannot be established, unless it is true, as some claim,
that it is meaningless to distinguish a system in which courts
are only bound to apply certain customary rules if they are
reasonable from a system in which they have an uncontrolled
discretion.
The second criticism of the theory that custom, when it is
law, owes its legal status to the sovereign's tacit order is more
fundamental. Even if it is conceded that it is not law till
enforced by the court in the particular case, is it possible to
treat the failure of the sovereign to interfere as a tacit expres
sion of the wish that the rules should be obeyed? Even in the
very simple military example on page 46 it is not a necessary
inference from the fact that the general did not interfere with
the sergeant's orders that he wished them to be obeyed. He
may merely have wished to placate a valued subordinate and
hoped that the men would find some way of evading the
fatigues. No doubt we might in some cases draw the inference
that he wished the fatigues to be done, but if we did this, a
material part of our evidence would be the fact that the gen
eral knew that the orders had been given, had time to con
sider them, and decided to do nothing. The main objection to
the use of the idea of tacit expressions of the sovereign's will
to explain the legal status of custom is that, in any modern
state, it is rarely possible to ascribe such knowledge, consid
eration and decision not to interfere to the 'sovereign', whether
THE VARIETY OF LAWS
we identify the sovereign with the supreme legislature or the
electorate. It is, of course, true that in most legal systems
custom is a source of law subordinate to statute. This means
that the legislature could take away their legal status; but failure
to do this may not be a sign of the legislator's wishes. Only
very rarely is the attention of a legislature, and still more
rarely that of the electorate, turned to the customary rules
applied by courts. Their non-interference can therefore not be
compared to the general's non-interference with his sergeant;
even if, in his case, we are prepared to infer from it a wish
that his subordinate's orders be obeyed.
In what then does the legal recognition of custom consist?
To what does a customary rule owe its legal status, if it is not
to the order of the court which applied it to a particular case
or to the tacit order of the supreme law-making power? How
can it, like statute, be law before the court applies it? These
questions can only be fully answered when we have scrutin | Clarendon |
ized in detail, as we shall in the next chapter, the doctrine
that, where there is law, there must be some sovereign person
or persons whose general orders, explicit or tacit, alone . are
law. Meanwhile we may summarize the conclusions of this
chapter as follows:
The theory of law as coercive orders meets at the outset
with the objection that there are varieties of law found in all
systems which, in three principal respects, do not fit this
description. First, even a penal statute, which comes nearest
to it, has often a range of application different from that of
orders given to others; for such a law may impose duties on
those who make it as well as on others. Secondly, other stat
utes are unlike orders in that they do not require persons to
do things, but may confer powers on them; they do not im
pose duties but offer facilities for the free creation of legal
rights and duties within the coercive framework of the law.
Thirdly; though the enactment of a statute is in some ways
analogous to the giving of an order, some rules of law origin
ate in custom and do not owe their legal status to any such
conscious law-creating act.
To defend the theory against these objections a variety of
expedients have been adopted. The originally simple idea of
a threat of evil or 'sanction' has been stretched to include the
THE VARIETY OF LAWS
49
nullity of a legal transaction; the notion of a legal rule has
been narrowed so as to exclude rules which confer powers, as
being mere fragments of law; within the single natural person
of the legislator whose enactments are self- binding two per
sons have been discovered; the notion of an order has been
extended from a verbal to a 'tacit' expression of will, consist
ing in non-interference with orders given by subordinates.
Notwithstanding the ingenuity of these devices, the model of
orders backed by threats obscures more of law than it reveals;
the effort to reduce to this single simple form the variety of
laws ends by imposing upon them a spurious uniformity.
Indeed, to look for uniformity here may be a mistake, for, as
we shall argue in Chapter V, a distinguishing, if not the
distinguishing, characteristic of law lies in its fusion of differ
ent types of rule.
IV
SOVEREIGN AND SUBJECT
IN criticizing the simple model of law as coercive orders we
have so far raised no questions concerning the 'sovereign'
person or persons whose general orders constitute, according
to this conception, the law of any society. Indeed in discuss
ing the adequacy of the idea of an order backed by threats as
an account of the different varieties of law, we provisionally
assumed that in any society where there is law, there actually
is a sovereign, characterized affirmatively and negatively by
reference to the habit of obedience: a person or body of per
sons whose orders the great majority of the society habitually
obey and who does not habitually obey any other person or
persons.
We must now consider in some detail this general theory
concerning the foundations of all legal systems; for in spite of
its extreme simplicity the doctrine of sovereignty is nothing
less than this. The doctrine asserts that in every human so
ciety, where there is law, there is ultimately to be found latent
beneath the variety of political forms, in a democracy as much
as in an absolute monarchy, this simple relationship between
subjects rendering habitual obedience and a sovereign who
renders habitual obedience to no one. This vertical structure
composed of sovereign and subjects is, according to the theory,
as essential a part of a society which possesses law, as a back
bone is of a man. Where it is present, we may speak of the | Clarendon |
society, together with its sovereign, as a single independent
state, and we may speak of its law: where it is not present, we
can apply none of these expressions, for the relation of sover
eign and subject forms, according to this theory, part oftheir
very meanmg.
Two points in this doctrine are of special importance and
we shall emphasize them here in general terms in order to
indicate the lines of criticism pursued in detail in the rest of
the chapter. The first concerns the idea of a habit of obedi
ence, which is all that is required on the part of those to
SOVEREIGN AND SUBJECT
51
whom the sovereign's laws apply. Here we shall inquire
whether such a habit is sufficient to account for two salient
features of most legal systems: the continuity of the authority to
make law possessed by a succession of different legislators,
and the persistence of laws long after their maker and those
who rendered him habitual obedience have perished. Our
second point concerns the position occupied by the sovereign
above the law: he creates law for others and so imposes legal
duties or 'limitations' upon them whereas he is said himself
to be legally unlimited and illimitable. Here we shall inquire
whether this legally illimitable status of the supreme lawgiver
is necessary for the existence of law, and whether either the
presence or the absence of legal limits on legislative power
can be understood in the simple terms ofhabit and obedience
into which this theory analyses these notions.
I. THE HABIT OF OBEDIENCE AND THE
CONTINUITY OF LAW
The idea of obedience, like many other apparently simple
ideas used without scrutiny, is not free from complexities. We
shall disregard the complexity already noticed' that the word
'obedience' often suggests deference to authority and not
merely compliance with orders backed by threats. Even so, it
is not easy to state, even in the case of a single order given
face to face by one man to another, precisely what connection
there must be between the giving of the order and the per
formance of the specified act in order that the latter should
constitute obedience. What, for example, is the relevance of
the fact, when it is a fact, that the person ordered would
certainly have done the very same thing without any order?
These difficulties are particularly acute in the case of laws,
some of which prohibit people from doing things which many
of them would never think of doing. Till these difficulties are
settled the whole idea of a 'general habit of obedience' to the
laws of a country must remain somewhat obscure. We may,
however, for our present purposes imagine a very simple case
to which the words 'habit' and 'obedience' would perhaps be
conceded to have a fairly obvious application.
' See p. I 9 above.
52
SOVEREIGN AND SUBJECT
We shall suppose that there is a population living in a
territory in which an absolute monarch (Rex) reigns for a
very long time: he controls his people by general orders backed
by threats requiring them to do various things which they
would not otherwise do, and to abstain from doing things
which they would otherwise do; though there was trouble in
the early years of the reign, things have long since settled
down and, in general, the people can be relied on to obey
him. Since what Rex requires is often onerous, and the temp
tation to disobey and risk the punishment is considerable, it
is hardly to be supposed that the obedience, though generally
rendered, is a 'habit' or 'habitual' in the full sense or most
usual sense of that word. Men can indeed quite literally acquire
the habit of complying with certain laws: driving on the left | Clarendon |
hand side ofthe road is perhaps a paradigm, for Englishmen,
of such an acquired habit. But where the law runs counter to
strong inclinations as, for example, do laws requiring the
payment of taxes, our eventual compliance with them, even
though regular, has not the unreflective, effortless, engrained
character of a habit. None the less, though the obedience
accorded to Rex will often lack this element of habit, it will
have other important ones. To say of a person that he has
habit, e.g. of reading a newspaper at breakfast, entails that he
has for some considerable time past done this and that he is
likely to repeat this behaviour. If so, it will be true of most
people in our imagined community, at any time after the
initial period of trouble, that they have generally obeyed the
orders of Rex and are likely to continue to do so.
It is to be noted that, on this account of the social situation
under Rex, the habit of obedience is a personal relationship
between each subject and Rex: each regularly does what Rex
orders him, among others, to do. If we speak of the population
as 'having such a habit', this, like the assertion that people
habitually frequent the tavern on Saturday nights, will mean
only that the habits of most of the people are convergent:
they each habitually obey Rex, just as they might each ha
bitually go to the tavern on Saturday night.
It is to be observed that in this very simple situation all
that is required from the community to constitute Rex the
sovereign are the personal acts of obedience on the part of the
population. Each of them need, for his part, only obey; and,
SOVEREIGN AND SUBJECT
53
so long as obedience is regularly forthcoming, no one in the
community need have or express any views as to whether his
own or others' obedience to Rex is in any sense right, proper,
or legitimately demanded. Plainly, the society we have de
scribed, in order to give as literal application as possible to
the notion of a habit of obedience, is a very simple one. It is
probably far too simple ever to have existed anywhere, and
it is certainly not a primitive one; for primitive society knows
little of absolute rulers like Rex, and its members are not
usually concerned merely to obey but have pronounced views
as to the rightness of obedience on the part of all concerned.
None the less the community under Rex has certainly some
of the important marks of a society governed by law, at least
during the lifetime of Rex. It has even a certain unity, so that
it may be called 'a state'. This unity is constituted by the fact
that its members obey the same person, even though they
may have no views as to the rightness of doing so.
Let us now suppose that, after a successful reign, Rex dies
leaving a son Rex II who then starts to issue general orders.
The mere fact that there was a general habit of obedience to
Rex I in his lifetime does not by itself even render probable
that Rex II will be habitually obeyed. Hence if we have
nothing more to go on than the fact of obedience to Rex I and
the likelihood that he would continue to be obeyed, we shall
not be able to say of Rex II's first order, as we could have
said of Rex I's last order, that it was given by one who was
sovereign and was therefore law. There is as yet no estab
lished habit of obedience to Rex II. We shall have to wait
and see whether such obedience will be accorded to Rex II,
as it was to his father, before we can say, in accordance with
the theory, that he is now sovereign and his orders are law.
There is nothing to make him sovereign from the start. Only
after we know that his orders have been obeyed for some time | Clarendon |
shall we be able to say that a habit of obedience has been
established. Then, but not till then, we shall be able to say of
any further order that it is already law as soon as it is issued
and before it is obeyed. Till this stage is reached there will be
an interregnum in which no law can be made.
Such a state of affairs is of course possible and has occasion
ally been realized in troubled times: but the dangers of dis
continuity are obvious and not usually courted. Instead, it is
SOVEREIGN AND SUBJECT
54
characteristic of a legal system, even in an absolute mon
archy, to secure the uninterrupted continuity of law-making
power by rules which bridge the transition from one lawgiver
to another: these regulate the succession in advance, naming or
specifying in general terms the qualifications of and mode of
determining the lawgiver. In a modern democracy the quali
fications are highly complex and relate to the composition of
a legislature with a frequently changing membership, but the
essence of the rules required for continuity can be seen in the
simpler forms appropriate to our imaginary monarchy. If
the rule provides for the succession of the eldest son, then
Rex II has a title to succeed his father. He will have the right
to make law on his father's death, and when his first orders
are issued we may have good reason for saying that they are
already law, before any relationship of habitual obedience
between him personally and his subjects has had time to es
tablish itself. Indeed such a relationship may never be estab
lished. Yet his word may be law; for Rex II may himself die
immediately after issuing his first orders; he will not have
lived to receive obedience, yet he may have had the right to
make law and his orders may be law.
In explaining the continuity of law-making power through
a changing succession of individual legislators, it is natural to
use the expressions 'rule of succession', 'title', 'right to suc
ceed', and 'right to make law'. It is plain, however, that with
these expressions we have introduced a new set of elements,
of which no account can be given in terms of habits of obe
dience to general orders, out ofwhich, following the prescrip
tion of the theory of sovereignty, we constructed the simple
legal world of Rex I. For in that world there were no rules,
and so no rights or titles, and hence a fortiori no right or title
to succeed: there were just the facts that orders were given by
Rex I, and his orders were habitually obeyed. To constitute
Rex sovereign during his lifetime and to make his orders law,
no more was needed; but this is not enough to account for his
successor's rights. In fact, the idea of habitual obedience fails,
in two different though related ways, to account for the
continuity to be observed in every normal legal system, when
one legislator succeeds another. First, mere habits of obedi
ence to orders given by one legislator cannot confer on the
SOVEREIGN AND SUBJECT
55
new legislator any right to succeed the old and give orders in
his place. Secondly, habitual obedience to the old lawgiver
cannot by itself render probable, or found any presumption,
that the new legislator's orders will be obeyed. If there is to
be this right and this presumption at the moment of succes
sion there must, during the reign of the earlier legislator,
have been somewhere in the society a general social practice
more complex than any that can be described in terms of
habit of obedience: there must have been the acceptance of
the rule under which the new legislator is entitled to succeed.
What is this more complex practice? What is the accept
ance of a rule? Here we must resume the inquiry already | Clarendon |
outlined in Chapter I. To answer it we must, for the moment,
turn aside from the special case of legal rules. How does a
habit differ from a rule? What is the difference between say
ing of a group that they have the habit, e.g. of going to the
cinema on Saturday nights, and saying that it is the rule with
them that the male head is to be bared on entering a church?
We have already mentioned in Chapter I some of the elements
which must be brought into the analysis of this type of rule,
and here we must pursue the analysis further.
There is certainly one point of similarity between social
rules and habits: in both cases the behaviour in question (e.g.
baring the head in church) must be general though not nec
essarily invariable; this means that it is repeated when occasion
arises by most of the group: so much is, as we have said,
implied in the phrase, 'They do it as a rule.' But though there
is this similarity there are three salient differences.
First, for the group to have a habit it is enough that their
behaviour in fact converges. Deviation from the regular course
need not be a matter for any form of criticism. But such
general convergence or even identity of behaviour is not enough
to constitute the existence of a rule requiring that behaviour:
where there is such a rule deviations are generally regarded
as lapses or faults open to criticism, and threatened devia
tions meet with pressure for conformity, though the forms of
criticism and pressure differ with different types of rule.
Secondly, where there are such rules, not only is such criti
cism in fact made but deviation from the standard is generally
accepted as a good reason for making it. Criticism for deviation
SOVEREIGN AND SUBJECT
s6
is regarded as legitimate or justified in this sense, as are
demands for compliance with the standard when deviation is
threatened. Moreover, except by a minority of hardened of
fenders, such criticism and demands are generally regarded
as legitimate, or made with good reason, both by those who
make them and those to whom they are made. How many of
the group must in these various ways treat the regular mode
of behaviour as a standard of criticism, and how often and for
how long they must do so to warrant the statement that the
group has a rule, are not definite matters; they need not
worry us more than the question as to the number of hairs a
man may have and still be bald. We need only remember
that the statement that a group has a certain rule is compatible
with the existence of a minority who not only break the rule
but refuse to look upon it as a standard either for themselves
or others.
The third feature distinguishing social rules from habits is
implicit in what has already been said, but it is one so impor
tant and so frequently disregarded or misrepresented in
jurisprudence that we shall elaborate it here. It is a feature
which throughout this book we shall call the internal aspect of
rules. When a habit is general in a social group, this gener
ality is merely a fact about the observable behaviour of most
of the group. In order that there should be such a habit no
members of the group need in any way think of the general
behaviour, or even know that the behaviour in question is
general; still less need they strive to teach or intend to main
tain it. It is enough that each for his part behaves in the way
that others also in fact do. By contrast, if a social rule is to
exist some at least must look upon the behaviour in question
as a general standard to be followed by the group as a whole.
A social rule has an 'internal' aspect, in addition to the ex
ternal aspect which it shares with a social habit and which | Clarendon |
consists in the regular uniform behaviour which an observer
could record.
This internal aspect of rules may be simply illustrated from
the rules of any game. Chess players do not merely have
similar habits of moving the Queen in the same way which
an external observer, who knew nothing about their attitude
to the moves which they make, could record. In addition,
SOVEREIGN AND SUBJECT
57
they have a reflective critical attitude to this pattern of be
haviour: they regard it as a standard for all who play the
game. Each not only moves the Queen in a certain way him
self but 'has views' about the propriety of all moving the
Queen in that way. These views are manifested in the criti
cism of others and demands for conformity made upon others
when deviation is actual or threatened, and in the acknow
ledgement of the legitimacy of such criticism and demands
when received from others. For the expression of such criti
cisms, demands, and acknowledgements a wide range of 'nor
mative' language is used. 'I (You) ought not to have moved
the Queen like that', 'I (You) must do that', 'That is right',
'That is wrong'.
The internal aspect of rules is often misrepresented as a
mere matter of 'feelings' in contrast to externally observable
physical behaviour. No doubt, where rules are generally
accepted by a social group and generally supported by social
criticism and pressure for conformity, individuals may often
have psychological experiences analogous to those of restric
tion or compulsion. When they say they 'feel bound' to behave
in certain ways they may indeed refer to these experiences.
But such feelings are neither necessary nor sufficient for the
existence of 'binding' rules. There is no contradiction in say
ing that people accept certain rules but experience no such
feelings of compulsion. What is necessary is that there should
be a critical reflective attitude to certain patterns of behaviour
as a common standard, and that this should display itself in
criticism (including self-criticism), demands for conformity,
and in acknowledgements that such criticism and demands
are justified, all of which find their characteristic expression
in the normative terminology of 'ought', 'must', and 'should',
'right' and 'wrong'.
These are the crucial features which distinguish social rules
from mere group habits, and with them in mind we may
return to the law. We may suppose that our social group has
not only rules which, like that concerning baring the head in
church, makes a specific kind of behaviour standard, but a
rule which provides for the identification of standards of
behaviour in a less direct fashion, by reference to the words,
spoken or written, of a given person. In its simplest form this
SOVEREIGN AND SUBJECT
sB
rule will be to the effect that whatever actions Rex specifies
(perhaps in certain formal ways) are to be done. This trans
forms the situation which we first depicted in terms of mere
habits of obedience to Rex; for where such a rule is accepted
Rex will not only in fact specify what is to be done but will
have the right to do this; and not only will there be general
obedience to his orders, but it will be generally accepted that
it is right to obey him. Rex will in fact be a legislator with the
authority to legislate, i.e. to introduce new standards of be
haviour into the life of the group, and there is no reason,
since we are now concerned with standards, not 'orders', why
he should not be bound by his own legislation.
The social practices which underlie such legislative author
ity will be, in all essentials, the same as those which underlie
the simple direct rules of conduct, like that concerning baring | Clarendon |
the head in church, which we may now distinguish as mere
customary rules, and they will differ in the same way from gen
eral habits. Rex's word will now be a standard of behaviour so
that deviations from the behaviour he designates will be open
to criticism; his word will now generally be referred to and
accepted as justifying criticism and demands for compliance.
In order to see how such rules explain the continuity of
legislative authority, we need only notice that in some cases,
even before a new legislator has begun to legislate, it may be
clear that there is a firmly established rule giving him, as one
of a class or line of persons, the right to do this in his turn.
Thus we may find it generally accepted by the group, during
the lifetime of Rex I, that the person whose word is to be
obeyed is not limited to the individual Rex I but is that
person who, for the time being, is qualified in a certain way,
e.g. as the eldest living descendant in the direct line of a
certain ancestor: Rex I is merely the particular person so
qualified at a particular time. Such a rule, unlike the habit of
obeying Rex I, looks forward, since it refers to future possible
lawgivers as well as the present actual lawgiver.
The acceptance, and so the existence, of such a rule will be
manifested during Rex l's lifetime in part by obedience to him,
but also by acknowledgements that obedience is something to
which he has a right by virtue of his qualification under the
general rule. Just because the scope of a rule accepted at a
SOVEREIGN AND SUBJECT
59
given time by a group may look forward in general terms to
successors in the office of legislator in this way, its acceptance
affords us grounds both for the statement of law that the suc
cessor has a right to legislate, even before he starts to do so,
and for the statement of fact that he is likely to receive the
same obedience as his predecessor does.
Of course, acceptance of a rule by a society at one moment
does not guarantee its continued existence. There may be a
revolution: the society may cease to accept the rule. This may
happen either during the lifetime of one legislator, Rex I, or
at the point of transition to a new one, Rex II, and, if it does
happen, Rex I will lose or Rex II will not acquire, the right
to legislate. It is true that the position may be obscure: there
may be intermediate confused stages, when it is not clear
whether we are faced with a mere insurrection or temporary
interruption of the old rule, or a full-scale effective abandon
ment of it. But in principle the matter is clear. The statement
that a new legislator has a right to legislate presupposes the
existence, in the social group, of the rule under which he has
this right. If it is clear that the rule which now qualifies him
was accepted during the lifetime of his predecessor, whom it
also qualified, it is to be assumed, in the absence of evidence
to the contrary, that it has not been abandoned and still
exists. A similar continuity is to be observed in a game when
the scorer, in the absence of evidence that the rules of the
game have been changed since the last innings, credits the
new batsman with the runs which he makes, assessed in
the usual way.
Consideration of the simple legal worlds of Rex I and Rex
II is perhaps enough to show that the continuity of legislative
authority which characterizes most legal systems depends on
that form of social practice which constitutes the acceptance
of a rule, and differs, in the ways we have indicated, from the
simpler facts of mere habitual obedience. We may summarize
the argument as follows. Even if we concede that a person,
such as Rex, whose general orders are habitually obeyed, | Clarendon |
may be called a legislator and his orders laws, habits of
obedience to each of a succession of such legislators are not
enough to account for the right of a successor to succeed and for
the consequent continuity in legislative power. First, because
6o
SOVEREIGN AND SUBJECT
habits are not 'normative'; they cannot confer rights or au
thority on anyone. Secondly, because habits of obedience to
one individual cannot, though accepted rules can, refer to a
class or line of future successive legislators as well as to the
current legislator, or render obedience to them likely. So the
fact that there is habitual obedience to one legislator neither
affords grounds for the statement that his successor has the
right to make law, nor for the factual statement that he is
likely to be obeyed.
At this point, however, an important point must be noticed
which we shall develop fully in a later chapter. It constitutes
one of the strong points of Austin's theory. In order to reveal
the essential differences between accepted rules and habits we
have taken a very simple form of society. Before we leave this
aspect of sovereignty we must inquire how far our account of
the acceptance of a rule conferring authority to legislate could
be transferred to a modern state. In referring to our simple
society we spoke as if most ordinary people not only obeyed
the law but understood and accepted the rule qualifying a
succession of lawgivers to legislate. In a simple society this
might be the case; but in a modern state it would be absurd
to think of the mass of the population, however law-abiding,
as having any clear realization of the rules specifying the
qualifications of a continually changing body of persons en
titled to legislate. To speak of the populace 'accepting' these
rules, in the same way as the members of some small tribe
might accept the rule giving authority to its successive chiefs,
would involve putting into the heads of ordinary citizens an
understanding of constitutional matters which they might not
have. We would only require such an understanding of the
officials or experts of the system; the courts, which are charged
with the responsibility of determining what the law is, and
the lawyers whom the ordinary citizen consults when he wants
to know what it is.
These differences between a simple tribal society and a
modern state deserve attention. In what sense, then, are we
to think of the continuity of the legislative authority of the
Queen in Parliament, preserved throughout the changes of
successive legislators, as resting on some fundamental rule or
rules generally accepted? Plainly, general acceptance is here
SOVEREIGN AND SUBJECT
6!
a complex phenomenon, in a sense divided between official
and ordinary citizens, who contribute to it and so to the
existence of a legal system in different ways. The officials of the
system may be said to acknowledge explicitly such funda
mental rules conferring legislative authority: the legislators
do this when they make laws in accordance with the rules
which empower them to do so: the courts when they identify,
as laws to be applied by them, the laws made by those thus
qualified, and the experts when they guide the ordinary citi
zens by reference to the laws so made. The ordinary citizen
manifests his acceptance largely by acquiescence in the re
sults of these official operations. He keeps the law which is
made and identified in this way, and also makes claims and
exercises powers conferred by it. But he may know little of its
origin or its makers: some may know nothing more about the
laws than that they are 'the law'. It forbids things ordinary
citizens want to do, and they know that they may be arrested | Clarendon |
by a policeman and sentenced to prison by a judge if they
disobey. It is the strength of the doctrine which insists that
habitual obedience to orders backed by threats is the founda
tion of a legal system that it forces us to think in realistic
terms of this relatively passive aspect of the complex phenom
enon which we call the existence of a legal system. The
weakness of the doctrine is that it obscures or distorts the
other relatively active aspect, which is seen primarily, though
not exclusively, in the law-making, law-identifying, and law
applying operations of the officials or experts of the system.
Both aspects must be kept in view if we are to see this com
plex social phenomenon for what it actually is.
2. THE PERSISTENCE OF LAW
In I 944 a woman was prosecuted in England and convicted
for telling fortunes in violation of the Witchcraft Act, I 735. 1
This is only a picturesque example of a very familiar legal
phenomenon: a statute enacted centuries ago may still be law
today. Yet familiar though it is, the persistence of laws in this
way is something which cannot be made intelligible in terms
of the simple scheme which conceives of laws as orders given
' R. v. Duncan [1944] 1 KB 713.
SOVEREIGN AND SUBJECT
by a person habitually obeyed. We have in fact here the
converse of the problem of the continuity of law-making au
thority which we have just considered. There the question
was how, on the basis of the simple scheme of habits of obe
dience, it could be said that the first law made by a successor
to the office of legislator is already law before he personally
had received habitual obedience. Here the question is: how
can law made by an earlier legislator, long dead, still be law
for a society that cannot be said habitually to obey him? As
in the first case, no difficulty arises for the simple scheme if
we confine our view to the lifetime of the legislator. Indeed,
it seems to explain admirably why the Witchcraft Act was
law in England but would not have been law in France, even
if its terms extended to French citizens telling fortunes in
France, though of course it could have been applied to those
Frenchmen who had the misfortune to be brought before
English courts. The simple explanation would be that in
England there was a habit of obedience to those who enacted
this law whereas in France there was not. Hence it was law
for England but not for France.
We cannot, however, narrow our view of laws to the life
time of their makers, for the feature which we have to explain
is just their obdurate capacity to survive their makers and
those who habitually obeyed them. Why is the Witchcraft
Act law still for us, if it was not law for the contemporary
French? Surely, by no stretch oflanguage can we, the English
of the twentieth century, now be said habitually to obey George
II and his Parliament. In this respect, the English now and
the French then are alike: neither habitually obey or obeyed
the maker of this law. The Witchcraft Act might be the sole
Act surviving from this reign and yet it would still be law in
England now. The answer to this problem of 'Why law still?'
is in principle the same as the answer to our first problem of
'Why law already?' and it involves the substitution, for the
too simple notion of habits of obedience to a sovereign per
son, of the notion of currently accepted fundamental rules
specifying a class or line of persons whose word is to consti
tute a standard of behaviour for the society, i.e. who have the
right to legislate. Such a rule, though it must exist now, may
in a sense be timeless in its reference: it may not only look
SOVEREIGN AND SUBJECT
| Clarendon |
forward and refer to the legislative operation of a future leg
islator but it may also look back and refer to the operations
of a past one.
Presented in the simple terms of the Rex dynasty the
position is this. Each of a line oflegislators, Rex I, II, and III,
may be qualified under the same general rule that confers the
right to legislate on the eldest living descendant in the direct
line. When the individual ruler dies his legislative work lives
on; for it rests upon the foundation of a general rule which
successive generations of the society continue to respect re
garding each legislator whenever he lived. In the simple case
Rex I, II, and III, are each entitled, under the same general
rule, to introduce standards of behaviour by legislation. In
most legal systems matters are not quite so simple, for the
presently accepted rule under which past legislation is recog
nized as law may differ from the rule relating to contem
porary legislation. But, given the present acceptance of the
underlying rule, the persistence of laws is no more mysterious
than the fact that the decision of the umpire, in the first
round of a tournament between teams whose membership
has changed, should have the same relevance to the final
result as those of the umpire who took his place in the third
rou·nd. None the less, if not mysterious, the notion of an ac
cepted rule conferring authority on the orders of past and
future, as well as present, legislators, is certainly more com
plex and sophisticated than the idea of habits of obedience to
a present legislator. Is it possible to dispense with this com
plexity, and by some ingenious extension of the simple con
ception of orders backed by threats show that the persistence
of laws rests, after all, on the simpler facts of habitual obedi
ence to the present sovereign?
One ingenious attempt to do this has been made: Hobbes,
echoed here by Bentham and Austin, said that 'the legislator
is he, not by whose authority the laws were first made, but by
whose authority they now continue to be laws'.' It is not
immediately clear, if we dispense with the notion of a rule in
favour of the simpler idea of habit, what the 'authority' as
distinct from the 'power' of a legislator can be. But the general
' Leviathan, chap. xxvi.
SOVEREIGN AND SUBJECT
argument expressed by this quotation is clear. It is that, though
as a matter of history the source or origin of a law such as the
Witchcraft Act was the legislative operation of a past sover
eign, its present status as law in twentieth-century England is
due to its recognition as law by the present sovereign. This
recognition does not take the form of an explicit order, as in
the case of statutes made by the now living legislators, but
of a tacit expression of the sovereign's will. This consists in
the fact that, though he could, he does not interfere with the
enforcement by his agents (the courts and possibly the execu
tive) of the statute made long ago.
This is, of course, the same theory of tacit orders already
considered, which was invoked to explain the legal status of
certain customary rules, which appeared not to have been
ordered by any one at any time. The criticisms which we
made of this theory in Chapter III apply even more obvi
ously when it is used to explain the continued recognition of
past legislation as law. For though, owing to the wide discre
tion accorded to the courts to reject unreasonable customary
rules, there may be some plausibility in the view that until
the courts actually apply a customary rule in a given case, it
has no status as law, there is very little plausibility in the
view that a statute made by a past 'sovereign' is not law until | Clarendon |
it is actually applied by the courts in the particular case, and
enforced with the acquiescence of the present sovereign. If
this theory is right it follows that the courts do not enforce it
because it is already law: yet this would be an absurd infer
ence to draw from the fact that the present legislator could
repeal the past enactments but has not exercised this power.
For Victorian statutes and those passed by the Queen in
Parliament today surely have precisely the same legal status
in present-day England. Both are. law even before cases to
which they are applied arise in the courts and, when such
cases do arise, the courts apply both Victorian and modern
statutes because they are already law. In neither case are
these law only after they are applied by the courts; and in
both cases alike their status as law is due to the fact that they
were enacted by persons whose enactments are now author
itative under presently accepted rules, irrespective of the fact
that these persons are alive or dead.
SOVEREIGN AND SUBJECT
6s
The incoherence of the theory that past statutes owe their
present status as law to the acquiescence of the present leg
islature in their application by the courts, may be seen most
clearly in its incapacity to explain why the courts of the present
day should distinguish between a Victorian statute which has
not been repealed as still law, and one which was repealed
under Edward VII as no longer law. Plainly, in drawing such
distinctions the courts (and with them any lawyer or ordinary
citizen who understands the system) use as a criterion a fun
damental rule or rules of what is to count as law which em
braces past as well as present legislative operations: they do
not rest their discrimination between the two statutes on
knowledge that the present sovereign has tacitly commanded
(i.e. allowed to be enforced) one but not the other.
Again, it seems that the only virtue in the theory we have
rejected is that of a blurred version of a realistic reminder. In
this case it is the reminder that unless the officials of the
system and above all the courts accept the rule that certain
legislative operations, past or present, are authoritative, some
thing essential to their status as law will be lacking. But
realism of this humdrum sort must not be inflated into the
theory sometimes known as Legal Realism, the main features
of which are discussed in detail later,' and which, in some
versions, holds no statute to be law until it is actually applied
by a court. There is a difference, crucial for the understand
ing of law, between the truth that if a statute is to be law, the
courts must accept the rule that certain legislative operations
make law, and the misleading theory that nothing is law till
it is applied in a particular case by a court. Some versions of
the theory of Legal Realism of course go far beyond the false
explanation of the persistence of laws which we have criti
cized; for they go the full length of denying that the status
of law can belong to any statute whether made by a past or
present sovereign, before the courts have actually applied it.
Yet an explanation of the persistence of laws which stops
short of the full Realist theory and acknowledges that statutes
of the present sovereign, as distinguished from past sover
eigns, are law before they are applied by the courts has the
' See pp. 136-47 below.
66
SOVEREIGN AND SUBJECT
worst of both worlds and is surely quite absurd. This half
way position is untenable because there is nothing to dis
tinguish the legal status of a statute of the present sovereign
and an unrepealed statute of an earlier one. Either both (as | Clarendon |
ordinary lawyers would acknowledge) or neither, as the full
Realist theory claims, are law before they are applied by the
courts of the present day to a particular case.
3· LEGAL LIMITATIONS ON LEGISLATIVE POWER
In the doctrine of sovereignty the general habit of obedience
of the subject has, as its complement, the absence of any such
habit in the sovereign. He makes law for his subjects and
makes it from a position outside any law. There are, and can
be, no legal limits on his law-creating power. It is important
to understand that the legally unlimited power of the sover
eign is his by definition: the theory simply asserts that there
could only be legal limits on legislative power if the legislator
were under the orders of another legislator whom he habitually
obeyed; and in that case he would no longer be sovereign. If
he is sovereign he does not obey any other legislator and
hence there can be no legal limits on his legislative power.
The importance of the theory does not of course lie in these
definitions and their simple necessary consequences which
tell us nothing about the facts. It lies in the claim that in
every society where there is law there is a sovereign with
these attributes. We may have to look behind legal or polit
ical forms, which suggest that all legal powers are limited and
that no person or persons occupy the position outside the law
ascribed to the sovereign. But if we are resolute in our search
we shall find the reality which, as the theory claims, exists
behind the forms.
We must not misinterpret the theory as making either a
weaker or a stronger claim than it in fact makes. The theory
does not merely state that there are some societies where a
sovereign subject to no legal limits is to be found, but that
everywhere the existence of law implies the existence of such
a sovereign. On the other hand the theory does not insist that
there are no limits on the sovereign's power but only that
there are no legal limits on it. So the sovereign may in fact
defer, in exercising legislative power, to popular opinion
SOVEREIGN AND SUBJECT
either from fear of the consequences of flouting it, or because
he thinks himself morally bound to respect it. Very many
different factors may influence him in this, and, if a fear of
popular revolt or moral conviction leads him not to legislate
in ways which he otherwise would, he may indeed think and
speak of these factors as 'limits' on his power. But they are
not legal limits. He is under no legal duty to abstain from
such legislation, and the law courts, in considering whether
they have before them a law of the sovereign, would not listen
to the argument that its divergence from the requirements of
popular opinion or morality prevented it from ranking as law,
unless there was an order of the sovereign that they should.
The attractions of this theory as a general account of law
are manifest. It seems to give us in satisfying simple form
an answer to two major questions. When we have found the
sovereign who receives habitual obedience but yields it to no
one, we can do two things. First, we can identify in his gen
eral orders the law of a given society and distinguish it from
many other rules, principles, or standards, moral or merely
customary, by which the lives of its members are also governed.
Secondly, within the area of law we can determine whether
we are confronted with an independent legal system or merely
a subordinate part of some wider system.
It is usually clairned that the Queen in Parliament, consid
ered as a single continuing legislative entity, fills the require
ments of this theory and the sovereignty ofParliament consists | Clarendon |
in the fact that it does so. Whatever the accuracy of this belief
(some aspects ofwhich we later consider in Chapter VI), we
can certainly reproduce quite coherently in the imaginary
simple world of Rex I what the theory demands. It is instruc
tive to do this before considering the more complex case of a
modern state, since the full implications of the theory are best
brought out in this way. To accommodate the criticisms made
in Section I of the notion of habits of obedience we can con
ceive of the situation in terms of rules rather than habits. On
this footing we shall imagine a society in which there is a rule
generally accepted by courts, officials, and citizens that, when
ever Rex orders anything to be done, his word constitutes a
standard of behaviour for the group. It may well be that, in
order to distinguish among these ord~rs those expressions of
68
SOVEREIGN AND SUBJECT
'private' wishes, which Rex does not wish to have 'official'
status, from those which he does, ancillary rules will also be
adopted specifying a special style which the monarch is to use
when he legislates 'in the character of a monarch' but not
when he gives private orders to his wife or mistress. Such
rules concerning the manner and form of legislation must be
taken seriously if they are to serve their purpose, and they
may at times inconvenience Rex. None the less, though we
may well rank them as legal rules, we need not count them
as 'limits' on his legislative power, since if he does follow the
required form there is no subject on which he cannot legislate
so as to give effect to his wishes. The 'area' if not the 'form'
of his legislative power is unlimited by law.
The objection to the theory as a general theory of law is
that the existence of a sovereign such as Rex in this imagined
society, who is subject to no legal limitations, is not a neces
sary condition or presupposition of the existence of law. To
establish this we need not invoke disputable or challengeable
types of law. Our argument therefore is not drawn from sys
tems of customary law or international law, to which some
wish to deny the title oflaw just because they lack a legislature.
Appeal to these cases is quite unnecessary; for the conception
of the legally unlimited sovereign misrepresents the character
of law in many modern states where no one would question
that there is law. Here there are legislatures but sometimes
the supreme legislative power within the system is far from
unlimited. A written constitution may restrict the competence
of the legislature not merely by specifYing the form and manner
of legislation (which we may allow not to be limitations) but
by excluding altogether certain matters from the scope of its
legislative competence, thus imposing limitations of substance.
Again, before examining the complex case of a modern state,
it is useful to see what, in the simple world where Rex is the
supreme legislator, 'legal limitations on his legislative power'
would actually mean, and why it is a perfectly coherent notion.
In the simple society of Rex it may be the accepted rule
(whether embodied in a written constitution or not) that no
law ofRex shall be valid if it excludes native inhabitants from
the territory or provides for their imprisonment without trial,
and that any enactment contrary to these provisions shall be
SOVEREIGN AND SUBJECT
6g
void and so treated by all. In such a case Rex's powers to
legislate would be subject to limitations which surely would
be legal, even if we are disinclined to call such a fundamental
constitutional rule 'a law'. Unlike disregard of popular opin
ion or popular moral convictions to which he might often
defer even against his inclinations, disregard of these specific | Clarendon |
restrictions would render his legislation void. The courts would
therefore be concerned with these in a way in which they
would not be concerned with the other merely moral or de facto
limits on the legislator's exercise of his power. Yet, in spite of
these legal limitations, surely Rex's enactments within their
scope are laws, and there is an independent legal system in
his society.
It is important to dwell a little longer on this imaginary
simple case in order to see precisely what legal limits of this
type are. We might often express the position of Rex by say
ing that he 'cannot' pass laws providing for imprisonment
without trial; it is illuminating to contrast this sense of'cannot'
with that which signifies that a person is under some legal
duty or obligation not to do something. 'Cannot' is used in
this latter sense when we say, 'You cannot ride a bicycle on
the pavement.' A constitution which effectively restricts the
legislative powers of the supreme legislature in the system
does not do so by imposing (or at any rate need not impose)
duties on the legislature not to attempt to legislate in certain
ways; instead it provides that any such purported legislation
shall be void. It imposes not legal duties but legal disabilities.
'Limits' here implies not the presence of duty but the absence
of legal power.
Such restrictions on the legislative power of Rex may well
be called constitutional: but they are not mere conventions or
moral matters with which courts are unconcerned. They are
parts of the rule conferring authority to legislate and they
vitally concern the courts, since they use such a rule as a
criterion of the validity of purported legislative enactments
coming before them. Yet though such restrictions are legal
and not merely moral or conventional, their presence or ab
sence cannot be expressed in terms of the presence or absence
of a habit of obedience on the part of Rex to other persons.
Rex may well be subject to such restrictions and never seek
70
SOVEREIGN AND SUBJECT
to evade them; yet there may be no one whom he habitually
obeys. He merely fulfils the conditions for making valid law.
Or he may try to evade the restrictions by issuing orders
inconsistent with them; yet if he does this he will not have
disobeyed any one; he will not have broken any superior legis
lators' law or violated a legal duty. He will surely have failed
to make (though he does not break) a valid law. Conversely,
if in the constitutional rule qualifying Rex to legislate there
are no legal restrictions on Rex's authority to legislate, the
fact that he habitually obeys the orders of Tyrannus, the king
of the neighbouring territory, will neither deprive Rex's enact
ments of their status as law nor show that they are subordinate
parts of a single system in which Tyrannus has supreme
authority.
The foregoing very obvious considerations establish anum
ber of points much obscured by the simple doctrine of sover
eignty yet vital for the understanding of the foundation of a
legal system. These we may summarize as follows: First, legal
limitations on legislative authority consist not of duties imposed
on the legislator to obey some superior legislator but of dis
abilities contained in rules which qualify him to legislate.
Secondly, in order to establish that a purported enactment
is law we do not have to trace it back to the enactment, ex
press or tacit, of a legislator who is 'sovereign' or 'unlimited'
either in the sense that his authority to legislate is legally
unrestricted or in the sense that he is a person who obeys no
one else habitually. Instead we have to show that it was
made by a legislator who was qualified to legislate under an | Clarendon |
existing rule and that either no restrictions are contained in
the rule or there are none affecting this particular enactment.
Thirdly, in order to show that we have before us an inde
pendent legal system we do not have to show that its supreme
legislator is legally unrestricted or obeys no other person
habitually. We have to show merely that the rules which
qualify the legislator do not confer superior authority on those
who have also authority over other territory. Conversely, the
fact that he is not subject to such foreign authority does not
mean that he has unrestricted authority within his own
territory.
Fourthly, we must distinguish between a legally unlimited
SOVEREIGN AND SUBJECT
71
legislative authority and one which, though limited, is supreme
in the system. Rex may well have been the highest legislating
authority known to the law of the land, in the sense that all
other legislation may be repealed by his, even though his own
is restricted by a constitution.
Fifthly, and last, whereas the presence or absence of rules
limiting the legislator's competence to legislate is crucial, the
legislator's habits of obedience are at the most of some indi
rect evidential importance. The only relevance of the fact, if
it be the fact, that the legislator is not in a habit of obedience
to other persons is that sometimes it may afford some, though
far from conclusive, evidence that his authority to legislate is
not subordinate, by constitutional or legal rule, to that of
others. Similarly, the only relevance of the fact that the leg
islator does habitually obey someone else is that this is some
evidence that under the rules his authority to legislate is
subordinate to that of others.
4· THE SOVEREIGN BEHIND THE LEGISLATURE
There are in the modern world many legal systems in which
the body, normally considered to be the supreme legislature
within the system, is subject to legal limitations on the exer
cise of its legislative powers; yet, as both lawyer and legal
theorist would agree, the enactments of such a legislature
within the scope of its limited powers are plainly law. In
these cases, if we are to maintain the theory that wherever
there is law there is a sovereign incapable of legal limitation,
we must search for such a sovereign behind the legally lim
ited legislature. Whether he is there to be found is the question
which we must now consider.
We may neglect for the moment the provisions, which every
legal system must make in one form or another, though not
necessarily by a written constitution, as to the qualification of
the legislators and 'the manner and form' of legislation. These
may be considered as specifications of the identity of the leg
islative body and of what it must do to legislate rather than
legal limitations on the scope of its legislative power; though,
in fact, as the experience of South Africa has shown,' it is
' See Harris v. Diinges [I952] I TLR I 245.
72
SOVEREIGN AND SUBJECT
difficult to give general criteria which satisfactorily distinguish
mere provisions as to 'manner and form' of legislation or def
initions of the legislative body from 'substantial' limitations.
Plain examples of substantive limitations are, however, to
be found in federal constitutions such as those of the United
States or Australia, where the division of powers between the
central government and the member states, and also certain
individual rights, cannot be changed by the ordinary pro
cesses oflegislation. In these cases an enactment, either ofthe
state or federal legislature, purporting to alter or inconsistent
with the federal division of powers or with the individual
rights protected in this way, is liable to be treated as ultra vires, | Clarendon |
and declared legally invalid by the courts to the extent that
it conflicts with the constitutional provisions. The most famous
of such legal limitations on legislative powers is the Fifth
Amendment to the Constitution of the United States. This
provides, among other things, that no person shall be de
prived 'of life liberty or property without due process of law';
and statutes of Congress have been declared invalid by the
courts when found to conflict with these or with other re
strictions placed by the constitution on their legislative powers.
There are, of course, many different devices for protecting
the provisions of a constitution from the operations of the
legislature. In some cases, such as that of Switzerland, some
provisions as to the rights of the member states of a federa
tion and the rights of individuals, though mandatory in form,
are treated as 'merely political' or hortatory. In such cases
the courts are not accorded jurisdiction to 'review' the en
actment of the federal legislature and to declare it invalid
even though it may be in plain conflict with the provisions of
the constitution as to the proper scope of the legislature's
operations. r Certain provisions of the United States Constitu
tion have been held to raise 'political questions', and where
a case falls within this category the courts will not consider
whether a statute violates the constitution.
Where legal limitations on the normal operations of the
supreme legislature are imposed by a constitution, these
themselves may or may not be immune from certain forms of
' See Art. I I 3 of the Constitution of Switzerland.
SOVEREIGN AND SUBJECT
73
legal change. This depends on the nature of the provision
made by the constitution for its amendment. Most constitu
tions contain a wide amending power to be exercised either
by a body distinct from the ordinary legislature, or by the
members of the ordinary legislature using a special proce
dure. The provision of Article V of the Constitution of the
United States for amendments ratified by the legislatures of
three-fourths of the States or by conventions in three-fourths
thereof is an example of the first type of amending power;
and the provision for amendment in the South Africa Act of
I gog s. I 52 is an example of the second. But not all consti
tutions contain an amending power, and sometimes even where
there is such an amending power certain provisions of the
constitution which impose limits on the legislature are kept
outside its scope; here the amending power is itself limited.
This may be observed (though some limitations are no longer
of practical importance) even in the Constitution ofthe United
States. For Article V provides that 'no amendment made
prior to the Year I 8o8 shall in any Manner affect the first and
fourth Clauses in the Ninth Section of the first Article and
that no State without its consent shall be deprived of its equal
suffrage in the Senate'.
Where the legislature is subject to limitations which can, as
in South Africa, be removed by the members of the legisla
ture operating a special procedure, it is arguable that it may
be identified with the sovereign incapable of legal limitation
which the theory requires. The difficult cases for the theory
are those where the restrictions on the legislature can, as in
the United States, only be removed by the exercise of an
amending power entrusted to a special body, or where the
restrictions are altogether outside the scope of any amending
power.
In considering the claim of the theory to account consist
ently for these cases we must recall, since it is often over
looked, that Austin himself in elaborating the theory did not | Clarendon |
identify the sovereign with the legislature even in England.
This was his view although the Queen in Parliament is,
according to the normally accepted doctrine, free from legal
limitations on its legislative power, and so is often cited as
a paradigm of what is meant by 'a sovereign legislature' in
SOVEREIGN AND SUBJECT
74
contrast with Congress or other legislatures limited by a 'rigid'
constitution. None the less, Austin's view was that in any
democracy it is not the elected representatives who constitute
or form part of the sovereign body but the electors. Hence in
England 'speaking accurately the members of the commons
house are merely trustees for the body by which they are
elected and appointed: and consequently the sovereignty al
ways resides in the Kings Peers and the electoral body of the
commons'. r Similarly, he held that in the United States sov
ereignty of each of the states and 'also of the larger state
arising from the Federal Union resided in the states' govern
ments as forming one aggregate body, meaning by a state's
government not its ordinary legislature but the body of citi
zens which appoints its ordinary legislature'. 2
Viewed in this perspective, the difference between a legal
system in which the ordinary legislature is free from legal
limitations, and one where the legislature is subject to them,
appears merely as a difference between the manner in which
the sovereign electorate chooses to exercise its sovereign pow
ers. In England, on this theory, the only direct exercise made
by the electorate of their share in the sovereignty consists in
their election of representatives to sit in Parliament and the
delegation to them of their sovereign power. This delegation
is, in a sense, absolute since, though a trust is reposed in them
not to abuse the powers thus delegated to them, this trust in
such cases is a matter only for moral sanctions and the courts
are not concerned with it, as they are with legal limitations
on legislative power. By contrast, in the United States, as in
every democracy where the ordinary legislature is legally
limited, the electoral body has not confined its exercise of
sovereign power to the election of delegates, but has subjected
them to legal restrictions. Here the electorate may be con
sidered an 'extraordinary and ulterior legislature' superior to
the ordinary legislature which is legally 'bound' to observe
the constitutional restrictions and, in cases of conflict, the
courts will declare the Acts of the ordinary legislature invalid.
Here then, in the electorate, is the sovereign free from all
legal limitations which the theory requires.
' Austin, Province rif Jurisprudence Determined, Lecture VI, pp. 230-r.
' Ibid., p. 25 r.
SOVEREIGN AND SUBJECT
75
It is plain that in these further reaches of the theory the
initial, simple conception of the sovereign has undergone a
certain sophistication, if not a radical transformation. The
description of the sovereign as 'the person or persons to whom
the bulk of the society are in the habit of obedience' had, as
we showed in Section 1 of this chapter, an almost literal
application to the simplest form of society, in which Rex was
an absolute monarch and no provision was made for the
succession to him as legislator. Where such a provision was
made, the consequent continuity oflegislative authority, which
is such a salient feature of a modern legal system, could not
be expressed in the simple terms of habits of obedience, but
required for its expression the notion of an accepted rule under
which the successor had the right to legislate before actually
doing so and receiving obedience. But the present identifica | Clarendon |
tion of the sovereign with the electorate of a democratic state
has no plausibility whatsoever, unless we give to the key words
'habit of obedience' and 'person or persons' a meaning which
is quite different from that which they had when applied to
the simple case; and it is a meaning which can only be made
clear if the notion of an accepted rule is surreptitiously intro
duced. The simple scheme of habits of obedience and orders
cannot suffice for this.
That this is so may be shown in many different ways. It
emerges most clearly if we consider a democracy in which the
electorate excludes only infants and mental defectives and so
itself constitutes 'the bulk' of the population, or if we imagine
a simple social group of sane adults where all have the right
to vote. If we attempt to treat the electorate in such cases
as the sovereign and apply to it the simple definitions of
the original theory, we shall find ourselves saying that here
the 'bulk' of the society habitually obey themselves. Thus the
original clear image of a society divided into two segments:
the sovereign free from legal limitation who gives orders, and
the subjects who habitually obey, has given place to the blurred
image of a society in which the majority obey orders given by
the majority or by all. Surely we have here neither 'orders' in
the original sense (expression of intention that others shall
behave in certain ways) or 'obedience'.
To meet this criticism, a distinction may be made be
tween the members of the society in their private capacity as
SOVEREIGN AND SUBJECT
individuals and the same persons in their official capacity as
electors or legislators. Such a distinction is perfectly intelligible;
indeed many legal and political phenomena are most natu
rally presented in such terms; but it cannot rescue the theory
of sovereignty even if we are prepared to take the further step
of saying that the individuals in their official capacity consti
tute another person who is habitually obeyed. For if we ask
what is meant by saying of a group of persons that in electing
a representative or in issuing an order, they have acted not
'as individuals' but 'in their official capacity', the answer can
only be given in terms of their qualifications under certain
rules and their compliance with other rules, which define
what is to be done by them to make a valid election or a law.
It is only by reference to such rules that we can identify
something as an election or a law made by this body of persons.
Such things are to be attributed to the body 'making' them
not by the same simple natural test which we use in attribut
ing an individual's spoken or written orders to him.
What then is it for such rules to exist? Since they are rules
defining what the members of the society must do to function
as an electorate (and so for the purposes of the theory as a
sovereign) they cannot themselves have the status of orders
issued by the sovereign, for nothing can count as orders is
sued by the sovereign unless the rules already exist and have
been followed.
Can we then say that these rules are just parts of the de
scription of the population's habits of obedience? In a simple
case where the sovereign is a single person whom the bulk of
the society obey if, and only if, he gives his orders in a certain
form, e.g. in writing signed and witnessed, we might say
(subject to the objections made in Section I to the use here
of the notion of habit) that the rule that he must legislate in
this fashion is just part of the description of the society's
habit of obedience: they habitually obey him when he gives
orders in this way. But, where the sovereign person is not
identifiable independently of the rules, we cannot represent | Clarendon |
the rules in this way as merely the terms or conditions under
which the society habitually obeys the sovereign. The rules
are constitutive of the sovereign, not merely things which we
should have to mention in a description of the habits of
SOVEREIGN AND SUBJECT
77
obedience to the sovereign. So we cannot say that in the
present case the rules specifying the procedure of the elector
ate represent the conditions under which the society, as so
many individuals, obeys itself as an electorate; for 'itself as an
electorate' is not a reference to a person identifiable apart
from the rules. It is a condensed reference to the fact that the
electors have complied with rules in electing their representa
tives. At the most we might say (subject to the objections in
Section 1) that the rules set forth the conditions under which
the elected persons are habitually obeyed: but this would take us
back to a form of the theory in which the legislature, not the
electorate, is sovereign, and all the difficulties, arising from
the fact that such a legislature might be subject to legal
limitations on its legislative powers, would remain unsolved.
These arguments against the theory, like those of the ear
lier section of this chapter, are fundamental in the sense that
they amount to the contention that the theory is not merely
mistaken in detail, but that the simple idea of orders, habits,
and obedience, cannot be adequate for the analysis of law.
What is required instead is the notion of a rule conferring
powers, which may be limited or unlimited, on persons quali
fied in certain ways to legislate by complying with a certain
procedure.
Apart from what may be termed the general conceptual
inadequacy of the theory, there are many ancillary objections
to this attempt to accommodate within it the fact that what
would ordinarily be regarded as the supreme legislature may
be legally limited. If in such cases the sovereign is to be
identified with the electorate, we may well ask, even where
the electorate has an unlimited amending power by which the
restrictions on the ordinary legislature could all be removed,
if it is true that these restrictions are legal because the elec
torate has given orders which the ordinary legislature habitu
ally obeys. We might waive our objection that legal limitations
on legislative power are misrepresented as orders and so as
duties imposed on it. Can we, even so, suppose that these
restrictions are duties which the electorate has even tacitly
ordered the legislature to fulfil? All the objections taken in
earlier chapters to the idea of tacit orders apply with even
greater force to its use here. Failure to exercise an amending
SOVEREIGN AND SUBJECT
power as complex in its manner of exercise as that in the
United States constitution, may be a poor sign of the wishes
of the electorate, though often a reliable sign of its ignorance
and indifference. We are a long way indeed from the general
who may, perhaps plausibly, be considered tacitly to have
ordered his men to do what he knows the sergeant tells them
to do.
Again, what are we to say, in the terms of the theory, if
there are some restrictions on the legislature which are alto
gether outside the scope of the amending power entrusted
to the electorate? This is not merely conceivable but actually
is the position in some cases. Here the electorate is subject
to legal limitations, and though it may be called an extra
ordinary legislature it is not free from legal limitation and
so is not sovereign. Are we to say here that the society as a
whole is sovereign and these legal limitations have been tacitly
ordered by it, since it has failed to revolt against them? That | Clarendon |
this would make the distinction between revolution and leg
islation untenable is perhaps a sufficient reason for rejecting
it.
Finally, the theory treating the electorate as sovereign only
provides at the best for a limited legislature in a democracy
where an electorate exists. Yet there is no absurdity in the
notion of an hereditary monarch like Rex enjoying limited
legislative powers which are both limited and supreme within
the system.
v
LAW AS THE UNION OF PRIMARY
AND SECONDARY RULES
I. A FRESH START
IN the last three chapters we have seen that, at various cru
cial points, the simple model of law as the sovereign's coer
cive orders failed to reproduce some of the salient features of
a legal system. To demonstrate this, we did not find it nec
essary to invoke (as earlier critics have done) international
law or primitive law which some may regard as disputable or
borderline examples of law; instead we . pointed to certain
familiar features of municipal law in a modern state, and
showed that these were either distorted or altogether unrep
resented in this over-simple theory.
The main ways in which the theory failed are instructive
enough to merit a second summary. First, it became clear
that though of all the varieties of law, a criminal statute,
forbidding or enjoining certain actions under penalty, most
resembles orders backed by threats given by one person to
others, such a statute none the less differs from such orders
in the important respect that it commonly applies to those
who enact it and not merely to others. Secondly, there are
other varieties of law, notably those conferring legal powers
to adjudicate or legislate (public powers) or to create or vary
legal relations (private powers) which cannot, without ab
surdity, be construed as orders backed by threats. Thirdly,
there are legal rules which differ from orders in their mode of
origin, because they are not brought into being by anything
analogous to explicit prescription. Finally, the analysis of law
in terms of the sovereign, habitually obeyed and necessarily
exempt from all legal limitation, failed to account for the
continuity of legislative authority characteristic of a modern
legal system, and the sovereign person or persons could not
be identified with either the electorate or the legislature of a
modern state.
8o
LAW AS THE UNION OF
It will be recalled that in thus criticizing the conception of
law as the sovereign's coercive orders we considered also a
number of ancillary devices which were brought in at the cost
of corrupting the primitive simplicity of the theory to rescue
it from its difficulties. But these too failed. One device, the
notion of a tacit order, seemed to have no application to the
complex actualities of a modern legal system, but only to very
much simpler situations like that of a general who deliberately
refrains from interfering with orders given by his subordinates.
Other devices, such as that of treating power-conferring rules
as mere fragments of rules imposing duties, or treating all rules
as directed only to officials, distort the ways in which these
are spoken of, thought of, and actually used in social life.
This had no better claim to our assent than the theory that
all the rules of a game are 'really' directions to the umpire and
the scorer. The device, designed to reconcile the self-binding
character of legislation with the theory that a statute is an
order given to others, was to distinguish the legislators acting in
their official capacity, as one person ordering others who include
themselves in their private capacities. This device, impecca
ble in itself, involved supplementing the theory with some | Clarendon |
thing it does not contain: this is the notion of a rule defining
what must be done to legislate; for it is only in conforming
with such a rule that legislators have an official capacity and
a separate personality to be contrasted with themselves as
private individuals.
The last three chapters are therefore the record of a failure
and there is plainly need for a fresh start. Yet the failure is
an instructive one, worth the detailed consideration we have
given it, because at each point where the theory failed to fit
the facts it was possible to see at least in outline why it was
bound to fail and what is required for a better account. The
root cause of failure is that the elements out of which the
theory was constructed, viz. the ideas of orders, obedience,
habits, and threats, do not include, and cannot by their com
bination yield, the idea of a rule, without which we cannot
hope to elucidate even the most elementary forms of law. It
is true that the idea of a rule is by no means a simple one: we
have already seen in Chapter III the need, if we are to do
justice to the complexity of a legal system, to discriminate
PRIMARY AND SECONDARY RULES
8r
between two different though related types. Under rules of
the one type, which may well be considered the basic or
primary type, human beings are required to do or abstain
from certain actions, whether they wish to or not. Rules of
the other type are in a sense parasitic upon or secondary to
the first; for they provide that human beings may by doing or
saying certain things introduce new rules of the primary type,
extinguish or modify old ones, or in various ways determine
their incidence or control their operations. Rules of the first
type impose duties; rules of the second type confer powers,
public or private. Rules of the first type concern actions in
volving physical movement or changes; rules of the second
type provide for operations which lead not merely to physical
movement or change, but to the creation or variation of duties
or obligations.
We have already given some preliminary analysis of what
is involved in the assertion that rules of these two types exist
among a given social group, and in this chapter we shall not
only carry this analysis a little farther but we shall make the
general claim that in the combination of these two types of
rule there lies what Austin wrongly claimed to have found in
the notion of coercive orders, namely, 'the key to the science
of jurisprudence'. We shall not indeed claim that wherever
the word 'law' is 'properly' used this combination of primary
and secondary rules is to be found; for it is clear that the
diverse range of cases of which the word 'law' is used are not
linked by any such simple uniformity, but by less direct
relations-often of analogy of either form or content-to a
central case. What we shall attempt to show, in this and
the succeeding chapters, is that most of the features of law
which have proved most perplexing and have both provoked
and eluded the search for definition can best be rendered
clear, if these two types of rule and the interplay between
them are understood. We accord this union of elements a
central place becauseoftheir explanatory power in elucidating
the concepts that constitute the framework of legal thought.
The justification for the use of the word 'law' for a range of
apparently heterogeneous cases is a secondary matter which
can be undertaken when the central elements have been
grasped.
LAW AS THE UNION OF
2. THE IDEA OF OBLIGATION
It will be recalled that the theory of law as coercive orders,
notwithstanding its errors, started from the perfectly correct | Clarendon |
appreciation of the fact that where there is law, there human
conduct is made in some sense non-optional or obligatory. In
choosing this starting-point the theory was well inspired, and
in building up a new account of law in terms of the interplay
of primary and secondary rules we too shall start from the
same idea. It is, however, here, at this crucial first step, that
we have perhaps most to learn from the theory's errors.
Let us recall the gunman situation. A orders B to hand
over his money and threatens to shoot him if he does not
comply. According to the theory of coercive orders this situ
ation illustrates the notion of obligation or duty in general.
Legal obligation is to be found in this situation writ large; A
must be the sovereign habitually obeyed and the orders must
be general, prescribing courses of conduct not single actions.
The plausibility of the claim that the gunman situation dis
plays the meaning of obligation lies in the fact that it is cer
tainly one in which we would say that B, if he obeyed, was
'obliged' to hand over his money. It is, however, equally
certain that we should misdescribe the situation ifwe said, on
these facts, that B 'had an obligation' or a 'duty' to hand over
the money. So from the start it is clear that we need some
thing else for an understanding of the idea of obligation. There
is a difference, yet to be explained, between the assertion that
someone was obliged to do something and the assertion that he
had an obligation to do it. The first is often a statement about
the beliefs and motives with which an action is done: B was
obliged to hand over his money may simply mean, as it does
in the gunman case, that he believed that some harm or other
unpleasant consequences would befall him if he did not hand
it over and he handed it over to avoid those consequences. In
such cases the prospect of what would happen to the agent if
he disobeyed has rendered something he would otherwise have
preferred to have done (keep the money) less eligible.
Two further elements slightly complicate the elucidation of
the notion of being obliged to do something. It seems clear
that we should not think of B as obliged to hand over the
money if the threatened harm was, according to common
PRIMARY AND SECONDARY RULES
83
judgments, trivial in comparison with the disadvantage or
serious consequences, either forB or for others, of complying
with the orders, as it would be, for example, if A merely
threatened to pinch B. Nor perhaps should we say that B was
obliged, if there were no reasonable grounds for thinking that
A could or would probably implement his threat of relatively
serious harm. Yet, though such references to common judg
ments of comparative harm and reasonable estimates of like
lihood, are implicit in this notion, the statement that a person
was obliged to obey someone is, in the main, a psychological
one referring to the beliefs and motives with which an action
was done. But the statement that someone had an obligation to
do something is of a very different type and there are many
signs of this difference. Thus not only is it the case that the
facts about B's action and his beliefs and motives in the
gunman case, though sufficient to warrant the statement that
B was obliged to hand over his purse, are not sufficient to
warrant the statement that he had an obligation to do this; it
is also the case that facts of this sort, i.e. facts about beliefs
and motives, are not necessary for the truth of a statement that
a person had an obligation to do something. Thus the state
ment that a person had an obligation, e.g. to tell the truth or
report for military service, remains true even if he believed
(reasonably or unreasonably) that he would never be found | Clarendon |
out and had nothing to fear from disobedience. Moreover,
whereas the statement that he had this obligation is quite
independent of the question whether or not he in fact reported
for service, the statement that someone was obliged to do
something, normally carries the implication that he actually
did it.
Some theorists, Austin among them, seeing perhaps the
general irrelevance of the person's beliefs, fears, and motives
to the question whether he had an obligation to do some
thing, have defined this notion not in terms of these subjec
tive facts, but in terms of the chance or likelihood that the
person having the obligation will suffer a punishment or 'evil'
at the hands of others in the event of disobedience. This, in
effect, treats statements of obligation not as psychological
statements but as predictions or assessments of chances of
incurring punishment or 'evil'. To many later theorists this
LAW AS THE UNION OF
has appeared as a revelation, bringing down to earth an elu
sive notion and restating it in the same clear, hard, empirical
terms as are used in science. It has, indeed, been accepted
sometimes as the only alternative to metaphysical concep
tions of obligation or duty as invisible objects mysteriously
existing 'above' or 'behind' the world of ordinary, observable
facts. But there are many reasons for rejecting this interpre
tation of statements of obligation as predictions, and it is not,
in fact, the only alternative to obscure metaphysics.
The fundamental objection is that the predictive interpre
tation obscures the fact that, where rules exist, deviations
from them are not merely grounds for a prediction that hostile
reactions will follow or that a court will apply sanctions to
those who break them, but are also a reason or justification
for such reaction and for applying the sanctions. We have
already drawn attention in Chapter IV to this neglect of the
internal aspect of rules and we shall elaborate it later in this
chapter.
There is, however, a second, simpler, objection to the pre
dictive interpretation of obligation. If it were true that the
statement that a person had an obligation meant that he was
likely to suffer in the event of disobedience, it would be a
contradiction to say that he had an obligation, e.g. to report
for military service but that, owing to the fact that he had
escaped from the jurisdiction, or had successfully bribed the
police or the court, there was not the slightest chance of his
being caught or made to suffer. In fact, there is no contradic
tion in saying this, and such statements are often made and
understood.
It is, of course, true that in a normal legal system, where
sanctions are exacted for a high proportion of offences, an
offender usually runs a risk of punishment; so, usually the
statement that a person has an obligation and the statement
that he is likely to suffer for disobedience will both be true to
gether. Indeed, the connection between these two statements
is somewhat stronger than this: at least in a municipal system
it may well be true that, unless in general sanctions were likely
to be exacted from offenders, there would be little or no point
in making particular statements about a person's obligations.
In this sense, such statements may be said to presuppose
PRIMARY AND SECONDARY RULES
8s
belief in the continued normal operation of the system of
sanctions much as the statement 'he is out' in cricket pre
supposes, though it does not assert, that players, umpire, and
scorer will probably take the usual steps. None the less, it is
crucial for the understanding of the idea of obligation to see
that in individual cases the statement that a person has an | Clarendon |
obligation under some rule and the prediction that he is likely
to suffer for disobedience may diverge.
It is clear that obligation is not to be found in the gunman
situation, though the simpler notion of being obliged to do
something may well be defined in the elements present there.
To understand the general idea of obligation as a necessary
preliminary to understanding it in its legal form, we must
turn to a different social situation which, unlike the gunman
situation, includes the existence of social rules; for this situ
ation contributes to the meaning of the statement that a per
son has an obligation in two ways. First, the existence of such
rules, making certain types of behaviour a standard, is the
normal, though unstated, background or proper context for
such a statement; and, secondly, the distinctive function of
such statement is to apply such a general rule to a particular
person by calling attention to the fact that his case falls under
it. We have already seen in Chapter IV that there is involved
in the existence of any social rules a combination of regular
conduct with a distinctive attitude to that conduct as a stand
ard. We have also seen the main ways in which these differ
from mere social habits, and how the varied normative
vocabulary ('ought', 'must', 'should') is used to draw attention
to the standard and to deviations from it, and to formulate
the demands, criticisms, or acknowledgements which may
be based on it. Of this class of normative words the words
'obligation' and 'duty' form an important sub-class, carrying
with them certain implications not usually present in the
others. Hence, though a grasp of the elements generally dif
ferentiating social rules from mere habits is certainly indis
pensable for understanding the notion of obligation or duty,
it is not sufficient by itself.
The statement that someone has or is under an obligation
does indeed imply the existence of a rule; yet it is not always
the case that where rules exist the standard of behaviour
86
LAW AS THE UNION OF
required by them is conceived of in terms of obligation. 'He
ought to have' and 'He had an obligation to' are not always
interchangeable expressions, even though they are alike in
carrying an implicit reference to existing standards of con
duct or are used in drawing conclusions in particular cases
from a general rule. Rules of etiquette or correct speech are
certainly rules: they are more than convergent habits or regu
larities of behaviour; they are taught and efforts are made to
maintain them; they are used in criticizing our own and other
people's behaviour in the characteristic normative vocabu
lary. 'You ought to take your hat off', 'It is wrong to say "you
was"'. But to use in connection with rules of this kind the
words 'obligation' or 'duty' would be misleading and not
merely stylistically odd. It would misdescribe a social situa
tion; for though the line separating rules of obligation from
others is at points a vague one, yet the main rationale of the
distinction is fairly clear.
Rules are conceived and spoken of as imposing obligations
when the general demand for conformity is insistent and the
social pressure brought to bear upon those who deviate or
threaten to deviate is great. Such rules may be wholly cus
tomary in origin: there may be no centrally organized system
of punishments for breach of the rules; the social pressure
may take only the form of a general diffused hostile or critical
reaction which may stop short of physical sanctions. It may
be limited to verbal manifestations of disapproval or of
appeals to the individuals' respect for the rule violated; it may
depend heavily on the operation of feelings of shame, remorse, | Clarendon |
and guilt. When the pressure is of this last-mentioned kind
we may be inclined to classify the rules as part of the morality
of the social group and the obligation under the rules as
moral obligation. Conversely, when physical sanctions are
prominent or usual among the forms of pressure, even though
these are neither closely defined nor administered by officials
but are left to the community at large, we shall be inclined to
classify the rules as a primitive or rudimentary form of law.
We may, of course, find both these types of serious social
pressure behind what is, in an obvious sense, the same rule
of conduct; sometimes this may occur with no indication that
one of them is peculiarly appropriate as primary and the
PRIMARY AND SECONDARY RULES
87
other secondary, and then the question whether we are con
fronted with a rule of morality or rudimentary law may not
be susceptible of an answer. But for the moment the possibil
ity of drawing the line between law and morals need not
detain us. What is important is that the insistence on im
portance or seriousness of social pressure behind the rules is the
primary factor determining whether they are thought of as
giving rise to obligations.
Two other characteristics of obligation go naturally together
with this primary one. The rules supported by this serious
pressure are thought important because they are believed to
be necessary to the maintenance of social life or some highly
prized feature of it. Characteristically, rules so obviously
essential as those which restrict the free use of violence are
thought of in terms of obligation. So too rules which require
honesty or truth or require the keeping of promises, or specify
what is to be done by one who performs a distinctive role or
function in the social group are thought of in terms of either
'obligation' or perhaps more often 'duty'. Secondly, it is gen
erally recognized that the conduct required by these rules
may, while benefiting others, conflict with what the person
who owes the duty may wish to do. Hence obligations and
duties are thought of as characteristically involving sacrifice
or renunciation, and the standing possibility of conflict be
tween obligation or duty and interest is, in all societies, among
the truisms of both the lawyer and the moralist.
The figure of a bond binding the person obligated, which is
buried in the word 'obligation', and the similar notion of a
debt latent in the word 'duty' are explicable in terms ofthese
three factors, which distinguish rules of obligation or duty
from other rules. In this figure, which haunts much legal
thought, the social pressure appears as a chain binding those
who have obligations so that they are not free to do what they
want. The other end of the chain is sometimes held by the
group or their official representatives, who insist on perform
ance or exact the penalty: sometimes it is entrusted by the
group to a private individual who may choose whether or
not to insist on performance or its equivalent in value to
him. The first situation typifies the duties or obligations of
criminal law and the second those of civil law where we think
88
LAW AS THE UNION OF
of private
obligations.
individuals having rights correlative
to
the
Natural and perhaps illuminating though these figures or
metaphors are, we must not allow them to trap us into a mis
leading conception of obligation as essentially consisting in
some feeling of pressure or compulsion experienced by those
who have obligations. The fact that rules of obligation are
generally supported by serious social pressure does not entail
that to have an obligation under the rules is to experience | Clarendon |
feelings of compulsion or pressure. Hence there is no contra
diction in saying of some hardened swindler' and it may often
be true, that he had an obligation to pay the rent but felt no
pressure to pay when he made off without doing so. To feel
obliged and to have an obligation are different though fre
quently concomitant things. To identify them would be one
way of misinterpreting, in terms of psychological feelings, the
important internal aspect of rules to which we drew attention
in Chapter III.
Indeed, the internal aspect of rules is something to which
we must again refer before we can dispose finally of the claims
of the predictive theory. For an advocate of that theory may
well ask why, if social pressure is so important a feature of
rules of obligation, we are yet so concerned to stress the
inadequacies of the predictive theory; for it gives this very
feature a central place by defining obligation in terms of the
likelihood that threatened punishment or hostile reaction will
follow deviation from certain lines of conduct. The difference
may seem slight between the analysis of a statement of obli
gation as a prediction, or assessment of the chances, of hostile
reaction to deviation, and our own contention that though
this statement presupposes a background in which deviations
from rules are generally met by hostile reactions, yet its char
acteristic use is not to predict this but to say that a person's
case falls under such a rule. In fact, however, this difference
is not a slight one. Indeed, until its importance is grasped, we
cannot properly understand the whole distinctive style of
human thought, speech, and action which is involved in the
existence of rules and which constitutes the normative struc
ture of society.
The following contrast again in terms of the 'internal' and
PRIMARY AND SECONDARY RULES
8g
'external' aspect of rules may serve to mark what gives this
distinction its great importance for the understanding not
only of law but of the structure of any society. When a social
group has certain rules of conduct, this fact affords an oppor
tunity for many closely related yet different kinds of assertion;
for it is possible to be concerned with the rules, either merely
as an observer who does not himself accept them, or as a
member of the group which accepts and uses them as guides
to conduct. We may call these respectively the 'external' and
the 'internal points of view'. Statements made from the exter
nal point of view may themselves be of different kinds. For
the observer may, without accepting the rules himself, assert
that the group accepts the rules, and thus may from outside
refer to the way in which they are concerned with them from
the internal point of view. But whatever the rules are, whether
they are those of games, like chess or cricket, or moral or
legal rules, we can if we choose occupy the position of an
observer who does not even refer in this way to the internal
point of view of the group. Such an observer is content merely
to record the regularities of observable behaviour in which
conformity with the rules partly consists and those further
regularities, in the form of the hostile reaction, reproofs, or
punishments, with which deviations from the rules are met.
After a time the external observer may, on the basis of the
regularities observed, correlate deviation with hostile re
action, and be able to predict with a fair measure of success,
and to assess the chances that a deviation from the group's
normal behaviour will meet with hostile reaction or punish
ment. Such knowledge may not only reveal much about the
group, but might enable him to live among them without | Clarendon |
unpleasant consequences which would attend one who at
tempted to do so without such knowledge.
If, however, the observer really keeps austerely to this ex
treme external point of view and does not give any account
ofthe manner in which members ofthe group who accept the
rules view their own regular behaviour, his description of
their life cannot be in terms of rules at all, and so not in the
terms of the rule-dependent notions of obligation or duty.
Instead, it will be in terms of observable regularities of conduct,
predictions, probabilities, and signs. For such an observer,
go
LAW AS THE UNION OF
deviations by a member of the group from normal conduct
will be a sign that hostile reaction is likely to follow, and
nothing more. His view will be like the view of one who,
having observed the working of a traffic signal in a busy
street for some time, limits himself to saying that when the
light turns red there is a high probability that the traffic will
stop. He treats the light merely as a natural sign that people
will behave in certain ways, as clouds are a sign that rain will
come. In so doing he will miss out a whole dimension of the
so~:ial life of those whom he is watching, since for them the
red light is not merely a sign that others will stop: they look
upon it as a signal for them to stop, and so a reason for stop
ping in conformity to rules which make stopping when the
light is red a standard of behaviour and an obligation. To
mention this is to bring into the account the way in which the
group regards its own behaviour. It is to refer to the internal
aspect of rules seen from their internal point of view.
The external point of view may very nearly reproduce the
way in which the rules function in the lives of certain mem
bers of the group, namely those who reject its rules and are
only concerned with them when and because they judge that
unpleasant consequences are likely to follow violation. Their
point of view will need for its expression, 'I was obliged to do
it', 'I am likely to suffer for it if ... ', 'You will probably suffer
for it if ... ', 'They will do that to you if ... '. But they will not
need forms of expression like 'I had an obligation' or 'You
have an obligation' for these are required only by those who
see their own and other persons' conduct from the internal
point of view. What the external point of view, which limits
itself to the observable regularities of behaviour, cannot re
produce is the way in which the rules function as rules in the
lives of those who normally are the majority of society. These
are the officials, lawyers, or private persons who use them, in
one situation after another, as guides to the conduct of social
life, as the basis for claims, demands, admissions, criticism,
or punishment, viz., in all the familiar transactions of life
according to rules. For them the violation of a rule is not
merely a basis for the prediction that a hostile reaction will
follow but a reason for hostility.
At any given moment the life of any society which lives by
PRIMARY AND SECONDARY RULES
91
rules, legal or not, is likely to consist in a tension between
those who, on the one hand, accept and voluntarily co-operate
in maintaining the rules, and so see their own and other
persons' behaviour in terms of the rules, and those who, on
the other hand, reject the rules and attend to them only from
the external point of view as a sign of possible punishment.
One of the difficulties facing any legal theory anxious to do
justice to the complexity of the facts is to remember the pres
ence of both these points of view and not to define one of | Clarendon |
them out of existence. Perhaps all our criticisms of the predic
tive theory of obligation may be best summarized as the ac
cusation that this is what it does to the internal aspect of
obligatory rules.
3. THE ELEMENTS OF LAW
It is, of course, possible to imagine a society without a legis
lature, courts, or officials of any kind. Indeed, there are many
studies of primitive communities which not only claim that
this possibility is realized but depict in detail the life of a
society where the only means of social control is that general
attitude of the group towards its own standard modes of
behaviour in terms of which we have characterized rules of
obligation. A social structure of this kind is often referred to
as one of 'custom'; but we shall not use this term, because it
often implies that the customary rules are very old and sup
ported with less social pressure than other rules. To avoid
these implications we shall refer to such a social structure as
one of primary rules of obligation. If a society is to live by
such primary rules alone, there are certain conditions which,
granted a few of the most obvious truisms about human nature
and the world we live in, must clearly be satisfied. The first
of these conditions is that the rules must contain in some
form restrictions on the free use of violence, theft, and decep
tion to which human beings are tempted but which they must,
in general, repress, if they are to coexist in close proximity to
each other. Such rules are in fact always found in the primi
tive societies of which we have knowledge, together with a
variety of others imposing on individuals various positive duties
to perform services or make contributions to the common life.
Secondly, though such a society may exhibit the tension,
92
LAW AS THE UNION OF
already described, between those who accept the rules and
those who reject the rules except where fear of social pressure
induces them to conform, it is plain that the latter cannot be
more than a minority, if so loosely organized a society of
persons, approximately equal in physical strength, is to en
dure: for otherwise those who reject the rules would have too
little social pressure to fear. This too is confirmed by what we
know of primitive communities where, though there are dis
sidents and malefactors, the majority live by the rules seen
from the internal point of view.
More important for our present purpose is the following
consideration. It is plain that only a small community closely
knit by ties of kinship, common sentiment, and belief, and
placed in a stable environment, could live successfully by
such a regime of unofficial rules. In any other conditions such
a simple form of social control must prove defective and will
require supplementation in different ways. In the first place,
the rules by which the group lives will not form a system, but
will simply be a set of separate standards, without any iden
tifying or common mark, except of course that they are the
rules which a particular group ofhuman beings accepts. They
will in this respect resemble our own rules of etiquette. Hence
if doubts arise as to what the rules are or as to the precise
scope of some given rule, there will be no procedure for set
tling this doubt, either by reference to an authoritative text or
to an official whose declarations on this point are authorita
tive. For, plainly, such a procedure and the acknowledge
ment of either authoritative text or persons involve the
existence of rules of a type different from the rules of obliga
tion or duty which ex hypothesi are all that the group has. This
defect in the simple social structure of primary rules we may | Clarendon |
call its uncertainty.
A second defect is the static character of the rules. The only
mode of change in the rules known to such a society will be
the slow process of growth, whereby courses of conduct once
thought optional become first habitual or usual, and then
obligatory, and the converse process of decay, when devia
tions, once severely dealt with, are first tolerated and then
pass unnoticed. There will be no means, in such a society, of
deliberately adapting the rules to changing circumstances,
PRIMARY AND SECONDARY RULES
93
either by eliminating old rules or introducing new ones: for,
again, the possibility of doing this presupposes the existence
of rules of a different type from the primary rules of obliga
tion by which alone the society lives. In an extreme case the
rules may be static in a more drastic sense. This, though
never perhaps fully realized in any actual community, is worth
considering because the remedy for it is something very char
acteristic of law. In this extreme case, not only would there
be no way of deliberately changing the general rules, but the
obligations which arise under the rules in particular cases
could not be varied or modified by the deliberate choice of
any individual. Each individual would simply have fixed
obligations or duties to do or abstain from doing certain things.
It might indeed very often be the case that others would
benefit from the performance of these obligations; yet if there
are only primary rules of obligation they would have no power
to release those bound from performance or to transfer to
others the benefits which would accrue from performance.
For such operations of release or transfer create changes in
the initial positions of individuals under the primary rules of
obligation, and for these operations to be possible there must
be rules of a sort different from the primary rules.
The third defect of this simple form of social life is the
inif.ficienqy of the diffuse social pressure by which the rules are
maintained. Disputes as to whether an admitted rule has or
has not been violated will always occur and will, in any but
the smallest societies, continue interminably, if there is no
agency specially empowered to ascertain finally, and author
itatively, the fact of violation. Lack of such final and author
itative determinations is to be distinguished from another
weakness associated with it. This is the fact that punishments
for violations of the rules, and other forms of social pressure
involving physical effort or the use of force, are not adminis
tered by a special agency but are left to the individuals
affected or to the group at large. It is obvious that the waste of
time involved in the group's unorganized efforts to catch and
punish offenders, and the smouldering vendettas which may
result from self-help in the absence of an official monopoly of
'sanctions', may be serious. The history of law does, however,
strongly suggest that the lack of official agencies to determine
LAW AS THE UNION OF
94
authoritatively the fact of violation of the rules is a much
more serious defect; for many societies have remedies for this
defect long before the other.
The remedy for each of these three main defects in this
simplest form of social structure consists in supplementing
the primary rules of obligation with secondary rules which are
rules of a different kind. The introduction of the remedy for
each defect might, in itself, be considered a step from the pre
legal into the legal world; since each remedy brings with it
many elements that permeate law: certainly all three rem
edies together are enough to convert the regime of primary
rules into what is indisputably a legal system. We shall con | Clarendon |
sider in turn each of these remedies and show why law may
most illuminatingly be characterized as a union of primary
rules of obligation with such secondary rules. Before we do
this, however, the following general points should be noted.
Though the remedies consist in the introduction of rules which
are certainly different from each other, as well as from the
primary rules of obligation which they supplement, they have
important features in common and are connected in various
ways. Thus they may all be said to be on a different level
from the primary rules, for they are all about such rules; in the
sense that while primary rules are concerned with the actions
that individuals must or must not do, these secondary rules
are all concerned with the primary rules themselves. They
specify the ways in which the primary rules may be conclu
sively ascertained, introduced, eliminated, varied, and the fact
of their violation conclusively determined.
The simplest form of remedy for the uncertainty of the re
gime of primary rules is the introduction of what we shall call
a 'rule of recognition'. This will specifY some feature or features
possession of which by a suggested rule is taken as a conclu
sive affirmative indication that it is a rule of the group to be
supported by the social pressure it exerts. The existence of
such a rule of recognition may take any of a huge variety of
forms, simple or complex. It may, as in the early law of many
societies, be no more than that an authoritative list or text of
the rules is to be found in a written document or carved on
some public monument. No doubt as a matter of history this
step from the pre-legal to the legal may be accomplished in
PRIMARY AND SECONDARY RULES
95
distinguishable stages, of which the first is the mere reduction
to writing of hitherto unwritten rules. This is not itself the
crucial step, though it is a very important one: what is crucial
is the acknowledgement of reference to the writing or inscrip
tion as authoritative, i.e. as the proper way of disposing of doubts
as to the existence of the rule. Where there is such an ac
knowledgement there is a very simple form of secondary rule:
a rule for conclusive identification of the primary rules of
obligation.
In a developed legal system the rules of recognition are of
course more complex; instead of identifying rules exclusively
by reference to a text or list they do so by reference to some
general characteristic possessed by the primary rules. This
may be the fact of their having been enacted by a specific
body, or their long customary practice, or their relation to
judicial decisions. Moreover, where more than one of such
general characteristics are treated as identifying criteria,
provision may be made for their possible conflict by their
arrangement in an order of superiority, as by the common
subordination of custom or precedent to statute, the latter
being a 'superior source' of law. Such complexity may make
the rules of recognition in a modern legal system seem very
different from the simple acceptance of an authoritative text:
yet even in this simplest form, such a rule brings with it many
elements distinctive oflaw. By providing an authoritative mark
it introduces, although in embryonic form, the idea of a legal
system: for the rules are now not just a discrete unconnected
set but are, in a simple way, unified. Further, in the simple
operation of identifying a given rule as possessing the re
quired feature of being an item on an authoritative list of
rules we have the germ of the idea of legal validity.
The remedy for the static quality of the regime of primary
rules consists in the introduction of what we shall call 'rules | Clarendon |
of change'. The simplest form of such a rule is that which
empowers an individual or body of persons to introduce new
primary rules for the conduct of the life of the group, or of
some class within it, and to eliminate old rules. As we have
already argued in Chapter IV it is in terms of such a rule,
and not in terms of orders backed by threats, that the ideas
oflegislative enactment and repeal are to be understood. Such
g6
LAW AS THE UNION OF
rules of change may be very simple or very complex: the
powers conferred may be unrestricted or limited in various
ways: and the rules may, besides specifying the persons who
are to legislate, define in more or less rigid terms the proce
dure to be followed in legislation. Plainly, there will be a very
close connection between the rules of change and the rules of
recognition: for where the former exists the latter will neces
sarily incorporate a reference to legislation as an identifying
feature of the rules, though it need not refer to all the details
of procedure involved in legislation. Usually some official
certificate or official copy will, under the rules of recognition,
be taken as a sufficient proof of due enactment. Of course if
there is a social structure so simple that the only 'source of
law' is legislation, the rule of recognition will simply specify
enactment as the unique identifying mark or criterion of
validity of the rules. This will be the case for example in the
imaginary kingdom of Rex I depicted in Chapter IV: there
the rule of recognition would simply be that whatever Rex I
enacts is law.
We have already described in some detail the rules which
confer on individuals power to vary their initial positions under
the primary rules. Without such private power-conferring rules
society would lack some of the chief amenities which law
confers upon it. For the operations which these rules make
possible are the making of wills, contracts, transfers of pro
perty, and many other voluntarily created structures of rights
and duties which typify life under law, though of course an
elementary form of power-conferring rule also underlies the
moral institution of a promise. The kinship of these rules with
the rules of change involved in the notion of legislation is
clear, and as recent theory such as Kelsen's has shown, many
of the features which puzzle us in the institutions of contract
or property are clarified by thinking of the operations of mak
ing a contract or transferring property as the exercise of limited
legislative powers by individuals.
The third supplement to the simple regime of primary rules,
intended to remedy the inefjiciency of its diffused social pres
sure, consists of secondary rules empowering individuals to
make authoritative determinations of the question whether,
on a particular occasion, a primary rule has been broken.
PRIMARY AND SECONDARY RULES
97
The minimal form of adjudication consists in such deter
minations, and we shall call the secondary rules which confer
the power to make them 'rules of adjudication'. Besides
identifying the individuals who are to adjudicate, such rules
will also define the procedure to be followed. Like the other
secondary rules these are on a different level from the primary
rules: though they may be reinforced by further rules impos
ing duties on judges to adjudicate, they do not impose duties
but confer judicial powers and a special status on judicial de
clarations about the breach of obligations. Again these rules,
like the other secondary rules, define a group of important
legal concepts: in this case the concepts of judge or court,
jurisdiction and judgment. Besides these resemblances to | Clarendon |
the other secondary rules, rules of adjudication have intim
ate connections with them. Indeed, a system which has rules
of adjudication is necessarily also committed to a rule of
recognition of an elementary and imperfect sort. This is so
because, if courts are empowered to make authoritative
determinations of the fact that a rule has been broken, these
cannot avoid being taken as authoritative determinations of
what the rules are. So the rule which confers jurisdiction will
also be a rule of recognition, identifying the primary rules
through the judgments of the courts and these judgments will
become a 'source' of law. It is true that this form of rule of
recognition, inseparable from the minimum form of jurisdic
tion, will be very imperfect. Unlike an authoritative text or a
statute book, judgments may not be couched in general terms
and their use as authoritative guides to the rules depends on
a somewhat shaky inference from particular decisions, and
the reliability of this must fluctuate both with the skill of the
interpreter and the consistency of the judges.
It need hardly be said that in few legal systems are judicial
powers confined to authoritative determinations of the fact of
violation of the primary rules. Most systems have, after some
delay, seen the advantages of further centralization of social
pressure; and have partially prohibited the use of physical
punishments or violent self help by private individuals. In
stead they have supplemented the primary rules of obligation
by further secondary rules, specifying or at least limiting the
penalties for violation, and have conferred upon judges, where
g8
LAW AS THE UNION OF
they have ascertained the fact of violation, the exclusive power
to direct the application of penalties by other officials. These
secondary rules provide the centralized official 'sanctions' of
the system.
If we stand back and consider the structure which has
resulted from the combination of primary rules of obligation
with the secondary rules of recognition, change and adjudica
tion, it is plain that we have here not only the heart of a legal
system, but a most powerful tool for the analysis of much that
has puzzled both the jurist and the political theorist.
Not only are the specifically legal concepts with which the
lawyer is professionally concerned, such as those of obligation
and rights, validity and source of law, legislation and juris
diction, and sanction, best elucidated in terms of this com
bination of elements. The concepts (which bestride both law
and political theory) of the state, of authority, and of an
official require a similar analysis if the obscurity which still
lingers about them is to be dissipated. The reason why an
analysis in these terms of primary and secondary rules has
this explanatory power is not far to seek. Most of the obscur
ities and distortions surrounding legal and political concepts
arise from the fact that these essentially involve reference to
what we have called the internal point of view: the view of
those who do not merely record and predict behaviour con
forming to rules, but use the rules as standards for the appraisal
oftheir own and others' behaviour. This requires more detailed
attention in the analysis of legal and political concepts than
it has usually received. Under the simple regime of primary
rules the internal point of view is manifested in its simplest
form, in the use of those rules as the basis of criticism, and
as the justification of demands for conformity, social pressure,
and punishment. Reference to this most elementary manifes
tation of the internal point ofview is required for the analysis
of the basic concepts of obligation and duty. With the addition | Clarendon |
to the system of secondary rules, the range of what is said and
done from the internal point of view is much extended and
diversified. With this extension comes a whole set of new
concepts and they demand a reference to the internal point of
view for their analysis. These include the notions of legis
lation, jurisdiction, validity, and, generally, of legal powers,
PRIMARY AND SECONDARY RULES
99
private and public. There is a constant pull towards an analysis
of these in the terms of ordinary or 'scientific', fact-stating or
predictive discourse. But this can only reproduce their external
aspect: to do justice to their distinctive, internal aspect we
need to see the different ways in which the law-making oper
ations of the legislator, the adjudication of a court, the exercise
of private or official powers, and other 'acts-in-the-law' are
related to secondary rules.
In the next chapter we shall, show how the ideas of the
validity oflaw and sources oflaw, and the truths latent among
the errors of the doctrines of sovereignty may be rephrased
and clarified in terms of rules of recognition. But we shall
conclude this chapter with a warning: though the combina
tion of primary and secondary rules merits, because it ex
plains many aspects of law, the central place assigned to it,
this, cannot by itself illuminate every problem. The union of
primary and secondary rules is at the centre of a legal system;
but it is not the whole, and as we move away from the centre
we shall have to accommodate, in ways indicated in later
chapters, elements of a different character.
VI
THE FOUNDATIONS OF A
LEGAL SYSTEM
I. RULE OF RECOGNITION AND LEGAL VALIDITY
AccoRDING to the theory criticized in Chapter IV the foun
dations of a legal system consist of the situation in which the
majority of a social group habitually obey the orders backed
by threats of the sovereign person or persons, who themselves
habitually obey no one. This social situation is, for this theory,
both a necessary and a sufficient condition of the existence
of law. We have already exhibited in some detail the incapa
city of this theory to account for some of the salient features
of a modern municipal legal system: yet none the less, as its
hold over the minds of many thinkers suggests, it does con
tain, though in a blurred and misleading form, certain truths
about certain important aspects of law. These truths can, how
ever, only be clearly presented, and their importance rightly
assessed, in terms of the more complex social situation where
a secondary rule of recognition is accepted and used for the
identification of primary rules of obligation. It is this situation
which deserves, if anything does, to be called the foundations
of a legal system. In this chapter we shall discuss various ele
ments of this situation which have received only partial or mis
leading expression in the theory of sovereignty and elsewhere.
Wherever such a rule of recognition is accepted, both pri
vate persons and officials are provided with authoritative
criteria for identifying primary rules of obligation. The cri
teria so provided may, as we have seen, take any one or more
of a variety of forms: these include reference to an author
itative text; to legislative enactment; to customary practice; to
general declarations of specified persons, or to past judicial
decisions in particular cases. In a very simple system like
the world of Rex I depicted in Chapter IV, where only
what he enacts is law and no legal limitations upon his legis
lative power are imposed by customary rule or constitutional
THE FOUNDATIONS OF A LEGAL SYSTEM
101
document, the sole criterion for identifying the law will be a
simple reference to the fact of enactment by Rex I. The ex | Clarendon |
istence of this simple form of rule of recognition will be mani
fest in the general practice, on the part of officials or private
persons, of identifying the rules by this criterion. In a modern
legal system where there are a variety of 'sources' of law, the
rule of recognition is correspondingly more complex: the
criteria for identifying the law are multiple and commonly
include a written constitution, enactment by a legislature,
and judicial precedents. In most cases, provision is made for
possible conflict by ranking these criteria in an order of rela
tive subordination and primacy. It is in this way that in our
system 'common law' is subordinate to 'statute'.
It is important to distinguish this relative subordination of one
criterion to another from derivation, since some spurious sup
port for the view that all law is essentially or 'really' (even if
only 'tacitly') the product of legislation, has been gained from
confusion of these two ideas. In our own system, custom and
precedent are subordinate to legislation since customary and
common law rules may be deprived of their status as law by
statute. Yet they owe their status of law, precarious as this
may be, not to a 'tacit' exercise of legislative power but to the
acceptance of a rule of recognition which accords them this
independent though subordinate place. Again, as in the sim
ple case, the existence of such a complex rule of recognition
with this hierarchical ordering of distinct criteria is mani
fested in the general practice of identifying the rules by such
criteria.
In the day-to-day life of a legal system its rule of recogni
tion is very seldom expressly formulated as a rule; though
occasionally, courts in England may announce in general terms
the relative place of one criterion of law in relation to an
other, as when they assert the supremacy of Acts of Parlia
ment over other sources or suggested sources of law. For the
most part the rule of recognition is not stated, but its exist
ence is shown in the way in which particular rules are identi
fied, either by courts or other officials or private persons or
their advisers. There is, of course, a difference in the use
made by courts of the criteria provided by the rule and the
use of them by others: for when courts reach a particular
102
THE FOUNDATIONS OF A LEGAL SYSTEM
conclusion on the footing that a particular rule has been cor
rectly identified as law, what they say has a special author
itative status conferred on it by other rules. In this respect, as
in many others, the rule of recognition of a legal system is like
the scoring rule of a game. In the course of the game the
general rule defining the activities which corrstitute scoring
(runs, goals, &c.) is seldom formulated; instead it is used by
officials and players in identifying the particular phases which
count towards winning. Here too, the declarations of officials
(umpire or scorer) have a special authoritative status attributed
to them by other rules. Further, in both cases there is the pos
sibility of a conflict between these authoritative applications
of the rule and the general understanding of what the rule
plainly requires according to its terms. This, as we shall see
later, is a complication which must be catered for in any
account of what it is for a system of rules of this sort to exist.
The use of unstated rules of recognition, by courts and
others, in identifying particular rules of the system is charac
teristic of the internal point of view. Those who use them in
this way thereby manifest their own acceptance of them as
guiding rules and with this attitude there goes a characteris
tic vocabulary different from the natural expressions of the | Clarendon |
external point of view. Perhaps the simplest of these is the
expression, 'It is the law that .. .', which we may find on
the lips not only of judges, but of ordinary men living under
a legal system, when they identify a given rule of the system.
This, like the expression 'Out' or 'Goal', is the language of
one assessing a situation by reference to rules which he in
common with others acknowledges as appropriate for this
purpose. This attitude of shared acceptance of rules is to be
contrasted with that of an observer who records ab extra the
fact that a social group accepts such rules but does not him
self accept them. The natural expression of this external point
of view is not 'It is the law that .. .' but 'In England they
recognize as law ... whatever the Queen in Parliament en
acts .... ' The first of these forms of expression we shall call
an internal statement because it manifests the internal point of
view and is naturally used by one who, accepting the rule of
recognition and without stating the fact that it is accepted,
applies the rule in recognizing some particular rule of the
THE FOUNDATIONS OF A LEGAL SYSTEM
103
system as valid. The second form of expression we shall call
an external statement because it is the natural language of an
external observer of the system who, without himself accept
ing its rule of recognition, states the fact that others accept it.
If this use of an accepted rule of recognition in making
internal statements is understood and carefully distinguished
from an external statement of fact that the rule is accepted,
many obscurities concerning the notion of legal 'validity' dis
appear. For the word 'valid' is most frequently, though not
always, used, in just such internal statements, applying to
a particular rule of a legal system, an unstated but accepted
rule of recognition. To say that a given rule is valid is to
recognize it as passing all the tests provided by the rule of
recognition and so as a rule of the system. We can indeed
simply say that the statement that a particular rule is valid
means that it satisfies all the criteria provided by the rule of
recognition. This is incorrect only to the extent that it might
obscure the internal character of such statements; for, like the
cricketers' 'Out', these statements of validity normally apply
to a particular case a rule of recognition accepted by the
speaker and others, rather than expressly state that the rule
is satisfied.
Some of the puzzles connected with the idea of legal valid
ity are said to concern the relation between the validity and
the 'efficacy' of law. lfby 'efficacy' is meant that the fact that
a rule of law which requires certain behaviour is obeyed more
often than not, it is plain that there is no necessary connec
tion between the validity of any particular rule and its effi
cacy, unless the rule of recognition of the system includes
among its criteria, as some do, the provision (sometimes re
ferred to as a rule of obsolescence) that no rule is to count as
a rule of the system if it has long ceased to be efficacious.
From the inefficacy of a particular rule, which may or may
not count against its validity, we must distinguish a general
disregard of the rules of the system. This may be so complete
in character and so protracted that we should say, in the case
of a new system, that it had never established itself as the legal
system of a given group, or, in the case of a once-established
system, that it had ceased to be the legal system of the group.
In either case, the normal context or background for making
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THE FOUNDATIONS OF A LEGAL SYSTEM
any internal statement in terms of the rules of the system is | Clarendon |
absent. In such cases it would be generally pointless either to
assess the rights and duties of particular persons by reference
to the primary rules of a system or to assess the validity of
any of its rules by reference to its rules of recognition. To
insist on applying a system of rules which had either never
actually been effective or had been discarded would, except
in special circumstances mentioned below, be as futile as to
assess the progress of a game by reference to a scoring rule
which had never been accepted or had been discarded.
One who makes an internal statement concerning the
validity of a particular rule of a system may be said to presuppose
the truth of the external statement of fact that the system is
generally efficacious. For the normal use of internal state
ments is in such a context of general efficacy. It would how
ever be wrong to say that statements of validity 'mean' that
the system is generally efficacious. For though it is normally
pointless or idle to talk of the validity of a rule of a system
which has never established itself or has been discarded, none
the less it is not meaningless nor is it always pointless. One
vivid way of teaching Roman Law is to speak as if the system
were efficacious still and to discuss the validity of particular
rules and solve problems in their terms; and one way of nursing
hopes for the restoration of an old social order destroyed by
revolution, and rejecting the new, is to cling to the criteria of
legal validity of the old regime. This is implicitly done by the
White Russian who still claims property under some rule of
descent which was a valid rule of Tsarist Russia.
A grasp of the normal contextual connection between the
internal statement that a given rule of a system is valid and
the external statement of fact that the system is generally
efficacious, will help us see in its proper perspective the com
mon theory that to assert the validity of a rule is to predict
that it will be enforced by courts or some other official action
taken. In many ways this theory is similar to the predictive
analysis of obligation which we considered and rejected in the
last chapter. In both cases alike the motive for advancing this
predictive theory is the conviction that only thus can meta
physical interpretations be avoided: that either a statement
that a rule is valid must ascribe some mysterious property
THE FOUNDATIONS OF A LEGAL SYSTEM
ros
which cannot be detected by empirical means or it must be
a prediction of future behaviour of officials. In both cases also
the plausibility of the theory is due to the same important
fact: that the truth of the external statement of fact, which an
observer might record, that the system is generally efficacious
and likely to continue so, is normally presupposed by anyone
who accepts the rules and makes an internal statement of
obligation or validity. The two are certainly very closely as
sociated. Finally, in both cases alike the mistake of the theory
is the same: it consists in neglecting the special character of
the internal statement and treating it as an external state
ment about official action.
This mistake becomes immediately apparent when we con
sider how the judge's own statement that a particular rule is
valid functions in judicial decision; for, though here too, in
making such a statement, the judge presupposes but does not
state the general efficacy of the system, he plainly is not con
cerned to predict his own or others' official action. His state
ment that a rule is valid is an internal statement recognizing
that the rule satisfies the tests for identifying what is to count
as law in his court, and constitutes not a prophecy of but part | Clarendon |
of the reason for his decision. There is indeed a more plausible
case for saying that a statement that a rule is valid is a pre
diction when such a statement is made by a private person;
for in the case of conflict between unofficial statements of
validity or invalidity and that of a court in deciding a case,
there is often good sense in saying that the former must then
be withdrawn. Yet even here, as we shall see when we come
in Chapter VII to investigate the significance of such conflicts
between official declarations and the plain requirements of
the rules, it may be dogmatic to assume that it is withdrawn
as a statement now shown to be wrong, because it has falsely
predicted what a court would say. For there are more reasons
for withdrawing statements than the fact that they are wrong,
and also more ways of being wrong than this allows.
The rule of recognition providing the criteria by which the
validity of other rules of the system is assessed is in an impor
tant sense, which we shall try to clarify, an ultimate rule: and
where, as is usual, there are several criteria ranked in order
of relative subordination and primacy one of them is supreme.
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THE FOUNDATIONS OF A LEGAL SYSTEM
These ideas of the ultimacy of the rule of recognition and the
supremacy of one of its criteria merit some attention. It is
important to disentangle them from the theory, which we
have rejected, that somewhere in every legal system, even
though it lurks behind legal forms, there must be a sovereign
legislative power which is legally unlimited.
Of these two ideas, supreme criterion and ultimate rule,
the first is the easiest to define. We may say that a criterion
of legal validity or source of law is supreme if rules identified
by reference to it are still recognized as rules of the system,
even if they conflict with rules identified by reference to the
other criteria, whereas rules identified by reference to the
latter are not so recognized if they conflict with the rules
identified by reference to the supreme criterion. A similar
explanation in comparative terms can be given of the notions
of 'superior' and 'subordinate' criteria which we have already
used. It is plain that the notions of a superior and a supreme
criterion merely refer to a relative place on a scale and do not
import any notion of legally unlimited legislative power. Yet
'supreme' and 'unlimited' are easy to confuse-at least in
legal theory. One reason for this is that in the simpler forms
of legal system the ideas of ultimate rule of recognition,
supreme criterion, and legally unlimited legislature seem to
converge. For where there is a legislature subject to no con
stitutional limitations and competent by its enactment to
deprive all other rules of law emanating from other sources of
their status as law, it is part of the rule of recognition in such
a system that enactment by that legislature is the supreme
criterion of validity. This is, according to constitutional theory,
the position in the United Kingdom. But even systems like
that of the United States in which there is no such legally
unlimited legislature may perfectly well contain an ultimate
rule of recognition which provides a set of criteria of validity,
one of which is supreme. This will be so, where the legislative
competence of the ordinary legislature is limited by a consti
tution which contains no amending power, or places some
clauses outside the scope of that power. Here there is no
legally unlimited legislature, even in the widest interpretation
of 'legislature'; but the system of course contains an ultimate
rule of recognition and, in the clauses of its constitution, a
supreme criterion of validity.
| Clarendon |
THE FOUNDATIONS OF A LEGAL SYSTEM
ro7
The sense in which the rule of recognition is the ultimate
rule of a system is best understood if we pursue a very famil
iar chain of legal reasoning. If the question is raised whether
some suggested rule is legally valid, we must, in order to
answer the question, use a criterion of validity provided by
some other rule. Is this purported by-law of the Oxfordshire
County Council valid? Yes: because it was made in exercise
of the powers conferred, and in accordance with the procedure
specified, by a statutory order made by the Minister of Health.
At this first stage the statutory order provides the criteria in
terms of which the validity of the by-law is assessed. There
may be no practical need to go farther; but there is a standing
possibility of doing so. We may query the validity of the
statutory order and assess its validity in terms of the statute
empowering the minister to make such orders. Finally, when
the validity of the statute has been queried and assessed by
reference to the rule that what the Queen in Parliament en
acts is law, we are brought to a stop in inquiries concerning
validity: for we have reached a rule which, like the inter
mediate statutory order and statute, provides criteria for the
assessment of the validity of other rules; but it is also unlike
them in that there is no rule providing criteria for the assess
ment of its own legal validity.
There are, indeed, many questions which we can raise about
this ultimate rule. We can ask whether it is the practice of
courts, legislatures, officials, or private citizens in England
actually to use this rule as an ultimate rule of recognition. Or
has our process of legal reasoning been an idle game with the
criteria of validity of a system now discarded? We can ask
whether it is a satisfactory form of legal system which has
such a rule at its root. Does it produce more good than evil?
Are there prudential reasons for supporting it? Is there a
moral obligation to do so? These are plainly very important
questions; but, equally plainly, when we ask them about the
rule of recognition, we are no longer attempting to answer the
same kind of question about it as those which we answered
about other rules with its aid. When we move from saying
that a particular enactment is valid, because it satisfies the
rule that what the Queen in Parliament enacts is law, to
saying that in England this last rule is used by courts, offi
cials, and private persons as the ultimate rule of recognition,
ro8
THE FOUNDATIONS OF A LEGAL SYSTEM
we have moved from an internal statement of law asserting
the validity of a rule of the system to an external statement
of fact which an observer of the system might make even if he
did not accept it. So too when we move from the statement
that a particular enactment is valid, to the statement that the
rule of recognition of the system is an excellent one and the
system based on it is one worthy of support, we have moved
from a statement of legal validity to a statement of value.
Some writers, who have emphasized the legal ultimacy of
the rule of recognition, have expressed this by saying that,
whereas the legal validity of other rules of the system can be
demonstrated by reference to it, its own validity cannot be
demonstrated but is 'assumed' or 'postulated' or is a 'hypothe
sis'. This may, however, be seriously misleading. Statements
oflegal validity made about particular rules in the day-to-day
life of a legal system whether by judges, lawyers, or ordinary
citizens do indeed carry with them certain presuppositions.
They are internal statements of law expressing the point of | Clarendon |
view of those who accept the rule of recognition of the system
and, as such, leave unstated much that could be stated in
external statements of fact about the system. What is thus left
unstated forms the normal background or context of state
ments of legal validity and is thus said to be 'presupposed' by
them. But it is important to see precisely what these presup
posed matters are, and not to obscure their character. They
consist of two things. First, a person who seriously asserts the
validity of some given rule of law, say a particular statute,
himself makes use of a rule of recognition which he accepts as
appropriate for identifying the law. Secondly, it is the case
that this rule of recognition, in terms of which he assesses the
validity of a particular statute, is not only accepted by him
but is the rule of recognition actually accepted and employed
in the general operation of the system. If the truth of this
presupposition were doubted, it could be established by ref
erence to actual practice: to the way in which courts identify
what is to count as law, and to the general acceptance of or
acquiescence in these identifications.
Neither of these two presuppositions are well described as
'assumptions' of a 'validity' which cannot be demonstrated.
We only need the word 'validity', and commonly only use it,
THE FOUNDATIONS OF A LEGAL SYSTEM
109
to answer questions which arise within a system of rules where
the status of a rule as a member of the system depends on its
satisfying certain criteria provided by the rule of recognition.
No such question can arise as to the validity of the very rule
of recognition which provides the criteria; it can neither be
valid nor invalid but is simply accepted as appropriate for
use in this way. To express this simple fact by saying darkly
that its validity is 'assumed but cannot be demonstrated', is
like saying that we assume, but can never demonstrate, that
the standard metre bar in Paris which is the ultimate test of
the correctness of all measurement in metres, is itself correct.
A more serious objection is that talk of the 'assumption'
that the ultimate rule of recognition is valid conceals the
essentially factual character of the second presupposition which
lies behind the lawyers' statements ofvalidity. No doubt the
practice of judges, officials, and others, in which the actual
existence of a rule of recognition consists, is a complex
matter. As we shall see later, there are certainly situations in
which questions as to the precise content and scope of this
kind of rule, and even as to its existence, may not admit of a
clear or determinate answer. None the less it is important to
distinguish 'assuming the validity' from 'presupposing the ex
istence' of such a rule; if only because failure to do this ob
scures what is meant by the assertion that such a rule exists.
In the simple system of primary rules of obligation sketched
in the last chapter, the assertion that a given rule existed
could only be an external statement of fact such as an ob
server who did not accept the rules might make and verify by
ascertaining whether or not, as a matter of fact, a given mode
of behaviour was generally accepted as a standard and was
accompanied by those features which, as we have seen, distin
guish a social rule from mere convergent habits. It is in this
way also that we should now interpret and verify the assertion
that in England a rule-though not a legal one-exists that
we must bare the head on entering a church. If such rules
as these are found to exist in the actual practice of a social
group, there is no separate question of their validity to be
discussed, though of course their value or desirability is open | Clarendon |
to question. Once their existence has been established as a
fact we should only confuse matters by affirming or denying
110
THE FOUNDATIONS OF A LEGAL SYSTEM
that they were valid or by saying that 'we assumed' but could
not show their validity. Where, on the other hand, as in a
mature legal system, we have a system of rules which includes
a rule of recognition so that the status of a rule as a member
of the system now depends on whether it satisfies certain
criteria provided by the rule of recognition, this brings with
it a new application ofthe word 'exist'. The statement that a
rule exists may now no longer be what it was in the simple
case of customary rules-an external statement of the fact that
a certain mode of behaviour was generally accepted as a
standard in practice. It may now be an internal statement
applying an accepted but unstated rule of recognition and
meaning (roughly) no more than 'valid given the system's
criteria of validity'. In this respect, however, as in others a
rule of recognition is unlike other rules of the system. The
assertion that it exists can only be an external statement of
fact. For whereas a subordinate rule of a system may be valid
and in that sense 'exist' even if it is generally disregarded, the
rule of recognition exists only as a complex, but normally
concordant, practice of the courts, officials, and private per
sons in identifying the law by reference to certain criteria. Its
existence is a matter of fact.
2. NEW QUESTIONS
Once we abandon the view that the foundations of a legal
system consist in a habit of obedience to a legally unlimited
sovereign and substitute for this the conception of an ultimate
rule of recognition which provides a system of rules with its
criteria ofvalidity, a range of fascinating and important ques
tions confronts us. They are relatively new questions; for they
were veiled so long as jurisprudence and political theory were
committed to the older ways of thought. They are also diffi
cult questions, requiring for a full answer, on the one hand a
grasp of some fundamental issues of constitutional law and
on the other an appreciation of the characteristic manner in
which legal forms may silently shift and change. We shall
therefore investigate these questions only so far as they bear
upon the wisdom or unwisdom of insisting, as we have done,
that a central place should be assigned to the union of primary
and secondary rules in the elucidation of the concept of law.
THE FOUNDATIONS OF A LEGAL SYSTEM
I I I
The first difficulty is that of classification; for the rule which,
in the last resort, is used to identify the law escapes the con
ventional categories used for describing a legal system, though
these are often taken to be exhaustive. Thus, English consti
tutional writers since Dicey have usually repeated the state
ment that the constitutional arrangements of the United
Kingdom consist partly of laws strictly so called (statutes,
orders in council, and rules embodied in precedents) and
partly of conventions which are mere usages, understandings,
or customs. The latter include important rules such as that
the Queen may not refuse her consent to a bill duly passed
by Peers and Commons; there is, however, no legal duty on
the Queen to give her consent and such rules are called con
ventions because the courts do not recognize them as impos
ing a legal duty. Plainly the rule that what the Queen in
Parliament enacts is law does not fall into either of these
categories. It is not a convention, since the courts are most
intimately concerned with it and they use it in identifying the
law; and it is not a rule on the same level as the 'laws strictly | Clarendon |
so called' which it is used to identify. Even if it were enacted
by statute, this would not reduce it to the level of a statute;
for the legal status of such an enactment necessarily would
depend on the fact that the rule existed antecedently to and
independently of the enactment. Moreover, as we have shown
in the last section, its existence, unlike that of a statute, must
consist in an actual practice.
This aspect of things extracts from some a cry of despair:
how can we show that the fundamental provisions of a con
stitution which are surely law are really law? Others reply
with the insistence that at the base of legal systems there is
something which is 'not law', which is 'pre-legal', 'meta
legal', or is just 'political fact'. This uneasiness is a sure sign
that the categories used for the description of this most im
portant feature in any system of law are too crude. The case
for calling the rule of recognition 'law' is that the rule provid
ing criteria for the identification of other rules of the system
may well be thought a defining feature of a legal system, and
so itselfworth calling 'law'; the case for calling it 'fact' is that
to assert that such a rule exists is indeed to make an external
statement of an actual fact concerning the manner in which
112
THE FOUNDATIONS OF A LEGAL SYSTEM
the rules of an 'efficacious' system are identified. Both these
aspects claim attention but we cannot do justice to them both
by choosing one of the labels 'law' or 'fact'. Instead, we need
to remember that the ultimate rule of recognition may be
regarded from two points of view: one is expressed in the
external statement of fact that the rule exists in the actual
practice of the system; the other is expressed in the internal
statements of validity made by those who use it in identifying
the law.
A second set of questions arises out of the hidden complex
ity and vagueness of the assertion that a legal system exists
in a given country or among a given social group. When we
make this assertion we in fact refer in compressed, portman
teau form to a number of heterogeneous social facts, usually
concomitant. The standard terminology of legal and political
thought, developed in the shadow of a misleading theory, is
apt to oversimplify and obscure the facts. Yet when we take
off the spectacles constituted by this terminology and look
at the facts, it becomes apparent that a legal system, like a
human being, may at one stage be unborn, at a second not
yet wholly independent of its mother, then enjoy a healthy
independent existence, later decay and finally die. These half
way stages between birth and normal, independent existence
and, again, between that and death, put out of joint our
familiar ways of describing legal phenomena. They are worth
our study because, baffiing as they are, they throw into relief
the full complexity of what we take for granted when, in the
normal case, we make the confident and true assertion that in
a given country a legal system exists.
One way of realizing this complexity is to see just where
the simple, Austinian formula of a general habit of obedience
to orders fails to reproduce or distorts the complex facts which
constitute the minimum conditions which a society must
satisfy if it is to have a legal system. We may allow that this
formula does designate one necessary condition: namely, that
where the laws impose obligations or duties these should be
generally obeyed or at any rate not generally disobeyed. But,
though essential, this only caters for what we may term the
'end product' of the legal system, where it makes its impact
on the private citizen; whereas its day-to-day existence consists
| Clarendon |
THE FOUNDATIONS OF A LEGAL SYSTEM
113
also in the official creation, the official identification, and the
official use and application of law. The relationship with law
involved here can be called 'obedience' only if that word is
extended so far beyond its normal use as to cease to charac
terize informatively these operations. In no ordinary sense of
'obey' are legislators obeying rules when, in enacting laws,
they conform to the rules conferring their legislative powers,
except of course when the rules conferring such powers are
reinforced by rules imposing a duty to follow them. Nor, in
failing to conform with these rules do they 'disobey' a law,
though they may fail to make one. Nor does the word 'obey'
describe well what judges do when they apply the system's
rule of recognition and recognize a statute as valid law and
use it in the determination of disputes. We can of course, if
we wish, preserve the simple terminology of 'obedience' in
face of the facts by many devices. One is to express, e.g. the
use made by judges of general criteria of validity in recog
nizing a statute, as a case of obedience to orders given by
the 'Founders of the Constitution', or (where there are
no 'Founders') as obedience to a 'depsychologized command'
i.e. a command without a commander. But this last should
perhaps have no more serious claims on our attention than
the notion of a nephew without an uncle. Alternatively we
can push out of sight the whole official side to law and forgo
the description of the use of rules made in legislation and
adjudication, and instead, think of the whole official world as
one person (the 'sovereign') issuing orders, through various
agents or mouthpieces, which are habitually obeyed by the
citizen. But this is either no more than a convenient short
hand for complex facts which still await description, or a
disastrously confusing piece of mythology.
It is natural to react from the failure of attempts to give an
account of what it is for a legal system to exist, in the agree
ably simple terms of the habitual obedience which is indeed
characteristic of (though it does not always exhaustively
describe) the relationship of the ordinary citizen to law, by
making the opposite error. This consists in taking what is
characteristic (though again not exhaustive) of the official
activities, especially the judicial attitude or relationship to
law, and treating this as an adequate account of what must
114
THE FOUNDATIONS OF A LEGAL SYSTEM
exist in a social group which has a legal system. This amounts
to replacing the simple conception that the bulk of society
habitually obey the law with the conception that they must
generally share, accept, or regard as binding the ultimate rule
of recognition specifying the criteria in terms of which the
validity of laws are ultimately assessed. Of course we can
imagine, as we have done in Chapter III, a simple society
where knowledge and understanding of the sources of law are
widely diffused. There the 'constitution' was so simple that
no fiction would be involved in attributing knowledge and
acceptance of it to the ordinary citizen as well as to the
officials and lawyers. In the simple world of Rex I we might
well say that there was more than mere habitual obedience
by the bulk of the population to his word. There it might well
be the case that both they and the officials of the system
'accepted', in the same explicit, conscious way, a rule of re
cognition specifying Rex's word as the criterion of valid law
for the whole society, though subjects and officials would have
different roles to play and different relationships to the rules | Clarendon |
of law identified by this criterion. To insist that this state of
affairs, imaginable in a simple society, always or usually ex
ists in a complex modern state would be to insist on a fiction.
Here surely the reality of the situation is that a great propor
tion of ordinary citizens-perhaps a majority-have no gen
eral conception of the legal structure or of its criteria of validity.
The law which he obeys is something which he knows of only
as 'the law'. He may obey it for a variety of different reasons
and among them may often, though not always, be the
knowledge that it will be best for him to do so. He will be
aware of the general likely consequences of disobedience: that
there are officials who may arrest him and others who will try
him and send him to prison for breaking the law. So long as
the laws which are valid by the system's tests of validity are
obeyed by the bulk of the population this surely is all the
evidence we need in order to establish that a given legal
system exists.
But just because a legal system is a complex union of pri
mary and secondary rules, this evidence is not all that is
needed to describe the relationships to law involved in the
existence of a legal system. It must be supplemented by a
THE FOUNDATIONS OF A LEGAL SYSTEM
115
description of the relevant relationship of the officials of the
system to the secondary rules which concern them as officials.
Here what is crucial is that there should be a unified or
shared official acceptance of the rule of recognition contain
ing the system's criteria of validity. But it is just here that the
simple notion of general obedience, which was adequate to
characterize the indispensable minimum in the case of ordin
ary citizens, is inadequate. The point is not, or not merely,
the 'linguistic' one that 'obedience' is not naturally used to
refer to the way in which these secondary rules are respected
as rules by courts and other officials. We could find, if nec
essary, some wider expression like 'follow', 'comply', or 'con
form to' which would characterize both what ordinary citizens
do in relation to law when they report for military service and
what judges do when they identify a particular statute as law
in their courts, on the footing that what the Queen in Parlia
ment enacts is law. But these blanket terms would merely
mask vital differences which must be grasped ifthe minimum
conditions involved in the existence of the complex social phe
nomenon which we call a legal system is to be understood.
What makes 'obedience' misleading as a description of what
legislators do in conforming to the rules conferring their pow
ers, and of what courts do in applying an accepted ultimate
rule of recognition, is that obeying a rule (or an order) need
involve no thought on the part of the person obeying that
what he does is the right thing both for himself and for others
to do: he need have no view of what he does as a fulfilment
of a standard of behaviour for others of the social group. He
need not think of his conforming behaviour as 'right', 'cor
rect', or 'obligatory'. His attitude, in other words, need not
have any of that critical character which is involved when
ever social rules are accepted and types of conduct are treated
as general standards. He need not, though he may, share the
internal point of view accepting the rules as standards for all
to whom they apply. Instead, he may think of the rule only
as something demanding action from him under threat of
penalty; he may obey it out of fear of the consequences, or
from inertia, without thinking of himself or others as having
an obligation to do so and without being disposed to criticize
either himself or others for deviations. But this merely personal
| Clarendon |
THE FOUNDATIONS OF A LEGAL SYSTEM
116
concern with the rules, which is all the ordinary citizen may
have in obeying them, cannot characterize the attitude of the
courts to the rules with which they operate as courts. This is
most patently the case with the ultimate rule of recognition in
terms of which the validity of other rules is assessed. This, if
it is to exist at all, must be regarded from the internal point
of view as a public, common standard of correct judicial de
cision, and not as something which each judge merely obeys
for his part only. Individual courts of the system though they
may, on occasion, deviate from these rules must, in general,
be critically concerned with such deviations as lapses from
standards, which are essentially common or public. This is
not merely a matter of the efficiency or health of the legal
system, but is logically a necessary condition of our ability to
speak of the existence of a single legal system. If only some
judges acted 'for their part only' on the footing that what the
Queen in Parliament enacts is law, and made no criticisms of
those who did not respect this rule of recognition, the char
acteristic unity and continuity of a legal system would have
disappeared. For this depends on the acceptance, at this cru
cial point, of common standards of legal validity. In the in
terval between these vagaries of judicial behaviour and the
chaos which would ultimately ensue when the ordinary man
was faced with contrary judicial orders, we would be at a loss
to describe the situation. We would be in the presence of a
lusus naturae worth thinking about only because it sharpens
our awareness of what is often too obvious to be noticed.
There are therefore two minimum conditions necessary and
sufficient for the existence of a legal system. On the one hand,
those rules of behaviour which are valid according to the
system's ultimate criteria of validity must be generally obeyed,
and, on the other hand, its rules of recognition specifying the
criteria of legal validity and its rules of change and adjudica
tion must be effectively accepted as common public standards
of official behaviour by its officials. The first condition is the
only one which private citizens need satisfy: they may obey
each 'for his part only' and from any motive whatever; though
in a healthy society they will in fact often accept these rules
as common standards of behaviour and acknowledge an ob
ligation to obey them, or even trace this obligation to a more
THE FOUNDATIONS OF A LEGAL SYSTEM
117
general obligation to respect the constitution. The second
condition must also be satisfied by the officials of the system.
They must regard these as common standards of official
behaviour and appraise critically their own and each other's
deviations as lapses. Of course it is also true that besides
these there will be many primary rules which apply to offi
cials in their merely personal capacity which they need only
obey.
The assertion that a legal system exists is therefore aJ anus
faced statement looking both towards obedience by ordinary
citizens and to the acceptance by officials of secondary rules
as critical common standards of official behaviour. We need
not be surprised at this duality. It is merely the reflection of
the composite character of a legal system as compared with
a simpler decentralized pre-legal form of social structure which
consists only of primary rules. In the simpler structure, since
there are no officials, the rules must be widely accepted as
setting critical standards for the behaviour of the group. If,
there, the internal point of view is not widely disseminated
there could not logically be any rules. But where there is a | Clarendon |
union of primary and secondary rules, which is, as we have
argued, the most fruitful way of regarding a legal system, the
acceptance of the rules as common standards for the group
may be split off from the relatively passive matter of the
ordinary individual acquiescing in the rules by obeying them
for his part alone. In an extreme case the internal point of
view with its characteristic normative use of legal language
('This is a valid rule') might be confined to the official world.
In this more complex system, only officials might accept and
use the system's criteria oflegal validity. The society in which
this was so might be deplorably sheeplike; the sheep might
end in the slaughter-house. But there is little reason for think
ing that it could not exist or for denying it the title of a legal
system.
3· THE PATHOLOGY OF A LEGAL SYSTEM
Evidence for the existence of a legal system must therefore be
drawn from two different sectors of social life. The normal,
unproblematic case where we can say confidently that a legal
system exists, is just one where it is clear that the two sectors
118
THE FOUNDATIONS OF A LEGAL SYSTEM
are congruent in their respective typical concerns with the
law. Crudely put, the facts are, that the rules recognized as
valid at the official level are generally obeyed. Sometimes,
however, the official sector may be detached from the private
sector, in the sense that there is no longer general obedience
to the rules which are valid according to the criteria of valid
ity in use in the courts. The variety of ways in which this may
happen belongs to the pathology of legal systems; for they
represent a breakdown in the complex congruent practice
which is referred to when we make the external statement of
fact that a legal system exists. There is here a partial failure
of what is presupposed whenever, from within the particular
system, we make internal statements of law. Such a break
down may be the product of different disturbing factors.
'Revolution', where rival claims to govern are made from
within the group, is only one case, and though this will al
ways involve the breach of some of the laws of the existing
system, it may entail only the legally unauthorized substitu
tion of a new set of individuals as officials, and not a new
constitution or legal system. Enemy occupation, where a rival
claim to govern without authority under the existing system
comes from without, is another case; and the simple break
down of ordered legal control in the face of anarchy or ban
ditry without political pretensions to govern is yet another.
In each of these cases there may be half-way stages during
which the courts function, either on the territory or in exile,
and still use the criteria of legal validity of the old once firmly
established system; but these orders are ineffective in the
territory. The stage at which it is right to say in such cases
that the legal system has finally ceased to exist is a thing not
susceptible of any exact determination. Plainly, if there is some
considerable chance of a restoration or if the disturbance of
the established system is an incident in a general war of which
the issue is still uncertain, no unqualified assertion that it has
ceased to exist would be warranted. This is so just because
the statement that a legal system exists is of a sufficiently
broad and general type to allow for interruptions; it is not
verified or falsified by what happens in short spaces of time.
Of course difficult questions may arise after such inter
ruptions have been succeeded by the resumption of normal
THE FOUNDATIONS OF A LEGAL SYSTEM
II9
relations between the courts and the population. A govern | Clarendon |
ment returns from exile on the expulsion of occupying forces
or the defeat of a rebel government; then questions arise as to
what was or was not 'law' in the territory during the period
of interruption. Here what is most important is to understand
that this question may not be one of fact. If it were one of fact
it would have to be settled qy asking whether the interruption
was so protracted and complete that the situation must be
described as one in which the original system had ceased to
exist and a new one was set up similar to the old, on the
return from exile. Instead the question may be raised as one
ofinternationallaw, or it may, somewhat paradoxically, arise
as a question of law within the very system of law existing
since the restoration. In the latter case it might well be that
the restored system included a retrospective law declaring the
system to have been (or, more candidly, to be 'deemed' to
have been) continuously the law of the territory. This might
be done even if the interruption were so long as to make such
a declaration seem quite at variance with the conclusion that
might have been reached had the question been treated as a
question of fact. In such a case there is no reason why the
declaration should not stand as a rule of the restored system,
determining the law which its courts must apply to incidents
and transactions occurring during the period of interruption.
There is only a paradox here if we think of a legal system's
statements of law, concerning what are to be deemed to be
phases of its own past, present, or future existence, as rivals
to the factual statement about its existence, made from an
external point of view. Except for the apparent puzzle of self
reference the legal status of a provision in an existing system
concerning the period during which it is to be considered to
have existed, is no different from a law of one system declar
ing that a certain system is still in existence in another coun
try, though the latter is not likely to have many practical
consequences. We are, in fact, quite clear that the legal sys
tem in existence in the territory of the Soviet Union is not in
fact that of the Tsarist regime. But if a statute of the British
Parliament declared that the law of Tsarist Russia was still
the law of Russian territory this would indeed have meaning
and legal effect as part of English law referring to the USSR,
120
THE FOUNDATIONS OF A LEGAL SYSTEM
but it would leave unaffected the truth of the statement of fact
contained in our last sentence. The force and meaning of the
statute would be merely to determine the law to be applied
in English courts, and so in England, to cases with a Russian
element.
The converse of the situation just described is to be seen in
the fascinating moments of transition during which a new
legal system emerges from the womb of an old one-some
times only after a Caesarian operation. The recent history of
the Commonwealth is an admirable field of study ofthis aspect
of the embryology of legal systems. The schematic, simplified
outline of this development is as follows. At the beginning of
a period we may have a colony with a local legislature, judi
ciary, and executive. This constitutional structure has been
set up by a statute ofthe United Kingdom Parliament, which
retains full legal competence to legislate for the colony; this
includes power to amend or repeal both the local laws and
any of its own statutes, including those referring to the con
stitution of the colony. At this stage the legal system of the
colony is plainly a subordinate part of a wider system char
acterized by the ultimate rule of recognition that what the
Queen in Parliament enacts is law for (inter alia) the colony. | Clarendon |
At the end of the period of development we find that the
ultimate rule of recognition has shifted, for the legal compe
tence of the Westminster Parliament to legislate for the former
colony is no longer recognized in its courts. It is still true that
much of the constitutional structure of the former colony is to
be found in the original statute of the Westminster Parlia
ment: but this is now only an historical fact, for it no longer
owes its contemporary legal status in the territory to the
authority of the Westminster Parliament. The legal system in
the former colony has now a 'local root' in that the rule of
recognition specifying the ultimate criteria of legal validity no
longer refers to enactments of a legislature of another terri
tory. The new rule rests simply on the fact that it is accepted
and used as such a rule in the judicial and other official
operations of a local system whose rules are generally obeyed.
Hence, though the composition, mode of enactment, and
structure of the local legislature may still be that prescribed
in the original constitution, its enactments are valid now not
THE FOUNDATIONS OF A LEGAL SYSTEM
121
because they are the exercise of powers granted by a valid
statute of the Westminster Parliament. They are valid be
cause, under the rule of recognition locally accepted, enact
ment by the local legislature is an ultimate criterion of validity.
This development may be achieved in many different ways.
The parent legislature may, after a period in which it never
in fact exercises its formal legislative authority over the colony
except with its consent, finally retire from the scene by re
nouncing legislative power over the former colony. Here it is
to be noted that there are theoretical doubts as to whether the
courts in the United Kingdom would recognize the legal
competence of the Westminster Parliament thus irrevocably
to cut down its powers. The break away may, on the other
hand, be achieved only by violence. But in either case we
have at the end of this development two independent legal
systems. This is a factual statement and not the less factual
because it is one concerning the existence of legal systems.
The main evidence for it is that in the former colony the
ultimate rule of recognition now accepted and used includes,
no longer among the criteria ofvalidity, any reference to the
operations of legislatures of other territories.
Again, however, and here Commonwealth history provides
intriguing examples, it is possible that though in fact the
legal system of the colony is now independent of its parent,
the parent system may not recognize this fact. It may still be
part of English law that the Westminster Parliament has
retained, or can legally regain, power to legislate for the colony;
and the domestic English courts may, if any cases involving
a conflict between a Westminster statute and one of the local
legislature comes before them, give effect to this view of the
matter. In this case propositions of English law seem to con
flict with fact. The law of the colony is not recognized in English
courts as being what it is in fact: an independent legal system
with its own local, ultimate rule of recognition. As a matter
of fact there will be two legal systems, where English law will
insist that there is only one But, just because one assertion is
a statement of fact and the other a proposition of (English)
law, the two do not logically conflict. To make the position
clear we can, if we like, say that the statement of fact is true
and the proposition of English law is 'correct in English law'.
122
THE FOUNDATIONS OF A LEGAL SYSTEM
Similar distinctions between the factual assertion (or denial) | Clarendon |
that two independent legal systems exist, and propositions of
law about the existence of a legal system, need to be borne in
mind in considering the relationship between public interna
tional law and municipal law. Some very strange theories
owe their only plausibility to a neglect of this distinction.
To complete this crude survey of the pathology and embry
ology of legal systems we should notice other forms of partial
failure of the normal conditions, the congruence of which is
asserted by the unqualified assertion that a legal system
exists. The unity among officials, the existence of which is
normally presupposed when internal statements of law are
made within the system, may partly break down. It may be
that, over certain constitutional issues and only over those,
there is a division within the official world ultimately leading
to a division among the judiciary. The beginning of such a
split over the ultimate criteria to be used in identifying the
law was seen in the constitutional troubles in South Africa in
1954, which came before the courts in Harris v. Di/nges. 1 Here
the legislature acted on a different view of its legal compe
tence and powers from that taken by the courts, and enacted
measures which the courts declared invalid. The response to
this was the creation by the legislature of a special appellate
'court' to hear appeals from judgments ofthe ordinary courts
which invalidated the enactments of the legislature. This court,
in due course, heard such appeals and reversed the judgments
of the ordinary courts; in turn, the ordinary courts declared
the legislature creating the special courts invalid and their
judgments a legal nullity. Had this process not been stopped
(because the Government found it unwise to pursue this means
of getting its way), we should have had an endless oscillation
between two views of the competence of the legislature and so
of the criteria of valid law. The normal conditions of official,
and especially of judicial, harmony, under which alone it
is possible to identify the system's rule of recognition, would
have been suspended. Yet the great mass of legal operations
not touching on this constitutional issue would go on as be
fore. Till the population became divided and 'law and order'
' [1952] I TLR 1245·
THE FOUNDATIONS OF A LEGAL SYSTEM
123
broke down it would be misleading to say that the original
legal system had ceased to exist: for the expression 'the same
legal system' is too broad and elastic to permit unified official
consensus on all the original criteria of legal validity to be a
necessary condition of the legal system remaining 'the same'.
All we could do would be to describe the situation as we have
done and note it as a substandard, abnormal case containing
within it the threat that the legal system will dissolve.
This last case brings us to the borders of a wider topic
which we discuss in the next chapter both in relation to the
high constitutional matter of a legal system's ultimate criteria
of validity and its 'ordinary' law. All rules involve recogniz
ing or classifYing particular cases as instances of general terms,
and in the case of everything which we are prepared to call
a rule it is possible to distinguish clear central cases, where
it certainly applies and others where there are reasons for
both asserting and denying that it applies. Nothing can elim
inate this duality of a core of certainty and a penumbra of
doubt when we are engaged in bringing particular situations
under general rules. This imparts to all rules a fringe of
vagueness or 'open texture', and this may affect the rule of
recognition specifying the ultimate criteria used in the iden
tification of the law as much as a particular statute. This | Clarendon |
aspect of law is often held to show that any elucidation of the
concept of law in terms of rules must be misleading. To insist
on it in the face of the realities of the situation is often stig
matized as 'conceptualism' or 'formalism', and it is to the
estimation of this charge that we shall now turn.
VII
FORMALISM AND RULE-SCEPTICISM
I. THE OPEN TEXTURE OF LAW
IN any large group general rules, standards, and principles
must be the main instrument of social control, and not par
ticular directions given to each individual separately. If it
were not possible to communicate general standards of con
duct, which multitudes of individuals could understand,
without further direction, as requiring from them certain
conduct when occasion arose, nothing that we now recognize
as law could exist. Hence the law must predominantly, but
by no means exclusively, refer to classes of person, and to
classes of acts, things, and circumstances; and its successful
operation over vast areas of social life depends on a widely
diffused capacity to recognize particular acts, things, and
circumstances as instances of the general classifications which
the law makes.
Two principal devices, at first sight very different from
each other, have been used for the communication of such
general standards of conduct in advance of the successive
occasions on which they are to be applied. One of them makes
a maximal and the other a minimal use of general classifying
words. The first is typified by what we call legislation and the
second by precedent. We can see the distinguishing features
of these in the following simple non-legal cases. One father
before going to church says to his son, 'Every man and boy
must take off his hat on entering a church.' Another baring
his head as he enters the church says, 'Look: this is the right
way to behave on such occasions.'
The communication or teaching of standards of conduct by
example may take different forms, far more sophisticated than
our simple case. Our case would more closely resemble the
legal use of precedent, if instead of the child being told on the
particular occasion to regard what his father did on entering
the church as an example of the right thing to do, the father
FORMALISM AND RULE-SCEPTICISM
125
assumed that the child would regard him as an authority on
proper behaviour, and would watch him in order to learn
the way to behave. To approach further the legal use of
precedent, we must suppose that the father is conceived by
himself and others to subscribe to traditional standards of
behaviour and not to be introducing new ones.
Communication by example in all its forms, though
accompanied by some general verbal directions such as 'Do
as I do', may leave open ranges of possibilities, and hence of
doubt, as to what is intended even as to matters which the
person seeking to communicate has himself clearly envisaged.
How much of the performance must be imitated? Does it
matter if the left hand is used, instead of the right, to remove
the hat? That it is done slowly or smartly? That the hat is put
under the seat? That it is not replaced on the head inside the
church? These are all variants of general questions which the
child might ask himself: 'In what ways must my conduct
resemble his to be right?' 'What precisely is it about his con
duct that is to be my guide?' In understanding the example,
the child attends to some of its aspects rather than others. In
so doing he is guided by common sense and knowledge of the
general kind of things and purposes which adults think
important, and by his appreciation of the general character
of the occasion (going to church) and the kind of behaviour | Clarendon |
appropriate to it.
In contrast with the indeterminacies of examples, the com
munication of general standards by explicit general forms of
language ('Every man must take off his hat on entering a
church') seems clear, dependable, and certain. The features
to be taken as general guides to conduct are here identified in
words; they are verbally extricated, not left embedded with
others in a concrete example. In order to know what to do on
other occasions the child has no longer to guess what is in
tended, or what will be approved; he is not left to speculate
as to the way in which his conduct must resemble the exam
ple if it is to be right. Instead, he has a verbal description
which he can use to pick out what he must do in future and
when he must do it. He has only to recognize instances of
clear verbal terms, to 'subsume' particular facts under general
classificatory heads and draw a simple syllogistic conclusion.
126
FORMALISM AND RULE-SCEPTICISM
He is not faced with the alternative of choosing at his peril or
seeking further authoritative guidance. He has a rule which
he can apply by himself to himself.
Much of the jurisprudence of this century has consisted of
the progressive realization (and sometimes the exaggeration)
of the important fact that the distinction between the uncer
tainties of communication by authoritative example (pre
cedent), and the certainties of communication by authoritative
general language (legislation) is far less firm than this naive
contrast suggests. Even when verbally formulated general rules
are used, uncertainties as to the form of behaviour required
by them may break out in particular concrete cases. Particu
lar fact-situations do not await us already marked off from
each other, and labelled as instances of the general rule, the
application of which is in question; nor can the rule itself step
forward to claim its own instances. In all fields of experience,
not only that of rules, there is a limit, inherent in the nature
of language, to the guidance which general language can pro
vide. There will indeed be plain cases constantly recurring
in similar contexts to which general expressions are clearly
applicable ('If anything is a vehicle a motor-car is one') but
there will also be cases where it is not clear whether they
apply or not. ('Does "vehicle" used here include bicycles,
airplanes, roller skates?') The latter are fact-situations, con
tinually thrown up by nature or human invention, which
possess only some of the features of the plain cases but others
which they lack. Canons of 'interpretation' cannot eliminate,
though they can diminish, these uncertainties; for these can
ons are themselves general rules for the use of language, and
make use of general terms which themselves require interpre
tation. They cannot, any more than other rules, provide for
their own interpretation. The plain case, where the general
terms seem to need no interpretation and where the recogni
tion ofinstances seems unproblematic or 'automatic', are only
the familiar ones, constantly recurring in similar contexts,
where there is general agreement in judgments as to the applic
ability of the classifying terms.
General terms would be useless to us as a medium of com
munication unless there were such familiar, generally un
challenged cases. But the variants on the familiar also call for
FORMALISM AND RULE-SCEPTICISM
127
classification under the general terms which at any g1ven
moment constitute part of our linguistic resources. Here
something in the nature of a crisis in communication is pre
cipitated: there are reasons both for and against our use of a
general term, and no firm convention or general agreement | Clarendon |
dictates its use, or, on the other hand, its rejection by the
person concerned to classify. If in such cases doubts are to be
resolved, something in the nature of a choice between open
alternatives must be made by whoever is to resolve them.
At this point, the authoritative general language in which
a rule is expressed may guide only in an uncertain way much
as an authoritative example does. The sense that the lan
guage of the rule will enable us simply to pick out easily recog
nizable instances, at this point gives way; subsumption and
the drawing of a syllogistic conclusion no longer characterize
the nerve of the reasoning involved in determining what is
the right thing to do. Instead, the language of the rule seems
now only to mark out an authoritative example, namely that
constituted by the plain case. This may be used in much the
same way as a precedent, though the language of the rule will
limit the features demanding attention both more permanently
and more closely than precedent does. Faced with the question
whether the rule prohibiting the use of vehicles in the park is
applicable to some combination of circumstances in which
it appears indeterminate, all that the person called upon to
answer can do is to consider (as does one who makes use of
a precedent) whether the present case resembles the plain
case 'sufficiently' in 'relevant' respects. The discretion thus
left to him by language may be very wide; so that if he applies
the rule, the conclusion, even though it may not be arbitrary
or irrational, is in effect a choice. He chooses to add to a line
of cases a new case because of resemblances which can rea
sonably be defended as both legally relevant and sufficiently
close. In the case of legal rules, the criteria of relevance and
closeness of resemblance depend on many complex factors
running through the legal system and on the aims or purpose
which may be attributed to the rule. To characterize these
would be to characterize whatever is specific or peculiar in
legal reasoning.
Whichever device, precedent or legislation, is chosen for
r28
FORMALISM AND RULE-SCEPTICISM
the communication of standards of behaviour, these, however
smoothly they work over the great mass of ordinary cases,
will, at some point where their application is in question,
prove indeterminate; they will have what has been termed an
open texture. So far we have presented this, in the case of leg
islation, as a general feature of human language; uncertainty
at the borderline is the price to be paid for the use of general
classifying terms in any form of communication concerning
matters of fact. Nat ural languages like English are when so
used irreducibly open-textured. It is, however, important to
appreciate why, apart from this dependence on language as
it actually is, with its characteristics of open texture, we should
not cherish, even as an ideal, the conception of a rule so
detailed that the question whether it applied or not to a
particular case was always settled in advance, and never in
volved, at the point of actual application, a fresh choice be
tween open alternatives. Put shortly, the reason is that the
necessity for such choice is thrust upon us because we are
men, not gods. It is a feature of the human predicament (and
so of the legislative one) that we labour under two connected
handicaps whenever we seek to regulate, unambiguously and
in advance, some sphere of conduct by means of general stand
ards to be used without further official direction on particular
occasions. The first handicap is our relative ignorance of fact:
the second is our relative indeterminacy of aim. If the world
in which we live were characterized only by a finite number | Clarendon |
of features, and these together with all the modes in which
they could combine were known to us, then provision could
be made in advance for every possibility. We could make
rules, the application of which to particular cases never called
for a further choice. Everything could be known, and for every
thing, since it could be known, something could be done and
specified in advance by rule. This would be a world fit for
'mechanical' jurisprudence.
Plainly this world is not our world; human legislators can
have no such knowledge of all the possible combinations of
circumstances which the future may bring. This inability to
anticipate brings with it a relative indeterminacy of aim. When
we are bold enough to frame some general rule of conduct
(e.g. a rule that no vehicle may be taken into the park), the
FORMALISM AND RULE-SCEPTICISM
129
language used in this context fixes necessary conditions which
anything must satisfy if it is to be within its scope, and cer
tain clear examples of what is certainly within its scope may
be present to our minds. They are the paradigm, clear cases
(the motor-car, the bus, the motor-cycle); and our aim in
legislating is so far determinate because we have made a
certain choice. We have initially settled the question that peace
and quiet in the park is to be maintained at the cost, at any
rate, ofthe exclusion ofthese things. On the other hand, until
we have put the general aim of peace in the park into con
junction with those cases which we did not, or perhaps could
not, initially envisage (perhaps a toy motor-car electrically
propelled) our aim is, in this direction, indeterminate. We
have not settled, because we have not anticipated, the ques
tion which will be raised by the unenvisaged case when it
occurs: whether some degree of peace in the park is to be
sacrificed to, or defended against, those children whose
pleasure or interest it is to use these things. When the unenvis
aged case does arise, we confront the issues at stake and can
then settle the question by choosing between the competing
interests in the way which best satisfies us. In doing so we
shall have rendered more determinate our initial aim, and
shall incidentally have settled a question as to the meaning,
for the purposes of this rule, of a general word.
Different legal systems, or the same system at different times,
may either ignore or acknowledge more or less explicitly such
a need for the further exercise of choice in the application
of general rules to particular cases. The vice known to legal
theory as formalism or conceptualism consists in an attitude
to verbally formulated rules which both seeks to disguise and
to minimize the need for such choice, once the general rule
has been laid down. One way of doing this is to freeze the
meaning of the rule so that its general terms must have the
same meaning in every case where its application is in ques
tion. To secure this we may fasten on certain features present
in the plain case and insist that these are both necessary and
sufficient to bring anything which has them within the scope
of the rule, whatever other features it may have or lack, and
whatever may be the social consequences of applying the rule
in this way. To do this is to secure a measure of certainty or
130
FORMALISM AND RULE-SCEPTICISM
predictability at the cost of blindly prejudging what is to be
done in a range of future cases, about whose composition we
are ignorant. We shall thus indeed succeed in settling in
advance, but also in the dark, issues which can only reason
ably be settled when they arise and are identified. We shall | Clarendon |
be forced by this. technique to include in the scope of a rule
cases which we would wish to exclude in order to give effect
to reasonable social aims, and which the open-textured terms
of our language would have allowed us to exclude, had we
left them less rigidly defined. The rigidity of our classifications
will thus war with our aims in having or maintaining the
rule.
The consummation of this process is the jurists' 'heaven of
concepts'; this is reached when a general term is given the
same meaning not only in every application of a single rule,
but whenever it appears in any rule in the legal system. No
effort is then ever required or made to interpret the term
in the light of the different issues at stake in its various
recurrences.
In fact all systems, in different ways, compromise between
two social needs: the need for certain rules which can, over
great areas of conduct, safely be applied by private individu
als to themselves without fresh official guidance or weighing
up of social issues, and the need to leave open, for later settle
ment by an informed, official choice, issues which can only
be properly appreciated and settled when they arise in a con
crete case. In some legal systems at some periods it may be
that too much is sacrificed to certainty, and that judicial in
terpretation of statutes or of precedent is too formal and so
fails to respond to the similarities and differences between
cases which are visible only when they are considered in the
light of social aims. In other systems or at other periods it
may seem that too much is treated by courts as perennially
open or revisable in precedents, and too little respect paid to
such limits as legislative language, despite its open texture,
does after all provide. Legal theory has in this matter a cur
ious history; for it is apt either to ignore or to exaggerate the
indeterminacies of legal rules. To escape this oscillation
between extremes we need to remind ourselves that human
inability to anticipate the future, which is at the root of this
FORMALISM AND RULE-SCEPTICISM
131
indeterminacy, varies in degree in different fields of conduct,
and that legal systems cater for this inability by a corre
sponding variety of techniques.
Sometimes the sphere to be legally controlled is recognized
from the start as one in which the features of individual cases
will vary so much in socially important but unpredictable
respects, that uniform rules to be applied from case to case
without further official direction cannot usefully be framed
by the legislature in advance. Accordingly, to regulate such a
sphere the legislature sets up very general standards and then
delegates to an administrative, rule-making body acquainted
with the varying types of case, the task of fashioning rules
adapted_to their special needs. Thus the legislature may re
quire an industry to maintain certain standards: to charge
only a fair rate or to provide safe systems of work. Instead of
leaving the different enterprises to apply these vague stand
ards to themselves, at the risk of being found to have violated
them ex post facto, it may be found best to defer the use of
sanctions for violations until the administrative body has by
regulation specified what, for a given industry, is to count as
a 'fair rate' or a 'safe system'. This rule-making power may
be exercisable only after something like a judicial inquiry into
the facts about the particular industry, and a hearing of
arguments pro and con a given form of regulation.
Of course even with very general standards there will be
plain indisputable examples of what does, or does not, satisfy | Clarendon |
them. Some extreme cases of what is, or is not, a 'fair rate'
or a 'safe system' will always be identifiable ab initio. Thus at
one end of the infinitely varied range of cases there will be a
rate so high that it would hold the public up to ransom for
a vital service, while yielding the entrepreneurs vast profits;
at the other end there will be a rate so low that it fails to
provide an incentive for running the enterprise. Both these in
different ways would defeat any possible aim we could have
in regulating rates. But these are only the extremes of a range
of different factors and are not likely to be met in practice;
between them fall the difficult real cases requiring attention.
The anticipatable combinations of relevant factors are few,
and this entails a relative indeterminacy in our initial aim of
a fair rate or a safe system, and a need for further official
132
FORMALISM AND RULE-SCEPTICISM
choice. In these cases it is clear that the rule-m;;tking author
ity must exercise a discretion, and there is no possibility of
treating the question raised by the various cases as if there
were one uniquely correct answer to be found, as distinct
from an answer which is a reasonable compromise between
many conflicting interests.
A second similar technique is used where the sphere to be
controlled is such that it is impossible to identify a class of
specific actions to be uniformly done or forborne and to make
them the subject of a simple rule, yet the range of circum
stances, though very varied, covers familiar features of
common experience. Here common judgments of what is
'reasonable' can be used by the law. This technique)eaves to
individuals, subject to correction by a court, the task of
weighing up and striking a reasonable balance between the
social claims which arise in various unanticipatable forms. In
this case they are required to conform to a variable standard
bifore it has been officially defined, and they may learn from
a court only ex post facto when they have violated it, what, in
terms of specific actions or forbearances, is the standard re
quired of them. Where the decisions of the court on such
matters are regarded as precedents, their specification of the
variable standard is very like the exercise of delegated rule
making power by an administrative body, though there are
also obvious differences.
The most famous example of this technique in Anglo
American law is the use of the standard of due care in cases
of negligence. Civil, and less frequently criminal, sanctions
may be applied to those who fail to take reasonable care to
avoid inflicting physical injuries on others. But what is rea
sonable or due care in a concrete situation? We can, of course,
cite typical examples of due care: doing such things as stop
ping, looking, and listening where traffic is to be expected.
But we are all well aware that the situations where care is
demanded are hugely various and that many other actions
are now required besides, or in place of, 'stop, look, and
listen'; indeed these may not be enough and might be quite
useless if looking would not help to avert the danger. What
we are striving for in the application of standards of reason
able care is to ensure (I) that precautions will be taken which
FORMALISM AND RULE-SCEPTICISM
133
will avert substantial harm, yet (2) that the precautions are
such that the burden of proper precautions does not involve
too great a sacrifice of other respectable interests. Nothing
much is sacrificed by stopping, looking, and listening unless
of course a man bleeding to death is being driven to the hos | Clarendon |
pital. But owing to the immense variety of possible cases where
care is called for, we cannot ab initio foresee what combinations
of circumstances will arise nor foresee what interests will have
to be sacrificed or to what extent, if precaution against harm
is to be taken. Hence it is that we are unable to consider, be
fore particular cases arise, precisely what sacrifice or compro
mise of interests or values we wish to make in order to reduce
the risk of harm. Again, our aim of securing people against
harm is indeterminate till we put it in conjunction with, or
test it against, possibilities which only experience will bring
before us; when it does, then we have to face a decision which
will, when made, render our aim pro tanto determinate.
Consideration of these two techniques throws into relief
the characteristics of those wide areas of conduct which are
successfully controlled ab initio by rule, requiring specific
actions, with only a fringe of open texture, instead of a variable
standard. They are characterized by the fact that certain
distinguishable actions, events, or states of affairs are of such
practical importance to us, as things either to avert or bring
about, that very few concomitant circumstances incline us to
regard them differently. The crudest example of this is the
killing of a human being. We are in a position to make a rule
against killing instead of laying down a variable standard
('due respect for human life'), although the circumstances in
which human beings kill others are very various: this is so
because very few factors appear to us to outweigh or make us
revise our estimate of the importance of protecting life.
Almost always killing, as it were, dominates the other factors
by which it is accompanied, so when we rule it out in advance
as 'killing', we are not blindly prejudging issues which re
quire to be weighed against each other. Of course there are
exceptions, factors which override this usually dominant one.
There is killing in self-defence and other forms of justifiable
homicide. But these are few and identifiable in relatively simple
terms; they are admitted as exceptions to a general rule.
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FORMALISM AND RULE-SCEPTICISM
It is important to notice that the dominant status of some
easily identifiable action, event, or state of affairs may be, in
a sense, conventional or artificial, and not due to its 'natural'
or 'intrinsic' importance to us as human beings. It does not
matter which side of the road is prescribed by the rule of the
road, nor (within limits) what formalities are prescribed for
the execution of a conveyance; but it does matter very much
that there should be an easily identifiable and uniform pro
cedure, and so a clear right and wrong on these matters.
When this has been introduced by law the importance of
adhering to it is, with few exceptions, paramount; for rela
tively few attendant circumstances could outweigh it and those
that do may be easily identifiable as exceptions and reduced
to rule. The English law of real property very clearly illus
trates this aspect of rules.
The communication of general rules by authoritative ex
amples brings with it, as we have seen, indeterminacies of a
more complex kind. The acknowledgement of precedent as a
criterion of legal validity means different things in different
systems, and in the same system at different times. Descrip
tions ofthe English 'theory' of precedent are, on certain points,
still highly contentious: indeed even the key terms used in the
theory, 'ratio decidendi', 'material facts', 'interpretation', have
their own penumbra of uncertainty. We shall not offer any
fresh general description, but merely attempt to characterize | Clarendon |
briefly, as we have in the case of statute, the area of open
texture and the creative judicial activity within it.
Any honest description of the use of precedent in English
law must allow a place for the following pairs of contrasting
facts. First, there is no single method of determining the rule
for which a given authoritative precedent is an authority.
Notwithstanding this, in the vast majority of decided cases
there is very little doubt. The head-note is usually correct
enough. Secondly, there is no authoritative or uniquely correct
formulation of any rule to be extracted from cases. On the
other hand, there is often very general agreement, when the
bearing of a precedent on a later case is in issue, that a given
formulation is adequate. Thirdly, whatever authoritative
status a rule extracted from precedent may have, it is com
patible with the exercise by courts that are bound by it of the
FORMALISM AND RULE-SCEPTICISM
135
following two types of creative or legislative activity. On the
one hand, courts deciding a later case may reach an opposite
decision to that in a precedent by narrowing the rule ex
tracted from the precedent, and admitting some exception to
it not before considered, or, if considered, left open. This pro
cess of 'distinguishing' the earlier case involves finding some
legally relevant difference between it and the present case,
and the class of such differences can never be exhaustively
determined. On the other hand, in following an earlier pre
cedent the courts may discard a restriction found in the rule
as formulated from the earlier case, on the ground that it is
not required by any rule established by statute or earlier pre
cedent. To do this is to widen the rule. Notwithstanding these
two forms of legislative activity, left open by the binding force
ofprecedent, the result ofthe English system of precedent has
been to produce, by its use, a body of rules of which a vast
number, of both major and minor importance, are as deter
minate as any statutory rule. They can now only be altered
by statute, as the courts themselves often declare in cases
where the 'merits' seem to run counter to the requirements of
the established precedents.
The open texture of law means that there are, indeed,
areas of conduct where much must be left to be developed by
courts or officials striking a balance, in the light of circum
stances, between competing interests which vary in weight
from case to case. None the less, the life of the law consists
to a very large extent in the guidance both of officials and
private individuals by determinate rules which, unlike the
applications of variable standards, do not require from them
a fresh judgment from case to case. This salient fact of social
life remains true, even though uncertainties may break out as
to the applicability of any rule (whether written or commun
icated by precedent) to a concrete case. Here at the margin
of rules and in the fields left open by the theory of precedents,
the courts perform a rule-producing function which adminis
trative bodies perform centrally in the elaboration of variable
standards. In a system where stare decisis is firmly acknow
ledged, this function of the courts is very like the exercise of
delegated rule-making powers by an administrative body. In
England this fact is often obscured by forms: for the courts
136
FORMALISM AND RULE-SCEPTICISM
often disclaim any such creative function and insist that the
proper task of statutory interpretation and the use of preced
ent is, respectively, to search for the 'intention of the legisla
ture' and the law that already exists.
2. VARIETIES OF RULE-SCEPTICISM
| Clarendon |
We have discussed at some length the open texture of law
because it is important to see this feature in a just perspec
tive. Failure to do justice to it will always provoke exaggera
tions which will obscure other features of law. In every legal
system a large and important field is left open for the exercise
of discretion by courts and other officials in rendering ini
tially vague standards determinate, in resolving the uncer
tainties of statutes, or in developing and qualifying rules only
broadly communicated by authoritative precedents. None the
less these activities, important and insufficiently studied though
they are, must not disguise the fact that both the framework
within which they take place and their chief end-product is
one of general rules. These are rules the application of which
individuals can see for themselves in case after case, without
further recourse to official direction or discretion.
It may seem strange that the contention that rules have a
central place in the structure of a legal system could ever be
seriously doubted. Yet 'rule-scepticism', or the claim that talk
of rules is a myth, cloaking the truth that law consists simply
of the decisions of courts and the prediction of them, can
make a powerful appeal to a lawyer's candour. Stated in an
unqualified general form, so as to embrace both secondary
and primary rules, it is indeed quite incoherent; for the asser
tion that there are decisions of courts cannot consistently be
combined with the denial that there are any rules at all. This
is so because, as we have seen, the existence of a court entails
the existence of secondary rules conferring jurisdiction on a
changing succession of individuals and so making their deci
sions authoritative. In a community of people who under
stood the notions of a decision and a prediction of a decision,
but not the notion of a rule, the idea of an authoritative deci
sion would be lacking and with it the idea of a court. There
would be nothing to distinguish the decision of a private person
from that of a court. We might try to eke out, with the notion
FORMALISM AND RULE-SCEPTICISM
137
of 'habitual obedience', the deficiencies of predictability of
decision as a foundation for the authoritative jurisdiction
required in a court. But if we do this we shall find that the
notion of a habit suffers, for this purpose, from all the inad
equacies which came to light when in Chapter IV we consid
ered it as a substitute for a rule conferring legislative powers.
In some more moderate versions of the theory it may be
conceded that if there are to be courts there must be legal
rules which constitute them, and these themselves cannot
therefore be simply predictions of the decisions of courts. Little
headway can, however, in fact be made with this concession
alone. For it is an assertion characteristic of this type of theory
that statutes are not law until applied by courts but only
sources oflaw, and this is inconsistent with the assertion that
the only rules that exist are those required to constitute courts.
There must also be secondary rules conferring legislative
powers on changing successions of individuals. For the theory
does not deny that there are statutes; indeed it cites them as
mere 'sources' of law, and only denies that statutes are law
until applied by courts.
These objections though important and, against an in
cautious form of the theory, well taken, do not apply to it in
all forms. It may well be that rule-scepticism was never in
tended as a denial of the existence of secondary rules confer
ring judicial or legislative power, and was never committed to
the claim that these could be shown to be nothing more than | Clarendon |
decisions or predictions of decisions. Certainly, the examples
on which this type of theory has most often relied are drawn
from rules imposing duties or conferring rights or powers on
private individuals. Yet, even if we suppose the denial that
there are rules and the assertion that what are called rules
are merely predictions of the decisions of courts to be limited
in this way, there is one sense, at least, in which it is obvi
ously false. For it cannot be doubted that at any rate in re
lation to some spheres of conduct in a modern state individuals
do exhibit the whole range of conduct and attitudes which we
have called the internal point of view. Laws function in their
lives not merely as habits or the basis for predicting the
decisions of courts or the actions of other officials, but as
accepted legal standards of behaviour. That is, they not only do
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FORMALISM AND RULE-SCEPTICISM
with tolerable regularity what the law requires of them, but
they look upon it as a legal standard of conduct, refer to it in
criticizing others, or in justifying demands, and in admitting
criticism and demands made by others. In using legal rules
in this normative way they no doubt assume that the courts
and other officials will continue to decide and behave in cer
tain regular and hence predictable ways, in accordance with
the rules of the system; but it is surely an observable fact of
social life that individuals do not confine themselves to the
external point of view, recording and predicting the decisions
of courts or the probable incidence of sanctions. Instead they
continuously express in normative terms their shared accept
ance of the law as a guide to conduct. We have considered at
length in Chapter III the claim that nothing more is meant
by normative terms such as 'obligation' than a prediction of
official behaviour. If, as we have argued, that claim is false,
legal rules function as such in social life: they are used as rules
not as descriptions of habits or predictions. No doubt they
are rules with an open texture and at the points where the
texture is open, individuals can only predict how courts will
decide and adjust their behaviour accordingly.
Rule-scepticism has a serious claim on our attention, but
only as a theory of the function of rules in judicial decision.
In this form, while conceding all the objections to which we
have drawn attention, it amounts to the contention that, so
far as the courts are concerned, there is nothing to circum
scribe the area of open texture: so that it is false, if not sense
less, to regard judges as themselves subject to rules or 'bound'
to decide cases as they do. They may act with sufficient pre
dictable regularity and uniformity to enable others, over long
periods, to live by courts' decisions as rules. Judges may even
experience feelings of compulsion when they decide as they
do, and these feelings may be predictable too; but beyond
this there is nothing which can be characterized as a rule
which they observe. There is nothing which courts treat as
standards of correct judicial behaviour, and so nothing in
that behaviour which manifests the internal point of view
characteristic of the acceptance of rules.
The theory in this form draws support from a variety
of considerations of very different weight. The rule-sceptic is
FORMALISM AND RULE-SCEPTICISM
139
sometimes a disappointed absolutist; he has found that rules
are not all they would be in a formalist's heaven, or in a
world where men were like gods and could anticipate all
possible combinations of fact, so that open texture was not a
necessary feature of rules. The sceptic's conception of what it | Clarendon |
is for a rule to exist, may thus be an unattainable ideal, and
when he discovers that it is not attained by what are called
rules, he expresses his disappointment by the denial that there
are, or can be, any rules. Thus the fact that the rules, which
judges claim bind them in deciding a case, have an open
texture, or have exceptions not exhaustively specifiable in
advance, and the fact that deviation from the rules will not
draw down on the judge a physical sanction are often used to
establish the sceptic's case. These facts are stressed to show
that 'rules are important so far as they help you to predict
what judges will do. That is all their importance except as
pretty playthings.'!
To argue in this way is to ignore what rules actually are in
any sphere of real life. It suggests that we are faced with the
dilemma: 'Either rules are what they would be in the formal
ist's heaven and they bind as fetters bind; or there are no
rules, only predictable decisions or patterns of behaviour.'
Yet surely this is a false dilemma. We promise to visit a
friend the next day. When the day comes it turns out that
keeping the promise would involve neglecting someone dan
gerously ill. The fact that this is accepted as an adequate
reason for not keeping the promise surely does not mean that
there is no rule requiring promises to be kept, only a certain
regularity in keeping them. It does not follow from the fact
that such rules have exceptions incapable of exhaustive state
ment, that in every situation we are left to our discretion and
are never bound to keep a promise. A rule that ends with the
word 'unless ... ' is still a rule.
Sometimes the existence of rules binding on courts is de
nied, because the question whether a person, in acting in a
certain way, thereby manifested his acceptance of a rule re
quiring him so to act, is confused with psychological ques
tions as to the processes of thought through which the person
' Llewellyn, The Bramble Bush (2nd edn.), p. g.
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FORMALISM AND RULE-SCEPTICISM
went before or in acting. Very often when a person accepts a
rule as binding and as something he and others are not free
to change, he may see what it requires in a given situation
quite intuitively, and do that without first thinking of the rule
and what it requires. When we move a piece in chess in
accordance with the rules, or stop at a traffic light when it is
red, our rule-complying behaviour is often a direct response
to the situation, unmediated by calculation in terms of the
rules. The evidence that such actions are genuine applica
tions of the rule is their setting in certain circumstances. Some
of these precede the particular action and others follow it:
and some of them are stateable only in general and hypo
thetical terms. The most important of these factors which
show that in acting we have applied a rule is that if our
behaviour is challenged we are disposed to justify it by refer
ence to the rule: and the genuineness of our acceptance of the
rule may be manifested not only in our past and subsequent
general acknowledgements of it and conformity to it, but
in our criticism of our own and others' deviation from it. On
such or similar evidence we may indeed conclude that if, be
fore our 'unthinking' compliance with the rule, we had been
asked to say what the right thing to do was and why, we would,
if honest, have cited the rule in reply. It is this setting of our
behaviour among such circumstances, and not its accompani
ment by explicit thought of the rule, that is necessary to dis
tinguish an action which is genuinely an observance of a rule
from one that merely happens to coincide with it. It is thus | Clarendon |
that we would distinguish, as a compliance with an accepted
rule, the adult chess-player's move from the action of the
baby who merely pushed the piece into the right place.
This is not to say that pretence or 'window dressing' is not
possible and sometimes successful. Tests for whether a person
has merely pretended ex post facto that he acted on a rule are,
like all empirical tests, inherently fallible but they are not
inveterately so. It is possible that, in a given society, judges
might always first reach their decisions intuitively or 'by
hunches', and then merely choose from a catalogue of legal
rules one which, they pretended, resembled the case in hand;
they might then claim that this was the rule which they
regarded as requiring their decision, although nothing else
FORMALISM AND RULE-SCEPTICISM
141
in their actions or words suggested that they regarded it as
a rule binding on them. Some judicial decisions may be like
this, but it is surely evident that for the most part decisions,
like the chess-player's moves, are reached either by genuine
effort to conform to rules consciously taken as guiding stand
ards of decision or, if intuitively reached, are justified by rules
which the judge was antecedently disposed to observe and
whose relevance to the case in hand would generally be
acknowledged.
The last but most interesting form of rule-scepticism does
not rest either on the open character of legal rules or on the
intuitive character of many decisions; but on the fact that the
decision of a court has a unique position as something au
thoritative, and in the case of supreme tribunals, final. This
form of the theory, to which we shall devote the next section,
is implicit in Bishop Hoadly's famous phrase echoed so often
by Gray in The Nature and Sources if Law, 'Nay whoever hath
an absolute authority to interpret any written or spoken laws
it is he who is the lawgiver to all intents and purposes and
not the person who first wrote or spake them.'
3· FINALITY AND INFALLIBILITY IN
JUDICIAL DECISION
A supreme tribunal has the last word in saying what the law
is and, when it has said it, the statement that the court was
'wrong' has no consequences within the system: no one's rights
or duties are thereby altered. The decision may, of course, be
deprived of legal effect by legislation, but the very fact that
resort to this is necessary demonstrates the empty character,
so far as the law is concerned, ofthe statement that the court's
decision was wrong. Consideration of these facts makes it
seem pedantic to distinguish, in the case of a supreme tribu
nal's decisions, between their finality and infallibility. This
leads to another form of the denial that courts in deciding are
ever bound by rules: 'The law (or the constitution) is what
the courts say it is.'
The most interesting and instructive feature of this form of
the theory is its exploitation of the ambiguity of such state
ments as 'the law (or the constitution) is what the courts say
it is', and the account which the theory must, to be consistent,
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FORMALISM AND RULE-SCEPTICISM
give of the relation of non-official statements of law to the
official statements of a court. To understand this ambiguity,
we shall turn aside to consider its analogue in the case of a
game. Many competitive games are played without an offi
cial scorer: notwithstanding their competing interests, the
players succeed tolerably well in applying the scoring rule to
particular cases; they usually agree in their judgments, and
unresolved disputes may be few. Before the institution of
an official scorer, a statement of the score made by a player | Clarendon |
represents, if he is honest, an effort to assess the progress of
the game by reference to the particular scoring rule accepted
in that game. Such statements of the score are internal state
ments applying the scoring rule, which though they presup
pose that the players will, in general, abide by the rules and
will object to their violation, are not statements or predictions
of these facts.
Like the changes from a regime of custom to a mature
system of law, the addition to the game of secondary rules
providing for the institution of a scorer whose rulings are
final, brings into the system a new kind of internal statement;
for unlike the players' statements as to the score, the scorer's
determinations are given, by secondary rules, a status which
renders them unchallengeable. In this sense it is true that for
the purposes of the game 'the score is what the scorer says it
is'. But it is important to see that the scoring rule remains what
it was before and it is the scorer's duty to apply it as best he
can. 'The score is what the scorer says it is' would be false if
it meant that there was no rule for scoring save what the
scorer in his discretion chose to apply. There might indeed be
a game with such a rule, and some amusement might be
found in playing it if the scorer's discretion were exercised
with some regularity; but it would be a different game. We
may call such a game the game of 'scorer's discretion'.
It is plain that the advantages of quick and final settlement
of disputes, which a scorer brings, are purchased at a price.
The institution of a scorer may face the players with a pre
dicament: the wish that the game should be regulated, as
before, by the scoring rule and the wish for final authoritative
decisions as to its application, where it is doubtful, may turn
out to be conflicting aims. The scorer may make honest
FORMALISM AND RULE-SCEPTICISM
143
mistakes, be drunk or may wantonly violate his duty to apply
the scoring rule to the best of his ability. He may for any of
these reasons record a 'run' when the batsman has never
moved. Provision may be made for correcting his rulings by
appeal to a higher authority: but this must end somewhere in
a final, authoritative judgment, which will be made by fallible
human beings and so will carry with it the same risk of honest
mistake, abuse, or violation. It is impossible to provide by rule
for the correction of the breach of every rule.
The risk inherent in setting up an authority to make final
authoritative applications of rules may materialize in any
sphere. Those that might materialize in the humble sphere of
a game are worth consideration, since they show, in a par
ticularly clear fashion, that some of the inferences drawn by
the rule-sceptic ignore certain distinctions which are neces
sary for the understanding of this form of authority wherever
it is used. When an official scorer is established and his
determinations of the score are made final, statements as to
the score made by the players or other non-officials have no
status within the game; they are irrelevant to its result. If
they happen to coincide with the scorer's statement, well and
good; if they conflict, they must be neglected in computing
the result. But these very obvious facts would be distorted if
the players' statements were classified as predictions of the
scorer's rulings, and it would be absurd to explain the neglect
of these statements, when they conflicted with the scorer's
rulings, by saying that they were predictions of those rulings
which had turned out to be false. The player, in making his
own statements as to the score after the introduction of an | Clarendon |
official scorer, is doing what he did before: namely, assessing
the progress of the game, as best he can, by reference to the
scoring rule. This, too, is what the scorer himself, so long as
he fulfils the duties of his position, is also doing. The differ
ence between them is not that one is predicting what the
other will say, but that the players' statements are unofficial
applications of the scoring rule and hence have no signifi
cance in computing the result; whereas the scorer's state
ments are authoritative and final. It is important to observe
that if the game played were 'scorer's discretion' then the
relationship between unofficial and official statements would
144
FORMALISM AND RULE-SCEPTICISM
necessarily be different: the players' statements not only would
be a prediction of the scorer's rulings but could be nothing else.
For in that case 'the score is what the scorer says it is' would
itself be the scoring rule; there would be no possibility of the
players' statements being merely unofficial versions of what
the scorer does officially. Then the scorer's rulings would be
both final and infallible-or rather the question whether they
were fallible or infallible would be meaningless; for there would
be nothing for him to get 'right' or 'wrong'. But in an ordin
ary game 'the score is what the scorer says it is' is not the
scoring rule: it is a rule providing for the authority and finality
of his application of the scoring rule in particular cases.
The second lesson to be learnt from this example of author
itative decision touches more fundamental matters. We are
able to distinguish a normal game from the game of 'scorer's
discretion' simply because the scoring rule, though it has, like
other rules, its area of open texture where the scorer has to
exercise a choice, yet has a core of settled meaning. It is this
which the scorer is not free to depart from, and which, so far
as it goes, constitutes the standard of correct and incorrect
scoring, both for the player, in making his unofficial state
ments as to the score, and for the scorer in his official rulings.
It is this that makes it true to say that the scorer's rulings are,
though final, not infallible. The same is true in law.
Up to a certain point, the fact that some rulings given by
a scorer are plainly wrong is not inconsistent with the game
continuing: they count as much as rulings which are obvi
ously correct; but there is a limit to the extent to which toler
ance of incorrect decisions is compatible with the continued
existence of the same game, and this has an important legal
analogue. The fact that isolated or exceptional official aber
rations are tolerated does not mean that the game of cricket
or baseball is no longer being played. On the other hand, if
these aberrations are frequent, or if the scorer repudiates the
scoring rule, there must come a point when either the players
no longer accept the scorer's aberrant rulings or, if they do,
the game has changed. It is no longer cricket or baseball but
'scorer's discretion'; for it is a defining feature of these other
games that, in general, their results should be assessed in the
way demanded by the plain meaning of the rule, whatever
FORMALISM AND RULE-SCEPTICISM
145
latitude its open texture may leave to the scorer. In some
imaginable condition we should say that in truth the game
being played was 'scorer's discretion' but the fact that in all
games the scorer's rulings are final does not mean that that
is what all games are.
These distinctions should be borne in mind when we are
appraising the form of rule-scepticism that rests on the unique | Clarendon |
status of a court's decision as a final, authoritative statement
of what the law is in a particular case. The open texture of
law leaves to courts a law-creating power far wider and more
important than that left to scorers, whose decisions are not
used as law-making precedents. Whatever courts decide, both
on matters lying within that part of the rule which seems
plain to all, and those lying on its debatable border, stands
till altered by legislation; and over the interpretation of that,
courts will again have the same last authoritative voice. None
the less there still remains a distinction between a consti
tution which, after setting up a system of courts, provides
that the law shall be whatever the supreme court thinks fit,
and the actual Constitution of the United States-or for that
matter the constitution of any modern State. 'The constitution
(or the law) is whatever the judges say it is', ifinterpreted as
denying this distinction, is false. At any given moment judges,
even those of a supreme court, are parts of a system the rules
of which are determinate enough at the centre to supply
standards of correct judicial decision. These are regarded by
the courts as something which they are not free to disregard
in the exercise of the authority to make those decisions which
cannot be challenged within the system. Any individual judge
coming to his office, like any scorer coming to his, finds a
rule, such as the rule that the enactments of the Queen in
Parliament are law, established as a tradition and accepted
as the standard for the conduct of that office. This circum
scribes, while allowing, the creative activity of its occupants.
Such standards could not indeed continue to exist unless most
of the judges of the time adhered to them, for their existence
at any given time consists simply in the acceptance and use
of them as standards of correct adjudication. But this does
not make the judge who uses them the author of these stand
ards, or in Hoadly's language the 'lawgiver' competent to
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FORMALISM AND RULE-SCEPTICISM
decide as he pleases. The adherence of the judge is required
to maintain the standards, but the judge does not make them.
It is, of course, possible that behind the shield of the rules
which make judicial decisions final and authoritative, judges
might combine in rejecting the existing rules and cease to
regard even the clearest Acts of Parliament as imposing any
limits on their decisions. If the majority of their rulings were
of this character and were accepted this would amount to a
transformation of the system parallel to the conversion of a
game from cricket to 'scorer's discretion'. But the standing
possibility of such transformations does not show that the
system now is what it would be if the transformation took
place. No rules can be guaranteed against breach or repudia
tion; for it is never psychologically or physically impossible
for human beings to break or repudiate them; and if enough
do so for long enough, then the rules will cease to exist. But
the existence of rules at any given time does not require that
there should be these impossible guarantees against destruc
tion. To say that at a given time there is a rule requiring
judges to accept as law Acts of Parliament or Acts of Con
gress entails first, that there is general compliance with this
requirement and that deviation or repudiation on the part of
individual judges is rare; secondly, that when or if it occurs
it is or would be treated by a preponderant majority as a
subject of serious criticism and as wrong, even though the
result of the consequent decision in a particular case cannot, | Clarendon |