“The Variety of Laws” 22/06/1978

Dearest Jennifer,

The best love is the kind that awakens the soul and makes us reach for more, that plants a fire in our hearts and brings
peace to our minds. And that's what you've given me. That's what I'd hoped to give you forever.

But despite all the love we have for each other, there is still someone who breaks the peace in my mind – Austin.

We will find many objections to Austin’s basic definition of law. The objections fall into three principal respects:
objections concerning the content of laws, their mode of origin and their range of application.

Firstly, when we disobey, we do wrong and commit a ‘breach of duty’’. The rationale is to define certain acts which
should be avoided. The law of torts, on the other hand, point to scenarios upon which individuals are compensated
for harms produced by the conduct of others.

For laws that structure judicial practice, they refer to how magistrates are appointed or limit a court’s jurisdiction.
Instead of defining violations, the laws define powers. Some laws determine how disputes are resolved, while others
transfer legislative power from larger to smaller legislative bodies. These laws are not characterized as that of orders.

I should be careful to add that the power given to private individuals to take control of their legal relations with
others is one of the greatest contributions of law to social life. Rules that confer legal powers on private individuals
relate to a capacity which the person exercising the power must have.

A stark difference can therefore be seen between the two types of laws. For one, when we do not comply with the
conditions of laws which confer legal powers, it will be a “nullity without legal force”.

Nullities, in this instance, are seen as sanctions, but I think otherwise. Those receiving nullities are not punished,
despite the fact that they may be upset by the outcome. The “nullity as sanction” view tries to produce a definition of
law by identifying the concept of a sanction. I believe that we cannot logically make such a distinction between the
“rule” requiring compliance with certain conditions, such as the sanction of “nullity”.

The aim is to emphasize 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 transaction.

Meanwhile, in its extreme form which is adopted by our friend, Kelsen, it sees power-conferring rules as fragments of
law. With elaborate restatements, all laws can be grouped in this conditional form. This conception of law does not
see laws as orders backed by threats. All laws are thus reduced to the form, “If anything of a kind X is done or omitted
or happens, then apply sanction of a kind Y.” All genuine laws, with this form, are conditional orders to officials to
apply sanctions.

The distortion brought about by this reclassification is worth considering. As previously mentioned, the criminal law
first designates rules of behaviour to guide society. It is only when these rules fail to be followed that officials impose
sanctions. The characteristic technique of 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 certain groups within it.

What makes this strategy unique is that members of society are left to discover the rules and adjust their behaviour to
them. Laws cannot be reduced to directives against officials if a definition of a law is supposed to capture the idea
that a law applies to citizens absent any action by officials. A sanction for a crime, such as fines, is unlike that of a tax
on a course of conduct, though both involve directions too officials to charge the same amount of money.
What is most needed is a fresh conception of legislation as the introduction or modification of general standards of
behaviour. Rather than being merely a giver of orders, the legislator is like the giver of a promise to exercise powers
conferred by rules.

Though the enactment of a statute is in some ways analogous to the giving of an order, some rules of law originate in
custom and do not owe their legal status to any such conscious law-creating act. One common belief about laws is
that they are all public - that they can be easily seen if one would only inquire about them.

A lesser known fact is that many laws originate from custom. Custom is often law though not all custom is law. For
example, failure to acknowledge an elderly person by making the Filipino gesture, “mano” is not a breach of any rule
of law; it has no legal satus save that of being permitted by law. Custom is usually a subordinate source of law
according to Hart, as the legislature may by statute withhold a customary rule of legal status due to such fluid notions
as that of “reasonableness”. To add, until the courts apply customs in cases, they will only be mere customs, which
are in no sense law. However when the courts decide to use them, then these rules or customs receive legal
recognition.

To summarize, the theory of law as “orders” can be refuted in three principal respects. First, a penal statute or other
rules similar to it has a range of application different from that of orders given to others. Second, some statutes are
not in any way similar to orders in that they do not require persons to do things, but may simply confer powers to
them. And third, even if the enactment of a statute is analogous to giving an order, rules of law are oftentimes taken
from custom.

Lovingly Yours,

Herbert Lionel