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THE JOURNAL JURISPRUDENCE
VOLUME ONE

“What is Law?”

Contributors Associate Professor Adam J. MacLeod


Jones School of Law
Faulkner University

Dr.Jur. Eric Engle


Universität Bremen

Dr. Jason A. Beckett


University of Leicester

Editor Mr Aron Ping D'Souza


University of Melbourne

SEPTEMBER 2008

Elias Clark
PUBLISHED BY THE ELIAS CLARK GROUP

(2008) J. JURIS 1

Electronic copy available at: http://ssrn.com/abstract=1271443


The Elias Clark Group
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First Published 2008.

Text © The Contributors, 2008.


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Cataloguing-in-Publication entry

Editor: D'Souza, Aron Ping.

Authors: D’Souza, Aron Ping.


MacLeod, Adam J.
Engle, Eric.
Beckett, Jason A.

Title: The Journal Jurisprudence, Volume One, “What is Law?”

ISBN: 9780980522426 (pbk.)


ISSN: 1836-0955

Subjects: Law – jurisprudence.


Philosophy –general.

(2008) J. JURIS 2

Electronic copy available at: http://ssrn.com/abstract=1271443


THE JOURNAL JURISPRUDENCE

This edition may be cited as

(2008) J. Juris.

followed by the page number

(2008) J. JURIS 3
ABOUT THE TYPEFACE

The Journal Jurisprudence is typeset in Garamond 12 and


the footnotes are set in Garamond 10. The typeface
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(2008) J. JURIS 4
THE JOURNAL JURISPRUDENCE

TABLE OF CONTENTS

Call For Papers, Vol 2. Page 6


Jurisprudence and Economics

Subscription Information Page 8

Editorial: What is Law? Page 9


Mr Aron Ping D’Souza
Editor
The Journal Jurisprudence

The Law as Bard: Extolling a Culture’s Virtues, Page 11


Exposing Its Vices, and Telling Its Story
Associate Professor Adam J. MacLeod
Jones School of Law
Fawkner University

Law as Lex v Ius Page 31


Dr.Jur. Eric Engle
Habilitand (Post Doc.)
Universität Bremen

The Hartian Tradition in International Law Page 32


Dr Jason A. Beckett
University of Leicester

(2008) J. JURIS 5
CALL FOR PAPERS, VOLUME 2
JURISPRUDENCE AND ECONOMICS

The field of jurisprudence lies at the edition’s main question. Importantly,


nexus of law and politics, the articles will be selected based upon
practical and the philosophical. By quality and the readability of works
understanding the theoretical by non-specialists. The intent of the
foundations of law, jurisprudence Journal is to involve non-scholars in
can inform us of the place of legal the important debates of legal
structures within larger philosophy.
philosophical frameworks. In its
inaugural edition, The Journal Judge Richard A. Posner, one of the
Jurisprudence received many creative fathers of legal economics, wrote in
and telling answers to the question, 1972:
“What is Law?” For the second In recent years economists, and
edition, the editors challenge the academic lawyers with a bent
for economic analysis, have
scholarly and lay communities to used the theoretical and
inquire into intersection between empirical methods of
jurisprudence and economics. Under economics to illuminate a
what circumstances does economic variety of issues and problems
theory shape legal philosophy? in the law. Formerly law and
economics intersected only in
When should the quantitative
the fields of antitrust and public
rationalism of economics be utility regulation; today the
included in jurisprudential rationales diligent reader of scholarly
and when should it be excluded? journals can also find economic
What place does economic analysis analyses of crime control,
have in the many moral questions accident law, contracts
damages, race relations, judicial
judges and lawmakers engage with? administration, corporations
and securities regulation,
Scholars, lawyers, judges, environmental problems, and
philosophers and lay people are other areas of central concern
invited to tackle these great in the contemporary legal
system.
questions, directly or indirectly in
Where has the discipline evolved in
articles of five to eight thousand
the last thirty-six years? Posner
words. Papers may engage with case
speaks of economic theory
studies, philosophical arguments or
enlightening legal questions, but
any other methods that answers the
(2008) J. JURIS 6
THE JOURNAL JURISPRUDENCE

how can jurisprudential theory Correspondence can also be sent to


enlighten economic questions and, this address. If you are considering
more challenging, macro economic submitting an article, you are invited
theory? Does the quantitative to contact the editor to discuss ideas
methodology so often used in before authoring a work.
economics have a place in legal
theory?

Jurisprudence is published bi-annually,


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Deadline: 1 February 2009

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(2008) J. JURIS 7
SUBSCRIPTION INFORMATION

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(2008) J. JURIS 8
THE JOURNAL JURISPRUDENCE

EDITORIAL: WHAT IS LAW?

The study of jurisprudence in edition spurs debate and contributes


modern legal academia is a challenge. to the discourse.
As law schools throughout the world
became more vocationally Our first article is by Associate
orientated, particularly due to the Professor Adam J. MacLeod of the
pressures of government funding, Jones School of Law at Faulkner
the place of theory is now a distant University. He conceives of law like
second to practical pedagogy. This the bards of history; law has
trend is disconcerting because theory narrative, like a story, but it also
is the foundation of practical imparts values, instructions and
application; it is the light illuminating cultures norms upon the
the dark tunnel. I have always audience/citizenry. Professor
believed that theory unveils the MacLeod imparts great scholarship
patterns of everyday life. upon his argument, but with a form
of writing that makes his article
The Journal Jurisprudence was accessible to a wide audience. Like
constituted to enliven theoretical the bards of yore, Professor
debates within the law. In setting the MacLeod posses the skill to elucidate
question, “What is Law?,” as the a narrative but also integrate a moral
theme for this inaugural edition, we to his story. One of the primary
challenged scholars and practitioners missions of the Journal is to make
alike to be reflexive about the nature legal writing accessible to non-
of law itself. “What is Law” is, of lawyers/scholars, and The Law as
course, HLA Hart’s primary Bard: Extolling a Culture’s Virtues,
question; but it is also the primary Exposing its Vices, and Telling its Story
question of the whole discipline of does this admirably.
law. Unlike the sciences, law, in my
opinion, does not exist sui iuris, that Dr.Jur. Eric Engle of the Universität
is, in its own right. Human beings or, Bremen offers a breathtakingly
more precisely, human societies original engagement with the
create law within purposeful history. definition of law. He balances the
Law has utility, but to discover that notion of lex (law) and ius (justice)
utility request a delimitation of its with a functionalist framework to
boundaries. I hope this inaugural deliver “general principles of law.”
(2008) J. JURIS 9
Furthermore, he foregrounds the writer; he openly states, quite simply,
juncture between the civil and “Hart was wrong” and demands a re-
common law to illuminate his conception of judicial discretion.
discussions on freedom and justice. Building upon Foucault and
He concludes by challenging the Kierkegaard, he concludes that
death of universal morality through paradigm of legal theory is identified
historical and theoretical by its own banality. He find more
examination. Dr Engle’s conclusions truth in public international law as a
are of immense importance to the legal system, as opposed to Hart’s
discourse and, I am certain, would rather “municipal” definition of law.
challenge the preconceptions of
scholars and students alike. To Journal editors often suggest that
suggests that some principles accepting articles, like a professor
transcend all cultural boundaries has awarding a first class degree, is with
become increasingly untenable in a great difficulty given the vast choice
post-modern age, but Law: Lex vs. Ius we are presented with. Since calling
begs to differ due to materialism. for articles in early 2008 and closing
mid-year, we received nearly forty
Our third article engages directly submissions. But it was without
with the work of HLA Hart, significant difficulty to present only
particularly in regards to public three because they engaged with the
international law (PIL). Written by theme in a manner intelligible to
Dr Jason A. Beckett of the those outside the academy. This
University of Leicester, who issue’s diverse trio of authors cleared
challenges us to reconceive of British a path that I hope many will follow.
positivism as a bifurcated debate. He
suggests that the two major
traditions, Hart and Austin, are both, Aron Ping D’Souza
in fact, inappropriate to the analysis Editor
of public international law. Dr 19 July 2008
Beckett is a bold and unforgiving

(2008) J. JURIS 10
THE JOURNAL JURISPRUDENCE

THE LAW AS BARD: EXTOLLING A CULTURE’S VIRTUES, EXPOSING ITS


VICES, AND TELLING ITS STORY

Adam J. MacLeod*

I. INTRODUCTION (always cowardice and cruelty,


sometimes intemperance) it
Before literacy rates in the English- condemned. The bard extracted
speaking world reached their apex from his culture’s fabric samples
(and long before they dropped into representative of the whole. In short,
the trough they are now thought to the bard reinforced for his
occupy), before we commoners read contemporaries and identified for his
newspapers (and long before we successors what choices and cultural
wrote ‘blogs), before autobiographies commitments his society considered
crowded book shelves (and long right and good.
before reality television created
celebrities out of rather mean raw Today the bard lives on as a movie
material), our cultural forebears screenplay writer. The historian Paul
appointed a rather singular individual Johnson has observed that from
to preserve for their children a early in the life of Hollywood,
record of their values, rituals, movies stressed patriotism,
institutions, and assumptions: the loyalty, truth-telling, family
life, the importance and
bard. The bard told stories. But the sanctity of religion, courage,
bard didn’t tell just any stories. The fidelity, crime-does-not-pay,
bard told stories drawn from the and the rewards of virtue.
fabric of which his culture consisted. They also underpinned
democracy, Republicanism,
the rule of law, and social
The bard’s stories, while
justice. Their presentation of
entertaining, also served a much American life was in all
more lasting purpose, that of essentials the same as [the
teaching, and in teaching, affirming, American illustrator]
what choices his society valued. In Norman Rockwell’s Post
particular, by reading the bard’s covers. And the
homogenizing effect, the
stories one can identify which virtues encouragement to accept all-
(always courage and love, sometimes American norms, was far
charity and chastity) the bard’s more successful than the
society honoured and which vices crude social engineering of

(2008) J. JURIS 11
MACLEOD ON THE LAW AS BARD

the Red Scare and literally renders judgment on the


Prohibition.1 rightness of a particular human
choice. That judgment rests upon,
A society’s laws function in much among other things, cultural
the same ways. The law contains a assumptions about what is good and
narrative, which has two aspects, (1) virtuous, as well as conclusions
preservation of an account of human about what is efficacious and useful.
choices and cultural commitments, When read later, the decision reveals
which reflects the culture’s values a tale of an individual who came to a
and (2) instruction that informs and crossroads and chose one course and
shapes future choices. In other not another. The decision also
words, the law’s narrative preserves preserves the culture’s expression of
samples of a cultural fabric for the approbation or disapprobation of
benefit of contemporary and future that choice.
generations, and in turn teaches
which individual and cultural choices To be sure, law is not merely a record
are just. of those choices that a particular
society deems worthy of
The preservation function of the approbation, but it is at least that.
legal narrative is most easily While law promotes social utility it
discerned in judicial decisions, in also identifies what conduct
which courts tell stories about lawmakers deem useful. While law
particular human choices, which are vindicates those who have been
meant to be representative of the unjustly treated it also teaches what
choices participants in a culture justice requires. While law protects
make generally. A judicial decision valuable institutions it lends
approbation to those relational
* Associate Professor, Faulkner University, arrangements that are good and
Jones School of Law. I thank Justin Aday valuable. When law punishes citizens
and Ned Swanner for their very capable
research assistance. The errors are all mine.
for making particular choices it both
1
Paul Johnson, A History of the American expresses disapproval of those
People (1997) 696. Walt Disney was choices and affirms that human
particularly adept at the cultural mediation
function of the bard. ‘By weaving animal choices are meaningful.
characters into a moral tale, which was itself
underpinned by the Judeo-Christian message
of the Decalogue and the Sermon on the After preserving a sample of cultural
Mount, Disney invented a new form of fabric, the legal narrative directs the
miracle play, a quasi-religious subculture future evolution of that fabric by
which translated morally based fantasy into
screen reality’: at 697. teaching which choices are just and
(2008) J. JURIS 12
THE JOURNAL JURISPRUDENCE

which ones are not. For better or instructing us than it is in


worse, the common law tradition directing us.2
always looks backward before This essay examines three provisions
looking forward. Lawmakers and of positive law that demonstrate the
interpreters of the law begin their narrative functions of law. The first
deliberations by reading the law’s example is the punishment that the
narrative about the past. Informed old English common law meted out
by this narrative, they proceed to to those who committed suicide. The
pass new judgments on choices second is necrophilia prohibitions,
currently at issue. which criminalise the performance
of sexual acts with dead bodies. The
More directly to the point, non- third example is the decisions of
lawyers look to the law to teach state high courts in Massachusetts
them what choices they ought to and California to reject legislation
make, and for what reasons they that provided to same-sex couples all
ought to make them. Choices the same rights and privileges that
informed by the law’s narrative then heterosexual married couples enjoy.3
combine to create or reinforce
components of a culture – These laws cannot be explained as
relationships, institutions, practices. means to promote social utility, to
Thus culture shapes the law and the direct conduct away from
law reciprocates. infringement of individual rights, or
to prevent harm to persons other
For these and other reasons, one than the actor. In fact, these laws are
commentator has observed, not designed to serve what we
The many components of commonly refer to as practical
our culture largely are united purposes, though they may promote
by law, not by blood, not by some ancillary practical ends.
race, not by religion, not Instead, they are intended to
even by language, but by law. preserve and to teach some principle
It’s the one principal cultural
component we all have in 2 Francis George ‘Law and Culture in the
common. … In [the United United States’ (2003) 48 American Journal of
States, at least] law is more Jurisprudence 131, 135.
important in teaching or 3 Opinions of the Justices to the Senate, 440 Mass
1201 (2004), Re Marriage Cases (Reporter
citation not yet available, Supreme Court of
California, George CJ, Kennard, Werdegar,
Moreno, JJ, 15 May 2008).

(2008) J. JURIS 13
MACLEOD ON THE LAW AS BARD

that the lawmaker has deemed and earlier in the United States.4
indispensable to his or her culture’s However, criminal punishment for
self-understanding. That these an act of suicide, in the form of
particular laws demonstrate only the forfeiture and dishonour, enjoyed a
narrative functions of law does not long life in positive, common law.5
mean that the narrative functions of
law cannot co-exist with other Was criminalisation of suicide an
functions. Indeed, no matter to what unjustifiable practice? After all, the
ends any particular positive law is state has no power to punish the
directed, it almost always exhibits dead. And to suggest that
this attribute of the bard: it punishment might deter one who
articulates the story and values of the has resolved to end her own life
culture from which the law seems contrary to human experience.
emanates. Indeed, deterrence, rehabilitation,
retribution, incapacitation – the
II. FORFEITURE AND DISHONOUR OF common justifications for criminal
THE SUICIDE punishment – all fail to justify
forfeiture and dishonour. Thus, the
It is now commonly agreed that law could not have been justified on
confiscating the personal property of retributive or consequentialist
one who has committed suicide and grounds; forfeiture and dishonour
burying him at a crossroads with a neither repaired some imbalance
stake through his body neither deters caused by the suicide’s usurpation of
others from committing suicide nor legal norms nor accomplished any
punishes the person who performed practically-useful end.
the self-destruction. Forfeiture and
dishonour served no social utility To find a justification for forfeiture
and prevented no harm to anyone, and dishonour it is useful to examine
including the actor himself. Indeed, the narrative that the common law
recognition that the forfeiture and contains concerning suicide and
dishonour provisions of the those who commit it. Almost
common law affected not the suicide invariably, the authorities justified
himself but rather his family, further criminalisation on the ground that
victimising people whom the suicide the law disfavors, even abhors,
had victimised by his choice, led to
abolition of those provisions in the 4 See Thomas J. Marzen et al, ‘Suicide: A
19th century in the United Kingdom, Constitutional Right?’ (1985) 24 Duquesne
Law Review 1, 56-100.
5 Ibid. 59-63, 67-70.

(2008) J. JURIS 14
THE JOURNAL JURISPRUDENCE

suicide.6 The legal narrative has vexations of this life and rushed into
invariably portrayed suicide as a the next unbidden. Though the law
vicious act and, obversely, has was unable to inflict upon this
characterised perseverance in the person any meaningful penalty, it
face of affliction as a virtue to be nevertheless condemned him.
lauded. Blackstone famously offered Blackstone himself acknowledged
his view that suicide constituted the that the law was powerless to punish
‘pretended heroism, but real one who had withdrawn himself
cowardice, of the Stoic philosophers, from the law’s reach.9 Nevertheless,
who destroyed themselves to avoid for centuries the law continued to
those ills which they had not the declaim the villainy of those who
fortitude to endure.’7 Moreover, he ended their own lives while in their
attributed to the law the view right minds.
that no man hath a power to
destroy life, but by That the law should express a
commission from God, the
preference in this matter, let alone
author of it: and, as the
suicide is guilty of a double that it should do so in such blunt
offence; one spiritual, in terms of opprobrium, strikes many
invading the prerogative of contemporary readers of the
the Almighty, and rushing narrative as archaic. Nevertheless,
into his immediate presence
though the penalties of forfeiture
uncalled for; the other
temporal, against the king, and dishonour gave way, the
who hath an interest in the opprobrium persisted, and persists in
preservation of all his American law. The Field Code,
subjects; the law has acknowledging that criminal
therefore ranked this among punishment could not reach the
the highest, crimes, making it
a peculiar species of felony, a perpetrator of suicide, called the act
felony committed on ‘a grave public wrong.’10 This choice
oneself.8 of words was significant because the
distinction between acts giving rise
The common law concerning suicide to criminal liability and those giving
told a tale of one who, finding this rise merely to civil liability turned on
world wearisome or arduous, fled the the question whether the wrong was

6 Ibid. 60-3, 68-9.


7 William Blackstone, Commentaries on the
Laws of England (first published 1765-1769,
12th ed 1978) vol 4, 189. 9 Ibid. 190.
8 Ibid. 10 Marzen et al, above n 4, 76.

(2008) J. JURIS 15
MACLEOD ON THE LAW AS BARD

public or private.11 Other lawmakers 1933, the Florida Supreme Court


and courts declare suicide to be ‘a stated, ‘No sophistry is tolerated in
dreadful deed,’12 ‘ethically consideration of legal problems
reprehensible and inconsistent with which seek to justify self-destruction
the public welfare,’13 and ‘unlawful as commendable or even a matter of
and criminal as malum in se.’14 personal right.’17 And in 1973, the
United States Supreme Court
After abolition of forfeiture and acknowledged the existence of
dishonour, many American states constitutionally unchallenged laws
continued to treat suicide as a crime, against suicide.18
albeit one for which punishment is
impossible.15 Thus the New Jersey So the law retains a narrative about
Superior Court prior to that State’s suicide, a tale of cowardly Stoic
repeal of the criminal prohibition philosophers and creatures carrying
against attempted suicide reasoned, heavy burdens who, despite their
‘Suicide is none the less criminal afflictions, are equally to be
because no punishment can be condemned as pitied. And while this
inflicted. It may not be indictable narrative has in some respects
because the dead cannot be adapted to the times, it remains
indicted.’16 Indeed, throughout the largely intact. Thus formed, the
Twentieth Century courts affirmed narrative teaches us that the life of
the inherent criminality of the act. In one who would destroy himself is
valuable in itself. Even when life
11 William Blackstone, Commentaries on the ceases to be of any use to the one
Laws of England (first published 1765-1769, living it for the extrinsic purposes of
12th ed. 1978) vol 4, 5.
12 Commonwealth v Bowen, 13 Mass 356, 360 enjoying play, beauty, or friendship,
(1816). Massachusetts at the time of human life remains valuable qua
Bowen’s trial for abetting another’s suicide
had abolished forfeiture but retained human life. Thus, the loss of all
ignominious burial. Massachusetts abolished extrinsic values is an insufficient
the latter practice in 1823, but the
justification for suicide, according to
Massachusetts Supreme Judicial Court
continued thereafter to label suicide ‘a crime the narrative of the common law. In
of awful turpitude.’ Marzen et al, above n 3, short, the lesson of the narrative is
74-5.
13 May v Pennell, 64 A 885, 886 (1906). that the decision to commit suicide is
14 Commonwealth v Mink, 123 Mass 422, 429

(1877).
15 Marzen et al, above n 4, 79-82.
16 State v Carney, 55 A 44 (NJ Super 1903). 17 Blackwood v Jones, 149 So 600, 601 (Fla
See also McMahan v State, 53 So 89, 90 1933).
(1910); State v Willis, 121 SE 2d 854, 856 18 Paris Adult Theater I v Slaton, 413 US 49, 68

(NC 1961). n 15 (1973).

(2008) J. JURIS 16
THE JOURNAL JURISPRUDENCE

contrary to a basic good, the intrinsic Rehnquist noted the ‘consistent and
value of human life. almost universal tradition that has
long rejected the asserted right’ to
The law’s narrative concerning commit suicide ‘and continues
suicide has important consequences, explicitly to reject it today.’22 He
for it informs other important observed that ‘for over 700 years, the
cultural commitments. For example, Anglo-American common-law
though we no longer mete out tradition has punished or otherwise
punishment for acts of suicide, the disapproved of both suicide and
law’s narrative influences assisting suicide.’23 And though the
contemporary debate over the American States had abolished the
related issues of physician-assisted harsh penalties for suicide, abolition
suicide and euthanasia. ‘did not represent an acceptance of
suicide; rather, as [Connecticut]
In their landmark Glucksberg Chief Justice [Zephaniah] Swift
decision,19 in which they upheld observed, this change reflected the
Washington State’s ban on assisted growing consensus that it was unfair
suicide, the Justices of the United to punish the suicide's family for his
States Supreme Court debated the wrongdoing.’24 To strike
significance of forfeiture and Washington’s law, Rehnquist
dishonour and the abolition of those concluded, the Court ‘would have to
provisions. Writing for the majority, reverse centuries of legal doctrine
Chief Justice Rehnquist framed the and practice, and strike down the
issue before the Court as ‘whether considered policy choice of almost
the “liberty” specially protected by every State.’25
the Due Process Clause includes a
right to commit suicide which itself Justice Souter concurred, but wrote
includes a right to assistance in doing separately to advocate for a liberty
so’ and inquired ‘whether this interest in having the assistance of a
asserted right has any place in our physician in suicide. (He ultimately
Nation's traditions.’20 concluded that the State’s interests
were sufficiently serious to justify
After reviewing the common law’s prohibiting the practice.) Though
history of criminalising suicide,21 Souter favored recognising a

19 Washington v Glucksberg, 521 US 702 22 Ibid. 723.


(1997). 23 Ibid. 711.
20 Ibid. 723. 24 Ibid. 713.
21 Ibid. 710-15. 25 Ibid. 723.

(2008) J. JURIS 17
MACLEOD ON THE LAW AS BARD

constitutional right to assisted clean slate. They could not express


suicide, he was constrained by the approbation for suicide without
common law’s narrative about the doing violence to the plot of the
immorality and felonious nature of common law tradition. Nor would it
suicide. Significantly, Souter have been sufficient for the Justices
acknowledged that the States to decide the constitutionality of
abolished forfeiture and dishonour Washington State’s ban on assisted
‘largely because the common-law suicide in a vacuum, without
punishment of forfeiture was reference to the common law
rejected as improperly penalising an tradition. If a right to assist suicide is
innocent family.’26 And Souter consistent with the common law
concluded that decriminalisation narrative disapproving of suicide
does not ‘imply the existence of a then the Justices would have been
constitutional liberty interest in compelled to justify the right on that
suicide as such.’27 basis. They were not free to reason
that assistance of suicide is a
Thus the long Anglo-American fundamental right because suicide is
narrative concerning suicide legally permissible; the common law
informed and, to some extent, has never denoted suicide an
directed the legal analysis in acceptable practice.
Glucksberg. Justices Rehnquist,
Souter, and the other members of Second, the Glucksberg decision is
the Court operated within the now part of the narrative. Glucksberg
context of a 700-year old story about adds a chapter to the Anglo-
suicide, preserved in the common American account of suicide. The
law for the most recent generation decision teaches the reader the law’s
by all those preceding. Two history of reviling self-destruction. It
observations about this process seem communicates the law’s respect for
valuable. the intrinsic value of human life,
even the life of one who wishes to
First, the narrative constrained the destroy herself. It preserves for
Justices’ reasoning and prevented future lawyers and jurists an account
them from discerning a of the stigma attendant to suicide. It
constitutional right of self- tells a story of one who, suffering
destruction. They did not write on a from some physical affliction, finds
the suffering too much to bear and
seeks a way out. It records the
26 Ibid. 774.
27 Ibid. 777. judgment of the people of the State
(2008) J. JURIS 18
THE JOURNAL JURISPRUDENCE

of Washington that the decision to euthanasia. These cultural


live in spite of the suffering is commitments shape new laws, and
courageous, virtuous, and right. And the process is repeated.
it affirms that judgment as consistent
with America’s tradition. III. NECROPHILIA PROHIBITIONS

Another generation of jurists might Like prohibitions against suicide,


someday revisit the issue whether the prohibitions against necrophilia defy
United States Constitution justification on grounds of social
guarantees a right to assistance in the utility. They serve no practical ends.
commission of suicide. That They do not protect the physical
generation might overturn Glucksberg. integrity of persons; dead bodies are
However, if future lawyers reject the not persons.28 They do not prohibit
Glucksberg ruling they must do so in violence because sexually molesting a
spite of and contrary to the 700-year dead body does not require force or
(and running) Anglo-American violence, and the dead cannot
tradition that disfavors the choice to withhold their consent. Unlike rape,
destroy oneself, and they must reject necrophilia involves no usurpation
the teachings of those generations of a victim’s will because dead
that came before. bodies have no wills to overcome.29
The dead body does not suffer
The bard tells a compelling narrative
about the despairing soul who loves 28 This appears to be settled, at least in the
life and its pleasures so little that he United States. See, eg, People v Kelly, 1 Cal 4th
kills himself. The bard records a 495, 524 (Cal 1992); State v Perkins, 248 Kan
760 (1991), 771; State v Wagner, 97 Wash
cultural judgment condemning this App 344, 348 (1999).
29 Necrophilia is distinguishable from rape-
choice, declaring it cowardly. The
homicide, in which application of the force
narrative teaches us that previous and consent elements of rape can be, and
generations have invariably often is, complicated by the death of the
victim during the crime. See, eg, Lipham v
commended the virtue of
State, 364 SE 2d 840, 842-843 (Ga 1988);
perseverance in the face of suffering Transcript of Proceedings, England v Director
and valued human life for its own of Public Prosecutions (High Court of Australia
26 May 2000). The typical rape-homicide
sake. These teachings inform our consists of a series of wrongful acts by the
cultural commitments to practices perpetrator, which include both a rape and a
killing. The series of acts begins while the
and institutions that alleviate pain victim is still alive, raising the issues of force
through counseling, palliative care, and consent. The case is thus unlike pure
and charity, rather than end pain necrophilia, where the series of wrongful
acts commences after the body has ceased
through assisted suicide or to contain a living person.

(2008) J. JURIS 19
MACLEOD ON THE LAW AS BARD

physically, emotionally, or transporting Robyn’s body to the


psychologically from the act. It does morgue sexually abused the body.
not apprehend assault. It does not The community was shocked. The
fear injury. bill’s author continued:
This is why California must
Nevertheless, many common law take action. By failing to
make this a heinous act a
jurisdictions expressly prohibit
crime, we will only promote
necrophilia, not in service to social disrespect for the deceased.
utility or to prevent harm to some Families suffer enough when
victim, but rather to preserve a they lose a loved one and
narrative concerning sex and the should feel secure in
knowing that if their loved
ends for which it ought not be used.
one's body is molested, there
California has adopted a necrophilia is a law in place that will
prohibition, which is illustrative and ensure the crime will not go
provides, ‘Every person who unpunished.33
willfully… commits an act of sexual
penetration on, or has sexual contact The tale moved the California
with, any remains known to be legislature to act. The State disclosed
human, without authority of law,30 is its cultural assumption that sexual
guilty of a felony.’31 This statute is acts have meaning, even when they
the judgment that comes at the end harm no person other than, or
of an ignoble and troubling tale. perhaps even including,34 the actor.

In 2003, a California legislator told 1500/ab_1493_cfa_20030421_111600_asm


the ‘horrifying story of Robyn Gillet,’ _comm.html> at 2 April 2008.
33 Ibid.
a girl four years old at the time of her 34 One prudential purpose that necrophilia

death.32 The person responsible for statutes might hypothetically serve is the
protection of the health and welfare of the
perpetrator. It does not take a great flight of
imagination to suppose that state legislatures
30 The ‘without authority of law’ clause is a intended to protect necrophiles from disease
curious exception. One wonders whether or physical harm. However, no evidence of
the California legislature, trying this concern appears in the legislative
unsuccessfully to imagine a circumstance in histories.
which sexual contact with a corpse would New York has expressed its view that the
not be morally reprehensible, added this necrophile ‘is a sick individual who injures
exception in an excess of caution. himself more than he does the public.’
31 CAL HEALTH & SAFETY CODE § Commission Staff Notes to NY Penal Law §
7052(a) (West 2007). 130.20. For this reason, New York, unlike
32 Hearing of the California Assembly Committee most states (see note 48, below) has made
on Public Safety (22 April 2003) 2 necrophilia a misdemeanor rather than a
<http://www.leginfo.ca.gov/pub/03- felony: at § 130.20. However, the presumed
04/bill/asm/ab_1451- mental illness of the perpetrator is not a

(2008) J. JURIS 20
THE JOURNAL JURISPRUDENCE

California adjudged sex with a corpse the United Kingdom37 both


to be beneath the dignity of the expressly prohibit necrophilia.
departed, the perpetrator, or both,
and it crafted a narrative consistent The codification schemes of many
with this judgment. statutes further support the inference
that states are primarily concerned
California is not the only jurisdiction with expressing disapproval of
to preserve in law its cultural necrophilia. Many jurisdictions,
assumptions concerning necrophilia. including the United Kingdom,
It is among seventeen states that codify necrophilia with sex
38
have express and particular offenses. Utah codified its abuse of
prohibitions against the act. An corpse and necrophilia prohibitions
additional eleven states, while not among offenses ‘against public order
identifying necrophilia in particular and decency.’39 Other states group
as a criminal act, have adopted the necrophilia together with bestiality.40
approach of the Model Penal Code
(‘MPC’), which outlaws abuse of a Rhode Island classifies necrophilia
corpse generally and includes within not with sex offenses but rather with
its purview ‘sexual indecency.’35 That crimes pertaining to graves and
twenty-eight of the fifty American corpses.41 Yet it defines necrophilia
states have adopted this criminal as ‘the act of first degree sexual
prohibition without a utilitarian assault upon a dead human body.’42
justification is striking. This fact This is a curious formulation. Rhode
alone suggests that state legislatures Island law defines first degree sexual
around the United States consider assault as ‘sexual penetration with
the legal expression of another person’ in enumerated
disapprobation a sufficient circumstances.43 Evidently, though
justification for criminalising this necrophilia does not usurp the will
conduct. Outside the United States,
the Australian State of Victoria36 and 37 Sexual Offenses Act 2003 (UK) c 42, s 70.
38 Some place the offense with regulation of
mortuaries. Curiously, New Jersey classifies
necrophilia as an offense against property.
justification for punishing the perpetrator in NJ STAT ANN § 2C:22-1 (West 2005).
the first instance. Nor does the legislative 39 UTAH CODE ANN § 76-9-704 (2007).

history support the inference that New York 40 These include Connecticut, CONN GEN

believes that concern for the necrophile’s STAT § 53a-73a (2007), and North Dakota,
mental health justifies punishment. ND CENT CODE § 12.1-20-02 (2008).
35 MODEL PENAL CODE § 250.10, 41 RI GEN LAWS § 11-20-1.2 (2008).

comment 2 (1985). 42 Ibid.


36 Crimes Act 1958 (Vic) s 34B. 43 Ibid. § 11-37-2.

(2008) J. JURIS 21
MACLEOD ON THE LAW AS BARD

of a person, as sexual assault does, family sensibilities.’46 The annotated


the Rhode Island legislature commentary to Alabama’s statute
nevertheless considers necrophilia explains the use of the word
equally as culpable as sexual assault. ‘ordinary,’ which denotes ‘the
contemporary local community
The MPC, which eleven states standard.’47 Several other states
imitate, helpfully identifies the employ similar statutory language,
purpose of the prohibition against referencing not the feelings of the
abuse of a corpse as protection particular family of the deceased but
‘against outrage to the feelings of rather an objective standard derived
friends and family of the deceased.’44 from the cultural views of the
Yet even as it seeks to protect the community. In this way, states using
feelings of one particular family, the the MPC approach preserve an
MPC employs a deliberately account of a cultural response to an
objective standard; ‘it does not vary ignoble choice.
either to exculpate on the basis of
the actor’s unusual callousness or to The definition of the act and the
condemn for outraging an justification for the prohibition are
excessively delicate relative of the clearly tied to cultural opprobrium.
deceased.’45 The MPC thus draws its The act is outrageous because it is
judgment of the act from a sense of contrary to certain cultural norms,
decency common to reasonable particularly the standards with which
people within the community; it is parents raise families. And it is
the response that a hypothetical, criminalised because it is outrageous.
ordinary family member would make Note the reasoning behind this
to the act that counts. formulation. The lawmaker starts
with an observation about the
The Alabama statute, which derives culture: families are institutions built
from the MPC, includes its upon a salutary and discernable set
justification in its definition of the of moral norms. The lawmaker then
act. ‘A person commits the crime of reasons that any act that, when
abuse of a corpse if, except as compared to familial norms, appears
otherwise authorised by law, he outrageous is an act that the culture
knowingly treats a human corpse in a ought not tolerate.
way that would outrage ordinary

44 MODEL PENAL CODE § 250.10, 46ALA CODE § 13A-11-13(a) (2008).


comment 2 (1985). 47Ibid. Cf Alaska Criminal Code Revision,
45 Ibid. Tentative Draft Part I, 89 (February 1997).

(2008) J. JURIS 22
THE JOURNAL JURISPRUDENCE

That abuse of a corpse offended necrophilia with life imprisonment,


only against family sensibilities or with the possibility of parole after
decency, and not against some more five years.50 Florida has made
concrete, prudential concern, was, in necrophilia a second-degree felony51
the view of the framers of the MPC, and places abuse of a corpse and
reason to make the offense a necrophilia at level seven out of ten
misdemeanor rather than a felony.48 (ten being most severe) on its
However, state legislatures, which ‘Offense Severity Ranking Chart,’
are accountable to the people and used for sentencing purposes.52
thus more in tune with cultural Among those other offenses also
commitments, have not always classified as level seven offenses are
agreed with this assessment. manslaughter, vehicular homicide,
Alabama, Arizona, Arkansas, battery with a deadly weapon, sexual
California, Georgia, Indiana, Iowa, abuse of a child, and carjacking.53 In
Maine, Nevada, Oregon, Rhode Kentucky, abuse of a corpse is a
Island, Tennessee, Utah, and misdemeanor, ‘unless the act
Washington all denote abuse of a attempted or committed involved
corpse and/or necrophilia as a sexual intercourse or deviate sexual
felony.49 Nevada punishes intercourse with the corpse,’ in
which case the act is a felony.54 Thus
48 MODEL PENAL CODE § 250.10
comment 3 (1985). 2C:1-4 & 2C:22-1 (2005); New York, NY
49 ALA CODE § 13A-11-13 (2008); ARIZ PENAL LAW § 130.20 (2004); North
REV STAT § 32-1364 (2008); ARK CODE Dakota, ND CENT CODE §§ 12.1-20-12 &
ANN § 5-60-101 (Michie 2008); CAL 12.1-20-02 (2008); Pennsylvania, 18 PA
HEALTH & SAFETY CODE § 7052 (West CONS STAT § 5510 (2000); and Texas,
2007); GA CODE ANN § 16-6-7 (2008); TEX PENAL CODE ANN § 42.08 (2008);
IND CODE § 35-45-11-2 (2004); IOWA have made necrophilia a misdemeanor.
CODE § 709.18 (2008); ME REV STAT 50 NEV REV STAT § 201.450 (2008).

ANN tit 17-A, § 508 (2006); NEV REV 51 FLA STAT § 872.06 (2007).

STAT § 201.450 (2008); OR REV STAT § 52 1996 Fla Laws c 96-393, § 1; FLA STAT §

166.087 (2003); RI GEN LAWS § 11-20-1.2 921.0012 (2007).


(2008); TENN CODE ANN § 39-17-312 53 FLA STAT § 921.0012(3) (2007).

(2008); UTAH CODE ANN § 76-9-704 54 KY REV STAT ANN § 525.120(2)

(2007); WASH REV CODE § 9A.44.105 (2008). Ohio distinguishes between those
(2000). acts performed on a corpse that would
By contrast, Alaska, ALASKA STAT § ‘outrage reasonable family sensibilities,’
11.61.130 (Michie 2008); Colorado, COLO which are misdemeanors, and acts that
REV STAT § 18-13-101 (2008); would ‘outrage reasonable community
Connecticut, CONN GEN STAT § 53a- sensibilities,’ which are felonies. OHIO
73a(a)(3) & (b) (2007); Delaware, DEL REV CODE ANN § 2927.01 (West 2008).
CODE ANN tit 11, § 1332 (2008); Hawaii, These terms are not self-defining, to say the
HAW REV STAT § 711-1108 (2008); New least. In the one decision touching upon the
Hampshire, NH REV STAT ANN § 644:7 matter, an Ohio court rejected the argument
(2008); New Jersey, NJ STAT ANN §§ of a rape-homicide defendant that he could

(2008) J. JURIS 23
MACLEOD ON THE LAW AS BARD

necrophilia warrants more severe


punishment than mutilation. Recent decisions by the high courts
of Massachusetts and California
All of these legislative expressions of contain a narrative about marriage
revulsion and opprobrium that cannot be read as neutral
demonstrate the seriousness with between competing societal values.
which states treat necrophilia. In In both cases, the high courts have
California, the necrophilia narrative told morality tales, selectively
began with a morgue worker defiling extracting certain cultural
the body of a dead four-year old girl. assumptions and values and teaching
The tension in the plot inheres in the a lesson about the meaning of
community’s shock and outrage, the intimacy and marriage.
offense to the culture’s family-
oriented sensibilities. California and Conjugal marriage, the
twenty-eight other states55 choose to monogamous, committed, intimate
resolve the tension by attaching union of one man and one woman,
punitive consequences to the not close blood relatives, neither of
performance of the act, preserving in whom is married to a third person,
unequivocal terms an account of the has until recently enjoyed a special
culture’s judgment. With minor place in positive law. In its
variations, the end of the narrative is controversial Goodridge decision,56 the
this: sexual contact with a dead body Massachusetts Supreme Judicial
is so indecent that civilised society Court (‘SJC’) announced that the
will not tolerate it. special status accorded to conjugal
marriage violated the Massachusetts
IV. MARRIAGE IN MASSACHUSETTS constitution. It reasoned that same-
AND CALIFORNIA sex couples – not homosexual
individuals qua homosexuals, but
not be convicted of felony rape, where he monogamous, same-sex pairs of
performed the sexual penetration after the
persons – ought to enjoy the same
victim’s death, because Section 2927.01
makes sexual abuse of a corpse a rights as monogamous, opposite-sex
misdemeanor. State v Collins, 66 Ohio App couples. It noted various ways in
3d 438, 442-43 (1990).
55 Florida also enacted its necrophilia which the law made it easier for
prohibition in response to particular conjugal, married couples to dispose
incidents, sexual union with a dead body
after a homicide and the removal of a sex of property and to care for one
organ from a dead human body lying in a
funeral home. Florida Senate Staff Analysis
and Economic Impact Statement for Bill 56 Goodridge v Dept Pub Health, 440 Mass

CS/SB 108, 5 (9 January 1996). 309 (2003).

(2008) J. JURIS 24
THE JOURNAL JURISPRUDENCE

another.57 It concluded that same-sex the SJC appropriated that esteem for
couples ought to have access to intimate, same-sex couples. It
these legal means. secured for those couples the law’s
‘stamp of approval.’61
The Massachusetts legislature
responded to the Goodridge decision In Goodridge and Opinions of the Justices,
by proposing the creation of a new the SJC told a story of ‘fourteen
institution, the civil union. It individuals from five Massachusetts
proposed to endow the civil union counties’62 who sought approbation
with all of the legal characteristics of for their intimate conduct. Each of
marriage. The legislature’s proposal the plaintiffs in Goodridge desired not
would have mended the injury that merely ‘to secure the legal
the SJC perceived in Goodridge, protections and benefits afforded to
namely that the conjugal marriage married couples and their children’
statute denied same-sex couples but also ‘to marry his or her partner
‘access to civil marriage itself, with in order to affirm publicly their
its appurtenant social and legal commitment to each other.’63
protections, benefits, and
58
obligations.’ It is instructive to note that the
seven couples who sued the
The SJC rejected the civil union Commonwealth in Goodridge sought
proposal in a subsequent decision, approbation not for their friendship
Opinions of the Justices to the Senate.59 It or love but more particularly for
was not enough, in the majority’s their intimate commitment to each
view, to grant to same-sex couples all other. That the law and the culture
of the rights, benefits, and already affirmed non-sexual, same-
obligations of marriage. Instead, the sex commitments in many other
SJC mandated that the law approve contexts – business contracts,
the moral teaching that homosexual fraternity pledges, heroic acts on
intimacy is a reason for action behalf of fellow soldiers in the field
equally as worthy as conjugal, marital of battle – did not satisfy the
union. After noting that ‘civil Goodridge plaintiffs. They sought
marriage is an esteemed institution,’60 approbation of a different kind. They
requested that the law of
57 Ibid. 323-6. Massachusetts be re-written to draw
58 Ibid. 315.
59 440 Mass 1201 (2004). 61 Ibid. 333.
60 Goodridge v Dept Pub Health, 440 Mass 309, 62 Ibid. 313.
322 (2003). 63 Ibid. 314.

(2008) J. JURIS 25
MACLEOD ON THE LAW AS BARD

moral equivalence between same-sex class. They are accorded, if the


intimacy and opposite-sex, conjugal members of the relationship so
monogamy. The SJC granted this choose, the designation ‘marriage.’
request. That designation historically has
been reserved for monogamous,
Most scholars treat the Goodridge conjugal couples. Prior to Opinions of
decision as if it were predicated upon the Justices, the term ‘marriage’
some morally-neutral principle of distinguished conjugal monogamy
equality or autonomy. If this from all other relationships, whether
interpretation of Goodridge were ever same-sex or opposite-sex.
reasonable in the first instance,
Opinions of the Justices renders it On May 15 of this year, the
untenable. The civil union proposal California Supreme Court told a
that the SJC rejected in Opinions of the much less subtle morality tale. In Re
Justices would have treated same-sex Marriage Cases64 the court struck
couples and conjugal, monogamous down a two-pronged statutory
couples the same in every regard scheme for classifying intimate
except in terms of moral relationships. Prior to the decision,
approbation. Thus, the only rational California recognised both conjugal
basis for the SJC’s holding in marriages and domestic partnerships.
Opinions of the Justices is the morally- Domestic partners enjoyed all of the
partisan predicate that same-sex rights and bore all of the obligations
intimacy is valuable. that California law assigned to
marriages.65
For this reason, Opinions of the Justices
goes beyond securing rights for The court held this scheme
same-sex couples. It places the unconstitutional and found that a
imprimatur of the Commonwealth same-sex couple enjoys a
of Massachusetts on the proposition fundamental right “in having their
that that homosexual conduct adds family relationship accorded the
something of value to a friendship same respect and dignity enjoyed by
between two persons of the same an opposite-sex couple.”66 Because
sex. Committed, intimate same-sex the term “marriage” is “unreservedly
relationships, as distinguished from
64 Re Marriage Cases (Reporter citation not yet
business, fraternal, professional, or available, Supreme Court of California,
other relationships between George CJ, Kennard, Werdegar, Moreno, JJ,
members of the same sex, are in 15 May 2008).
65 Ibid. 40-2.
Massachusetts placed in a special 66 Ibid. 10. See also at 102-03.

(2008) J. JURIS 26
THE JOURNAL JURISPRUDENCE

approved and favored by the sex couples who sought marriage


community,” the word has licenses in those states added
“considerable and undeniable something of value to their lives
67
symbolic importance.” The court when they moved beyond friendship
appropriated this approbation and and entered into intimate
symbolism for same-sex intimacy. commitment. The tale is one of
people who seek fulfillment in acts
As the court implicitly recognised, and commitments that are not
California’s marriage-domestic conjugal but approximate conjugal
partnership scheme never withheld monogamy in an ostensibly
respect or dignity from any individual meaningful way. The story assures
person, whether heterosexual or that same-sex intimacy is, in fact,
homosexual. The scheme did meaningful and valuable in the same
endorse the proposition that way and to the same degree as
conjugal monogamy is conjugal marriage.
distinguishable from non-conjugal
relationships on relevant, discernable As the decisions tell a story about
grounds. The court thought this same-sex couples they also teach
distinction impermissible because the certain controversial, moral
law did not endorse the additional propositions. These include the
proposition that same-sex intimacy moral claim that conjugal marriage is
has moral worth equal to conjugal neither unique nor special. Once
monogamy and must be accorded embodied in positive law, these
dignity and respect for that reason. propositions become less
controversial. Ten, twenty, or thirty
Together, the marriage decisions in years from now, the legal
Massachusetts and California reflect approbation of same-sex intimacy
moral assumptions underlying a will no longer be an innovation.
particular set of cultural behaviors Instead, it will be an old story, grown
and commitments. They reflect the familiar with the passage of time. In
assumptions that (1) conjugal this way the California and
marriage does not possess unique Massachusetts decisions not only
moral value and (2) by choosing approve but also fortify and preserve
homosexual intimacy a person particular cultural characteristics.
chooses something morally valuable. The culture shapes the law’s
The decisions declaim that the same- narrative and the law, in return,
shapes the culture.
67 Ibid. 103.

(2008) J. JURIS 27
MACLEOD ON THE LAW AS BARD

V. CONCLUSION have responded to tales of ill persons


seeking sexual satisfaction from the
This essay has examined three remains of the deceased, who cannot
provisions of law that serve no object to or reject sexual advances.
practical purpose in the sense that These states have condemned these
they vindicate no usurpations and activities as beyond the boundaries
promote no felicific calculi. None of of what a civilised society can and
these positive laws deters an will permit. This story ends much
infringement of rights. None of like a horror show, with the audience
them incentivises wealth-creating members expressing their revulsion.
activities. None produces a tangible
social benefit, such as efficiency, The high courts of Massachusetts
prosperity, or order. At the same and California told a story of same-
time, each of the three provisions sex couples who sought from the
tells a story about its culture and states approbation for their intimacy.
each teaches a lesson about what The courts bestowed that
choices the culture deems valuable. approbation, decreeing that same-sex
Indeed, because they serve no intimate relationships deserve the
practical purposes, these laws law’s stamp of approval. This story
demonstrate clearly the narrative ends with a promise that same-sex
function that positive laws often intimacy satisfies the deep longing
perform. that conjugal marriage has long been
understood to fulfil.
The forfeiture and dishonour
provisions of the English common Whether one agrees with the
law identified a despondent soul who proposition that suicide is cowardly,
succumbed to the temptation to end that intimate, same-sex relationships
the source of his despondency in an are equally deserving of approbation
irreversible manner. The law taught as conjugal marriage, or that sex with
that this person is not yet welcome dead bodies is uncivilised, it is
in the next life and is unworthy of difficult to avoid the conclusion that
honour in this one. This tragic tale each of these propositions inheres in
ended with the suicide’s family in one of the positive laws discussed
penury and his body staked to a above. And one perceives from each
place of unrest and commotion. law a glimpse of the culture from
which the proposition emanates.
State legislatures in Alaska, One discerns the culture’s
California, New York, and elsewhere assumptions about life, relationship,
(2008) J. JURIS 28
THE JOURNAL JURISPRUDENCE

sex, and family. One detects the


culture’s values, the virtues that the
culture lauds and the vices that the
culture condemns.

This is true of law in general. This


essay has focused upon three legal
provisions that can be explained only
as forms of cultural expression.
However, laws that serve more
practical ends also express something
about their cultures. Homicide
prohibitions, for example, deter
homicide, vindicate the state’s
interest in protecting innocent
human life, and teach that human life
has value. City expenditures for
school departments both fund
teacher salaries and leave a record of
the city’s judgment that education is
important. The law teaches and
records even while it meets more
pedestrian needs. To abuse the
analogy, like a singing waiter, the law
continues to tell a story while it
serves supper.

The law is a bard. It tells a narrative


and preserves a record of the culture
that forms and enacts it. We would
do well to consider what story our
law tells of us and what it will teach
future generations.

(2008) J. JURIS 29
MACLEOD ON THE LAW AS BARD

(2008) J. JURIS 30
THE JOURNAL JURISPRUDENCE

LAW: LEX VS. IUS

Dr. Jur. Eric Engle


Habilitand (Post Doc.)
Universität Bremen

Abstract: Rather than seeing law as a answer to that question. That answer
vague “norm” or overly precise and will not be exclusive: other
possibly untenable “rights” this definitions of law than the one that
article argues for a simpler will be presented here exist. The
functionalist definition of law as a set answer may even be incomplete.
of conditionals associated with However the answer proposed will
imperatives. As such it hopes to be internally consistent. It will also
bypass two fruitless parallel debates explain and permit prediction of
which however do not address each what goes on in the field of law. Law
other: 1) the nature of “norms” 2) is best understood as a term with
the nature of “rights”. many meanings. By distinguishing
between natural law, positive law,
I. WHAT IS LAW? law as a prescription and law as a
description we can coerce the
One of the fundamental questions of otherwise ambiguous term into
legal theory is what is meant by the tractable forms. Further
term “law”.68 This essay proposes an distinguishing between law (lex) and
justice (ius) allows us to focus on
68
Definitions of law abound: E.g., the “bad different aspects of both command
man theory” ("The prophecies of what the
courts will do in fact, and nothing more
and right.69 Unlike Kelsen,70 I regard
pretentious, are what I mean by the law." law as consisting of a conflicting set
Holmes, (1897) Path of the Law in David
Kennedy & Fisher (2007) at 31.) but also
Cicero (arguing law is inherently moral: Hans Kelsen, Théorie Générale du Droit et
“Est quidem vera lex, recta ratio, naturae de l'Etat Paris: Bruylant (1997) p. 166.
congruens, diffusa in omnes, constans, 69
Hobbes clearly makes the distinction
sempiterna, quae vocet ad officium jubendo, between binding law (lex) and justice (ius)
vetando a fraude deterreat, quae tamen (see generally Hobbes, Leviathan). Hobbes,
neque probos frustra jubet aut vetat, nec Leviathan, Richard Tuck ed., (1996) at 91.
improbos jubendo aut vetando movet.”True Aristotle in contrast seems to believe that
law is right reason in accord with nature. law and justice are congruent sets.
Cicero, (51 b.c.) De Republica) and of course 70
Hans Kelsen, Théorie Générale du Droit
Kelsen who argues that the law is a “norm” et de l'Etat Paris: Bruylant (1997) p. 166.
(2008) J. JURIS 31
ENGLE ON LAW: LEX VS. IUS

of conditional statements and normative inference is not only


consequent imperatives rather than possible, it is also necessary if law is
as a hierarchically harmonious set of to be something other than mere
norms.71 Further, I argue that force -- and it is, or it would not be
obeyed. The force behind law is not
only physical violence it is also, and
even more often, moral sanction.
71
"A plurality of norms forms a unity, a
system, an order, if the validity of the norms
can be traced back to a single norms as the II. METHODOLOGY
ultimate basis of validity. This basic norm A. LEGAL SCIENCE
qua common source constitutes the unity in
the plurality of all norms forming a system.
That a norm belongs to a certain system In order to determine what law is we
follows simply from the fact that the validity
of the norm can be traced back to the basic must first understand what is meant
norm constituting this system. Systems of by legal science.72 This is because if
norms can be distinguished into two
different typse according to type of basic
law cannot be the object of scientific
norm constituting the system. Norms of the inquiry then the question “what is
first type are 'valid' by virtue of their law” could not be answered at all.
substance; that is, the human behavior
specified by these norms is to be regarded as This paper proposes that law can in
obligatory because the content of the norms fact be the object of scientific
has a directly evident quality that confers
validity on it. And the content of these inquiry. However, legal science, like
norms can be traced back to a basic norm any of the human sciences, is not as
under whose content the content of the exact (but hopefully as exacting) as
norms forming the system is subsumed, as
the particular under the general. Norms of any of the natural sciences.
this type are the norms of morality. For
example, the norms 'you shall not lie', 'you
shall not cheat', 'keep your promise', and so In the natural sciences, e.g. physics,
on are derived from a basic norm of chemistry etc., science is
truthfulness. From the basic norm 'love your
neighbour', one can derive the norms 'you
shall not harm others', 'you shall help those
in need', and so on. Hans Kelsen, An Introduction to the
The basic norm of a given moral order is of Problems of Legal Theory (RR1) Oxford:
no further concern here. What matters is Oxford University Press, 1992 Page 55-56.
knowing that the many norms of a moral 72
For an exposition and critique of
order are already contained in its basic competing ideas of legal science see Howard
norm, just as the particular is contained in Schwber, The "Science" of Legal Science:
the general; thus, all particular moral norms The Model of the Natural Sciences in
can be derived from the general basic norm Nineteenth-Century American Legal
by way of an act of intellect, namely, by way Education, 17 Law and History Review
of a deduction fom the general to the (1999) 17.3 (1999): 94 pars. 29 May 2008
particular. The basic norm of morality has a <http://www.historycooperative.org/journ
substantive, static character." als/lhr/17.3/schweber.html>.
(2008) J. JURIS 32
THE JOURNAL JURISPRUDENCE

nomothetic:73 that is, it poses groups of people. People as


principles which themselves are laws individuals definitely have will
strictu sensu.74 Nomotheses cannot (volition), the capacity to act upon
be derogated from. For example, and interact with their environment.
every time that water is heated it Because of this capacity it is
expands; if water is sufficiently impossible to propose nomotheses
heated at 1 atmosphere of pressure it about human behaviour. Even if
will eventually boil and evaporate.75 most people will react in a given way
The objects of natural sciences have to a certain stimulus some may not
no volition – they literally must react and all can at least claim to have
as they do. been able to have reacted otherwise.
Human science cannot discover
This is not the case in the human “laws” but only general trends and
sciences generally, including legal tendancies – which nonetheless is
science. It is not possible to state knowledge.
that every time event X occurs
outcome Y will follow when the This is not to say that there can be
object of event X is a human or a no human science. Many human
group of humans. The objects of activities are quantifiable. Some are
human sciences, unlike the objects of verifiable. That is why it is possible
natural sciences, are people and to make statements regarding human
tendencies and trends, albeit with
73
Christiane et Ota Weinberger Logik less exactitude than in the natural
Semantik Hermeneutik München: Beck'sche sciences. It is even possible for the
Elementarbücher, (1979). Page 38.; Stanley
L Paulson (1990) Kelsen on legal human sciences to make general
interpretation predictions. By a comparison of the
Legal Studies 10 (2) , 136–152
74
For an argument that law is in fact differing scientific opinions about a
nomothetic (or at least distinguished from certain human activity it is possible
social science in that it must appear to develop a well informed
nomothetic…) see Jeremy A. Blumenthal,
Law and Social Science in the Twenty-First viewpoint and to make
Century, 12 S. CAL. INTERDISC. L.J. 1, 47 generalizations and predictions
(2002).
75
For a good recapitulation of Popper’s thereon. However, though the
views on facticity in science see: Eric dialectical method can determine
Dodson Greenberg, FALSIFICATION AS
FUNCTIONALISM: CREATING A NEW
which opinions are roughly correct,
MODEL OF SEPARATION OF that determination is still only
POWERS, 4 Seton Hall Const. L.J. 467, approximate. One must both
479-480. (1994).
(2008) J. JURIS 33
ENGLE ON LAW: LEX VS. IUS

recognize the possibility and science explains why and to what


limitations of human sciences. extent knowledge is possible – and
also where knowledge is not
B. THE EMPIRICAL METHOD76 possible.

This paper has already hinted that Although empirical verification in


one test to determine whether a human sciences is less exact than in
position is scientifically known is to natural science it is still possible. A
determine whether a prediction can theory can be said to be verified if
be made based upon it. If a fact is there is a correspondence between
known then we may be able to make material reality and the predicted
a prediction based upon it. Further, outcome.77 What are the predicted
though a fact be unknown it may outcomes in law?
nonetheless be knowable, though at
present unknown. An unknown fact When we look at the law we see law
may of course also be unknowable. books, courts, police, lawyers,
But an unknown fact cannot be the legislators and citizens. We see the
basis of science – although it can be predictions of a legislator or judge as
the basis of speculation and to what will happen if a person does
hypotheses. Ideas may be true, false, a certain act (conditionals) or what
unknown and possibly also will happen to person X
unknowable. (commands). However, sometimes
what is written in the law books, i.e.
Facts are knowable if they can be what is predicted, is not at all an
verified. Facts are verified through accurate prediction of what actually
empirical testing. By empirical happens. And many times events
verification it is possible to know occur which are not addressed in the
that in every observed instance of X, law books. What are we to make of
Y occurs, and from which we may the absence of correlation between
infer that in future instances of X, Y law in the books and life?
will recur. Thus the material basis of
77
Popper, (1957) Science: Conjectures and
76
See, generally, Bacon, Francis, Novum Refutations
Organon (1620). Bacon correctly http://cla.calpoly.edu/~fotoole/321.1/pop
emphasizes the experimental method but per.html Also see: Popper, (1963) "Science
wrongly rejects the dialectic and is for that as Falsification" in Conjectures and Refutations
reason the source of the limitations in (1963); Karl Popper, Objective Knowledge:
Anglo-Saxon thinking to empiricism. An Evolutionary Approach (1972).
(2008) J. JURIS 34
THE JOURNAL JURISPRUDENCE

of verification. Because the idealist


C. SCHOLARLY LAW VERSUS method does not lead to the
PRACTICAL LAW development of empirically verifiable
positions it is not in fact be scientific.
There are two methods by which we It could be mythology. It could be
could attempt to answer the question pure formal representation. But it
“how are we to explain and define could not be science and certainly
the absence of correlation between not applied science. This paper
law in the books and life”. The specifically rejects the idealist
idealist approach (i.e. scholasticism perspective and acknowledges it in
or neo-platonism) would divorce order to be properly distinguished
itself completely from the imperfect from it.
material reality. 78 It would argue that
material reality is but an imperfect The other response to the question
reflection of ideas and that failure of “what should be the reaction of a
persons to conform to the law and legal scientist to the fact that
of the law to punish them would statements of legislators and even
imply that either the law and justice judges and the actions of persons do
or the person and justice were not in not always strongly correlated (and
a correct relation to each other.79 sometimes do not correlate at all)?”
This might in theory be accurate. is to regard “law” as commonly
However it is empirically incapable understood, critically. “Scholarly
Law” – law in the books, i.e. the
statements of legislators and judges,
78
See, Plato Phaedo, available at:
http://classics.mit.edu/Plato/phaedo.1b.txt is a description of what a ruling class
79
Plato, Republic especially book VI (e.g., thinks should happen. However, the
“And do you not know also that although
they make use of the visible forms and
daily material reality is what in fact
reason about them, they are thinking not of happens. The first can be called
these, but of the ideals which they resemble; “scholarly law” -- law in the books.
not of the figures which they draw, but of
the absolute square and the absolute This paper will call the second
diameter, and so on –the forms which they “practical law” - law in the streets.
draw or make, and which have shadows and
reflections in water of their own, are When the two are closely correlated
converted by them into images, but they are that is evidence either of a very just
really seeking to behold the things
themselves, which can only be seen with the
regime or of a highly efficient
eye of the mind?“). Available at: tyranny. When the representation of
http://classics.mit.edu/Plato/republic.mb.t what a ruling class believes should
xt
(2008) J. JURIS 35
ENGLE ON LAW: LEX VS. IUS

happen (“scholarly law”) and of what laws in the sense that on every
does in fact happen (“practical law”) occurrence of X, outcome Y will
is too far out of balance a revolution follow. The laws of any legal system
occurs and a new ruling class takes are almost always imperfectly
control. The differing possible enforced. Thus, legal science is not
relations between law in the books nomothetical. To speak of legal
and law in the streets are discussed science as a nomothetical science like
further below. the natural sciences would require
that every law be enforced at all
III. LAWS ARE CONDITIONALS AND times and in all places and that
IMPERATIVES humans behave invariably. That is
clearly not the case.80
When we look at law in the books
we see that all laws are stated as However, while it is clearly true that
conditionals which if actuated will law is but imperfectly enforced it is
trigger imperatives. That is, all laws also clear that law is generally
are of the form "if... then". If the enforced81 and perhaps even more
conditional is fulfilled then the often than not just. So we can speak
imperative, reward or punishment, of a legal science which makes
should be imputed to the subject of generalized predictions as to the
the conditional statement. The probability of event Y following
degree of correspondence between event X. Although legal science is
these conditionals and their
outcomes is the measure of the
80
H. Kelsen,: "L'efficacité n'est pas une
<<condition per quam>> de la validité" in
efficacity of the regime promulgating Le Positivisme Juridique, M. Troper, C.
law. Grzegorczyk, (editeurs) Paris: LGDJ (1992)
page 326.

The fact that a direct


81
"L'efficacité de l'ordre juridique tout
entier est la condition nécessaire de la
correspondence between the validité de chacune des normes particulières
conditional and imperative de cet ordre. C'est une condition sine qua
non mais non une condition per quam.
commands of law is in fact L'efficacité de l'ordre juridique global est la
impossible due to free will explains condition, mais non la raison de la validité
des normes qui le consituent."
why legal science cannot be H. Kelsen,: "L'efficacité n'est pas une
considered nomothetical. A <<condition per quam>> de la validité" en
nomothetical science, e.g., natural La Positivisme Juridique, M. Troper, C.
Grzegorczyk, (editeurs) Paris: LGDJ (1992).
sciences, makes statements which are Page 326.
(2008) J. JURIS 36
THE JOURNAL JURISPRUDENCE

not nomothetical, it is dialectical and is one element of the superstructure


is in that sense scientific.82 Legal of a particular mode of production
science is dialectical, first, in the which justifies and defends a
Aristotelian sense of dialogos, that is particular mode of production, i.e. a
as the object of discourse.83 Through given productive base86 (also known
comparison of differing legal as infrastructure) at a particular point
opinions we arrive at a better sense in history. However, historical
of the best approximation of the development is dialectical:87 it is the
laws which govern human outcome of competition between
84
behavior. But legal science is also differing modes of production. Thus,
dialectical in the Marxist sense:85 law legal science, as one element of the
superstructure of a mode of
82 "The law is dialectic in a deeper sense production, is subject to the
than its adversary process. It mediates most historical dialectic which determines
significantly between right and right.’ ... The
only questions that matter for the law are
whether that mode of production
those in which there is something ‘right,’ or
good, on both or all sides of the Deutsche-Brüsseler-Zeitung No. 86,
controversy.... When right exists on both October 28, 1847. Available at:
sides of an issue, the job of the law is to http://www.marxists.org/archive/marx/
mediate between the ‘rights,’ to works/1847/10/31.htm
accommodate, to adjust, to attempt to 86 Stuart Bonner "Conquest by Contract:

sacrifice as little as possible of what is ‘right’ Wealth Transfer and Land Market Structure
on both sides.” Paul Freund cited in Roger in Colonial New Zealand" Law and Society,
B. Dworkin, Limits: The Role of Law in Vol. 31, No. 1 2000. p. 47.
Bioethical Decision Making 6-7 (1996): 87 "En vertu de la loi dialectique, chaque
83 Aristotle, Posterior Analytics (ca. 350 mode de production ou infrastructure en
B.C.) Translated by G. R. G. Mure, Book place renferme, dès le début de son
I, Part 1. Available at: instauration, sa négation interne, qui, plus
http://classics.mit.edu/Aristotle/posterior tard, se déclare ouvertement, par l'apparition
.1.i.html and at: au sein de ce mode ou de cette
http://www.rbjones.com/rbjpub/philos/ infrastructure, de nouvelles forces
classics/aristotl/o4219c.htm productives (outillage, mains d'oeuvre, etc.);
84 Aristotle, Topics, in Aristotle, 1 Great celles-ci réclament pour s'affirmer un
Books 143 (W.A. Pickarel trans., Cambridge nouveau mode de production, une nouvelle
1994) (1952). infrastructure économique, de nouveaux
85 E.g., "Any development, whatever its rapports sociaux, une nouvelle
substance may be, can be represented as a superstructure. Le règle de droit, qui fait
series of different stages of development partie de cette dernière, se trouve, du même
that are connected in such a way that one coup, elle même niée par ces nouvelles
forms the negation of the other...In no forces productives: son remplacement par
sphere can one undergo a development une règle de droit nouvelle se fait alors
without negating one's previous mode of sentir, mais comme l'effet, et non comme la
existence." Marx, Moralizing Criticism & cause du changement d'infrastructure."
Critical Morality, Oct. 1847, in Marx Engels Stoyanovitch, La Philosphie du Droit en
Collected Works, Vol.6, p.317 (1847) from URSS, page 6. Paris: LGDJ (1965).
(2008) J. JURIS 37
ENGLE ON LAW: LEX VS. IUS

will replace a less developed mode of Although our understanding of facts


production or whether it will itself be is based on the material base that
replaced by one which is more does not mean that we can ignore
developed. the ideology, i.e. the superstructure,
which grows out of and justifies that
The theoretical abstractions can be base89 – one element of which is
quickly and clearly illustrated in a “scholarly law”. We now turn our
concrete example: law is dialectical in attention to an analysis of the
the Aristotelian sense88 in that every machinations of the legal system
judge faces at least two competing within a given mode of production
monologues – antithetical positions and more specifically to an analysis
– which are presented by the plaintiff of the superstructure of a given
and defendant. The arguments of the mode of production. What is
plaintiff are one pole of the dialectic scholarly law?
and the arguments of the defendant
are the opposite pole. The decision Scholarly law - law in the books - is
of the judge is the dialectical law understood as the (supposedly)
synthesis which arises out of the authoritative statements of legislators
conflict of the competing positions. and judges and can be analyzed
Thesis: plaintiff. Antithesis: syntactically as consisting at least,
Defendant. Synthesis: judge. But this and perhaps exclusively, of
dialectic is Aristotelian in that it is a conditional statements and
synthesis of competing ideas of imperative commands. Most
individuals – it is not a dialectic of conditionals imply an imperative
competing classes. The judge, by command activated by occurrence of
comparing the competing ideas of the condition(s). Similarly, many, but
the plaintiff and defendant (expert not all, imperative commands are
opinion) arrives at a best possible actuated by the occurrence of a
view synthesizing the correct points conditional of “scholarly law” (law in
of each competing thesis and the books). It is of course possible
rejecting the incorrect points. for a law giver to issue a purely
imperative statement or for a
89 Raymond Williams, Base and
88 See generally, Stanford Encyclopedia of Superstructure in Marxist Cultural Theory,
Philo., Aristotle's Logic (2004) in Rethinking Popular Culture:
http://plato.stanford.edu/entries/aristotle- Contemporary Perspectives 407 (Chandra
logic Mukerji & Michael Schudson eds.) (1984).
(2008) J. JURIS 38
THE JOURNAL JURISPRUDENCE

lawgiver to issue a hortatory creation and enforcement as meta-


conditional statement which in fact rules.
triggers no imperative. But the
majority of laws invoke imperatives IV. META RULES
upon occurrence of a condition. A. GENERAL PRINCIPLES

Conditional statements can be To understand meta-rules we must


further analyzed as consisting of distinguish them structurally and
rules and of exceptions to the rule, then compare them because of
and even of exceptions to the asymmetries in the common law and
exception. This process of rule, civil law.
exclusive exception, and inclusive
exception could in theory continue The idea of “general principles of
indefinitely. law”, a source of meta-rules, is a
central concept of civilianist law.
The conditional statements of the General principles of law are a
law may be either procedural rules of source of international law
90
positive law or substantive rules worldwide but they are also a
which may (or may not) reflect source of persuasive authority as to
principles of natural law and/or the domestic law in civilianist
natural justice. Substantive rules of jurisdictions.91 General principles of
law are determined either by law are not however a source of
procedural elements of positive law
(framework questions which
influence practical outcomes) or by
substantive aspects of natural law, 90 See, e.g. Legal Information Institute,
natural justice or a combination WEX, General Principles of Law available
at: <
thereof. The conditional statements http://topics.law.cornell.edu/wex/internati
of substantive law are themselves onal_law> (last visited May 28, 2008) .
conditioned and in part determined 91"Il existe par ailleurs de nombreuses règles
non écrites qui sont admises par la
by procedural rules and by general conscience collective et qui semble tellement
principles of law and/or évidentes que le législateur n'a pas estimé
devoir les préciser dans un texte de loi : ce
fundamental rights. This paper refers sont les principes généraux du droit
to these over-arching guiding (exemple : les droits de la défense)."
principles and rules about rule Thierry Smets, "Les sources du Droit",
http://users.skynet.be/sky19192/lessourc.h
tm
(2008) J. JURIS 39
ENGLE ON LAW: LEX VS. IUS

domestic law in the common law,92 B. FUNDAMENTAL RIGHTS AND


generally speaking, though perhaps RULES OF PROCEDURE
they are dimly reflected in the
general principles of equity, That asymmetry mirrors another
93
embodied as maxims of law. one. Unlike many civil law
jurisdictions, most common law
92 Blackstone analyzes the common law as
countries have adopted
consisting of written law (statutes) and
unwritten law (the common law). See 1
constitutionally binding charters of
William Blackstone, Commentaries, 69. rights and given their highest courts
Common law is customary law, whether the power to review the
local or national.
93 Blackstone specifically considers the constitutionality of ordinary
maxims of law, which, in civil law, are legislation. Constitutional charters of
expressions of general principles of law, as a
possible source of the common law. Id. fundamental rights are seen either as
However, he rejects the maxims as a source a reflection of fundamental rights
of law, arguing that they are but expressions
of custom and that maxims are vague and
and freedoms found in natural law
inchoate and must be proven via inquiry and natural justice or are themselves
into custom. Id. These maxims of law, taken as the source of fundamental
however, persist in the common law in
equity and it may be argued that maxims are rights and freedoms. In functionalist
in fact expressions of general principles of terms, the common law charters of
law, as is the case in the civil legal systems.
Examples of such maxims include: sic utero rights and freedoms operate similarly
tuo ut alienum non laedes. See Bassett v. to the civilianist general principles of
Company, 43 N.H. 569, 577 (1862); Swett v. law. Though fundamental rights,
Cutts, 50 N.H. 439, 442 (1870). Pacta quae
contra leges et constitutiones, vel contra especially in the United States, are
bonos mores sunt nullam vim habere generally limited to individual
indubitati Juris est --" Good morals"--
contracts against the constitution or good freedoms (negatives “freedoms
morals are void. Austin's Adm'x v. from” rather than positive “rights
Winston's Ex'x, 11 Va. 33, 36 (1806).
Because the common law, as opposed to
to”) they sometimes contain
statutory law, is induced from specific cases collective rights as well. General
and not deduced from general principles,
the simpler and better view is Blackstone's.
Maxims and general principles continue to appears to be the source of the split on the
haunt the common law due to role of maxims and, by extension, general
methodological incomprehension of the role principles of law in the common law and
of general principles as deductive civil law. One could accuse Blackstone of
instruments in a system of written law (i.e., misapprehending the role of general
the European civilian legal system). Thus in principles in legal deduction. This may be
The Harrisburg, the U.S. Supreme Court because he assigns the role of general
quite correctly links the ideas of "natural principles to ecclesiastical courts, where the
equity and the general principles of law." general principles atrophied. See Blackstone,
119 U.S. 199, 206 (1886). Blackstone Commentaries *83.
(2008) J. JURIS 40
THE JOURNAL JURISPRUDENCE

principles of law / fundamental binding rules and thus they are


rights can thus be seen as similar. Because of the similarities
conceptually similar. They can be between general principles of law
seen structurally as: and fundamental rights and because
• Binding or non-binding of the increasing integration of
• Independent sources of law common law and civil law in the
or reflections of natural law European Union, and for simplicity
and/or as reflections of in our discussion of meta-rules this
natural justice paper links them – though in legal
• Collective or individual practice general principles of law are
• Negative “freedoms from” both more abstract and wide ranging
or positive “rights to”.94 than fundamental rights and
freedoms. They may be able to be
In whatever form these rules are invoked more often, in theory, but
constituted, general principles of law have less effect in practice because
and the concepts of fundamental of their generality and ambiguity.
rights and freedoms are, like
procedural rules, meta-rules of any What difference, if any, exists
legal system. They are rules which between fundamental rights and
determine how to form other rules. fundamental freedoms? The
This implies the “substance versus bourgeois revolutions generally
procedure” distinction is somewhat presented and defended negative
spurious.95 human freedoms from government
intrusion into the private sphere.96
Fundamental rights are essentially Those freedoms were asserted by the
“substantive” and so are a more rising middle class of merchants and
limited concept than general proto-industrialists as a limitation
principles of law, which are both upon the power of the receding
“substantive” and “procedural”. But aristocracy.97 The rights which they
both fundamental rights and general proposed were negative in the sense
principles of law are generally
96 See generally, Eric Engle, Universal
94 See generally, Eric Engle, Universal Rigths: A Generational History, 12 Ann.
Rights: A Generational History, 12 Ann. Surv. Int'l & Comp. L. 219 (2006).
Surv. Int'l & Comp. L. 219 (2006). 97 See, e.g., Stephen P. Marks, Emerging
95 See generally, Kennedy, Duncan. "Form Human Rights: A New Generation for the
& Substance in Private Law Adjudication," 1980s?, 33 RUTGERS L. REV. 435, 437
89 Harvard Law Review 1685 (1976). (1981).
(2008) J. JURIS 41
ENGLE ON LAW: LEX VS. IUS

of being “freedoms from”. Those on heredity. The bourgeois


were “first generation rights” – revolutions inaugurated an era of
negative “freedoms from” rather distribution based, supposedly, on
than positive “rights to”.98 merit.101 And the socialist revolutions
introduced a principle of distribution
The socialist revolutions which have according to need.102
occurred since 1848 have
increasingly inaugurated not negative This historical evolution from
“freedoms from” but positive “rights negative individual freedoms, i.e.
to”. The rising working classes guaranties against coercion, to the
asserted a right to minimal standards affirmative rights of all classes to a
of living – maximum hours, decent life demonstrates the
minimum wages, and a variety of historical dialectical character of the
insurance systems against accident, elaboration of rights. This dialectic
unemployment, and ill health. Thus expresses itself in a taxonomy which
the positive “rights to” expressed in turn reflects a theory of justice.
not only as fundamental General principles, fundamental
constitutional rights but also as often rights, fundamental freedoms, and
as not in secondary legislative rules of procedure are all examples
administrative law social insurance of meta rules: they are rules about
systems.99 making rules. However, procedural
rules are purely technical constraints.
What these waves of revolutions and They do not touch upon substantive
the freedoms and rights they justice. As such they are creations of
inaugurated have in common is a positive law. General
reordering of the principle of principles/fundamental rights in
distributive justice.100 Under contrast are reflections of the ruling
aristocratic rule the principle of class’s notion of natural justice. They
distribution was unequal and based determine – or at least so holds a
ruling class – how substantive justice
is to be achieved. General principles
98 See generally, Eric Engle, Universal
Rigths: A Generational History, 12 Ann.
Surv. Int'l & Comp. L. 219, 257 (2006). 101 Schiller An die Freude “crowns but to
99 Eric Engle, Universal Rights: A those who have earned them”.
Generational History, 12 Ann. Surv. Int'l & 102 Karl Marx , Critique of the Gotha

Comp. L. 219, 259 et seq. (2006). Programme 1875 Available at:


100 Aristotle Nicomachean Ethics, 1131 a 24- http://www.marxists.org/archive/marx/wo
28. rks/1875/gotha/index.htm
(2008) J. JURIS 42
THE JOURNAL JURISPRUDENCE

themselves may express either normative character -- arises from


distributive or corrective justice. This the idea that law does or should
is the interplay of history, law, and reflects and express of morality. But
justice. the description of a conditional or
command of law as law is merely
V. LAW AND JUSTICE positive. Unjust laws have no moral
A. “LAW” AS DESCRIPTION AND prescriptive force but can have a
“LAW” AS PRESCRIPTION practical descriptive validity.

Our understanding of the law must B. LEGAL SCIENCE IS NOT STRICTLY


also consider the relationship NOMOTHETICAL
between law and justice. Some assert
that there is a necessary connection The dual character of law as
between law and justice, and thus prescription and law as description
that a bad law is not a law at all but can also be seen from the fact that
merely a sham pretending to be legal science is not strictly
law.103 This is true in the sense that nomothetic because both ruler and
one is justified in breaking an unjust ruled have volition. Since legal
law -- there is no crime in breaking a science is not nomothetic we
law itself criminal. But it is not true account for the variance between
in the sense of law as conditional what is prescribed (scholarly law)
predictive statements. This is the and what actually happens (practical
difference between law as law) as the difference between
description and law as a prescription. prescription and description. The
The prescriptive power of law -- it's dual character of law as prescription
and law as description can be seen
103 “What of the many deadly, the many

pestilential statutes which nations put in


from the
force? These no more deserve to be called empirical method which shows the
laws than the rules a band of robbers might positive validity of a law is not
pass in their assembly.... [T]herefore Law is
the distinction between things just and dependant on its moral character or
unjust, made in agreement with that primal degree of enforcement.104
and most ancient of all things, Nature; and
in conformity to Nature's standard are Empirically we know those who
framed those human laws which inflict
punishment upon the wicked but defend 104 H. Kelsen,: "L'efficacité n'est pas une

and protect the good.” See, Cicero, “Laws” <<condition per quam>> de la validité" en
in: Clarence Morris, (ed.), Great Legal La Positivisme Juridique, M. Troper, C.
Philosophers: Selected Readings in Jurisprudence 51 Grzegorczyk, (editeurs) Paris: LGDJ (1992)
(1997). page 326.
(2008) J. JURIS 43
ENGLE ON LAW: LEX VS. IUS

break unjust laws do so at their own unenforceable however we can say


peril and that a truly unjust law can they generally do and are more likely
well be generally enforced. Likewise to become so as time goes one.
we know the legislator cannot always
enforce its will. D. POSITIVE LAW AND NATURAL
JUSTICE
C. LAW AS PREDICTION
The connection between law and
As well as being a description of justice is not a necessary one -- there
what is and a prescription of what can indeed be just laws. When a law
should be law is also a prediction of is just it may be said to partake of
what will happen in the real world natural justice. But a law may partake
when a condition occurs.105 When we of natural justice without having the
examine the facts it is clear that law needed force to make it effective. So
is not in practice inevitably just. The a just state must exhibit a tempered
laws of a tyrant are certainly bad laws union of natural law (force) and
but they are none the less positive natural justice (morality).106 There are
laws because the tyrant -- unlike the
thief -- has state power. However,
106 See, Hobbes, Leviathan, where he
when law is immoral then one is explains the relation between natural justice
justified in breaking it. It is not and natural law. I combine Hobbes and
criminal to violate a law which itself Aristotle; Aristotle rightly argues that laws
are natural and positive and argues, I think
is a crime. Unjust laws eventually correctly, that the natural justice is inherent
provoke a backlash and ultimately in the human condition. Hobbes attempts to
refine Aristotle by distinguishing further
become unenforceable – in that between natural law and natural justice.
sense, natural justice is self enforcing However, Hobbe’s natural law is merely the
law of the jungle - the law of the strongest.
i.e. quasi-nomothetic. We cannot say Hobbes natural justice is merely
with certainty whether or when any conventional. I do not see natural justice as
particular unjust law will become merely conventional because I don’t believe
any state of nature ever existed: Aristotle
was correct that political (social) life is
inherent to the human condition. However,
105 O. W. Holmes, Justice, Supreme Judicial because natural justice may be temporarily
Court of Mass., The Path of the Law, ignored by positive law (an unjust state and
Address at the Dedication of the New Hall unjust laws can exist) it is useful to
of the Boston University School of Law distinguish between natural law and natural
(Jan. 8, 1897), in 10 Harv. L. Rev. 457, 461 justice. Natural law is the practical material
(1897) ( "The prophecies of what the courts realization of natural justice; natural justice
will do in fact, and nothing more is the theoretical concept which arises out of
pretentious, are what I mean by the law."). empirical observation.
(2008) J. JURIS 44
THE JOURNAL JURISPRUDENCE

at least two types of unjust states: compensated (restitution).111 As such


states which are powerless and lack it appears to be universal, i.e. natural.
the capacity to enforce what appear However, corrective justice may not
to be just laws, and states which are be translated into practice: natural
powerful but enforce unjust laws. justice is not inevitably translated
into natural law. An unjust regime
E. DISTRIBUTIVE AND CORRECTIVE could in fact enact positive laws of
JUSTICE corrective (in)justice.

Justice may, as Aristotle teaches, be F. EX ANTE LEGISLATION AND EX


considered either distributive or POST JUDGEMENT
corrective.107 Distributive justice,
sometimes known as geometric or From a temporal perspective, legal
social justice, determines the general decision making is of two kinds: ex
principle according to which (public) ante, that is prior to the act being
goods are to be distributed: merit, adjudicated or ex post, that is, a
need, equality, or inequality.108 decision made after the act. Statute
Distributive justice also determines laws are almost always enacted ex
which goods are public. The fact that ante. Judicial decisions are, as to the
the choice of distributional principle parties, ex post – though they may
can be different in different states (common law) or may not (civilianist
indicates that the choice of which law) also have ex ante effect as to
system of distribution to take up is future litigants.
positive and conventional rather than
natural and inevitable.109 Distributive For example, the crime of genocide
justice is positive not natural. was, in terms of positive law, ex post
Corrective (transactional) justice in – there were no treaties against
contrast sees to it that (private) genocide until after World War II.112
exchanges are fair and equal110 – that Very few people would argue that it
contracting parties are not cheated,
that victims of other’s negligence are
Ibid.,1132a 24, 1132b 18-20.
111
112 See generally, Sévane Garibian,
« Génocide arménien et conceptualisation
107 Aristotle Nicomachean Ethics, 1131 b du crime contre l’humanité. De
30-34. l’intervention pour cause d’humanité à
108 Ibid., 1131 a 24-28. l’intervention pour violation des lois de
109 Ibid.,1131 b 30. l’humanité », Revue d’Histoire de la Shoah, n°
110 Ibid.,1131b 24 - 1132a 2. 177-178, 2003, pp. 274-294.
(2008) J. JURIS 45
ENGLE ON LAW: LEX VS. IUS

is substantively unjust to arrest mass (titles)116 and disabilities (“corruption


murderers. Nevertheless, the statute of blood”).117
laws against genocide were in fact
laws ex post: the mass murder of One of the features of bourgeois
Armenians by the Ottoman liberal government and of socialist
113
Empire was a violation of natural governments is the specialization of
justice - but it was not a violation of the different organs of state. The
any then existing treaties of positive role of a legislator is to establish, ex
law.114 ante, rules which will prospectively
bind members of society. As such
One of the objectives and the pronouncements of the legislator
achievements of the bourgeois are general – though admittedly not
revolutions was to replace arbitrary as general as fundamental rights or
tyrannical rule with decision based the general principles of law. In
upon merit. As such, the bourgeois contrast, the role of the judiciary is
revolutions represented a change to make decisions ex post, relying
between one principle of distributive (supposedly) upon rules promulgated
justice (merit reflected in birth) to by the legislator ex ante. As such the
another (merit reflected in action). decrees of courts are highly specific
One way in which the arbitrary and much of courts’ reasoning is
character of (ossified) aristocratic dedicated to developing the linkage
rule was to be replaced was by the between the specific facts of the case
elimination of ex post facto laws115 before the court and the law as it is
That is, no crime would be made promulgated by the legislator.
after the fact (nul crimen sine lege).
Statutes could only prospectively G. COLLECTIVE JUDGMENTS118
ordain behavior. Likewise, merit
rather than birth would become key
by eliminating hereditary priveleges
116 U.S. Const., Art. I, Sec. 9 “No title of
nobility shall be granted by the United
States”
113 Ibid. 117 U.S. Const., Art. III Sec. 3 “The
114 See generally, Reservations to the Congress shall have Power to declare the
convention on the prevention and Punishment of Treason, but no Attainder of
punishment of the crime of genocide, Treason shall work Corruption of Blood” –
Advisory Opinion of 28 May 1951, ICJ no hereditary status as criminal. This was
Reports (1951), p.15-58. not so in the USSR where SS officers
115 E.g. U.S. Const., Art I. Sec. 9 (no federal children would also be considered as
ex post facto laws), Sec. 10 (no state ex post enemies of the state and subject to particular
facto laws). control.
(2008) J. JURIS 46
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dominant classes would be held


Another achievement of the liable for exploitation of historically
bourgeois revolutions was the dominated classes and forced as a
replacement of collective judgment class to pay reparations. At the same
by a strict principle of individual time however the socialist
accountability. Rather than being governments would not impose
judged based on social class, i.e. disabilities on the offspring of a
membership in the nobility, the criminal.
bourgeoisie insisted on judgment of
individuals as individuals and VII. CONCLUSION
appropriate condemnation. Thus for
example a criminal’s descendants This essay has presented a structure
would not be judged for the crimes for decomposing the ambiguous
of their ascendant. 119 Again these term law into determinable parts.
freedoms were however generally Law is a term with a several
negative, i.e. freedoms from the competing meanings. Thus the term
state’s interference with the life must be complemented and
liberty or property of the individual. contextualized. Natural law, positive
law, law as a prescription and law as
The socialist revolutions partially a description coerce the otherwise
reverted to or advocated a return to ambiguous term into tractable forms.
collective judgment and By distinguishing between law (lex)
120
accountability. Thus, historically and justice (ius) we are able to focus
on different aspects of both
118On the rise and fall and rise of collective command and right. Thus, unlike
responsability see George P. Fletcher, The Kelsen,121 I see the fundamental
Storrs Lectures: Liberals and Romantics at
War: The Problem of Collective Guilt, 111
element of law not as hierarchically
Yale L.J. 1499, 1539 (2002). ordered “norms”. Instead I see
119 U.S. Const., Art. III Sec. 3 “The
potentially conflicting conditional
Congress shall have Power to declare the
Punishment of Treason, but no Attainder of statements with contingent
Treason shall work Corruption of Blood” – enforcement imperatives as two
no hereditary status as criminal. This was
not so in the USSR where SS officers
children would also be considered as Europäisches Journal für
enemies of the state and subject to particular Minderheitenfragen, EJM 1, (2008), 73–77
control. http://www.springerlink.com/content/485
120 Beate Sibylle Pfeil, Kollektivschuld und 5501631j80704/
Völkerrecht. Eine Initiative aus der 121 Hans Kelsen, Théorie Générale du Droit

Parlamentarischen Versammlung des Europarats, et de l'Etat Paris: Bruylant (1997) p. 166.


(2008) J. JURIS 47
ENGLE ON LAW: LEX VS. IUS

atoms of law. However those and justice the paper has revealed
conditional and imperative how dialectical reasoning allows us
statements are only scholarly law - to speak with reasonable exactitude
law in the books. They are of legal science. We thus apply
theoretical predictions. To be historical materialism122 to
considered “practical law” -- understand the evolution of the
effective positive law --they must be relation between law and justice, to
enforced. This highlights the illustrate distinctions between
distinction between natural law, corrective and distributive justice
which is nothing more or less than and to explain the changing
the law of the strongest, and positive relationship between natural law and
law, which is the arbitrary statements natural justice as exchanged via
of a legislator. Hobbes was right to alterations in the conception of the
distinguish natural law from natural correct measure of distributive
justice but was incorrect in seeing justice which must inevitably touch
propositions of natural justice as upon aspects of corrective justice.
conventional rather than natural. The
mediation between force and How can differing societies have
morality is natural justice. differing rules which nonetheless
reflect a universal morality? While
The first portion of this essay raised differing societies have different
the concept of natural law and standards of justice those differences
supplied the Aristotelian and are functions of their mode of
Hobbesian definitions of that term. production which, due to
The second portion turned its technological advances, is constantly
attention to the relationship between improving. Within a given mode of
law and justice. This paper is production however the moral
founded on the premise that there standards of society are generally
are indeed universal moral principles: accepted and are intersubjective.
thus, there can be a natural justice; They reflect the moral judgment and
however, it also takes the view that capacity of judgment of the society
there is nonetheless no inevitable
connection between natural law and 122 Josef Stalin, Dialectical And Historical
Materialism, (1938) From Josef Stalin,
natural justice – principles of natural Problems of Leninism, Foreign Languages
justice are normative, not Press, Peking, (1976). Available at:
nomothetic. In analysing both law http://www.marx2mao.org/Stalin/DHM38.ht
ml
(2008) J. JURIS 48
THE JOURNAL JURISPRUDENCE

depending upon the society’s state of contributions that the other


economic development. So the perspective might bring.
standards are universal in the sense
that we cannot condemn a poor
society for its poverty when there
was no alternative to that poverty. At
the same time that fact implies that
an economically developed society
will be held to higher standards than
one which is less well off. In this
sense, fundamental human rights are
like a ratchet, ever moving forward.
Even outside of the intersubjective
sense, there are universal moral
standards in that some standards,
such as the prohibition of unlawful
killing, are timeless and universal.
Further, the moral principles of a
society at one phase of development
tend to survive its transition as it
enters into its next developmental
phase. Thus the sphere of protected
conduct in fact expands with
increasing economic well being
consequent to progress in the mode
of production of society. Universal
moral principles do exist – but they
are not inevitably or necessarily
enforced. The naturalist theories of
law, like the positivists, only have
half of the answer to the question
“what is the relation between law
and justice”. Each should reexamine
the other, preferably from the
perspective of historical materialism,
to understand its own flaws and the
(2008) J. JURIS 49
ENGLE ON LAW: LEX VS. IUS

(2008) J. JURIS 50
THE JOURNAL JURISPRUDENCE

THE HARTIAN TRADITION IN INTERNATIONAL LAW

DR JASON A. BECKETT
THE UNIVERSITY OF LEICESTER

Jeremy Waldron has recently argued consequently manifest a rupture with


that Public International Law (PIL) the Hartian Tradition of empirical
is the only major area of law not yet theorising.
explored and explained by those Before turning to the advances made
operating in the Hartian tradition of by MacCormick, we can sum up the
legal theory.123 I hope in the present problems faced by a British Positivist
paper to demonstrate the analysis of International Law in the
incompatibility of Hartian following two propositions:
methodology with PIL, and thus the
extent to which PIL illustrates the 1. There is no single British
limitations, indeed the outright Positivist Tradition.
failure, of the Hartian approach to
legal theory. 2. Of the two major traditions
available for study (Austin and
Hart) neither is conducive to
Nonetheless, I also hope to show
understanding PIL as Law.
that Neil MacCormick – sometime
wayward son, sometime protégé and There is no single British tradition in
champion of the Hartian tradition –
legal positivism, and there quite
has quietly re-invented British
possibly never has been. Hobbes was
Positivism, or at least offered a new an odd sort of positivist, Austin and
and preferable trajectory for its
Bentham differed as much as they
development. This is the task of the
agreed, British legal positivism was
present paper: to develop ideas fractured from its inception. The
outlined or latent in MacCormick’s same was true of legal positivism as
work and to demonstrate how these such. However, this fracture
move legal positivism away from deepened with the arrival of H.L.A.
sociological positivism (or Hart. Hart re-oriented the field,
philosophical positivism) and abandoning the “normative
positivism” of Bentham and Austin
123In Kramer, et al. ed.s, The Legacy of H.L.A.
Hart: Legal, Political and Moral Philosophy
in favour of the “descriptive
(Forthcoming) sociology” which now characterises
(2008) J. JURIS 51
BECKETT ON THE HARTIAN TRADITION IN INTERNATIONAL LAW

the orthodox (Oxford) British In other words, legal positivism’s


approach. prime concern is to identify what the
law is, not what it ought to be. Of
As Gardner has pointed out,124 legal course this is also true of “anti-
positivism is both a broad church, positivist” theories, as critics of legal
and a much maligned one. Before positivism are also concerned with
locating myself within this what the law is. However, whereas
movement, it is first worth briefly anti-positivist theories would hold
delimiting the movement as a whole. that what the law is, is in some
If legal positivists are to be manner dependent on what the law
understood or classified as a group ought to be, the specific claim of
or a school (at least within legal legal positivism is that what the law
philosophical debate) they must be is is in no way dependent upon what the
“united by a thesis rather than law should be. The question then
merely a theme”.125 That is, it is not becomes what to identify as law, and
enough that legal positivists how best to describe it; a question
emphasise focus “on certain aspects which ought also to be focussed
of legal thought and experience specifically on PIL.
(namely the empirical aspects)”,126
but we must also have a unifying However, although a British
philosophical proposition. Gardner Positivist, Bentham, coined the term
kindly provides this: “International Law”, both Austin
In any legal system, whether and (in a different, perhaps lesser,
a given norm is legally valid, but also much more fundamental,
and hence whether it forms
way) Hart have rejected the idea that
part of the law of that
system, depends on its PIL is “Law properly so called”. As I
sources, not its merits (where personally begin from the
its merits, in the relevant presumptions that PIL is Law and
sense, include the merits of that it is best understood from a
its sources).127 positivist perspective, I wish to
outline the methodological
commitments which cause Hart and
124 Gardner J. “Legal Positivism: 5 ½
Austin to reach conclusions
Myths” 46 American Journal of Jurisprudence
(2001) p. 199.
diametrically opposed to my own.
125 Ibid p. 199.
126 Ibid.
127 Ibid p. 201.

(2008) J. JURIS 52
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AUSTIN’S DEFINITION EXPLORED, distinguish “law, simply and strictly


BRIEFLY: so called” from things with which it
“is often confounded”.129 That is
Austin sought to define law first and Austin sought to clearly differentiate
then identify its scope and limits, to law from those “objects to which it
determine the “province of is related by resemblance [or]
jurisprudence”. Thus Austin’s work …analogy”. Put simply, not
is primarily analytic,128 or everything called or considered to be
conceptual, in nature. Working law actually is law, and failure to
syllogistically, Austin concludes that recognise and combat this leads to
PIL is not “law properly so called”; confusion and the failure of legal
on two counts PIL fails to meet his theory. Austin’s task, therefore, was
definition of law, and therefore it is to define for law “the largest
not law: this can cause us to question meaning which it has, without
any of three things: PIL’s status as extension by metaphor or
law; Austin’s definition of law; analogy”; 130
to eliminate the
Austin’s methodology (of legal confusion surrounding what is to be
theory). classified, and observed, as law.

Law, according to Austin, was a Law – the specifically legal – had to


confused object of observation, and be defined before it could be
therefore pure observation could not observed. This is why Austin
help to define law. His first aim is to concludes that definition is the key
to understanding law, and that laws
128 Austin can, perhaps, be credited with properly understood as the
inventing the school of analytic imperative commands of a
jurisprudence, however I have chosen to
reject this term on the basis of what I
determinate sovereign provide “the
perceive as subsequent misuse, but at any key to the science of
rate because the term can too easily give rise jurisprudence”. 131
In short, Austin
to misunderstanding. This is because Hart
(whom I see as the exemplar of empirical had to, and did, posit a definition of
legal positivism, or “descriptive sociology” law:
in his own designation) is often termed –
A rule laid down for the
and indeed in certain respects is – an
analytic jurist. Thus, for the purposes of the guidance of an intelligent
present work the crucial distinction is
between the conceptual and the empirical, 129 Austin, The Province of Jurisprudence

with the possibility that the analytic in fact Determined, p. 18.


straddles this border denying that term 130 Ibid.

utility here. 131 Ibid p. 21.

(2008) J. JURIS 53
BECKETT ON THE HARTIAN TRADITION IN INTERNATIONAL LAW

being by an intelligent being International law is not law properly


having power over him.132 so-called according to this definition,
having neither emanated from a
For Austin, “laws or rules, properly sovereign body, nor being supported
so called, are a species of by sanctions in the event of non-
commands”,133 and commands are compliance.137 Instead public
significations of desire “distinguished international law is a branch of
from other significations of desire … positive morality in the Austinian
by the power and the purpose of the system, but no less a science of rules
party commanding to inflict an evil because of this.138 Nor is it
or pain in case the desire be necessarily less efficacious:
disregarded”.134 This gives rise to The given society may form a
Austin’s infamous sanction based society political and
model of duty: independent, although that
Being liable to evil from you certain superior be habitually
if I comply not with a wish affected by laws which
which you signify, I am bound opinion sets or imposes.139
or obliged by your command,
or I lie under a duty to obey This is not a (positive) legal limitation
it.135 because it is not obedience to rules
posited. That is public international
However, for present purposes there law does not emanate from a
are two problems with Austin’s determinate source, and so cannot be
definition, though not with his understood as a command.140 Thus
methodology.136 Firstly his public international law forms a
definition of law was unsupported
and secondly, from the perspective 137 See supra, note 7, e.g. pp. 112 and 123.
of PIL, it was wrong.
138 Ibid. p. 112.
139 Ibid p. 170
140 See ibid. e.g. pp. 117-8. However, it is, I

believe, possible to define public


international law as law within a(n at least)
132 Ibid. neo-Austinian model. This is because Austin
133 Ibid. p. 21 accepts that the “members of a Sovereign
134 Ibid. body” are subjects in relation to that body as
135 Ibid. p. 22. a corporate entity. There is no reason not to
136 In this regard, and contra orthodox perceive this as an accurate description of
understandings, I would claim that it is Hart (the ideal of) the relationship between
and not Austin who was methodologically independent states and the “international
naïve. However, as should be apparent, my community”, although of course, Austin
acceptance of Austin’s methodology does not does not do so. On this possibility, see ibid
entail an acceptance of his theory on my part. pp. 218-23.
(2008) J. JURIS 54
THE JOURNAL JURISPRUDENCE

branch of positive morality, this is a spoken of, thought of, and actually
direct implication of the consistent used in social life”.142 Austin’s
application of Austin’s definition of description was incomplete and
law to the data of international inaccurate, he had allowed logical
intercourse. It is not, however, a consistency to override empirical
pejorative classification. The observation, that is, he had fallen
Austinian task, as noted is into the classic dogmatist’s pitfall.
conceptual in nature. He set out to This was a mistake Hart would
differentiate law from other endeavour not to repeat.
normative orders, and in order to do
so, he realised that he had first to Hart’s alteration in focus,
define law. necessitated by his re-orientation of
legal positivism as descriptive
A NEW BEGINNING: H.L.A. HART: sociology or elucidation of legal
concepts, is well captured by
Hart develops much of his work Gardner:
from a critique of Austin. In short, Hart showed how … legal
Hart perceived Austin’s work as too norms have no “essence”
nothing that makes them
crude, and too dogmatic plausibly to
distinctively legal, except that
describe a phenomenon as complex they are norms belonging to
as the law or legal system. To move one legal system or another
beyond such naïveté, Hart … One needs to begin by
abandoned the method of advance asking what property or set
of properties all legal systems
definition. Consequently, Hart does
have in common that
not offer a definition of law. Speaking distinguish them from non-
of, and in, the Concept of Law, he legal systems. Only when
advises that “Its purpose is not to armed with that information
provide a definition of law”.141 The can one identify legal norms
key defect Hart perceived in Austin’s
work was the idea that only one kind 142 Ibid p. 78. Here, I believe, we see the
of rule, the sovereign command, impact of the linguistic philosophy of Hart’s
friend J. L. Austin; Hart, following Austin,
could be considered to be law. Hart believed that “a sharpened awareness of
disagreed as, for him, this would words [would] sharpen our perception of
the phenomena”. (ibid p. v). The
“distort the ways in which [laws] are observational overtones of Hart’s language
are revealing, Austin’s work ‘distorts’ an
object of analysis (the law) itself extant
141 Hart H., The Concept of Law (2nd ed.) p. 17. externally to that act of observation.
(2008) J. JURIS 55
BECKETT ON THE HARTIAN TRADITION IN INTERNATIONAL LAW

(including laws) as legal which the correct identification and


norms. One distinguishes elucidation of legal systems (as such)
laws … as norms belonging
could be evaluated. In fact, Hart
to legal systems. [With all due
respect to] Kelsen, one does simply ‘smuggled in’ a common-
not distinguish legal systems sense definition of legal system; the
as systems made up of laws very definition I wish to expose and
… legal systems are the basic problematise.
units of law.143
Hart does not claim that PIL is not
This is a paradigmatic shift in law – in fact he recognises the
thought. Hart rejected the idea of possibility that it is law – but he does
advance definition as a technique for reject the idea of its being a legal
reaching or improving our system. PIL, for Hart, is merely a
understanding of legal concepts. primitive “set” of laws, some form
Instead, he shifted the focus of of normative primate requiring
analysis to the contextualised use of remedial measures to accelerate its
legal terminology, and claimed to be evolution into a proper legal system:
elucidating the underlying concepts.144 its emergence from the pre-legal into
However, in order to develop and the legal world. Consequently, only
test understandings in this way the two issues can be problematised:
Legal System must itself be PIL’s status as law; or Hart’s
presupposed as the objective domain of methodology.
analysis. In other words, absent a
controlling definition, some other Law existed, it could be observed
external arbiter of truth or accuracy and described, but only by focussing
is required, and only a legal system upon “simple truths about different
presupposed as extant and legal, can fulfil forms of social structure [, truths
this role. The problem of course is which] can, however, easily be
that this technique cannot then be obscured by the obstinate search for
transferred to the legal system as unity and system where these
such, unless another system (or desirable elements are not in fact to
category) is posited as providing the be found.”145 Observation must be
objective domain of analysis in given priority over dogmatic
143 Gardner J., “The Legality of Law” 17 definition, and – assuming the
Ratio Juris (2004) 168, at pp. 170-1 paragraph
breaks suppressed, and note omitted.
144 See e.g. supra note 19 p. 208. 145 Ibid p. 230.

(2008) J. JURIS 56
THE JOURNAL JURISPRUDENCE

“system” in the quotation to be a They key lies in Gardner’s analysis


legal system, as no other system itself:
seems appropriate – law as such One needs to begin by asking
must be conceptually separated from what property or set of
properties all legal systems
the legal system.146 have in common that
distinguish them from non-
A contradiction begins to surface legal systems.147
here, as Hart seems – to say the very
least – unsure about the relationship This “property” in Hartian analysis is
between law and legal system. the authority of the legal system; all
Outwith the Concept of Law, as legal systems are empirically
Gardner suggests, Hart’s work observable as the actions of the
appears to indicate that the two are factually authoritative organs
inseparable, that understanding of (institutions) of their host societies.
the law is derivative on However, a “primitive society,” i.e. a
understanding of the legal system. society lacking such centralised and
One way to avoid contradiction authoritative institutions, can
would be to ignore chapter 10 of the nonetheless have laws.
Concept, to treat it as a mistake, or a Consequently, it must be assumed
red herring. But, of course, that that these ‘laws’ themselves – and
chapter was not excised from the individually at that – possess this
second edition, and thus we can stamp of authority. The
assume Hart did not perceive it in contradiction can be resolved by
that way. Consequently, we must assuming the authority of the legal
consider other ways of reconciling system into each individual norm of a
this apparent contradiction. primitive ‘set’ of legal rules.

146This seems to me to be the basic claim of Hart’s methodology is particularly


chapter X of the Concept; however, Hart
never talks about primitive sets of “laws”, instructive here. Even leaving aside
but only ever of sets of “rules” (which seem his decision to restrict his study to
in his analogies to cover everything from “municipal legal systems” as the
etiquette to PIL). Moreover, and more
confusingly, he does at times refer to the paradigm instance of law,148 we
international legal system but he also notes must take issue with the nature of
expressly “the rules [of PIL] which are in
fact operative constitute not a system but a observation entailed by Hartian
set of rules” concluding that a basic rule of
recognition does not (as yet) “represent an 147 See note 21, supra.

actual feature of the system”; Concept p. 231. 148 Supra, note 19, p. 17.

(2008) J. JURIS 57
BECKETT ON THE HARTIAN TRADITION IN INTERNATIONAL LAW

methodology. Hart’s is a theory of command structures in a


institutionalisation, of the complex society151
centralisation of violence, and the
necessity for a monopoly of both In other words, Hart elides law with
legitimate force and authoritative “deference to constituted
152
decision-making. authority” and recognises a legal
The absence of an official system only when the monopoly on
monopoly of ‘sanctions’, may legitimate violence is already in place
be serious … however … the
and effective. Law is what officials
lack of official agencies to
determine authoritatively the recognise as law, no more and no
fact of violation of the rules less. There is no theory of the
is a much more serious specifically legal, because Hart was
defect.149 less interested in the legal than the
institutional: his theory is, ultimately,
Law in this theory is the ordered Hobbesian; a theory of control. Hart
observation of official conduct; law does not openly acknowledge the
is what(ever) tribunals actually do. link between law and the centralised
However, this can be discovered only monopoly on legitimate violence, but
if the institution from whose it is the implicit condition which
behaviour law may be observed itself (alone) makes his work intelligible.
has a real existence (i.e. the institution The following quotes are taken from
must be a brute fact); and a real the second edition of The Concept of
monopoly on decision and force Law:
(again, an empirically verifiable brute For the most part the rule of
fact).150 This is Hart’s definition of recognition is not stated, but
legal system. its existence is shown in the
way in which particular rules
are identified, either by
As Dyzenhaus notes: courts or other officials or
Hart’s account of the rule of private persons or their
recognition explains legal advisers. There is, of course,
authority as an institution a difference in the use made
which comes into being to 151 Dyzenhaus D. “Fuller’s Novelty” in
maximise the efficacy of Witteveen and van der Burg (eds.)
Rediscovering Fuller 78 at p. 94.
152 The phrase is Fuller’s, and comes with

the warning that law must not be confused


149 Ibid, pp. 93-4. with such deference. See The Morality of Law
150 See Gardner , supra note 21, at p. 168. p. 106.
(2008) J. JURIS 58
THE JOURNAL JURISPRUDENCE

by courts of the criteria system. This may be so


provided by the rule and the complete in character and so
use of them by others: for protracted that we should say
when courts reach a … it never established itself
particular conclusion on the as the legal system … or …
footing that a particular rule that it had ceased to be the
has been correctly identified legal system (103)
as law, what they say has a
special authoritative status One who makes an internal
conferred on it by other statement concerning the
rules. (101-2) validity of a particular rule of
a system may be said to
The assertion that it [the rule presuppose the truth of the
of recognition] exists can external statement of fact
only be a question of fact that the system is generally
(110) efficacious. (104)

its [the rule of recognition’s] There are therefore two


existence … must consist in minimum conditions
an actual practice (111) necessary and sufficient for
the existence of a legal
So, the rule of recognition is a fact: system. … those rules of
the question of whether a behaviour which are valid
rule of recognition exists and according to the system’s
what its content is … is ultimate criteria of validity
regarded throughout this must be generally obeyed,
book as an empirical, though and … its rules of
complex, question of fact. recognition specifying the
(292) criteria of legal validity …
must be effectively accepted
as common public standards
Its existence is identified (and its of official behaviour by its
content verified) by actual officials. (116)
observation of the conduct of system
officials (especially judges). But, what The existence of a legal system,
makes someone an official, and what therefore, is also a question of fact
creates a Legal System? (efficacy). The fact in question must
be the official monopoly on
From the inefficacy of a legitimate violence, primarily in
particular rule … we must
distinguish a general terms of determining when it may be
disregard of the rules of the deployed, but also in holding a de
(2008) J. JURIS 59
BECKETT ON THE HARTIAN TRADITION IN INTERNATIONAL LAW

facto monopoly on its actual the social pressure it exerts


deployment. A legal official is one (94)
empowered under such a (factually
extant) legal system to access the These “features” are identified
monopoly on official violence. A inductively, they are the features
legal ‘rule’ then becomes any which judges typically accept as
condition under which the official distinguishing legal from other rules
may access that violence. This is in any given system. Thus, for Hart,
summed up by Raz’s claim that “the law is, and law is what legal officials
concept of law is not a product of consider it to be. Law is discovered
the theory of law.”153 This is a by observing, classifying, and
strong ontological claim. Law, the understanding the activities (and
concept of law, has a real existence, rhetoric) of legal officials. Moreover,
it effectively is a brute fact. Thus, the the rule of recognition is based on
concept of law (for Hartians) resides the assumption that a consistent
outside legal theory, and the latter agreement on the “set of features”
exists to describe the former. which distinguishes and identifies a
legal rule will be empirically
The concept of law is a way of identifiable within the actual
understanding (interpreting) official practices of actual judges.
behaviour. The legal system is the
union of primary and secondary In short, “[f]or Hart, the foundation
rules, unified by a rule of of any legal system is an observable
recognition. The rule of recognition rule of recognition that guides
tells us how other legal norms are to official behaviour in the
154
be identified (recognised): ascertainment of laws.” The rule
This [the rule of recognition] of recognition actually exists, and is
will specify some feature or actually observable, it is observed in the
features possession of which regularities of official conduct, the
by a suggested rule is taken law – in its counter-factual existence
as a conclusive affirmative
– is the product, the effect, of these
indication that it is a rule of
the group to be supported by regularities, thus it cannot be their
cause. In primitive, or pre-legal,

153Raz “Two Views of the Nature of the 154 Kramer M., “The Rule of Misrecognition

Theory of Law: A Partial Comparison” in in the Hart of Jurisprudence” 8 OJLS (1988)


Coleman J. (ed.) Hart’s Postscript 1 at p. 36. 401, at p. 406.
(2008) J. JURIS 60
THE JOURNAL JURISPRUDENCE

societies, law can still exist, but it Therefore the theorist needs an
cannot do so counter-factually. In “evaluative perspective” from which
other words, in such societies, the to engage in this “clarificatory
existence of laws is real, and is to be exercise”.157 And, “Hart seeks to
ascertained from the empirical find a suitably minimal perspective in
regularities of actual conduct. A legal the need for survival”.158 Simmonds
rule exists where its subjects actually is at pains to point out the minimalist
modulate their behaviour according nature of this perspective (we can all
to its demands; should this actual agree on the desirability of human
regularity wither, so would the rule. survival, so the claim can be widely
The rules have no distinct assented to) and the importance of
ontological status, only empirical Hart’s claim to be merely clarifying
existence, and when they can no the phenomena; not evaluating,
longer be empirically observed, they critiquing, or advancing it:
no longer exist. “The rules of the The concept is perspicacious
simple structure are, like the basic because and in so far as it reflects
features of the social
rule [the rule of recognition] of the
phenomenon of law that are
more advanced systems, binding if distinctive and important when
they are accepted and function as judged from the viewpoint of a
such.”155 concern for human survival.
Such a concern is sufficiently
widespread to be shared by all
SUICIDE CLUBS: MINIMALISM: & THE
participants in the debate about
FETISHISATION OF LAW: juridical duty.159

Hart’s theory is presented by Or, as Hart puts it, “our concern [in
Simmonds as “minimalist”, in that it theorising law] is with social
seeks only to “frame” or “clarify” arrangements for continued
debates. Both seem to agree that the existence, not with those of a suicide
purpose of the concept of law is to
“adequately reflect the features of presentation, the “social phenomena” of law
the social phenomena of law that are seem to exist – as law – outside of legal
theory. Indeed law, itself, as a social
most important and distinctive”.156 phenomenon appears to exist outside legal
theory, as a real object, simply awaiting
155 Hart, supra, note 19, at p. 230. discovery and description; like an uncharted
156 Simmonds N., “Bringing the Outside In” island patiently awaiting mapping.
1993 OJLS 147, at p. 154. It does, however, 157 Ibid pp. 154-5.

minimalist thesis or not, seem worth noting 158 Ibid p. 154.

that in both Hart and Simmonds’ 159 Ibid p. 156.

(2008) J. JURIS 61
BECKETT ON THE HARTIAN TRADITION IN INTERNATIONAL LAW

club.”160 However, it is within this Hobbesian assumption, that imposed


“minimalist” claim that the order is necessary to human survival,
fundamental error, or confusion, lies: is augmented by a legalist
the elision between law and human assumption that only law can bring
survival. Of course Simmonds is about that order. This appears to
correct to claim that we are all (or at contain the corollary assumption that
least, I strongly suspect most of us any regulatory regime which brings
are) concerned with human survival, about (imposes) order is automatically,
however, that need not make human definitionally, a legal order, law and a
survival relevant to debates over law. legal system.162 That, however, is
To make the point bluntly, even very much a non-minimalist
flipply, we remain concerned with human assumption, it is a huge and
survival while we discuss the relative debateable assumption, albeit one
merits of varying brands of subsequently presented as a truism.
chocolate, but that concern is not
germane to the debate, as it would be In other words, Hart’s theory does
germane to a debate on governance not merely elucidate legal concepts.
or war (as opposed, perhaps, to the Instead, it defines a legal system: it
legal regulation of either). defines the data against which legal
theory should be evaluated. But the
Thus the assumption Hart actually very existence of that definition
makes is less obviously minimalist renders the theory contingent: in
than Simmonds claims; this is the terms of Simmonds’ (false)
assumption that law is necessary for dichotomy, Hart’s theory is
the maintenance of human survival: “maximalist” and thus persuasive
that, absent law, we would die in a only to those who share its
war of all against all. In the Marxist substantive commitments.163 It is not
sense, Hartian scholars fetishise the
law.161 In other words, Hart’s
162 In his famous debate with Fuller, Hart
went so far as to affirm that, in his view,
even the Nazi system of government was a
legal system, albeit a bad one; see Hart
160 Hart, supra note 19, at p. 192. H.L.A “Positivism and the Separation of
161 Fetishisation in this sense is the Law and Morals” 1958 Harvard Law Review.
ascription of properties to an object or 163 An alternative way of looking at this

system which does not in fact possess or would be to recognise that Aquinas’ theory
inculcate them; it is a prelude to reification, was, probably, in Simmonds’ terms, a
the objectification of social relations as minimalist theory in its own time. The
natural facts. For a simple introduction, see assumptions which form Aquinas’
Collins H. Marxism and The Law. “perspective” were probably sufficiently
(2008) J. JURIS 62
THE JOURNAL JURISPRUDENCE

a neutral epistemic grid through complexity of reality so that legal


which the contents of any given legal norms might be identified. This
system must be identified; because identification is to be validated not
the idea of a legal system – the data by its utility, but by its empirical
of the enquiry – is constituted by the accuracy. It will allow us accurately
act of observation: the concept of to identify the legal norm applicable
law (i.e. the definition which, to a given case; and to justify that
necessarily, precedes the identification choice by reference to its empirical
and elucidation of the legal system) is accuracy, not its substantive appeal.
a product of legal theory. The law is presented as an empirical
fact (enforced decision) which may
However, from within his own be empirically observed. This
methodological protocols, Hart is technique allows theorists to identify
correct, PIL is not a legal system. law by reference to the actions of
But this tells us only that Hartian those institutions, courts, whose
methodology, whatever its other decisions are enforced: the enforced
merits (if any), is inappropriate to the decision becomes law, an extant legal
study of PIL. Moreover, and more norm. Social practice methodology,
importantly, Hart’s theory cannot to remain ‘pure’ or consistent, must
even provide an intelligible treat all such decisions as equally
understanding of the contents of a valid extant legal norms.
legal system according to its own
definition. From this perspective, the ontology
of the norm is almost empirical. The
LAW UNDERSTOOD AS A BRUTE norm is, in effect, a speech act, it
FACT DOES NOT ADEQUATELY comes into being at the point of its
REDUCE COMPLEXITY: articulation; it can then be treated as
a fact. The legal system is the
To understand law as necessarily composite of these facts, these legal
enforced is an attempt to reduce the norms manifested as legal decisions.
The legal decision does not merely
orthodox to be understood as “sufficiently reflect, or even embody, the legal
minimal” for widespread agreement. What norm; it becomes the legal norm.
this highlights – and what Simmonds and
Hart ignore – is the contingency of general
Moreover, the arguments which led
agreement, the self-referentiality of to the ‘recognition’ of this legal
orthodoxy. On a related note, see note 86 norm, having been recognised by the
and accompanying text, infra.
(2008) J. JURIS 63
BECKETT ON THE HARTIAN TRADITION IN INTERNATIONAL LAW

judge,164 become (or are confirmed nothing more than personal


as) licit legal arguments, valid preference, even if the judges
argumentative techniques, themselves remain ignorant of that
constituent parts of the “grammar” fact:
of (that) legal practice.165 It only shows the inevitability
of political choice, thus
seeking to induce a sense that
Subsequent legal arguments are then
there are more alternatives
constructed by applying a choice of than practitioners usually
these legal argumentative techniques realise, that impeccable
to a choice of extant legal norms; to arguments may be made to
produce a logically entailed ‘chain’ of support preferences that are
not normally heard; that if
decisions pointing to the applicability
this seems difficult through
of a particular ‘norm’ to the instant the more formal techniques,
case. The judge then chooses from then less formal techniques
amongst these norms, based I would are always available – and the
argue (alongside Legal Realism and other way around.167
Critical Legal Studies (CLS)166) upon
This is analogous to MacIntyre’s
164 This refers, specifically, to the judge in refinement of the emotivist claim,
the institutional sense (and location) of the whereby emotivism is transposed
word: the authorised decision-maker cum law
cognisor; the institutional privileged locus of from a theory of meaning into a
decision. It does not refer to the abstract theory of use, and where:
paradigm of the judge, as the embodiment Meaning and use would be at
of the legal ought. Nonetheless, the implicit
and underlying argument of this paper, is odds in such a way that
that the decisions of the ‘actual’ judge, are meaning would tend to
legally legitimate only to the extent that they conceal use. … Moreover the
correspond with those of the abstract agent himself might well be
paradigm. among those for whom use
165 Koskenniemi, From Apology to Utopia, 563.
166 CLS, perhaps best understood as a was concealed by meaning.
reincarnation and development of the He might well, precisely
American Legal Realist project, offers a wide because he was self-
ranging critique of the functioning of legal conscious about the meaning
orders, focussing on their outcomes, innate of the words that he used, be
biases, and most famously, on the claim that
law is radically indeterminate. For an assured that he was appealing
introduction to CLS in international law, see to independent impersonal
Beckett J. “Rebel Without a Cause? Martti criteria, when all that he was
Koskenniemi and the Critical Legal Project” in fact doing was expressing
2006 German Law Journal 1045; for a more
general introduction to CLS see Kelman M.
A Guide to Critical Legal Studies. 167 Koskenniemi, supra note 43, p. 602.

(2008) J. JURIS 64
THE JOURNAL JURISPRUDENCE

his feelings to others in a rather a result of the multiplicity of


manipulative way.168 previous judgments.

In effect, this leaves judges with an This can be demonstrated by a


almost unlimited discretion to comparing Unger’s CLS inspired
choose the norm which will ‘control’ critique of dogmatic legal analysis,
or ‘determine’ their decision. Hart with MacCormick’s defence of the
assumed that this discretion would be Hartian project in the face of the
controlled by the judges as a CLS attack. Thus, where Unger calls
collegiate body, that their decisions for a process of “mapping and
would be consistent, and thus critique” of the legal order,
produce an obviously visible set of MacCormick defends and refines the
rules by which norms were Hartian approach, claiming that legal
consistently recognised (the rule of theory is (or should be) engaged in a
recognition as empirical fact): process of “rational reconstruction”:
The rule of recognition Give the name mapping to the
actually accepted and suitably revised version of
employed in the general the low-level, spiritless
operation of the system … analogical activity, the form
could be established by of legal analysis that leaves
reference to actual practice: the law an untransformed
to the way in which courts heap … a requirement for
identify what is to count as the accomplishment of this
law (108) task is that we resist the
impulse to rationalise or
Hart was wrong. idealise the institutions and
the laws we actually have.169
The rule of recognition, understood
as an empirical fact, does not This would appear to be the logical
determinately identify what is to conclusion, or perhaps the reductio ad
count as a legal rule or norm. There absurdum, of the Hartian project of
is no self-evident core of reason descriptive legal theory: a non-
unifying and systematising legal evaluative description of legal
systems understood as brute facts. practice. However, such a process
Judicial discretion is not limited by would illustrate confusion and
previous judicial decisions, but is contradiction, not rational order:
169 Unger R. What Should Legal Analysis
168 MacIntyre A., After Virtue, p. 14. Become? pp. 130-1.
(2008) J. JURIS 65
BECKETT ON THE HARTIAN TRADITION IN INTERNATIONAL LAW

Legal doctrine produced in one clear scheme on their


this way degenerates into face. Of course they don’t.
mere casuistry where it The juristic task has always
purports to reconcile and been to establish
work in every single case and intelligibility, not merely to
statute in some grand discover it.172
scheme; there has to be some
discrimination between the In other words, MacCormick, contra
parts that belong in the
coherent whole and the Unger, recommends that we indulge
mistakes or anomalies that “the impulse to rationalise or idealise
do not fit and ought to be the institutions and the laws we
discarded.170 actually have”. However, the
empirical theorists are then
Instead of this, the work of rational confronted with the limit point of
reconstruction: their own theorising. Absent its
Calls for the exercise of informing values, the empirical
creative intelligence and
evidence does not support a
disciplined imagination to
master the large and always consistent set of criteria for the
changing bodies of material identification of legal norms. Instead
involved, to grasp them all this must be imposed according to
together [presumably with the desires of the theorist’s “creative
the ‘necessary’ excisions intelligence and disciplined
already having taken place],
and to reconstruct them imagination”. Nonetheless,
altogether [except the excised MacCormick can conclude:
pieces] into systematized and In a modern state, the
coherent wholes.171 continuing intelligibility and
operability of law depends
crucially on its continuing
In short: servicing by academic
Normative order as order is commentators as well as by
not a natural datum of practitioners and judges.173
human society but a hard
won production of
organizing intelligence … the Yet, by MacCormick’s own
raw materials don’t bear any admission, such a process must be
arbitrary: it cannot take all available
170 MacCormick N. “Reconstruction After data into account, and yet can admit
Deconstruction: A Response to CLS” 1990
OJLS 539 at p. 556. 172 Ibid pp. 557-8.
171 Ibid p. 557. 173 Ibid p. 558.

(2008) J. JURIS 66
THE JOURNAL JURISPRUDENCE

of no informing values by which the ordered presentation, and predictable


choice of which material to excise responses.
could possibly be justified. This is
precisely the charge Dyzenhaus levels Instead, we require three consecutive
against contemporary legal processes of data reduction,
positivism. 174
MacCormick has in identification, and ordering, which
effect conceded the impossibility of the operate cumulatively to make the
Hartian descriptive project. The rational ordering, the rational
rationalising process is indeed “mere reconstruction, of law as a social
casuistry”, and ex post facto casuistry practice appear possible. First
at that. But that fact is disguised and cognition is limited to the actions of
denied “by academic commentators those who constitute “authoritative
as well as by practitioners and decision-makers”; this delimits the
judges”; and that denial constitutes social practice. Second a distinction is
the “continuing intelligibility and drawn between winning and losing
operability of law”. arguments; this purifies the data (in a
manner analogous to what Cover has
Consequently, the dynamics of termed the “jurispathic”
perception must be resolutely function ). Third a final set of
175

reductivist in function. The first exclusions are enacted amongst the


reduction is that from the winning arguments, in order to create
overwhelming data of pure existence the impression that these can be
to the isolation of institutional understood as a coherent whole.
behaviour. This may be presented as Only then can we ‘identify’ ‘chains’
a mere identification of the relevant of cases giving rise to ‘recognised
data, but is, in fact, the construction rules’.
of the practice ‘identified’. However,
even once that is accomplished, the Unger captures this move, and its
‘fact’ of the social practice constituted disguise behind banality, when he
by this structured and reductive recognises legal analysis as a
observation, will remain too complex “spiritless analogical activity”.176 He
to facilitate rational exposition, then seeks to expose its true nature
to light. The radical banality of

174 Dyzenhaus D., ‘Positivism’s Stagnant 175 Cover R., “Nomos and Narrative” 97

research Proposal’ 2000 OJLS 703, at p. Harvard Law Review (1983) 4 at p. 40.
711-2. 176 Supra, note 47.

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BECKETT ON THE HARTIAN TRADITION IN INTERNATIONAL LAW

Unger’s ideal of “mapping” is to Schematically speaking, theorists,


highlight the process of task evasion black letter academics, and
inherent in rational reconstruction or practitioners of international law,
paradigm case methodology. The transpose – or probably more
banal radicality of the process is to accurately transplant178 –
bring to light the full impact of a task assumptions about the “nature of
normally considered banal, the law”, from the theory and practice of
doctrinal analysis of legal systems, municipal law to the alien
the imposition of order through environment of international society.
exclusion, the nature of Thus, Koskenniemi is correct to
“reconstruction” as creation. That is draw attention to:
the utter impossibility of empirical The domestic analogy that
analysis, and the delusion which persuades us – contrary to all
evidence – that the
disguises value imposition behind a international world is like the
claim to describe what “is”. national so that legal
institutions may work there
The Relationship Between Municipal as they do in our European
and International Legal Theorising: societies.179

Hart stipulated that the task of legal Two problems arise as a result: first
theory was to “provid[e] an municipal law is not, itself, a
improved analysis of the distinctive coherent, nor an unproblematic,
structure of a municipal legal concept;180 and second PIL is not
system”177 and from this, to develop municipal law. This is not necessarily
an enhanced understanding of law as problematic, but can become so
such. Consequently, municipal law
178 The, very useful, distinction between
formed, and continues to form, the transplanting and transposition was
paradigm of legal theorising. Almost developed, and is elucidated, by Esin Orucu;
all theory of international law simply see “Law as Transposition” 51 ICLQ (2002)
205.
develops, transposes, or transplants 179 Koskenniemi M., “International Law in

municipal legal theory to the alien Europe: Between Tradition and Renewal”
16 EJIL (2005) 113, at p. 122.
environs of international life. 180 See Kammerhofer J., “Uncertainty in the

Formal Sources of International Law:


Customary International Law and Some of
Its Problems 15 EJIL (2004) 523 at p. 550;
see also Kletzer C., “Kelsen’s Development
of the Fehlerkalkul-Theory” 18 Ratio Juris
177 Supra, note 19, at 17. (2005) 46.
(2008) J. JURIS 68
THE JOURNAL JURISPRUDENCE

when institutional centralisation is actions of “authoritative decision


posited as the defining feature of the makers”.182 This identifies a vast
legal system. This is so for two category of relevant data. To make
reasons: firstly, PIL is not an matters worse, the absence of
institutionalised legal system, and centralised institutions also subverts
secondly; because of that fact, the stage two of the process of
problems inherent in descriptive reduction: there are no courts (of
legal theory are greatly exacerbated compulsory and general jurisdiction)
in PIL. As a corollary point, the by reference to which the distinction
problems are more easily identified between winning and losing
in PIL. Consequently, the arguments can be identified:
relationship between the two there is a fundamental
branches of theory ought to be distinction between the
question of the acceptance
conceived as symbiotic, rather than a by a State of the Court's
uni-directional transfer of knowledge jurisdiction and the
from the “advanced” municipal compatibility of particular
orders to the “primitive” acts with international
international order. law.183

This becomes obvious if we think Consequently, only the third stage of


about the (necessary) three stage the process – the most radically
process of reduction outlined above. under-theorised stage – is actually
The first stage is the most awkward, active in PIL. The ‘reconstruction’ of
because there are no centralised the legal system becomes a
institutions by reference to which the construction of the legal system, and
data can be ‘identified’ (purified and that creates the “personalisation”, the
reduced). This is why PIL cannot be descent into idiosyncrasy, of PIL.184
a legal system in the Hartian sense: The indeterminacy which gives rise
legal systems are necessarily to this personalisation is inherent in
(definitionally) institutionalised
182 For a sympathetic, but nonetheless
forms of social control.181
useful, account of this notion, see Higgins R
Problems and Process: International Law and How
Instead, empirical theorists of PIL We Use It pp. 1-16, esp. pp. 9-11.
183 Legality of the Use of Force (FRY v. USA)
must turn their attentions to the Preliminary Objections ICJ Order of 2nd June
1999 para. 30, 1999 ILM p. 1188 at p. 1195
181 See notes 25-30 and accompanying text, 184 See Beckett J. The End of Customary

supra. International Law? (Forthcoming) esp. ch. 4.


(2008) J. JURIS 69
BECKETT ON THE HARTIAN TRADITION IN INTERNATIONAL LAW

the empirical (‘British positivist’) justifying, but imperfectly reflected


methodology, but is more apparent within, a social practice: law as the
in PIL, where it is less likely to be reason for judicial decisions, not
disguised by institutional centrality, merely the fact of judicial decisions.
authoritative decisions, institutional Consequently, there are (at least) two
bias, and the continued (and possible understandings of law, and
consistent) servicing of academics and these give rise to two quite different
practitioners. views of (what constitutes) ‘the legal
system’.
TWO VIEWS OF THE LEGAL SYSTEM:
1. Law as a social practice.
There is no necessary reason to
understand law as enforced, nor as 2. Law as an Ideal Idea.
socially central, nor indeed as a social
practice or a social institution. These From the first perspective, law is
commitments may well combine to what judges say the law is.
form the orthodox perspective Consequently, all extant judgments
within legal theorising, but that in must be understood as brute facts;
itself grants them no virtue, as it and these brute facts (the texts of the
offers them no support beyond the judgments, the arguments accepted
“staying power” of orthodoxy. Social by the Court as legal arguments, the
practice theorising precludes law techniques acknowledged by the
from meeting the standard of Court as constitutive of legal norms)
rational determinacy. There may be in total constitute the ‘legal system’.
good reasons for accepting that The task of the ‘lawyer’ is to select
outcome, but definitional fiat does from amongst these facts, seeking
not rank among their number. those most suitable to constructing
the argument their ‘client’ desires.
Law can be understood differently, But, of course, these ‘facts’ do not
as an ideal idea185 structuring, form a coherent system.
Consequently the task of the judge is
185The ideal idea is a concept which I have
adopted from Jörg Kammerhofer (see His is more Platonic, relying on an abstract
Kammerhofer J., “Uncertainty in the Formal realm of the ideal, and in particular on the
Sources of International Law: Customary ideal ontology of norms; whereas my use of
International Law and Some of Its Problems the term refers to the human construction of
15 EJIL (2004) 523 at 544) however, we ideals, which can then form essences, or
deploy this term in slightly different senses. categories in the semantic sense.
(2008) J. JURIS 70
THE JOURNAL JURISPRUDENCE

to make a free choice between the how to decide which theory to adopt
competing arguments (and then deny as dominant.
that this has occurred), and the task
of the ‘orthodox’ academic is to aid However, when law is understood as
and abet this disguising and denial of a social practice, this question
the fact of judicial decisionism.186 regarding the ideal idea cannot be
brought into focus. This is because it
From the second perspective, the precedes the legal judgments, and the
law is not a brute fact. Consequently, judgments themselves are understood
the texts and ‘facts’ and decisions as ‘the law’. Consequently, the
which constitute the legal system in ‘problem’ of indeterminacy, whose
the first analysis are, at most, existence seems incontestable within
evidence of the underlying ideal of the arena of social practice, cannot
law. Instead, each legal argument is be resolved within that arena. The
understood as the manifestation of a solution, therefore, must lie, at least
particular theory of law. From this initially, with the full articulation of
perspective, the law is an ideal idea, a the decision the judge must actually
direct product – an actualisation or make. The decision as to which ideal
realisation – of the underlying theory idea to endorse, which definition of
of law. The legal system is law to concretise into the legal norm.
understood as a manifestation of the
dominant theory of law. The legal As there are no “agreed criteria” for
system too is an ideal idea, the idea legal decision-making, it is delusional
which ought to structure, or even to assume that judges apply such
determine, the judicial decision; and criteria.187 Instead they must,
define the actions which may be implicitly, choose between different,
acknowledged as law constitutive, contesting, and irreconcilable visions,
and the argumentative techniques or theories, of law in order to reach
which may be acknowledged as legal their decisions. However, such
arguments. The critical question is theories are merely implicit in the
legal arguments actually offered;
186 Ricouer eloquently denounces this strand hence the silence of the
of positivism as “the complicity between the
juridical rigidity attached to the idea of a
univocal rule and the decisionism that ends
up increasing a judges discretionary power”
see, ‘Interpretation and/or Argumentation’ 187 Carty A. The Decay of International Law p.

in Ricouer P., The Just 109 at p. 114. 25.


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BECKETT ON THE HARTIAN TRADITION IN INTERNATIONAL LAW

“prologue”,188 the unarticulated thesis on structuring this substantive


nature of the theoretical assumptions preference through the imposition of
driving the argument. a substantive morality,189 the
question ought to turn to the ‘criteria
Even within the arena of ‘social for collection’ themselves. Focus
practice’ these inarticulate theories should be directed to the reasons for
are being deployed and decided inclusion within the rational
amongst. They ought to be brought reconstruction, and not on the ‘data’
to light. This will entail only an from which that material is to be
apparent widening of legal argument, selected, especially as that ‘data’ is
to encompass legal theory. In itself constituted by the legal theory
practice, legal argument and legal adopted, which is in turn a
decision-making already encompass manifestation of those ‘criteria for
legal theory. That this fact goes collection’.
unacknowledged does not make it
untrue. Consequently, the fact The key point is that both orthodox
should be engaged, and its responses to the deficiencies of the
implications contended with. social practice method are,
themselves, pathological. The British
This allows us to understand the true legal positivist response does not
nature of ‘technical legal analysis’ – engage the real problems, but
of the masquerade of the empirical – functions in denial. Consequently, it
which is, in reality, no more than a serves merely to perpetuate the
random selection of ‘extant’ norms; problems. The natural law response
understood as the brute facts of retains the hubris of moral
articulated legal judgements, which imperialism.190 Neither response
MacCormick terms “the large and should be adopted. Despite being
always changing bodies of material presented as exhaustive of the field
involved”. The collections presented of possibilities, these theories do not,
as identifying the applicable norm in fact, constitute our only available
owe nothing to internal logic, but options. Instead, we could abandon
gain their force from the substantive social practice methodology.
appeal of the norm itself. If we reject
(or at least bracket) Dyzenhaus’ 189 Dyzenhaus, supra, note 52.
190 See Beckett J. “Behind Relative
188 Dworkin Law’s Empire p. 90. See also Normativity: Rules and Processes as
notes 74-5 and accompanying text, infra. Prerequisites of Law” 2001 EJIL 627.
(2008) J. JURIS 72
THE JOURNAL JURISPRUDENCE

MacCormick argues that law should


MacCormick offers a way out of this be understood as an “institutional
dilemma; albeit one he does not take, fact”. This idea, expounded at length
nor even adequately develop. by MacCormick and Weinberger as
MacCormick is, undoubtedly, correct the Institutional Theory of Law,191 is
that the key is to further reduce the encapsulated by the former’s
data. Moreover, with all due insistence that law is a “thought
deference to the contingency of the object”, and that these:
tautology, it stands to reason that Exist by being believed in,
this should be done rationally rather rather than being believed in
than irrationally. However, this by virtue of their existence.192
merely poses the key question, it
does not resolve it. That question is: The central focus is on the question
how ought we to substantivise the of what law is, on how we identify
rationality structuring the rational the raw data for legal theory. This is
reconstruction? What I am a second order question, thus the
developing is a specific technique to concern is not with what the law
accomplish this legitimately; a says, nor with what legal rules, ideas,
technique to ‘operationalise’ or norms mean. These are first order
MacCormick’s theory. questions, but they depend for
intelligibility on the second order
In doing so, I am merely drawing the question, what makes the law law
disparate strands of MacCormick’s (what counts as law)? From what
own arguments together. The data do we identify what the law
structure of an operative rational says?193 How do we recognise legal
reconstruction is best developed rules, ideas, or norms? What is law?
from the choice between competing
legal theories, themselves understood
as (manifestations of) thought 191 MacCormick N. and Weinberger O., The
objects. This amounts to an Institutional Theory of Law.
immanent completion of 192 MacCormick N., ‘The Ethics of
Legalism’ 2 Ratio Iuris (1989) 184 at p. 191.
MacCormick’s own project. 193 Whilst this problem is particularly

apparent and acute in PIL, no convincing


reason has been given (to my knowledge) as
THE NATURE OF LAW to why municipal law theorising should
focus exclusively on the (higher appeal)
Courts, rather than, e.g. prosecutors,
contract lawyers, or even policemen.
(2008) J. JURIS 73
BECKETT ON THE HARTIAN TRADITION IN INTERNATIONAL LAW

There are two distinct ways of identifier) and focus on pedigree and
answering this question, the form to provide a duty to recognise
descriptive and the normative; and norms based on law (however
consequently two distinct ways of defined) and not on power (however
understanding law as an institutional imposed) as an institutionalised
fact. We can accept a fixed, natural, form.
existence for law in institutional
practice, (law – or at least legal Despite being widely regarded as one
system – as brute fact) and then of Hart’s most acute critics,195
judge theories by their Dworkin also maps neatly onto this
correspondence to this. Or, we can debate. Dworkin’s theory elides law
accept that law is an ideal, and thus and adjudication, claiming that legal
outside of institutional practice, an philosophy is the “silent prologue”
ideal which legitimates institutional to adjudication:
practice, and therefore provides a Jurisprudence is the general
point of critique for institutional part of adjudication, silent
practice (law as thought object).194 prologue to any decision at
Hart takes the former route, I am law.196
advocating the latter; MacCormick
provides an ambivalent median, or Consequently, the role of legal
perhaps is simply unwilling to take philosophy is to identify this “silent
sides. prologue”, through analysis of
adjudication. In perceiving legal
Nonetheless, MacCormick, has philosophy as the prologue to
indicated another way of conceiving adjudication, Dworkin appears to
of law’s “institutional existence”. By suggest that we privilege the thought
taking legal counter-factuality object, and our understanding of this
seriously – as MacCormick does – determines our identification of legal
we can (contra the Hartian in rules (definition preceding
MacCormick) ‘de-institutionalise’ law description). In Dworkinian terms,
(and thus also de-institutionalise the focus on the law as such constitutes
rule of recognition as law’s empirical the “preinterpretative stage”.

194 See Beckett J., “Countering Uncertainty 195 See e.g. Hart, supra note 19; esp. the

and Ending Up/Down Arguments: “Postscript”; and Dworkin R. Taking Rights


Prolegomena to a Response to NAIL.” 2005 Seriously.
EJIL 213 196 Dworkin, supra note 66.

(2008) J. JURIS 74
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system – the exercise of authoritative


However, in reducing this prologue to and socially central decision-making
silence, Dworkin then makes the – must be ‘smuggled in’. The law can
opposite move, privileging the actual then be derived from this definition;
institutional behaviour. In both but the process becomes contingent
cases, the thought object still exists, rather than necessary.
but in the former it speaks for itself
while in the latter it can only be Moreover, the ‘chosen’ definition
identified through an analysis of fails to adequately reduce complexity.
institutional behaviour, hence its The category of decisions is too vast
“silence”. “We may therefore and too disparate to be unified under
abstract from this stage in our a functional rule of recognition.
analysis by presupposing that the Instead, the process relies on further
classifications it yields are treated as acts of reduction. The second stage –
given”.197 In other words, for all the distinction between winning and
practical purposes, the law remains losing arguments – is not only absent
for Dworkin what it is for Hart, a in PIL, but inadequate in municipal
matter of social fact; an object law. As a result, it is the third and
susceptible to empirical final process of reduction which is
identification. vital. However, this process is not
theorised by British positivists, and
The patent disadvantage to the the natural lawyers resolution is
empirical approach is that it does not normatively objectionable. This is
work. This is so on several levels. The where the understanding of law as a
project is impossible on its own thought object or ideal idea comes to
terms, empiricism inexorably relies the fore.
on categorisation and definition;
denying this does not prevent it. This perspective allows us to realise
Absent such techniques of that the legal decisions which the
classification, empiricism would empirical approach takes to be the
degenerate into unintelligibility.198 raw data of legal theory, are in fact
Consequently, a definition of legal the products of legal theory.
Moreover, the legal system is a
197Ibid p. 66.
198 MacIntyre A. ‘Epistemological Crises,
composite of these products.
Dramatic Narrative and the Philosophy of However, the norms are not
Science’ 60 The Monist (1977) 453, at pp. produced by reference to one
462-3.
(2008) J. JURIS 75
BECKETT ON THE HARTIAN TRADITION IN INTERNATIONAL LAW

dominant or orthodox theory, but The final point I must demonstrate


are in fact a mixture of different, is the preferabilty of a form of
incompatible, and competing legal positivism to play the role of
theories.199 The absence of an orthodox theory.
orthodox theory means that each
norm is chosen for its substantive The Formal Purpose of PIL/CIL
appeal in the instant case. Yet, surely, and its Ontology is Not The Same As
the whole point of law is to move The Substantive Purpose of the
away from discretion of this type: System and its Deontological
It [internalised value conflict] Content:
compels the move to
"discretion" which it was the
Dyzenhaus is correct that law as such
very purpose to avoid by
adopting the rule-format in the must be understood purposively.201
first place.200 Absent a purpose we have no way of
justifying our choice of the
As a result, the final stage of phenomena we will observe under
reduction must be more carefully the name of law. Mere “empirical
theorised. What MacCormick’s work accuracy” cannot be a criteria of
on the institutional theory of law success if the theory itself can define
allows is a new (and better) the relevant empirical data against
understanding of this process. The which the accuracy of description is
law can be made coherent by to be evaluated.202 This would leave
adopting a single orthodox theory positivism in danger of irrelevance,
(for each legal system). The theory pursuing a strained analysis of its
can be chosen for its formal appeal, own stipulated (but unjustified)
its appeal as a general theory, not the objects of observation. Only by
desirability of the norms it produces engagement with purpose – with the
in any instant case. The final stage of reason for having law at all – can we
reduction (the only functioning stage justify the choice of phenomena to
in PIL, the only important stage in be observed, and justify unifying this
municipal law) can be structured and observation under the name of law
made determinate only by adopting or legal system. Law must be defined
such an orthodox theory. to be observed, and purpose is

199 Beckett, supra, notes 62 and 72. 201 Supra, note 52.
200 Koskenniemi, supra, note 43, p. 592. 202 See note 71, supra.
(2008) J. JURIS 76
THE JOURNAL JURISPRUDENCE

required to bring determinacy and Thus the understanding of law as


justification to the definition offered. such must be purposive, and the
identification of legal norms (at least
Moreover, Dyzenhaus may also be in hard cases) requires a purposive
correct that any coherent theory of understanding of the legal system.
adjudication must attribute an overall So, Dyzenhaus concludes, if the
purpose to the legal system being identification of law is a purposive
analysed. That is, the application of practice and the definition of law is
law also presupposes that law have a also a purposive practice, then the
purpose. Naturally, this is disputed concession in the identification
by the hard positivists, for them thesis must inexorably create a like
judicial discretion takes the place of concession in the separability thesis.
the overall purpose of a legal This means that the separability
system.203 This, as Dyzenhaus thesis can no longer be maintained,
disparagingly notes, would leave legal and the moral nature of law must be
theory with the task of merely conceded.
describing the exercise of an
unconstrained judicial discretion; But this is simply not so. That both
rather than structuring or evaluating, law (as such) and each legal system
or even predicting judicial require recourse to their posited
application of the law. Thus any purpose to be fully understood does
theory of adjudication seeking to not in any way imply that each must
constrain judges must posit an share the same purpose. Law
overall purpose for the legal system requires purpose at the ontological
within which those judges operate. level, to identify the phenomena to
This is the concession soft positivists be observed as law. A legal system
offer to the identification thesis, that requires purpose at the deontological
the identification of (the content of) level, to give determinate content to
norms in moments of relative the norms already assumed to exist
indeterminacy may be subject to at the ontological level. The two
moral criteria. operate quite independently of one
another.

In other words, the positivist “claim


203 Gardner J. “Legal Positivism: 5 ½ that understandings of the point of
Myths” 46 American Journal of Jurisprudence law, which inform theories of
(2001) p. 199 at p. 201.
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BECKETT ON THE HARTIAN TRADITION IN INTERNATIONAL LAW

adjudication, operate in a different particular legal systems which inform


conceptual space from theories of theories of adjudication are
law”204 the very claim derided by deontological in effect.
Dyzenhaus,205 is in fact perfectly Understandings of the purpose of
correct. What the law is, and what it is law which define the phenomena to
being deployed for in a particular be considered law are ontological in
setting are two different things. That effect. Thus the two do, by
we need a purpose to determine the definition, “operate in … different
content of some norms does not conceptual space[s]”
mean that this purpose also
determines the form of law as such. The purpose of “law” as such is very
The form of law as such may vary, abstract, social-engineering of some
but moreover and more importantly form, or the delimitation and
a single form for law (e.g. Fuller’s evaluation of society. But how this
definition, drawn from purpose, and will be substantivised requires focus
encapsulated in the eight principles) on a second (itself more substantive)
can sustain a variety of different purpose, the (political) purpose
purposes to be pursued by different pursued through the legal order.
legal systems. Thus the purpose of law does not
determine how the law should be
The fact that each legal system may substantivised. It does not posit
require a substantive purpose to (deep enough) presumptions about
determine the content of (some of) the nature of man or the good life,
its norms cannot lead to a such as would be necessary to
requirement that these purposes each substantivise the purpose of law as
feed into (and moralise) the abstract such. Yet this is exactly what
purpose of law as such. That the Dyzenhaus is suggesting purpose
identification thesis may rely on does. The key is the necessity for
“understandings of the point of two purposes, one to ontologically
law”, which constitute a substantive define law206 and another to
morality, does not entail that the deontologically substantivise it.
separability thesis must give way to
the same morality. Understandings
206 However, this purpose is also based on a
of the coherence of the content of series of assumptions about the nature of
people, their amenability to regulation, and
204 Dyzenhaus, supra note 52, at p. 709. the ‘parts’ available from which the legal
205 Ibid. system in question can be constructed.
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That is, although he rejects authority to regulate human behaviour.


as law, Dyzenhaus (and other natural However, it cannot achieve this by
lawyers) continue to assume the reference to rules, as Koskenniemi
authority of law, and the absolute among others has shown. Socially
necessity for a unitary understanding central (definitionally authoritative)
of the form (and so for them some law is necessarily indeterminate, because
of the content) of law, “good for all this is the price for its political
times and all places”. acceptability.

However, in Dyzenhaus’ defence, The “essence” imputed to law by


this disembodied essence is common common agreement is itself
ground, it is law’s identifying feature ungrounded, and that is why PIL
in observational language, it is legal theorising runs so frequently into
common-sense. Hence the (pluralist) trouble, or is dispersed as the
“politics of definition” is given fractured remnants of a discourse
prominence over a normativist rendered fatally indeterminate by its
“politics of decision”. This own lack of theoretical cohesion. It
(preferred focus) manifests itself is the singular point of (definitional)
awkwardly in PIL, as the authority of agreement which is itself inaccurate
law is less apparent, therefore and misguided:
theorists struggle to redefine “law” This [the commitment to
(away from clear rules) to preserve centrality] may require
its “essence” (enforcement) and its lowering the expectations of
definitional (paradigmatic) centrality. technical certainty and
increasing sensitivity to the
This is an orthodox assumption, but ways in which law gets
it cannot be defended solely on the spoken.207
grounds of that orthodoxy; nor can it
be defended on the ground of This returns us to the central
empirical accuracy, as it has no data concern, the need to re-engage fully
outside of itself against which it may and openly, without prejudice or
be evaluated or validated. Instead, dogmatic definition (disembodied
the assumption must be analysed essence) with the purpose of PIL,
purposively. What is the purpose of and the role or function that PIL
socially central law? At first glance,
the answer is obvious: its purpose is 207 Koskenniemi, supra note 57, at p. 119.
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BECKETT ON THE HARTIAN TRADITION IN INTERNATIONAL LAW

must perform – within an That we see ourselves as ‘good’ is no


international society, however guarantee that we are good. That our
defined – in order to fulfil this morality appears to work for us is no
purpose. It is only once this has been reason to impose it on others.
achieved that one can show that
(ideal) PIL is capable of neutral rule PIL ought to be about the discovery –
formation; legal norms are best or negotiation – of commonality, not
understood as agreed manifestations the imposition of a unitary system of
of commonality. This provides a right passed off as universality. Only
perspective from which both PIL a positivist theory can meet this
itself (the substantive body of norms challenge.
actually accepted or argued as PIL)
and the actions of states vis-à-vis PIL CONCLUSION
can be consistently evaluated. As this
ideal is also the justification for PIL Michel Foucault’s work concerns the
(for the imposition of PIL as a creation of the normal from the
coercive order) it carries a normative marginal,208 and perhaps this
force within itself. perspective can provide an
intelligible context for the arguments
The purpose of PIL is to provide a above. Inherent in Foucault’s claim
baseline of agreed general standards is, I think, an acceptance of
for the consistent legal evaluation of Kierkegaard’s point that “the
conduct by all actors. This can be exception … thinks the general with
accomplished only within the intense passion”,209 and its converse;
positivist – value-neutral – system. that the paradigm case does not. The
Positivism is less lingua franca than paradigm is identified by its banality,
franca lingua: not merely a language its regularity and commonness; it is
which all can speak, but a system hum-drum, and so, opposed to
which can speak for all. To deny this thinking. The paradigm case can never
is to impose one’s own moral code cause us to think about the paradigm
on the World at large; it is itself; only the exception, or marginal
tantamount to the imperialist claim case, can facilitate this.
to know objective moral truth. And
that is a denial of the very processes 208 See, e.g. Madness and Civilisation, or

of abstraction and reduction through Discipline and Punish.


209 Quoted in Schmitt C. Political Theology p.
which (alone) thought is possible.
22.
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can never expose the contingency of


The paradigm of legal theory is the those features. The effect is to move
institutional centrality of legitimate these features beyond critique.
violence, the monopoly over
legitimate violence which the If we accept the baseline of
municipal legal system claims, and by institutionalised coercion then we say
which the municipal legal system is – with some variation of mediation,
identified. My claim is that this e.g. between Hart, Dworkin, and the
elision of law and the monopoly of American Realists – that law is what
institutional violence (the elision we is enforced; that central social
call the Rule of Law210) is the institutions are legal institutions.211
product of human choice; and But this would seem to entail, as the
moreover, of a problematic human Realists accepted, that what is not
choice at that; the agreed baseline, enforced is not law. To take a recent
the orthodox elision of law and example from international law, this
centralised force is wrong. At the very would indicate that the absence of
least, this elision should be opened enforcement, of Security Council
to critique, rather than condemnation, and of an armed or
transcendentally posited and coercive reaction, proved that the
shielded. Paradigmatic reasoning is Anglo-American invasion of Iraq
necessarily blind to its own was lawful. Yet this answer seems
contingency, as “central cases” – problematic, at the very least, when
which anchor reasoning – are put so bluntly, it seems too glib.
defined by the presence of the Perhaps then the simple absence of
paradigmatic features of which the coercion is not dispositive of the
paradigm is constructed, thus they claim to illegality.

210 There are two ways of understanding this But, if this is so, if that nagging doubt
elision, from a Hartian perspective, the remains, then what does that fact
important point is that law rules; the rule of
law is a claim of legal sovereignty. (the continued existence of the
Consequently, law is taken for granted in the doubt) tell us about law, or about
sense that the expression of authority is law.
From the opposite perspective, consider e.g. our own attitudes to law? It is at least
E. P. Thompson’s claims about the rule of possible that this doubt (or “anxiety”
law (see Whigs and Hunters), it is ‘rule’ and not
law which is taken for granted; law becomes
the evaluative variable. The question 211 See Raz J, “Authority, Law, and

refocuses entirely: is it rule by law, or rule by Morality” in Raz J., Ethics in the Public Domain
something else, something other than law? p. 236.
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BECKETT ON THE HARTIAN TRADITION IN INTERNATIONAL LAW

as Heidegger might have it) begins to they transpose from municipal law.
expose the methodological But only one methodology (Hart’s)
presumptions to light, to illuminate a had to be wrong. Thus we can accept
hidden truth from the margin: we Kelsen’s methodology – that there is
expect more from law than the a “static aspect” of law, which
imposition of order. I call this distinguishes it from other normative
“more” the specifically legal. The orders and social practices – but
specifically legal is that which the law reject his theory that this “static
has which other discourses and aspect” should be the relation
techniques do not; that which between norm and force. This is
distinguishes, or specifies, the legal; what allows, methodologically, the
that which makes it unique, and conceptual approach to facilitate
distinct from other concepts. examination of the specifically legal.

And it is in ignoring this more, in Things are bleak for empirical legal
ignoring the specifically legal, that positivism. By understanding law as
orthodox theories of legal positivism having a real existence, and being
fail. But it is here, also, that the capable of direct observation,
difference between the empirical and empirical legal positivism limits itself
conceptual methodologies comes to to focus on the ascription of power
light. The empirical methodology had itself. The object (law) to which
to be wrong, whereas the conceptual power must be ascribed, is perfectly
methodology merely is wrong. shielded from the focus of empirical
legal positivism, which is so in thrall
In other words, both sets of theories to centralised power that it is capable
(the empirical as manifested in Raz, of perceiving nothing else. For this
Hart, and possibly Gardner; and the reason, Hart was in fact correct to
conceptual as manifested in Austin claim212 that public international law
and Kelsen) are wrong. was not a legal system; but this tells
Consequently, there is little point in us more about the methodological
analysing too closely what they have weaknesses of the Hartian model
to say about international law as they than it does about international law,
have examined the topic back to or its status as law. That Hart’s
front; anything these theories could definition of law is anchored
have told us about international law
is already tainted by the original error 212 Hart, supra note 19, chapter 10.
(2008) J. JURIS 82
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paradigmatically in municipal law is


one, forgivable, thing; that it, while
claiming to be a theory of law,
overlooks even the possibility of the
specifically legal is another matter
altogether.

(2008) J. JURIS 83

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