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“What is Law?”
SEPTEMBER 2008
Elias Clark
PUBLISHED BY THE ELIAS CLARK GROUP
(2008) J. JURIS 1
This book is copyright. Apart from any use permitted under the Copyright Act
1968 (Cth) and subsequent amendments, no part may be reproduced, stored in
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the prior written permission of the publishers.
Cataloguing-in-Publication entry
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(2008) J. Juris.
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ABOUT THE TYPEFACE
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THE JOURNAL JURISPRUDENCE
TABLE OF CONTENTS
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CALL FOR PAPERS, VOLUME 2
JURISPRUDENCE AND ECONOMICS
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SUBSCRIPTION INFORMATION
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THE JOURNAL JURISPRUDENCE
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THE JOURNAL JURISPRUDENCE
Adam J. MacLeod*
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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
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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
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MACLEOD ON THE LAW AS BARD
(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
(2008) J. JURIS 16
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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
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MACLEOD ON THE LAW AS BARD
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
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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).
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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 §
(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
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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.
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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
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.
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
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
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
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DR JASON A. BECKETT
THE UNIVERSITY OF LEICESTER
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BECKETT ON THE HARTIAN TRADITION IN INTERNATIONAL LAW
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.
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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
153Raz “Two Views of the Nature of the 154 Kramer M., “The Rule of Misrecognition
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.
(2008) J. JURIS 61
BECKETT ON THE HARTIAN TRADITION IN INTERNATIONAL LAW
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
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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.
(2008) J. JURIS 67
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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
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.
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
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199 Beckett, supra, notes 62 and 72. 201 Supra, note 52.
200 Koskenniemi, supra, note 43, p. 592. 202 See note 71, supra.
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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.
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