Spiers Positivism

Chapter Title: LEGAL POSITIVISM
Book Title: Jurisprudence Essentials

Book Author(s): Duncan Spiers
Published by: Edinburgh University Press
Stable URL: https://www.jstor.org/stable/10.3366/j.ctvxcrvzj.8
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le g al p o s i t i v i s m 41
4 legal positivism
In Chapter 2 we saw that Contractarianism arose as a means of controlling

mankind’s natural state of lawlessness. Hobbes’s Contractarianism
emphasised the crucial role of a sovereign in creating a legal system which
would guarantee peace and stability and individual freedoms. This was
one element in the development of classical Legal Positivism. Another
element was Hume’s rejection of objective morality. All was ultimately a
matter of custom.
These two ideas were united in classical Legal Positivism which
was propounded by Jeremy Bentham (1748–1832). He was a great
pamphleteer who rejected any form of Natural Law. It is this that provides
the definition of Positivism which is any system of law which rejects a
necessary connection between law and morality. Bentham’s rejection of
morality is very reminiscent of Hume. He wrote: “To the province of the
expositor belongs to explain to us what . . . the law is: to that of the censor,
to observe what he thinks it ought to be.” In this way Bentham divides
the “is” of the law from the “ought” of its moral content. Bentham then
sets out the expositorial view. Unfortunately, much of Bentham’s work in
this area became lost and was not rediscovered until the late 20th century.
While acknowledging the debt due to Bentham, it is usual to examine
the somewhat more rigorous theory put forward by Bentham’s pupil,
John Austin (1790–1859).
After examining Austin’s views, we shall look at some modern
forms of Legal Positivism. Broadly, Legal Positivism takes the view that
the validity of law depends on its sources and not its merits. While not
denying that morality may have a place, Positivists deny that there is any
necessary connection between law and morality. For Austin and Kelsen,
authority comes from a sovereign or political power and is distributed
through the law. But Hart takes a different view and places the authority
of law into the hands of the people who form society.
Austin’s “Command Theory”

John Austin agreed with Hume’s “is”/“ought” distinction:
“The existence of the law is one thing, its merit or demerit is another.
Whether it be or be not is one enquiry, whether it be or be not conformable
to an assumed standard, is a different enquiry. A law which actually exists,

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42 jurisprudence
is a law, though we happen to dislike it, or though it vary from the text, by
which we regulate our approbation or disapprobation.” (Lecture V, p 157)
Austin defined a law as a command of a sovereign:
“1. A wish or desire conceived by a rational being, that another rational being
shall do or forbear. 2. An evil to proceed from the former, and to be incurred
by the latter, in case the latter comply not with the wish. 3. An expression or
intimation of the wish by words or other signs.”
That is to say that a law is a wish of the sovereign expressed as a

command addressed to the subject and, in the event of the subject’s
failure to comply, the imposition of a sanction or punishment of some
sort. There are therefore three essential elements to a law as a command:
(1) sovereign, (2) subject, and (3) sanction. It has to be noted that we are
here dealing with the use of political power which has its source in the
sovereign and which is wielded against the subject and that this results in
pressure on the subject to obey and coercion if he does not.
Part of Austin’s project is to show that this definition is correct for
all forms of law. He uses this three-part definition to show how the
rules of morality and custom on the one hand, and the laws of science
as demonstrated in nature on the other, do not form “laws properly so
called”. These lack one or more of the elements. Rules of morality and
custom are “laws by analogy” but lack a sovereign or the imposition of
a sanction. Laws of nature are “laws by metaphor”, which explains the
regularity of nature but of course there is no intelligence at work.
With regard to the “laws properly so called”, these comprise the laws
of God to men which men must obey or they will suffer punishment
in Hell (clearly, here, all of sovereign, command, intelligent subject
and sanction are involved); and the “laws of men to men” which fall to
be divided up, apparently into two further categories: “laws strictly so
called” being commands made by a political sovereign to political subjects
in pursuance of legal rights and duties; and “laws not strictly so called”
being rules made by men but not as political sovereigns (for example the
rules made by parents and to be obeyed by children or by clubs over their
members). These are arguably law-like and have all the elements. We
shall now look at certain of Austin’s elements in turn.
Command
The essence of command is some sign, performance or statement by the
sovereign which serves to communicate a wish and which is backed up
with a sanction for failure in performance:

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“If you express or intimate a wish that I shall do or forbear from some act,
and if you will visit me with an evil in case I comply not with our wish,
the expression or intimation of your wish is a command. A command is
distinguished from other significations of desire not by the style in which the
desire is signified, but by the power and the purpose of the party commanding
to inflict an evil or a pain in case the desire be disregarded.”
The importance of the utterer being sovereign and the importance of

the sanction are that the command should be authoritative and powerful.
Only the sovereign has the power to enforce their command. They, and
only they, have the legitimate right to use force. Austin explains the
authority of the law as arising because of its origins and use of political
power. This inculcates in us the habit of obedience: given that the
sovereign is legitimate and powerful we are bound to obey – with force
if need be. But when we look closely at this, we find some problems.
Are all laws commands in this sense? There are some obvious exceptions.
For example, where do we place international laws? Are these not the
expressions of the wishes of sovereigns? Are these not interpreted and
enforced in courts? But, of course, they may have no sanction attached
to them. Strictly, they fail to meet Austin’s definition of “law”. There
are also many other areas of the law which have no apparent sanction
attached, for example laws which allow for the creation and regulation
of contracts. Austin recognises the difficulty but thinks that a sanction
is still potentially present. Is there not a sanction of a sort when a court
enforces a breach of contract: when the party who has breached will
either have to pay damages or be compelled by the courts to fulfil their
contractual obligations?
Sovereign
It is very important to Austin that the sovereign should be the source
of all political power (for this is what any Contractarian view supports)
and the only party who may legitimately use force. It follows from this
that no other party may issue authoritative commands and also that the
sovereign should be subject to no other authority. Austin expresses it in
this way:
“The sovereign is not in a habit of obedience to a determinate superior . . . it

follows from . . . the nature of sovereignty and independent political society,
that the power . . . of a sovereign . . . in its . . . sovereign capacity, is incapable of
legal limitation. A sovereign . . . bound by a legal duty, [would be] . . . subject
to a higher or superior sovereign . . . supreme power limited by positive law, is
a flat contradiction in terms.”

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44 jurisprudence
From a political point of view, a sovereign is the person (or indeed it could
be a collection of persons) who makes the commands (laws). It is the
state’s legislature. As the sovereign has unrestricted power, it follows that
in the Austinian state, the legislature may make laws on any subject and
over any territory. This gives rise to the idea of unbounded sovereignty.
Austin’s concept of sovereignty cannot accommodate the direct effect of
some EU regulatory law and of European case law. Indeed, so persuasive
is the Austinian idea of sovereignty that even today there are those in
government who experience the idea of Europe as a contradiction with a
proper understanding of the sovereignty of the Queen in Parliament.
Sanction
It is not enough that a law should simply be wished: it must be
commanded. Obedience is not optional. Austin’s answer to the habit of
obedience that characterises the majority of subjects is that the command
is enforced by a sanction if need be: “it is the power and the purpose of
inflicting eventual evil, and not the power and the purpose of imparting
eventual good, which gives to the expression of a wish the name of a
command”. In Austin’s view this gives an adequate explanation for the
authority of all laws. A sanction is a punishment, a deprivation, or other
form of harm, pain or other evil. We may wish to ask ourselves why
Austin thinks that the law’s authority has to be explained in this way.
The use of a threatened sanction will create powerful psychological
motives for obedience and can be justified on Utilitarian grounds (which
Austin would have approved of ) but it detracts from a picture of law as
a benevolent and ordered structure. It may command many things but it
does not command our respect. In some ways the Command Theory sets
out to provide a value neutral view of law, but it actually presents us with
a rather pessimistic view of law: one where force is the only foundation
for authority. Is there not another way?
Hart’s criticisms of the Command Theory

Hart, in The Concept of Law, has four criticisms of the Command Theory:
• Law as the Austinian command of a sovereign, is like the demands

of a gunman who points a gun at a bank clerk and orders the clerk
to hand over money otherwise he will be shot. The Austinian view
of coercion is abhorrent – it is a demand with menaces. Such a
view is unable to make us feel that the law has authority. The law’s
authority must arise in a different way. Furthermore, law makes

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general demands which apply to all people within the society and
even applies to those making the demand, to the legislators.
• Many laws do not impose duties but provide means whereby citizens
are empowered to carry out certain kinds of acts such as making
contracts, making wills, getting married, and so on. In these cases
people take advantage of opportunities that the law provides. They
harness its power. It is enabling.
• It is incorrect to say that laws are commands of the sovereign, as a
good deal of law has been derived from custom. This is particularly
so when one considers the common law as imposed in the courts.
Particularly in England, the common law is a body of law which has
been built up by equitable court decisions over hundreds of years.
Such sources of law have nothing to do with a sovereign making
commands.
• Austin’s unlimited sovereignty free from legal or other constraint fails
to provide an adequate account of how one sovereign can succeed from
another. Strictly, when one sovereign dies then, if Austin is correct, the
whole system of law collapses. Without a sovereign there can be no
law: there is no-one to command the commands. Austin explains the
continuity of law by the fiction of “tacit consent”: that it continues
because it is tacitly adopted by the successor. But there are other ways
to explain the continuity of law.
Hart, having attacked the Command Theory, proceeds to build his

own important theory, to which we shall return below. However, the
Austinian explanation of law as command, containing a necessary
relation of three elements (sovereign, subject and sanction), remained the
most influential view of law for about two centuries and must therefore
be given respect – if for nothing else, then as a formidable opponent.
Kelsen and the “Pure Theory of Law”

Hans Kelsen (1881–1973) puts forward an important and influential
modern form of Positivism. His view is Positivist because its makes a
clear distinction between the law and morality. He does not use Hume’s
distinction between “is” and “ought” but nonetheless Kelsen rejects all
matters that are metaphysical (matters of value of which morality is one).
Kelsen is asking “What is the law?” rather than “What ought the law to
be?”. He sets out to produce a pure science of law. His first step, then,
is to strip away from law all extraneous and not strictly legal material
which adulterates it and hides its true nature. It is not just morality which

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46 jurisprudence
must be stripped away from law but also any sociological, psychological
or political elements. He writes:
“adulteration is understandable, because [these] disciplines deal with

subject matters that are closely connected with law. The pure theory of law
undertakes to delimit the cognition of law against these disciplines, not
because it ignores or denies the connection, but because it wishes to avoid
the uncritical mixture of methodologically different disciplines . . . which
obscure the essence of the science of law and obliterate the limits imposed
upon it by the nature of its subject matter”.
The end result of this cleansing is to produce unadulterated law which

may then be easier to analyse.
Once cleansed, law still appears to contain rules which say what ought
to happen. But this time it is an “ought” of legal force and consequences
rather than an “ought” of morality. That is to say, a law is a general
statement that says what people “ought” to do in given circumstances.
Kelsen calls such laws “norms” and the laws are therefore “normative”.
The word “norm” comes from the Greek word for a set-square against
which right angles would be tested. Laws primarily set a standard
of behaviour which people should follow. This is their essence. But it
has nothing to do with morality. The logical formula of a norm is: if
X, then Y (if circumstances X occur, then do action Y). But norms are
not merely addressed to the public, they are also addressed to officials.
They authorise and instruct officials to inflict a punishment or take some
other remedial action if a member of the public fails to perform the action
they should. The formula for this is: if X, then Y; if not-Y then Z (if
circumstances X occur, then do action Y, and if action Y is not done,
then the appointed official should do action Z). In this way, when there
is a rule which says I should stop at a red traffic light and I do not, then
an official should give me a penalty or take me to court or take some
other enforcement action. The efficacy of the law is causal. According to
my response to the norm, certain consequences should causally follow:
either compliance or sanction. A properly described norm will make it
clear to whom the general rule is addressed, what circumstances it applies
to, what action is required, which official is addressed in the event of
my failure of compliance, and what action they should take. This is an
ambitious set of requirements for any law. A norm is, then, a command
(or a permission) which has the power of the state and which states what
ought to happen, and harnesses the power of the state to ensure that it
has the desired legal effect. People obey the laws primarily because they
fear the imposition of the sanction. Sanctions come in various forms.

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The most characteristic is the criminal law which imposes punishments.
Kelsen notes that punishments are most effective when they relate to
things we consider of value: our life, liberty, health and property. But
criminal laws are not the only form of sanction. Under the civil law it
is unpleasant consequences which may force us to comply with a norm.
He writes: “the law is a decree of a measure of coercion, a sanction, for
that conduct called illegal, delict; and this conduct has the character
of a delict because it is a condition of the sanction”. A legal system has
continuing legitimacy because it has effectiveness in the sense that the
system is accepted by a majority of citizens and, even if it is disobeyed,
the official who must impose the sanction will accept the duties the law
creates. However, individual norms may cease to have effectiveness. They
may cease to be accepted by the majority of citizens; indeed, they may
cease to be accepted by officials too. In this case there is an insufficiency
of adherence. This gives rise to the phenomenon of desuetude whereby
individual norms may come to cease to be recognised and obeyed.
It will be seen that, behind every law, the state is represented by an
official who is entitled to use coercion to ensure that the public performs
what is required of them and will impose a sanction if it is not. In
normative parlance, the norm creates two duties: one on the member
of the public to which it is addressed, and the other on the appropriate
official. At the same time, norms are rooted in social contexts which
they address. These contexts are not impurities which adulterate the law,
but rather provide norms with their legal meaning. The persons under
obligation, either public or official, understand the legal meanings in
these contexts. Kelsen gives some examples of these meanings:
“if you analyse any body of facts interpreted as ‘legal’ or somehow tied
up with law, such as a parliamentary discussion, an administrative act, a
judgment, a contract, or a crime, two elements are distinguishable: one, an
act or series of acts – a happening occurring at a certain time and in a certain
place, perceived by our senses: an external manifestation of human conduct;
two, the legal meaning of this act, that is, the meaning conferred upon the
act by the law. For example: People assemble in a large room, make speeches,
some raise their hands, others do not – this is the external happening. Its
meaning is that a statute is being passed, that law is created. We are faced
here with a distinction (familiar to jurists) between the process of legislation
and its product, the statute. To give other illustrations: a man in a robe and
speaking from a dais says some words to a man standing before him; legally
this external happening means: a judicial decision was passed. A merchant
writes a letter of a certain content to another merchant, who in turn, answers
with a letter; this means they have concluded a legally binding contract.
Somebody causes the death of somebody else; legally, this means murder”.

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48 jurisprudence
Each case has an external and an internal view. On the external view,
there is an action, a piece of behaviour: this may describe the event but
only partially – it does not provide the legal meaning. On the internal
view, an action takes place in a context which is subjectively understood
by the participants and they will therefore understand the legal meaning
of the situation.
Norms, being the will of the state, fill what might otherwise be
semantically empty circumstances with legal meanings. They create
legal possibilities. At the same time they have the coercive power of
the state behind them designed to ensure compliance and effectiveness.
A number of things follow from this. First, as acts of state, norms have
authority and validity. Second, as prescriptions of what should be done
by individuals and officials, norms force compliance – they create rules
which are followed – which have efficacy (which simply means that they
are obeyed). Third, norms give circumstances their particular meanings.
Fourth, only the state has the authority to use force – which means that
other uses of force are invalid. Kelsen gives an example of an unauthorised
use of force – the gangster example:
“The command of a gangster to hand over a certain amount of money has

the same subjective meaning as the command of an income tax official,
namely that the individual at whom the command is directed ought to pay
something. But only the command of the official, not that of the gangster, has
the meaning of a valid norm, binding upon the addressed individual. Only
the one order, not the other, is a norm-positing act, because the official’s act
is authorized by a tax law, whereas the gangster’s act is not based on such an
authorizing norm.”
Having described the way that individual norms operate, Kelsen turns
his attention to the nature of laws as part of an inter-related system. He
asks what it is that gives validity to norms. In the case of a tax official
being validly authorised to demand payment, the answer is that there
is a norm which authorises the payment. But this norm is not valid
on its own. It relies on other norms of more general application. And
those in their turn will be validated by yet other norms of even more
general content. Kelsen describes a norm which has effect upon a citizen
and regulating his or her actions as “concretised”. It has meaning and
effect in a concrete, actual specific context. The higher norms are
more general. Kelsen describes the system of norms as a hierarchy of
norms. Ultimately, our quest for validity will take us to the norms of
most general effect. For us, in the United Kingdom, this will most likely

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be actions of the Queen in Parliament, but Kelsen considered that our
search would take us to a constitution which he describes as a general
norm. He defines the whole system of law as: “a system of coercion
imposing norms which are laid down by human acts in accordance
with a constitution the validity of which is presupposed if it is on the
whole efficacious”. Laws all have validity derived from the constitution
but they may come into existence in various ways. Kelsen says: “Norms
either arise through custom, as do the norms of common law, or are
enacted by conscious acts of certain organisations aiming to create law,
as does a legislature acting in its law-making capacity.”
Kelsen then asks the question what it is that gives validity to the
constitution: what is the basis of this general norm? This is a difficult
question. Kelsen says that it is “not a norm posited by a real act of will
– but a norm presupposed in a believer’s thinking”. Kelsen calls this
presupposition of validity a “Grundnorm” (or the basic norm). He says:
“the Grundnorm really exists in the juristic consciousness [it] is the result
of a simple analysis of actual juristic statements. The Grundnorm is the
answer to the question: how – and that means under what condition
– are these juristic statements concerning legal norms – legal duties,
legal rights, and so on, possible?” The Grundnorm is “by and large”
efficacious. It is believed in, given effect to as a matter of general course.
It is unquestioned by the members of the society. The Grundnorm is the
reason why the law “ought” to be obeyed. It is the ultimate source of
political power and of the authority of the state. It is very important
for Kelsen’s view of law. It ends our search for validity. But it is not like
other norms. It is not expressed and has no content. Kelsen describes it as
follows: “The basic norm is . . . not a product of free invention. It refers
to particular facts existing in natural reality, to an actually laid down
and effective constitution and to the norm creating and norm applying
facts established in conformity with the constitution.” It is in this sense
that it is said to be “presupposed”. As to its origin, Kelsen says that it is
historical, for norms should be carried out only in the way and under the
conditions “determined by the ‘fathers’ of the constitution or the organs
delegated by them”. But the Grundnorm is not logically connected with
the political content of the state which is constituted under it. The norms
under the Grundnorm may have any content and make any demands on
people. In this sense the Grundnorm has no content. It is, however, the
source of political power and so the source of the coercive power of
the state and the law: “The function of the basic norm is not to make
it possible to consider a coercive order which is by and large effective
as law, for . . . a legal order is a coercive order by and large effective; the

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50 jurisprudence
function of the basic norm is to make it possible to consider this coercive

order as an objectively valid order.”
The system of norms, of law, has the Grundnorm as its foundation.
Based upon this, the system of norms describes all legal meanings and
provides all the rules of the law. Because each norm involves an official,
and delimits their powers, the system as a whole authorises all officialdom.
In so far as a state is a collection of persons holding official office, they
are the product of norms, laws, and the state itself is the personification
of the system of norms, laws. For Kelsen, there is no distinction between
state and law – they are one and the same. It follows that there can be no
opposition between state and law. The two concepts gaplessly overlap.
Since officials are all equally authorised by the norms which create their
roles, there is no distinction in Kelsen’s system between different types
of official. It follows that there is no basis for a separation of powers:
legislature, executive and judiciary each comprise officials authorised by
norms. It is only their functions which differ and the system as a whole is
not concerned with matters of content.
Kelsen provides us with a compelling picture of a legal system. Political
power is held by the state and is distributed from the constitution, through
an organised system of inter-related norms into the hands of officials
whose powers are both authorised and limited by the operation of those
same norms. This is a powerful theory but it is not without difficulties.
The Grundnorm presents a problem. Kelsen’s initial intention is to do away
with metaphysical entities. But the Grundnorm is a hypothetical postulate
which is presupposed and upon which the entire system depends. It
can hardly be described as an existent entity. It is fictitious and defies
Kelsen’s “scientific” analysis. Since the whole system of law depends
upon the Grundnorm for validity, it would seem that in a revolution the
whole constitution and system of law should cease to exist. But this is not
necessarily what happens. Modern history shows us that legal systems may
continue to have effect and what seems to be more important is whether
the courts will continue to uphold the law. Kelsen’s methodology is too
rigid. Norms are said to have causal efficacy. This gives little room for
the exercise of discretion, yet discretion is a prominent feature of our
legal system. One has only to think of the discretionary way in which
judges decide on sentencing – the wide range of factors to consider and
disposals from which to choose in order to maximise social protection and
minimise risk of reoffending. Kelsen’s system describes the distribution
of political power to officials. But it takes no account whatsoever of the
content of the law. Form has prominence while meaning and content are
ignored. Yet legal systems have to deal with issues of social concern and

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value such as persons and property. It is only their formal structure and
activity which are explained. Kelsen relies on coercion as a necessary part
of the analysis of the norm. Laws are obeyed primarily because of fear
of sanctions. But in reality many laws do not refer to sanctions at all (for
example, the laws which give power to people to make wills). Sanctions
and unpleasant effects are not the same. Frequently there appears to be
confusion between coercion and obligation.
Hart’s Concept of Law

While Hobbes, Austin and (indirectly) Kelsen took a “top down” view
of political and legal power, Hart (1907–92) takes an opposing view.
He says: “What is most needed, as a corrective to the model of coercive
orders or rules, is a fresh conception of legislation as the introduction
or modification of general standards of behaviour to be followed by the
society generally.” For Hart, laws are forms of social rule and their power
and authority arise as social facts rooted in social behaviour, the behaviour
of the people who comprise the society. Legal behaviour is a form of
social behaviour and yet it differs from other forms of social behaviour
in that it is obligatory. Hart says: “the most prominent general feature of
law at all times and places is that its existence means that certain kinds of
human conduct are no longer optional but in some sense obligatory” and
he hopes to provide “an improved analysis of the distinctive structure of
a municipal legal system and a better understanding of the resemblances
and differences between law, coercion, and morality, as types of social
phenomena”.
It is no surprise that Hart starts by examining social behaviour which
he divides into social habits and social rules. Social habits are customs or
agreed forms of convergent behaviour; like a group of friends agreeing
to go to the cinema every week. Failure by one of them to turn up
one week would be a pity but not remarkable. However, social rules
are different. Failure to adhere to a social rule would provide grounds
for criticism by others in the social group and indeed self-criticism by
the offender who is likely to feel a sense of guilt or shame. Laws are
social rules, as are also the rules of morality and certain other forms of
customary behaviour. It is not the rule-like character of law which gives
it this force (for there are rules of games, rules of language and logic etc).
The rule-ordered nature of laws shows that behaviour is convergent and
regular. But the particular normative character of law and morality, as
social rules, give rise to the use of the language of “right” and “wrong”,
“good” and “bad” and so on.

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52 jurisprudence
It follows that laws have two aspects: an external aspect and an

internal aspect. The external aspect is the regularity and convergence of
behaviour. If a Martian were to sit on a wall next to traffic lights, he
would notice that people tended to stop their cars at red lights and to go
at green. The Martian would be able to infer from this behaviour that
a social rule was in existence. This is the external aspect. The Martian
would not, however, know what it is like to conform to the rule nor
would he know why the people obey it. We obey rules principally
because we feel a social pressure to conform to them. We know that if
we disobey the rule we will have to suffer the wrath and indignation of
others in our society. Hart writes:
“the external point of view, which limits itself to the observable regularities
of behaviour, cannot reproduce . . . the way in which the rules function . . .
in the lives of those who normally are the majority in society. . . . For them
the violation of the rule is not merely a basis for the prediction that a hostile
reaction will follow but a reason for [that] hostility”.
There are, of course, other reasons for compliance: we may fear the
coercive force of the law, or we may rationally acknowledge that the
law was enacted to fulfil the purposes achieving the common good. The
feeling of a social pressure to conform to the law and hence to obey it is
the internal aspect of a social rule. It is this which, more than any other
motive, produces the efficacy of the law – that the majority of the people
will obey it.
Nevertheless, laws have content. The content is in general decided
by the political leaders. Laws are directions of general application and
are addressed to all persons within the territory of the political power
concerned. They differ from commands in that they are general. Laws
are authoritative in that they are authorised through organised political
processes and procedures. People are in the habit of voluntary obedience
and so laws will usually have efficacy but in addition they are supported
by the coercive power of the state in the event of non-compliance. Hart
says:
“there must, wherever there is a legal system, be some person or body of

persons issuing general orders backed by threats which are generally
obeyed, and it must be generally believed that these threats are likely to be
implemented in the event of disobedience”.
This person or body must be internally supreme and externally

independent. If, following Austin, we call such a supreme and indepen-
dent person or body of person the sovereign, the laws of any country will

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be the general orders backed by threats which are issued either by the
sovereign or by subordinates in obedience to the sovereign. Nevertheless,
not all laws are general orders. Some are power conferring. Hart gives the
examples of “rules specifying what must be done to make wills, contracts
or other arrangements which confer rights and create obligations”. Not
all laws therefore involve breaches of legal duties. In addition, the vertical
structure of laws whereby the sovereign’s power is imposed downwards
is not necessarily reflected in the way laws come to be. Some, if not
most, will be legislation enacted by a sovereign political authority, but
others may arise as a matter of custom – as is the case with the common
law which has existed and has been enforced by the courts from time
immemorial.
Hart defines the legal system as “a union of primary and secondary
rules”. The primary rules are the general rules which regulate the
behaviour of the public. A system of laws of that nature alone could
survive in a relatively simply society. But in a complex society, particularly
one which is sensitive to changes in the political and social environment,
three particular problems or “defects” are encountered which necessitate
three particular solutions for which Hart requires secondary rules. Each
type of secondary rule is addressed to a particular type of official.
• First, there is the persistent question as to which laws to recognise.

When is a law valid within the society? This is called the “defect of
uncertainty”. Hart answers this problem by proposing a secondary
“rule of recognition”. This rule states where and how are we to
recognise a legal rule as existing and as valid and what is its proper
scope. The officials who operate this rule will be the judiciary. In a
similar way Hart is able to call upon rules of recognition to explain
how one sovereign can succeed to another.
• Second, there is the “defect of static rules” which may occur
when a set of rules is promulgated and thereafter must be followed
indefinitely. Should laws really continue indefinitely? As a system of
rules, laws will continue in full force and effect, but there may come
a time when rules require to be repealed or amended and indeed new
rules will be required if the society’s legal system is not to stagnate.
Hart’s answer is that there must be “rules of change” whereby officials
will create new rules or repeal or amend existing ones.These powers
may be simple or complex; the powers conferred may be unrestricted
or limited in various ways; or they may define the persons to legislate
or the procedures to be followed. In each case the officials to who
have the powers will be legislators. Given that the authority and values

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54 jurisprudence
of the law come from the people who form the society, does this
mean that legislators are reactive only rather than pro-active when
law making?
• Third, it is well known that, while most people will obey the law,
there are always some who do not. Hart calls this the “defect of
insufficiency of diffuse social pressure” .There therefore needs
to be some system of enforcement. It is here that the coercive power
of law should be felt. Hart’s answer is that there must therefore be
“rules of adjudication” whereby judges (and others) will enforce
the law – by coercion if necessary. Judges are given the task of
stating authoritatively whether a given rule has been broken and
are mandated to enforce it or impose punishment. In addition to
adjudication judges will generally also require to operate a rule of
recognition since a prerequisite of determining the obligation is that
the obligation is declared as a valid law in the first place.
Hart’s form of social Positivism is sometimes called “modified

Positivism”. Law has imperative force. Laws are necessitated by our
human nature. Hart describes law as having a “minimum content of
natural law”. This has five aspects (strongly reminiscent of Hobbes).
First, all people are vulnerable. The law should set out to protect people
who are vulnerable. Second, we are all approximately equal. Even the
strong man is vulnerable at times and so will need protection at times.
Third, we have limited altruism. We are all selfish some of the time and
our selfish urges need to be curbed by power of law. Fourth, there are
limited resources. The law is required to enable an equitable sharing of
resources. This is reminiscent of Aristotle’s distributive justice. Fifth, we
are tempted to concern ourselves with our short-term interests but the
law requires us to sacrifice these for communal long-term interests. The
effects of these aspects of human nature are that the law must intervene to
curb our nature and conform it to the common good. The law therefore
performs tasks which are similar to those of morality. However, it must
not be inferred that the law is simply imposing morality. It is just that its
aims and those of morality have a tendency to approximate.
Hart notices that all forms of law involve rules and this includes
statutes, case decisions, customary law, and international law. Rules
operate to state what people must do in certain specified situations. Each
rule specifies the situation and the persons affected. Rules are normative
–they set the standard of behaviour to be followed in the specific situation.
In addition, the rules are part of a system. But rules are generalisations
which are given verbal expression. As forms of language, they may suffer

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from ambiguities, generalities, and problems of definitional obscurity.
When a park byelaw says that no vehicles are allowed in the park, this
clearly indicates a prohibition on cars and probably motorbikes. But does it
prevent bicycles or skateboards? The word “vehicle” must be defined. Any
general term produces “penumbra of uncertainty”. As a result, systems of
inter-related rules must have an open-texture. Specific circumstances are
regulated but there are areas where the application of law is less certain.
As a result, when a judge considers a case he uses his knowledge of the
rule to decide what a party should have done to fulfil the demands of a
rule or what the parties’ behaviour should have been. In difficult cases the
judge must decide the area of operation of the rule. He will look at the
language used to state the rule, the context of the rule within the system as
a whole, the purpose of the rule, and where relevant the judge will apply
his knowledge of society’s other standards, including moral standards, to
decide whether the boundaries of the rule are to be extended or contracted
to fit the persons and the facts about whom and which he is deciding.
Thus a judge seeks to provide a proper interpretation (construction) and
application of a rule in its specific factual context.
Dworkin’s Interpretative Theory – Law as Integrity

Ronald Dworkin takes a stance which is critical of Positivism. Law is not
simply a system of rules. It is a system of rights and duties which depends
upon underlying values which dictate the ways in which it should be
interpreted. A descriptive view of law is not enough. Participation is
required. Courts need to interpret sources of law (constitutions, statutes
and precedents). In many cases the courts are able simply to apply a rule,
but in “hard cases” the courts cannot simply apply rules. This is because
a rule-ordered system of laws has an open texture – it is full of gaps and
inconsistencies. Instead of starting the process of interpretation with the
ways in which governments use coercive force, it is necessary to examine
principles of interpretation laid out in advance within the law and legal
practices. Courts require to consider community legal practices while at
the same time respecting individual rights. These practices will involve
moral, political and economic considerations. Not surprisingly, there is
no settled view on which of these social factors should take priority and
so it follows that there is a diversity in the ways in which the balance may
be struck. Nevertheless the diversity approximates around what might
be described as the “right” answer to a legal problem. This is illustrated
in Dworkin’s example of an omniscient judge, “Hercules”, who is
immensely wise and has a complete knowledge of the law and legal

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56 jurisprudence
sources. Hercules would be able to produce the “right” answer which

is the theory which best fits the law and sources as a whole. The law
comprises rules and principles (and values, such as equality and liberty,
which inform our fundamental rights). As a result, Dworkin clearly
rejects the Positivist thesis that law depends on sources rather than merits.
For him, the merits are essential, for the main function of a judge is to
interpret and apply law justly.
MacCormick and the Institutions of Law

MacCormick gives a descriptive analysis of law. A legal system is not an
invention created in a vacuum. Laws are rooted in the usages and practices
of human beings who have social co-existence. The system comprises a
set of interrelated behavioural rules. Much of human social behaviour
is rule ordered. Law is simply a special type of social behaviour. Our
understanding of rules is learned through our experience in various areas
of social interaction. There are four ways in particular that we learn that
about rules. First, as language-using creatures, we are aware that rules
and other conventions lie behind and provide the grammar and meaning
of our language. If we did not comply with the conventions of language
we simply could not communicate with one another. So we learn to use
the rules of language even though we may not be consciously aware of
them. Most of the time we would not even be able to express the rules
of language. This is because the rules of language are not written down
and are mere common understandings within a linguistic community.
Second, we learn of rules through nurture, socialisation, and education.
Here, we are taught the common views of “right” and “wrong” and we
learn to comply with the commonly held view. Third, we meet rules
in more institutionalised settings and in particular in general family
and social relations. This includes the experience of school which has
compulsory attendance and other rules. We also learn that rules are
associated with religious observances and in sports and games. In these
cases rules may be imposed by officials or representative bodies. Fourth,
we see the more distant state agencies such as police and courts which
impose rules in a more indirect way. The rules they impose are created
by parliaments or other agencies and these rules are publicised to us by
means of a written form.
Quite apart from their formal nature, rules also have content. The
content arises from social behaviour and utility. MacCormick gives the
example of queueing. We encounter the practice of queueing in waiting
for a bus or taxi, waiting for security at airports, when buying stamps in

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a post office and in a whole range of other ways. Queueing is a generic
practice with many variants. In most cases people will acknowledge
that they are equals and will take their place in the queue along with
others. Those who are at the head of the queue have priority, while those
behind must wait their turn. There are some people who feel exalted
and would wish to have priority over others. They may wish to jump
the queue. Some of these may accept the existence of a queue to be a
disagreeable part of the service that they require and so put up with the
practice of queueing. Yet others may push their way to the head of the
queue. There are therefore good reasons why the practice of queueing
may become institutionalised in the interests of fairness. MacCormick
gives the example of queueing in Waverley Station for information.
Here, the practice of queueing is formalised. There is a numerical roll
of tickets. One takes a ticket which has a number upon it and waits one’s
turn to be called for service. The practice is controlled. Two types of
official are involved. There are “norm givers”, persons who state what the
rules are whereby the practice is to be controlled, and there are “norm
implementers”, persons who enforce the practice according to the rules.
In the case of waiting for information at Waverley Station, the rules are
enforced by the service personnel who will not serve anyone other than
the person whose number has just been called. If a person fails to attend
when their number is called, they lose their place in the queue. In this
way the practice of queueing has become institutionalised. Law involves
many such practices and not surprisingly also involves norm givers and
norm implementers.
The law is a normative institutional order in the sense that there
exist rules, harnessing social practices, which dictate how the practice
will be conducted. The term “normative” means that the rule specifies
the conditions whereby an action is “right” or “wrong”. MacCormick
continues his analysis by insisting that every rule specifies a set of
“operative facts”. Where these facts occur, the rule operates and produces
a “normative consequence”. Wrong actions are prohibited by the norm
implementers, while right actions are endorsed by them. In the case of
laws, the norm givers are usually legislators. The norm implementers
are enforcing officials and so may be judges. The function of enforcing
officials is to supervise and monitor the practice which is rule ordered.
The function of judges is to make formal decisions and forms of appeal.
Rules may be applied strictly or with discretion. A strict application
of rules requires that wherever the operative facts occur they have one
fixed normative consequence. In a discretionary application of rules, the
rule follower is expected to consider the full facts and circumstances and

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58 jurisprudence
then decide within a range of alternatives in accordance with some form

of equitable interpretation. Standards may be brought into account. A
“seasonable” action is one where a person has a level of latitude as to
when to carry out an action they are free to do. A “reasonable” action is
one where a person has a latitude as to the different forms of action which
they may carry out.
The norm givers and norm implementers are officials of the
state. The state gives the rules legal authority and its functions are
divisible into legislature (norm givers), executive (as enforcing norm
implementers), and judiciary (as norm-implementing decision-makers
and interpreters). Thus, the state can be seen to be divided into separate
powers (the “Separation of Powers”). But the state’s authority is limited
by its being territorial (it has effective political control only over a
specific territory), legitimate (in the sense that it must be recognised
by citizens as having exclusive authority within the territory) and
independent (in the sense that it must be free from any external
interference by any other authority).
Every state has a constitution which creates legal institutions and
provides for the formalisation and articulation of rules which the citizens
will then use to guide their decisions and conduct. In every case there
will be state officials who will observe and uphold the constitution and
the laws validly made under it. The observance of the laws by officials
and citizens is essential to any efficacious law-state.
All rule-ordered systems of law encounter difficulties of applica-
tion and interpretation. The legislature must not impose laws which
depart materially from what people actually do. This is because laws are
based upon well-established forms of social behaviour. The efficacy of
the law depends upon the legislators’ ability to harness these forms of
behaviour for the intended ends of the law. If a gap between the law and
actual social practices is created, this will cause people to fail to behave
in the way expected of them. This could be described as an “efficiency
gap”.
Having described how a system of normative institutional order can
exist and operate, MacCormick passes to the purposes for which law
is intended. These purposes include protecting certain social values.
The first of these values is given over to identifying persons as centres
of autonomous choice and action. People are capable of obeying or
disobeying laws, of doing their duty or failing to do their duty. Strictly
speaking, people have to choose between doing a “wrong” action or a
“not-wrong” action. When people commit wrongs they are said to be
legally responsible for their actions. Rules should clearly express the

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duties which people are under. People should know what their duty is
when the operative facts occur. MacCormick says they should learn that
it is wrong to omit to v, when v-ing is obligatory, and vice versa. We
describe this usage using the term “obligation” and this commonly goes
hand in hand with the broad use of the term “duty”. This is reinforced by
the normative language of “right” and “wrong”.
It is a primary duty on individual persons not to harm others and on
this depends the operation of the criminal law.
Out of the concept of persons (and the concepts of duties and
obligations) arises the idea of rights (which we shall look at in Chapter 8).
Another important concept is the idea of property. MacCormick says
that property in all its forms is norm-dependent. But it is a matter of
the state’s choice as to what kinds of property any particular legal system
will recognise. Ultimately, the choice is a question of politics, guided by
economics and perhaps moral philosophy. In many cases property rights
will be held by individuals, but it is quite conceivable that they may be
held by the public in general. In this way full socialisation of property
is possible and in that event the law will stipulate how particular things
may actually be used by particular persons. Ownership is defined as the
recognition of property over which particular powers are devolved on to
particular individuals or groups of individuals.
The rights and powers of the state are not themselves without legal
control. Constraints on the state’s powers will be imposed to protect
the fundamental rights and liberties of individuals. Laws must be
aimed towards achieving the common good whereby the state sets out
to promote private life, commerce and the autonomy of individuals. In
doing this a balance requires to be set. MacCormick writes:
“The institutional character of law is intelligible only on an assumption

concerning the intrinsic ends of the enterprise of governance under law:
these are the realisation of justice and the common good, according to some
reasonable conception of these . . . One has to consider the differing but
complementary values implicit in these legal domains: orderly government
and distributive justice; civil peace and distributive justice; private life and
market economies; [all] underpinned by remedial measures of corrective
justice. . . . human artefacts and contrivances, including any rules which
people try to live or get others to live [by], have to be understood functionally.
What is their point, what is the final cause to which they are orientated? They
perform well or ill, are in good shape or bad, to the extent that they can be
seen to work towards these essential ends with the minimum of regrettable
side effects. It is undoubtedly controversial what functions should be ascribed
to law in general or to particular laws or any other human production.”

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60 jurisprudence
MacCormick on Sovereignty
The connection between political power, law and morality
MacCormick says that there is a distinction to be made between the
state’s system of political power and principles of law and morality. There
are four possible types of state which can therefore come about:
• The state may be law dependent, as is the case under a theory of

Natural Law. On such a view, law is a type of the rational norms of
conduct which are built into the nature of things and of people and
thereby bring about intrinsic rationality and goodness. The state law
will conform to Natural Law and so will conform to reason and
morality. In such a system the government is charged with upholding
the rights of all citizens.
• The law may be state dependent.The state and its institutions will be
legitimate only where they uphold and give adequate form to law and
to rights derived from that law. Clearly, some form of Social Contract
is the background to this kind of state. Rulers and sovereigns will
be entitled to hold power only as long as their rule is effective and
provides the people with a sufficiency of rights and advantages. This
will cause the people to provide their continuing consent.
• The state and the law may be separate but co-existent.The state has
complete monopoly over the law and morality. Government power
will be centralised and the law is the means by which behaviour
within the society will be controlled and influenced. This view
contradicts MacCormick’s idea of law as normative institutionalised
order since law should be rooted in the usages and practices of the
society. This means acknowledging the values of the people rather
than politically overruling them. This sort of state will suffer from
weaknesses when the political policy varies from the usages and
practices of social co-existence.
• There is an identity of state and law. MacCormick favours this view,
saying that the identity of state and law is imperfect in the case of the
United Kingdom.This type of state should not merely create laws but
will do other things as well, such as controlling armies, running health
services, providing systems of agricultural subsidies etc. The law and
the state will be aimed at providing the common good.
Sovereign state or post-sovereign state?

In the United Kingdom the political state is to be identified with the
Westminster Parliament. However, the accession of the United Kingdom

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to the European Union in 1972 questions this. On one view, rejected
by MacCormick, there was a quiet revolution since the traditional
sovereignty of the Queen in Parliament had been overturned and powers
seceded to the European Union as a new super-state. MacCormick
disagrees and says that this event created a new legal order sui generis.
A further level was created by devolution of Westminster powers to the
Scottish Parliament in 1998. MacCormick says that as a result of these
constitutional law changes, the power of the state has been reconfigured
and that there now exists a multi-layered governmental system. Some
functions are now controlled by the European Union which may
make rules and whose courts may make decisions with direct effect in
the United Kingdom. Other functions are performed by the devolved
governments. The ultimate power of government is divided and
people therefore look to and give obedience to different governmental
authorities. MacCormick says that this is not without precedent, for
in previous ages people gave obedience to the different authorities of
Emperor and Pope. However, any such multi-layered governmental
system can survive only if they all pursue the same values and goals.
As a result, Austin’s idea of the sovereign state having complete and
undivided power over the subjects is now a historical anomaly. It may have
been important for 200 years, but it is now a thing of the past. Our times
may best be characterised as times of “post-sovereignty”. There are several
ways of explaining this. The “diffusionist” view says that governmental
powers may diffuse upwards to the organs of the European Union, and
downwards to the component countries of the United Kingdom and
perhaps to the regions as well. The alternative view is the “sovereigntist”
view whereby the United Kingdom Parliament is still the source of
all sovereignty and it is simply a matter of policy to let the European
Union and the devolved administrations use some of the powers. On the
sovereigntist view the United Kingdom Government retains the power
to withdraw from the European Union. The sovereigntist view is still
be held quite strongly in some quarters. MacCormick is clearly in the
diffusionist camp. This is because he holds a social democratic view
of authority: “It is to the people as a whole that belongs the decision
about the exact specification of [constitutionally derivative] rights, and
about the other elements of constitutional structure and the distribution
of constitutional authority.” Since the people have voted for these major
constitutional changes, it follows that a multi-layered governmental
system does indeed exist.
MacCormick says that we should also consider our theories of law.
Sovereignty involves concentrations of power in the hands of different

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62 jurisprudence
groups or communities. The existence of the European Union suggests

that there is sovereignty, legitimated by the electorate across the whole
of Europe, which may dictate rules common to the European Union as
a territory. At the same time, at more local levels, there is a need for
smaller groups to assert their views on more local issues. This gives rise
to the concept of subsidiarity. Decisions should be taken at the most local
level if they can be. But at the wider level there may be great agreement
on human rights and other rights of wider community concern such as
civil and political, and perhaps also economic and social rights. Where
political rights are affected, our ideas of democracy may have to change
accordingly.
One feature of subsidiarity is that it gives scope to the phenomenon of
nationalism. MacCormick predicts the division of the United Kingdom
into two or more successor states, all of which will have representation
and voting rights in the various organs of the European Union. All this
would require negotiation at the United Kingdom level as well as at local
and European levels. This would necessitate what were previously United
Kingdom responsibilities being reviewed and partitioned equitably.
Public utilities would require to be re-organised on an appropriate
basis. Vital ministries of state would have to be divided and a separate
form created for Scotland (to include social security, trade and industry,
treasury, defence and foreign affairs). If MacCormick is correct in his
prediction, radical changes in United Kingdom governmental structures
and institutions are to be expected.
MacCormick on Judicial Decision-Making

MacCormick provides an interesting and authoritative descriptive view
of judicial decision-making. The view is also normative since it shows
how judicial decision-making should be carried out.
Syllogistic logic and deduction

Judges behave in logical ways and express their judgments in terms of
rules and logic. The logical form of this reasoning is that of the syllogism.
An example of the syllogism is:
Major premise: All men are mortal;

Minor premise: Socrates is a man;
Conclusion: Therefore: Socrates is mortal.
The conclusion necessarily follows from valid premises.

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In some cases (“easy” cases) given the operative facts, a rule can
be applied strictly and the normative outcome is logically deduced.
MacCormick in Legal Reasoning and Legal Theory gives the example of
the case of Daniels and Daniels v R White and Sons and Tabard (1938). Mr
Daniels went into a pub and bought a bottle of lemonade which turned
out to be contaminated with carbolic acid. The Sale of Goods Act 1893,
s 14 requires that goods shall be of merchantable quality. Mr Daniels was
entitled to recover damages. The conclusion was derived logically from
the facts, given the rule. A deductive argument is valid if, whatever may
be the content of the premises and the conclusion, its form is such that its
premises imply or entail the conclusion.
Nor is it only judges who use syllogistic logic. The pleadings of the
parties to any case will present their arguments in a syllogistic form. They
submit to the court that, given the operative facts, the law favours their
client. The contest between parties is expressed by both sides as opposing
syllogisms. But not all cases can be decided this way.
Indeterminacy of rules
In Rhetoric and the Rule of Law MacCormick gives a number of ways in
which rules may be indeterminate. Legal rules are expressed in natural
language and “these are afflicted with ambiguity, vagueness and open
texture”. Ambiguity may come about as a result of the use of terms,
concepts, standards and values, all of which require definition. Discretion
may introduce vagueness. Open texture in particular causes “hard”
cases which may come about where the facts do not fit within the strict
expression of a legal rule. The law is “gappy”. In these “hard” cases the
legal rules need to be interpreted. In addition, the deductive method does
not always provide just results. In many cases there is a need to avoid
the application of strict justice. In the idea of equity the merits of an
individual case may be brought into account in order to provide a just
result.
Development of rules and Interpretation

In Legal Reasoning and Legal Theory, MacCormick analyses the problem of
applying rules to facts into three steps which allow the rules to develop:
• First, there are problems of “relevancy” which ask what valid legal
rules should be applied to the problem. There may be a gap in the
law which may introduce a conflict between different rules.

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64 jurisprudence
• Second, there are problems of “interpretation” which ask how

legal rules should be interpreted – stretched to fit the operative facts.
Where a gap exists, rules often require interpretation in this way.This
may mean looking at the purposes for which rules have originally
been made.
• Third, there are problems of “classification” which ask whether the facts
of the case can be distinguished so as to bring them within the ambit
of a recognised exception or other acknowledged set of circumstances
for special treatment.
In Rhetoric and the Rule of Law MacCormick expands his ideas about
interpretative arguments. There are three different categories, all of
which depend on a legal rule being a general statement intended to
have universal application. First, “linguistic” arguments, which look at
the ordinary meaning of words where this is indicated as important,
though this is sometimes contrasted with the technical meaning of
expressions in specialist subject areas. In the main the ordinary or plain
meanings of words should be pursued unless there are good reasons
to the contrary. Second, there are six types of “systemic” arguments,
which set out to harmonise the interpretation with the body of law in
which the rule arises. These involve: (1) contextual harmonising the
operation of the rule with its context; (2) arguing from precedents to
harmonise the operation of the rule in particular sets of circumstances
with the values which are espoused in previous cases; (3) extending a
term’s ordinary use by means of analogy from similar expressions in the
surrounding law; (4) conceptual arguments which favour conceptual
uniformity within particular areas of law; (5) arguing from general
principles so that sub-principles are ranked in order of importance;
and (6) arguments from history which prefer a traditional form of
interpretation to novel or unusual forms. Third, there are “teleologic-
evaluative” arguments which note that rules of law or statutes are aimed
by legislators towards specific ends or the preservation of particular
values and should be interpreted to give effect to their ends or to
preserve their values.
Second-order reasoning
Judging is a form of practical reasoning and in cases where no clear or
just deductive ruling can be made, it is necessary for the judge to consider
making a “second-order” ruling – the logic is second order as secondary
results of a rule’s application may have to be assessed in practice in order

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to ascertain how the rule is to be applied. There are three forms of
second-order reasoning:
• “Consequentialist” arguments which consider the balance of costs

and benefits of different interpretations of the rule and seek the most
just consequences.
• “Evaluative” rulings which are designed to make the best use of values
implicit in the law. “The fundamental precepts of law according
to high but ancient authority are these three: live honestly, harm
nobody, treat all persons with the respect due to them.” Areas of
law may support different values. In delict the integrity of persons
has priority. In contract the liberty of persons to pursue their own
ends, balanced against fidelity to undertakings and mutual trust and
good faith, are the priority. In criminal law public peace and order
and personal security and integrity are the operative values. In trust
law the operative value is fidelity. In each case the consequences of
operating a rule should be evaluated by giving the values inherent
in the rule their proper place.
• “Subjective” judgments are those whereby judges will evaluate
the different terms and concepts they use to make their decisions.
“Reasonableness” is a concept which raises such issues. Judges will
take into account the degree of perceived injustice, or predicted
inconvenience that may arise. Principles of justice, analogies,
extrapolations, and modifications will require to be balanced in order
to reach an appropriate coherence of competing values.
Judicial conservatism
Statutes and rules of precedent have to be properly interpreted so that
the judge does not depart from common-sense meanings of words
or from the values which statutes promote. Previous cases should not
be departed from without good reasons. The same applies to accepted
understandings of policy and principle which have been used to support
previous decisions. Sources of law must be interpreted in a way that
is understandable by the public (so that the public may use them as a
guide to future action). The final decision should not offend traditional
conceptions of justice and common sense. All decisions must be
“universalisable”. They must not be ad hoc or ad hominem – there must be
no individual interpretations. In every case a rule or a principle or indeed
a policy should provide a universalised or generic ruling in terms of its
effects.

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66 jurisprudence
While MacCormick’s analysis of judicial decision-making is complex

(and has varied over his period of philosophical flourishing) the essence of
his views is that the syllogistic form is of prime importance and in general
should be used wherever possible. Where it cannot, it will become
necessary to analyse the problem which prevents its use. Outcomes of
different alternatives need to be weighed up and balanced. A variety of
techniques may be used but the final decision should reflect generally
held values within the judicial community and within the law itself.
Judicial conservatism will usually be followed, but in all cases the decision
should be seen as an instance of a universalised rule rather than an ad
hoc decision. Like cases have to be treated alike while departures from
previous decisions must be grounded in the operative facts and relevant
factors that occur.
Essential concepts
• Legal Positivism takes the view that the validity of law depends on
its sources and not its merits. While not denying that morality may
have a place, Positivists deny that there is any necessary connection
between law and morality.
Austin
• Austin defined a law as the command of a sovereign. There are three
essential elements to a law as a command: (1) sovereign, (2) subject
and (3) sanction.
Kelsen
• Kelsen sets out to produce a pure science of law. He strips away
all extraneous and not strictly legal material which includes any
sociological, psychological or political elements. These obscure the
essence of the law.
• Once cleansed, law contains norms (rules which say what ought to
happen). Laws primarily set a standard of behaviour which people
should follow. The formula for this is: if X then Y, if not-Y then
Z (if circumstances X occur, then do action Y; and if action Y is
not done, then the appointed official should do action Z). People
should obey the law but if they don’t then an official is under a duty
to impose a sanction.

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• A legal system has continuing legitimacy because it has effectiveness

in the sense that the system is accepted by a majority of citizens and,
even if it is disobeyed, the official who must impose the sanction
will accept the duties the law creates. Individual norms may cease to
have effectiveness when they cease to be accepted by the majority of
citizens and officials no longer impose them. This gives rise to the
phenomenon of desuetude.
• Norms are rooted in social contexts which they address. The norms
provide a legal meaning. The persons under obligation, either public
or official, understand the legal meanings in the context which the
norm addresses. Every situation has an external and an internal view.
On the external view, there is an action, a piece of behaviour. The
internal view provides the meaning which is subjectively understood
by the participants.
• Norms either arise through custom or are enacted by conscious
legislative acts.
• The validity of the legal system is provided by the Grundnorm, or basic
norm. It is unquestioned by the members of the society and is the
ultimate source of political power and of the authority of the state.
The Grundnorm is not expressed and has no content. It is presupposed.
• For Kelsen, there is no distinction between state and law – they are
one and the same. Since all officials are authorised by the norms
which create their roles, there is no distinction in Kelsen’s system
between different types of official. There is no basis for a separation
of powers among legislature, executive and judiciary. It is only their
functions which differ.
• Political power is held by the state, is distributed from the constitution,
through an organised system of inter-related norms into the hands
of officials whose powers are both authorised and limited by the
operation of those same norms.
Hart
• For Hart, laws are forms of social rule and their power and authority
arise as social facts rooted in social behaviour, the behaviour of the
people who comprise the society.
• Hart makes a distinction between social habits and social rules.
Social habits are customs or agreed forms of convergent behaviour

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68 jurisprudence
but failure to follow the pattern has no adverse consequences. Social

rules are obligatory. Failure to follow a social rule provides grounds
for criticism by others and self-criticism and produces a sense of
guilt or shame. Laws and moral rules are both types of social rules.
• Laws have an external aspect and an internal aspect. The external
aspect is the regularity and convergence of behaviour. The internal
aspect is the feeling of social pressure to conform to the rule.
• Laws have content which is in general decided by the political leaders
but some laws arise through custom. Laws are authoritative directions
of general application and are addressed to all persons within the
territory of the political power concerned. People are in the habit of
voluntary obedience.
• Hart defines the legal system as “a union of primary and secondary
rules”. The primary rules are the general rules which regulate the
behaviour of the public. A complex legal system encounters three
particular problems or “defects” which necessitate three particular
solutions for which Hart requires secondary rules addressed to
officials. First, the there is the “defect of uncertainty” which is that
people do not always know what valid laws apply. This is solved by
the “rule of recognition” whereby a judge states which valid legal
rules apply and state what their proper scope is. Second, there is
the “defect of static rules” which indicates that laws which are to
be followed indefinitely would lead to a stagnation of the law. This
is answered by “rules of change” whereby officials can create new
rules or repeal or amend existing ones. Third, there is the “defect
of insufficiency of diffuse social pressure” which arises because
people may not always obey the laws. This is answered by “rules of
adjudication” whereby judges (and others) will enforce the law – by
coercion if necessary.
• Hart’s form of Social Positivism is sometimes called “Modified
Positivism”. Laws have imperative force but they are related to our
human needs which Hart describes as their having a “minimum
content of Natural Law”. This has five aspects. First, all people are
vulnerable and the law should protect the vulnerable. Second, we
are all approximately equal. Third, we have limited altruism and
may have to be forced to co-operate with others. Fourth, there are
limited resources which need to be shared equitably. Fifth, we are
tempted to concern ourselves with our short-term interests but the

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law requires us to sacrifice these for communal long-term interests.

The law forces us to conform to the common good.
• All forms of law involve rules and this includes statutes, case decisions,
customary law and international law. Each rule specifies the situation
and the persons affected. Where laws use a general term this can
produce “penumbra of uncertainty”. A system of inter-related rules
will have an open-texture. In difficult cases a judge must decide the
area of operation of the rule. The judge will seek to provide a proper
interpretation (construction) and application of a rule in its specific
factual context.
Dworkin
• Dworkin is critical of Positivism. Law is not simply a system of rules.
There are underlying values which dictate the ways in which a rule
should be interpreted. In “hard cases” the courts must consider
community legal practices while at the same time respecting
individual rights. These practices will involve moral, political and
economic considerations laid out in advance.
• Dworkin gives the example of an omniscient judge, “Hercules”, who
is immensely wise and has a complete knowledge of the law and legal
sources and in particular the rules and principles of interpretation.
Hercules would be able to produce the “right” answer, which is the
theory which best fits the law and sources as a whole.
MacCormick
• MacCormick says that laws are rooted in the usages and practices of
human beings who have social co-existence. Law is simply a special
type of rule-ordered social behaviour.
• Our understanding of rules is learned through our experience in
various areas of social interaction such as our use of language; our
experience of nurture, socialisation and education; our experience
of institutionalised settings; and the more distant state agencies such
as police and courts.
• The content arises from social behaviour and utility. MacCormick
gives the example of queueing.
• Institutionalised normative order involves officially controlled
practices. There are “norm givers”, persons who state what the rules

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70 jurisprudence
are whereby the practice is to be controlled, and there are “norm

implementers”, persons who enforce the practice according to the
rules. In the case of law, norm givers are generally legislators. Norm
implementers are enforcing officials and judges.
• “Normative” indicates that the rule specifies the conditions whereby
an action is “right” or “wrong”.
• Rules may be applied strictly or with discretion. A strict application
of rules requires that wherever the operative facts occur they have
one fixed normative consequence. In a discretionary application
of rules, the rule follower is expected to consider the full facts and
circumstances and then decide within a range of alternatives in
accordance with some form of equitable interpretation.
• In every case there will be state officials who will observe and uphold
the constitution and the laws validly made under it. The observance
of the laws by officials and citizens is essential to any efficacious law-
state.
• All rule-ordered systems of law encounter difficulties of application
and interpretation. The legislature must not impose laws which depart
materially from what people actually do. This is because laws are
based upon well-established forms of social behaviour.
• Law protects social values.
• Persons are centres of autonomous choice and action. People are
capable of obeying or disobeying laws, of doing their duty or failing
to do their duty. People are legally responsible for their actions. Rules
should clearly express the duties which people are under. People have
rights.
• Property is norm dependent. But it is a matter of the state’s choice as
to what kinds of property any particular legal system will recognise.
Ultimately, the choice is a question of politics, guided by economics
and perhaps moral philosophy. Property may be held by individuals or
by the public in general. “Ownership” is defined as the recognition of
property over which particular powers are devolved on to particular
individuals or groups of individuals.
• The rights and powers of the state are legally controlled. The
fundamental rights and liberties of individuals should be protected.
Laws must be aimed towards achieving the common good. In doing
this a balance requires to be struck.

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• MacCormick says there is a distinction to be made between the state’s

system of political power and principles of law and morality. There
are four forms. First, state may be law dependent, as is the case under
a theory of Natural Law. Second, the law may be state dependent.
Third, the state and law may be separate but co-existent. Fourth,
there is an identity of state and law. MacCormick favours this view,
saying that the identity of state and law is imperfect in the case of
the United Kingdom.
• The accession of the United Kingdom to the European Union in
1972 and the creation of the Scottish Parliament in 1998 questioned
traditional sovereignty. MacCormick says that as a result of these
constitutional law changes, there now exists a multi-layered govern-
mental system. The ultimate power of government is divided and
people therefore look to and give obedience to different governmental
authorities.
• The “diffusionist” view says that governmental powers may diffuse
upwards to the organs of the European Union, and downwards to
the component countries of the United Kingdom.
• The “sovereigntist” view says that the United Kingdom Government
retains the power to withdraw from the European Union. This
preserves the traditional view of sovereignty as far as possible.
• MacCormick says that authority derives from democracy. The people
have voted for constitutional changes, thus creating a multi-layered
governmental system.
• On the wider scale, a multi-layered governmental system is possible
because there are commonly held values.
• Decisions should be taken at the most local level if they can be. This
is the principle of subsidiarity.
• A consequence of subsidiarity is nationalism.
• MacCormick predicts the division of the United Kingdom into
two or more successor states, all of which will have representation
and voting rights in the European Union. But this would also have
major consequences for the present functions of the United Kingdom
Government.
• In easy cases a rule can be applied strictly and the outcome is logically
deduced. The syllogism is the exemplar of the relevant logic. The
conclusion necessarily follows from valid premises.

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72 jurisprudence
• Where the deductive method does not provide the most just result,
judges need to consider the reasons for this. Sometimes, equity may
need to be brought into account.
• There are three types of problems in applying rules: problems
of “relevancy,” problems of “interpretation,” and problems of
“classification”.
• Judges may have to consider “second order” rulings. There
are “consequentialist” arguments, “evaluative” arguments and
“subjective” arguments.
• Issues of interpretation of the operative rules are important. There
are “linguistic” interpretations, “systemic” interpretations and
“teleologic-evaluative” interpretations.
• Judges are conservatism in their decision-making. They should not
depart from previous decisions without good reasons. They should
be faithful to accepted understandings of policy and principle. They
must ensure that sources of law are interpreted in a way that is
understandable by the public.
• All decisions must be “universalisable”. They should not be ad hoc or
ad hominem. A rule, principle or policy should provide a universalised
or generic ruling in terms of its effects and thereby preserve accepted
values.

154.59.124.102 on Fri, 19 Jan 2024 14:11:22 +00:00

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Chapter Title: LEGAL POSITIVISM

Book Title: Jurisprudence Essentials

Stable URL: https://www.jstor.org/stable/10.3366/j.ctvxcrvzj.8

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In Chapter 2 we saw that Contractarianism arose as a means of controlling

Austin’s “Command Theory”

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Austin defined a law as a command of a sovereign:

That is to say that a law is a wish of the sovereign expressed as a

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The importance of the utterer being sovereign and the importance of

“The sovereign is not in a habit of obedience to a determinate superior . . . it

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Hart’s criticisms of the Command Theory

• Law as the Austinian command of a sovereign, is like the demands

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Hart, having attacked the Command Theory, proceeds to build his

Kelsen and the “Pure Theory of Law”

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“adulteration is understandable, because [these] disciplines deal with

The end result of this cleansing is to produce unadulterated law which

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“The command of a gangster to hand over a certain amount of money has

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function of the basic norm is to make it possible to consider this coercive

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Hart’s Concept of Law

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It follows that laws have two aspects: an external aspect and an

“there must, wherever there is a legal system, be some person or body of

This person or body must be internally supreme and externally

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• First, there is the persistent question as to which laws to recognise.

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Hart’s form of social Positivism is sometimes called “modified

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Dworkin’s Interpretative Theory – Law as Integrity

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sources. Hercules would be able to produce the “right” answer which

MacCormick and the Institutions of Law

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then decide within a range of alternatives in accordance with some form

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“The institutional character of law is intelligible only on an assumption

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• The state may be law dependent, as is the case under a theory of

Sovereign state or post-sovereign state?

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groups or communities. The existence of the European Union suggests

MacCormick on Judicial Decision-Making

Syllogistic logic and deduction

Major premise: All men are mortal;

The conclusion necessarily follows from valid premises.

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Development of rules and Interpretation

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