by Tim Sommers
John Austin was cursed with famous friends, among them Jeremy Bentham, Thomas Carlyle, James Mill and Mill’s son John Stuart, whom Austin tutored in the law. Cursed because, while they were all impressed by his intellect and predicted he would go far, he did not. His nervous and depressive disposition combined with his ill-health lead to his failure as a lawyer, an academic, and as a government official. In 1832, Austin wrote The Province of Jurisprudence Determined, which almost no one read and promptly went out of print. Almost thirty years after his death, his widow published a second edition. This time, everybody read it.
Austin is considered the first positivist. Positivism is so-called because the law, on this account, is a “posit.” That is, all law is human-made, separate from morality, and identifiable as law by the details of how it came about – and (most importantly) the fact that the source of law is habitually obeyed. Positivism aspires to be an empirical approach to the law. So, Austin says laws are rules, but, empirically, are also a species of command.
Specifically, a law is a command made to a subject, or political inferior, by a sovereign, or political superior, habitually obeyed, who can back the command up with a credible threat of punishment of sanction. No law without sanction. If I offer money to whomever finds my dog, even if I am the sovereign, it’s not a law.
There are problems with this approach. First of all, it seems to apply best to criminal law – and only with retrofitting to other kinds of law. As my Constitutional law professor, Paul Gowder, used to say, despite what people think, “The law does not, primarily, tell people what they can’t do. It tells them how to do what it is that they want to do. Get married. Open a business. Drive a car. Make a will.”
Secondly, in post-monarchial society, who exactly is the sovereign? Austin himself had difficulty. He was forced to describe the British “sovereign” of the time, awkwardly, as the combination of the King, the House of Lords, and all the electors of the House of Commons.
Finally, as Hart emphasized, it’s not clear, on this account, that we can make a principled distinction between the commands of the sovereign and the commands of a criminal with a gun.
If Austin is the first positivist, the most influential positivist was H.L.A. Hart via his 1961 masterpiece, The Concept of Law. Hart was a fascinating character. For example, during World War II, having been declared unfit for service, Hart worked first for MI5, British Intelligence service, and then at Bletchley Park with Allan Turing, who broke the German cypher “Enigma” and invented the digital computer to do it.
“The key to the science of jurisprudence,” according to Hart, “is the union of primary and secondary rules.” Primary rules are ordinary laws like use this particular form to pay your taxes, pay the full amount you owe, and don’t assault a government official if they come to audit you. Secondary rules are rules about how primary rules get made, changed, or eliminated. The IRS has been given the power by the executive to control what the form looks like, Congress sets the amount of taxes, and ordinary criminal law, passed by the state or federal houses and senates, signed by the President, and surviving all court challenges, forbids all assaults, including of tax collectors.
Every society has some successfully enforced primary rules. But if you visit another society, very different from ours, and you want to know if they share our concept of law, you need to see if they have rules about how primary rules get made. Hart, like Hume before him and Rawls after, also believed that given human nature – we are all vulnerable to attack by others, approximately equal (in the sense that “no individual is so much more powerful than others, that…without co-operation [they can] dominate or subdue them for more than a short period”), and are capable enough of altruism to work together, but are not so altruistic as to preclude the need for rules – and given the “relative scarcity” into which we are born and the benefits of cooperation, certain rules are inevitable. Rules to limit violence, deception, and theft, specifically. Hart called these “the minimum requirements of natural law.”
Furthermore, a legal system requires that the majority of its citizens view it from, what he calls, “an internal point of view.” If I visit another society and examine their laws, however closely, if I don’t treat this as my society, the laws are just a set of rules with no particular hold on me, except insofar as they correspond with my other beliefs (like don’t murder anyone). But the laws of your society, Hart believes, must count, at least sometimes, as reasons for you – and reasons for the majority of people who live under them.
What’s the difference between the demands of a gunmen and a law? A law, unlike this kind of demand, is general in two ways. First, it prescribes a class of acts – and not a single act. Second, it covers everybody. If it were a law, it would cover the gunman too, in other words. Most importantly, whether we are talking about a sovereign or a secondary rule, a law must come from a source authoritative in the sense that it is habitually obeyed.
Hence, while it may seem that positivism reduces the law to a set of rules, positivism reveals that the law, at bottom, is a matter of people buying into and habitually acting on, what Hart calls, “a rule of recognition” or, in Austin’s formulation, a legitimate sovereign. Laws are the results of certain consistent social practices over time.
The “rule of law” is widely considered to be a requirement of justice and a basic liberty – like speech or the right to vote. We expect, in the classic formulation, “A government of laws, not of men.” “The great aim of the struggle of liberty,” Friedrich Hayek said, “has been [first and foremost] for equality before the law.”
The rule of law is not self-sustaining, however. When people, especially those in power, begin to disregard the law regularly, positivists will say, the disregarded rules quickly lose their status as laws.
Gowder says the “weak” rule of law requires (i) regularity/predictability and (ii) publicity (that it is knowable and widely known). The “strong” rule of law adds the concept of (iii) generality, the law applies equally to all. This suggest that, in some ways, the lack of publicity and regularity is worse than the lack of generality – people with economic or political power exempting themselves from the law.
If it were the case that you lived in a society where the laws had become opaque and were interpreted in ways very different from how they had been until very recently, and enforcement of these “laws” had become irregular and hard to predict, you would be in worse state than if it were merely the fact that some were treated as above the law.