General Jurisprudence A 25th Anniversary Essay

  • H Collins, 'European Social Policy and Contract Law ' (2005) 1 European Review of Contract Law 115
  • H Collins, 'Flexibility and Stability of Expectations in the Contract of Employment' (2005) Socio-Economic Review 1
  • Leslie Green, 'General Jurisprudence: a 25th Anniversary Essay' (2005) 25(4) Oxford Journal of Legal Studies 565
    DOI: 10.1093/ojls/gqi030
  • C Costello, 'Ireland's Nice Referenda' (2005) 1(3) European Constitutional Law Review 357
    DOI: 10.1017/S1574019605003573
  • H Collins, Labour Law:Text and Materials (2nd Hart Publishing 2005)
  • H Collins, 'Market Integration, Social Justice, and Autonomous Agreements: Regulating Transactions in Europe' in V. Roppo (ed), A European Civil Code?: Perspectives and Problems (Guiffre 2005)
  • A Kavanagh, 'Pepper v Hart and Matters of Constitutional Principle' (2005) 120 Law Quarterly Review 98
  • R Ekins, 'Review of M. Loughlin, "The Idea of Public Law", (Oxford: OUP, 2003)' [2005] Public Law 636 [Review]
  • R Ekins, 'Secular Fundamentalism and Democracy' (2005) 8 Markets & Morality 81
  • H Collins, 'Social Inclusion: A Better Approach to Equality Issues? ' (2005) 14 Transnational Law & Contemporary Problems 101
  • R Ekins, 'The Authority of Parliament — A Reply to Professor Joseph' (2005) 16 King?s College Law Journal 51
  • H Collins, 'The Right to Flexibility' in (ed), Labour Law, Work and Family: Critical and Comparative Perspectives (Oxford University Press 2005)
  • H Collins, 'The Unfair Commercial Practices Directives' (2005) European Review of Contract Law 417
  • A Kavanagh, 'Unlocking the Human Rights Act: The Radical" Approach to Section 3(1) Revisited"' (2005) European Human Rights Law Review 259
  • C O'Regan, '"Breaking Ground: Some thoughts on the seismic shift in our administrative law"' (2004) 121 South African Law Journal 424
  • Roy Goode, '"The International Interest as an Autonomous Property Interest"' (2004) European Review of Private Law 18
  • C O'Regan, '"The three R's of the Constitution: Responsibility, Respect and Rights"' (2004) Acta Jurídica 86
  • P P Craig, 'Access to Mechanisms of Administrative Law' in D. Feldman (ed), English Public Law (Oxford University Press 2004)
  • C Costello, 'Accidents of Place and Parentage: Birthright Citizenship and Border Crossings' in (ed), The Citizenship Referendum: Implications for the Constitution and Human Rights (Law School TCD, Dublin 2004)
  • Leslie Green, 'Associative Obligations and the State' in Justine Burley (ed), Dworkin and his Critics (Blackwell 2004)
  • P P Craig, 'Britain in the European Union' in J. Jowell and D. Oliver (eds), The Changing Constitution, 5th edn. (Oxford University Press 2004)
  • P P Craig, 'Competence: Clarity, Conferral, Containment and Consideration' (2004) 29 European Law Review 323
  • P P Craig, 'Constitutional Process and Reform in the EU: Nice, Laeken, the Convention and the IGC' (2004) 10 European Public Law 653

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Discuss the separation of law and morality in analytical jurisprudence

The notion of analytical jurisprudence (also called “positive law”) is merely one aspect of a wide range of legal theories that are evident throughout legal history, and in the contemporary legal system. Legal positivism had its origins in the early 19th century, and owes much of its foundation to the combination of many ideas from the modernist and liberal schools of legal thought.  This allowed for a movement away from natural law theory, especially at a common law level, and gave the opportunity to take a more scientific approach to the law ‘as it is’.  This approach was first taken by figures such as Jeremy Bentham and John Austin. However, the positive view of the law struggled to adapt to the 20th century legal system, and it was HLA Hart who redeveloped the concept of positive law in England in the 1960s.

Legal positivism holds the belief that the law should remain separate from morals and other social factors (such as religion, etc), and thus the theory was that the law could have much more general application. This brief will consider the ideas of the founders of the school of analytical jurisprudence, and highlight the strict separation of law and morality that these theorists adopt in their approach to analysing the law (thus supporting Austin’s claim). It will explore the theories set out by Bentham, Austin and Hart, and consider them in the context of the modern law, and determine their validity in the contemporary context.

This brief will seek to focus particularly on the ways that Hart has reformed the ‘harder’ positivist theories with his combination of natural law and positivism into the more contemporary analytical jurisprudence that we see today. As a result of this combination, there are often conflicts between Hart and Lon Fuller (a natural law theorist) due to the obvious differences that these two theories possess. These will be discussed in more detail in the relevant chapters of this brief, however it is important to note at this point that many perceive that positivism is not as different to other theories as it once was, due to the critical elaboration of positivism by Hart into the analytical jurisprudence that we see in effect today. Many authors refer to positivism and analytical jurisprudence as one and the same, and they are in effect, however it is important to consider their subtle differences between Bentham, Austin and Hart, and the individual contributions that these theorists have made to the development of analytical jurisprudence. This brief will now seek to cover the general principles of analytical jurisprudence, including the need for a clear and succinct law that everyone is able to understand, is not prejudicial and can be applied to everyone equally. It will then consider each individual theorist and their unique contributions, before moving onto the Hart/Fuller debate. Finally, it will attempt to conclude that while analytical jurisprudence has become softer in more modern times, this was more out of necessity to fit into a modern legal context; however the obvious separation of law and morality quite clearly exists, and is still used by some judiciaries.

Basic Ideas of Analytical Jurisprudence

Before being able to critically assess each individual theorist’s ideas of legal positivism (or analytical jurisprudence), it is important to firstly have a sound understanding of this school of thought in general terms. Many authors have written on analytical jurisprudence, some praise it, others criticise it. However, there is no denying that analytical jurisprudence has made some form of contribution to the way some people interpret and apply the law. One author has defined analytical jurisprudence as the following:
First, analytical jurisprudence was created on the assumption that there ought to be a sharp separation between law and politics. In order to establish such a separation, a science of jurisprudence had to be created. It was a system whose definitions, dichotomies and boundaries were designed, above all, to produce one right answer. Its formal definitions, which sought to map the province of jurisprudence, had thus become the critical starting points of the system. The sharp, bright line distinctions between law and custom or law and morality were originally crafted for the central purpose of creating a hermetically sealed intellectual system designed to yield only one set of meanings, only one right answer.

This passage highlights the desire of positivists to maintain a certain degree of separation between one’s political views and one’s analysis of the law. The general rationale behind this idea was that one’s political views could influence the way one interprets the law and thus, by maintaining this separation, there could be a much more consistent and clear approach to the law then there had been in the past. HLA Hart, a legal theorist in this area (who will be discussed in more detail in due course) concurred with the notion of a strict separation of morals from law, as he insisted on a “precise and so far as possible a morally neutral discussion of the law [as Jeremy Bentham did]”, and called this the “very centre, I would say the sane and healthy centre” of legal positivism. 
    One of the main arguments of analytical jurisprudence is that the law needs to be in a form that is easy to understand. This was Bentham’s main idea in restructuring the outdated English common law system in the 17th century to a more clear and concise legislative system, which will be discussed in more detail in due course. One author wrote of legal positivism:

But [law] is only possible if the directives can be identified in a way independent of appeal to those very reasons. Law cannot help anyone know what he ought to do if in order to know what law requires he must first figure out what he ought to do. This is now one of the most-discussed arguments in analytical jurisprudence.
In other words, Leslie Green has here pointed out that analytical jurisprudence requires a clear and understandable set of rules that can have a general application to all subjects, which eliminates the need for people to work out what they must do to obey the law; rather they will know ahead of time what their legal obligations are. As this brief will discuss, Bentham and Austin (who founded the school of positivist thought) upheld these views strongly, whereas scholars such as Hart tended to ‘soften’ the previously ‘hard’ arguments of positivism into a form that was more adaptable to a modern legal system. One author wrote of Hart:
However, at least since Hart announced in Concept of Law that the positivist project should be understood as both an exercise in 'analytical jurisprudence' and 'descriptive sociology', positivism has to some extent lost its substantive moorings.

This shows that the softer analytical approach that Hart has taken in recent times is different to the approach taken by Bentham and Austin earlier. Hart has incorporated parts of natural law theory into his arguments and, as will be discussed later, has contributed to an ongoing debate between the analytical jurisprudence works of Hart and the natural law philosophies of Lon Fuller. It is difficult to highlight the basic ideas of analytical jurisprudence without referring to the individual theorists themselves, as they have each made individual contributions to the school of positivist and analytical thought. This brief will now seek to consider each individual theorist in significant detail, in conjunction with Austin’s claim that law is one thing and its merits are another, in order to appropriately address the issue at hand.

John Austin

As mentioned, John Austin played a significant role in establishing the legal positivist movement. Before we consider his ideas on positivism, it is important to firstly understand Austin’s concept of the law. This can be illustrated by the following passage:
A law is the most general and comprehensive acceptation in which the term, in its literal meaning, is employed, may be said to be a rule laid down for the guidance of an intelligent being by an intelligent being having power over him.
Therefore Austin’s concept of law is that it implies a certain amount of clarity and certainty when laying down its principle. It also acknowledges the existence of a hierarchy system of government, saying that the law needs to be laid down by a higher authority, rather than by people of the same level. Austin also acknowledges that a law (or a ‘command’, as he calls it) is made up of a number of elements, including:

  • A wish: The person giving the command has an intention of a person to behave in a particular way;
  • Communication of the wish: The wish must be communicated by words, or some other form that is able to be understood;
  • Sanctions: The law carries with it the promise of an action if the wish is not complied with (e.g. the threat of harm, or a polite request).

We can see from Austin’s works that this is the beginning of what we know as the modern legal system. Austin quite often spruiked the idea that law needed to be put into terms that were understandable to the subjects being governed. He borrowed this from the earlier works of Jeremy Bentham, who will be discussed in due course, who invented the modern system of legislation as we know it today. But perhaps most importantly to the issue at hand, Austin was perhaps one of the main theorists to maintain a separation between law and morality. This is quite obviously evidenced in the quote that this brief is discussing, but it is also displayed right throughout his works. Austin writes:

A law in the most general and comprehensive acceptation in which the term, in its literal meaning, is employed, may be said to be a rule laid down for the guidance of an intelligent being by an intelligent being having power over him.
Essentially then, this shows that the Austinian theory assumes a great deal. For example, the assumption is made by Austin that those enacting laws are ‘intelligent’ or in other words, are competent in exercising their authority to do so. Based on this assumption, the courts can then be free to apply the law in its ‘literal meaning’, without having regard for any other extraneous factors that may influence a judge’s decision. According to Austin, it is not the role of the courts to adjudicate on whether a law is just or not, but rather to apply and uphold that law. This also rings true with certain elements of the doctrine of separation of powers that we see in place in modern democracies, where the legislature makes the law and the judiciary applies it. Thus, in the Austin system, both branches would keep checks on the other, and ensure that they did not exceed their constitutional authority. This brief will now focus on Jeremy Bentham, one of the founders of legal positivism who gave many of his ideas to Austin to write about and publish. It is important to understand the works of Bentham in order to truly understand how law and morality tend to be separated in the world of analytical jurisprudence.

Jeremy Bentham

One of the main rationales for Bentham establishing the positive law theory was that he thought the system of common law, that was then in use in England in the 17th century, was insufficient and inconsistent. He classified this common law system as ‘dog law’, referring to the way it often applied retrospectively and assimilated it to the way in which we treat animals.  He criticised the lack of legal certainty and clarity that the common law system provided. Bentham proposed a system whereby the limits of power and conduct were specifically outlined, and were available for all to see and abide by.  He often intertwined his own ideas with the ideas of utilitarianism (i.e. “the greatest good for the greatest number”), which then obviously formed the basis of the scientific approach to the law. His “science of legislation” approach meant that the law had a rigid format, was clear in its terms, and achieved a positive result overall for the subjects of the law, thus satisfying the requirements of the utilitarian aspects of Bentham’s theory.  He also identified that human behaviour is often governed by two key factors: the desire for pleasure, and the avoidance of pain.  It was Bentham that proposed a system of codification of the law, similar to the system of legislation we see in the modern context, where the premise was that it would create a universal set of laws that was easy to understand, and was able to be easily communicated to the public, so they knew what they had to do to obey the laws. It also meant that judges would effectively have their law-making powers reduced or rescinded, meaning they assumed more of an administrative role in the judiciary. Bentham had a similar view of the sovereign, believing that the sovereign is a person or group to whom the people of the society are “in a disposition to pay obedience” to.  For Bentham, law had to contain the following factors:

  • A collection of signs
  • Which indicate an intention
  • Which are conceived or adopted by a sovereign in a state
  • Which describe the desired behaviour
  • Of the people to whom the intention is directed
  • Which should also provide a motive for those subjects to obey.

This heavily itemised list is similar to that of Austin; however Bentham’s theory came first according to the history books. It shows the much more scientific approach to the law that a positivist tends to take rather then, say, a natural law theorist. Bentham’s rationale for creating such a system was that, as mentioned, judges were much more restricted in their law-making powers. This meant that they were not able to apply any form of morality to their legal arguments, as they were simply bound to apply the law as it was enacted by the Parliament. This further supports the fact that those who follow analytical jurisprudence maintain a strict separation from the law and any social or political factors surrounding it, leaving the debate of merits and demerits to the legislature.

Hart’s Elaboration of Analytical Jurisprudence

It is important now to consider the works of HLA Hart, a legal theorist that was responsible for the reinvigoration of the notion of legal positivism in the 1960s. Hart presents a different set of views by comparison to Bentham and Austin, however the general points that Hart makes are relatively coherent with the ideas of the other two theorists. Hart was not concerned with the ways in which rules were conveyed by a sovereign, as Bentham and Austin were. Rather he was concerned more so with the ways that law governed society and social behaviour,  which is most probably more relevant to the modern context than the ideas of Bentham and Austin. Hart identified the five factors of the human condition, and believed that laws are in place to counteract these:
  • Human vulnerability;
  • Approximate equality;
  • Limited altruism;
  • Limited resources;
  • Limited understanding and strength of will.

Hart identified these factors as the minimum that need to be in place in order for a legal system to function effectively. Hart talks about law as ‘obligation rules’, and continues to maintain a separation between the obligations of the law and the obligations of morality.  He talks about the law as ‘rules’, where a disobedience is generally frowned upon by the rest of the community, and hence the peer pressure can often force people to obey.  Moving back to the factors that Hart identified, it is clear that he does not support a law that does not protect, for example, basic human rights. Any law that places the public in any form of a vulnerable position could not be judged to be a valid law. In a similar way, any law that attempts to confuse the public, or jeopardises the equality of the human race could also not be seen as a valid law. In an extension to these principles set out by Hart, one author also wrote that Hart (as a positivist) “does not think that positive laws contrary to justice should be obeyed as a matter of conscience”.  What this could be interpreted to mean is that, as Hart as said, any law that places the wellbeing of the human race into doubt could not be adjudged to be a just law. It is easy to see that Hart has adapted the original concepts of Bentham and Austin to a modern standard, and has made it applicable in the contemporary context. It is clear to see that Hart draws his main arguments from the original positivism, but has adapted it slightly with the inclusion of some basic natural law principles. This has softened his positivist approach somewhat compared to Austin and Bentham, however it is clear that Hart still maintains a certain degree of separation of law and morality, just not to the same extent that ‘harder’ positivists may.

The Fuller/Hart Debate

There has been a conflict between the principles of Hart (a positivist) and Lon Fuller (a natural law theorist) due to their obviously adversarial views and ideologies. Fuller’s views are generally that the law needs to meet certain standards and needs of the population in order for it to be effective. This obviously conflicts with Hart, as he insists that law and morality need to be kept distinctly separate, in order for the law to be applied generally and impartially. Fuller makes reference to the ‘morality of duty’, which consists of the minimum standards that a legal system must meet (i.e. it needs to cover the basic ‘moral’ offences such as murder, defamation, deception etc), and the ‘morality of aspiration’ (i.e. what a legal system can become when it function in an excellent way).  Fuller was more concerned about the ways that the laws regulate human conduct (the ‘internal morality of the law’) than the more substantive aims of the law itself (the ‘external morality of the law’).  Effectively then, Fuller accused Hart (and the rest of the positivists) of only considering half the picture in terms of how the law should be analysed. Fuller claimed that the law needed to be considered in light of moral obligations and objectives in order to establish whether there was any effectiveness in the system. Hart has also made his contribution to the natural law theory, in the sense of his five facts of the human condition, which are outlined above. Hart, while being a positivist, recognises that morality does perhaps play some role in the establishment of law and a legal system, but should be disregarded when one is analysing the law within that established system.  While Hart does acknowledge that there are occasions where law and morality must necessarily intermingle with one another, he is quick to point out that this is only limited to a situation where there is no pre-established rule of law, and identifies these five requirements as necessary for a legal system to function effectively. He still maintains his more scientific application of the law (by contrast to other theorists) in the sense that law and morality remain distinctly separate from one another, and that this is the only effective way for a law to be applied, due to its ability to have general effect.

Fuller’s view of Hart’s approach was that it only just barely met the morality of duty (i.e. the bare minimum standard that law should achieve, according to Fuller).  Fuller also used the idea that the community could actively contribute to an excellent standard of community functionality, through the use of the morality of aspiration. This concept was based upon the idea that the community would communicate with one another about how an adherence to the principles of law would ideally lead to a good life and a happier community. Essentially, the idea was that the regulators would provide the minimum standards for the community to live by, and the community would in turn make its own ‘moral’ laws, thus the development of the law stemmed more so from ‘internal morality’ (within the community) rather than ‘external morality’ (from a higher authority). Hart was more concerned with the application of the law from institutions, such as courts and legislative bodies, and how any extraneous influence on these institutions may skew the applicability of the law in general. In other words, Hart (and other positivists) only saw the law as the law and not a question of it being right or wrong, which was a question for the law-makers and not for the judiciary. This effectively upholds the claim made by Austin that ‘the law is one thing, its merit and demerit is another’, given that Hart was always concerned with analysing the law separately from any other extraneous factors that might influence one’s interpretation of the law. Fuller was quite clearly more concerned with how the law affects the community, and how the community can assist in developing the law. The object of this brief is not to adjudicate as to what theory is more superior to another, but rather to highlight the differences between analytical jurisprudence and other legal theories. It would appear that the debate between Hart and Fuller is not one that can be easily resolved in any case, due to the complexity of the arguments for both sides. In any event, what this chapter of this brief has demonstrated is that analytical jurisprudence approaches the law in a manner that is significantly different from other legal theories or theorists. It approaches the law as being the law, and is not concerned in addressing whether the existence of such a law is right or wrong. Therefore, the positivists tend to accept the law how it is, and do not necessarily concern themselves with the merits and demerits of it, as per Austin’s claim.

Ronald Dworkin: Analytical Jurisprudence’s Main Critic

Dworkin has been known to reject the positivist and analytical jurisprudence arguments perhaps more so than what Fuller has. By comparison to Dworkin, Fuller’s arguments are perhaps more compatible than any other theory, due to Hart’s semi-acceptance of natural law. Dworkin bases his theories upon the liberal school of thought, and staunchly believes that one cannot appropriately interpret the law without having any reference to its morals. Dworkin believes that judges should use their discretion to consider all things relevant to the law (i.e. the principles behind the law) in order to come to their conclusion, and not simply apply the law and ‘fill the gaps’ as positivist judges have a tendency of doing.  To Dworkin there is a significant difference between a principle that a judge should take into consideration, and a policy which he should not. In other words, a judge needs to have due regard for the social and political factors which contribute to the development of a society, such as an individual’s rights.  Dworkin refers to the famous American case of Riggs v Palmer (1889) 115 NY 506, 22 NE 188 as a demonstration of a time when a simple application of the rules was not enough for a judge to come to a conclusion. The question before the court in this case was whether a murderer could inherit his victim’s property through a will. The law suggested that the murderer could, through the principles of will and estate law, however Dworkin saw more than this. He referred to this case as a “hard case”, as described them as necessary because they “test fundamental principles”.  But what does this have to do with analytical jurisprudence, and the issue at hand? Well, it quite clearly holds the opposite view to Hart, Bentham and Austin in the sense that morals and law are intertwined together and are inseparable. Moreover, it also highlights the tendency in recent times for morals and law to co-exist, which brings light to why Hart has included elements of natural law in his theories: more out of necessity to fit into a modern legal context than anything else.

Conclusions

The concept of analytical jurisprudence is well established and respected as being a persuasive and valid legal theory. Bentham is being credited as the person who started the positivist movement, due to his discontent with the ways of the old English common law system during the 17th century, describing it as ‘dog law’. It was this combination of law and the prejudicial nature of the representatives on the King’s Bench that lead to Bentham creating a form of law that was codified, consistent and easy to understand. Furthermore, it had general application to all members of the community, and all knew what the law was, as it now existed in a published form. This existence of law being separate from morality was a first for its time, given that the English were previously reliant upon a common law system where the judiciary could often decide guilt on a whim. Austin then further refined Bentham’s works, by giving birth to the idea that law is a general acceptation of a term that is employed in its literal meaning, with a certain degree of assumption that the ‘intelligent’ beings making the law were competent in exercising their legislative powers, thus it was not the place of the judiciary to rule on the merits and demerits of a particular law.  Austin established the idea of a process that the law needs to follow in order to be valid, rather than applying a set of moral characteristics that need to be satisfied. This was highlighted by him specifying that the law needs to be a ‘wish’ that is clear in its communication, and carries with it the promise of on act in retribution if that law is not followed. This differs from, for example, Hart’s five factors of the human condition or Fuller’s natural law theory, which concern themselves with morality rather than a scientific and analytical approach to the law. Finally, Hart has taken analytical jurisprudence into the modern age with his works. However, Hart has taken a ‘softer’ approach to positivism than the other, by incorporating ideas of natural law into his theories. He has pointed out that certain natural factors need to exist in order for law to function, which are outlined in is five facts of the human condition. Additionally, he has taken a more community based approach to the law and law enforcement, rather than haranguing the traditional positivist ‘institutional’ approach that Bentham and Austin have taken. In any event, it is still clear that analytical jurisprudence still contains a number of differences to other legal theories, it is just the gap is not quite as wide as it once was. Hart has succeeded in incorporating a number of natural law elements into his theories and, perhaps unlike Bentham and Austin, had the benefit of seeing how a modern legal system functions and was able to modify the positivist theory to fit a modern context. Hart still takes a scientific approach to the law, but allows morality to intervene when it is necessary and in the best interests of the community. Therefore, Austin’s claim that law and morality are distinctly separate is true of the positivist school of thought as a whole, but has a slightly curtailed effect in a modern society. Nevertheless, it still exists to a certain degree; and judges today may still adopt this more scientific approach to the law rather than concerning themselves with debating the merits and demerits of the law. 

Bibliography

•    Austin, J, The Province of Jurisprudence Determined (1954), Noonday Press: New York
•    Dworkin, R, Law’s Empire (1986), Harvard University Press: Massachusetts
•    Freeman, MDA, Lloyd’s Introduction to Jurisprudence (2001, 7th ed), Sweet and Maxwell: London
•    Hart, HLA, The Concept of Law (1994, 2nd ed), Oxford University Press: London
•    Hart, HLA, Essays on Bentham (1982), Clarendon Press: London
•    Leiboff, M, and Thomas, M, Legal Theories in Principle (2004), Lawbook Co: Sydney

Journal Articles


•    Dyzenhaus, D, ‘Positivism’s Stagnant Research Programme’ (2000) 20 Oxford Journal of Legal Studies 203
•    Goldsworthy, J, ‘Is Jurisprudence Liberal Ideology?” (1993) 13 Oxford Journal of Legal Studies 548
•    Green, L, ‘General Jurisprudence: A 25th Anniversary Essay’ (2005) 25 Oxford Journal of Legal Studies 565, 570.
•    Horwitz, MJ, ‘Why is Anglo-American Jurisprudence Unhistorical?” (1997) 17 Oxford Journal of Legal Studies 551
•    Orrego, C, ‘HLA Hart’s Understanding of Classical Natural Law Theory’ (2004) 24 Oxford Journal of Legal Studies 287

Cases


•    Riggs v Palmer (1889) 115 NY 506, 22 NE 188

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