Hart, Austin, Positivism

Extract 1 : PREFACE & WHY POSITIVISM?
Extract 2 : LAW AS A SYSTEM OF RULES
Extract 3 : SUMMATION OF RESPONSE TO DISCUSSION QUESTION

1 PREFACE

1.1 Hart and Austin
Professor John Austin was a lawyer and law teacher who came to be appointed to the first chair of jurisprudence in the University of London. His principal work, The Province of Jurisprudence Determined, held sway in the teaching of jurisprudence in British universities for about a century. This was not because it was particularly good, rather that nothing better was written in the interim. Juristic analysis in the United States of America developed by leaps and bounds, from Benjamin Cardozo through Oliver Wendell Holmes, Jerome Frank (all very senior judges) and Professor Karl Llewellyn. These American jurists filled a void which had been effectively created by the two-dimensional, even monochromatic, legal theory propounded by Professor Austin.

1.2 It cannot even be said that Austin based his analysis of the concept of law squarely in the more prolific, and more profound, works of Jeremy Bentham, even though their lives overlapped in point of time.

Austin's notion of law as orders backed by threats of sanctions, with the fundamental legitimacy of the legal system resting on a general 'habit of obedience', was so simplistic that it would have been difficult not to improve on it. Teachers of jurisprudence in the United States largely ignored Austinian 'theory', preferring to concentrate attention on what legal rules do, can be made to do, by whom, and for what legitimate reason. The only avowed reference to something approaching sovereignty or 'habit of obedience' (per Austin) is to be found in Professor John Chipman Gray's The Nature and Sources of the Law (2nd ed, 1909) in which he says, darkly, that "back of everything lie the real rulers of society." Remarkably, these 'real rulers' do not even appear as an index reference.

1.3 And so it fell to Professor H.L.A.Hart to pull the teaching of jurisprudence in British universities out of the doldrums. With his work The Concept of Law Hart achieved not only this but a central place in the twentieth century jurisprudence of the western world.

In The Concept of Law Austin's legal analysis is used not so much as a worthy opponent in debate but as a foil, by contrast with which Hart is able to construct a convincing model of law as a system of rules. Austin's basis of a system's legitimacy in the form of an habitual obedience to a sovereign is replaced by a union of 'primary' and 'secondary' rules which find their central legitimacy in the 'rule of recognition'. Primary rules are, in contradistinction to Austin's model of orders backed by threats, capable of change; and certain people (the judiciary) are recognised to have powers to make changes in the law. While Oliver Wendell Holmes said that "the life of the law has not been logic, it has been experience", Hart's amalgam of (secondary) rules of recognition, adjudication and change are a model of the legitimate reason for the development of the 'life of the law'.

2. WHY POSITIVISM?

2.1 What legal normative positivism is, and what it is not

Legal positivism is an approach to the analysis of the concept of law, and of subsidiary legal concepts, rooted in the premise that the study of what is law (that is, laid down or posited) can contribute to a full understanding of the nature of Professor H.L.A. Hart's seminal contribution to legal positivism is The Concept of Law (first published 1961, Oxford University Press, and subsequently with minor revisions), arguably his most influential work. The assertion that The Concept of Law is the most influential work is not to be taken to mean that Hart 'got it right' while others did not, nor that he attempted to cover more ground in a wide and complex field of legal analysis than did any other jurist. It is, rather, to say that he positioned his concept of law in the spectrum of jurisprudential debate in such a way as to question more previous assumptions, and to set a more systematic agenda (more implicitly than explicitly) of subsidiary, associated and consequent questions about the nature of law and its concepts, than any other jurist.

Legal positivism concentrates its attention on what law is, not on what its substantive content should be, nor on what useful things can or could be done with it. What law, or rather the law, should be is (to use a very broad and crude generalisation) the province of the study of natural law theory and doctrine. What useful things can be done with legal rules is (again generalising broadly) the purview of the 'realist' movement which emerged in the United states of America with likes of Benjamin Cardozo, Oliver Wendell Holmes and Jerome Frank and ably carried on in the United Kingdom by Professor William Twining (the biographer of another major 'American realist' Professor Karl Llewellyn) in such works as How to do Things with Rules.

2.2 Matters of what law should be, and what law and legal rules can do, are briefly raised early in this paper for this reason: nothing in Hart's Concept of law nor in any other of his writings, such as his (at least equally) seminal inaugural lecture Definition and Theory in Jurisprudence (1954) is inconsistent with a broader interest in what law or laws can or should do. It is simply that such matters, interesting as they are and no doubt essential, each in its own way, for a rich understanding of all aspects of legal regulation, are not 'core' questions central to an understanding of the concept of law.

Extract 1 : PREFACE & WHY POSITIVISM?
Extract 2 : LAW AS A SYSTEM OF RULES
Extract 3 : SUMMATION OF RESPONSE TO DISCUSSION QUESTION

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