I. Positivism and its Discontents
Barker – Natural Law and English Positivism
General view of English theorists may be summarized in two propositions:
1) Law is a body of rules which is recognized and enforced in courts of law
1. That is, law is the judge-made law of tradition and parliament-enacted statutes
2. Parliament is to be regarded as sovereign legislative
2) Constitutional law is not different from other law
1. You cannot distinguish between constitutional law and ordinary law
2. You cannot therefore say a law is unconstitutional
Austin – A Positivist Conception of Law
Law – a rule laid down for the guidance of an intelligent being by an intelligent being having power
over him. Laws come in two forms:
1) Laws set by God to men
2) Laws set by men to men
The second is that which Austin terms positive law, or “the aggregate of the rules, established by
political superiors” over political inferiors (26).
This is distinct to what Austin terms positive morality, which are rules set and enforced by popular
Furthermore, laws or rules are a species of commands.
Command – to desire one to do, avoid or desist from some act, and is complimented with a threat to
inflict evil in the case of noncompliance with the desire
Sanction – the evil to be inflicted if a command is disobeyed.
Furthermore, the probability of incurring a sanction is “foreign to the matter in question.” For “where
there is the smallest chance of incurring the smallest evil, the expression of a wish amounts to a
command, and therefore, imposes a duty” (28).
Again, a command entails three components:
1) A wish/desire conceived by a rational being, that another rational being shall do/forbear
2) An evil to proceed from the commander, and inflicted upon the commanded, should the latter
3) An expression or intimation of the wish by words or other signs A command is also related to the concept of duty/obligation (that which results from a command)
and of sanction (the evil inflicted in cases of noncompliance of a command).
Only general commands are laws.
Laws also stem from political superiors to political inferiors.
Objects which are not commands, but may be included in the realm of jurisprudence:
1) Acts of legislatures to explain positive laws (declaratory laws)
2) Laws to repeal laws, and to release from existing duties (permissive laws)
3) Laws of imperfect obligations (laws banning X, but with no sanctions attached)
Objects that do not appear imperative, but actually are (and are therefore laws)
1) Law that merely create rights
“There are no laws merely creating rights.... Every law, really conferring a right, imposes expressly or
tacitly a relative duty.... Every law, really conferring a right, is, therefore, imperative.”
2) Customary law
Before they enter courts, they are simply part of positive morality. When they do enter courts and
appear in legal decisions of judges, they become tacit commands of the sovereign legislature.
Two requirements of sovereignty:
1) Bulk of society are in habitual submission to a determinate and common superior
2) Sovereign is not in a habit of obeying a determinate human superior Kelsen – The Dynamic Aspect of Law
Law – a system of norms that regulate the behaviour of men
The reason for the validity of a norm – the reason why the norm ought to be obeyed – cannot be a
fact. A descriptive statement cannot spawn a normative statement.
“Only a competent authority can create valid norms; and such competence can only be based on a
norm that authorizes the issuing of norms. The authority authorized to issue norms is subject to that
norm in the same manner as the individuals are subject to the norms issued by the authority” (15).
This process, therefore, “must end with a norm which, as the last and highest, is presupposed. It must
be presupposed because it cannot be 'posited'” (16). This is the “basic norm.”
Validity is ascertained not from content of law, but from its source; “any kind of content might be law.”
The basic norm is presupposed when the constitution-creating act is objectively interpreted as a
Principle of Legitimacy - “The norms of a legal order are valid until their validity is terminated
according to the rules of this legal order. By regulating its own creation and application, the legal order
determines the beginning and end of the validity of the legal norms.”
Principle of Effectiveness - “A constitution is 'effective' if the norms created in conformity with it are by
and large applied and obeyed.”
The principle of legitimacy is limited by the principle of effectiveness.
A legal system and a single legal norm can no longer be regarded as valid if it ceases to be effective.
Nor is the effectiveness of an order the reason for its validity. A legal order does not lose its validity
when a single norm loses its effectiveness.
Desuetude - “negative custom;” when a legal norm loses its validity when it is never obeyed or applied
(see effectiveness). Hart – A New Conception of Law
Austinian positivism fails in four ways:
1) Criminal statute is not a command because the criminal statute applies to those who enact it
The sovereign is not above the law, although the commander is usually not considered to be subject to
her own commands. Hence, this analogy is not representative.
2) Other forms of law—conferring legal power to adjudicate—cannot be orders backed by threats
3) Some laws are not brought into being by anything analogous to explicit prescription
4) Law as command cannot account for continuity of legislative authority
Root cause of failure: elements of command cannot yield the idea of a rule.
Two kinds of rules:
1) Basic/Primary rules – requirement to abstain from certain actions (impose duties)
2) Secondary rules – to create, modify, or extinguish primary rules (confers powers)
Idea of Obligation
“There is a difference, yet to be explained, between the assertion that someone was obliged to do
something and the assertion that he had an obligation to do it.”
“The first is often a statement about the beliefs and motives with which an action is done.... It seems
clear that we should not think of B as obliged to hand over the money if the threatened harm was,
according to common judgments, trivial in comparison with the disadvantage.... Nor ... if there were
no reasonable grounds for thinking that A could or would probably implement his threat of relatively
“The statement that a person was obliged to obey someone [to] a psychological one.” An obligation is
“Facts about beliefs and motives are not necessary for the truth of a statement that a person had an
obligation to do something.”
Hart charges Austin for re-stating this psychological aspect in terms of “chance” or “likelihood,” thus
making it more palatable by presenting the same concept in empirical/scientific terms.
However, this “obscures the fact that, where rules exist, deviations from them are not merely grounds
for a prediction that hostile reactions will follow or that a court will apply sanctions to those who
break them, but are also a reason or justification for such reaction and for applying the sanctions.” Second objection: “if it were true that the statement that a person had an obligation meant that he
was likely to suffer in the event of disobedience, it would be a contradiction to say that he had an
obligation, e.g. to report for military service but that, owing to the fact that he had escaped from the
jurisdiction, or had successfully bribed the police or the court, there was not the slightest chance of his
Social rules contribute to an understanding of 'obligation' in two ways:
1) “The existence of such rules, making certain types of behaviour a standard, is the normal, though
unstated, background or proper context for such a statement” (24)
2) “The distinctive function of such statement is to apply such a general rule to a particular person by
calling attention to the fact that his case falls under it” (24).
“Rules are conceived and spoken of as imposing obligations when the general demand for conformity
is insistent and the social pressure brought to bear upon those who deviate or threaten to deviate is
Two more characteristics:
1) “Rules supported by this serious pressure are thought important because they are believed to
be necessary to the maintenance of social life or some highly prized feature of it” (24)
2) “The conduct required by these rules may, while benefiting others, conflict with what the
person who owes the duty may wish to do. Hence obligations and duties are thought of as
characteristically involving sacrifice or renunciation” (25).
Caveat: “the fact that rules of obligation are generally supported by serious social pressure does not
entail that to have an obligation under the rules is to experience feelings of compulsion or pressure....
To feel obliged and to have an obligation are different” (25).
Ways of Viewing Rules
1) Internal – as members of the group subscribed to the rules
2) External – as observer who does not himself accept the rules
1. May refer to way in which group itself is concerned with rules
2. May objectively observe patterns of obedience and deviation
1. This person cannot account for the way members of the group view their own
The external view can only explain compliance in terms of cost-benefit analyses. They can explain
people who comply out of fear of unpleasant consequences; these people are 'obliged.' They cannot,
however, explain 'obligations.' “What the external point of view, which limits itself to the observable regularities of behaviour, cannot
reproduce is the way in which the rules function as rules in the lives of those who normally are the
majority of society.... For them the violation of a rule is not merely a basis for the prediction that a
hostile reaction will follow but a reason for hostility” II. Law and Morality
Hart – Positivism and the Separation of Law and Morals
There is a point of intersection between laws and morals, even if the positivists deny it.
Confusion between law and morality faced problems in two directions.
In the one is the anarchist, who says “this ought not be the law, therefore it is not, and I am able to
In the other is the reactionary, who says “this is the law, therefore it is what it ought to be.”
The danger in confusing law and morals is that, in one case, law and its authority may be dissolved in
individual opinion, and in the other, existing laws may supplant morality and thus escape criticism.
Bentham never denied that law and morally have been powerfully influencing the other. Nor did he
deny that legal systems might adopt moral principles, and vice versa.
However, it could not follow that a rule violated a moral standard that it was not a rule of law, and it
could not follow from the fact that a rule was desirable that it was rule of law.
Hart however notes that “an essental connection between law and morals emerges if we examine how
laws, the meanings of which are in dispute, are interpreted and applied in concrete cases.”
Hart notes that this is inadequate to capture the full notion of law; however, he points out that this
doctrine is distinct from the separation of law and morality, and that critics have often confused this.
Hart notes that the command theory identifies law with the gunman, and that the “legal order is
surely not to be thus simply identified with compulsion.”
It is also wrong to think of a body of changing membership (a legislature) as being habitually obeyed.
Why? Perhaps Hart is confusing office with person?
Constitutional law, including laws that specify what the legislature must do, are not commands
“They opened men's eyes to what actually goes on when courts decide cases.” If we are to communicate with each other at all, then we have to use words, ones that have standard
definitions yet still leave open for interpretation (i.e., “vehicle”).
“There must be a core of settled meaning, but there will be, as well, a penumbra of debatable cases in
which words are neither obviously applicable nor obviously ruled out.”
“Human invention and natural processes continually throw up such variants on the familiar.”
“In applying legal rules, someone must take the responsibility of deciding what words do or do not
cover some cases in hand with all the practical consequences involved in this decision.”
If a penumbra of uncertainty surround all legal rules, then judges cannot merely apply deductive logic
to find what particular cases fall under what general rules.
“The point must be not merely that a judicial decision to be rational must be made in the light of some
conception of what ought to be, but that the aims, the social policies and purposes to which judges
should appeal if their decisions are to be rational, are themselves to be considered as part of the law
in some suitably wide sense of 'law'.”
For Hart, judges “are only 'drawing out' of the rule what, if it is properly understood, is 'latent' within
Before, Radbruch held that resistance to law was a matter of personal conscience, and the validity of a
law could not be disproved by showing that the evil of compliance would be greater than
After, Radbruch held that the fundamental principles of humanitarian morality were part of the very
concept of legality, and that no positive statute could be valid if it contravened basic moral principles.
This means that everyone should denounce laws that transgressed moral principles, not because they
are wrong, but because they are not law.
However, Hart is critical of Radbruch's position. “If we adopt Radbruch's view ... we confuse one of the
most powerful, because it is the simplest, forms of moral criticism.” To say that a law is too evil to be
obeyed, everyone can understand. To say that a law is so evil that it is a law, is an assertion that many
do not believe.
Hence, Hart hedges on the side of clarity.
“A rule of law may be said to exist though enforced or obeyed in only a minority of cases, but this
could not be said of a legal system as a whole.” “If we attach to a legal system the minimum meaning that it must consist of general rules ... this
meaning connotes the principle of treating like cases alike.... This is justice in the administration of the
law, not justice of the law. So there is, in the very notion of law consisting of general rules, something
which prevents us from treating it as if morally it is utterly neutral. Radbruch – Five Minutes of Legal Philosophy
The positivist theory equates the law with power, there is law only where there is power.
Utilitarianism is too easily manipulated into despotism; who decides what benefit is?
Law is the will to justice, and justice means to judge without regard to the person, to treat everyone
according to the same standard. If laws consciously deny the will to justice, the people owe them no
There can be laws so unjust, that their very validity, indeed their very character as laws, must be
There are thus principles of law that are stronger than any statute. Fuller – The Problem of the Grudge Informer
Deputy 1 (Positivist)
Nothing can be done. The acts reported were unlawful according to the rules of the then-government.
The legal principles are what we now find morally repugnant, but they were the law.
Our government respects law; the Purple Shirts did not. “If we now seek to unscramble the acts of the
Purple Shirt regime, declaring this judgment invalid, that statute void, this sentence excessive, we shall
be doing exactly the thing we most condemn in them.”
A legal system presupposes that laws are known, or can be known, by those subject to them. This is
part of the very conception of legality and have nothing to do with political and economic ideologies.
During the Purple Shirt regime there was an interregnum in the rule of law. There was no law. All acts
were acts of war. “For us to condemn these acts as criminal would involve as much incongruity as if we
were to attempt to apply juristic conceptions to the struggle for existence that goes on in the jungle or
beneath the surface of the sea.” Thus, nothing can be done.
Much of normal life remained under the Purple Shirt regime. “It would invite an intolerable chaos if
we were to declare everything that happened under the Purple Shirts to be without legal basis.”
However, it would also be absurd to call the street murders lawful.
Therefore, we must discriminate. “Where the Purple Shirt philosophy intruded itself and perverted the
administration of justice from its normal aims and uses, there we must interfere.”
Thus, we must act against the grudge informer.
Deputy 4 (Hart)
This act of picking and choosing proposed by Deputy 3 is like Purple Shirtism itself. The solution
proposed is to pass retroactive law.
His proposal is supposed to cure arbitrariness of proposal 3, but it actually does no better. Solution:
leave it to vigilante justice. Fuller – Eight Ways to Fail to Make Law
1) Total absence of law; ad hoc decisions
2) Failure to publicize law
3) Retroactive legislation, which cannot guide action, and undercuts prospective laws by
subjecting them to the possibility of changing in the future
4) Failure to make law understandable
5) Contradictory laws
6) Commands requiring impossible conduct
7) Too frequent changes
8) Failure of congruence between rules as announced and their actual administration
In situations such as Nazi Germany, “there can be no simple principle by which to test the citizen's
obligation of fidelity to law, any more than there can be such a principle for testing his right to engage
in a general revolution.”
“Respect for constituted authority must not be confused with fidelity to law.” III. Paternalism
Joel Feinberg – Limits to the Free Expression of Opinion
What is the limit of liberal free expression?
Liberalism: state coercion is justified only to prevent personal or public harm
Case for Freedom: or, Mill's Thought
With a few exceptions, Mill concluded that suppressing expressions would almost always cause more
harm than the expressions themselves, and thus were almost never justified.
The harm of suppression is not only injurious to the coerced person, but also to the public in general.
If the opinion is true, then its suppression is clearly harmful to the public.
Moreover, there is always a chance that an opinion is true, so that suppression is always a risk.
Finally, that risk is always unreasonable, since the risk of the alternative is negligible. “There is very
little risk that the tolerated falsehood will become permanently enthroned.”
The more open to attack an opinion is, the more certain we may be of its truth. Think falsifiability tests
in the sciences.
To deny that it is possible for a given opinion to be true is to assume one's own infallibility.
Limits to Freedom
There are a few classes of actions in which freely speaking one's mind will cause more harm than
1) Defamation and Malicious Truths
Statements that damage a person's reputation by their expression to third parties.
Two kinds of defences against defamation:
Either the defendant, in virtue of her public office or relation to the plaintiff, has been granted
immunity for defamation (spoke in court; had prior consent), or had some kind of immunity
contingent on conduct (publication of book for criticism). II: Truth
Quite simply, what was said was true.
However, this defence is criticized by Feinberg (Reformed Prostitute Example). He writes, “it does not
follow from the fact that a person's reputation is consistent with the truth that it is 'deserved'.”
Thus, Feinberg concludes that the truth defence works when what is at stake is an overriding public
interest, but that it lacks plausibility when used to reveal flaws of a private kind.
“The harm principle would permit all harmless statements about others whether true or false ... but it
would impose liability for all defamatory false statements and all seriously defamatory true
statements except those that serve ... some beneficial social purpose.”
2) Invasions of Privacy
Statements that are neither defamatory nor false, but are of a very intimate and private kind.
However, this is defeated in a few cases:
I: Defendant gave prior consent
II: For (constitutionally guaranteed) freedom of press (for persons of legitimate public interest)
The second illustrates cases in which different interests clash, which Feinberg notes presents
philosophical challenges. “Interests differ not only in the extent to which they are thwarted, in their
importance or 'vitality,' and the degree to which they are backed up by other interests, but also in
their inherent moral quality.”
3) Causing Pain
Statements who cause those who listen to them to act violently (ex. causing panic; incitement to
crime or revolt).
However, they most be spoken/written with the intention of causing harm, or in conscious disregard of
a high risk of harm that would ensue.
Both require satisfaction of the 'clear and present danger' criterion.
This means that circumstances are important; it also means that a person may be punished for the risk
of harm that they create, even if no harm resulted.
4) Provoking Retaliatory Violence
Strict criteria to satisfy. Expressions must be highly provocative, in public, and to captive auditors.
Feinberg also notes that this totally excuses the written word, of which its reader could always stop. 5) Incitement to Crime or Insurrection
Anyone who counsels, commands, or encourages another to commit a crime. There must be serious
intent and possibility that the words have its desired effect.
Possible criticism: can one truly cause the voluntary action of another?
Feinberg says that 'cause' does not necessarily have to be mechanistic; one may manipulate
dispositions, give information, capitalize on studied policies, etc.
All above crimes require intentional harm or reckless conduct, and all require likelihood that the harm
will be produced by the words uttered/written in the circumstances.
Feinberg makes two observations:
1) Sedition laws are wholly unnecessary to avert the harm at which they aim
1. Feinberg says that criminal law of words and civil law of defamation covers all aspects of
2) If one must have sedition laws, they ought to be applied by the courts with the same standards
that govern other laws of provocation and incitement (intentionality/recklessness and
likelihood of causation)
Clear and Present Danger Test
The act in question must reach far enough toward accomplishment of desired result to amount to the
commencement of the consummation.
There is always private interest of the individual/group to have their opinions heard, and the public
interest in peace and order. However, there is also the public interest in discover and dissemination of
Thus, only national security could outweigh public interest in open discussion, but only to the degree
to which it is actually imperiled. Kristol – Pornography, Obscenity, and the Case for Censorship
We all believe that there is a limit to free expression; no one defends it absolutely.
Pornography's “whole purpose is to treat human beings obscenely, to deprive human beings of their
specifically human dimension.”
Susan Sontag: “What pornographic literature does is precisely to drive a wedge between one's
existence as a full human being and one's existence as a sexual being.”
“Man is an animal with a difference: he has a unique sense of privacy, and a unique capacity for shame
when this privacy is violated.”
Kristol compares pornography to obscenely observing the messy death of a public figure.
Though I should point out that the difference is that there is no consent in Kristol's example,
whereas there is ostensibly consent when one decides to model/act for pornographic material.
“When sex is a public spectacle, a human relationship has been debased into a mere animal
How is Kristol defining 'public'? There is a world of difference between fornicating on the
sidewalk and watching a porno in one's home.
Pornography is also sexist.
Kristol also draws upon 'republican virtue' to advocate for paternalistic measures to prevent people
from corrupting themselves.
On censorship, Kristol says “the tolerable margin for error is quite large, and single mistakes or single
injustices are not at all that im