Prescriptive (expressing a wish by one person to another that the other behave in a certain way)

Transcription

1 PHIL 168: Philosophy of Law UCSD; Spring 2015 Professor David O. Brink Handout #1: Austin and the Command Theory Draft of In The Province of Jurisprudence Determined (1832) John Austin ( ) views the law as a body of commands issued by the state for the purpose of regulating conduct, violation of which is subject to punishment. Austin's theory develops and makes more accessible some related views of Austin's mentor, friend, and fellow Philosophical Radical Jeremy Bentham ( ). The Philosophical Radicals sought to design and reform legal and political institutions according to utilitarian principles. Appealing to "the greatest happiness of the greatest number" the Radicals sought to extend the franchise and challenge institutions of class and privilege. Bentham and Austin both defend a conception of law as a system of coercive social rules. On this conception, there is no necessary connection between law and morality. In this way, both challenged the natural law tradition exemplified by St. Thomas Aquinas ( ) and the English jurist William Blackstone ( ). THE COMMAND THEORY Austin identifies law with commands of the sovereign. He embeds the command theory in an elaborate taxonomy of law and related phenomena. Laws Descriptive (e.g. laws of nature) Prescriptive (expressing a wish by one person to another that the other behave in a certain way) Non-command Prescriptions (e.g. requests) Commands (= laws: prescriptions backed by threat of sanction for noncompliance) Divine Law (law set by God for humans) Positive Law (law set by humans for humans) Positive Morality (e.g. rules of conventional morality, honor codes, and etiquette; international law; modifications of positive law) Positive Law Proper (A command by sovereign to subjects, where a sovereign is defined in terms of asymmetric habits of obedience)

2 Austin wants to distinguish descriptive laws of nature from prescriptive laws that are issued by persons for persons. Not all prescriptions take the form of laws; prescriptive laws must contain a threat of sanction for noncompliance. But prescriptive laws include both God's commands (divine law) and human commands or positive law. Positive law contains both positive morality and positive law properly so- called. The science of jurisprudence concerns positive law properly so- called. The command theory employs two central concepts - - that of a command and that of a sovereign. Command: a command is the expression of a wish by one person to another that is backed up by the credible threat of sanction for noncompliance. Sovereign: x is a sovereign within a community iff (a) the bulk of the community is in the habit of obedience or submission to x, and (b) x is not in the habit of obedience to any person or group of persons in that community. These two concepts provide a key to the science of jurisprudence. THE COMMAND THEORY AND LEGAL POSITIVISM The Natural Law tradition asserts that there is an essential connection between law and morality, whereas Legal Positivism denies this. On one interpretation of the essential connection, natural lawyers insist that genuine laws must have adequate moral content, whereas legal positivists deny this. On this interpretation, natural law theory asserts and legal positivism denies that wicked law is no real law at all. Aquinas is the father of natural law theory and makes several claims about the essential connection between human law and morality in his Summa Theologica (II.i) Law is an ordinance of reason for the common good, promulgated by him who has care of the community (II.i.Q90). as Augustine says, that which is not just seems to be no law at all (II.i.Q95). If at any point it [human law] departs from the law of nature, it is no longer a law but a perversion of law (II.i.Q95). Blackstone was perhaps the most famous and influential British jurist of the eighteenth century, certainly prior to the appearance of the Philosophical Radicals. In his Commentaries on the Laws of England Blackstone is also a defender of Natural Law. This law of nature, being coeval with mankind and dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe in all countries, and at all times: no human laws are of any validity, if contrary to this, and such as them as are valid derive all their force, and all their authority, mediately or immediately, from this original [I.ii.41]. On this view, adequate moral content is a necessary condition of positive law. By contrast, Austin insists that the command theory supports Legal Positivism. A sovereign can issue morally acceptable or wicked commands: "The existence of the law is one thing, its merit or demerit another". CONCERNS ABOUT THE COMMAND THEORY Whereas the command theory fits absolute monarchies and criminal and tort law pretty well, Hart thinks Austin cannot do justice to the complexity of modern laws and legal systems. Hart has several worries about the command theory; even if Austin's theory can avoid incoherence, Hart thinks he achieves consistency and uniformity at the price of distortion. 1. POWER- CONFERRING RULES Whereas some laws regulate behavior by imposing duties, as in criminal or tort law, other kinds of law (parts of contract, probate, and family law) confer legal powers. Hart distinguishes between public and private power- conferring rules (PCRs), and contrasts both with commands (CL 27-33). Public PCRs confer 2

3 public powers by defining official positions, responsibilities, and prerogatives. Private PCRS confer private powers on private citizens, investing them with responsibilities and rights. Though public PCRs turn out to be more important to understanding Hart s own view of the law, it is easier to see his criticism of the command theory by thinking about private PCRs, such as a rule requiring that wills be notarized or requiring witnesses to a marriage. Hart s discussion of PCRs raises a number of interesting issues. Let s start with Hart s own version of what s distinctive about PCRs. (a) Hart suggests that PCRs have a different point and form from duty- imposing rules (DIRs). DIRs regulate and constrain conduct. By contrast, PCRs expand people s options and facilitate the accomplishment of their objectives. PCRs regulate conduct only in ways that are conditional on the person s objectives, whereas DIRs regulate conduct unconditionally. (b) Hart claims that PCRs do not use sanctions to ensure compliance. Rather, compliance is seen as desirable insofar as it s necessary to achieve one s legal objectives, such as distributing one s estate as one sees fit. Hart considers the possibility that one might view nullity as a sanction (CL: 34-35), but he points out that it functions very differently from the sort of sanctions applied to noncompliance with DIRs. In particular, whereas sanctions (e.g. fines and incarceration) are conceptually independent of the tort and criminal rules to which they are attached, nullity is not conceptually independent of PCRs - - it simply is the direct consequence of noncompliance with PCRs. I d like to discuss some issues about the apparent asymmetry of DIRs and PCRs in ways that go beyond what is explicit in Hart. One way to understand Hart's contrast between commands and DIRs, on the one hand, and PCRs, on the other hand, is to think of commands as expressing categorical demands. In circumstances C do x, regardless of your own interests or desires. By contrast, one might understand PCRs as expressing hypothetical demands. In circumstances C do x iff that will help you achieve your aim A. I think this fits Hart s remarks about their different form. We might also characterize their different functions by saying that whereas commands foreclose options, power- conferring rules create options (cf. CL 33). However, we might ask if this contrast holds up. Mightn't Austin deny the asymmetry by insisting that all laws, including commands and DIRS, be understood as hypothetical demands after all? In circumstances C do x iff you want to avoid the risk of punishment. Because conditionals can be represented as disjunctions, we might represent these conditionals as having disjunctive form. In circumstances C do x or risk punishment. As hypothetical demands, PCRs could also be represented disjunctively. In circumstances C do x or forego your aim A. This would allow us to represent both commands and PCRs as hypothetical demands. Does this mute Hart s contrast? Notice that with PCRs the condition is a carrot, whereas with commands the condition is a stick. Does this show that, at bottom, the two are fundamentally different? I suppose the friend of the command theory might deny even this residual asymmetry and treat nullity as a sanction (stick) (cf. CL 33-35). But, as Hart points out, with commands the sanction for noncompliance is conceptually independent of the rule enjoining conduct, whereas nullity is not conceptually independent of PCRs - - it simply is the direct consequence of noncompliance (CL 34-35). 3

4 These questions about whether commands can and should be represented as hypothetical demands are interesting and surprisingly difficult to answer. However, there is, I think, a more fundamental worry about representing commands in hypothetical form. If we represent commands of criminal or tort law as hypothetical demands that is equivalent to a disjunctive demand. This disjunctive view of legal demands is sometimes defended for civil law, especially contracts and torts, by those who see penalties as just part of the cost of doing business. But not everyone views contracts and torts this way, and even fewer are willing to understand criminal law disjunctively. For the disjunctive view of criminal law implies that the criminal who flouts the first disjunct satisfies the law's demand provided that he risks or perhaps suffers punishment. But that can't be right. Hasn't the criminal broken the rule, even if he suffers punishment? Indeed, isn't this why he suffers punishment (when he does)? But then the rule or command cannot be represented disjunctively or hypothetically. 2. SCOPE: LAWS THAT BIND THE SOVEREIGN Is the sovereign above the law? In democracies and constitutional monarchies the sovereign falls within the scope of the law (CL 42-44). Austin seems forced to claim that in such cases the law- makers are either (a) commanding themselves or (b) each is "really" two people: sovereign and citizen (CL 42-43). Hart treats (a) as absurd and focuses on (b). (b) itself is not problematic and is something Austin himself claims (Austin 86). However, Hart thinks that (b) is hard to reconcile with the command theory, because (b) requires sovereign- independent (public) power- conferring rules to define the limits of the sovereign s powers. 3. ORIGIN: LAWS NOT THE RESULT OF ENACTMENT Commands are discrete, dateable events. But customary law is not the result of explicit enactment (CL 44-45). Rather, customary laws have custom as their source, and custom evolves only gradually over time. Consider Dworkin s example of Riggs v. Palmer in which the court declares that an heir cannot inherit under an otherwise valid will if he murdered the testator because of the common law or customary principle that no one should profit from his own wrong. Austin thinks that courts recognize custom as law, because judicial enactments are tacit or oblique commands of the sovereign, insofar as the sovereign delegates authority to the judiciary, and custom becomes law when judicially recognized (Austin 86-88). But Hart thinks courts recognize custom as law, rather than making it into law; its status, as law, Hart thinks, presupposes (public) power- conferring rules (CL 45-47). 4. CONTINUITY OF AUTHORITY How can we explain the orderly transition of sovereign authority (e.g. from Rex I to Rex II) on the command theory? Rex II's first commands cannot count as law, because there is as yet no habit of obedience to Rex II that has been established (CL 51-61). Perhaps Rex II is initially a delegated sovereign, whose authority is delegated by Rex I, until the habit of obedience to Rex I fades and the habit of obedience to Rex II is established. Or perhaps sovereignty should be defined not in terms of habits of obedience, bur rather in terms of dispositions to obey. For then, it seems, the disposition is present as soon as Rex II sits on the throne (assuming, again, it s an orderly transition). 5. CONTINUITY OF LAW Here the problem is not with the smooth transfer of authority, but with the persistence of law after the sovereign who commanded it is gone (CL 61-66). Why are Rex I s laws that Rex II has not contravened still valid law even after Rex I is no longer sovereign? Might Austin appeal to standing laws? Can't he claim that x is a law if it was commanded by a sovereign and has not been subsequently contravened by a sovereign? A variant on this idea might be to claim that x is a law provided that it was commanded by a sovereign and has not been subsequently contravened by a sovereign. 4

5 6. SANCTIONLESS LAW Are sanctions part of the very concept of law, such that we couldn't imagine a legal system that did not regularly apply or threaten sanctions for noncompliance or individual laws that did not include sanctions? Law is usually necessary in what are sometimes called the circumstances of justice conditions of approximate equality of strength and intelligence, moderate scarcity, and limited altruism. In such circumstances, the general observance of familiar norms of cooperation, fidelity, and non- aggression is mutually advantageous, but laws and the threat of sanctions for noncompliance are typically necessary to ensure widespread compliance. Would sanctions be necessary if we were to transcend the circumstances of justice, say, by transcending scarcity? In his discussion of (private) power- conferring rules, Hart discusses the possibility of treating nullity as a sanction for noncompliance with such rules. He is skeptical, but also points out that this sanction would be inseparable from the rule, which contrasts with the separability of sanction and rule in the case of the behavioral norms of criminal and tort law (CL 34-35). With these laws, we can separate the rule the behavioral norm and the sanction for noncompliance. But then it looks like you could have the former without the latter. That already demonstrates the possibility of sanctionless laws. But it seems they are not only possible but also actual. Where there is prosecutorial immunity, say for foreign dignitaries or ambassadors, it seems that there are still behavioral norms but no provision for sanction. 5