The command version of legal positivism
The command version of legal positivism
It is perhaps best to first draw out the fundamental difference between natural law and command through legal positivism before analysing the way in which both schools of thought agree that political inferiors or subordinates are obliged to obey the laws their superiors set. Natural law is according to St Thomas Aquinas a-priori existing as all knowledge in the natural world. That is to say, that it is already pre-ordained within and throughout the world that people encounter. However, it requires a tool of reason so as to be able to interpret this law.
Furthermore, it then needs to be enshrined into social law so that everyone can pay testament to it. However, he also makes clear that the interpretation of this law is subject to human error as unlike God, humans do not have access to divine knowledge. Although natural law is the emphasis for human laws, some things can be derived from the laws of nature. Aquinas makes this clear in his writings based upon examples of the sciences and examples of the arts, when he states that, ‘Both modes of derivation are found in the human law.
But those things which are derived in the first way are contained in human law, not as emanating there from exclusively, but have some force from the natural law also. But those things which are derived in the second way have no other force than that of human law’ (Dimock, 2001, p. 17) Essentially, both forms are derived from natural law although one can be said to be a new law according to nature whilst the other is a law based upon the law of nature. The onus is therefore placed on the individual to interpret the laws of nature and to pass these on thus creating the mechanics of law within society.
The tool to be used for this interpretation and administration of natural law is ultimately reason. However, within the application of natural law a hierarchy is then set up. This means that it depends upon certain individuals, such as law makers, to keep and maintain the natural rights of man protected through the implementation of human law as it is informed via natural law. Furthermore, the way in which this human law is informed is through moral righteousness and is subject to the laws of nature itself.
However, observing that laws are different throughout different cultures and regions, Aquinas suggests that there is a distinction between human and natural law. Essentially, he makes clear that because man does not have access to natural law, he must seek it through reason and so human law is merely guided by the interpretation of natural law as according to the knowledge of that society. This is given in Aquinas’s statement that, The general principles of the natural law cannot be applied to all men in the same way on account of the great variety of human affairs; and hence arises the diversity of positive laws among various people.
’ (Dimock, 2001, p. 17) In this, also we see a rationale for the existence of positive law. However, this general definition is somewhat contrary to John Austin’s positivist law that suggests that law is a command or series of commands that operate in relation to sovereignty or sovereign power passed down through society. In this version of law in relation to society there is neither a natural right nor a social morality at work in the distribution of the law. Rather, it is the law itself that gives the individual their rights and customary norms that is separable from their idea of morality or anything that is particular or general.
Essentially, rather than being a law based upon reason or divine morality, it is a law based upon the norms of the commands themselves in relation to the sovereignty personified in the law makers and arbiters as they serve the state. In this, Austin states the differences between particular directives, general directives, customary norms and commands in that, ‘A law obliges generally the members of the given community, or a law obliges generally persons of a given class. A particular command obliges a single person or persons whom it determines individually. ’ (Dimock, 2001, p. 43)
However, noting the significance of customs and its coercive relationship with the individual and society he states that this is the forming factor in what may become a positive law. In this, he rejects morality as a guiding principle within positive law and makes the distinction between positive law and positive morality. However, showing the sovereign power that wills law into being a command, Austin states that, ‘The custom is transmitted into the positive law when it is adopted as such by the courts of justice and when the judicial decisions fashioned upon it are enforced by the power of the state.
’ (Dimock, 2001, p. 47) With this distinction between the two fundamental differences or perhaps distinctions between the ways in which law is given normatively, we draw our attention to the question of what each of these theorist means by saying that political inferiors or subordinates are obliged to obey the laws that their superiors set. The main reason why both of these theorists believed that that political inferiors or subordinates are obliged to obey the laws that their superiors set is because of the way in which they believe or assert that the law operates in relation to society.
Due to the distinctions that have been lain out by each theorist, this means that we can answer both questions separately so as to arrive at their seemingly similar view in relation to two seemingly opposing theories. For Aquinas, who believed that the law was a case of a natural law in all things bestowed by God, this relates to the presence of a hierarchy of mainly two groups. These groups are those with the moral inclination and reason to recognise and interpret the laws and the group that has the power and reason to set the law.
In Aquinas’s time, these two groups were essentially the religious and scientific who could interpret scripture and nature; and the kings and rulers who could set the laws for the people. However, this does not necessarily only relate to his own time. Rather, it can relate to the scientists or rationalists that could recognise some basic principles of physical law and moral freedom from which man could then be judged. Crucially, this means that human law is there to permit and restrict certain actions so as to protect the natural rights of other men whilst here on earth.
Furthermore, in more contemporary terms, this can be seen as those that create jurisprudence and distribute the law. This means that in a free state in which man lives, or the natural state into which man exists, the law has to protect the rights of others through the validation of natural law and moral truth. Therefore, as the peasant or layman living in society was not inclined to be aware of these two mechanisms, they were inferior and subordinate to a law.
However, both layman and law maker were also subject to the law and the superior is simply a representative of sovereignty and the pre-requisites of sovereign law. Essentially, they could not break this law or would be susceptible to the consequences of the punishments all the same. If they were not inferior to the law then they could abuse their rights and exploit the Free State into which man was given without even knowing they were doing so. However, what is also believed to be subject to this is man’s own nature. Aquinas says of this that,
‘There is in man an inclination to things that pertain to him more specifically, according to that nature which he has in common with other animals; and in virtue of this inclination, those things are said to belong to the natural law ‘’which nature has taught to all animals’’ such as sexual intercourse, education of off-spring and so forth. ’ (Dimock, 2001, p. 13) These basic laws are the principles of natural law that everyone instinctively responds to and that are inescapable. This somewhat primordial base of sorts and the determination that is given by such essential laws is the onus for man’s subjection to natural law.
However, as we have already stated, there are a degree of other laws and rules that could be deemed social and that have to be inscribed into human law on the basis of natural law. It is in this that moral imperatives and virtues become bound within law. Aquinas gives an account of these in another observation that, ‘There is in man an inclination to good according to the nature of his reason, which nature is proper to him: thus man has a natural inclination to know the truth about God and to live in society; and in this respect, whatever pertains to this inclination belongs to natural law’ (Dimock, 2001, p.
13) Essentially, as a reasonable being, man is subject to his reason, which is innately good and bound by the natural law. However, Aquinas suggests that man can become confused in the exacting of this due to a conflict of virtues. For example, through the intention of wanting to exact good, he could by accidental design create evil. Showing the infallibility of man and the inclination towards damage due to lack of knowledge of natural law, the notion of human law therefore has to be set and administered by the superiors of the society.
Contrastingly, John Austin subscribed to the notion of legal positivism rather than natural law. In this instance, it was not necessarily up to the group that inscribed the law or those who devised its rationale to protect man from man. Rather, it was the law itself that reigned over every man. Essentially, the law was a command directed by a political group representative of a sovereign state that was given to the subordinates of this group. This was essentially the separation between moral law and sovereign law.
Although moral law was significant, it was not what could be deemed positive law, which was the essence of a system of sovereign power to Austin. Essentially, Austin believed that these laws could be separated from other laws regarding morality and divinity so as to arrive at the system of law itself and what bound it and its power together. He was able to separate these laws on the basis of their distinction from laws that were given as particular to a person or as general in their practicality.
Such laws were deemed as being separate from positive law as they did not relate to the entire community as a pre-requisite for normative behaviours that could not be defied. However, although he separated these laws, he also included them as a form of normative behaviour within society. Highlighting the significant difference between the two forms of law, Austin stated that, ‘By many of the admirers of custodial laws they are thought to oblige legally independently of the sovereign state because the citizens or subjects have observed not kept them.
Agreeably to this opinion, they are not the creatures of the sovereign or state, although the sovereign or state may abolish them at pleasure. Agreeably to this opinion, they are positive in as much as they are enforced by the courts of justice: But, that notwithstanding, they exist as positive law by the spontaneous adoption of the governed and not by position or establishment on the part of political superiors. Consequently, customary laws, considered positive law, are not commands. And, consequently, customary laws, considered positive law, are not laws or rules properly called.
’ (Dimock, 2001, p. 47) From this perspective, it is something of a direct assertion made by the sovereign that acts in creating subjects of the law and making people subordinate to it. Essentially, their can be no compromise or redress from what Austin deems positive law and it is directed through the superiors in relation to greater sovereign law. Essentially, as the law passes on through the people, society and the communities, the notion of law becomes interwoven into the habits and consciousness of the people.
However, this is based upon the customary law, which is interwoven with positivist law. Essentially, unlike the epistemological assumption that knowledge is pre-ordained within the natural law and it is the duty of society to interpret this and reflect it into human law via superiors, Austin’s positivism incorporates a much different approach. Firstly, it states that positive law is entirely the doing of humans and is created in origin by them. Then it is instilled within the coercive power and authority of the sovereign maintained through the threat of punishment and resultant sanction.
Although the individuals of a society are subject to the law and through representation their superiors may personify this law, it is not they that they are subject to their superior’s whim. Rather, it is the law itself which has passed through the individual through means of symbolic representation that has made every person within a particular society subject to it. What this does is make the individual and all social experience objective. That is to say, that it is through the object that the law passes through as a vessel that constitutes the distribution and subsequent subjection to the law. This is given by Austin in his assertion that,
‘If I mark the peculiar source of a given law or if I mark the peculiar source of all laws of a given class, it is possible that I am saying something which may instruct the hearer. But to affirm of laws universally ‘’that they flow from superiors’’ or to affirm of laws universally ‘’that inferiors are bound to obey them’’ is the merest tautology and trifling. ’ (Dimock, 2001, p. 45) Therefore, what sets those that set the law apart from those that are subordinate to it is not necessarily the reason or power that they have, but what they come to symbolise, which is the punishment or consequences for breaking the law.
Essentially, these people of political influence are the people who represent the authority of the law. The nearer they are in presence to any individual in relation to the entire society, the greater the symbolic threat of the law. It is in this way that certain people are inferior and subordinate to the law that is set by their superiors. However, there is a rejection of Austin’s distinction between positive law and customary law within the school of positivist law itself. Essentially, Austin’s positive law is symbolised by the threat of sanction and the individual is therefore subject to the law, whereas customary law is not significant.
Criticism of this notion was given many years later by Hart, another legal positivist, who famously suggested that this notion was analogous to a ‘gunman’ backing up his presence with threats of violence (Dimock, 2001). That is to say, that the fact that the gunman is armed clearly indicates violence enough for the observer to become subject to the intentional threat. In this sense, Hart suggested that it was the symbolic threat of sanction or the symbolic threat of lawlessness that led to people becoming subject to the law.
Similarly, this meant that the law was not informed by customary or perhaps even certain morally derived norms, but that it was the law itself that created the customs that existed in society. Essentially, such symbolic threats of law were signified in the presence of the police force or the institutions of law that people would encounter. This coercive threat then made people way up the law in relation to their regular life and so the law was immersed within the everyday decision making of the people before becoming normalised.
Essentially, by having such decisions and therefore actions coerced by the law, the people would then feel the presence of law in the every action that they made. Essentially for Hart, if an act is desired, then it will be weighed up against the given consequences and punishments for exacting such an act. This makes the decision a crucial one to the choices and decisions of the people and makes what Austin called the customary law and positive morality a symbolic representation or perhaps even normalised reflection of the positive law. In either case, it is clearly part of the dynamic of positivist law for Hart.
The implications that natural law has on the normative conditions of valid law for Aquinas are that the law must be based upon a duality of principles. These are essentially the moral good and the reasoned laws interpreted from nature. The moral good can be seen in terms of one’s intentions, whereas the natural law can be seen in terms of observing and judging the consequences of one’s actions. Essentially, it is up to the law to keep man as a righteous and morally sound being via human law, which is in turn formulated by law makers from natural law.
Therefore, to uphold the law by making the people subordinate, the church and state must keep man reasonable through rejecting the influential vices that lead him to sin. Essentially, if the vices are not determined within law then the vices of man may lead to further vice in society through unintended action. It is essentially due to this that political inferiors or subordinates are obliged to obey the laws that their superiors set them. However, if human law or customary law is morally unsound then the person may go against this law.
Therefore, it is on the basis of natural law that the person must be judged highlighting the significance of natural law over human law. However, as the person may be acting out of moral righteousness, they could still be leading themselves into evil without ever being able to see this. Therefore, it is the role of the law maker to defer to the knowledge of natural law so as to make sure of the legitimacy of one’s actions. The implications that positive law has on the normative conditions of valid law for Austin is that the law must be upheld regardless of any individual’s circumstance.
Furthermore, it must be a command distributed on the basis of sovereign authority without any particular or general slant. This is primarily because the law is a construct that cannot be inferred in a contextual sense. It cannot be given to a particular person generally, nor can it be given to a general body of people particularly. If it is distributed as such, then it is not valid as positive law as it does not apply to the command of society. Essentially, as the individual is subject to positive law backed up by the sovereign, sanction and penalty must be enforced for any breach of law regardless of any moral discrepancy.
This means that it is distinct from customary law. However, Hart states that customary law is a dynamic of positive law that coercively informs everyone in the society of that law. As everyone has subsequent knowledge of the law, they cannot then go against the law unintentionally. Nevertheless, the sovereign is key in this normative condition of a valid law. If someone is to break the law then unlike Aquinas’s moral repeal, they are subject to the law and they cannot repeal it on the grounds of moral incorrectness. Works Cited: Dimock, S. , (2001) Classic Reading and Canadian Cases In The Philosophy Of Law Toronto: Prentice Hall.
University/College: University of Arkansas System
Type of paper: Thesis/Dissertation Chapter
Date: 9 November 2016
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