Final.docx

A compilation of H.L.A. Hart’s papers in Making of the Concept of Law

Compiled By: Jennifer Williams -Hart

Submitted by: Stephanie Wynchell Co 2016-89824 2F Legal Theory

Today I found the desk of my husband to be very untidy as he seems to be working on a new project. He has scattered many of these papers on the floor as it seems that he has discarded some of these drafts as I am told. I decided to keep some of these chapters for in the future it might serve a more valuable artifact that someday the future generations may appreciate. – Jennifer Williams-Hart

Chapter 1 – Persistent Questions I.

Perplexities of Legal Theory

“What is Law?” This question, is among the questions that have been persistently asked in human society. We readily provide answers to such only to realize we are giving examples containing facts and statements of law and not “defining” what it really is. The perplexity has been contributed by factors such as various jurisprudence of the courts involving the same laws without resulting in one uniform solution and answer. The existence of questionable and challengeable cases, though not the root cause of the perplexities, have indeed contributed to the sterile controversies as to the general nature of law. There are other more pressing causes as to the perplexity which is evident in the existence of absence of uniformity. For example, that there is certainly no centrally organized system of sanctions that can bind the various states under one international court. There is an absence of a primary legislature that exists to bind everyone else. It is the existence of such deviations that continue to perplex the ordinary man and leaves him in the dark as to what the general nature of law really is. This situation is not paralleled in any other academic discipline. Moreover, there is an added confusion to the minds of an ordinary person wherein the deviations of degree and the element completeness come into play. The degree exists to perplex since it is one of society’s norms to classify and separate one term from the other. Apparently, it is only a matter of degree that differentiates between the clear, standard case and a questionable one. The confusion that exists in the mind of man also has its origins when a term does not entirely forbid the extension to cases wherein only some of the elements are present which would always be open for argument as to whether the lack of element completeness should allow such extensions. Nevertheless, it begs the question, despite the invaluable contributions of countless thinkers who possess credible expertise in the field of law, the question persists: what more do they want to know and why do they want to know? Three recurrent issues which together are responsible for the persistence of the question, “What is the essence of law?” II.

Three Recurrent Issues

There are three (3) recurrent issues or themes that are a constant focus of argument and counterargument about the nature of law. (1) How does law differ from and how is it related to orders backed by threats? (2) How does legal obligation differ from, and how is it related to moral obligation? (3) What are rules and to what extent is law an affair of rules? Regarding the first issue, the most prominent general feature of law at all times and places is that it makes certain kinds of human conduct no longer optional but in obligatory. An example is when a gunman orders a person to hand over his belongings and has no other choice but to comply. For some like Austin, an order backed by threats holds the key to understanding the essence of law. Similarly, penal statutes are often construed to operate in a like manner. The second issue is the conception that closely identifies law with morality since moral rules and law have certain similarities not only in the words used but also in prohibitions. However, this poses a risk of confusing the distinction between the two despite the existence of distinctions in their respective

subject-matter. As to the third, generally, the legal system is composed of rules. That those who have understood law in the notion of orders backed by threats and in its relation to morality or justice, speak of law as containing largely of rules. It is difficult to determine what rules really are and what does it means to say that a rule exists since there exists different types of rules. For example, there are rules of etiquette and of language, rules of games and sports. There are rules that mandate a certain course of action and there are those that merely prescribe procedures, formalities, and conditions. Rules have different origins and may also possess different relationships to the certain conduct in which they are concerned. III.

Definition

Definition means “primarily a matter of drawing lines or distinguishing between one kind of thing and another, which language marks off by a separate word. Aside from a sharpened awareness of words, definition presents a guide to determine what the word refers to. Once we learn the definition of things, we sharpen our ability of perception of reality. However, a definition presupposes a wider concept of things which makes it difficult to apply to the case of law since it is almost impossible to pinpoint the exact category it belongs to. Law belongs to the class of rules of behavior, yet, it still doesn’t solve the perplexity as to its precise definition. Another difficulty is the existence of borderline cases which presents to us that usage of terms are in a sense ‘open’ in that they do not prohibit extension to more novel usages, as in the case of law. Even if we are presented with the other form of definition, none of the three recurrent issues were able to give a satisfactory definition of what law is. We revert to the very question: ‘What is of law?’ Chapter 2 – Laws, Commands and Orders I.

Varieties and Imperative

Although Austin believes that law is essentially in the nature of commands and habits, that may not necessary be the case. There are statements that we have made in accordance to the various interactions we have as other that conveys our wish regarding the conduct and habits of others. Imperative statements in its most appropriate form carries a certain sense of urgency or a hint of sanction in case of non-compliance unlike a mere plea or request. An order “don’t do that” or “go home!” does not suggest that this is a kind request like “pass that please.” In an example were a armed man orders a bank clerk to give him the money, the imperative statement takes the form of a coercive order backed with threats of consequences in the instance of refusal. Regardless, it is still misleading to think a command is necessarily accompanied by threats of harm such like a coercive order would imply. The command establishes within itself that there is an existence of a stable hierarchy and what should be considered is that so-called commands do not always carry with it the latent threat of harm in cases of disobedience. The purpose of such command is to be able to exercise a level of authority over men and threats of harm are merely incidental to such commands with the aim of promoting respect over such authority.

II.

Laws as Coercive Orders

Although laws and coercive orders share similar points, they both function differently at other aspects: (1) the law dually functions in a general sense in which it prescribes a general conduct to a general populace wherein the range of persons affected vary depending on the law and the legal system it exists in. As Austin argues that laws are also addressed to someone similar to how a person personally addresses another, yet, it is to be argued that laws rarely direct the people in a similar face-to-face meeting. The law does not function in the similar manner wherein the armed man personally threatens the clerk and as such it is a must for laws to be published in order for those it has been addressed to comply with its requirements. Another distinction (2) the armed man cannot give orders unlike the law for the former merely uses his immediate but temporary superiority over the bank clerk. In comparison to this short-term ascendancy, the law contains a more lasting characteristic. Chapter 3 – Varieties of Laws I.

Content of Laws

We find merit in the analogy between criminal law along with its sanctions and the coercive orders backed by threats “rules which determine what types of conduct constitute actionable wrongs are spoken of as imposing on persons, irrespective of their wishes, 'duties' to abstain from such conduct.” Here we see how criminal statutes, and even torts, and coercive orders converge. Not all laws perform a coercive function as rules as to the validity of contracts or wills or marriages operate differently from a punitive measure. These examples confer legal powers upon individuals through creating structures of rights and duties in order to establish juridical relations within the coercive framework of the law. Rules that confer legal powers can be distinguished into different classes: (1) rules to relating to capacity of the person (2) the manner and form of the exercise of the power (3) rules delimiting the variety (4) structures of rights and duties, among others. Rules like those governing the courts can be specified in regard to the subject and content within the judge’s jurisdiction as well as the manner of his appointment, qualifications, canons of proper judicial conduct operates not as a deterrent to bad behavior serves as a definition for the conditions and limits under which the court’s decisions shall be valid. Rules conferring jurisdiction upon courts does not seemly fit in the coercive model of laws. For example, a court decision is rendered null whenever a judge commits grave abuse of his discretion for it is not what he says is wrong but how he said it. Similar to the rules governing the jurisdiction of a court, rules governing legislative powers fail to assimilate in the coercive model although having the same effect of nullity when there is failure to conform. Such power-conferring rules differ from those that define the powers of the legislative body and the manner of the exercise of legislative power and the qualifications in order to become a member of the legislative branch. The Austinian analysis of law fails to consider that there are rules that merely confer legal powers besides that of penal laws

II.

Range of Application

According to Austin, laws are orders that are backed by threats which serves as an expression for the one’s will to require someone to do or not to do something. Such is not always the case since monarch’s rules may not bind him in contrast to how a legislator is bound by the laws they make in their capacity as a citizen of the state. Laws are better understood in terms of promises and not as orders backed by threats since in a promise, a person bind themselves with an obligation and confer rights to others. Instead of being ordered to do or refrain from acting a particular conduct, one personally and willingly binds himself with the obligation he binds himself to. III.

Modes of Origin

The enactment of laws traces back to a deliberate dateable act of the legislator, who, also a citizen, is conscious of his duty to legislate. most of positive laws originate from custom and although it can be argues that customs do not form part of law as such is usually requires “recognition.” As such, we have the status quo where customs exist even without legal status alongside the law for a mere deviance from custom cannot be simply called a breach of a law. Generally, customs are regarded as secondary to law due to the power of the legislature to grant or deny a custom the legal recognition. On contrary, an example of a sergeant who orders his men to do certain things and such order has been approved by his superior, who provides no interference, indicates his tacit approval. Similarly, whenever the courts apply pre-existing custom in their judgments, these rules are conferred legal recognition. Whenever the sovereign interferes, he has impliedly ordered his subjects to comply with such stemming from an pre-existing custom. A common feature of legal systems is that customs require legal recognition. Once again, we are confronted with the idea that customs can be law once it has been recognized by a certain legal system. Chapter 4 – Sovereign and Subject I.

Habit of Obedience and Continuity of Law

An order backed by threats which presupposes the existence of an authority creating such rules to follow. That in every human society in which laws exist, there is ultimately to be found latent beneath the variety of political forms, in a democracy as much as an absolute monarchy, this a simple vertical relationship wherein subjects render habitual obedience and a sovereign who renders habitual obedience to no one. This leads to an understanding that such elements are essential to the formation and existence of a single independent state. There are 2 points of concern the first being that the idea of obedience under which there exists 2 salient features of most legal systems: the continuity of the authority to make law possessed by the succession of different legislators and the persistence of laws long after their maker and those who rendered habitual obedience to him have already perished. The idea of obedience seems to connate a common misunderstanding that it suggests deference to authority and not merely compliance backed by orders and threats. To illustrate, in the example of a ruler, Rex I, who creates laws and punishes to those who stray away from the norm. He mentions that such can hardly be called a habit though even if initially the obedience to his laws

are not really a habit, they can eventually turn into one by the repeated behavior of the people. That over time, those who have generally obeyed his rules are more likely to do so. As long as they follow the laws executed by Rex I, no one in the community would see the need to reflect on whether or not their obedience is proper. The constraint arises when Rex I has a successor, Rex II. There is a possibility that the people would not readily comply with his rules since there is essentially no established habit to follow him. Only after a period of time elapsed shall we see whether or not there is habitual obedience to his legislations. However, up until that habituality can be observed in the people, their seems to be an interregnum and as such goes against one of the salient features of a legal system - continuity of the authority to make law possessed by the succession of different legislators, hence no law can be deemed to be made. This is why the habitual obedience of law may seem to have failed because they people. As succession cannot merely confer any right upon the heir the authority to rule and the certainty that the people will indeed follow his orders. He also discusses three salient differences between rules and social habits. First, a habit is behavior that converges. However, deviance will not lead to criticism from society. Whereas. In rules, deviations are met with criticism/punishments and there will be pressure to conform. Second, if a standard is not met, there will be criticism and demand for compliance, which will be considered legitimate in cases of rules, as it is deemed reasonable to be executed. In a sense, it can be correlated to the legality of a police power or any law in general when it is deemed reasonable to be enacted for the people. This is not the case in habits where there isn’t a need for a legitimate reason for the establishment of a social habit. The 3rd distinction is one that has more often than not been disregarded or misinterpreted in jurisprudence. Under habitual obedience this internal aspect is lost as people confer to laws only for the external element of law. They only follow what is physically observable. For a social rule to exist people must look at it internally (contemplate) and have its acceptance. Those who are aware of the game of chess and its rules have a ‘critical reflective attitude’ that manifests - an internal point of view towards rule following. When there has been an acceptance of such rules then the ruler has been deemed to have an authority to create the said rule and that the people would have deemed that such is a legitimate rule to follow and will have accepted the right to obey the said rules. In a sense people are more likely to obey when they see that there is a reasonable and legitimate reason to obey the demands of the sovereign. II.

Persistence of Law

According to Hobbes, Austin and Bentham, laws persist due to the sovereign’s tacit acceptance of their existence who has the inherent power to repeal them. Which also include that habitual obedience is integral in the persistence of law. Laws established by previous sovereigns do not need the courts to apply them for it to attain the status of law akin to customs. An example, wherein the laws of Rex I, is obeyed by Rex II since there is a tacit approval of the old law by the latter. Even though Rex II could change the old laws he does not do so for the sake of familiarity and continuity. For Austin, the requirement of habitual obedience is being rendered towards an institution and not a monarch, who is an individual. The sovereign is someone who is obeyed by all; but himself obeys no one.

III.

Legal Limitations of Legislative Power

A fundamental feature of the sovereign is its unlimited law-making power which means the sovereign habitually obeys no one and his legislative power is limitless in legal terms. The sovereign then can have unlimited powers in the legal sense yet he may still be morally bound. Limited the sovereign may be, it can make any law should it on its own discretion. The point that bears stressing, however, is the claim that there should be a sovereign in every legal system. The theory has two benefits: it is identifiable what the laws are in any given society and whether any legal system is a subordinate or independent one. An objection to this theory, inviting as it may be, is that laws may exist independently of a sovereign. A situation is a written constitution which defines and limits the lawmaking power of the legislature. We cannot simply deny the status of law of any other law which is in accordance to these legal limitations It is even coherent to say that Rex obeys no one habitually despite the existence of restrictions as he merely fulfills the conditions laid out for legislation. IV.

Sovereign Behind the Legislature

There are many modern legal systems that possess legal limitations in terms of their law-making powers such as the separation of powers which is inherent in most legal systems exist to prevent the infringement of constitutionally-protected rights in legislation. Laws that violate the constitution are rendered devoid of legal efficacy, however, there are still existing legislations that remain beyond the reach of judicial scrutiny. According to Austin, the electorates and not their elected candidate form part of the sovereign which serves as an incorrect notion of habitual obedience which cannot be translated in present legal systems. The view of Austin may be possible in in simple legal systems but are inaccurate to use in complex modern legal systems. A sovereign cannot be, in simple terms, merely equated to the electorate who renders habitual obedience to none. Chapter 5 – Law as the Union of Primary and Secondary Norms I.

Fresh Start

The simple model of law as the sovereign's coercive orders failed to reproduce some of the salient features of a legal system. There are familiar features of municipal law in a modern state and by showing that these were either distorted or altogether unrepresented within such simple theory. In my perspective, here are the reasons why the model of law as coercive orders fails to reproduce the salient features of a legal system: (1) Coercive orders are applicable to most criminal statutes. Although, they differ in that a criminal statute also affects the law maker in his capacity as a citizen. (2) Coercive orders to not consider other varieties of law such as those that confer powers. (3) There exists other laws that do not have same origins. (4) The continuity of legislative authority in the modern legal system and the sovereign cold not be identified with either electorate or legislature of a modern state has not been considered in a sovereign which is merely habitually obeyed.

There exist 2 types of rules: Primary and secondary (which makes sense the many complexities which are unsolved in the theories of law) Primary impose duties

Secondary confer powers, public or private

concern actions involving physical movement provide for operations which lead not merely or changes; to physical movement or change, but to the creation or variation of duties or obligations Has a similarity to coercive orders in a way that More of power conferring rules which either it it orders people to do or not to do a certain alters or extinguishes already existing ones conduct. II.

Idea of Obligation

I agree with Austin, that laws can make human conduct obligatory and non-optional, yet I do believe that there is a difference between “having obligation to do something” to that of “being obliged”. “Being obliged to do something” requires beliefs and motives in which an action is done and is a psychological state dependent upon external circumstances. Whereas “having an obligation or being under duty”, does not require psychological conditions, beliefs and motives of what is right or wrong. Rather, it cannot be distorted by external circumstances as an obligation would exist as a norm independent of the validity of facts. Austin understands “obligatoriness” in terms of chance or likelihood that the doer would be punished by others but this merely makes obligations as psychological and not binding. Obligation becomes a mere prediction of recurring evil in cases of non-compliance and disobedience. I reject Austin’s interpretations for various reasons. Primarily, Austin fails to consider that the deviation or non-conformity of the rules is the reason why sanctions are implemented and not the other way around wherein one considers or predicts the sanction and does what is ordered of him. Sanctions serve as a motivation to prevent violations of the law and the law is not broken because of the people’s fear of the sanctions. One must analyze the internal aspects of the rules which people apply to themselves. To understand the general view of an obligation, one must consider the social rules that create such. An obligation implies the existence of a rule but the existence of rules does not imply the existence of obligations. Proper manners and etiquette are such examples of rules that no one is obligated to follow. It boils down to the strength of the demand for conformity as an important factor in determining the existence of a rule as well as the social pressure to bear brought upon those who deviate or threaten to deviate from the so-called “norm”. Social pressure may take the form of (a) physical sanctions (b) general diffused hostile or critical reactions short of physical sanctions (c) verbal manifestations of disapproval (d) appeals to the individuals' respect for the rule violated or (e) operation of feelings of shame, remorse, and guilt. When the pressure is of the last-mentioned kind, we may be inclined to classify the rules are part of the morality of the social group and the obligation under the rules as moral obligation. Whereas, when physical sanctions

are prominent or usual among the forms of pressure, we shall be inclined to classify the rules as a primitive and rudimentary form of law. Rules that are supported by sufficient social pressure are essential as they are necessary for the maintenance of social life and balance. Rules against the infliction of violence ensure that people do not cause physical harm on one another. Breaking rules may benefit an individual but can be detrimental to society. At the same time, rules also exist for promises or agreements to be kept. In the same sense wherein one party promises to fulfill something independent of his wishes but is essentially beneficial to the party to whom the promise is made. Overall, we must not fail to realize the differences between being obliged and having an obligation, even if they have similar characteristics, in that the latter requires originates from the demand of conformity. To further elaborate on this chapter, there exists another set of concepts: the internal and external points of view. An ordinary observer shall perceive a set of rules in accordance to observable regularities of conduct, probabilities and signs of a group and not the way or how the members of such group look at their own behavior. To the former, non-conformity from the norm indicates a subsequent hostile action and nothing more of that, however, what is essential is the acquisition of an internal point of view and a critical reflective attitude. A critical reflective attitude considers certain patterns of behavior as common standard, and any deviation from it is met with criticism, demands for conformity, and acknowledgment that such criticism is justified. III.

Elements of law

In primitive societies, it is possible that they are ruled entirely by custom. These communities live by primary rules alone and those who wish to violate such must by a minority. For it to function properly, the rules must be accepted by the majority as the first condition. The second is that the members of the community are known to each other or live within a close proximity. Applying the primary rules in a larger society, such as the modern legal system, will pose quite several problems: (1) uncertainty in identifying what the rules are and to what extent its application would entail (2) primary rules are unresponsive to more complex and changing circumstances (3) it is inefficient in redressing violations due to the absence of central authority imposing sanctions. Unorganized impositions of rules and sanctions would nurture chaos. The remedy to such problems is the application of secondary rules. Rules about the primary rules that give way for alteration and modification. (1) Rules of recognition, the remedy of uncertainty in primary rules, in a simple society it is the acknowledgment of reference to the writing as authoritative not the codification of rules that is the crucial step from a pre-legal to legal scenario. Therefore, the rule of recognition is a one for conclusive identification of the primary rules of obligation. The rule of recognition gives rise to the unification of rules. (2) Rules of change, the remedy of staticity in primary rules, which enable the people to enact new rules and to repeal outdated ones through legislative enactment. (3) rules of adjudication, the remedy of inefficiency confers on certain individuals the authority to arbitrate and judge. It is the unification of the primary rules of obligation with the secondary rules of recognition, change and adjudication which is the center of a functioning modern legal system Chapter 6 – Foundations of a Legal System

I.

Rule on recognition ad legal validity

The theory of law as orders backed by threats fails to account for some of the salient features of a modern municipal legal system, yet it contains certain truths about certain important aspects of law. These truths can be understood in terms of the complex social situation where a secondary rule of recognition is accepted and used for the identification of primary rules of obligation. It is this situation which deserves to be called the foundations of the legal system. In other words, the very foundation of the legal system rests on the secondary rules of recognition and is used in identifying the primary rules of obligation. The rule of recognition becomes necessary in the inquiry of whether a rule has become a part of the legal system. Both private persons and officials are provided with the authoritative criteria for identifying the primary rules of recognition whenever such a rule of recognition is accepted. The criteria take a variety of forms: (1) authoritative text (2) legislative enactment (3) customs (4) general declarations of specified persons (5) precedents. There exists a difference in an old and simple legal system compared to a complex and modern legal system in that the simple legal system, such as those of Rex I, the only available determination as to whether the rule forms part of the legal system is that of Rex I enactment. The manifestation of the simple form of the legal system can be seen in (a) general practice or (b) the part of officials and private persons. Whereas, in the modern legal system, which contains various sources of law, the criteria for identifying the rule as part of the legal system are multiple: (a) written constitution (b) enactment by legislature (c) judicial precedents. In cases of conflict, the sources already been ranked, with the written constitution being superior in relation to the laws which the latter then become superior in relation to precedents. Despite being sources of law, customs and judicial precedents remain inferior to the enactment of legislation as the former may lose its efficacy through the enactment of a statute. In addition, both of which are also considered subordinate to the written constitution. The acceptance of the rule of recognition grants them an independent but rather inferior existence. In a similar way, the common law is considered as subordinate to a statute. Rules of recognition are generally not expressed as a rule, although existing, are not stated in expressed terms. However, its existence has been manifested in such a way that rules have been identified either by the courts, through their officials or by private persons, through their advisors. Once a court makes use of an unstated rule of recognition to identify a rule of the system, it is done in an internal point of view. Although similarly alike, the concepts of validity and efficacy are considerably different concepts. The legal validity means passing all the test and satisfying all the criteria provided by the rule of recognition. While legal efficacy meant that a rule of law which requires certain behavior is more likely to be obeyed than not. The only connection that may be established is when the rule of recognition provides that a rule if it is to count as a rule of the legal system must not cease to be efficacious. There also exists a difference between the supreme criterion and the ultimate rule of recognition. The former is part of the rule of recognition and is the part which dominates over the rest. This is

embodied in the parliament enacting statutes. If conflict ensues, statute prevails over both common law or custom. The ultimate rule of recognition is the rule of recognition itself, being the last step and none can be inferred from it further. There are some writers who have emphasized the legal ultimacy of the rule of recognition by saying that whereas the legal validity of other rules of the system can be demonstrated by reference to it, its own validity cannot be demonstrated but is assumed or postulated or is a hypothesis. This idea is simply misleading for the ultimate rule of recognition is neither valid or invalid but simply accepting as it is. Similarly, there is also a difference between assuming validity and presupposing evidence. The rules have been obscured without considering such crucial differentiation. The existence of the rule of recognition is merely a matter of empirical fact and not a normative statement. II.

New Questions

Newer questions arise after setting aside the theory of law as a habit of obedience to a legally unlimited sovereign and substitute for this the theory of the rule of recognition for conventional categories no longer apply and the correct conceptions must be provided. First, the question regarding classification for it is still unclear which rules are considered law (which conventions, usage, etc.) This difficulty arose because the rule which is used to identify the law escapes the conventional categories used for describing a legal system. The second question arises when we consider the idea that a legal system may be said to exist in a country or a social group. Vagueness arises for laws are only obeyed up to a certain degree. Rules of recognition are not always perfect since our legal standards are so often indeterminate to the extent that the legal systems exist become indeterminate. III.

Pathology of the Legal System

The evidence for the existence of a legal system must therefore be drawn from 2 different sectors of social life: the officials and the citizens. The officials and the private citizens must both share a unified acceptance of the rules of recognition, where these 2 sectors are in congruence with their respective concerns for the law, through the mutual understanding of the internal points of view towards the rules of recognition which are obeyed by both the officials and private citizens. For where the rules are valid at the official level are generally obeyed, no problem shall arise since harmony exists in a shared internal point of view. However, in reality, the official sectors may detach themselves from the members of the private sectors to the point that there is no general obedience to the rules. These detachments are coined as the pathology of the legal systems. Revolutions, where the rival claims to govern are made from within the group and although this will usually involve the breach of laws of the existing system, it may entail the legally unauthorized substitution of a new set of individuals as officials and not a new substitution of a new constitution or a legal system. Another pathology manifested in enemy occupation, where a rival claim to govern without authority under the existing legal system comes from without and in a simple breakdown of ordered legal control in the face of anarchy or banditry without political apprehensions to govern. Lastly, where unity among officials disintegrates due to disagreement over some constitutional issues, this could result to the breakdown of the legal system.

“nothing can eliminate the duality of a core of certainty and a penumbra of doubt when we are engaged in bringing particular situations under general rules. This imparts to all rules a fringe of vagueness or 'open texture', and this may affect the rule of recognition specifying the ultimate criteria used in the identification of the law as much as a particular statute.” Chapter 7 – Formalism and Rule-skepticism I.

The Open Texture of Law

General rules, standards and principles are the primary instruments in social control and not the particular directions given to each individual separately. The law must mainly, not exclusively, refer to the classes of person, and to classes of acts, things and circumstances being general to be diffused in the many areas of human social life. Legislation and precedents are two key devices in the communication of such general standards of conduct to society. Legislation makes a maximal and precedents makes a minimal use of general classifying words. An example of precedent may arise from a father instructing his son to take his hat off before going in church as the proper conduct to behave subsequently, another man enters with his head bared may set a precedent of rules for the buy. However, there is still doubt on how much should be imitated by the child and as to the manner and the execution of the said conduct. In the present example, the boy is merely guided by common sense or general knowledge imbued upon him by his father. On contraire, legislation is more express and determinable for the rule to obeyed is clearly given and the person merely need to conform his conduct to such when his circumstances call for it. Generally, useful precedent or legislation may be used for the communication of the general standard, however, they are inadequate in areas of. These are described as open texture. One must be cautious against adopting such notion that the meaning is settled in advance for “we are men, not gods.” There exists an option made available to every person in applying the law. This poses a predicament for every legislator for the statute to apply as general as possible despite the ignorance of the fact and the range of its application. Currently, there is a high probability that the men do not possess sufficient knowledge of the applicability of every single rule. Once a general rule of conduct is created, there exists a clear-case, a paradigm which identifies when to apply the rule. Formalism/conceptualism in the legal system degrades the importance of selection in the application of rules which is done by defining the meaning of the rule. The rigidity of the rules may lead to its own contradiction in its very application. Moreover, the difficulty lies in balancing the necessity for having clear rules which may be applied in ordinary circumstances without the need for the intervention of officials and the need for indeterminacy to accommodate open texture cases that left to the ability and expertise of the officials. It must be recognized that not every circumstance contains difficult open texture cases since it varies from different instances. It is not unfathomable that legislature could not think of every possible case. The remedy: the legislature provides for general standards and rules which are more adept to respond to situations of the administrative bodies. There are some instances wherein it is left to individuals to figure out the meaning of the legal term by implementing their common sense and general knowledge. When laws require individuals to exercise care in their day-to-day activities, the legislature in turn has lessens the burden on itself which allows it to proceed in enacting clear and special rules which can anticipate instances which are rarely open texture. The aim of securing the safety of people

against harm remains indeterminate and it is often supplemented by the general rules with rules of exception. In precedents, there is no single method for the determining the rule for which a precedent is authority. There is no clear and authoritative formulation of any rule unearthed from the cases. Moreover, as authoritative a rule may be, such is still subject to the scrutiny of the courts even in ruling on a much later case. The courts still possess the authority to overturn its judgement regarding the rule or even alter its scope. The open texture of rules highlights the importance of having the courts and the officials exercise their discretion in determining the ruling in each case. Such is similar to the legislature conferring certain powers to administrative bodies to create rules for regulation. Necessarily, both officials and private individuals partake an important role in the application of rules. II.

Varieties of Rule-skepticism

The aforementioned considerations often lead to rule-skepticism since there are those that believe that rules do not exist. For accordingly, real law is the court’s decision and the predictions of such decisions. This deserves criticism as this assertion is as incoherent as the existence of courts presuppose rules conferring jurisdiction on them. This skepticism also fails to consider the internal point of view wherein the individuals exhibit the critical reflective attitude of the law and not merely see it as a predictable pattern of behavior. These individuals then apply it to themselves and see it as a standard that ought to be followed and it becomes a basis for criticism in cases of noncompliance. Furthermore, rule-skepticism asserts that in the realm of open texture, the courts are not bound by when deciding the merits of cases for there is no standard for correct adjudication in these doubtful cases. Therefore, it may seem that there is no rule binding them to act in a certain way. This absurd as it proposes extremes as there are either rules which allow no exception or there are none. Rules that admit of exception are still rules. One is still bound to keep a promise even if there exists the possibility of circumstances that may validly interfere in the fulfillment of such promise. There are those who act in accordance to a general compliance to a certain conduct or those who consciously take rules as their standard but are not totally similar in nature. It is a must to distinguish those know the rules and apply them even despite the existence of those who merely comply with general behavior. III.

Finality and Infallibility of Judgement

The accuracy of the supreme tribunal matters is not in the within the purview of the rights and duties of the people for once a decision has been entered as finality then such rights and duties of the people are not open to further discussion. The courts may overrule their previous decision or the legislature may render it ineffective, therefore, others may infer from such that the courts are not bound by any rule for it seems that the courts are determining what they are. To illustrate, imagine the referee of match, wherein in cases of uncertainty, the referee has the discretion to determine the decision of such confusion. However, such notion is still misleading, since the referee makes his decision by applying the rules of the game according to his best understanding of such and therefore, implies the existence of the rules that the referee is merely trying to adhere.

In a similar light, once a society acquires secondary rules, it may acquire a certain amount of supremacy over these rules as well as the of the offices that have been established to settle conflicts arising from such rules. It may be efficient in way that there are judges that can reach a final ruling but there are also risks of mistakes involved when an individual has been conferred with such authority. In the same example, a referee is still bound by the rules as both the players and the referee refer to the rules as to determine whether the decision reached is the proper one. A referee’s decision may reach finality, yet, it is erroneous to presume that the decision is infallible. Despite the existence of erroneous decision, the game still goes on, however, if the referee makes continuous or multiple errors in his decision that it can no longer be simply ignored by the players or the audience, his decision would be questioned. It remains that it is not the decision of the judge that serves as law or constitution for the judge merely applies such rules according to the best of his understanding. The constitution exists in a modern legal system to provide the courts with identifiable standards for the correct judicial behavior and cannot be simply set aside by the courts. These are rules that judges to must adhere to for them to exist. It would be an overstatement to say that these rules originate from the courts as they are not essentially the source of these rules. Although there is a claim that these rules are merely the result of the probability of the court’s decision, in reality, rules are standards, not merely predictions, that the court is obliged to follow in their decision-making and serves as a limitation on their discretion. IV.

Uncertainty in the Rules of Recognition

Legislative enactments are considered one of the criteria that the courts use in identifying the validity of the law, however, there are still cases of uncertainty or open texture. To address this, it is essential to examine the authority of the parliament for sovereignty entails that the parliament is free from legal limitations in legislation from prior enactments. It should be noted that the existence of Parliament is not a necessity as we are merely accustomed to its existence. A more adequate description of sovereignty is the ability of Parliament to establish laws including those which contradict its previous enactments. Its power to legislate includes it ability to repeal its own laws or even limits its own authority. Although, it is not paradoxical to hold that the courts have the jurisdiction to decide such open texture cases since their jurisdiction has already been conferred by the constitution as not every rule is open to doubt. Chapter 8 – Justice and Morality This chapter delves more into the relationship of law and morality. Some view morality as a standard in determining whether a law is unjust while others say that the law is something that morality cannot undermine. Indeed, there is a connection between justice and the law but it remains essential to distinguish moral rules from legal ones. I.

Principles of Justice

There are instances wherein parties assert on the morality (unjust, wrong, bad) of things to support their opinion regarding the administration of the law. In this view, it is easy for one to be confused in that there exist a moral aspect in the legal setting or certain level of dependence between the two. However, there are certain cases wherein the word “unjust” has been use

inappropriately instead of words such as “wrong” or “bad”. For example, an abusive father cannot be called unjust but rather he is “bad”. The example depicts how moral criticism in term s of justice can take a variety of forms to describe the situation. The word “unjust” can be used to describe a father who also punishes an innocent child along with the one who committed the fault. The idea of fairness also enters the picture and identifies with criticism involving justice. Equal application of the law is sought by individuals or groups of the same class. The concept of like cases alike and different cases differently is rather incomplete and needs to be expounded further. To decide which cases require the same or different treatment, justice presents two standard features: (1) a “uniform or constant feature” expressed in the statement “Treat like cases alike (2) “a shifting or varying criterion” used in determining when cases are alike or different.” Laws not only examine their application but also the fairness involved. The laws themselves are criticized for being unjust. The law itself cannot be regarded as the standard for resemblances and differences as they can be challenged in terms of justice. Morality does not necessarily call for equality of treatment because there are some moral frameworks that see people that are divided into classes in which some are freer than others. It is evident that this so-called standard for similarities and differences vary depending on the moral perspective of an individual or group. In general, different perspectives of moralities will lead to different views on justice. This inquiry delves into the justice of the laws enacted in terms of the distribution of benefits and charges among individuals or groups. Now, going further into the aspect of compensation, such arising from torts may be deemed unjust in two perspectives: (1) it might lead to the establishment of undue privileges or immunities (2) it might result in a failure in providing redress to those affected despite the absence of any unfair discrimination. In providing the rules for compensations, the laws generally adhere to the principle of equality wherein the offender and the victim are seem as equally situated whereby the one who breaks the balance will have to shoulder the reparations in restoring the status quo. However, there are cases where morality and justice in compensation diverge as the law sometimes requires compensation even in the absence of any moral obligation to fulfill. In torts, the offending party is still required to pay for compensation even in the absence of malice. II.

Moral and Legal Obligation

Justice merely belong to a segment of morality that is mainly concerned with the acts of a group rather than focusing on individual behavior. Justice, as a plain segment, cannot exhaust the scope of morality. There are certain criticism of law that are made on the moral grounds which is not necessarily within the context of the discussion concerning justice. By going further into the topic of morality, two difficulties arise: (1) morality is open texture (2) even if we identify what morality really is, what belongs to it is still subject to open discussion. The existing moral rules are held high by a given society that has already accepted them, thus, such rules are not easily altered. A fundamental feature of breaking a moral rule is the voluntariness accompanied by conduct. It is something internal. Unlike laws, most moral rules are not enforced by coercion or physical punishment, instead, criticism and praise are used to maintain these rules. In a society, its morality is better understood in terms that are widely accepted within the standards of conduct in that community which is contrary to the moral ideas currently held by an individual that does not necessarily share the same values despite his proximity to the members of the community. Not all

non-legal rules are understood as moral rules as there are some that govern etiquette like the way we dress or other spheres of conduct. Moral rules and legal rules of obligation share striking characteristics as they both are binding without need for the consent of the persons bound. Both are also supported by a great demand for conformity. Laws and morals govern rather general behavior than special occasions in one’s life. Despite the similarities there are certain characteristics that laws and morality do not share. There are four cardinal features of moral rules: (1) importance (2) immunity from deliberate challenge (3) voluntary character of moral offences (4) the form of moral pressure. The cardinal feature of importance value moral rules as essential for a society since it restricts the individuals desires of passion or domination of his own personal interests that serve as an instrument of social pressure for conformity. Unlike rules of etiquette, moral rules essentially require greater lengths to conform and entails much harder criticisms in cases of non-conformity. Moral rules are highly regarded unlike legal rules which are often forgotten over times even though both of them concern the same behavior. In the discussion of immunity from deliberate challenge, the legal rules are more susceptible to deliberate changes in which they may be repealed by the creation of newer rules, however, moral rules do not operate in this similar fashion. Like traditions, moral rules cannot be simple altered by individuals despite its regular use. While moral rules are seemingly immune from deliberate changes, they suffer degradation when a legal rule is in conflict with the former aims resulting in the abolishment of the moral rule. Nevertheless, moral rules and traditions experience decay although such is not intended through the deliberate action of an individual. Under voluntary character of moral offences, both moral rules and legal rules give way to the voluntary aspect of an offense in their own terms leading to the offender being excuse since there is a lack of malice in moral offenses. In fact, punishment despite the absence of malice is deemed as morally wrong. In legal rules, the absence of mens rea will at some cases absolve the person from the crime should he exercised the necessary precaution. These interpretations should be exercised with caution as the distinction between an excuse and a justification which the statement that moral rules exclude external behavior confuses. As for the last of the four cardinal feature of moral rules, the form of moral pressure is that exerted in the offender in case of moral rules typically appears as an appeal to encourage respect for moral rules which is presumed to be shared by the offender. III.

Moral Ideals and Social Criticism.

Social morality is based on moral obligation and duty, yet, it is misleading to say that moral obligations and duty exhaust what we know of social morality. Moral rules, unlike legal rules, are at the forefront of defining what is the good. Morality answers these deep-seated questions about our humanity. Morality as involving more than moral obligations but also moral ideals. This is the private aspect of morality wherein an individual is made to choose and commit to the ideal which draws to his preference. Chapter 9 – Laws and Morals

I.

Natural Law and Legal Positivism

Legal systems “must exhibit some specific conformity with morality or justice, or must rest on a widely diffused conviction that there is a moral obligation to obey it.” The development of morality and law go hand in hand. In this chapter, we must delve further into the connection between laws and morality. Proponents of Legal Positivism contend that “laws must reproduce or satisfy certain demands of morality.” Contrary to this, the advocacies made by classical theorists of Natural Laws beg to argue that “there are certain principles of human conduct, awaiting discovery by human reason, with which man-made law must conform if it is to be valid.” The modern critics of Natural Law has asserted their claim that there are certain principles of human conduct which await their discovery by human reason is based on a flawed conception of the word “law.” It can either be descriptive when discovered by mere observation and concerns matter of fact typically performed by scientists and prescriptive which are demands for certain conduct. Descriptive law cannot be broken. There very instance that it contradicts fact will result to it ceasing to become law, whereas, prescriptive rules can be broken. II.

The Minimum Content of Natural Law

Content is generally regarded as the very reason behind the law of which teleology supplements. Such theory, advanced by natural law, is stripped to its minimal form proposes a certain level pf cooperation to ensure its survival. The natural law protects humans from physical harm and since humans are equal to a certain extent, the laws play their role in maintaining the environment of mutual forbearance such that the notion of private property comes into mind due to the reality of limited resources. Natural law comes into play by providing protection to those who have worked hard to attain a claim of ownership of such limited resources. Natural Law in its minimal form views these natural necessities as enough reason to advocate a coercive system to ensure cooperation and thus survival of the commune. III.

Legal Validity and Moral Value

Natural law still requires a certain extent of protection and does not necessarily extend to every individual. There are some cases were coercion may be used even if those such is being directed at still refuse to cooperate. The six connections between law and morality are usually subjected to confusion and diligence is essential to further comprehend them. The six connections: (1) power and authority (2) the influence of morality on law (3) interpretation (4) the criticism of law (5) principles or legality and justice (6) legal validity and resistance to law. Some may consider the modern legal system as morally good but such perception does not consistently exist all the time. Confusion seems to arises from the use of the term obligation in both moral rules and legal rules. One can beg to differ that morality and laws coincide in terms of their object for laws are also involved on matters concerning moral rules. In areas of open texture, judges are guided by morality and justice, yet, such cases do not always entail that morality is essential in order to reach final judgement for it can be done without. It merely rests upon the sound discretion of the judge

as the circumstance may allow. The link between both morality and law may denote that a good legal system conform with morality at certain points, however, the criticism of law would contradict such perspective as there are may legal systems that are based on superstitious beliefs grounded on moral convictions. Chapter 10 – International Law I.

Sources of Doubt

The foundation of laws exists in the unity of the primary and secondary rules. Wherein, International law seems be a source of doubt as it lacks an exiting law-making body as confusion will also arise when there exist no secondary rules of change, adjudication and rules of recognition. The two principal sources of doubt arise from (1) the theory of laws as orders backed by threats (2) that the state cannot be the subject of legal obligation. II.

Obligations and Sanctions

One may ponder on how international rules bind the obligations to a state. There is an assumption that the very existence of a law implies that a certain conduct becomes obligatory. However, it is not safe to assume that the absence of an organized system of sanction means that international law is not binding at all. If ever, such assumption closely adheres to the model of coercive orders. Any arising conflict between states is incomparable to conflicts arising from individuals as the former is subject to public views and there is no precise certainty as to who may be involved. As war poses a high risk as well as involves the usage and wastage of valuable resources, international law seeks to establish itself as a natural deterrent between conflicting states and acts as an effective substitute for law enforcement agencies. Even states are evidenced to have acknowledge the existence of international laws as they often try to conceal their violations. III.

Obligations and the Sovereignty of States

Now, the situation poses a question on whether states are necessarily bound by international law. This area of doubt stems from the seeming inconsistency between the concept of sovereignty of a state and yet it remains bound by law. Here, the definition of state: (1) a population inhabiting a territory living under that form of ordered government provided by a legal system with its characteristic structure of legislature, courts, and primary rules (2) that the government enjoys a vaguely defined degree of independence.” Whereas, sovereignty means the absence of any form of social control. There are those who argue that by being bound by international law is not inconsistent with sovereignty though states limit themselves by accepting the jurisdiction of international law. Whereas, it fails to mention that they are bound through their own self-imposed obligations leading to two alternate viewpoints: (1) The states are already bound from the beginning and they subsequently express their assent (2) Rules that make self-imposition a binding obligation already exist. An exception arises from this when new states emerged who are previously not involved as signatories to already existing obligations and are also bound to them IV.

International Law and Morality

International law and morality are connected in complex ways as the former is like a system of primary rules wherein we might use the moral rules of recognition to identify as the secondary rules do not exist. Some argue that international law is a form of morality that leads to confusion but one distinction between them is that they deal with redress differently. Morality involves the appeal to human conscience unlike the usage of social pressure using threats. International law may be considered indifferent to morality since it concerns convenience. Morality is not subject to the deliberate act of legislation and laws do not even need the concept of morality for it the come into existence. V.

Analogies of Form and Content

International law is akin to municipal law in terms of form and not content although some may argue otherwise. The rules of international law are suited to very different social situations and it is difficult to perceive that they can admit a mere simple analogy with other form of law. International law lacks the compulsory jurisdiction courts in municipal laws possess. Whereas Kelsen insists that international law possesses a rule of recognition for identifying sources of law, the assumption for the need of any unifying rule of recognition is subject to criticism. Rules of obligation can be binding even without the existence of such a basic norm as they are similar to the rules of etiquette where it must be accepted in order for it to be binding. Although there is no unifying rule in international law, it is deemed unnecessary since international law consists of a set of rules which provide for the binding force of the treaties. In the end, states may be transitioning to this but as long as it has not happened, it cannot be sufficiently analogous in terms of content.